J. P. Stevens Co.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1133 (N.L.R.B. 1964)

J. P. STEVENS COMPANY, EXPOSITION PLANT 1133
ployees in the "alteration" classifications. Upon being notified by
Leader that each of the employers involved had signed this
letter,' the ILG called off the strike and apparently withdrew certain
representation petitions they had filed with the Board. At the same
time, the parties agreed that if the ILG had any grievances, com-
plaints, or demands in the future, such matters would be taken up
in the first instance with Leader acting as his clients' labor
representative.
From the time of the 1946 settlement until Leader's death in
1961, Loveman's, as well as several other stores such as Pizitz, con-
tinued to deal with Petitioner through Leader. No formal agreement
was ever executed but, nevertheless, Petitioner was apparently rec-
ognized as the de facto bargaining representative of the "alteration"
employees. Over the years, Petitioner's efforts succeeded in obtaining
several wage increases, in having one employee reinstated after she had
been fired, and in settling a number of grievances. Throughout this
period, Petitioner attempted to act solely for employees who worked in
the departments presently petitioned for, and the breakdown in the in-
formal system of bargaining is apparently the result of Leader's
death.
On the entire record, we find that the "alteration" employees com-
prise a skilled, distinct, and homogeneous group, and that they con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.9 We shall direct an
election in the following described unit :
All alteration and drapery department employees employed by the
Employer at its Birmingham, Alabama, store, excluding supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 At least one copy of the same letter was endorsed by representatives of both the
International ILG and Local 375.
O Foreman & Clark, Inc., 97 NLRB 1080. Member Leedom bases his determination of
the appropriateness of this unit on all the circumstances of the case , including prior rep-
resentation of this unit by this Petitioner.
J. P. Stevens Company, Exposition Plant and Textile Workers
Union of America , AFL-CIO, CLC. Case No. 10-CA-5428.
June 29, 194
DECISION AND ORDER
On April 14, 1964, Trial Examiner Lloyd Buchanan 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
147 NLRB No. 108.
1134 DECISIONS OF NAPIONAL LABOR RELATIONS BOARD
affirmative action, and also finding that it had not engaged in a certain
other unfair labor practice and recommending that the allegations of
the complaint be dismissed as to the latter, all as set forth in the at-
tached Trial Examiner 's Decision Thereafter, the General Counsel
and the Charging Paity filed exceptions to said Decision and support-
ing bi iefs The Respondent filed cross-exceptions and a supporting
brief
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection w ith this
case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins]
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 Ex-
aminer's Decision, the exceptions, the cross-exceptions, the briefs, and
the entire record in the case, and adopts the Trial Examiner's findings,
conclusions , and recommendations except as herein modified
The Trial Examiner found that the Respondent violated Section
8(a) (1) of the Act by the conduct of employee Rogers in conversations
with an active union adherent, Staton, who lived in a company-ow ned
house Rogers was a fixer on the shift on which Staton w of ked as a
doffer The tenor of Rogers' remarks was coerci-ve, including loss of
fob and loss of home if Staton did not give up the Union, a suggestion
that Staton tell overseer Heath that lie would have no more to do w ith
the Union, and a warning that Staton could be discharged for as little
as one high bobbin The Trial Examiner found that the Respondent
was responsible for the conduct of Rogers because the latter "sera es
as an agent of management and its conduit, relaying messages to the
employees and assignments (he also removed and passed along to man-
agement some of Staton's high bobbins ) and that he is so regarded
by the employees "
We do not agree that the Respondent is responsible for Rogers' al-
leged 8(a) (1) conduct, because w e find that the relationship between
the Respondent and Rogeis was not such as to constitute an agency
relationship Rogers' work as a fixer entailed maintenance of the
spinning machinery, assignment of work to doffers as laid out in the
office, and some duty to look for bad work and report it As to
the latter, the record indicates that overseers and assistant overseers,
admitted supervisors, likewise circulated through the mill checking
on quality Rogeis was not alleged or shown to have supervisory
authority Concerning Roget s' alleged agency there is no ci edited
testimony that the Respondent sponsored, condoned, or ratified Rogers'
remarks All remarks of Rogers which the Trial Examiner credited
were made to Staton alone, on occasions when no supervisory person-
nel were present The Trial Examiner discredited Staton's testimony
J P STEVENS COMPANY, EXPOSITION PLANT 1135
regarding the restroom incident when overseer Heath was allegedly
present with Rogers and did most of the talking in the same vein used
by Rogers Pogeis denied that he was instructed by Heath to discuss
the Union with Staton, and there is no basis on the record for inferring
that Rogers was instructed by other management personnel to dis-
courage union activity Nor is there any evidence of similar coercive
activity by management personnel, or any credited testimony of such
activity by super visors Although two doffers testified for the Re-
spondent that doflei s ww ei e regulai ly warned by fixers to avoid having
high bobbies, we do not regard this alone as proof that fixer Rogers
was regarded generally by employees as a spokesman for the Respond-
ent I I n short, Ni e conclude that the Genii al Counsel has not sus-
tained the buiden of proving the agency of Rogers even within the
wide scope peimitted by the Act as set forth in Section 2(2) and (13)
Thus we find, contiaty to the Trial Examiner, that the Respondent
has not ' iolated Section 8 (a) (1) of the Act
[The Boaid dismissed the complaint I
' See Cchinety inc 130 N LRB 1378 footnote 1
TRIAL EXAMINER'S DECISION
The complaint herein ( issued September 16, 1963, charges filed August 6 and
September 11 1963) alleges that the Company has violated Section 8 (a)(3) of
the National Labor Relations Act as amended, 73 Stat 519 by discharging and
failing and refusing to remstite Willard H Staton, because he engaged in union and
other protected concerted activities, and Section 8(a)( I) of the Act by said alleged
acts and by interrogating and threatening employees in connection with union
activities and desires The answer denies the allegations of violation , and puts in
issue the alleged agency status of one of the Company s section men or fixers
A hearing was held before Trial Examiner Lloyd Buchanan at Atlanta, Georgia,
on October 21 1963 Briefs have since been filed by the General Counsel and
the Company
Upon the entire record in the case and from my observation of the witnesses,
I make the following
FINDINGS OF FACT (WITH REASONS THEREFOR)
I THE COMPANY S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was adm tted and I find that the Company, a Delaware corporation with a
plant and place of business in Atlanta, Georgia, is engaged in the manufacture and
sale of cloth goods and other products, that during 1962 a representative period,
it sold and shipped materials valued at more than $50 000 directly to customers out-
side the State of Georgia , and that it is engaged in commerce within the meaning of
the Act
It was admitted and I find that the Union is a labor organization within the
meaning of the Act
II THE UNFAIR LABOR PRACTICES
A The alleged independent violation of Section 8(a) (1)
Various incidents are alleged to have been violative as unlawful interrogations and
simultaneously to have included threats of different kinds To attempt to separate
the various types of alleged violation would require unnecessary repetition of facts
Diametrically opposite testimony was received concerning certain alleged inter-
rogation and threats to Staton by Rogeis , a fixer or section man and Heath shift
overseer and admitted supervisor While Rogers occasionally checks high bobbins
in Heaths absence , it does not appear and it is not claimed that the former is a
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor within the meaning of the Act But there is basis for finding that he
serves as an agent of management and its conduit , relaying messages to the employees
and assignments (he also removed and passed along to management some of Staton s
high bobbins, infra), and that he is so regarded by the employees I so find
Despite the Company's liability for any interference by one who is shown to be
an agent acting within the apparent scope of his activities and by a supervisor, the
quality of Staton's testimony, pointed out on the record with respect to one instance
(or two ), was not such as to warrant its acceptance in the face of the absolute
denials by Rogers and Heath I have not overlooked elements of confusion in the
testimony of each of the latter two It is not so much that I rely on and credit
Heath 's or particularly Rogers' denials as that I discredit and do not rely on Staton's
testimony where it was contradicted
With respect to one incident about the end of May, the first mentioned by
Staton , his testimony that Rogers referred to his union activities and threatened
loss of his job and housing stands uncontradicted There is no warrant for assump-
tion that this item, there being so few, was overlooked by counsel for the Company
Similarly, while Rogers was asked about and denied that he had any conversation
with Staton in the restroom , the latter having testified to a conversation when both
Rogers and Heath were present , Rogers did not contradict Staton 's reference to two
occasions at his job (they appeared to me to be one and I later thus referred to
them ), when Rogers spoke of a man who had lost his job after messing with the
Union , and later told Staton that he did not want him to lose his home , job, or
security Again on July 31, Rogers told Staton that he would be fired if he did not
leave the Union alone Although relying on this uncontradicted portion of Staton s
testimony , which counsel for the Company skirted in his questions to Rogers, I make
no finding on the basis of his broad statement that Rogers and Heath spoke to him
about the Union at every opportunity and on about a dozen occasions between
June and August When asked to support this general statement, he did cite the
last three instances mentioned supra
Heath's and Rogers ' denials of the remarks attributed to them about closing the
plant can be accepted But Rogers denials were limited to the instances which in-
cluded Heath , leaving undenied the testimony concerning his own separate inter-
ference, as already noted I find that Rogers, but not Heath, threatened Staton
with discharge and loss of housing , as alleged, in connection with the latter s union
activities I do not find the interrogation or the threat of plant closure as alleged
on any of these occasions
As for interference by Edwards , the Company 's chief engineer , Herron , a carpen-
ter, testified that he brought up the subject of the Union in a conversation with
Edwards, and said that he was trying to organize the mill , that Edwards replied
that Herron knew what he was doing, and that if the Union came in the Company
would close the mill down, but that Edwards nevertheless did not mention the
Union Edwards testified that several times in May and June he criticized Herron in
connection with his work, and that the latter several times mentioned the Union
and his activity in its behalf
With respect to the conversation of May 22 or 23, the only one to which Herron
testified , it stands uncontradicted that Edwards at the time , in Herron 's presence,
prepared a report of their conversation and that Herron refused to sign it but said
that it was correct The report includes no mention of any threat by Edwards,
and Herron was not recalled to deny that he had said that the report was correct
as prepared despite its ommission of the alleged threat Edwards' continued tol-
erance of Herron 's shortcomings itself minimizes the likelihood of the alleged threat
Furthermore his testimony was more complete than Herron 's, and I credit the denial
that he threatened mill closing if the Union organized the plant
B The alleged violation of Section 8(a) (3)
The Company has renewed its request that certain exhibits be received It is
recognized that 28 US CA 1732 was adopted to avoid authentication problems
But that section does not appear to offer any basis , nor is there reason, for discard-
ing the other conditions with respect to entries made in the regular course of busi-
ness In the absence of such conditions , the documents are no different from other
self-serving statements The motive to falsify is no less such because the statements
were allegedly made in the regular course of business As for the element of au-
thenticity in a record allegedly made when the event occurred , there is no such
safeguard in loose sheets concerning whose preparation there must be a credibility
finding and which is no more reliable than the evidence already received , and where
any motive for falsification was as great at least when the report on Staton was
allegedly prepared as at the time of the hearing
J. P. STEVENS COMPANY, EXPOSITION PLANT 1137
Here 'the witness who sponsored the exhibits in, question had testified concerning
them; his recollection appeared to be complete. Hence to the extent that the ex-
hibits purport to record past recollection, they at best duplicate the witness' testi-
mony. After the oral testimony concerning the contents of the exhibits, objectionable
because it is not the best evidence, has been received without objection, it can be
relied upon; and the exhibits become cumulative unless demanded and offered by
opposing counsel. Cases which relate to admissions against interest are not in point.
In Murray Ohio Manufacturing Company,' cited in the Company's brief, the docu-
ments finally received were signed by two persons who did not testify. As for
Sharples Chemicals, Inc.,2 whatever else was committed or decided by the Board
and the court in that case, the court's opinion that certain requirements for receipt of
documents were not there met does not support the instant Respondent's position,
which overlooks other requirements. But for such requirements we would be sur-
feited with self-serving and cumulative statements.
Aside from the question of company knowledge of Staton's union activities,3 it
appears clearly that on August 1, Staton had an unprecedented number of high bob-
bins, these indicating exceptional carelessness which warranted and in fact prompted
his discharge. Union activities do not bar discharge effected for sufficient cause
and not prompted by those activities, whatever suspicion might be aroused by
Rogers' threat 2 days before as he had threatened 2 months earlier.
The record shows that doffers have very few high bobbins, that Staton had at least
three opportunities to prevent such a condition from developing, and that high bob-
bins cause trouble and defects in the weaving process. Nor, to support the claim
of discrimination, does it appear that Staton had ever before been chargeable with
such a number of high bobbins or that any doffer had had so many but was per-
mitted to remain on the job. As for responsibility for permitting the spindles to
run with high bobbins, while a section man or a supervisor is ultimately responsible
for this and an occasional check is made, reliance is clearly placed on the doffer's
initial setting and his continued performance. There is no sufficient basis for finding
that, but for his union activities, even if .the Company had knowledge thereof, it
would not have discharged Staton. Staton's monody does not echo discrimination.
It will hardly do to point to the vastly greater number of bobbins which Staton cor-
rectly set day in and day out. When he admitted 4 that there was no reason for his
poor work, the Company was not obliged to accept his promise to do better. The
standard which is actually met is, as testified to, little short of perfection.
In this connection we need not attempt to draw any conclusion (none has to this
point been urged by counsel) from the fact that Herron was not discharged. On the
one hand it might be argued that the Company continued to employ him despite a
period during which he did poor carpentry; on the other, that it retained him despite
his frequently expressed support of the Union.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, commerce, and traffic among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist there-
from, and take certain affirmative action in order to effectuate the policies of the Act.
1134 NLRB 141,.145.
2 100 NLRB 20, enfd. 209 F. 2d 645.
3 Such knowledge would stem from Rogers' indicated knowledge, Staton's expressions of
union support as voiced to him, and the facts found to support the allegations of inter-
ference, supra; and it would depend on imputation (cf. Arlington Hotel Company, Inc.,
127 NLRB 736) to the Company of the knowledge, not of a supervisor, but of a conduit
agent. Distinction must be recognized between conduct of an agent, for which an employer
is liable, and his knowledge, to be imputed to it.
4 This admission and the poor work are clear, whatever the details concerning the num-
ber of bobbins and the frames from which they had been taken, and without reference to
the bobbins produced at the hearing or complaints received concerning them. While
Staton questioned whether certain bobbins were his, he had raised no question when
spoken to about others and their numbers.
756-236-65-vol. 147-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that the Company, by threat of discharge and loss of housing,
interfered with, restrained , and coerced its employees in violation of Section 8(a) (1)
of the Act . I shall therefore recommend that the Company cease and desist there-
from and from any like or related conduct.
For the reasons cited in the subsection entitled "The alleged violation of Section
8(a)(3)," I shall recommend that the complaint be dismissed insofar as it alleges
the discriminatory discharge and failure to reinstate Staton.
Upon the basis of the above findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America , AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By threatening in connection with union activity, thereby interfering with,
restraining , and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 ( 6) and , (7) of the Act.
4. The Company has not engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
[Recommended Order omitted from publication.]
Capital Distributing Co. and William Henry Giles and Team-
sters, Chauffeurs , Helpers and Taxicab Drivers Local Union
No. 327, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America . Cases Nos. 26-CA-1630
and 926-CA-1671. June 29, 196 .
DECISION AND ORDER
On February 27, 1964, Trial Examiner Arthur E. Reyman issued
his Decision in the above-entitled proceedings, finding that the Re-
spondent 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 Decision.
He also found that the Respondent had not engaged in other unfair
labor practices and recommended that the complaint be dismissed as
to them. Thereafter, the General Counsel filed exceptions to the De-
cision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent that they are con-
sistent with our decision herein.
147 NLRB No. 117.