Capital Distributing Co.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1138 (N.L.R.B. 1964)

1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that the Company , by threat of discharge and loss of housing,
interfered with, restrained , and coerced its employees in violation of Section 8 (a) (1)
of the Act . I shall therefore . recommend that the Company cease and desist there-
from and from any like or related conduct.
For the reasons cited in the subsection entitled "The alleged violation of Section
8(a)(3)," I shall recommend that the complaint be dismissed insofar as it alleges
the discriminatory discharge and failure to reinstate Staton.
Upon the basis of the above findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America , AFL-CIO-CLC, is a labor organization
within the meaning of Section 2 ( 5) of the Act.
2. By threatening in connection with union activity, thereby interfering with,
restraining , and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and i (7) of the Act.
4. The Company has not engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
[Recommended Order omitted from publication.]
Capital Distributing Co. and William Henry Giles and Team-
sters, Chauffeurs, Helpers and Taxicab Drivers Local Union
No. 327, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America. Cases Nos. 26-CA-1630
and 26-CA-1671. June 29, 1964
DECISION AND ORDER
On February 27, 1964, Trial Examiner Arthur E. Reyman issued
his Decision in the above-entitled proceedings, finding that the Re-
spondent 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 Decision.
He. also found that the Respondent had not engaged in other unfair
labor practices and recommended that the complaint be dismissed as
to them. Thereafter, the General Counsel filed exceptions to the De-
cision and a supporting. brief..
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent that they are con-
sistent with our decision herein.
147 NLRB No. 117.
CAPITAL DISTRIBUTING. CO .' . '1139
1. We agree with the Trial Examiner that the Respondent inter-
rogated employees concerning their membership in and concerted ac-
tivities on behalf of the Union, thereby 'violating Section 8(a) (1) of
the Act. The record clearly shows, and we also find, that the Respond-
ent solicited its employees to withdraw their membership in and sup-
port of the Union, in further violation of Section 8(a) (1) of the Act.
2. The complaint alleged that the Respondent had violated Section
8(a) (3) and (5) of the Act by discriminatorily and unilaterally re-
ducing the wages'of employee O'Neal on September 27, 1963, 2 days
after the Union had won a Board-conducted election. The Trial Ex-
aminer found no violation of Section 8 (a) (5) and failed to pass upon
the Section 8(a) (3) violation. The General Counsel contends that
violations of both sections should be found. We find merit in the
General Counsel's position.
In the course of its interrogations of employees during the Union's
campaign, the Respondent learned that O'Neal had been active therein,
and had been instrumental in making the original contact with the
Union. In fact, O'Neal himself had so informed the Respondent.
Then, 2 days after the Union's victory, despite the Respondent's freely
expressed opposition to it, the Respondent lowered O'Neal's wages
from $1.30 to $1.25 per hour. Respondent's explanation of this action,
offered not when it was accomplished, but at the hearing, was that
O'Neal was getting more than the other employees, and because Re-
spondent would shortly have to, negotiate a contract with the Union,
it wished to have all its employees at the same wage level. Therefore,
but for the advent of the Union, O'Neal's wages would not have been
reduced. Such action is the clearest form of discrimination and in-
terference with the rights of employees. We therefore find that by
reducing O'Neal's wages the Respondent violated Section 8(a) (3)
and (1) of the Act. Moreover, at the time this action was taken, the
Union had been chosen as bargaining representative of the employees.
Contrary to the implication of the Trial Examiner, the record does not
show that there was any discussion of this matter with the Union, but
rather that the Respondent acted without informing or consulting
with the Union. Such unilateral action violated Section 8(a) (5) and
(1) of the Act.
3. We agree with the Trial Examiner that the discharge of William
Henry Giles, shortly after he had been hired, did not violate 8 (a) (3)
of the Act, but not for the reasons he gave. Giles was laid off after
the return of Robert Quarles who had formerly held the job Giles had,
but who had been ill. In these circumstances, as the Respondent did
not have or need more than one employee in this classification, we are
not satisfied that the General Counsel has established, by a preponder-
ance of the evidence, on the record considered as a whole, that the dis-
charge of Giles was violative of the Act.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ZHE REMEDY
Having found that the Respondent has engaged in certain additional
unfair labor practices, we shall order it to cease and desist therefrom
and take certain affirmative action necessary to effectuate the policies
of the Act We shall order that Respondent cease and desist from
soliciting its employees to withdraw their membership and support
from the Union Having found that Respondent violated Section 8
(a) (3) and (5) by its discriminatory and unilateral reduction of the
wages of Leonard O'Neal, we shall order that it cease and desist from
such action, and that it make O'Neal whole for any loss of pay he
may have suffered as a result of the discrimination against him, with
interest to be computed in the manner set forth in Isis Plumbing &
Heating Co , 138 NLRB 716
ADDITIONAL CONCLUSIONS OF LAW
5 By soliciting the employees to withdraw their support and mem-
bership in the Union, or any other labor organization, in the exercise
of their rights guaranteed under Section 7 of the Act, the Respondent
has engaged in unfair labor practices within the meaning of Section 8
(a) (1) of the Act
6 By discriminatorily reducing the hourly pay of Leonard, O'Neal
the Respondent has engaged in and is engaging in unfair labor prac-
tices in violation of Section 8 (a) (1) and (3) of the Act
7 By unilateially reducing the hourly pay of Leonard O'Neal the
Respondent has engaged in and is engaging in unfair labor practices
in violation of Section 8(a) (1) and (5) of the Act
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Capital Distributing Co ,
its officers, agents, successors, and assigns, shall
I Cease and desist from
(a) Interrogating its employees concerning their union adherence
and activities or soliciting employees to withdraw their membership
and suppoi t from the Union
(b) Lowering any employee's hourly pay because he engaged in
union activities
(c) Refusing or failing to bargain collectively in good faith with
the Union as the exclusive representative of its employees in the fol-
lowing certified unit by unilaterally changing terms or conditions of
employment All warehousemen and truckdrivers employed at the
Nashville, Tennessee, operation, excluding all other employees, office
clerical employees, guards, and supervisors as defined in the Act
CAPITAL DISTRIBUTING CO. 1141
(d) In.any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local Union No. 327, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection; or to refrain from engaging in such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make Leonard O'Neal whole for any loss of pay he may have
suffered because, of the discrimination against him in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Post tit its plant in Nashville, Tennessee, copies of the attached
notice marked "Appendix." 1 Copies of said notice, to be furnished
by the Regional Director for the. Twenty-sixth Region, shall, after
being signed by an authorized representative of the Respondent, 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 its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Twenty-sixth Region,
J n writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order " the words "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 National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local Union No. 327, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other labor organization, and will not solicit
them to withdraw their membership and support of the Union
or any other labor organization.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse*to bargain collectively in good faith with
Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Un-
ion No. 327, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive bargain-
ing representative of our employees in the following certified
unit by unilaterally changing terms or conditions of employment :
All warehousemen and truckdrivers employed of our Nash-
ville, Tennessee, operation, but excluding all other employees,
office clerical employees, guards, and supervisors as defined
in the Act, with respect to rates of pay, wages, hours of
employment, or other terms and conditions of the Act.
WE WILL make whole Leonard O'Neal for' any loss of pay he
may have suffered because of the discrimination against him.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or mutual aid
or protection, or to refrain from engaging in any or all such
activities.
All our employees are free to become, remain; or to refrain from
becoming or remaining, members of any labor organization.
CAPITAL DISTRIBUTING CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board's Regional
Office, 746 Federal Office Building, 167 North Main Street, Memphis,
Tennessee, Telephone No. 534-3161, if they have any questions con-
cerning this notice or compliance with-its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended, 29 U.S.C. 151, et seq., herein called the Act.
By appropriate order , the Regional Director consolidated Case No. 26-CA-1630
with Case No . 26-CA- 1651 . In Case No. 26-CA-1630 a charge was filed by William
Henry Giles on September 11, 1963 , against the Respondent , Capital Distributing Co.,
and on October 28, 1963, a charge was filed against the Respondent by•Teamsters,
CAPITAL DISTRIBUTING CO. 1143
Chauffeurs, Helpers and Taxicab Drivers Local Union No. 327, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of Ameriica.'
On November 16, 1963, the Regional Director for the Twenty-sixth Region issued
an order consolidating cases, a consolidated complaint, and notice of hearing. The
consolidated complaint alleges (as more fully described below) violations on the
part of the Respondent of Section 8(a)(5), (3) and (1) of the Act. The Respond-
ent on December 5, 1963, filed timely answer to the consolidated complaint in which
it effectively denies the violations set forth and sets up certain affirmative defenses.
Pursuant to notice, a hearing was held before Trial Examiner Arthur E. Reyman
at Nashville, Tennessee, on December 18, 1963. At the shearing, each party was
afforded full opportunity to call, examine, and crass-examine witnesses, to introduce
relevant and material evidence, to present oral argument, and, if desired, to file briefs.
At the hearing the General Counsel and the Respondent were represented by counsel
and the Union was represented by one of its International representatives.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent is now, and has been at all times material herein, a Tennessee corpora-
tion having its office and principal place of business in Nashville, Tennessee, where
it is engaged in the wholesale distribution of liquor. During the 12 months im-
mediately preceding the issuance of the consolidated complaint herein, the Respond-
ent, in the course and conduct of its business operations, purchased and received at
its Nashville, Tennessee, operation materials valued in excess of $50,000, directly
from points outside the State of Tennessee.
The Respondent is now, 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.
If. THE LABOR ORGANIZATION INVOLVED
The Union is now , and has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The. Pleadings
The complaint asserts, and the answer admits, that Manuel Eskind is vice president
and secretary-treasurer of the Respondent and that Herbert Eskind is its president
and that both Of these persons occupied these respective positions at the times mate-
rial to the times covered by this proceeding. The complaint goes on to say that
Manuel Eskind on August 20 and 23 and September 21 and 25, and Herbert Eskind
on September 11, 1963,2 interrogated the employees of the Respondent at its Nash-
ville, Tennessee, operation concerning employee union membership; that Manuel
Eskind on or about August 21 threatened the employees of the Respondent with a
reduction in the hours of work if they selected the Union as their bargaining rep-
resentative; that he on or about August 20 and 23, at the same place solicited em-
ployees of the Respondent to withdraw their membership and support from the
Union; that the Respondent through Manuel Eskind on or about August 20 at the
same place, promised the employees of the Respondent insurance 3 and financial aid
if they would refrain from becoming or remaining members of the Union Or giving
assistance or support to it.
1 Hereinafter William Henry Giles may sometimes be called Giles ; Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local Union No. 327, etc., may be sometimes called the Union
or Local No. 327; and Capital Distributing Co., may be referred to as the Company, the
Employer, or the Respondent.
Unless otherwise noted, all dates mentioned below are for the year 1963.
s Manuel Eskind testified that the Company has a group policy of insurance covering any
employees who want to become members of the group which has been in effect for some
10 or 15 years ; "that only one employee wanted it and he couldn't get It." Eskind denied
that he promised employees insurance and financial aid if they would refrain from be-
coming or remaining members of the Union or giving assistance in support of it. Because
of the failure of proof by witnesses of any promise of insurance benefits at a group meet-
ing of August 20 regarding what these benefits were, I accept the testimony of Eskind
concerning his reported reference to the existence of such a group Insurance plan, and
reject the inference that he threatened to cancel the plan.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint asserts that the Respondent discharged William Henry Giles on
October 27, and Leon Tubbs on September 27, because these two employees had
joined or assisted the Union or engaged in other union activity or concerted activity
for the purpose of collective bargaining or other mutual aid or protection.
The complaint goes on to set out that the appropriate bargaining unit, consisting
of all warehousemen and truckdrivers employed at the Respondent's Nashville,
Tennessee, operation, excluding all other employees, office clerical employees, guards,
and supervisors as defined in the Act, constitutes a unit* appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b) of the Act; that
on or about September 25, a majority of the employees of the Respondent in that
unit, by a secret ballot election conducted under the supervision of the Regional
Director, designated and selected the Union as. their representative for the purposes
of collective bargaining with the Respondent and that the Union on or about
October 3, was certified by the Regional Director as the exclusive bargaining rep-
resentative of the employees in that unit. The complaint also says that at all times
since September 25, the Union has been the representative of all employees for the
purposes of collective bargaining of the employees in the above-described unit; that
on or about September 27, the Respondent reduced the rate of pay of employee
Leonard O'Neal without notice to or consultation with the Union because O'Neal
had joined or assisted the Union or engaged in other union activity or concerted
activity for the purpose of collective bargaining or other mutual aid or protection.
The Respondent, in answer to the complaint, sets up certain affirmative defenses,
including the following:
It admits that discussions were had with its employees concerning the forth-
coming representation election on the dates set forth excepting for the date
September 25, 1963, but denies the inference from the charge that it interrogated
employees concerning union membership.
It admits that on some dates through its supervisor and agent, Manuel Eskind,
employees were solicited to vote against.the Union in the upcoming election but
does not admit the exact dates set out since it had no knowledge of the same.
* * * * * *
It denies the allegation of Section 13 [of the complaint] and on the contrary
avers that the discharges were for good cause and had no connection with union
activity, union membership or otherwise.
* * * * * * *
It denies the allegation of Section 19 [of the complaint] and avers that the
reduction of the rate of pay of Leonard O'Neal has no relationship to his union
activities, joining the Union, assisting the Union or otherwise.
The Proof
Leon Tubbs was employed by the Respondent for about 2 years prior to September
27 as a truckdriver and warehouseman. He testified that he became interested in
and joined the Union on approximately August 5; and that on August 20 he was
called into the office of Manuel Eskind and questioned concerning his membership
in the Union. On that day he had called for the mail at the post office and signed
a receipt for a certified letter addressed to Herbert Eskind, the president, this letter
being dated August 19 and signed by Larry Herd, business agent.4
*A copy of this letter in evidence herein reads as follows:
DEAR SIR: This is to notify you that a majority of your employees in the collective-
bargaining unit described below have designated Teamsters ' Local Union 327 as their
exclusive collective-bargaining representative. In view of such designation, we request
recognition, for purpose of collective bargaining, as the exclusive representative of
such employees. The collective-bargaining unit in which we request recognition con-
sists of all warehousemen and all truck-drivers.
One of our representatives will call on you at your office on Friday, August 23,
1963 at 2 p.m. for the purpose of negotiating a collective-bargaining agreement. If
such date is inconvenient for you, please notify us so that another more convenient
date can be agreed upon. We are willing to permit a neutral person to check our
authorization cards at the time of such meeting for the purpose of verifying our
majority status.
In the event of any discrimination against any of your employees because of their
union activities, or in the event of your refusal to bargain with us, we will take
prompt action to remedy such discrimination or refusal to bargain.
CAPITAL DISTRIBUTING CO. 1145
Tubbs testified that after he had delivered the letter to Manuel Eskind, he was
called over the intercom system to Eskind's office; that Eskind told him that he had
heard that he had joined the Union; that Tubbs said that was correct; that Eskind
asked him who obtained his membership in the Union, to which Tubbs said he
replied, "A fellow came by my house and I signed the card." Eskind then asked
Tubbs how much it cost him, to which Tubbs replied "$5.50." Further during the
course of this conversation Eskind told Tubbs that he had a garnishment in from
a finance company and informed Tubbs "We've been taking care "of these garnish-
ments on you, but since you have joined the Union you will just have to let your
Union take care of it." He said that Eskind asked him if he wanted to withdraw
from the Union to which Tubbs replied that he would do whatever the other men
did. Tubbs said that at the same time he was in the office Herbert Eskind said,
"Manuel, the best thing for you to do is get them all in here together"; that later
on that evening Emanuel Chadwell, Leonard O'Neal, William Giles, William Mar-
tin, and Paul Burrow, were called into the office; that Manuel Eskind spoke to them:
. wanted to know if any of us wanted to withdraw from the Union, and
then he asked us all individually and no one would say anything, no one would
say that they were going to withdraw. So, Mr. Herbert said that anytime any
of you feel like you want to come back up here this door is open. They also
mentioned that they would sign a contract with the Union but that they wouldn't
have to go along with whatever they said, because on days that we were not
busy he could say, you, you, and you can go home and maybe not work for
an hour or two that day.
Subsequent to the mention of a garnishment to Tubbs on the day above referred
to (August 20) Tubbs testified that 'his salary was held up on garnishments; that
he drew some money in advance from the Company for a time and then on another
call, came to the office again and was informed that another garnishment had ' been
levied. He spoke to Manuel Eskind about it and told Eskind that he thoughts he
had had the matter straightened out to which Eskind replied undoubtedly it is not
straightened out "because here it is." It had been the practice prior to the time
Tubbs joined the Union that when a garnishment came in, the Company would
honor the garnishment and would at times advance money to Tubbs, the father of
seven children.
On or about September 25, the employees.-in the unit claimed in Herd's letter to
Eskind designated and selected the Union by secret ballot as their representative for
the purpose of collective-bargaining with the Respondent. The Regional Director
certified the Union as the exclusive bargaining representative of the employees' union,
the unit being comprised of warehousemen and truckdrivers.
On the Friday just before the election, Tubbs was again called in to the office. He
testified that on that day:
So, the next morning I Dame into the office and went on and did my work;
and so, I went to the office that nyoming and I went in there and talked to Mr.
Manuel and Mr. Herbert closed the door and I told him I would agree to vote
the way they wanted me to vote if they would release my money. And they
talked to me, and said, "we've been kind to you" and said, "We have always
tried to take care of you," and Mr. Herbert said, "I told Manuel no more than
yesterday what a nice fellow you were, that you were the only one that vol-
unteered to take a trip to Franklin knowing that you were not going to draw
any money," and, so , I talked to him about releasing my money, that I would
vote the way they wanted me to.
Again on the morning of the election, Tubbs said that Herbert Eskind asked him
"if any of the fellows had said anything to him and I told him that they had not";
that Eskind then said, "Well, you haven't forgotten how to vote, have you,". to which
Tubbs replied he had not.
On June 27 Tubbs was again called into the office and informed that another
garnishment had been levied against his wages; Tubbs informed Manuel Eskind
then that he had talked to the head of the finance company who had agreed to
accept $5 a month and that he thought the matter was taken care of. It turned
out that on the last garnishment discussed before The discharge of Tubbs on Sep-
tember 27, Tubbs was under the impression that he did not owe the money claimed;
that he felt it was the obligation. of a -lady friend of his.who had undertaken to pay
the purchase price of a stove. The testimony of Tubbs was clear that his wages
had been garnished a number of times but that he had always received an advance
on his wages to tide him over. It also appears that prior to the last garnishments
received, Tubbs had been adjudged a bankrupt. After August 20, the day on which
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tubbs alleges that he agreed to vote the way "they wanted me to vote" he received
three checks but that his checks were held up 2 weeks in a row after the Union's
letter was received; that he received checks, however, for September 7 and 14; that
on September 21 there was a garnishment pending and that on that day he got a check
because he had agreed on the 21st that he would vote the way "they wanted me to
vote." In regard to the garnishment which would apply for the pay week ending
September 24, Tubbs enlisted George Broda, a union representative, to accompany
him to talk to either or both of the Eskinds concerning the garnishments; that they
told Broda that Tubbs had been lying about his garnishments and how he was taking
care of them and there was some question raised as to whether or not Tubbs had
been lying to the Eskinds concerning how the garnishments had been taken care of
and that Broda'had said at that time that "if I was lying about it they should [fire me]
but I was never lying about it." From the testimony of Tubbs, therefore, and
according to the understanding of counsel for the General Counsel as stated on the
record, his testimony indicates that as far as Tubbs knew prior garnishments had
not been responded to by the Employer and that the occasion of the letter and then
the interrogation wherein garnishments were discussed showed from the point on his
salary was applied to garnishments. Further, General Counsel contends that a
direct threat was made by the agents of the Respondent-that if Tubbs voted for
the Union, the Union could take care of any garnishments in the future.
William Henry Giles worked for the Respondent from August 5 until 27 as a
driver, having previously worked for Acme Products State Stores as a driver of a
tractor and trailer and subsequently for Capital Distributors, He said that he quit
the job for Acme in order to accept employment with Capital Distributors because
they didn't run as regularly as State Stores, State runs being heavy with no day
off. He learned of the vacancy at Capital Distributing through Leon Tubbs. At
the .time he was employed by the Respondent he carried the privilege certificate
required by law, as I understand it, for any employee working in or around liquor
distributors or warehouse operators.
He joined the Union at the suggestion of Leonard O'Neal. He testified that on
August 20 he was called to the office and Manuel Eskind told him that he had
heard he had joined the Union to which Giles replied that he had, and that Eskind
then wanted to know what he expected to gain out of it to which he replied, "More
money and less hours." He said at that time Eskind told him that he could withdraw
if he wanted to and that he didn't have to be frightened because no one was threatening
him to which he replied that he would "stick with the majority." He testified, as
did Tubbs, that the group of employees were called back into the office by the
Eskinds and asked what they thought about the Union, if they had made up their
minds what they were going to do, and that when Eskind got to Giles, Giles told him
that he was still sticking with the majority.
Up until the time of his discharge, Giles worked first in the warehouse until or
unless there was a necessity for a driver to drive a tractor-trailer. The work on the
tractor-trailer is distinguished from that of the local delivery truck, in that the
tractor-trailer goes to the distillery and returns a trailer load of liquor to the ware-
house from which it eventually is distributed in smaller trucks according to order to
liquor dealers.
According to Giles, about 10 days before he was laid off the former driver of
the truck, Robert Quarles, came in and Giles was told to bring his privilege permits
to the office, whereupon Giles asked Manuel Eskind why he was being laid off, to
which Eskind replied that they were going to change about, meaning that Quarles
could make a run and then he would make a run. Giles worked in the warehouse
until August 27, when he was laid off. He has not since been recalled to work.
Robert Quarles had worked for the Respondent since about the year 1957 and,
at the time of the employment of Giles, was away from work because of a con-
dition requiring medication and perhaps (I am not clear on this) hospitalization. It
is the contention of the Respondent that Giles was doing the job that had been Quarles'
job and when he came back Quarles replaced-him. Quarles testified that about
2 weeks before the secret-ballot election of September 25, he was asked by Herbert
Eskind whether he was a member of the Union, to which he replied "no."
The complaint charges that on or about September 27 the Respondent reduced
the rate of pay of employee Leonard O'Neal without notice to, or consultation with,
the Union in violation of Section 8(a) (5) of the Act.
O'Neal was employed by the Respondent approximately a year ago, his job being
the getting up of orders, helping with shipping, and occasionally driving. trucks. He
testified that he became interested in the-Union.
O'Neal testified to a talk between himself and other employees with one Sanders,
a union official, concerning, membership in the Union and as a consequence of this
discussion the employees as a group agreed to join the Union. He himself signed a
CAPITAL DISTRIBUTING CO. 1147
union card , solicited the other employees to ::gn union cards which were signed at a
place of business owned by him during the time and in one case during the lunch
period on the parking lot. In response to a question as to whether anyone from the
Company ever talked to him about the Union he recalled that it was about the same
time that they had turned their cards in and paid the union fee of $5.50 per person
and about the time the Company received a letter notifying it that its employees were
members of the Union or claimed to be members of the Union . He testified, as
did the employees previously mentioned, that the Eskinds called them first one by
one into the office and interrogated them concerning their membership in the Union;
that he told them that he would not say that he had joined or would not say that
he would not join the Union; that Manuel Eskind wanted to know if he knew of any-
body else who had joined to which 'he replied he did not; and Eskind wanted to know
what the employees could expect to gain by joining the Union, to which he replied
that they hoped for shorter hours and better pay because the cost of living is going
up and they needed more money, to which Eskind replied that that was not the way
to get it. Further, according to O'Neal, Eskind said the Union would allow the em-
ployees to work 40 hours, that "they" could not tell the employees whether they
could work 40 hours or not, that "he [Eskind] could come back and say you go
home and you go home and you go home when work was light" and also that 'he
could work the employees fewer hours if he so desired . He said that Eskind wanted
to know how the Union got started and how the union officials were contacted,
to which he replied that he had spoken to a union representative during lunch pe-
riods on the lot, naming Sanders by name.
O'Neal further testified concerning the group meeting called by the Eskinds in the
office at the end of that day. He testified: "He asked did any of us care to with-
draw, that we could withdraw from the Union, because we had one fellow there
that did try to withdraw, but the rest of us didn't. The rest of us stuck together,"
and wanted to know how they intended to vote; that he told Eskind that he thought
that the Company was interfering with their rights and that Eskind:
... finally spoke up and said that they are liable to vote-there are six of
us=and he said there might be six to nothing or it might be four to two, and
said it could wind up six to nothing for the Union , and he finally let us go and
when he did he said if any of you want to talk, want to change your mind,
my office is open at all times.
At that time O'Neal was making $1.30+ per hour and had been making that wage
for about a year. He said that subsequent to the election, the Eskinds told him
that from then on out he would make the same salary as the rest of the men and
upon inquiry was told that the rate was $1 .25 per hour . He has been paid at that
rate since that time.
On cross-examination , Respondent attempted to show that the duties of O'Neal,
in the warehouse , were identical to those of the duties of the other warehousemen
and truckdrivers. O'Neal denied that this was precisely so, saying that he was
responsible for getting up orders and taking inventory.
William H. Martin is employed as a truckdriver , having started work in June.
His testimony regarding the group meeting was in substance the same as that of the
other witnesses above mentioned and whose testimony has been discussed. He
joined the Union and paid his dues about the same time as the other men in the unit.
In regard to being questioned individually by Manuel Eskind he said that he was
called into the office, was asked how he liked the job, whether he had been mis-
treated, whether he was a married man and had any children , and whether or not
he had joined the Union to which he replied he had, that he had paid his union dues
and stated the amount . According to Martin, Eskind said that it was going to cost
him more and went on to say:
"How are you doing with your bills," and I said, "All right," and he said, "You
know, the Company here, we can offer you insurance." The way I understand
it, it is something like group insurance „ ,and he said , "We can offer you insurance
and if you have a pretty hard time with your bills you can come to us, just
bring it to us-and we will help you out," and he did ask, "Would you probably
withdraw from the Union?" and I said "with the group of fellows I am with,
I do whatever they do." I said, "If they want to withdraw I withdraw; if not,
.I am going to have to go along with them."
Leslie P . Burrow, employed by the Company for a period of about 3 years, testified
that he joined the Union at the request of O'Neal and that thereafter he was called
to the office and engaged in a conversation with Manuel Eskind who asked him if
he 'had joined the Union and when he replied in the affirmative Eskind asked what
for to which he replied , "Well, I don't know. The rest of them signed or joined
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I just joined too"; that Eskind asked him what he expected to gain by it to which
he replied he did not know and Eskind remarked that he did not know either.
Burrow also testified regarding the group meeting of employees called by the Eskinds
and held later that day. His testimony corroborates in substance what was testified
to by the other employees as related above.
Manuel Eskind, called as a witness for the Respondent , conceded that upon receipt
of the letter of August 20, notifying the Respondent that a number of its employees or
a majority thereof had joined the Union , he did ask each one of them whether
that was true or not; asked them whether or not they had joined the Union; and
did not attempt to find out whether or not a majority of them belonged. He con-
ceded that he spoke individually at first and as to each of them, and did not make
any threats or promises if they did or did not join the Union.
In the case of Giles, Manuel Eskind testified that he discharged Giles on August 27
after first employing him on August 8 and that he was employed because they needed
someone temporarily to drive the over -the-road truck-the tractor-trailer-which
required more skill than that held by other employees . Prior to the time of the
employment of Giles, he said they had a man by the name of Ewing who drove the
truck for 2 or 3 weeks and prior to that the tractor -trailer truck had been driven
by Quarles ; that when he came out of the hospital , he requested his job back and
was put back at first part time at the time Ewing was still there . He said further
that Ewing had quit and that they then used Quarles periodically , "just off and on."
Quarles, he said , returned to work permanently at the end of the month of August,
having been dismissed by the doctor under whose treatment he had been and it was
at that time Giles was discharged. The reason he said that Giles was discharged
was because they had no need for two tractor-trailer drivers , Giles had been there
for only 3 weeks and was the least senior man then employed in the warehouse.
Eskind denied that he had ever told Giles that he would be a permanent employee;
that he did know that Giles was a member of the Union but that had nothing
to do with his discharge.
In the case of Tubbs, Manuel Eskind testified that Tubbs was a good worker, but
that,
Well, he just owed [sic ] to everybody in town , apparently , it seemed like and we
were worried with people calling us up wanting to collect money and hold out
money for them and so forth . Then he suddenly quit and I asked him later
on and he said the had gone into bankruptcy and we hadn't heard anymore from
his creditors.
Eskind did not remember whether or not garnishments had been levied prior to the
bankruptcy of Tubbs but to the best of his recollection it was a year or so before
that that the last garnishments were received that he went into bankruptcy. He
testified further that prior to the bankruptcy , Tubbs also owed money to the Com-
pany, that he was always drawing ahead of his salary , that when garnishments were
levied , the Company paid themselves first and stopped advancing money long before
any union activity came along.
In regard to the garnishments that finally led up to the discharge of Tubbs on
September 27, Eskind testified that a garnishment was levied on Tubbs' wages, that
he called Tubbs to the office and Tubbs denied that he owed it ; that on the advice of
counsel the Company honored the garnishment and paid the amount thereof, or
the amount owed by Tubbs , into court as required by law . He denied that there
was any discussion about the Union in connection with this garnishment; that Tubbs
simply denied that he owed the money claimed , that he was going to straighten it
out, and that the Company would not be bothered any more . In response to a
question from counsel as to whether or not Tubbs was advised by Eskind as to what
would happen if the Company was bothered any more , Eskind replied:
No, sir, we did not . I did tell him that I I just couldn't afford keeping on having
garnishments on any of our employees . So, we paid the garnishment off that
week and then the next week here it comes again with a garnishment. So,
I called him back again and said the same thing . He said he had seen his
lawyer, because you [Mr . Dodson] had told me that you can 't get a garnish-
ment unless there is a judgment . . I said, "If there is ajudgment if they are
going to continue this thing and if they haven't stopped the garnishment you
must owe the money or they are going to continue to garnishee and I am going
to stop it"; he said , "I'm going to stop it , you will never hear of it again."
Eskind said that for about 2 weeks thereafter he heard nothing more concerning
that garnishment.
CAPITAL DISTRIBUTING CO 1149
Eskind testified that 2 or 3 years prior to the date of the hearing , there had been
a tremendous amount of thievery in the business and at that time all employees were
discharged because they were "all admitted thieves", the Company did not want the
temptation and did not want anybody that owed finance companies three hundred-
and-some-odd dollars and somebody else being garnished every day, that Tubbs was
continuously lying concerning the probability that such a situation would arise
again Therefore when the garnishment came in after the first 2 weeks in September
according to Eskmd , he called Tubbs in, and the latter told hum `if you will just
let me have my money I 'll do anything in the world that you want me to do" and
he replied that he did not want him to do anything in the world to which Tubbs
replied, "I'll vote against the Union , I'll do anything", that Eskind replied to Tubbs
that he had never asked him to vote against the Union , had never asked anybody
else, and that he was not going to pick Tubbs out to ask him Eskind said that he
let Tubbs have his money that week , reported on the garnishment at the time he got
Tubbs' assurance that there would be no more trouble , and that on the following
week the Company again received notice of garnishment against Tubbs Eskind
fired him at that time Again , according to Eskind,
Then , after we fired him, the next week he came back with Mr Broda [Union
business agent] and asked that he be reinstated I said , "Mr Broda, as far as
I can see I cannot reinstate a liar , a man that has told me thus and so about
the garnishment , the man owes money and he says he doesn 't owe money, he
said I would never receive another garnishment and I have received garnish
ments," and Mr Broda said , "Well, give him another chance and if
he gets another garnishment or if he lies to him I will be the first one to tell you
to fire him "
Eskind went on to testify that the following Friday another garnishment came in
and subsequently a second one after the conversation at which Broda was present
Eskind denied absolutely that the discharge of Tubbs on September was related with
or connected in any Way with his union membership or his membership therein
Manuel Eskind concedes that on September 27 he reduced the pay of O'Neal
from $ 1 30+ to 1 25 an hour, his reason therefor being stated by him as follows
because he was getting more than the rest of them , and I thought I was
getting ready to negotiate a contract with the Union, if I could get together
with them, and I thought all of them should start on the same basis, because
they all did the same work , not that I had anything in the world against
Leonard O 'Neal He had been there the least amount of time of any of them,
as a matter of fact , practically the least
Herbert Eskind testified , and his attention called to the letter addressed to him by
the union representative under date of August 19 and received on August 20 He
conceded, as did Manuel Eskind , that they talked to the employees individually and
collectively on August 20 and his testimony in effect is the same as that of Manuel
Eskind In regard to the proof at the hearing offered on behalf of the Respond-
ent, he said he, if asked the same questions , would adopt the same answers of Manuel
Eskind in response to such questions, and particularly the statement to the group
that he and Manuel Eskind were not going to try to tell the employees how to vote
George Broda, business agent for Local 327, was called as a witness by the Re
spondent and, at the outset of his testimony , stated that he had not talked to counsel
for the Respondent concerning the questions about to be propounded to him and
did not know what those questions would be Broda was a forthright witness, and
I can see no reason to believe that his testimony was not spontaneous
Under questioning he testified that since the election and certification of the Union
as the bargaining representative of the employees in the above -described unit he
had negotiated with Messrs Manuel and Herbert Eskind relative to a contract
He said that Leon Tubbs,
came to see me at my office and told me that he was discharged unfairly because
due to the circumstances that he had been garnisheed and that prior to this the
Company didn 't discharge him since he had become a union man they did
discharge him, and I asked Mr Tubbs how many times he was garnisheed and he
told me that it was in something of the nature the first or second time, and we
went into great detail to find out who , and what Mr Tubbs told me he shouldn't
be garnisheed because he did make arrangements with the Company or the
companies involved and the Company assured him that he wouldn't be garnisheed
1150 DECISIONS OI NATIONAL LABOR RELATIONS BOARD
and that the garnishment came anyhow and that he had been discharged because
of that So, I went and talked to Mr Manuel Eskmd and Mr Herbert Eskind
with my colleague , Clarence Sanders
About two days after I went to the National Labor Relations Board Mr
Manuel Eskind called me again-two or three-gosh, I don t know how many
days I would not state exactly He said they got another garnishment So
I didn't investigate any further because three garnishments is not overly satis-
factory to me I felt that since I didn t have a contract I couldn't enforce it
So, I left this up to the Labor Board
Q As a matter of fact, you felt that if the truth had been told about it by
Tubbs that he was entitled to dischai ge, didn t you9
A Well, I felt like this I asked Tubbs, I told him, "if you are telling me a lie,
as far as the arrangement, and you get garnisheed again, the Company, contract
or no contract, would have the right to discharge you
Broda expressed the opinion that had a contract been in effect, Quarles would
have been entitled to reinstatement, after being released by his doctor, to his old job
in preference to Giles, who was the most junior employee In other words, Broda
supported the position taken by the Respondent that Giles was not discharged for
any union activity but that the whole discussion about him revolved around his right
to the job over Quarles
Concluding Findings
1 On the basis of the admissions contained in the answer to the complaint, quoted
in the section entitled "the Pleadings,' supra, and on the basis of the testimony of
Manuel Eskind and as adopted by Herbert Eskind, it is clear enough that the Re-
spondent violated the provisions of Section 8(a) (1) of the Act through interrogation
both individually and collectively of the employees in the bargaining unit, concerning
their interest in the Union, and it is proven that Manuel Eskind suggested to em-
ployees to vote against the Union in the upcoming election The testimony of
Messrs Eskind was clear and unequivocal and neither made any attempt to conceal
the fact that they made an effort to determine who was or who was not in favor of
the Union I think the preponderance of the evidence here shows that interrogation
of employees occurred to an extent sufficient to sustain the allegations of the com
plaint of violations of Section 8(a)( I), and I so find Flemingsburg Manufacturing
Company, 131 NLRB 492, enfd 300 F 2d 182 (C A 6)
2 I cannot find that the Respondent refused to bargain collectively with the
Union as representative of its employees in the appropriate unit as alleged in the
complaint It clearly appears, especially from the testimony of Business Agent
Broda, that the matter of the reduction in wage of O'Neal was discussed between
representatives of the Company and representatives of the Union, and that the Union
failed to find sufficient reason to charge the Company with an unfair labor practice
in regard to the reduction of rate of pay of O'Neal The fact remains that this
matter was discussed between the parties and that no case was made by the bargain-
ing representative (the Union) against the Company In ordinary case , had there
been disagreement as to the right of the Respondent to reduce the hourly wage rate
of 0 Neal I would find that the Respondent would not have had the right to arbitrarily
reduce an employees wage without the consent of the Union as a bargaining repre-
sentative Since the Union in this case refused to find a bargainable issue, Giles
resorted to the Board in proper person, as he had a right to do I think the matter
thus resolves itself into the handling of a grievance rather than a matter involving
the commission of an unfair labor practice Therefore, I am constrained to find
that the preponderance of the evidence herein fails to sustain the allegations of
the complaint as to a violation of Section 8(a) (5) of the Act The Frohman Manu-
facturing Co Inc, 107 NLRB 1308
3 I find"t^hat William Henry Giles was discharged or laid off on August 27, not
because of his membership in or activ ties on behalf of the Union, but because he
was junior In the job held by Quarle§ for several years, whereas Giles had been
employed for a period of only a few weeks It is true that Giles was active in
soliciting membership in the Union, and it is true that he, as were other employees in
the bargaining unit , was questioned regarding his membership in the Union I be
live his interrogation , as that of other employees, as set forth in the paragraph
numbered 1, above, was in violation of Section 8(a) (1) However, a clear explana-
tion of the reason for his layoff is reflected by the testimony of Quarles and clearly
set forth in the testimony of Manuel Eskind Further, it plainly appears that Broda,
the business agent for the Union, did not file a charge against the Respondent be-
cause he was aware of the fact that Giles was taken on as a probationary employee
HORTEX MANUFACTURING COMPANY, INC. 1151
I think his layoff was completely within the prerogative of management, and there-
fore I find that the allegations of the complaint in regard to the violation of Section
8(a)(3) in respect of Giles have not been sustained. I find his interrogation a
violation of Section 8 (a) (1) .
4. I find that Leon Tubbs was discharged on September 27 for cause in that he
was an unsatisfactory employee because -of the many garnishments levied against his
earnings by creditors, and because he deceived his Employer regarding his financial
status after he had been warned by the Employer that any future garnishments would
result in disciplinary action against him by the Respondent. As in the case of Giles,
it is true that there was discussion between Tubbs and Manuel Eskind regarding the
Union. I accept the testimony of Eskind over that of Tubbs to the effect that Tubbs
himself made the offer to vote against the Union Should Eskind overlook the prior
garnishments, bankruptcy, and subsequent garnishments of Tubbs. My findings in
this respect I believe to be supported by the testimony of Business Agent Broda in
regard to the meeting between Broda and Sanders and the Messrs. Eskind, when
Broda and Sanders appeared on behalf of Tubbs to ask for his reinstatement.
I find, therefore, that the General Counsel has sustained by proof supported by
admissions in the pleadings that the Respondent engaged in unfair labor practices
in violation of Section 8 (a)( I) of the Act, as set forth above. I further find that
the General Counsel has failed to sustain the burden of proof to show violations of
Section 8(a)(3) and Section 8(a)(5) of the Act, as alleged in the complaint.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) in violation of the rights guaranteed to its em-
ployees by Section 7 of the Act, I shall recommend certain affirmative action and
shall recommend further that the Board enter a conventional remedial order.
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. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union No. 327,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices in violation of
Section 8(a)(3) and (5) of the Act, as set forth in the complaint.
4. The Respondent, by interrogating its employees concerning their membership
in, or activities or concerted activities on behalf of, the Union, has in-
terfered with, restrained, and coerced employees in the exercise of the rights guaran-
teed in Section 7 of the Act, thereby engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
[Recommended Order omitted from publication.?
Hortex Manufacturing Company, Inc. and Amalgamated Cloth-
ing Workers of America, AFL-CIO. Case No. 28-CA-944.
June 29, 1964
DECISION AND ORDER
On March 12, 1964, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 De-
cision. He further found that the Respondent had not engaged in
147 NLRB No. 118.