Galloway Manufacturing Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1962

136 N.L.R.B. 405 (N.L.R.B. 1962)

GALLOWAY MANUFACTURING CORPORATION 405
Galloway Manufacturing Corporation and Olga Hernandez,
Robert Chacon , Richardo E. Gonzalez , Paul H. Maine , Salva-
tore Protano, Nelson Shoemaker , Gilbert Martinez, and
Alfredo Collazo , Jr. and Teamsters, Chauffeurs and Helpers
Local Union No. 79, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. Cases
Nos. MO-CA-2-125-1, 12-CA-2125-2,12-CA-2125-3,12-CA-2125-1,
12-CA-2125-5, 12-CA-2125-6, 12-CA-2125-7, 12-CA-2125-8, and
12-CA-2162. March 20, 1962
DECISION AND ORDER
Upon charges duly filed, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Twelfth Region,
issued an amended complaint dated October 19, 1961, consolidating
the above-styled cases and alleging that Galloway Manufacturing
Corporation, herein called the Respondent, had engaged in and was
engaging in unfair labor practices within the meaning of Section
8(a) (1), (3), and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the charges, amended
complaint, and notice of hearing before a Trial Examiner were
duly served upon the Respondent and the Charging Parties.
With respect to the unfair labor practices, the amended complaint
alleges, in substance, that Respondent on and after September 15,
1961, interrogated, threatened, and coerced its employees in violation
of Section 8(a) (1) of the Act, and discriminatorily discharged cer-
tain named employees in violation of Section 8(a) (1) and (3). It
further alleges that on and after September 18, 1961, Respondent re-
fused to bargain in an appropriate unit with Teamsters, Chauffeurs
and Helpers Local Union No. 79, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, here-
in called the Union or Local 79, in violation of Section 8 (a) (5).
Respondent's answer, filed October 23, 1961, admits the jurisdic-
tional allegations of the complaint, but denies that Respondent has
committed the alleged unfair labor practices.
A hearing was held before Trial Examiner James A. Shaw on
November 20 and 21, 1961. Due to the illness of the court reporter,
the record for November 21 could not be transcribed, and the parties
have entered into a stipulation with respect to the hearing on that
date. On December 20, 1961, the parties filed a joint motion, waiving
the issuance of an Intermediate Report and requesting that the pro-
ceeding be transferred directly to the Board. The motion further
136 NLRB No. 37.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided that the charges, complaint and amended complaint, Re-
spondent's answers thereto, and the transcript of November 20, to-
gether with the aforesaid stipulation, shall constitute the entire record
in these cases . The joint motion was granted by the Trial Examiner
on December 27, 1961, and on January 2, 1962, the Board approved
the parties' stipulation and transferred these cases directly to the
Board. A brief has been filed by Respondent, and the General
Counsel has submitted a short statement in support of his position.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with these cases to a three-member panel [Chairman Mc-
Culloch and Members Rodgers and Fanning].
The Board has considered the parties' stipulation, Respondent's
brief and the General Counsel's statement of position, and the entire
record in these cases, and hereby makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Florida corporation with operations in Tampa,
Florida, is engaged in the business of manufacturing furniture. Dur-
ing the 12-month period immediately preceding the issuance of the
amended complaint, Respondent purchased directly from points out-
side the State of Florida materials and supplies valued in excess of
$50,000.
Respondent admits, and we find, that it is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs and Helpers Local Union No. 79, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization as defined in Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Independent violations of Section 8(a) (1)
The complaint, as amended, alleges that Respondent committed the
following independent violations of Section 8(a) (1) :
1. On or about September 15, 1961, Foreman Mario de la Paz in-
formed employees that Respondent knew they were attempting to
organize a union and would close the plant before it would have a
union.
2. On or about September 18, 1961, Mario de la Paz interrogated
employees concerning their membership in and activities on behalf
of Local 79.
GALLOWAY MANUFACTURING CORPORATION 407
3. On or about September 18, 1961, Mario de la Paz threatened em-
ployees with discharge or other economic reprisals if they became or
remained members of Local 79, or gave any assistance or support to it.
4. On or about September 15, 1961, Supervisor Pete Howell in-
formed employees that Respondent would close the plant before it
would have a union.
5. On or about September 15, 1961, Foreman Sergio de la Paz in-
formed an employee that another employee had been discharged be-
cause of her membership in and activities on behalf of Local 79.
6. On or about September 18, 1961, foremen of the Respondent, in-
cluding Mario de la Paz, Henry Jenson, and Pete Howell, informed
employees that President Ralph Galloway had, that day, told his fore-
men, in substance, that he would close the plant rather than have a
union.
7. On and after October 1, 1961, Plant Superintendent James Horne
sought to induce and induced employees to hold a meeting on company
time for the purpose of soliciting execution of statements to the effect
that employees were coerced into signing union authorization cards.
8. On or about November 9, 1961, Supervisors James Horne and
Louis Russo interrogated employees concerning their activities on
behalf of and attitudes toward Local 79.
In its answer to the amended complaint, and in its subsequent stipu-
lation, Respondent admitted that Ralph Galloway, Sergio de la Paz,
Mario de la Paz, James (John) Horne, Pete Howell, Henry Jenson,
and Louis Russo were its agents, and were and are supervisors within
the meaning of Section 2 (11) of the Act. Further, in the parties'
stipulation, Respondent admitted that it had engaged in the conduct
set forth above.
Accordingly, we find that Respondent has engaged in the foregoing
acts, which we find interfered with, restrained, and coerced employees
in the exercise of their Section 7 rights. We conclude that Respond-
ent has committed the independent violations of Section 8 (a) (1) al-
leged in the amended complaint.
B. Violations of Section 8(a) (3)
The complaint alleges, and Respondent by stipulation has admitted,
that it discharged or laid off the following employees on the dates
given i because of their membership in, and activities on behalf of,
Local 79:
Olga Hernandez_________________________ September 18, 1961
Robert Chacon__________________________ September' 19, 1961
Richardo E. Gonzalez____________________ September 19, 1961
Paul H. Maine__________________________ September 19, 1961
Salvatore Protano_______________________ September 19, 1961
1 The dates with respect to Martinez and Collazo appear as amended in the stipulation.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nelson Shoemaker_______________________ September 19, 1961
Armando Diez__________________________ September 19, 1961
Gilbert Martinez________________________ September 19, 1961
Alfredo Collazo, Jr---------------------- September 19, 1961
Pursuant to Respondent's admission, we find that Respondent has
discriminated against the foregoing employees with regard to their
hire or tenure of employment, has thereby violated Section 8(a) (1)
and (3) of the Act.
C. The alleged violation of Section 8(a) (5)
On September 18, the Union by telegram notified Respondent that
it represented a majority of Respondent's production workers and
drivers, and requested Respondent to recognize and bargain with it.
The next day, September 19, Respondent replied that it had a "good
faith doubt" as to Local 79's majority status, and that "in view of this
and other questions concerning propriety and determination of bar-
gaining unit we suggest that you utilize the services of the National
Labor Relations Board and allow the matter to proceed in the cus-
tomary fashion." That same day, as found above, it discharged eight
employees because of their union activities, and then and thereafter
proceeded to engage in numerous other independent violations of Sec-
tion 8 (a) (1). Respondent has, at all times since, refused to bargain
with Local 79.
The complaint alleges that the foregoing activity constitutes an
unlawful refusal to bargain in violation of Section 8(a) (5) .2 Re-
spondent denies this allegation, on grounds that the Union did not
make a proper request for bargaining; that the Union abandoned any
such request by filing a representation petition on September 18; and
lastly, that there is no evidence that Respondent's refusal to bargain
was in bad faith.
We find no merit in Respondent's contentions. As for the Union's
request of September 18, it explicitly sought recognition and bargain-
ing. Although the unit finally consented to by Respondent on Oc-
tober 3, 1961,3 referred to warehousemen and maintenance employees,
as well as production workers and drivers, there is no evidence that
the additional mention of these categories on that date substantially
changed the unit as originally sought by Local 119.4 On the contrary,
2 The complaint also alleges, and Respondent admits, that the following constitutes an
appropriate unit for collective bargaining: All production and maintenance employees, in-
cluding warehousemen and truckdrivers, at the Respondent's Tampa, Florida, plant, ex-
cluding office clericals, salesmen , professional employees, guards, and all supervisors as
defined in the Act. It is further alleged, and Respondent admits, that on and after
September 13, 1961, Local 79 represented a majority of Respondent's employees in the
aforesaid appropriate unit.
3 On that date, the parties executed a stipulation for certification upon consent election.
However, for reasons discussed hereinafter, that election was not held.
* See, e.g., Laabs, Inc., 128 NLRB 374; United Butchers Abattoir, Inc, 123 NLRB
946, 956.
GALLOWAY MANUFACTURING CORPORATION 409
an examination of Local 79's representation petition, filed the same day
it requested recognition, reveals that warehousemen were even then
deemed a part of the production unit sought.' Apparently the "main-
tenance employees" added in the October 3 stipulation referred to jani-
tors, who had been excluded in the original petition. Under these
circumstances, we do not consider the exclusion of janitors or main-
tenance employees from the Union's original request to represent a
substantial defect or ambiguity in that request, and note in any event
that the Union at all times material represented a majority of em-
ployees in the unit found to be appropriate.' We find that, on Sep-
tember 18, 1961, the Union made a valid request for bargaining in an
appropriate unit.
We do not agree with Respondent that, by filing a petition at the
same time it requested recognition, the Union abandoned its demand
for bargaining. It is well established that a union's filing of a repre-
sentation petition does not of itself suspend an employer's bargaining
obligation, absent evidence of a good-faith doubt.' Contrary to
Respondent's assertion, its bare claim of such good-faith doubt in the
present case is hardly sufficient to counteract its obvious bad faith
in simultaneously discharging a large number of union adherents,
and in engaging in numerous other incidents of interrogation and
threats. Nor is it determinative that Respondent agreed to a consent
election on October 3. By that date, as found above, Respondent had
discriminatorily discharged nine employees, and had seriously under-
mined the Union's representative status by repeated threats and in-
terrogation. On October 12, the Union withdrew its representation
petition and decided instead to file the instant unfair labor practice
charges. Only on that date, October 12, did Respondent submit
an offer of reinstatement to the discriminatees.
In our view, it is clear from Respondent's conduct that its refusal
to recognize the Union and bargain with it on September 19 and
thereafter was motivated, not by any good-faith doubt, but rather
by a desire to gain time to dissipate the Union's majority status and
bargaining position. As such, Respondent's refusal to bargain was,
and continues to be, in violation of Section 8(a) (1) and (5) of the
Act, and we so find.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above,
occurring in connection with its operations as described in section I,
S See, e g, Jack Gordon et al d/b/a Ivy Hill Lithographic Company , 121 NLRB 831, 835
0 Cf. The C. L. Bailey Grocery Company, 100 NLRB 576
'tLaabs, Inc, supra ; United Butchers Abattoir , Inc, supra . at p 957
s Greenfield Components Corp , 135 NLRB 479; Joy Salk Mills, 85 NLRB 1263, enfd
185 F. 2d 732 (C A D.C ), cert. denied 341 U S 914 See also Philamon Laboratories, 131
NLRB 80, enfd 298 F 2d 176 (CA 2), cert. denied 370 U S 919.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in the unfair labor
practices detailed above, we shall order that it cease and desist there-
from and take certain affirmative action designed to effectuate the
policies of the Act.
We have found, inter alia, that Respondent, on September 18 and
19, 1961, discharged nine employees because of their union activities
and membership. The parties have stipulated that all such employees,
except Olga Hernandez, were offered reinstatement to their former
or substantially equivalent jobs on October 12, 1961. Therefore, as
to these employees, except Hernandez, we shall order only that Re-
spondent make them whole for any loss of earnings they may have
suffered as a result of Respondent's discrimination, from the date on
which they were discharged until the date of Respondent's offer of
reinstatement. Backpay shall be computed in accordance with the
Board's usual backpay policies.'
As to Olga Hernandez, we shall order that Respondent offer her
reinstatement to her former or substantially equivalent position, with-
out prejudice to her seniority or other rights and privileges previously
enjoyed, and also make her whole for any loss of earnings suffered as
a result of the discrimination against her, from September 18, 1961,
to the date of Respondent's offer of reinstatement. Backpay shall be
computed in the manner set forth above.
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs and Helpers Local Union No. 79, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization as defined in Section 2(5)
of the Act.
2. By discriminatorily discharging certain named employees on
September 18 and 19, 1961, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
3. All production and maintenance employees, including ware-
housemen and truckdrivers, at the Respondent's Tampa, Florida,
plant, excluding office clericals, salesmen, professional employees,
guards, and all supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
See Cro8Bett Lumber Go, 8 NLRB 440; F. W. Woolworth Co, 90 NLRB 289.
GALLOWAY MANUFACTURING CORPORATION 411
4. At all times since September 13, 1961, the above-named labor
organization has been, and now is, the exclusive representative of all
the employees in the above appropriate unit for the purpose of col-
lective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain with the Union on and after
September 19, 1961, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (5) of
the Act.
6. By the aforesaid acts, and by otherwise interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Galloway Manufacturing Corporation,
Tampa, Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Unlawfully interrogating its employees concerning their union
activities, threatening them with reprisals if they join or choose Team-
sters, Chauffeurs and Helpers Local Union No. 79, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or inducing or assisting them to withdraw their support
of the Union or any other labor organization.
(b) Discouraging membership in the above-mentioned Union or
any other labor organization, by discharging employees or otherwise
discriminating against them with regard to hire or tenure of employ-
ment or any term or condition of employment.
(c) Refusing to recognize or bargain collectively with the above-
mentioned Union with respect to rates of pay, wages, hours of employ-
ment, or other terms and conditions of employment, as the exclusive
representative of all Respondent's employees in the following ap-
propriate unit :
All production and maintenance employees, including warehouse-
men and truckdrivers, at the Respondent's Tampa, Florida, plant,
excluding office clericals, salesmen, professional employees, guards,
and all supervisors as defined in the Act.
(d) In any other manner, interfering with, restraining, or coercing
employees in the exercise of their Section 7 rights.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a)- Make Robert Chacon, Richardo E. Gonzalez, Paul H. Maine,
Salvatore Protano, Nelson Shoemaker, Armando Diez, Gilbert Mar-
tinez, and Alfredo Collazo, Jr., whole for any loss of earnings they
may have suffered as a result of Respondent's discrimination against
them, from the date on which they were discharged until the date of
Respondent's offer of reinstatement.
(b) Offer to Olga Hernandez reinstatement to her former or sub-
stantially equivalent position, without prejudice to her seniority or
other rights and privileges previously enjoyed, and make her whole
for any loss of earnings she may have suffered as a result of Respond-
ent's discrimination against her, from September 18, 1961, to the date
of Respondent's offer of reinstatement.
(c) Upon request, bargain collectively with Teamsters, Chauffeurs
and Helpers Local Union No. 79, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America as the ex-
clusive bargaining representative in the above-described appropriate
unit, and embody in a signed agreement any understanding reached.
(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 to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant in Tampa, Florida, copies of the notice at-
tached hereto marked "Appendix." 10 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
upon being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for
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 Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
1" 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 you that :
GALLOWAY MANUFACTURING CORPORATION 413
WE WILL NOT unlawfully interrogate our employees concerning
their union activities, threaten them with reprisals if they join
or choose Teamsters, Chauffeurs and Helpers Local Union No. 79,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or induce or assist them to with-
draw their support of the Union or any other labor organization.
WE WILL NOT discourage membership in the above-mentioned
Union or any other labor organization by discharging our em-
ployees or otherwise discriminating against them with regard to
hire or tenure of employment or any term or condition of
employment.
WE WILL NOT refuse to recognize or bargain collectively with
the above-mentioned Union with respect to rates of pay, wages,
hours of employment, or other terms and conditions of employ-
ment, as the exclusive representative of all our employees in the
following appropriate unit :
All production and maintenance employees, including ware-
housemen and truckdrivers, at our Tampa, Florida, plant,
excluding office clericals, salesmen, professional employees,
guards, and all supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-
organization, to join or assist Teamsters, Chauffeurs and Helpers
Local Union No. 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization, to baragin collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
WE WILL make whole the following employees for any loss of
earnings they may have suffered as a result of our discrimination
against them, from the date on which they were discharged until
the date of Respondent's offer of reinstatement.
Robert Chacon Nelson Shoemaker
Richardo E. Gonzalez Armando Diez
Paul H. Maine Gilbert Martinez
Salvatore Protano Alfredo Collazo, Jr.
WE WILL offer to Olga Hernandez reinstatement to her former
or substantially equivalent position, without prejudice to her
seniority or other rights and privileges previously enjoyed, and
make her whole for any loss of earnings she may have suffered as
a result of our discrimination against her, from September 18,
1961, to the date of our offer of reinstatement.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively with Teamsters,
Chauffeurs and Helpers Local Union No. 79, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America as the exclusive representative in the above-
described appropriate unit, and embody in a signed agreement
any understanding reached.
All our employees are free to become, to remain, or to refrain from
becoming or remaining members of Teamsters, Chauffeurs and Help-
ers Local Union No. 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization.
GALLOWAY MANUFACTURING CORPORATION,
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.
Employees may communicate directly with the Board's Regional
Office, Ross Building, 112 East Cass Street, Tampa, Florida, Tele-
phone Number 223-4623, if they have any question concerning this
notice or compliance with its provisions.
Retail Store Employees Union , Local 400, Retail Clerks Inter-
national Association , AFL-CIO ; Meat Cutters Union Local 555,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO and Jumbo Food Stores, Inc. Case No.
5-CP-s. March 20, 1962
DECISION AND ORDER
On April 20, 1960 , Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding , finding that the
Respondent Unions had engaged in the unfair labor practices alleged
in the complaint and recommending that they cease and desist there-
from and take certain affirmative action , as set forth in the Intermedi-
ate Report attached hereto. Thereafter, the Unions and the General
Counsel filed exceptions to the Intermediate Report and briefs.
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 Intermedi-
ate Report, the exceptions and briefs , and the entire record in the case,
and finds merit in the Unions' exceptions . Accordingly , the Board
136 NLRB No. 24.