Gallant Man

National Labor Relations Board - Board Decisions

Nov 28, 1966

161 N.L.R.B. 1310 (N.L.R.B. 1966)

1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 question concerning this notice or compliance with its
provisions, they may communicate directly with the Board' s Regional Office, 215
West Seventh Street, Los Angeles, California 19914, Telephone 688-5840.
Patterson Menhaden Corporation , d/b/a Gallant Man, and
Fletcher Miller, Agent; Surprise , Inc., d/b/a Surprise, and
Fletcher Miller, Agent and Fishermen 's Union Local 300, Amal-
gamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO. Case 15-CA-2475. November 28, 1966
AMENDED DECISION AND AMENDED ORDER
On September 29, 1965, the National Labor Relations Board issued
its Decision and Order 1 in the above-entitled proceeding, adopting,
with modifications,2 the findings, conclusions, and recommendations
of the Trial Examiner. By that Decision, the Board found, inter alia,
that Respondent violated Section 8(a) (1) of the National Labor
Relations Act, as amended, by threatening employees with loss of
future employment if they selected the Union as their bargaining
representative; by creating the impression of surveillance of union
activities; and by threatening to discontinue loans to employees
because of their support for the Union. The Board further found
that Respondent violated Section 8 (a) (3) and (1) of the Act by
reducing the wage rates of five employees in retaliation to their
activity in behalf of the Union.
Acting on its own motion, the Board 3 has reexamined its Decision
and Order herein, as well as the entire record and, for reasons stated
below, deletes that portion of the Decision and Order which relates
to the above-mentioned violations of Section 8(a) (1). With respect,
however, to the unlawful wage reductions, we adhere to, as explained
below, our original Decision and Order.
The Board, in adopting in principal part the Trial Examiner's find-
ings, conclusions, and recommendations, found that an antiunion
speech delivered by Respondent-Agent Captain Miller, prior to a
Board-sponsored election conducted on October 18, 1963, violated
Section 8(a) (1) of the Act. The Board, however, failed to note that
1154 NLRB 1795.
2 The Board dismissed the complaint to the extent that it alleged that Respondent
violated Section 8(a) (3) and (1) of the Act by reducing the wages of Supervisor Matthew
J. Hooper and refusing to employ Hooper and Supervisor Desire Bishop, because of their
activities on behalf of the Union.
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
.amended , the National Labor Relations Board has delegated its powers in connection with
,this case to a three-member panel [Members Fanning , Brown, and Zagoria].
161 NLRB No. 119.
PATTERSON MENHADEN CORP. 1311
the charge initiating this proceeding was filed on April 20, 1964, and
served on April 21, more than 6 months after the speech was made.
Since Section 10(b) of the Act prohibits the issuance of a complaint
based upon unfair labor practices occurring more than 6 months
before the filing and service of the charge , it is evident that the state-
ments made by Captain Miller cannot be found to have violated Sec-
tion 8(a) (1). Accordingly, we shall amend our Order and notice
herein by deleting therefrom the unfair labor practices predicated
upon Captain Miller's preelection statements . Section 10(b), how-
ever , does not preclude the use of these statements as evidence for
the purpose of shedding light on the true character of Respondent's
conduct occurring within the limitation period,4 and to this extent
the receipt of the statements in evidence is lawful and proper.
We note , moreover , that Respondent also challenged , as falling
outside the 10 ( b) period, the Trial Examiner 's finding that Respond-
ent violated Section 8(a) (3) and ( 1) of the Act by reducing the pay
of certain employees because of their union activities . We adopted
the Trial Examiner's finding, with modifications hereinabove noted,
since we were of the opinion that the Respondent's exception in that
respect was without merit . Moreover , we have reexamined the record
carefully , and we are convinced that the original Section 8(a) (3)
finding based upon such conduct is not barred by Section 10(b).
Although some of the testimony with regard to the date of the wage
reductions is ambiguous and inconclusive , the testimony of Captain
Miller that the reductions were effected "about a week" following
payment of the crew's wages on October 19, is dispositive of this
issue. Thus, as the record shows that the fishing season ended Octo-
ber 26, 1963 , at which time the crew received their final wages, it
follows that the Respondent reduced wages on or about October 26,
1963, which is within the 6 -month period antedating the filing of the
charge. Having made this determination , we conclude that the lim-
itation provision of Section 10(b) has no application to our original
finding that the wage reductions violated Section 8 ( a) (3) of the Act.
AMENDED ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Amended Order the Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondent, Patterson Menhaden
Corporation, d/b/a Gallant Man, and Fletcher Miller, agent; Sur-
prise, Inc., d/b/a Surprise, and Fletcher Miller, agent; its officers,
4 Local Lodge No. 1424, International Association of Machinists, AFL-CIO (Bryan
Manufacturing Co.) v. N.L.R.B., 362 D.S. 411.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order as herein modified : 5
1. Paragraphs 1(b), and (d) of the Recommended Order are
deleted in their entirety, and paragraph 1(e) is renumbered 1(b).
2. Substitute the following for paragraphs 2(a) and (b) of the
Recommended Order :
"(a) Offer Henry Bartie, Roosevelt Fountain, David Lute, Joe
Mayne, James B. Moore, Roland Mouton, John B. Payton, and J. C.
Van Dyke, immediate and full reinstatement to their former or sub-
stantially equivalent positions preferably under Captain Fletcher
Miller (in the manner set forth above in the section entitled "The
Remedy") without prejudice to their seniority or other rights and
privileges; and notify said persons, 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 dis-
charge from the Armed Forces."
(b) The Respondent shall make whole Henry Bartie, Charles
Berry, Raymond Broussard, Gene Dozier, Roosevelt Fountain, Thir-
len Lennett, David Lute, Joe Mayne, James B. Moore, Roland Mou-
ton, Whitney Pradia, John B. Payton, J. C. Van Dyke, and Clarence
West for any loss of earnings suffered by them as a ,result of the dis-
crimination against them, in the manner set forth in the section of
the Decision entitled "The Remedy."
3. Delete the second and third paragraphs of the Appendix.
4. Substitute the following for the fourth paragraph of the
Appendix :
WE WILL NOT reduce the pay of any employee because of union
activity or result of an election.
5. Substitute the following for the sixth paragraph of the
Appendix :
WE WILL offer Henry Bartie, Roosevelt Fountain, David Lute,
Joe Mayne, James B. Moore, Roland Mouton, John B. Payton,
and J. C. Van Dyke their former or substantially equivalent
jobs, preferably under Captain Fletcher Miller (without preju-
dice to seniority or other employment rights and privileges), and
WE WILL pay them and Charles Berry, Raymond Broussard,
Gene Dozier, Whitney Pradia, Clarence West, and Thirlen Len-
nett with interest for any loss suffered because of our discrimi-
nation against them.
5 The names of Matthew J. Hooper and Desire Bishop are hereby deleted from paragraphs
(a) and ( b) of the section of the Trial Examiner's Decision entitled "The Remedy."
CONST. & GENERAL LABORERS' LOCAL 270 1313
6. The notice is modified to provide a line for the signature of
Fletcher Miller, agent.
[The Board dismissed the complaint as it relates to Matthew J.
Hooper and Desire Bishop.]
Construction & General Laborers ' Union Local 270, International
Hod Carriers , Building and Common Laborers ' Union of
America (Howard J. White , Inc.) and W. Thomas Arruda. Case
20-CC-513. November 29, 1966
DECISION AND ORDER
On April 15, 1966, Trial Examiner Maurice M. Miller issued his
Decision in the above-entitled proceeding, finding that 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 and a supporting brief. Thereafter, the General Counsel
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this proceeding, and hereby adopts the findings,,. conclusions, and
recommendations of the Trial Examiner.2
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[Add the name B & C, Inc., after the name of Howard J. White,
Inc., in paragraphs 1(b) and 2(b) and after the name of Howard J.
White, Inc., in the last paragraph in the notice.]
'The issues raised by the Respondent in effect turn on 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 clear
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).
2 In agreeing with the Trial Examiner that Respondent 's conduct was not designed solely
to protect the work and work standards of employees of White, the general contractor, we
rely on the fact that the record establishes that an object of Respondent's action against
White was to force or require Eggli to execute an agreement with Respondent.
161 NLRB No. 117.
264-188-67-vol. 161-84