Howard Mfg., Co.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 731 (N.L.R.B. 1977)

HOWARD MFG. CO.
Howard Manufacturing Co., Inc. and International
Ladies' Garment Workers Union, AFL-CIO. Case
26-CA-6036
August 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on March 4, 1976, and
amended on February 8, 1977, by the International
Ladies' Garment Workers Union, AFL-CIO, herein
called the Union, and duly served on Howard
Manufacturing Co., Inc., herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 26, issued a complaint on February 8, 1977,
alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(4) and (1)
and Section 2(6) and (7) of the National Labor
Relations Act, as amended.' Copies of the charge,
complaint, and notice of hearing were duly served on
the parties to the proceeding.
With respect to the unfair labor practice, the
complaint alleges that the Respondent refused to pay
witness fees and mileage allowances to seven striker-
discriminatees whom Respondent caused to attend
the hearing in Case 26-CA-5802 pursuant to
subpoenas ad teslificandum.
On February 16, 1977, the Respondent filed an
answer to the complaint in which it admitted most of
the factual allegations, denied the conclusory allega-
tions, submitted additional data, alleged affirmative
defenses with respect to Verlene Davis and Willie
Hinton, and requested that the complaint be dis-
missed in its entirety.
Thereafter, on March 22, 1977, the General
Counsel filed directly with the Board a motion to
strike certain portions of Respondent's answer and
Motion for Summary Judgment, with exhibits at-
tached. He submits that there are no issues presented
by the pleadings which require a hearing. Subse-
quently, on March 29, 1977, the Board issued an
order transferring the proceeding to the Board and a
I The Regional Director initially sought relief in the form of a motion to
the Board in Case 26CA-5802, of which the instant case is a direct
outgrowth. The Board, in Howard Manufacturing Co., Inc., 227 NLRB 1858,
fn. I (1977). denied the motion as being inappropriately raised in that
proceeding.
2 We agree with the Respondent that the portions of the answer to which
the General Counsel objected were in response to allegations in the
complaint. Accordingly, we hereby deny the motion to strike those portions
of the answer.
:' Davis and Hinton were no longer employed by the Respondent at the
time of the hearing. The Respondent asserts as an affirmative defense that
the provisions of Sec. 8(aX I) and (4) therefore are inapplicable to them.
231 NLRB No. 87
Notice To Show Cause why the General Counsel's
motion should not be granted. In response, the
Respondent filed an opposition to the General
Counsel's motion to strike and a Cross-Motion for
Summary Judgment, in which the Respondent
agreed that no dispute exists as to material facts,
opposed the motion to strike because those portions
of the answer are responsive to allegations in the
complaint, and requested summary judgment against
the General Counsel. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
As stated above, the material facts are not
disputed. In 1975, the Union filed charges which
resulted in the issuance of a complaint alleging, inter
alia, that the Respondent violated Section 8(a)(1) by
disciplining certain employees because they had
engaged in the protected concerted activity of going
on strike. In preparation for the hearing in that case,
Respondent's attorney caused to be served on each
of the 12 alleged striker-discriminatees and a union
district manager a subpoena ad testificandum. At the
time of delivery of the subpenas, the Respondent's
representative failed to tender either witness fees or
mileage allowance for 1 day's attendance at the
hearing. The General Counsel issued subpoenas ad
testificandum to 5 of the 12 striker-discriminatees and
these 5 were paid the witness fees and mileage
allowances due them.
The subpenas were delivered on or about January
19, 1976, and directed attendance at the administra-
tive hearing on January 26, 1976. None of the
witnesses petitioned for revocation of the subpenas
either prior to or at the hearing. Striker-discrimina-
tees Carolyn Jones, Sylvia Belle Lamb, Marsha Price,
Glenda Reed, and James Reeder attended each day
of the 4-day hearing. Striker-discriminatees Verlene
Davis and Willie Hinton 3 and Union District
Manager Arthur Martin attended I day of the
hearing. Of these eight subpenaed persons, only two,
However, it is well settled that discrimination against nonprotected persons
for testifying or otherwise becoming involved in Board proceedings violates
the Act as it tends to impair the effectiveness of the protections afforded to
covered employees. See, e.g., Better Monkey Grip Company, 115 NLRB 1170
(1956), enfd. 243 F.2d 836 (C.A. 5, 1957).
The Respondent additionally asserted that as the amended charge filed
on February 8, 1977, included Davis and Hinton for the first time. the
charges with respect to them are time-barred b) the provisions of Sec. 10(b).
However, as the amended charge is based on the identical factual situation
and simply adds the names of two discnminatees, it need not independently
satisfy the 6-month limitation. N.LR.B v. Gaonor News Companyr Inc.. 197
F.2d 719 (C.A. 2, 1952).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin and Hinton, were called by the Respondent
to testify.
By letter to the Respondent's attorney dated
February 2, 1976, the Union's counsel demanded the
payment of witness fees and mileage allowances to
the striker-discriminatees and to District Manager
Martin. A letter in response dated February 12, 1976,
stated that the Respondent would pay witness fees
and mileage allowances to Martin but denied any
obligation to pay the seven striker-discriminatees. To
date, the Respondent has refused to pay the seven
striker-discriminatees their witness fees and mileage
allowances.
The Respondent argues that it need not pay
witness fees and mileage allowances to the seven
striker-discriminatees because they are parties with a
financial interest in the outcome of the case. In
support of this theory, the Respondent cites, inter
alia, the lack of legal authority supporting the claim
for payment and submits that the remedy for
improperly served subpenas is a timely motion to
quash, not a separate action for collection of fees.
We cannot agree with the Respondent's view of the
case. Although alleged discriminatees are granted
some of the rights of parties, they are parties only in
a limited sense. They cannot prosecute their case on
their own; only the General Counsel can issue a
complaint. The General Counsel is responsible for
prosecuting the case and can in fact settle the case
without the consent of the alleged discriminatees.
Because of these characteristics of administrative
hearings before the Board, the court cases cited by
the Respondent in which parties were found not to
be entitled to witness fees are inapposite.
In the instant case, the rights of the seven striker-
discriminatees could have been adjudicated in their
absence. It is impossible now to determine whether
they would have attended voluntarily, absent the
subpenas. The Respondent could, and did, compel
their attendance by issuing subpenas. In so doing, the
Respondent may have caused them to lose pay
because of their absence from work.4 By refusing
now to pay the mandated witness fees and mileage
allowances, the Respondent is able to economically
disadvantage the striker-discriminatees for appearing
at the Board's hearing pursuant to subpenas issued at
its request.
The Respondent's assertion that a motion to quash
is the only available remedy, for which it cites no
authority, misses the point. We are not here
concerned with the issue of whether a quasicontrac-
tual action would lie for collection of witness fees.
'There is nothing in the record indicating that the five striker-
discriminatees on Respondent's payroll were paid for the days they missed
work while attending the hearing.
5 N L.R. B. v. Robert Scrivener, d/b/a AA Electric Company, 405 U.S. 117
(1972).
Rather, we are faced with the question of whether the
Respondent's refusal to pay witness fees to alleged
discriminatees violates the Act and impedes the
Board's processes. In light of the broad scope of the
protection afforded by Section 8(a)(4), 5 we find that
it does, and, accordingly, we shall grant the General
Counsel's Motion for Summary Judgment. 6
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent Howard Manufacturing Co., Inc., is a
corporation doing business in the State of Arkansas,
with an office and place of business in Nashville,
Arkansas, where it is engaged in the manufacture
and distribution of men's robes. During the past 12
months, a representative period, the Respondent has,
in the course and conduct of its business operations,
purchased and received at its Nashville, Arkansas,
location products valued in excess of $50,000 directly
from points located outside the State of Arkansas,
and during the same period of time the Respondent
has sold and shipped from its Nashville, Arkansas,
location products valued in excess of $50,000 directly
to points located outside the State of Arkansas.
We find, on the basis of the foregoing, that the
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
Commencing on or about February 12, 1976, and
continuing to date, the Respondent has failed and
refused, and continues to fail and refuse, to pay to
Carolyn Jones, Sylvia Belle Lamb, Marsha Price,
Glenda Reed, James Reeder, Verlene Davis, and
Willie Hinton, whom Respondent's representative
caused to be subpenaed, their respective witness fees
and mileage allowances. Accordingly, we find that
since February 12, 1976, the Respondent has
discriminated, and is discriminating, against employ-
ees for filing of charges or giving testimony under the
6 The Respondent's Cross-Motion for Summary Judgment is hereby
denied.
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HOWARD MFG. CO.
Act and has restrained and coerced, and is restrain-
ing and coercing, its employees in the exercise of
rights guaranteed in Section 7 of the Act and thereby
did engage in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(4) and
(1) of the Act.
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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (4) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
We have found that the Respondent violated the
Act by refusing to pay witness fees and mileage
allowances to the striker-discriminatees. We there-
fore shall order the Respondent to pay to Carolyn
Jones, Sylvia Belle Lamb, Marsha Price, Glenda
Reed, and James Reeder witness fees for 4 days and
mileage allowances for four round trips from their
respective residences in Arkansas to Texarkana and
to pay to Verlene Davis and Willie Hinton witness
fees for I day and mileage allowances for one round
trip from their respective residences in Arkansas to
Texarkana in accordance with Section 102.32 of the
Board's Rules and Regulations. Interest shall be
computed as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), and Florida Steel Corpora-
tion. 7
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent, Howard Manufacturing Co., Inc.,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Ladies' Garment Workers
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the acts described in section III, above, the
Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) and (4) of the
Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Howard Manufacturing Co, Inc., Nashville, Arkan-
sas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to pay to Carolyn Jones,
Sylvia Belle Lamb, Marsha Price, Glenda Reed,
James Reeder, Verlene Davis, and Willie Hinton the
witness fees and mileage allowances due them.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Pay to the above-named persons the witness
fees and mileage allowances due them as set forth in
the section of this Decision and Order entitled "The
Remedy."
(b) Post at its Nashville, Arkansas, plant copies of
the attached notice marked "Appendix." 8 Copies of
said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's authorized representative, shall be
posted by the 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 customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
I In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
" In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to pay to Carolyn
Jones, Sylvia Belle Lamb, Marsha Price, Glenda
Reed, James Reeder, Verlene Davis, and Willie
Hinton the witness fees and mileage allowances
due them.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL pay to the above-named persons the
witness fees and mileage allowances due them in
accordance with Section 102.32 of the Board's
Rules and Regulations.
HOWARD
MANUFACTURING Co.,
INC.
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