Duralite Co., Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1960

128 N.L.R.B. 648 (N.L.R.B. 1960)

648 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
ployees in the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed agreement.
WE WILL NOT, in any like or related manner, interfere with;
restrain, or coerce employees in the exercise of rights guaran-
teed by Section 7 of the Act.
WASHINGTON ALIIMINUM COMPANY, INC.,
Employer.
Dated--------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or covered by any other material.
Duralite Co., Inc. and Local 485, International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO. Case No. 2-CA-
6927. August 16,1960
DECISION AND ORDER
On April 28, 1960, Trial Examiner Wellington A. Gillis issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Charging Party filed exceptions to
the Intermediate Report 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 [Members Rodgers, Jenkins, and Fanning].
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 the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
I In the sole exception filed in this proceeding , the Charging Party urged that the
Trial Examiner's recommended order herein and the related notice provision be broad-
ened to require the Respondent to inform the employees who had been threatened with
discharge if they testified in Cases Nos . 2-CA-6416 , et al ., and 2-CB-2518, et al., that
Respondent has no objection to their testifying in those cases pursuant to the subpenas
,served upon them . We find merit in the exception and shall broaden the Order and
related notice herein accordingly.
128 NLRB No. 78.
DURALITE CO., INC. 649
Board hereby orders that the Respondent, Duralite Co., Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Threatening its employees with discharge if they appear and
testify in Board proceedings.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
,effectuate the policies of the Act :
(a) Inform its employees who have been threatened with discharge
if they testify in Cases Nos. 2-CA-6416, et al., and 2-CB-2518, et al.,
that it has no objection to their testifying in those cases pursuant to
the subpenas served upon them.
(b) Post in Respondent's plant at 120 East 144th Street, Bronx,
New York, copies of the notice attached hereto marked "Appendix." 2
Copies of said notice, to be furnished by the Regional Director for the
.Second Region, shall, after being duly signed by the Respondent's
representative, be posted by it upon receipt thereof and maintained
for at least 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps it has taken to comply therewith.
2
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten our employees with discharge if they
appear and testify in Board proceedings.
WE WILL inform our employees who have been threatened with
'discharge if they testify in Cases Nos. 2-CA-6416, et al., and
2-CB-2518, et al., that we have no objection to their testifying in
those cases pursuant to the subpenas served upon them.
WE WILL NOT in any like or related manner interfere with,
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrain, or coerce our employees in the exercise of the rights
guaranteed by Section 7 of the Act.
DIIRALITE Co., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and amended charge filed on October 12 and November 4, 1959,
respectively, by Local 485, International Union of Electrical, Radio and Machine
Workers, AFL-CIO, hereinafter referred to as the Union, the General Counsel of
the National Labor Relations Board issued a complaint on November 13, 1959,
against Duralite Co., Inc., hereafter referred to as the Respondent, alleging, as
violative of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Re-
lations Act as amended (61 Stat. 136), hereinafter referred to as the Act, the
Respondent's action in threatening certain employees with discharge if they appeared
and gave testimony in an unfair labor practice proceeding in response to subpenas
served upon them by the Union. The Respondent thereafter filed an answer and
amended answer to the complaint denying the commission of any unfair labor
practices.
On February 23, 1960, pursuant to notice, a hearing was held in New York, New
York, before the duly designated Trial Examiner' at which all parties were repre-
sented by counsel.
At the outset of the hearing, counsel for the General Counsel and counsel for the
Respondent entered into a written stipulation as to the facts in this matter. The
stipulation, in which the counsel for the Charging Party joined, was received in
evidence. The parties presented oral argument, but did not file briefs?
Upon the basis of the aforesaid stipulation, and upon the entire record in the case,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Duralite Co., Inc., a New York corporation, with its principal office and
place of business located in Bronx, New York, is engaged in the manufacture, sale,
and distribution of lawn furniture and related products. During the 12-month period
prior to the issuance of complaint, the Respondent caused to be manufactured, sold,
and distributed products valued in excess of $250,000, of which, products valued in
excess of $50,000 were shipped in interstate commerce to points outside the State of
New York. The Respondent admits, and I find, that it is engaged in commerce
within the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 485, International Union of Electrical, Radio and Machine Workers, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The sole issue presented is whether an employer, in threatening his employees with
discharge if they appear and give testimony at a Board hearing in response to sub-
penas served upon them (interferes with, restrains, or coerces employees within the
meaning of Section 8(a)( 1).
' Subsequent to the opening of the hearing, upon motion of counsel for Respondent,
Trial Examiner Max M Goldman disqualified himself, and, after a short recess, Trial
Examiner Gillis, having been designated in the interim , presided over the bearing without
objection by the parties.
2 An untimely request for an extension of time within which to file a brief was denied
counsel for the Respondent on April 1, 1960.
DURALITE CO., INC. 651
The facts , as stipulated by the parties at the hearing , are as follows:
On September 21, 1959, during the course of an unfair labor practice hearing, in
which the Company here involved was a respondent and the Union here involved
was both a respondent and a charging party,3 it is requested of the Trial Examiner that
the hearing be continued after working hours, or, in the alternative, that it be held
at a location adjacent to the Company's plant. On September 23, 1959, seven em-
ployees were served with subpenas ad testificandum by the Union, pursuant to which
they were required to appear and give testimony on September 24 and 25, 1959, at
the Board hearing.4
On the same date, September 23, Plant Superintendent Daniel de Silva told these
employees, other than Manuel Rodriguez, that they would lose their jobs if they
appeared and gave testimony at the Board hearing pursuant to the subpenas which
had been served upon them. Although some company employees did appear and
testify and did not return to work after testifying until the following day, none of the
above-named employees obeyed the subpenas.
It is well established that the right of employees to appear and to testify in Board
proceedings is a right which is guaranteed under Section 7 of the Act.5 Inherent in
the employees' statutory rights is the right to seek their vindication in Board pro-
-ceedings,6 and conduct on the part of an employer which interferes with this right
constitutes a violation of Section 8(a) (1).7 In an early Board decision, Sanco Piece
Dye Works, Inc., et al., 38 NLRB 690, 725-726, a company official, after having
discussed with an employee the testimony which the latter was about to give at a
Board hearing, attempted unsuccessfully to dissuade the employee from honoring
a subpena which had been served upon him. The Board found that such conduct
upon the part of the company official interfered with, restrained, and coerced the
company's employees in the exercise of the rights guaranteed in Section 7 of the Act.
Since its decision in the Sanco Piece case, the Board has repeatedly held that an
;employer who induces or attempts to induce an employee to give false testimony
or to avoid testifying in a Board proceeding violates Section 8(a)(1). Oregon Team-
sters Security Plan, et al., 119 NLRB 207. See Tri County Employers Association,
103 NLRB 653, 673; Amory Garment Company, Inc., 80 NLRB 182, 199; cf. The
Babcock and Wilcox Company, 114 NLRB 1465. In this regard, the Board re-
cently held that a threat by a respondent company's counsel which "was designed
to deter a witness from testifying truthfully concerning matters relevant to the
complaint" was in derogation of the Board's processes and violative of Section
8(a)(1) of the Act. Petroleum Carrier Corporation of Tampa, Inc., 126 NLRB
1031.
Similar conduct by a labor organization has been found to be a violation of
8(b) (1) (A). In Textile Workers Union of America, CIO, et al. (Personal Products
Corporation), 108 NLRB 743, 749, involving a threat by union officials upon em-
ployees, one of whom intended to honor a subpena to testify at a Board hearing, in
finding without merit the respondent union's contention that Section 7 does not
guarantee employees the right to testify at Board hearings, and that threats to dis-
suade employees from testifying are outside the purview of Section 8(b)(1)(A),8
the Board stated:
8 Cases Nos . 2-CA-6416, et al., and 2-CB-2518, et al.
4 The subpenas served upon Elpirio Pina , Hector Brugeros , Louis Andine, and
Feleciona Rodriguez were returnable on September 24 and the subpenas served upon
Felipe Maldonado , Manuel Rodriguez , and Louis Ambers were returnable on Septem-
ber 25, 1959.
5 Section 7 provides that :
Employees shall have the right to self-organization , to form, join , or assist labor
organizations , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to refrain from
any or all of 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).
E Better Monkey Grip Company, 115 NLRB 1170.
4 Section 8(a)(1) provides that "It shall be an unfair labor practice for an em-
ployer-( 1) to interfere with, restrain , or coerce employees in the exercise of the
rights guaranteed in section 7 ; . .
8 Section 8(b)(1)(A ) provides in pertinent part that "It shall be an unfair labor
practice for a labor organization or its agents-(1) to restrain or coerce (A) employees
in the exercise of the rights guaranted in section 7 :..1 1
-652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We think it clear that participation in proceedings before the Board, whether
in support of or in opposition to the position of a participating labor organiza-
tion, is a right of employees to be exercised for mutual aid, without coercion
or restraint.
While admitting the facts as above stated , the Respondent defends its action on
the ground that the appearance of numerous employee witnesses at the Board
hearing was interrupting the normal production process at the plant and asserts that
its conduct was in no way motivated by a desire to prevent employees from testify-
ing against the interests of the Company . In support of its good-faith position in
this regard, counsel for the Respondent , in his amended answer and at the hearing
in this case , asserted that the Respondent's conduct in telling its employees not to
attend the hearing was resorted to only after the alternative request to hold the
hearing after working hours or on company premises had been denied.
In my opinion , the motivating factors giving rise to the threats of discharge are,
under these circumstances , of no consequence . The fact that the threats of dis-
charge were prompted by the knowledge that the employees were subpenaed to
testify in a Board proceeding is, in itself , sufficient to establish a violation of Section
8(a)(1). As against any inconvenience suffered by an employer because of the
participation of its employees in a Board hearing, a greater hurt would be visited
upon the employees if threats to discharge them for exercising their statutory rights
could thereby be excused . An employer 's good faith under such circumstances would
be immaterial . Cf. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793; The
Radio Officers' Union etc., (A. H. Bull Steamship Company, v. N.L.R.B., 347 U.S.
17. Thus, in this instance , the right of the Respondent to conduct its operations
without the hampering effect of the absence of some of its employees at a Board
hearing must give way to the greater right of the employees to be present at such
hearing.
Moreover , the Board is charged with the responsibility for carrying out the con-
gressional policy entrusted to it under the Act. This responsibility includes, inter
.alia, the holding of unfair labor practice hearings for the purpose of determining
whether rights guaranteed employees under Section 7 of the Act have been in-
fringed upon . In this connection , Congress specifically empowered the Board to
-issue subpenas requiring the attendance and testimony of witnesses at Board hear-
ings,9 and , in addition , manifested its intent to protect the Board in discharging its
functions by providing for the criminal punishment of "Any person who shall will-
-fully resist , prevent, impede, or interfere with any member of the Board . . . in
-the performance of duties pursuant to this Act.. " 10 Accordingly , any conduct
,on the part of a party to a Board proceeding which interferes with, or prevents the
Board from carrying out, this responsibility , including threats to discharge employees
-for honoring subpenas issued by the Board , constitutes an abuse of Board processes,
and, as such , is independently violative of Section 8(a)(1) of the Act.
I find that the Respondent 's conduct, in threatening the above-named employees
with discharge if they appeared and testified at a Board hearing in response to
subpenas served upon them, constitutes interference with , restraint , and coercion of
employees in the exercise of the rights guaranteed by Section 7 of the Act, and is
violative of Section 8(a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
-the several States, and tend to lead to labor disputes obstructing commerce and the
-free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
-the case, I make the following:
Section 11(1) of the Act provides In part that
. . . The Board , or any member thereof, shall upon application of any party to such
proceedings, forthwith Issue to such party subpenas requiring the attendance and
testimony of witnesses or the production of any evidence in such proceeding or
investigation requested In such application.
,10 Section 12 of the Act.
ACCURATE FORMING CORPORATION 653
CONCLUSIONS of LAW
1. Duralite Co., Inc., is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) of the Act.
2. Local 485, International Union of Electrical, Radio and Machine Workers,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, as above found, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
Accurate Forming Corporation and Everlast Metal Finishing
Corporation and United Rubber, Cork , Linoleum & Plastic
Workers of America , AFL-CIO and Local 810, Steel , Metals,
Alloys and Hardware, Fabricators and Warehousemen , Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America and United Rubber, Cork,
Linoleum & Plastic Workers of America , AFL-CIO. Cases
Nos. 22-CA-55 and 20-CB-59. August 16,1960
DECISION AND ORDER
On February 9,1959, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair-
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs. On March 23,1959, the Respondent Employer
filed with the Board a motion to set aside the Intermediate Report and
reopen the hearing on the basis of an affidavit by employee Bertha
Koskovich for the purpose of receiving further evidence bearing upon
the credibility of Koskovich and other witnesses at the original hear-
ing. On June 18, 1959, the Board ordered the proceeding remanded
for further hearing on the credibility issue. On November 24, 1959,
upon the conclusion of the reopened hearing, the Trial Examiner-
issued the Supplemental Intermediate Report attached hereto affirm-
ing the unfair labor practice findings made in the original Inter-
mediate Report but deleting his recommendation of backpay for
Koskovich. Thereafter, the Respondent Employer filed exceptions
to the Supplemental Intermediate Report and a supporting brief, and
the General Counsel filed a brief in support of the Trial Examiner's
Intermediate Report and Supplemental Intermediate Report.'
2 The Respondent Employer 's request for oral argument is denied as the record,
exceptions, and briefs, in our opinion , adequately present the issues and positions of the-
parties.
128 NLRB No. 82.