Hamlin-Overton Frame Co., Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1970

185 N.L.R.B. 84 (N.L.R.B. 1970)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamlin-Overton Frame Co., Inc. and United Furni-
ture Workers of America , AFL-CIO.Case 7-CA-
7621
August 25, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On February 16, 1970, Trial Examiner Frederick
U. Reel 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. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's 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.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Hamlin-Overton Frame Co., Inc.,
South Haven, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U REEL, Trial Examiner: This case, heard
at South Haven, Michigan, on January 8, 1970,' pursuant
to a charge filed the preceding November 7, and a complaint
issued November 21, presents questions as to whether
Respondent, herein called the Company, deprived certain
employees of their seniority and threatened to lay them
off or discharge them because of their activities on behalf
of the Charging Party, herein called the Furniture Workers,
and because they had furnished affidavits in support of
charges being investigated by the National Labor Relations
Board.
Upon the entire record,' and after due consideration
of the briefs filed by General Counsel and by the Company,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATIONS INVOLVED
The Company, a Michigan corporation engaged at South
Haven in the manufacture of picture frames and related
products, annually ships products valued in excess of
$50,000, to points outside the State, and is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Furniture Workers and the Wood-
workers and Platers Union, herein called the Woodworkers,
are labor organizations within the meaning of Section 2(5)
of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On December 23, 1968, following an election pursuant
to consent agreement, the Woodworkers became the certified
bargaining representative of the Company's production and
maintenance employees. On March 7, the Woodworkers
and the Company entered into a collective-bargaining agree-
ment The agreement provided in part that "Seniority shall
be on a departmental basis ...." and contained grievance
and arbitration provisions, as well as a union-security clause.
Apparently, notwithstanding the certification of the
Woodworkers, some employees continued to support what
appears to be a rival labor organization, the Furniture
Workers On March 6, the latter filed an unfair labor
practice charge against the Company alleging discrimination
against employees Susie Winfrey, her husband John Winfrey,
Luvicie Meunier, and Nadine Foster for having supported
the Furniture Workers. The Board's Regional Office investi-
gated this charge and dismissed it on April 29 for want
' Except where otherwise indicated all other dates herein refer to
the year 1969
2 (Certain inadvertent error, in the transcript have been noted and
corrected )
185 NLRB No. 7
HAMLIN-OVERTON FRAME CO
of evidence that the Company's actions "were instituted
for any reasons other than bona fide economic motivations."
Meanwhile, on April 24, the Furniture Workers filed
a charge against the Woodworkers alleging that the latter
failed to file and process grievances on behalf of the Win-
freys, Menumer , and Foster, because of their support of
the Furniture Workers, and that this conduct violated the
Woodworkers' duty of fair representation. An amendment
to the charge, filed June 4, contained an additional allegation
that the contract between the Woodworkers and the Compa-
ny included an illegal union-security clause. Those charges
likewise were investigated by the Board's Regional Office
and culminated in a settlement agreement which the Wood-
workers signed on June 10 and the Regional Director
approved on June 23. The settlement agreement required
the Woodworkers to post a notice (which was done on
July 10) and to comply with the terms thereof. These
included processing, if requested, the grievances of the
Winfreys, Meunier, and Foster, and correcting the union-
security clause in the contract to give persons employed
at the time it became effective 30 days in which to join
the Woodworkers.
In the course of investigating the charges referred to
above, the Board's agents interviewed and took affidavits
from Susie Winfrey as well as from other persons.
B. Interference, Restraint, and Coercion
On Tuesday, June 10, Susie Winfrey, an employee in
the filling department, told her union steward, Jean McCash,
that she wanted to file a grievance. McCash promptly
went to the plant superintendent, Marshall Corey, and
brought him to where Winfrey was working, so that Winfrey
could state her grievance. Winfrey told Corey that while
she had been laid off for want of work other employees
had been assigned to do steelwoohng work rightfully hers
Corey angrily rejected the grievance, stating that he would
put whomever he pleased to work, and he tore down
the seniority card which had indicated Winfrey's seniority
for steelwooling. At this time Corey also stated that he
was going to combine the sanding and filling departments,
and repeated that he would put whomever he pleased
to do the steelwooling at that time. He also stated that
when he joined the two departments the seniority of the
employees "would go on as it was "
The next day, June 11, Winfrey again discussed her
grievance with Corey in McCash's presence. On this occasion
Corey, after indicating that he would not call an employee
in from layoff for a mere 2 or 3 hours' work a day,
added that Winfrey was a troublemaker who kept running
to the AFL-CIO and to the National Labor Relations
Board, and that everything she had told the AFL-CIO
and the Board (apparently referring to statements she had
made in support of the charges against the Company and
the Woodworkers) was nothing but lies. According to Win-
frey's testimony, Corey stated that if she "went to them"
he "was going to fire" her. McCash testified that Corey
said Winfrey "should be fired for all the trouble that
she caused." Corey, called as a witness by General Counsel,
did not remember what he had said in this regard. During
the interview Corey further stated that, union or no union,
85
he was "going to run that place the way it had been
run for the last 25 years."
I find that Corey's statement to Winfrey in the presence
of McCash that he either "was going to" or "should"
discharge her for giving information respecting her griev-
ances to another union or to the Board constituted interfer-
ence, restraint, or coercion of employees in the exercise
of rights guaranteed in Section 7 of the Act, and violated
Section 8(a)(1).
C. Alleged Discrimination
1 The facts
As already noted, Corey told Winfrey on June 10 of
the Company's intention to merge or combine the filling
department (which at that time consisted of only three
employees-Winfrey, Foster, and Meunier) with the sanding
department, which apparently had six or seven employees
The record suggests that in the months preceding the
events here involved there had been insufficient work in
the filling department to keep the employees there occupied
full time. On occasion the employees in that department
had been moved temporarily to other tasks. After the
merger or combination of the departments, Winfrey, accord-
ing to her testimony, continued to perform the same duties
she had before with "just a little more sanding, that's
all." Asked whether the fill department still existed, she
answered- "The table is still standing there . .. Nobody
working there, just whenever there is fill work to be done,
then is when we go over there and work."
On June 10 the Company wrote the Woodworkers, as
the bargaining representative, stating the Company's inten-
tion "with Union approval and subject to Union recommen-
dations, to consolidate" the departments in question. The
letter stated, in accordance with what Corey had told
Winfrey, "The seniority of the . . . employees will be
according to date of hire," and concluded- "Please advise
the Company of any action taken at your earliest conven-
ience."
Later on June 10 the Woodworkers held a union meeting
to consider the Company' s letter . According to the then
vice president (soon thereafter president) of the Woodwork-
ers, there was a good deal of "arguing and fighting" although
no quorum was present. The issue was further complicated
by the fact that the merger under the terms prosposed
by the Company adversely affected employee Wilma Thomp-
son, whose son was president of the Woodworkers. Mrs.
Thompson had been hired in the sanding department in
February 1968, and would be junior to Winfrey, Foster,
and Meunier if their seniority in the merged department
dated from their originial date of hire. The members present
at the meeting (not a quorum) voted to accept the company
proposal
The next morning, June 11, Thompson resigned as presi-
dent of the Woodworkers The new president promptly
called a meeting of the "union committee" (consisting of
herself, the secretary, and from one to three stewards)
to discuss the Company's proposal. The committee took
the view that under the Woodworkers' contract with the
Company, which provided for "departmental" rather than
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"plant" seniority, "if they allow this letter, we would be
going against our contract." On June 12 the committee
sent the Company the following letter over the signature
of the Woodworkers, by the acting secretary:
The General Committee had a special meeting and
rejected the letter. We feel there has been no provision
made for the seniority for those effected [sic].
We must retain the senority [sic] rights. If you
wish to discuss this more let us know.
The next afternoon, June 13, the Company posted the
following notice in the plant:
Because of lack of work in the Filling Department
it is necessary to combine the Filling Department
work with the Sanding Department.
The seniority of the Sanding Department will govern
since that department survives.
The employees from the discontinued department will
be added to the bottom of the seniority list of the
Sanding Department according to their present seniori-
ty in the discontinued Filling Department.
This is in accordance with our policy to attempt to
keep everyone employed and to give the greatest possi-
ble credit and preference to seniority.
In connection with the Company's change of position,
I credit the following testimony of Corey:
Trial examiner: Mr. Corey, did you have anything
to do with posting the notice on June 13? It says
the people in the fill department will go to the bottom
of the seniority list
Witness: No, I did not.
Trial examiner: Were you involved in the discussions
which led to the change of positions?
Witness- No, not at all.
Trial examiner: When did you learn notwithstanding
what you have said in that letter something different
was going to be done about seniority?
Witness: I was advised that the union offer did
not agree with this, and later I saw the notice the
day it was going to be posted.
Trial examiner: Did you suggest the change be made?
Witness: No.
Trial examiner Were you consulted about making
the change?
Witness: No sir.
Trial examiner: Did you know about it prior to
the time that the company officials who have control
made the change?
Witness: Not prior to the time. I knew it at the
time. When it was typed up I saw it after it was
typed up.
On June 24 the Company laid off three employees from
the sanding department-Winfrey, Meunier, and Foster.
Had the company policy stated in its letter of June 10
been followed, Mrs. Thompson would have been laid off
instead of Winfrey. The latter was recalled to work August
7, missing approximately 1 month's work, as the entire
plant was closed for 2 weeks in July. On July 5 Winfrey
wrote the Woodworkers, complaining over her loss of senior-
ity. The Woodworkers apparently declined to process this
grievance because Winfrey had not first presented it orally,
as the contract grievance procedure provided.
2. Concluding findings
The complaint alleges that the Company reduced the
seniority of Winfrey, Meunier, and Foster because of their
activities in behalf of the Furniture Workers and because
they had given affidavits to the Board in the investigation
of the charges against the Company. This theory is not
supported by a preponderance of the evidence. To be sure,
Corey expressed his displeasure over Winfrey's resorting
to the Furniture Workers and the Board. Nevertheless,
at the very time he was so expressing himself, the Company
proposed to the Woodworkers a merger plan under which
Winfrey, Meunier, and Foster would have retained their
seniority. The Company later changed its position and
deprived them of seniority because of the objections raised
by the Woodworkers, and not because of any animosity
harbored by the Company .3 The record is clear that the
protest of the Woodworkers' committee, which led to the
change of policy was in no way sponsored, instigated, or
influenced by the Company.
It may be that the Woodworkers, although ostensibly
relying on a construction of the contract, was in fact
motivated by its resentment of the activities of Winfrey,
Meunier, and Foster, or by the family relationship between
the union president and one of the employees. If the Compa-
ny in yielding to the Woodworkers knew or should have
known that the latter acted for illegal reasons, this might
well establish a violation by the Company. But this is
not the theory on which the case was tried, and in any
event has only suspicion, not evidence, to sustain it, for
the Woodworkers' construction of the contract is at least
arguable.' Suspicions may be further aroused by the Wood-
workers' rejection on technical grounds of Winfrey's griev-
ance But General Counsel could have sought to reopen
the settlement agreement in the case against the Woodwork-
ers had he found anything improper in the conduct of
that union He elected instead to proceed solely against
the Company, as to which on this aspect of the case
he failed to sustain his burden of proof.'
' General Counsel finds the Union's letter of June 12 "confusing"
in its reference to seniority The letter rather plainly rejects the Company's
seniority proposal
I am not concerned with whether the Company's original,
or its later, construction of the contract insofar as it affects
Winfrey's seniority is correct, but only with whether the Company changed
its position because of Winfrey's protected activity The validity of the
interpretation of the contract can be tested in another forum General
Counsel suggests that the Woodworkers would not process a grievance
directed at their own construction of the contract Winfrey, however,
can assert a statutory right to fair representation, and may have a cause
of action under the contract as a third party beneficiary
' General Counsel's complaint alleges that the Company reduced the
seniority of Winfrey, Meunier, and Foster because the employees "Had
engaged in activities on behalf of the [Furniture Workers] and given
affidavit testimony to the Board in the investigation of Case No 7-
CA-7208 " General Counsel states in his brief "Prior to June 9, or
10, 1969, the Employer had no reason to be hostile to Susie Winfrey
True, Winfrey had given testimony in connection with Case No 7-
CA-7208, filed by the United Furniture Workers of America, AFL-
CIO, against the Respondent However, this case had been dismissed,
and as far as the Employer knew on June 9 or 10, 1969, the matter
was dead " Thus abandoning his original theory, General Counsel now
argues that by filing her new grievance with Corey, Winfrey demonstrated
that she "had not been subdued but was once again pressing for her
HAMLIN-OVERTON FRAME CO.
CONCLUSIONS OF LAW
1 The Company, by threatening an employee with repris-
als for taking her complaints concerning conditions of
employment to a labor union and for giving information
to the Labor Board, engaged in an unfair labor practice
affecting commerce withing the meaning of Section 8(a)
(1) and Section 2(6) and (7) of the Act.
2. The Company has not engaged in the other unfair
labor practices alleged in the complaint.
THE REMEDY
I shall recommend that the Company cease and desist
from its unfair labor practice and that it post an appropriate
notice
Accordingly, upon the foregoing findings and
conclusions, and upon the entire record in this proceeding, I
recommend, pursuant to Section 10(c) of the Act, issuance
of the following-
ORDER'
Respondent, Hamlin-Overton Frame Co., Inc., its officers,
agents, successors, and assigns shall:
1. Cease and desist from:
(a) Threatening any employee with discharge or other
reprisal for seeking the assistance of a labor organization
or for making statements or otherwise giving information
to representatives of the National Labor Relations Board.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its plant in South Haven, Michigan, copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's
representative, shall 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
rights," and that since "the problem once again presented itself, the
Respondent took action to insure its permanent correction " Passing
over the hyperbole (a seniority change is scarcely a "permanent correc-
tion"), I reject the new theory as supported by nothing more than
faint suspicion I accept Corey's testimony that so far as he was aware
the change in company policy was caused by the stated opposition
of the Woodworkers to the original proposal for merging seniority
In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
87
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.'
In the event that the Board's Order is enforced by a Judgment
of a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE WILL NOT threaten to discharge or otherwise
discriminate against any employee for seeking the
assistance of any labor organization, or for making
statements or otherwise giving information to
representatives of the National Labor Relations Board
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their right to form, join, or assist labor organizations.
HAMLIN-OVERTON
FRAME CO., INC.
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michi-
gan 48226, Telephone 313-226-3200.