Baltimore Luggage Co.

National Labor Relations Board - Board Decisions

Mar 22, 1960

126 N.L.R.B. 1204 (N.L.R.B. 1960)

1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ERA being a dominated organization, all initiation fees, dues, and other moneys
paid into it by employees have been paid under coercion and duress. Particularly
was this true after Respondents entered into the contract containing union-security
provisions. I find that it would not effectuate the policies of the Act to permit the
Respondent ERA to retain such payment of initiation fees, union dues, assessments,
and other moneys which have been unlawfully exacted from employees of Respond-
ent Company as the price of their employment. Therefore, as part of the remedy
I shall order the Respondents, jointly and severally, to refund to the employees of
Respondent Company all of the initiation fees, dues, assessments, and other moneys
paid by the employees to or for ERA. I believe that these remedial provisions are
appropriate and necessary in order to expunge the coercive effect of the Respondents'
unfair labor practices.19
The violations of the Act found herein to have been committed by Respondent
Company are persuasively related to the other unfair labor practices committed by
the Company, as found by the Board in 121 NLRB 448. The danger of Respond-
ent Company's commission of unfair labor practices in the future is to be antici-
pated from its conduct in the past. The preventive purposes of the Act will be
thwarted unless the order is coextensive with the threat. In order, therefore, to
make more effective the interdependent guarantees of Section 7, to prevent a re-
currence of unfair labor practices and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act, I shall
recommend that the Respondent Company be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Detroit Plastic Products Company is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
and Employees Representative Association are both labor organizations within the
meaning of the Act.
3. By dominating and interfering with the formation and administration of Em-
ployees Representative Association, and by contributing support to it, Respondent
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (2) of the Act.
4. By entering into, maintaining, and enforcing a collective-bargaining agreement
which contains unlawful union-security provisions, Respondent Company has vio-
lated Section 8(a)(1), (2), and (3), and Respondent ERA has violated Section
8(b)(1)(A) and (2) of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, Respondent ERA has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b) (1) (A) of the Act.
[Recommendations omitted from publication.]
19 Lakeland Bus Lines, Incorporated, 122 NLRB 281, and cases cited in footnote 5
thereof.
Baltimore Luggage Company and International Leather Goods,
Plastics and Novelty Workers Union , AFL-CIO. Cases Nos.
5-CA-1377 and 5-CA-1496. March 22, 1960
DECISION AND ORDER
On November 4, 1959, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
126 NLRB No. 140.
BALTIMORE LUGGAGE COMPANY 1205
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended that the complaint be dismissed as to these allegations.
Thereafter the Charging Party filed exceptions to portions of the
Intermediate Report and a supporting brief. The Respondent filed
a reply brief only.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Baltimore Luggage
Company, Baltimore, Maryland, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Engaging in or claiming to engage in surveillance of union
meetings; interrogating employees concerning their union sentiments,
attendance at union meetings, or their voting intentions in a manner
constituting interference, restraint, and coercion in violation of Sec-
tion 8 (a) (1) of the Act; threatening loss of employment for attending
union meetings; threatening loss of employment, a reduction of work-
ing time, or other benefits, or threatening to close the plant if a union
should come in; threatening loss of employment if employees do not
vote against the Union; promising full employment if the Union is
defeated; promising job security for adherence to it during the union
campaign; attempting coercively to procure the resignation of pro-
union employees; and interfering with the distribution of union
literature to employees outside the plant.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist International Leather Goods, Plastics and Nov-
elty Workers Union, AFL-CIO, or any other labor organization, to
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Members Rodgers , Jenkins, and Fanning].
2 In agreement with the Trial Examiner, we assert jurisdiction over the Respondent, as
a concern engaged in the manufacture of luggage , on the basis of its shipments out of
the State of Maryland , valued in excess of $50,000 annually . Siemons Mailing Service,
122 NLRB 81.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively through representatives of their own choosing,
or to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the polices of the Act.
(a) Post in its plant at Baltimore, Maryland, copies of the notice
attached hereto marked "Appendix." I Copies of said notice, to be
furnished by the Regional Director of the Fifth Region, shall, after
being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon the recipt thereof and maintained by
it for 60 consecutive days thereafter, in conspicuous places, where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notice is not altered, de-
faced, or covered by any other materials.
(b) Notify the Regional Director of the Fifth region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated against
Martha Gilliard in violation of Section 8(a) (3) and (4) of the Act.
a In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that :
WE WILL NOT engage in or claim to engage in surveillance of
union meetings; interrogate employees concerning their union
sentiments, attendance at union meetings, or their voting inten-
tions in a manner constituting interference, restraint, and coer-
cion in violation of Section 8(a) (1) of the Act; threaten loss of
employment for attending union meetings; threaten loss of em-
ployment, a reduction of working time, or other benefits, or
threaten to close the plant if the Union should come in; threaten
loss of employment if employees do not vote against the Union;
BALTIMORE LUGGAGE COMPANY 1207
promise full employment if the Union is defeated; promise job
security for adherence to us during the Union's campaign; at-
tempt coercively to procure the resignation of prounion em-
ployees; or interfere with the distribution of union literature to
employees outside the plant.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist International Leather Goods,
Plastics and Novelty Workers Union, AFL-CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, or to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except
to the extent that such rights may be affected by an agreement
authorized by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
All of our employees are free to become or to remain members of
the above Union or any other labor organization.
BALTIMORE LUGGAGE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 Stat. 136), was heard in Baltimore , Maryland, on August 31
and September 1 and 15, 1959, pursuant to due notice and with all parties repre-
sented by counsel. The consolidated complaint, issued on April 30, 1959, by the
General Counsel of the National Labor Relations Board and based on charges duly
filed and served , in substance alleged that Respondent had engaged in a course of
interference, restraint , and coercion , violative of Section 8(a) (1) of the Act, and
had discharged Martha Gilliard on January 28, 1959, because of her union mem-
bership and activities and/or because she testified in an investigative proceeding
involving Respondent, in violation of Section 8(a)(3) and (4) of the Act.
Respondent answered denying the unfair labor practices as alleged. It pleaded
also that most of the alleged violations of Section 8(a)(1) had been the subject
of a settlement stipulation , with which it had complied . It pleaded as to Gilliard's
discharge that , after a reprimand for bad work, she became insubordinate and asked
to be discharged.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS ; THE LABOR ORGANIZATION INVOLVED
I find on facts alleged in the complaint and admitted in the answer that Respondent
is engaged in commerce within the meaning of the Act (i.e., extrastate shipments ex-
ceeding $50 ,000 annually ) and that the Charging Union is a labor organization
within the meaning of Section 2(5) of the Act.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. The settlement agreement; the issues
These two cases concern alleged unfair labor practices which occurred , respec-
tively, around the time of two separate Board elections held on January 17, 1958, and
January 14, 1959. The earlier charges in Case No. 5-CA-1377 were settled by
the parties by a stipulation and settlement agreement , approved by the Regional
Director on November 21, 1958, by which Respondent agreed to the posting of a
broad Section 8(a)( I) notice, agreed that the first election be set aside , agreed that
a new election be held, and agreed to comply with all the terms and provisions of
the posted notice. The second election was won by the Union , which was certified
by the Board after disposition of Respondent 's objections on May 26, 1959. See 123
NLRB 1289. In the meantime , following the filing of new charges on February
19 and March 12, 1959, the Regional Director , after investigation, set aside the
settlement agreement on April 23 on the ground that continued violations of the
Act had breached the agreement.
The complaint alleged generally the same type of coercive conduct after the agree-
ment as before, though on a less widespread scale, and it included as well the sub-
sequent discharge of Martha Gilliard. Respondent raised no issue at the hearing
or in its brief as to the unfair labor practices with which it was charged prior to the
settlement, but contested sharply the subsequent matters on which the issues are
purely factual . A legal issue is presented as to the effect of the settlement agree-
ment on the prior conduct, which needs be resolved before turning to the factual
issues.
It is well settled that continuing violations of the Act will breach a settlement
agreement involving unfair labor practices and will justify the Regional Director
in vacating the agreement and in proceeding with a complaint which covers unlawful
conduct both before and after the agreement . Wallace Corp. v. N.L.R.B., 323 U.S.
248, 253-255; Teamsters' Local 554 (Clark Bros. Transfer Co.) v N.L.R B., 262
F. 2d 456, 459-461 (C.A., D.C.), enfg. 116 NLRB 1891 ; Bowmar Instrument Corp.,
124 NLRB 1. However, findings of unfair labor practices can properly be made
on the earlier conduct only where there is evidence of substantial unlawful conduct
following the settlement agreement , for evidence of isolated and minor incidents will
not justify the Board in going behind the agreement . Wooster Brass Company, 80
NLRB 1633, 1635; Rice-Stix of Arkansas , Inc., 79 NLRB 1333, 1334. Moreover, in
determining whether independent unfair labor practices have occurred after a settle-
ment, the Board will not appraise a Respondent 's subsequent conduct in the light of
its conduct prior to the settlement . Larrance Tank Corporation, 94 NLRB 352, 353.
We therefore consider separately the evidence concerning the two periods.
B. Presettlement conduct
As Respondent raised no issue concerning the Section 8(a) (1) activity with which
it was charged prior to the settlement agreement, it is unnecessary to summarize
the undenied testimony of the General Counsel 's witnesses . The evidence estab-
lished , and it is hereby found, that during the earlier period Respondent , through
Gertrude Holtzman , president ; Samuel J. Holtzman , vice president ; James Wissman,
superintendent ; Helen Miller , forelady ; and Joe Weyberg, its foreman, engaged in
and claimed to have engaged in surveillance of union meetings ; interrogated em-
ployees concerning their attendance at such meetings and concerning their union
sentiments ; threatened loss of employment for attending union meetings ; threatened
loss of employment , a reduction of working time, and other benefits, and threatened
to close the plant if the Union should come in; threatened loss of employment if
employees did not vote against the Union ; promised full employment if the Union
were defeated in the election ; and interfered with the distribution of union literature
to employees outside the plant.
C. Postsettlement conduct
1. Interference , restraint , and coercion
Louise China testified that Wissman talked with her in Mrs . Holtzman's presence
before the second election , telling her he knew of her union activities but hoped
she would change her mind . He questioned her as to her reasons for "defending"
the Union and as to how she was going to vote in the election . Mrs. Holtzman
stated that about 80 percent of the employees were voting for the Company, and
when China disputed that claim , Mrs. Holtzman asked if China liked her job. When
BALTIMORE LUGGAGE COMPANY 1209
China responded affirmatively, Mrs. Holtzman stated that apparently she did not,
that it would be best for China to leave rather than to cause confusion on the job,
and that the Company would rather she quit.
Bessie Norman was rehired by Wissman in August 1958 after maternity leave.
Norman testified that before the second election Wissman reminded her of their
former conversation in August, during which Wissman had discussed the Union and
had asked whether if he hired her back he could depend on her to vote for the
Company. Wissman stated that as he had told her before, if the Union got in, he
would have to lay off all the new girls and bring back the old help, and that if she
voted for the Union she would be voting herself out of a job because he had rehired
her as a new employee. Norman testified further that on the day before the election
Wissman called her into his office, in Mrs. Holtzman's presence, and stated that
he thought he could depend on Norman and that he showed her how to mark an
election ballot so as to vote for the Company.
Myrus Clayborne, who was a committee chairman, testified that Mrs. Holtzman
had several conversations with him before the second election during which she told
him he had been a good worker and that if he stayed with her he would not have
to worry about a job. Clayborne volunteered that the conversation was not "intimi-
dating," and testified that Mrs. Holtzman did not mention the Union because, as
he understood it, Blum (Respondent's counsel) had advised against it.
There was also testimony by Martha Gilliard concerning the second election, but
it was apparent that she had confused the two elections. Thus Gilliard testified on
direct examination that Holtzman made a speech before the second election in which
he made certain guarantees of work, provided the Union did not come in. On cross-
examination she admitted that the speech in question was made before the first
election. She also testified, concerning the first election, that Wissman had said
he "was going to get rid of everyone he thought was for [the Union]." Questioned
later concerning the second election, Gilhard testified at first only that Wissman
discussed with her the marking of a ballot, but after repeated refreshment of recol-
lection by leading questions, Gilliard repeated the answer she had given concerning
the first election, i.e., that Wissman said that he "was going to gat rid of all of them
that he thought was for [the Union]."
Mrs. Holtzman was not called in denial of any of the statements which were
attributed to her nor to support Wissman's testimony. Indeed, Wissman himself
made no reference to China's testimony, which therefore stands wholly undenied.
Wissman denied making the various statements which Norman attributed to him,
and testified that he did not know in August 1958 that there was to be another
election and that so far as he was concerned or knew the Union had lost the election.
Wissman admitted that he called each of the employees into his office before the
second election, but testified that he confined his actions to the following: he told
them the company side of the story and showed them how to mark the ballot so
as to vote either for the Company or the Union. Though he denied that he
told the employees to vote for the Company, he admitted saying that in his opinion
they should vote for the Company.
Of prime significance in resolving the foregoing credibility issues is that Mrs.
Holtzman failed to testify, that Wissman failed to deny China's testimony, and
that no corroboration was offered of Wissman's other testimony. Furthermore,
Wissman admitted calling each of the employees into his office and discussing
the election with them. Assuming his lack of knowledge of the technical status
of the representation proceeding in August 1958, the point is not of significance,
for what is material is what he said to Norman concerning the second election in
January 1959.
Under all the circumstances, Wissman's uncorroborated testimony is rejected,
and I credit fully the testimony of China, Norman, and Clayborne. What their
testimony shows is that Respondent was continuing on a lesser scale and in somewhat
more subtle manner, the same type of coercive conduct to which it resorted in
defeating the Union in the first election, i.e., interrogation as to the employees'
union sentiments and their voting intentions in the election; threatening to lay off
new employees if the Union should come in; coercively attempting to procure
the resignation of a prounion employee; and promising job security to a known
union leader to stick with the Company during the campaign.'
i Clayborne's characterization of Mrs. Holtzman's conversations as not "intimidating"
do not foreclose the latter finding The promise of benefits to forego self-organization is
not less compulsive because benign; interference to stem organization is no less inter-
ference where accomplished through allurement rather than coercion
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge of Martha Gilliard
Under the General Counsel's theory, Gilliard's discharge had its roots in the
fact that in November 1958 she was subpenaed by a field examiner during the
course of the Board's investigation. The evidence showed that when Gilliard
delayed until Friday afternoon informing her foreman that she had been subpenaed
for Monday, she was criticized for waiting until the last minute (because of the
problem of arranging for a substitute), and that when she reported to work on
Monday morning, after having been notified on Saturday night that she need not
appear at the hearing, she was sent home for the day. However, Gilliard admitted on
cross-examination that she was sent home because someone else was already working
in her place, and the General Counsel disclaimed that the day's layoff constituted
discrimination. The evidence is therefore significant only as background to
Gilhard's claim that thereafter Respondent's supervisors began to "work on [her]"
through frequent inspections of her work until her discharge on January 28, 1959,
particularly after the second election on January 14, which was won by the Union.
There was ample evidence that Gilliard was active in the union movement (she
attended all meetings, was put on the organizing committee, and actively solicited
membership); and Respondent's knowledge of that fact must be presumed in view
of undisputed evidence concerning its antiunion activities (including surveillance)
prior to the settlement agreement. At the same time Gilliard's active participation
in the Union movement conferred no special privileges upon her, nor any immunity
against discharge, nor would it justify her in flouting a legitimate reprimand for
doing admittedly bad work. In the final analysis, as will be seen, the evidence
boiled down to the question whether Gilliard was discharged because of her union
activities or because, as Respondent contends, of her reaction to a reprimand for
bad work. Most of the salient facts are not in dispute, though the evidence is in
conflict on some of the details.
Gilliard worked in the covering department. On the morning of January 27,
Foreman Louis Zacks (who had previously reprimanded Gilhard for faulty work)
discovered a faulty case down the line after it had passed inspection by Janey
Williams, the regular employee inspector. When Gilliard acknowledged the work
was hers and acknowledged that it was bad, Zacks told her that he was tired of it
and was going to get rid of it once and for all. He took her first to Plant Manager
Wissman and then into the office of Vice President Holtzman. There Holtzman
lectured her about the seriousness of her mistake and the importance of maintaining
the quality of the product. Though Gilliard denied it, Holtzman, Wissman, and
Zacks testified that Gilliard said that that was the best she could do and that they
could fire her if they wanted to. When Holtzman was informed that Gilliard had
worked there 5 years, he suggested that Gilhard probably had spoken hastily and
directed Wissman and Zacks to write up an incident report and put her back to work.2
Gilliard was taken back to Wissman's office where, she testified, a statement was
written up that she was disinterested in her work and had a bad attitude. When she
refused to sign, despite Wissman's urging, she was sent home
Wissman and Zacks testified that before they began typing up the report, Gilliard
stated her intention not to sign anything and repeated her suggestion that they fire
her if they wanted to. Because of Gilhard's attitude, Wissman attempted to arrange
another meeting with Holtzman, who was leaving for lunch and who stated he
would talk with Gilliard later in the evening. After sending Gilliard home, Wissman
called her to come in at 5:30 p.m. to see Holtzman, but she arrived late, after
Holtzman left for the day. A meeting was finally arranged for the next morning,
and it was then that the discharge took place.
According to Gilliard she said nothing, and all that Holtzman said was that he
was going to accommodate her by firing her and that she was fired. Both Holtzman
and Wissman testified that the interview opened with Holtzman's inquiry as to what
the problem was and that Gilhard replied that she was doing the best she could,
that she was not going to do any better, and that if they didn't like it, they could
fire her. Holtzman responded that he would accommodate her and that she was
fired.
Though there remain conflicts on collateral points yet to be mentioned, it is
plain that the issue on the discharge can be settled by resolving the single credibility
issue between Gilliard on the one side and Zacks, Wissman, and Holtzman on the
other, whether Gilliard, by attitude and word, invited her discharge. The mere
fact that there were three witnesses against her does not itself require rejection of
2 The incident reports were put into use in February 1958 after the first election at
the suggestion of Respondent's counsel. Signature by the employee was not required.
They were placed in the employees' personnel files as a record of the history of employment.
BALTIMORE LUGGAGE COMPANY 1211
her testimony (though it is, of course, a weighty factor), for if her testimony be the
more credible, rejection of the opposing testimony will throw the preponderant
weight of the evidence to her side of the scales.
Gillard's testimony, however, showed that she furnished the key to resolving the
credibility issue against her. Thus though she denied having stated at any time that
they could fire her if they wanted to, she testified that Holtzman opened and closed
the final conference by saying that he would accommodate her by firing her. That
statement plainly did not square with her version that she had at no time suggested
that they fire her. At the same time, it was consistent with the testimony of
Respondent's witnesses that Gilliard repeatedly invited the firing.
The evidence thus showed (as Wissman explicitly testified) that no decision to
discharge Gilliard had been reached before the final conference. Prior to that time
the matter stood on Holtzman's direction to prepare an incident report and put
Gilliard back to work-the same disposition made as to Janey Williams, who had
overlooked Gilliard's defective work and who also failed to sign the incident report.
But the continuation of Gilliard's indifferent attitude and her repeated invitation of
discharge brought her finally the "accommodation" which she sought.
Though the General Counsel argues the improbability of an attitude like Gilliard's
and though certainly it seems an unusual one, particularly among unorganized work-
ers, the General Counsel overlooks Gilliard's claims to leadership in a successful
union campaign. But whether Gilliard's motive was martyrdom, or whether she felt
that her union activity somehow lent her privileged status, or whatever her motive,
the fact remains that her own testimony lent credence to the claims of Holtzman,
Wissman, and Zacks that, by word and attitude, she invited discharge.
The issue whether the admittedly defective case was repairable is immaterial,
since Gilliard was not discharged for doing bad work. However, the preponderance
of the evidence showed that though the case could theoretically be made over, it
was not economically feasible to repair it.
Nor does the evidence support the General Counsel's contention that the evidence
showed at least that Gilliard had been goaded into inviting discharge and that the
result should therefore be viewed as a constructive discharge. Though there was
testimony by Gilliard and other employees that the tempo of inspections by super-
visors was stepped up, particularly after the second election, this was denied by
Respondent's witnesses. Holtzman testified that he had always required constant
checking and inspection of quality by Wissman and Zacks as a regular part of their
duties and denied that there was any stepup of inspections as a result of either
election. Wissman and Zacks testified to similar effect, and Zacks testified to
previous occasions when he had reprimanded Gilliard for doing faulty work. Their
testimony is credited. Though the incident reports indicated that Respondent was
tightening up on employee efficiency and discipline, that system had been inaugu-
rated shortly after the first election, and Gilliard's case was headed for disposition
under it until the final conference.
Finally, there was nothing save speculation to connect Gilliard's discharge with the
subpena incident in November 1958. Aside from that, the evidence did not show
that Gilliard had either "filed charges or given testimony under this Act," so as to
bring the action within the language of Section 8(a) (4).
D. Concluding findings
The evidence summarized under section C, 1, supra, established that, following
the execution of the settlement agreement, Respondent continued to engage in the
same type of unlawful conduct as before the settlement. Accordingly, findings of
unfair labor practices may appropriately be made on the earlier as well as the
later conduct. See the cases cited in section A, supra.
It is therefore concluded and found on the basis of the entire evidence that
Respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act by the conduct which is summarized
under section B, supra, and engaged further in such interference, restraint, and
coercion following the settlement agreement by interrogating employees as to their
union sentiments and their voting intentions in the election, threatening to lay off new
employees if the Union should come in, coercively attempting to procure the resig-
nation of a prounion employee, and promising job security to a known union leader
to stick with the Company during the campaign.
It is further concluded and found on the basis of the entire evidence (see section
C, 2, supra) that the General Counsel failed to establish by a preponderance of the
evidence that Respondent discriminatorily discharged Gilliard in violation of Section
8(a)(3) and (4) of the Act.
s
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HI. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act. Respondent's breach of the settlement agreement and the
continuation of its unlawful conduct to defeat the employees in their right freely
to organize and to bargain collectively through representatives of their own choosing
demonstrate the necessity for a broad cease and desist order , which I shall
recommend.
Upon the basis of the above finding of facts, and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By interfering with , restraining , and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondent's business as set forth in section I, above , have a close,
intimate, and substantial relation to trade, traffic , and commerce among the several
States , and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
4. Respondent has not engaged in unfair labor practices proscribed by Section
8(a)(3) and (4) of the Act as alleged in the complaint.
[Recommendations omitted from publication.]
International Brotherhood of Electrical Workers, Local 292,
AFL-CIO and Franklin Broadcasting Company (Radio Sta-
tion WMIN ). Case No. 18-CD-$1. March 22, 1960
DECISION AND ORDER
This proceeding arises under Section 10(k) of the National Labor
Relations Act which provides that :
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph 4(D) of section
8 (b), the Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have
arisen ....
On August 5, 1959, Franklin Broadcasting Company (Radio Sta-
tion WMIN), herein called Franklin or the Employer, filed with the
Regional Director for the Eighteenth Region a charge alleging that
International Brotherhood of Electrical Workers, Local 292, AFL-
CIO, herein called Local 292, had engaged in and was engaging in
certain activities proscribed by Section 8(b) (4) (D) of the Act. It
was charged, in substance, that Local 292 has induced and encouraged
employees of Franklin to cease performing services with an object
of forcing or requiring Franklin to assign particular work to employ-
ees who are members of Local 292.
126 NLRB No. 150.