Crown Imports Co., Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1967

163 N.L.R.B. 24 (N.L.R.B. 1967)

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The discharge of Smithey
As to Smithey I find that the Board's presumption that
company knowledge of union activity in a small plant may
be inferred in the absence of direct evidence merits
application. Smithey, who had first sought to organize the
drivers on behalf of the Teamsters in April 1965, testified
that he again tried to organize the drivers in September
1965, when Stephenson was trying to organize the plant
employees for the Oil Workers. There followed the full
before Christmas and things after Christmas, according to
Smithey, "drug out." The first meeting was held with the
Oil Workers on Sunday, March 13, and it was at this
meeting that it was decided all the employees should go
with the Oil Workers. On the day of the meeting Smithey
contacted the men he knew and thought he could trust and
"got every card signed that I possibly could that day."25
He called some employees at their homes, some at the Red
Rock Lounge, and some at the Top Rail dance hall. In view
of the overt character of this activity and the number of
employees contacted I believe it reasonable to infer that
the Respondent learned of it.26
As to the reasons given for Smithey's discharge, I do not
find them fictitious. Smithey admitted that in 1965 he had
a discussion with Casey in which Casey told him that he
had received complaints from various managers of Key
Stations about Smithey's attitude and his failure to assist
in unloading. He also admitted running over trash cans at
one station, being taken to the station by a Key supervisor,
and almost getting into a fistfight with the manager.
The immediate events which led to Smithey's discharge
on March 19, months after the above discussion with
Casey, were two interoffice memos from Dispatcher
Jarzombek to Casey. The first related to Smithey's refusal
to make the St. Louis run and the second to the report
from Pioneer Flour regarding his continual "bitching."
It was Casey's testimony that when he called Smithey in
on March 19 there had been no determination to fire him
but that Smithey's arrogant attitude during the
conversation led to his dismissal. I found Casey to be a
credible witness and I accept his version of the discharge
conversation. When an employee has been called in to
discuss two unfavorable reports and the employee then
tells the supervisor he does not like the company, does not
like the supervisor, and does not like the working
conditions, I believe the supervisor is justified in
discharging him. There remains the fact that Smithey was
one of the three who were most active in organizing a
union and one of the others had already been discharged
so that suspicion is created. That suspicion becomes
stronger when the record establishes that Smithey's union
activity increased and became overt, at least as far as the
men were concerned, on March 13. When a leading
organizer is discharged only 6 days after the first union
meeting, I think a prima facie case is created'. But this is
all the General Counsel has established while Respondent
has given reasons, plausible on their face, for the
discharge. These reasons have not been disproved. To find
for the General Counsel I must accept the inference of
company knowledge of Smithey's union activity, which I
have done, and accept the further inference, based on the
timing of the discharge alone, that the motive was
discriminatory. While I have found, and not without some
misgiving, that Respondent violated Section 8(a)(1) of the
Act, the violations found consisted of only two instances
and were borderline in nature. In short, I think the General
Counsel required some further evidence to establish his
fair preponderance.
I shall recommend that the complaint, insofar as it
alleges violation of Section 8(a)(3) be dismissed.
IV. THE REMEDY
Having found the Respondent engaged in certain unfair
labor practices I shall recommend that it cease and desist
therefrom and take certain affirmative action necessary to
effectuate the policies of the Act.
Upon the basis of the foregoing findings and conclusions
and upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. By telling its employees that if the plant went union
all benefits would have to be renegotiated , Respondent
violated Section 8(a)(1) of the Act.
2. Respondent did not violate Section 8 (a)(3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
[Recommended Order omitted from publication.]
25 How many signatures he obtained is not disclosed
21 Cf Saxon Paint Stores, Inc , 160 NLRB 1757 (issued after the
text of the Decision herein had been sent to print), where the
Board rejected the inference of company knowledge in a unit of 70
employees where there was no union activity at the store and,
although Respondent became aware of union activity at the
laundromat across the street, it was not shown that Respondent
became aware of the identity of the employees who may have
participated in it The finding of company knowledge as set forth
above was based solely on the Trial Examiner's conclusions as to
the law prior to the issuance of Saxon Paint
Crown Imports Co., Inc. and Warehouse
Union Local No. 12 , International
Brotherhood of Teamsters , Chauffuers,
Warehousemen & Helpers of America. Case
20-CA-3545.
February 20, 1967
DECISION AND ORDER
On March 24, 1966, Trial Examiner Henry S.
Sabin, issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof, and the General Counsel filed an answering
brief.
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the
163 NLRB No. 4
CROWN IMPORTS CO., INC. 25
findings, conclusions, and recommendations of the
Trial Examiner,' except as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Crown Imports Co., Inc., San
Francisco, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified.
1. Delete paragraph 1(f), and substitute the
following:
"(f) In any other manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist the above-named labor
organization, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in 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 organization 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. Add the following to the seventh indented
paragraph of the notice:
except to the extent that such rights may be
affected by an agreement requiring
membership in a labor organization as a
condition of employment, as authorized by
Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure
Act of 1959.
3. Delete the first sentence of the 10th indented
paragraph of the notice.
i The Respondent has excepted to the credibility findings made
by the Trial Examiner It is the Board 's established policy,
however , not to overrule a Trial Examiner 's resolutions with
respect to credibility unless, as is not the case here, the
preponderance of all the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc., 91
NLRB 544, enfd 188 F.2d 362 (C A 3)
We agree, moreover , with the Trial Examiner 's conclusion that
the Supreme Court decisions in Escobedo v Illinois, 378 U S. 478,
and Massiah v. U.S., 377 U S 201, with regard to the rights of
criminal defendants , are not applicable to the Board's
procedures . See also Miranda v Arizona, 384 U S. 436
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Trial Examiner: This is an orthodox
8(a)(1), (3), and (5) case except for Respondent's contention
that the affidavits obtained by Board investigators were
nullities and could not be used either directly or indirectly
at the hearing as evidence or referred to in the various
witnesses' testimony as Respondent's witnesses had not
been advised of their right to be represented by counsel
nor were they warned that these affidavits might be used
against them in subsequent proceedings, particularly in
those instances where some of the affidavits were obtained
after the Regional Office was apprised that the
Respondent Company was represented by counsel.
The complaint, dated June 23, 1965, alleging
Respondent had violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, was issued on a charge filed
by the Union on April 9, 1965, and an amended charge
filed April 22, 1965. The answer of Respondent denied the
commission of any unfair labor practices. This proceeding
with all parties represented was heard on September 1, 2,
and 3, 1965.1 Briefs were filed on October 22, 1965.
Upon the entire record in this case, including the briefs
filed by the parties and from observation of the demeanor
of the witnesses as they testified, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the importing
business with an office and place of business in San
Francisco, California." It is found that the allegations of
the complaint with respect to the nature, extent, and
volume of business done by the Respondent, which is
admitted in the answer, is true. It is concluded, therefore,
that the Respondent is an employer engaged in commerce
within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Union officials came to Respondent Company's
premises on March 26, 1965, and spoke to two of the three
warehouse employees with respect to authorizing the
Union to represent them in collective-bargaining
negotiations with their employer. Three union
authorization cards were left with them. On March 29, two
of the employees signed the cards. One of the three
warehouse employees in the appropriate unit,' Matsuhara,
told the manager of the Company on March 29 that two of
the three employees had "joined" the Union.
The initiation of organizational activities by the
employees brought about a responsive movement by
Respondent to oppose the Union by embarking upon a
campaign of interrogation and threats of reprisal. The
i The General Counsel and Respondent moved to correct the
transcript in certain respects . The motions were granted in part
and denied in part by my orders dated October 27 and
November 1 and 12, 1965
2 Reference is made in the transcript to Oriental Trading
Company, a sole proprietorship owned by Edward M Otani, who
also is the principal stockholder and president of the Respondent
Company
2 It was stipulated that the unit alleged in the complaint is
appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company manager, upon learning of the union activity,
questioned the employees and called a meeting the same
day which was attended by the three employees, at which
time the Union was discussed.
On March 29, the Union sent a letter by registered mail
to the Company alleging that a majority of its warehouse
employees had designated the Union as their collective-
bargaining agent for the purpose of negotiating a contract.
The letter concluded by suggesting a meeting on April 1
and requested an acknowledgment. No reply was received
from the Company.4 The three warehouse employees, the
alleged discriminatees, were terminated as of March 31,
1965.
On April 19, the Union sent a second letter to the
Company again requesting recognition. By telegram dated
April 20, the Company refused recognition stating there
was no evidence that the Union represented a majority of
the employees. The Company suggested in its telegram
that the appropriate basis for resolving the matter would
be by a Board-conducted election.
Contentions
The General Counsel contends that the three employees
were discriminatorily discharged in violation of Section
8(a)(3) in order to dissipate the Union's majority which, in
turn, violated Section 8(a)(5). The Company contends the
three employees were discharged because the quality of
their work was unsatisfactory and that it did not refuse to
bargain because it had no knowledge of the Union's letter
requesting recognition until after the charge in this
proceeding was filed.
A. The Alleged Violations of Section 8(a)(3)
On the morning of March 26, 1965, George E.
Harrington and Charles J. Ciolino, organizers for the
Charging Union, came to Respondent's premises and
spoke to Jay J. Matsuoka and Minoru D. Matsuhara, who
were employed in the Respondent Company's warehouse.
The union officials explained the benefits derived by
employees from being members of a union and asked them
to consider joining. Three union authorization cards were
left with them; the third card for another employee,
Marvin C. Lee, who was not present at the time but who
later signed a card. The union agents returned to the
Respondent's warehouse on March 29 and were given the
signed cards of Matsuoka and Lee. Upon receiving the
authorization cards, Harrington and Ciolino, the union
agents, went to Manager Mizushima's office and spoke
with him regarding information they received that
Mizushima had threatened to discharge one of the
employees if he insisted on joining the Union. The same
day, March 29, a registered letter requesting recognition
was mailed to the Company, with a return receipt
requested.
The Respondent contends that the Union's letter of
March 29, requesting recognition did- not come to the
Company's attention until April 10 or 12,5 although it is
uncontroverted that a return receipt for it was signed by
Ritsuko Mayeda, a secretary of the Company, on
March 30, 1965. Miss Mayeda credibly testified that after
signing the return receipt, she opened the registered letter
and placed it on the desk of Masao Mizushima, the
manager of the Respondent Company, who was not at his
desk at the time but nearby in an adjoining office. "A
couple of days later," her testimony continues,
"Mr. Mizushima [the manager], and Mr. Alberts [director
of sales] ... asked who was the letter for .... They told
me the letter was from the union. 1'6
The Respondent's receipt of the union letter on
March 30 is presumed (not only on the basis of
Miss Mayeda's testimony)' as the letter was properly
addressed, posted, and a return receipt signed so that
Respondent's denial of such receipt is not credited. Under
such circumstances, receipt and knowledge of its contents
on March 30 will be presumed and it is so found.8
1. Credibility
From this chronological point of the events which
transpired, the witnesses for the General Counsel and
Respondent are in conflict as to the salient issues in this
case. Nevertheless, after observing the witnesses,
analyzing the record and inferences to be drawn
therefrom, this conflict in testimony is resolved in favor of
the versions told by the General Counsel's witnesses. The
demeanor of Matsuoka, Matsuhara, and Lee, the alleged
discriminatees, while testifying and their forthright
manner in answering questions impressed the trier of
these facts. This impression that they were testifying
truthfully became a conviction when their stories were
found to be both consistent with the attendant
circumstances in this case and not substantially shaken by
able counsel for the Respondent who vigorously and
thoroughly cross-examined them. Moreover, the testimony
of the General Counsel's witnesses logically conformed
with the uncontroverted logical sequence of events and
attendant circumstances, as well as certain undisputed
and demonstrable facts hereinabove and hereinafter
explicated.
Conversely, Respondent's recital of its version of the
facts is singularly unimpressive as its witnesses frequently
contradicted themselves and each other in various
important respects. Then, too, the vague, indefinite, and
equivocal complaints testified to by Respondent's
witnesses with respect to the quality of the dischargees'
work which, in the main, are too intangible to refute,
leaves their discharges unsatisfactorily unexplained.
Mizushima, Respondent's manager, did not impress me as
a particularly credible witness. While I have sympathy for
his lack of familiarity with the English language rendering
the use of an interpretor necessary, the impression was
received that his testimony often was disingenious and
canny, and that his responses were carefully calculated to
advance the Company's case. The overriding impression
4 The Union filed a representation petition on March 30 with
the Board (Case 30-RC-6330)
5 The original charge was filed on March 30, 1965, but the
8(a)(5) violation was not alleged until the second amended charge
was filed on April 21, 1965
6 Later , she corrected her testimony in which she originally
stated that Mizushima and Alberts inquired as to "where the
letter came from."
' It is believed Mayeda was confused as to the dates when she
inconsistently testified that the first time the company officials
mentioned the union letter to her was when the Board investigator
came to the Company's offices on April 6, 1965 It is more
reasonable to assume based on the chronological sequence of
events in this case that Mizushima and Alberts discussed the
union letter with her shortly after she left the letter on
Mizushima 's desk on March 30
6 See Thiele TanningCo., 128 NLRB 19, fn 3
CROWN IMPORTS CO., INC. 27
of Alberts' testimony as a whole is its lack of "consistency
and inherent probability" and of constant shifting in his
explanation for the discharges of the alleged
discriminatees.10
2. The testimony
Minoru Matsuhara, who was hired on May 13, 1963,
testified that shortly before the three employees handed
the union officials the three authorization cards they had
signed, that he told Mizushima, the manager, on or about
March 29, 1965, that Lee and Matsuoka had signed union
cards. Matsuhara testified that at the time he told
Mizushima this that he had his signed card in his pocket,
but he had not as yet decided what to do with it.
Mizushima admitted Matsuhara came to his office on
March 29 and told him that Lee and Matsuoka Joined the
Union which information he conveyed the following day to
Otani, the Company's president ' 1 Matsuhara testified his
work was never criticized nor that he was warned he was
going to be discharged. In fact, he testified Alberts
commended his work and "quite often he tried to get my
wages to go up, that I was underpaid ...."
Jay Matsuoka was hired on January 25, 1965, by Bunji
Ikenoue, who was succeeded as manager by Masao
Mizushima. Matsuoka credibly testified that after he
signed the union card on March 29, Mizushima, the
manager, called him into his office about noon the same
day. Matsuoka's testimony continues as follows:
Mizushima asked him if it was true that he had "joined"
the Union. When Matsuoka admitted he had, Mizushima
said: "Since you joined the Union, you are fired.... The
company disagrees with any union activities and you will
be immediately fired." Matsuoka denied that at any time
prior to his discharge he received any complaints about
the quality of his work nor was he notified he was going to
be fired.
Matsuoka testified that he asked Mizushima for a letter
of reference containing a statement to the effect that he
was a satisfactory employee but that he was discharged
because he had joined a union. Mizushima, according to
Matsuoka, replied: "There may be a possibility of having a
letter typed," but later he refused to give him a written
recommendation.' z
After Matsuoka left Mizushima's office, he called
employee Lee next into his office and asked him if he had
signed a union card. When Lee replied he had, Mizushima,
according to Lee, said: "You need us as much as we need
you So if you don't withdraw from the union, we will have
to fire you as of today, and he asked me if I wanted to
withdraw from the union and I told him no." When
Manager Mizushima was asked about this, he testified he
did not remember whether he suggested Lee withdraw
from the Union. Lee testified that prior to his conversation
on March 29, he had no indication that he was going to be
discharged. Lee testified that not only Alberts, sales
director, commended his work, but so did Ikenoue and
Mizushima, former and present managers of Respondent.
Shortly after Matsuoka left the office, which was the
same day the Union's letter requesting recognition was
received, Mizushima called a meeting in his office.
Present were Ikenoue, Kanagawa , a salesman , Mayeda,
the secretary, and the three alleged discriminatees. The
latter were asked by Mizushima, who admitted it on his
direct examination, if they had signed union cards. When
they answered in the affirmative, he wanted to know why,
whereupon he told them they were being discharged
"because the company will go broke if we have to pay
union contract."13 Mizushima testified he told the three
employees at this meeting: "If they join the union, then the
company have a hard time paying, but I told them it's a
company policy, so we have to let them go."
Ikenoue, who was Mizushima's predecessor as
manager, in an affidavit dated April 28, 1965, which he
gave a Board investigator, stated that Mizushima told the
three discriminatees at this meeting that Otani, president
of the Respondent Company, "would not permit them to
bring the union in."
Matsuhara's version of what occurred and what
Mizushima said at this meeting of the officials, staff, and
warehouse employees on March 29 is as follows: "He
[Mizushima] said that anybody who had joined the union,
and he had knowledge of, would be fired right away." The
three warehousemen, Lee, Matsuoka, and Matsuhara,
were discharged, effective as of March 31, 1965.
Conclusions
Against this simple fact pattern, Respondent's efforts to
exonerate itself from a finding of unfair labor practices by
claiming the three men were unsatisfactory employees is
singularly unimpressive. The incidents of complaint to
which Respondent' s witnesses testified concerning the
discriminatees are remarkable in their triviality, lacking in
their specificity, and doubtful in their verity when
subjected to the searching glare of inquiry.
Thus, Alberts, Respondent's director of sales, vaguely
testified that when Matsuhara was employed originally he
was a "fast worker" and "impressed me as a very hard
working individual, conscientious employee, and as a
result I complimented him on many occasions for the
efforts he expended in the performance of his duties."
When he was promoted to being in charge of the
warehouse, Alberts' testimony continues, "for some
unknown reason the position sort of changed his attitude
toward taking orders, and in a couple of instances he
argued with me, contrary to my wishes, and I told him
point blank that if he wasn't going to take orders he would
have to find himself another job." 14
Universal Camera Corp v N L R B, 340 U S 474,496
° See N L R B v Georgia Rug Mill, 308 F 2d 89,91 (C A 5)
When Mizushima was asked if Matsuhara told him he had
joined the Union he equivocally answered " I am sure I haven't
heard directly from Mr Matsuhara that he joined the union "
However, in an affidavit he gave to a Board investigator, he
stated "On Monday, March 29th, 1965, Matsuhara advised me
that Matsuoka and Lee had joined the union and later
Matsuhara advised me that he also had joined the union " Also in
his affidavit , Mizushima states that he called Otani , the president
of the Respondent , on March 29 and "advised Otani that the
warehouse employees had joined Local 12 "
12 Lee, who was hired on or about January 8 or 10, 1965,
testified that when the employees were given their final pay,
Mizushima said that if any prospective employer called him with
respect to the dischargees that he would recommend them
13 The quotation is Matsuoka 's credited testimony.
Mizushima 's testimony that Matsuhara quit voluntanly is not
credited . In fact Mizushima later contradicted himself when he
testified- "[Matsuhara] didn't say he is going to quit. I
communicate with him that I am going to fire him "
14 An example of the picayune nature of these trivial
complaints , cited by Alberts , was Matsuhara (who was employed
approximately 3 years), allegedly disagreeing with Alberts as to
where a truck should be parked at the loading dock
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In response to a leading question by Respondent's
counsel, Alberts testified that Matsuhara was slow in
filling orders but the record clearly reveals there were not
a sufficient number of warehouse employees to handle the
orders which Alberts tacitly admitted. Matsuhara testified
he was criticized on two or three occasions between
January and March 1965, inclusive, for orders being filled
slowly. He claimed, however, that he could have used
three or four more men and that the warehouse was so
understaffed that he was working as late as 11:30 p.m. to
fill the orders. Moreover, corroborative of lack of sufficient
warehousemen to handle the orders is the uncontroverted
fact that these employees worked an unconscionable
amount of overtime without, in some instances,
compensation. Lee testified that "a lot of times" he
worked until 11 p.m. and that he complained to Mizushima
because he was not being paid for this overtime work. He
also testified that on one occasion, due to an appointment
he had at 7 p.m., he left work at 6:30 p.m., after working
hours, and that he was reprimanded by Alberts. He denied
that other than this incident and possibly one or two
others, the details of which he was unable to recall, that he
received no reprimands for his work.15
Another reason given for Matsuhara's discharge was his
alleged use of a company gasoline credit card to charge
gas which he used in his own automobile. Bunji Ikenoue,'s
who was Mizushima's predecessor as manager, when
asked how many times he reprimanded Matsuhara for this
replied he did not know. Matsuhara's version is as follows:
Yes when I was short on cash, I took the liberty of
using it [the Company's gas credit card], but as soon
as I used it I wrote a letter to the secretary in the
Reedley office [and] sent the receipt [telling the
secretary] that I used [the credit card to buy]
gasoline and please to take it out of my check. I never
hid anything. I signed my name and my automobile
license which [went] to the office and Mr. Mizushima
will go through it and he will notify me and they will
take it out of my paycheck.
This first occurred, testified Matsuhara, in March or April
1964 and altogether about four or five times over a period
of 2 years. He frankly admitted he was told not to do this
again by Mizushima and Ikenoue after he had charged gas
in this manner the second time. He testified that the last
time he charged gasoline for his own car on the company
credit card was on August 29, 1964. He denied, on cross-
examination , that he was warned he would be discharged
if he again charged gasoline in this manner or that he was
ever so warned for any other reason.
Ikenoue testified that with respect to the quality of
Matsuhara's work, he found him to be "very capable" and
a satisfactory employee. In this connection, it is
interesting to note Alberts' testimony that after Matsuhara
was fired, he asked Alberts (sales director) for "a
recommendation for another job" to which Alberts
replied: "I said that I would be most happy to."
Mizushima, the manager, without specifying any details,
merely stated that he found the three employees to be
unsatisfactory. Yet, he testified that a few weeks before
the alleged discriminatees discharges, he recommended to
Otani, the Respondent's president, that they be given pay
increases. For example, Mizushima testified to such
generalities as many customers complained about Lee and
Matsuoka; that he had no cooperation from them; that
several times he warned them and that Matsuhara told him
he was leaving to take another job which Matsuhara
denied. In his affidavit, Mizushima inconsistently stated
that he told the discriminatees, they were being
discharged "because the company could not afford to pay
them union scale." In addition, Mizushima incredibly
testified that Lee and Matsuhara came to his office
"several times" and told him Matsuhara was stealing
merchandise from the warehouse. Lee denied this ever
occurred.
Alberts testified Lee and Matsuoka were told at the time
they were hired that it was on a temporary basis; that
Matsuhara told him he was unhappy with his working
conditions and was looking for another job; and that Lee
abused the trucks he drove, failed to maintain them
properly, and was cited by the police on several occasions.
Also, Alberts testified, he found Lee drinking coffee one
afternoon at 2 o'clock and he told him that "he would be
better off looking for another job." Otani, president of
Respondent, gave an additional reason for discharging
these men, claiming that when they purchased a forklift,
they no longer needed three men in the warehouse but
only one.
Alberts staunchly maintained he had told the three
discriminatees on March 15, 1965, that they were going to
be "replaced" but on cross-examination, he
contradictorily testified "not specifically .... It wasn't a
definite termination notice I gave them." Then he further
qualified his answer by testifying he "possibly" gave them
a termination notice on March-15 that they would be
"replaced." Then later in his testimony he again
contradicted 'himself by stating he did not notify these
employees on March 15, that they would be replaced
subsequently.
This concatenation of the three discriminatees signing
union authorization cards on March 29 and their
precipitate discharges 2 days later with no advance notice
was merely a temporal coincidence, stretches credulity too
far when the following cumulative factors are considered:
(1) Respondent 's union animus which reflects prior
knowledge of their union activities" and which it made
known to its employees; (2) not only does the evidence fail
to bear out Respondent's contention of dissatisfaction with
the employees' work performance or a valid reason for the
three discharges but the asserted reasons were not the
moving cause for the terminations, as they neither stand
up under scrutiny nor are they substantiated by the facts.
In fact, the alleged grounds are so nebulous as to be
insusceptible of proof or disproof; (3) the unconvincing
character of the proffered shifting and multiple reasons for
these terminations is a significant factor in concluding
they were improperly motivated because shifting reasons
15 Lee testified that the truck he drove often was late in leaving
the warehouse because there were not enough warehousemen to
fill the orders which , in turn , resulted in delay in loading the
truck
16 The record clearly shows that it is so found that Ikenoue,
contrary to Respondent's denial , was a supervisor within the
meaning of Section 2 ( 11) until his replacement as manager by
Mizushima . After his replacement, Ikenoue continued in
Respondent 's employ
11 The Board and courts have sustained an inference of
company knowledge when the union activity has taken place in a
small plant . N L R.B v Abbot Worsted Mills, Inc, -127 F.2d 438,
440 (C A 1); N L R.B v Quest-Shon Mark Brassiere Co , 185 F 2d
285 (C.A 2), enfg 80 NLRB 1149, 1150; Angwell Curtain Co v
N L R B , 192 F 2d 899 (C A 7), Wiese Plow Welding Co., 123
NLRB 616, 617, 618, Tur-Line Metal Products Co, 138 NLRB
964, 966; Don Swart Trucking Co., 154 NLRB 1345, fn 2, where 18
drivers were involved.
CROWN IMPORTS CO., INC.
for employees' terminations are indicative of a
discriminatory intent. The failure to give a reason, or
giving evasive or contradictory reasons for a discharge
may, of course, be considered in determining the real
motive for the terminations, and the Employer's
inconsistent explanations is a circumstance indicating its
motivation and in this case it is found Respondent's
reasons were spurious and a pretext to screen its
discriminatory motivation;18 (4) there is more than a
temporal coincidence between the date the Union began
its organizational campaign and the employees' discharge.
The advent of the Union and their almost immediate
discharges indicates they were contrived to obviate the
necessity of dealing with the Union and were adroitly
timed to cripple the strength of the Union during its
formative period.10 The alleged reasons for their
discharges were pretexts designed to eliminate this union
nucleus and discourage any hopes of other employees
establishing a labor organization; (5) in determining
whether the three employees' terminations were
discriminatory, consideration also has been given to
Respondent's illicit interrogation of and threats made to its
employees as well as its refusal to bargain with the Union;
and (6) the record is replete with evidence that
Respondent knew of the union activities of the terminated
employees.
After evaluating all these factors and considering all
countervailing evidence, it is found that the evidence,
realistically viewed, establishes the three employees were
discriminatorily discharged for their protected union
activities and by the Respondent's resentment against the
Union as independently evidenced by its violations of
Section 8(a)(1) and (5), which are discussed below and all
of which was designed to discourage union activity in
violation of Section 8(a)(3) of the Act.
B. The Alleged Violation of Section 8(a)(1)
"The question of organization by the employees ... is
the exclusive business and concern of the employees. It is
the mandate of the statute that the employer shall not
intrude himself into the picture. The slightest
interference, intimidation or coercion by the employer of
the employees in the rights guaranteed to the employees
by the statute constitutes an unfair labor practice in
violation of Section 8(a)(1) of the Act."20
In determining whether an employer's conduct amounts
to interference, restraint, or coercion within the meaning
of Section 8(a)(1), the test is not the employer's intent or
motive, but whether the conduct is reasonably calculated
or tends to interfere with the free exercise of the rights
guaranteed employees by the Act.21 Threats of discharge
for prounion activity tend to deny employees the free
exercise of the right of self-organization guaranteed by
Section 7 of the Act.22 Threats to close a plant if a union
organizing drive is successful obviously have a similar
coercive effect.23 Interrogation or questioning may extract
information which is often used for subsequent reprisals
29
and to induce fear. This fear will be felt not only by the
worker interrogated but by all other employees who hear
of the questioning. Especially in the insecure
organizational period, the employer can make a seemingly
innocent question suggest his displeasure with employees
who support the union. Such questions may convey an
imagined threat of reprisal and dissuade employees from
supporting a union. In the instant case, the questioning is
so linked with other antiunion conduct that it is part of a
pattern of hostile conduct directed by the Respondent
against union activity.
An overall perspective of the factual situation of the
case at bar reveals Respondent's conduct was such as
restrained, interfered with, and coerced employees in the
exercise of their rights for the reasons hereinafter
indicated. On the issue of whether the Respondent
violated Section 8(a)(1), consideration has been given also
to Respondent's union animus, its discriminatory
terminations, and refusals to bargain, infra, as it is not
required that each item of Respondent's conduct be
considered separately and apart from all others, but
consideration must be given to all such conduct as a whole
with a view to drawing inferences reasonably justified by
their cumulative probative effect.24
In applying these principles to this case, it is concluded
and found that by the following conduct, which singly and
in combination is unfair labor practice, the Respondent
violated Section 8(a)(1) of the Act as it interfered with,
restrained, and coerced the employees in their freedom to
choose to be represented by the Union or no union:
(1) When Mizushima, Respondent' s manager , asked Lee,
Matsuoka, and Matsuhara if they had signed union
authorization cards; (2) when Mizushima interrogated Lee,
Matsuoka, and Matsuhara with respect to their union
activities; (3) when Mizushima, Respondent's manager,
told the said dischargees that they would be terminated if
they selected the Union as their bargaining
representative;25 and (4) when Mizushima told Lee that he
would be fired if he did not "withdraw" from the Union
and then he asked Lee if [he] "wanted to withdraw from
the Union ......
In view of Respondent's knowledge of the efforts of its
employees to organize a union, it is found that the conduct
described above was intended and so timed as reasonably
to have the effect of discouraging the organizational
activities of the employees, and that the interrogation,
threats, reprisals, and soliciting Lee's withdrawal from the
Union, made in the course of Respondent's efforts to
defeat the organizational activities of the employees,
interfered with the rights guaranteed in Section 7 and
constituted interference, restraint, and coercion in
violation of Section 8(a)(1) of the Act.zs
C. The Alleged Refusal to Bargain in Violation of Section
8(a)(5)
As detailed above, the Union on March 29 sent a letter
by certified mail to Respondent requesting recognition and
18 Dant & Russel, 92 NLRB 307, 320, N.L.R B. v. Condensor
Corp, 128 F 2d 67, 75 (C.A. 3) See Moresville Mills, 99 NLRB
572, 600, Sandhill Iron & Brass Works, 69 NLRB 355, 377, enfd
165 F 2d 660 (C.A 2). Lewis & Holmes Motor Freight Company, 63
NLRB 996, 1008, N L R B v Yale & Towne Manufacturing Co ,
114 F.2d 376, 378 (C A 2)
I s N.L.R.B. v. Peyton Packing Co., Inc, 142 F 2d 1009, 1010
(C.A. 5), cert. denied 323 U S 730
20 N.L.R B v. William Davis Co., 135 F.2d 179, 181 (C A 7).
11 N L R.B v. Illinois Tool Works, 153 F.2d 811,814 (C A 7)
22 N.L.R.B. v Syracuse Stamping Co , 208 F.2d 77 (C.A 2).
21 N.L.R B v Somerset Classics, Inc, 193 F 2d 613 (C A. 2),
cert denied sub nom. Modern Mfg. Co. v. N.L R B , 344 U.S. 816,
N L R B v. Franks Bros , Inc , 137. F 2d 989 (C A 1), affd. 321
U S 702
24 N L R.B. v. Popeil Bros. Inc , 216 F 2d 66, 68 (C.A. 7).
zs Mizushima 's equivocal denial that he made this threat is not
credited See Ht-Way Dispatch, Inc, 153 NLRB 154, fn. 1, with
respect to a witness ' demeanor.
16 Cf. BraberMfg Co , 111 NLRB 167.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the arranging of a meeting to begin negotiations. The
Respondent claims it never received the Union's letter
requesting recognition. This denial is not credited.27
Based upon the entire record in this proceeding, and for
the reasons stated above, it properly can be inferred
information came to the notice of the Respondent which
apprised it that the union letter (it claims it did not receive)
was a request for recognition and bargaining. Moreover, it
is well settled that such knowledge may be based on
circumstantial evidence .211 Assuming arguendo, lack of
direct evidence that Respondent had such knowledge, I
am not precluded from finding on the basis of such
incontestably strong circumstantial evidence that
Respondent has such knowledge, particularly when it is
considered that Respondent, the same day the union letter
arrived, immediately embarked upon a course of
purposeful and perverse conduct, beginning with
discharges, interrogations, and threats, in order to
dissipate the Union's majority."'
The uncontradicted evidence shows that the Union had
been designated by the three warehouse employees in an
appropriate bargaining unit as their bargaining agent when
the Union requested recognition and bargaining on
March 30. Thereupon, by virtue of the provisions of
Section 9(a) of the Act, the Union became the exclusive
representative of all the employees in the bargaining unit,
and Section 8(a)(5) provides that when an employer refuses
to bargain with the representative chosen by his
employees he is guilty of an unfair labor practice. Such a
showing has been made here.
It is well settled that an employer's duty to bargain is not
dependent upon an election and Board certification .311
Thus, a union's representative status may be established
by designation cards, applications for membership, or
employee petitions.31 The Act, it should be emphasized,
does not condition an employer's obligation to bargain
upon antecedent certification by the Board, where, as
here, a union's majority designation is clearly established
by authorization cards, so that the employer acts at his
peril in refusing to recognize a duly selected bargaining
agent.32 By Respondent's failure to learn the facts as to
the Union's majority and by engaging in unlawful conduct
designed to undermine the Union's support, Respondent
elected to take "the chance of what [the facts] might
be."33 When the Union sent a letter on March 29, then its
officials saw Mizushima at his office and they also sent a
second letter, it did everything it could possibly have done
under the circumstances.
It is well settled that an employer's duty to bargain
arises immediately upon receipt of an unequivocal
request, such as the circumstances in this case reveal.
However, when the Respondent Company stressed its
insistence that it would not grant recognition on the basis
of authorization cards,34 the Company betrayed its
fundamental opposition to the entire principle of collective
bargaining by resorting immediately to coercive activities
and refractory conduct. By interfering with the rights of its
employees and violating the Act immediately following the
Union's request for recognition, Respondent itself
provided a reliable index for measuring whether it had a
good-faith doubt of the Union's claim that it represented a
majority of the employees. Moreover, the Respondent
offered no evidence casting any doubt upon the
authenticity of the cards the employees signed which
shows bad faith.35
While an employer may, of course, refuse to recognize a
union when motivated by a good-faith doubt concerning its
majority status, it is settled, as stated in Joy Silk Mills,
Inc. v. N.L.R.B., 185 F.2d 732,741 (C.A.D.C.), cert. denied
341 U.S. 914, enfg. 85 NLRB 1263, that when:
... such refusal is due to a desire to gain time and to
take action to dissipate the union's majority, the
refusal is no longer justifiable and constitutes a
violation of the duty to bargain set forth in Section
8(a)(5) of the Act. [Citing cases.] The Act provides for
election proceedings in order to provide a mechanism
whereby an employer acting in good faith may secure
a determination of whether or not the union does in
fact have a majority and is therefore the appropriate
agent with which to bargain. Another purpose is to
insure that the employees may freely register their
individual choices concerning representation.
Certainly it is not one of the purposes of the election
provisions to supply an employer with a procedural
device by which he may secure the time necessary to
defeat efforts toward organization being made by a
union .36
Furthermore, any attempt to evaluate whether
Respondent insisting upon a Board election, did so in good
faith, requires that due consideration be given to
Respondent's conduct and activities detailed above and
below.37 Accordingly, it is found that the Respondent
refused to bargain collectively on March 30, 1965, and
since, with the Union as the exclusive representative of its
employees in an appropriate unit and thereby deprived its
employees not only of the rights guaranteed by Section 7
of the Act, but also violated Section 8(a)(5) of the Act.
Alleged Improper Use of Affidavits and Questionable
Conduct of Board Investigator
The Respondent contends that the "written affidavits
taken by the Board's agent fiom the witnesses, Alberts,
Mizushima, and Ikenoue, should have been excluded from
use for any purpose." Those statements taken from
27 See section III, A
iN Woolworth Co v. N L R B , 121 F 2d 685-660 (C A. 2),
N L R B. v Radcliffe, 211 F.2d 309, 315 (C.A 9), cert. denied 348
U.S. 833.
25 See Malone Knitting Co, 152 NLRB 643, fn 2, Employers
Association of Metal Fabricators, 149 NLRB 382.
30 Lebanon Steel Foundry v N L R B , 130 F 2d 404, 407-408
(C A D C ), cert denied 317 U.S 659
3i See United Mine Workers v Arkansas Flooring Co , 351 U S
62, 71-72, NLRB v. B r a d f o r d Dyeing Assn., 310 U S 318,
338-340, N L R B v Louisville Refining Co., 102 F 2d 678, 680
(C.A. 6), cert denied 308 U.S. 568, N L R B v Hobbs Co , 132
F 2d 990 (C A. 3), enfg 43 NLRB 143, 144
32 N L R B v Piqua Munizing Wood Products Co , 109 F 2d
552, 556 (C A 6)
13 N L R.B v Remington Rand, 94 F 2d 862, 869 (C A 2), Bert
denied 304 US 576
34 See G C Exh 5 An erroneous view of the law , even if held in
good faith, is not a defense to a charge of refusal to bargain Old
King Cole v NLRB , 260 F 2d 530, 532 (C A 6)
3s See John P Serpa, Inc , 155 NLRB 99, where the Board said
"Where the General Counsel seeks to establish a violation of
Section 8(a)(5) on the basis of a card showing , he has the burden of
proving not only that a majority of employees in the appropriate
unit signed cards designating the union as bargaining
representative but also that the employer in bad faith declined to
recognize and bargain with the Union "
31 See also Clermont's, Inc , 154 NLRB 1397
37 See N L R B v Marden Manufacturing Co , 217 F 2d 567,
570 (C A 5), cert denied 348 U S 981
CROWN IMPORTS CO., INC.
Alberts and Mizushima were taken at a time when
Respondent was not represented by counsel. Moreover,
alleges Respondent's counsel, the Board's investigator
gave no indication that the affidavits were to be used "in
any official manner; he did not inquire whether the
witnesses were represented by counsel, nor did he advise
them they were under no obligation to discuss the subject
with him ...." On the contrary, alleges Respondent, the
Board investigator "gave the distinct impression that the
interviews were purely confidential and informal, and that
the information developed would go no farther than the
immediate parties." In the case of Ikenoue, his statement
was taken at a time when the Regional Office knew that
Respondent was then represented by counsel.
Respondent cites two cases ' as authority for his
contentions. Both of these cases involved criminal
proceedings.38 In Escobedo, the Supreme Court ruled that
when investigation shifts to accusation, police must inform
all suspects of their rights to silence and to counsel and
that any confession made without such warning is invalid
and cannot be used against the suspect.
At the heart of the Escobedo case is the rationale of the
Fifth Amendment which guarantees that "no person shall
be compelled in any criminal case to be a witness against
himself." [Emphasis supplied.] That guarantee
establishes a system of justice based on accusation not
inquisition. In essence, it commands Government to prove
guilt by independent evidence, not by coercing the proof
out of the defendant's own mouth. So absolute is the
privilege against self-incrimination that the defendant
need not even take the witness stand. Indeed it bars any
kind of coercion including threats or promises.
In the instant case, the above rationale and the cases
cited by Respondent apply only to criminal proceedings.
The affidavits attacked here were employed to impeach
the credibility of the Respondent's witnesses as distinct
from using improper methods to extract confessions from
defendants in criminal proceedings. No authority has been
cited nor is the Trial Examiner aware of any holding that
Labor Board proceedings partake of the aspects and
characteristics of criminal proceedings. Accordingly, the
Respondent's argument is without merit that the
witnesses' affidavits should have been excluded and that
their use for any purpose was impermissible.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them in
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
2. All warehouse employees and drivers employed by
the Respondent at its San Francisco, California, facility,
excluding office clerical employees, salesmen, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
3. At all times since March 30, 1965, the Union has
been the exclusive representative of all the employees in
the aforesaid unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
" Massiah v US , 377 U.S 201; Escobedo v. Illinois, 378 U S
478
31
4. By refusing on and after March 30, 1965, to bargain
collectively with the Union, Respondent has engaged and
is engaging in an unfair labor practice within the meaning
of Section 8(a)(5) and (1) of the Act.
5. By discharging and/or terminating the employment
of Marvin C. Lee, Jay J. Matsuoka, and Minoru D.
Matsuhara, as set forth above, Respondent discriminated
against them in regard to their tenure of employment, and
the terms and conditions thereof, to discourage
membership in the Union and thereby has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices as above set forth, it will be recommended that it
cease and desist therefrom and take affirmative action,
set forth below, found necessary and designed to
effectuate the policies of the Act.
Having found that Respondent interfered with, coerced,
and restrained its employees in the exercise of rights
guaranteed by Section 7 of the Act, which the basic
purpose of the Act was designed to achieve, it will be
recommended that Respondent be required to cease and
desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.3'
Having found that Respondent discriminatorily
terminated and discharged the above-named employees on
March 31, 1965, it will be recommended that it offer to
each of them immediate, full, and unconditional
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights,
privileges, or working conditions, and make each of them
whole for any loss of earnings suffered by reason of the
discrimination against him, by paying to each a sum of
money equal to the amount he would have earned from the
date of the discrimination against him until such
discrimination has been fully eradicated, less his net
earnings during the period of such discrimination.
Backpay with interest at the rate of 6 percent per annum
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
The remedial purposes of the Act are quite clear. It is
aimed, as the Act says (§ 1) at encouraging the
practice and procedure of collective bargaining and at
protecting the exercise by workers of full freedom of
association, of self organization and of negotiating the
terms and conditions of their employment or other
mutual aid or protection through their freely chosen
representatives.40
Inasmuch as the discharge of employees for reasons of
union affiliation or concerted activity has been regarded
by the Board as one of the most effective methods of
defeating the exercise by employees to self-organization, I
am of the belief that there is danger that the commission of
unfair labor practices generally is to be anticipated from
Respondent's unlawful conduct in the past. It will be
recommended, therefore, that Respondent be required to
°° N L R B v Entwistle Mfg Co , 120 F 2d 532 (C A. 4),
California Lingerie , Inc., 129 NLRB 912
40 Republic Steel Corp . v N L R B , 311 U S 7, 10
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist from in any manner interfering with,
restraining , or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act."
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that Respondent,
Crown Imports Co., Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees as to their
membership in, views about, or activities on behalf of
Warehouse Union Local No. 12, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization.
(b) Threatening employees with discharge if they
support or assist any labor organization.
(c) Soliciting employees to withdraw from any union.
(d) Discouraging membership in the aforesaid Union, or
any other labor organization of its employees, by
discriminatorily discharging , or in any other manner
discriminating against any employee in regard to his hire,
tenure, or any term or condition of employment.
(e) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment, with Warehouse Union Local No. 12,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of all their employees in the following
appropriate unit:
All warehouse employees and drivers employed by the
Respondent at its San Francisco, California, facility,
excluding office clerical employees, salesmen , guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
(f) Discouraging membership in Warehouse Union
Local No. 12, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any
other labor organization of its employees, or by
discriminating in any other manner in regard to the hire
and tenure of employment or any term or condition of
employment.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative
of all employees in the above-described appropriate unit
with respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Offer to Marvin C. Lee, Jay J. Matsuoka, and
Minoru D. Matsuhara immediate , full, and unconditional
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights, privileges , or working conditions, and make them
whole for any loss of earnings they may have suffered by
reason of the discrimination in the manner set forth in the
section hereof entitled "The Remedy."
(c) Notify said discriminatees if either of them is
presently serving in the Armed Forces of the United States
of their right to full reinstatment upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary or useful to determine or compute the
amounts of backpay due, as herein provided.
(e) Post at its plant premises in San Francisco,
California, copies of the attached notice marked
"Appendix."42 Copies of said notice to be furnished by the
Regional Director of Region 20 of the Board, after being
duly signed by Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.43
4' N L R B v Entwistle Mfg. Co., 120 F 2d 532,536 (C.A. 4).
42 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
43 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 discourage membership in
Warehouse Union Local No. 12, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other
labor organization of our employees, by
discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT coercively interrogate you about your
membership in, views about, or conduct on behalf of
any union.
WE WILL NOT threaten you with discharge if you
support or assist any union or request you to withdraw
from any union.
WE WILL NOT ask you to request any union to
return to you any union cards you may have signed.
WE WILL NOT discharge or in any other manner
discriminate against you because of your assistance to
or support of any union.
WE WILL offer Marvin C. Lee, Jay J. Matsuoka, and
Minoru D. Matsuhara immediate and full
SALEM BUILDING TRADES COUNCIL
reinstatement to their former jobs with us and pay
them the wages they lost by reason of their discharge.
WE WILL NOT in any manner interfere with,
restrain, or coerce you in the exercise of your right to
self-organization, to form labor organizations, to join
or assist Warehouse Union Local No. 12,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other
labor organization of our employees, to bargain
collectively through representatives of your own
choosing, or to engage in other concerted activities for
the purpose of mutual aid, or to refrain from any and
all such activities.
WE WILL NOT refuse to bargain with Warehouse
Union Local No. 12, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive representative of our
employees in the bargaining unit described below.
WE WILL, upon request, bargain with Warehouse
Union Local No. 12, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive representative of all the
employees in the bargaining unit described below
with respect to rates of pay, wages, hours of
employment, and, if an understanding is reached,
embody such an understanding in a signed
agreement.
WE WILL NOT in any manner interfere with the
efforts of Warehouse Union Local No. 12,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the
exclusive representative of all the employees in the
bargaining unit described below with respect to rates
of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is
reached, embody such an understanding in a signed
agreement. The appropriate unit is:
All warehouse employees and drivers employed
by the Respondent at its San Francisco,
California, facility, excluding office clerical
employees, salesmen, guards, and supervisors as
defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
union.
CROWN IMPORTS CO., INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Marvin C. Lee, Jay J. Matsuoka,
and Minoru D. Matsuhara if presently serving in the
Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
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.
If employees have any questions concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 450 Golden Gate
33
Avenue, Box 36047, San Francisco, California 94102,
Telephone 556-6721.
Salem Building Trades Council , AFL-CIO
and Cascade Employers Association, Inc.
Case 36-CC-155.
February 20,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN,
JENKINS, AND ZAGORIA
Upon a charge and an amended charge filed on
October 9, 1965, and December 10, 1965,
respectively, by Cascade Employers Association,
Inc., for and on behalf of its employer-members,
Reimann Construction Co., herein called Reimann,
and Hyatt Lodge, the General Counsel of the
National Labor Relations Board by the Regional
Director for Region 19 issued a complaint dated
December 17, 1965, against the Salem Building
Trades Council, AFL-CIO, herein called
Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly
served on the Respondent and the Charging Party.
On January 17, 1966, Respondent filed its answer
admitting certain allegations of the complaint, but
denying the commission of any unfair labor
practices.
On March 28, 1966, the Respondent, the Charging
Party, and the General Counsel entered into a
stipulation of facts wherein they identified the
contents of the record in this case and agreed to
transfer this proceeding directly to the Board for
issuance of a decision and order after the filing of
briefs and without further hearing. The stipulation
states in substance that the parties waive their rights
to a hearing before a Trial Examiner and to the
issuance of a Trial Examiner's decision, and that the
charge, complaint, answer, stipulation, and exhibits
attached thereto should constitute the entire record
in this case. On April 7, 1966, the Board approved
the stipulation, ordered transferral of the
proceedings to the Board, and granted permission to
the parties to file briefs. Briefs were filed by the
Respondent, Charging Party, and General Counsel.
Upon the basis of the aforesaid stipulation and the
entire record in the case, and having considered the
briefs of the parties, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Reimann Construction Co. is an Oregon
corporation engaged as a general contractor in the
163 NLRB No. 9