162 N.L.R.B. 1570 (N.L.R.B. 1967)

Garland Corp.

National Labor Relations Board - Board DecisionsFeb 9, 1967

162 N.L.R.B. 1570 (N.L.R.B. 1967)

1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced , or covered by any other material. If you have any question concerning this notice or compliance with its pro- visions, you may communicate directly with the Board 's Regional Office, Fourth Floor, The 120 Building , 120 Delaware Avenue, Buffalo, New York 14202, Tele- phone 842-3100. Garland Corporation and International Ladies' Garment Work- ers' Union , AFL-CIO. Case 1-CA-5400. February 9, 1967 DECISION AND ORDER On November 17, 1966, Trial Examiner Samuel M. Singer 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 Decision and a supporting brief. The General Counsel filed a statement endorsing the Trial Examiner's Decision. 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 Fanning and Brown]. 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 and brief, and the entire record in the case, and hereby adopts the findings; conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner 's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner Samuel M. Singer at Boston , Massa- chusetts , on July 21, 1966,1 pursuant to a charge filed on March 31 and a, com- plaint issued on May 27. The issue litigated was whether or not Respondent, through statements made by three of its supervisors in March interfered with, restrained , or coerced its employees in violation of Section 8(a)(1) of the National Labor Relations Act. All parties appeared and were afforded full opportunity to be heard and to examine and doss-examine witnesses . All waived oral argument at the conclusion Df the case. A brief was received from Respondent. 1 Unless otherwise noted , all dates herein refer to the year 1966. By agreement of the parties at the hearing the name of the Respondent was corrected to read as it now appears in the caption. 162 NLRB No. 145. GARLAND CORP. 1571 Upon the entire record in the case 2 and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY; THE LABOR ORGANIZATION INVOLVED Respondent, a Massachusetts corporation, with its principal office and place of business in Boston , Massachusetts , is engaged at its Boston plant in the manu- facture, sale, and distribution of knitted fabrics. It annually ships to and receives from States outside Massachusetts products valued in excess of $50,000. I find that at all material times, Respondent has been and is engaged in commerce within the meaning of the Act. The Charging Party, herein called the Union, is a labor organization within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES A. Background On March 9, Respondent received from the Union a telegram requesting recog- nition as majority representative of its employees in an appropriate unit. On the next day, Respondent filed a petition for election with the Regional Director. On March 11, the Union also filed such a petition. The election, scheduled for April 5, was postponed by the Regional Director because of the filing of the charge herein. It was rescheduled for August 4, after the Union filed the customary statement that it was willing to go forward with the election despite the pending charge.3 In the meantime, on March 9 or 10, Respondent's plant manager, Edward J. McLaughlin, called a meeting of his 50 or 60 section heads to instruct them as to their conduct in the organizational campaign. McLaughlin credibly testified that he directed his supervisors not to question employees concerning their voting intentions, nor to promise them benefits, or threaten them with reprisals for engaging in union activities. He told them, however, "that they had a right to take a positive approach and point out the good benefits that the Company had." McLaughlin also credibly testified that 4 or 5 days later (around March 15), he spoke to the Company's approximately 603 production employees in approxi- mately 20 separate groups. Among other things, he told them that "how they voted [in the forthcoming Board election] was their business"; that the Com- pany felt it was "basically right" and was "going to win"; and that he wanted them to report to him personally, "if any section head threatened them or prom- ised anything" since "heaven help the section head that does it." , General Counsel relies on three incidents in-which-supervisors allegedly violated Plant Manager McLaughlin's instructions concerning their conduct toward employ- ees in the organizational campaign. B. The testimony 1. The Baqueriso-Stallard incident Employees Antonio Baqueriso testified that on March 9, Theodore Stallard, his supervisor in the slicing room, started a conversation about the Union. Stallard spoke,mostly in Spanish, since Baqueriso, speaks only a little English. According to Baqueriso, Stallard told him the Union "could not obtain" the benefits given by Garland, such as Blue Cross, infirmary services, and bonuses. Stallard also asked him if' he had. signed up for the Union. Baqueriso replied that he had not, that he did not want to have anything to do with it, and that he was "not inter- ested" in it. At the hearing he testified that he "did not give importance to the con- versation" and "so withdrew from it." Baqueriso signed a union card before this conversation. Stallard denied asking Baqueriso whether or not he signed a union card or whether he was for or against the Union. He recalled an incident in which the six girls in the slicing department jestingly sought to pin an antiunion slogan on Baqueriso's back. However, Baqueriso wanted nothing to do with the sign. As 2 Corrected by an order dated October 11, 1966 3In its brief, Respondent states that the Union lost the election. 1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baqueriso passed by Stallard's desk, the latter (who had "watched" the episode) said to Baqueriso, "lo gusto or no to gusto." 4 Baqueriso "grinned" and said "no importante." On cross-examination Stallard admitted that he also had another conversation with Baqueriso, wherein he asked Baqueriso whether he had received a union leaflet. (Stallard had observed distribution of the leaflet on the previous day.) Although at first unable to recall if anything was attached to the leaflet, he later was "positive" that a union card was not attached. Stallard spoke to Baqueriso about Garland's benefits, saying that he had worked ."in another mill that didn't have near the benefits, and work wasn't near as steady as Garland." He admitted initiating the conversation. - 2. The Aptt-Johnson incident . Gladys Aptt testified that in a conversation at Supervisor Irma Johnson's desk in the stitching room on March 15, Johnson asked her if the Union had visited her recently. When Aptt answered "no," Johnson remarked, "You're lucky, because they have been to most everyone's home." Johnson also asked if she knew what the advent of the Union at the mill "would mean to us." Aptt quoted Johnson as say- ing that the employees "would probably lose 'most of our benefits if it got in, that we certainly would lose our Christmas bonus, our vacation pay would probably be minimum, we'd lose our outing, our banquet, and that we would probably have to go to Harrison Avenue [the Union's clinic] for medical attention." Aptt also quoted her supervisor as saying that the girls "probably would lose" their overtime because the Union would be more interested in collecting dues from additional members than in giving overtime to "the regular help", that the employees "would just be paying" dues and "not really gaining very much by it", and that the Company's practice of transferring people to other jobs when work ran out would probably be dropped "because the Union would be more interested" in getting new members than having older members "get the extra work." On cross-examination, Aptt stated that Johnson talked about current company bene- fits and asked what the employees had to gain by joining the' Union; and that Johnson mentioned she did not know whether the union shops had outings, Christmas bonuses, or the same vacation benefits as Garland. While agreeing with counsel for Respondent's summary that Johnson was "basically saying that the benefit structure in the Union shops was different from the benefit structure in Garland," she also reiterated that Johnson stated that some of the existing com- pany benefits "would cease entirely" and others (like vacation pay) "would be held at a minimum" and that "we have more benefits now than we would have if we unionized." Johnson admitted conversing with Aptt about company benefits. She testified that after calling Aptt to her desk in the seaming department, "I started off, and I say I don't know if the union man been, by your house or not, and if you signed a card or not, I don't know, but I said there is one thing I just want to go over with is what kind of benefits' that we have in the plant." According to Johnson, at this point Aptt asked her whether the employees would lose their benefits if the Union came in and she (Johnson) answered, "I don't know, because I don't know this much about the union ." Johnson testified that she knew nothing about union benefits because she never worked in a union shop, and that she so told Aptt. On cross-examination, Johnson admitted talking to 14 or 15 of the 28 employees under her supervision, among them Aptt to whom she spoke of specific company benefits such as overtime,--job transfers, bonus, Blue Cross-Blue Shield, retirement, and vacations. Johnson explained: "I, really wanted to know what they [the employees] was after, because we have-everything in Garland what we really want, there is nothing else that the girls could want because they have any, all the bene- fits and everything." She insisted, however, that, in compliance with Plant Man- ager McLaughlin's instructions, she "didn't speak, say anything about the union" because she did not "know anything about it." At a later point, Johnson indicated that she had gained some knowledge of union benefits from 'conversations with employees of a unionized plant (Wales,) occupying' the same building as Respond- ent. Pressed' further as'to whether in her conversation with Aptt she had indicated the Company would follow "the same policy that Wales followed" regarding over- time, Johnson replied, "Well, I imagine so, yes." 4 Stallard translated the phrase to mean, "do you like . . . or not like." He testified he knows only a little Spanish. GARLAND CORP. 1573 3. The White-LeFave incident Virginia White testified that around March 18, her supervisor, Amelia LaFave, asked her if she "knew anything" about the Union. When White replied that she once was "in a union for a short time," LeFave told her "about the union . . . trying to get in at Garland," said that "if the Union got in we could lose our bene- fits," and stated that "Garland was promising, we could get another [paid] holiday at Garland." LeFave denied talking to White about the -Union, insisting that she only asked her, as she did other employees, whether she had received the Company's book entitled "Your Work- with Garland," describing employee working conditions. According to LeFave, White stated, that she had and that she knew about the Company fringe benefits, and volunteered the information that she had previously worked in a union shop. LeFave denied discussing any specific benefits such as paid holidays. C. Concluding findings 1. Credibility of witnesses As the summary of the testimony indicates, the fundamental issue in this case is one of credibility-the employee witnesses for General Counsel attributing cer- tain threats, statements, and inquiries to Respondent's supervisors and the latter denying that they uttered them. Based upon my assessment of the comparative demeanor of the witnesses, the surrounding circumstances, and the inherent prob- abilities I credit the employees' versions of the incidents rather than those of the supervisors. To begin with, the three employees who testified impressed me as basically sin- cere and honest witnesses. None appears to have had any direct personal interest in the case and certainly none had anything to gain by imputing to the supervisors statements possibly injurious to Respondent. If, anything, their testimony was poten- tially inimical to their natural interest in retaining the goodwill of the Company which still employs them Aptt and White testified in a frank and straightforward manner . Although Baqueriso was less convincing, I am persuaded that this was due to linguistic imprecision and limited education rather than to-lack of candor.5 On the other hand, all three supervisors were personally involved in the case-the issue being the propriety of their behavior and their compliance with company instructions to abstain from coercive conduct. Furthermore, all three appeared less than candid in their testimony. Although on direct examination Stallard sought to convey the impression that the only incident remotely connected with union activity in which he was involved pertained to a jocular or facetious exchange between Baqueriso and several antiunion employees (regarding display of antiunion slo- gans ), on cross-examination he admitted to involvement in a second incident. Johnson appeared overanxious to prove that she could not have compared company benefits with union benefits, since she allegedly,knew nothing about union shops, although on cross-examination she admitted having daily contact with unionized employees of another employer in the company building. And LeFave disclaimed discussing company benefits with any employees, despite the fact that she had handed out booklets thereon and her superior (Plant Manager McLaughlin) had encouraged such discussion. In addition, LeFave appeared vague and evasive on a significant aspect of her tesitmony-her awareness of^ union activity. .1 Under all the circumstances, I credit the versions of the events given by Gen- eral Counsel 's witnesses. 2. Interference, restraint, and coercion I find that Respondent interfered with, restrained , and coerced its employees in the exercise of their self-organizational rights in violation of Section 8(a)(1) of the Act by and through the following conduct of its supervisors: a. Stallard's March 9 inquiry of Baqueriso whether he had signed up for the Union. The fact that Baqueriso untruthfully replied that he had not signed sug- 5In crediting Baqueriso, I have not overlooked his June 15 prehearing statement to Respondent 's attorney, in which Baqueriso admitted that Supervisor Stallard had not made the alleged coercive inquiry he attributed to Stallard at the hearing ( i e , whether Baquerlso signed a union card ). Moreover, there ' is no evidence that Baqueriso gave his statement to Company counsel under proper safeguards , including assurances that he would not suffer reprisals as result ' of•'his response See Blue Flash ' Express , Inc, 109 NLRB 591 , 592-593; Alton Box Board Company, Container` Division, 155 NLRB 1025, 1041-42 1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gests that he interpreted the inquiry as coercive. See N.L.R.B. v. Camco, Inc., 340 F.2d 803, 804 (C.A. 5). In any event, contrary to Respondent's contention, it is immaterial that Baqueriso did not consider the remark as inhibitory, since the "test is whether the questioning tends to be coercive, not whether the employees are in fact coerced." Ibid., at 804, footnote 6. b. Johnson's March 15 inquiry of Aptt as to whether the Union had visited her recently,6 and her further statement that in the event of unionization of the mill, the employees would probably lose most of their benefits or suffer reductions in existing benefits such as the customary Christmas bonus, vacation pay, clinic privileges, banquets, and outings. Statements of such nature tend to coerce employ- ees in the exercise of their rights to organize, even though couched only in lan- guage of probability. See N.L.R.B. v. W. C. Nabors d/b/a W. C. Nabors Com- pany, 196 F.2d 272, 276, (C.A. 5). "The minatory message is well understood despite its mild form." N.L.R.B. v. Stanton Enterprises, Inc., d/b/a Holiday Inn of Charleston, 351 F.2d 261, 264 (C.A. 4).? c. LeFave's similar inquiry of White around March 18 whether she knew any- thing about the Union and her statement that if the Union came in, the employ- ees could lose their benefits. In reaching the foregoing conclusions, I recognize that the supervisors' state- ments were contrary to instructions of their superior (Plant Manager McLaughlin) not to' engage in coercive conduct This circumstance does not however, absolve Respondent of liability. See Solvay Process Company v. N.L.R.B., 117 F 2d 83, 85 (C.A. 5). Where, as here, an employer sanctions an antiunion, albeit legitimate, campaign (McLaughlin authorized his supervisors to influence the employees' election choice by pointing up existing company benefits) "one of the risks is that out of zeal, ignorance, or otherwise, foremen, supervisors, and similar representa- tives in championing the anti-union cause will overstep the mark." Hendrix Manu- facturing Company, Inc., v. N.L.R.B., 321 F.2d 100, 104 (C.A. 5). As McLaughlin admitted, "the supervisors and section heads are the face or the Company, they are the Company to these employees. What they say is a reflection of the Com- pany's policy and attitude. . ." Cf. Camco, supra, 340 F.2d at 806-807. The supervisors' predictions and threats concerning consequences of unionization neces- sarily tended to inhibit employees in the exercise of their rights to engage in organizational activity, notwithstanding the company manager' s earlier assurances of neutrality. Nor am I unmindful of the fact that the illegal incidents found herein are neither numerous nor widespread, considering the circumstance that only 3 of Respondent's 50 or 60 supervisors and 3 of its 600 employees were direct partici- pants. While the Board has withheld issuance of remedial orders in cases involving "isolated" or casual coercive remarks by minor supervisors.8 I do not believe that this case falls within that category. See Frankel Associates, Inc., 146 NLRB 1556, 1557, 1564; Playskool Manufacturing Company, 140 NLRB 1417, 1419. The inci- dents here, while few in number, are more than de minimis Moreover, it is reason- able to assume that although specifically directed toward only three employees, the coercive remarks, in the heat of an election campaign, were communicated to others. Under all the circumstances, I conclude that Respondent by the conduct described above interfered with, restrained, and coerced its employees in the exercise of their self-organizational rights guaranteed by Section 7 of the Act, thereby vio- lating Section 8(a)(1) of the Act. Although the complaint did not specifically allege this inquiry to be violative of Sec- tion 8(a) (1), I do not deem myself foreclosed from passing thereon, in view of the similarity and close relationship of the violation to others alleged and the fact that Respondent litigated the matter See Gi anada Mills, Inc , 143 NLRB 957, 958, footnote 1 Monroe Feed Store, 112 NLRB 1336. Johnson also spoke of possible loss of overtime and job-transfer privileges, but the context of those remarks indicates that they constituted predictions based on likely union action (i e., union insistence on assigning extra work to new employees and new union members at the expense of existing employees) Since these statements did not imply the use of company economic power to make the prediction conic true, I regard this aspect of Johnson's conversation as privileged argument and persuasion Cf Surpmenant Manufacturing Co v XL R.B., 341 F 2d 756, 761 (C A 6) , 1' L R B. v Falls City Creamery Company, 207 F 2d 820, 825 (C A. 8). 8 See The General Tire & Rubber Company, The Chemical Plastics Division, 149 NLRB 474, 478; Porto Mills, Inc., 149 NLRB 1454, 1470 GARLAND CORP. 1575 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively questioning employees about union matters and by threatening employees with losses or reductions in benefits for engaging in protected union activ- ities, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1) of the Act. 4. The aforesaid violations are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall rec- ommend the customary cease-and-desist order in cases of this nature, designed to effectuate the policies of the Act. In view of the significant number of Spanish-speaking employees in Respondent's employ who apparently comprehend only little English (24 percent of the work force), I shall also recommend that the notices to be posted pursuant to this order shall be in Spanish as well as in English. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following: RECOMMENDED ORDER Garland Corporation, Boston, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from coercively questioning employees about union matters and impliedly or expressly threatening them with loss or reduction in benefits for engaging in union activities, and in any other like or related manner interfering with, restraining , or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Post in its plant in Boston, Massachusetts, copies of the attached notice marked "Appendix." 9 Copies of said notice (both in English and Spanish) to be furnished by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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 custom- arily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3. Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.10 °In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. In the further event that the Boards 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" 10 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 the Respondent has taken to comply herenith " 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT unlawfully question our employees about union matters, nor threaten them with loss or reduction in benefits for engaging in union activities. 1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We WILL NOT in like or related manner interfere with , restrain , or coerce our employees in the exercise of their rights under the Act. GARLAND CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 20th Floor, John F. Kennedy Federal Building , Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 223-3300. The Arkansas Rice Growers Cooperative Association and Interna- tional Union of United Brewery , Flour, Cereal , Soft Drinks and Distillery Workers of America , AFL-CIO , Local 201. Case 26- CA-2465. February 10, 1967 DECISION AND ORDER On November 14, 1966, Trial Examiner Ivar II. Peterson issued his Decision in the above-entitled proceeding, finding that the Respond- ent 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 attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting 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 Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner 's Decision , the exceptions and brief , and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 Respondent ' s exceptions to the Trial Examiner 's Decision are in large part directed to his credibility resolutions . We will not overrule a Trial Examiner ' s resolutions as to credibility unless a clear preponderance of all the relevant evidence convinces us that they are incorrect. Such a conclusion is not warranted here . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 162 NLRB No. 149.