Inglewood Park Cemetery Association

National Labor Relations Board - Board Decisions

Jun 26, 1964

147 N.L.R.B. 803 (N.L.R.B. 1964)

INGLEWOOD PARK CEMETERY ASSOCIATION 803
Inglewood Park Cemetery Association and Miscellaneous Ware-
housemen , Drivers & Helpers, Local 986, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America. Case No. 21-CA-5420. June 26,196-1p
DECISION AND ORDER
On April 9, 1964, Trial Examiner David Karasick issued his De-
cision 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 De-
cision. Thereafter, the Respondent 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, the 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 Respondent's exceptions and brief, and the
entire record in the 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 Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent,
Inglewood Park Cemetery Association, Inglewood, California, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as amended herein :
The notice attached to the Trial Examiner's Decision as an Ap-
pendix is amended by inserting, after the word "assist" in the last
indented paragraph before the signature line, the words "or to refrain
from joining or assisting".
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner David Karasick in Los Angeles,
California, on February 25, 1964, upon a complaint 1 of the General Counsel and an
answer of Inglewood Park Cemetery Association, herein called the Respondent.
The complaint alleges that the Respondent committed unfair labor practices in
violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as
i The complaint, issued December 6, 1963, is based on a charge filed July 2, 1963. Copies
of the complaint and the charge were duly served upon the Respondent.
147 NLRB No. 102.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended, herein called the Act. The answer denies the jurisdiction of the Board
and further denies the commission of the unfair labor practices alleged. Counsel
for the Respondent appeared at the hearing and moved to dismiss the complaint
on the ground that the Board lacked jurisdiction. The motion was denied for the
reasons set forth in section I, hereafter. Counsel for the Respondent then withdrew
from the hearing. The General Counsel proceeded with his case and the hearing.
thereafter continued in the absence of counsel for the Respondent.
Upon the entire record 2 and from my observation of the witnesses, I hereby
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation engaged in the operation of a cemetery
located in Inglewood, California. From July 1, 1962, through June 30, 1963, the
Respondent received in excess of $500,000 from the sale to the public of services,.
burial lots, crypt spaces, and related items, and purchased goods directly from out-
side the State of California totaling $3,086.31. In its answer, the Respondent ad-
mitted the foregoing facts alleged in the complaint with respect to the business.
operations of the Respondent but denied that such facts constituted a sufficient basis
upon which the Board could assert jurisdiction.
I note that, based on identical facts, the Board, in an unpublished decision in.
Inglewood Park Cemetery Association and Centinela Concrete Vault Company,
Case No. 21-RC-8450, decided October 11, 1963, found the Respondent had met.
the Board's applicable standard for assertion of jurisdiction and further found that,.
since the Respondent had made purchases directly from outside the State in excess.
of $3,000, the Board had legal jurisdiction over its operations in accordance with
its decision in Aurora City Lines, Inc., 130 NLRB 1137. I find that, on the foregoing.
facts alleged in the complaint and admitted in the answer, the Respondent is engaged
in commerce within the meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction in this case.
H. THE LABOR ORGANIZATION INVOLVED
Miscellaneous Warehousemen, Drivers & Helpers, Local 986, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein
called the Union, is a labor organization within the meaning of Section 2(5) of-
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
On June 26, 1963, after they had finished their work for the day, John Dzavan, Jr.,
John Simpson and Ruben Diaz, employees of the Respondent, went to the office of
Les Coombs, business representative of the Union, to inquire about becoming:
members of that labor organization. Coombs explained to the three employees
the procedure to be followed and gave them a number of authorization cards. On
the following day, before and after working hours and during the lunch period, the
three employees gave -a number of such cards to their fellow workers. Diaz signed
one of the cards on June 26, Simpson on June 27, and Dzavan on the morning of
June 28.
During the afternoon on June 27, William Faulkner, a foreman, approached.
Dzavan while the latter was at work, and asked him if he had passed out union cards.
Dzavan asked Faulkner who had told him. Faulkner replied that one of the men
had informed him that he had been given a union authorization card by Dzavan.
Dzavan responded by requesting that he be confronted with Faulkner's informant and.
Faulkner agreed, saying that he would return at once with him, but he did not do so.
Before he left, however, Faulkner also told Dzavan that if A. H. Conquest, the
Respondent's superintendent, ever found out that the employees were passing out
union authorization cards he would discharge them on the spot.
On June 28, at approximately 4 p.m., the employees of the Respondent were called
to attend a meeting at the Grace Chapel. Superintendent Conquest told them that.
he had heard they were trying to form a union, that he would not have a union and
that he would fight against it. He also told the employees that workers at the
2 The unopposed posthearing motion of the. General Counsel to correct, the transcript,
copy of which was .duly served upon the Respondent, conforms to my recollection of the.
testimony and is hereby granted.
INGLEWOOD PARK CEMETERY ASSOCIATION 805
Hollywood Cemetery had joined a union and were receiving an average hourly wage
which was lower than that being paid by the Respondent, who also gave its employees
uniforms and a Christmas basket, and that at the Hollywood Cemetery they were
dissatisfied with the union contract and were waiting for the year to expire so that
they could get out of the union.
After the meeting was over, Dzavan, Simpson , and Diaz, as well as Leroy Leazotte,
who worked together with Dzavan as a marker trimmer, were told that Super-
intendent Conquest wished to see them in his office. The four employees were
ushered into Conquest's office separately. Each was told he was discharged and
was given his final paycheck. Conquest told Dzavan that he was being discharged
because his work was insufficient, Simpson because he was wasting time on the job,
and Leazotte 3 because he and Dzavan had been a team for a long time and had
done nothing but fool around. Diaz, who is of Spanish extraction, testified that he did
not understand what Conquest had said to him at the time he handed him his final
paycheck.
Dzavan and Leazotte were two of the six marker trimmers employed by the
Respondent whose job it was to trim the grass around the headstones in the cemetery.
These employees worked in teams of two. They operated a three-wheel scooter
propelled by a gasoline motor which provided the power for the two trimmers.
Dzavan and Leazotte had worked together as a team in this manner for approximately
3 years. Dzavan began working for the Respondent on July 13, 1959, and worked
continuously until he was discharged on June 28, 1963. When Dzavan began work
for the Respondent he was receiving a wage rate of $1.65 an hour. At the time of
his discharge he was receiving $2.35 an hour, having received two wage increases
neither of which had been requested by him .4
Leazotte first began work for the Respondent in 1952 but voluntarily left his job
in 1957. He returned to work for the Respondent in 1959 and worked thereafter
continuously until the date of his discharge. At the time he last was employed by the
Respondent in 1959 he began work at a wage rate of $1.65 an hour and thereafter
received two or three wage increases . He was being paid $2.35 per hour at the time
of his discharge. Before the day of the discharges, Dzavan had never been told by
the Respondent that his work was insufficient nor had Leazotte ever been told that he
had been fooling around or that his work was unsatisfactory.
Simpson, who was employed as a power motor operator, began work for the
Respondent in 1952 and worked continuously until he was discharged on June 28,
1963. His rate of pay was $2.35 per hour at the time of his discharge and he had
received three wage increases during the period of his employment, none of which
he had requested. Although Superintendent Conquest had told Simpson that he was
being discharged because he had been wasting time on the job, Simpson had never
before been told by the Respondent at any time that he was either wasting time
at his work or that his work was not satisfactory.
Diaz, who was employed as a stonesetter, began work for the Respondent on
April 15, 1959, and worked continuously until he was discharged on June 28, 1963.
He was paid $1.70 per hour at the time he was first employed and received three or
four wage increases , none of which he had requested during the period of his em-
ployment. He was being paid $2.50 per hour at the time that he was discharged.
He had never received any complaints about his work.
Although afforded an opportunity to do so, the Respondent offered no evidence
to refute that presented by the General Counsel, but instead, as noted above, with-
drew from the hearing. The undisputed evidence thus offered shows that Dzavan,
Diaz, and Simpson engaged in union activities by distributing union authorization
cards among their fellow employees; that the Respondent had knowledge of such
activities; that the Respondent was opposed to the unionization of its employees as
Superintendent Conquest told them at the meeting on June 28; and that the day
after learning of the union activities in question the Respondent discharged the three
employees who had engaged in such activities. Although Leazotte had signed a
union authorization card, there is no showing that he distributed such cards among
his fellow workers as had the other three employees. He and Dzavan had worked
together as a team , as Conquest observed at the time he told Leazotte that he was
being terminated. These two employees worked together for approximately 3
3 Leazotte had signed a union authorization card on June 27.
* Dzavan testified that the second of these wage increases was received in September
1962, that the employees had been trying to form a union at the time and that Mr. Latteau,
the owner of the cemetery, spoke to the employees and told them that he did not want a
union, that they were too small an outfit to join the union and that he would give the
employees a raise to keep them quiet.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years and it is reasonable to infer that the Respondent discharged Leazotte as well
as Dzavan becasue of the close relationship between the two. Although the em-
ployees were told they were being discharged either because they were loafing on
the job or that their work was unsatisfactory, none of them before had received
complaints about his work or had been warned that he was wasting time, each was
an employee who had worked for the Respondent for an appreciable period of
time, and each had been awarded two or more wage increases during the period of
his employment. Under such circumstances and in the light of the Respondent's
opposition to unionization of its employees as shown by the statements of owner
Latteau and the wage increase granted the employees in September 1962,5 the state-
ment of Foreman Faulkner to employee Dzavan on June 27, 1963, that if Super-
intendent Conquest discovered that the employees were distributing union authoriza-
tion cards he would discharge them on the spot; and the statement of Superintendent
Conquest to the employees at the meeting on June 28, 1963, that the Respondent
would not accept a union and would fight against it, I find that the reasons told
the employees by the Respondent as the basis for discharging them cannot be credited
and that the true reason for the discharge of Dzavan, Simpson, and Diaz was be-
cause each of them had engaged in union activities and that Leazotte was discharged
because of his close association with Dzavan. The discharges by the Respondent
on June 28, 1963, of Dzavan, Simpson, Diaz, and Leazotte for the foregoing reasons
were acts of discrimination which discouraged union membership within the meaning
of Section 8(a)(3) of the Act. In addition, the discharges of these employees and
the conduct of Foreman William Faulkner on June 27, 1963, in interrogating em-
ployee John Dzavan, Jr., as to his union activities, Faulkner's statement on that
occasion that Superintendent Conquest would discharge employees who engaged in
such activities, and Superintendent Conquest's statements to the assembled employees
at the meeting on June 28, 1963, that he would not have a union and would fight
against it constituted acts of interference , restraint , and coercion of the employees
in the exercise of the rights guaranteed them in Section 7, thereby violating Section
8 (a)( 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 con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation 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 commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated with respect to the hire and
tenure of John Dzavan , Jr., John Simpson , Leroy Leazotte , and Ruben Diaz, it will
be recommended that the Respondent offer each of said employees immediate and
full reinstatement to his former or substantially equivalent position of employment
without prejudice to his seniority or other rights and privileges . See The Chase
National Bank of the City of New York, San Juan , Puerto Rico, Branch , 65 NLRB
827. It will further be recommended that the Respondent make each of said em-
ployees whole for any loss of pay suffered by reason of its discrimination against
him. Said loss of pay, based upon earnings which each of said employees would
have earned as wages from the date of the discrimination to the date of offer of
reinstatement , shall be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289 . Interest thereon at the
rate of 6 percent per annum shall be added , as provided in Isis Plumbing & Heating
Co., 138 NLRB 716.
The unfair labor practices committed in this case strike at the very heart of•the
Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F . 2d 532 ( C.A. 4). The inference is
therefore warranted that the Respondent maintains an attitude of opposition to the
5 The complaint does not allege and no finding herein is made that this conduct con-
stituted an unfair labor practice and such a finding would be barred in any event by Sec-
tion 10(b) of the Act. The conduct in question may, and has been, considered, however,
as background evidence to throw light upon the later acts of the Respondent alleged as un-
lawful. Local Lodge No. 1424, International Association of Machinists, AFL-CIO; and
International Association of Machinists , AFL-CIO ( Bryan Manufacturing Co.) v. N.L.R.B.,
362 U. S. 411; Axelson Manufacturing Company, 88 NLRB 761.
INGLEWOOD PARK CEMETERY ASSOCIATION 807
fundamental purposes of the Act designed to protect the rights of the employees. It
will accordingly be recommended that the Respondent cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire record in
this proceeding, I make the following conclusions of law:
1. The Union is, and has been at all times material to the issues in this proceeding,
a labor organization within the meaning of Section 2(5) of the Act.
2. The Respondent is, and has been at all times material to the issues in this
proceeding, an employer within the meaning of Section 2(2) of the Act.
3. By discriminating with respect to the hire and tenure of employment of John
Dzavan, Jr., John Simpson, Leroy Leazotte, and Ruben Diaz, thereby discouraging
membership in a labor organization, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding, I recommend that the Respondent,
Inglewood Park Cemetery Association, Inglewood, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees with respect to their union activities in a manner
constituting interference with, coercion, or restraint in violation of Section 8(a)( I)
of the Act.
(b) Threatening to discharge employees because they have engaged in union
activities.
(c) Stating to employees that the Respondent would not have a union and would
fight against a union.
(d) Discouraging membership in Miscellaneous Warehousemen, Drivers &
Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
-men & Helpers of America, or any other labor organization of its employees, by
discharging or in any other manner discriminating in regard to hire, tenure of em-
ployment, or any term or condition of employment, except as authorized in Section
8 (a) (3) of the Act.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist Miscellaneous Warehousemen, Drivers & Helpers, Local 986, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
or any other labor organization, to .bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to John Dzavan, Jr., John Simpson, Leroy Leazotte, and Ruben Diaz
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges.
(b) Make whole John Dzavan, Jr., John Simpson, Leroy Leazotte, and Ruben
Diaz for any loss of pay suffered by reason of the discrimination against them in
accordance with the method set forth above in the section entitled "The Remedy."
(c) Preserve until compliance with any order for reinstatement or backpay made
by the National Labor Relations Board is effectuated and make available to the said
Board and its agents, upon request, for examination and copying, all payroll records,
social security payment records, timecards, personnel records and reports, and
all other records relevant to a determination of the amount of backpay due, and
to the reinstatement and related rights provided under the terms of any such order.
0
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its usual place of business located in Inglewood, California, copies
of the attached notice 6 marked "Appendix." 7 Copies of said notice, to be furnished
by the Regional Director for-the Twenty-first Region of the National Labor Rela-
tions Board, shall, after being duly signed by an authorized representative of the
Respondent, 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 the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Twenty-first Region, in writing, within
20 days from the date of the receipt by the Respondent of a copy of this Decision,
what steps the Respondent has taken to comply therewith.8
It is further recommended that unless on or before 20 days from the date of the
receipt of this Decision the Respondent notify the Regional Director that it will
comply with the foregoing Recommendations, the National Labor Relations Board
issue an order requiring the Respondent to take the action aforesaid.
Since notices are customarily framed in the language of the statute and because their
technical nature are often difficult for employees to understand, I am recommending that
the notice in this case embody the simplified form which appears in the Appendix.
4 In the event that this Recommended Order be adopted by the Board, the words "a De-
cision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of the 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."
8In the event that this Recommended Order be 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 therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, we are posting this notice to inform our employees of the rights
guaranteed them in the National Labor Relations Act:
WE WILL NOT interfere with the rights of our employees under the law by
questioning them about their union activities.
WE WILL NOT threaten to discharge our employees because they have engaged
in union activities.
WE WILL NOT tell our employees that we will not have a union or that we
will fight against it.
WE WILL offer immediately to the employees named below the jobs they held
before they were discharged, or jobs like them, without loss of seniority or
any other rights and privileges, and we will give each of the employees named
below whatever backpay he has lost:
John Dzavan, Jr. John Simpson
Leroy Leazotte Ruben Diaz
ALL OUR EMPLOYEES have the right to join or assist Miscellaneous Warehouse-
men, Drivers & Helpers, Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other union. We
will not question our employees as to whether they engage in union activities or
threaten them for doing so, or take any action against them for doing so.
INGLEWOOD PARK CEMETERY ASSOCIATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
S.N.C. MANUFACTURING CO., INC. 809
Information regarding the provisions of this notice or compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
Eastern Columbia Building , 849 South Broadway , Los Angeles , California , Telephone
No. 688-5204.
S.N.C. Manufacturing Co., Inc. and International Union of Elec-
trical , Radio and Machine Workers, IUE, AFL-CIO. Cases
Nos. 30-CA-15 (formerly 13-CA-5561) and 30-RC-4 (formerly
13-RC-9218). June 26, 1964
DECISION AND ORDER
On November 14, 1963, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, 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
Respondent had not engaged in other unfair labor practices alleged
in the complaint and recommended dismissal of those allegations.
Thereafter, the Respondent, the General Counsel, and the Charging
Party each filed exceptions to the Trial Examiner's Decision and sup-
porting briefs. The American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO) requested permission to file
and filed an amicus brief.
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 briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.
As fully set forth in his Decision, the Trial Examiner found, and
we agree, that the Respondent violated Section 8(a) (1) of the Act
by the following conduct : urging and encouraging employees to form,
and deal with the Respondent through, a shop committee rather than
through the Union; promising, granting, and announcing wage in-
creases, paid holidays, a vacation plan, insurance benefits, and other
changes in conditions of employment for the purpose of dissuading
employees from pursuing their quest for union representation; grant-
ing wage increases and promising further benefits after consultation
with the Liaison Committee established and dominated by it for the
purpose of interfering with the free exercise by the employees of their
Section 7 rights; interrogating employees concerning their member-
ship in, sympathies for, or concerted activities on behalf of the
Union; giving employees the impression that their union activities
147 NLRB No. 92.