Keller Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1967

165 N.L.R.B. 1011 (N.L.R.B. 1967)

KELLER ALUMINUM CHAIRS
Keller Aluminum Chairs Southern , Inc., A
Subsidiary of Keller Industries , Inc. and
United Steelworkers of America , AFL-CIO.
Keller Ladders Southern , Inc., A Subsidiary
of Keller Industries , Inc. and United
Steelworkers of America , AFL-CIO.
Cases 23-CA-2425 and 23-CA-2526.
June 25, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On March 1, 1967, Trial Examiner Thomas S.
Wilson 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 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 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 recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Keller
Aluminum Chairs Southern, Inc., Keller Ladders
Southern, Inc., both subsidiaries of Keller
Industries, Inc., Caldwell, Texas, and Miami,
Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Delete paragraph 1(d) of the Recommended
Order and in lieu thereof insert the following:
"(d) Interfering with, restraining, or coercing its
employees by applying the checkoff provision under
its illegal collective-bargaining agreement to
employees who have notified or do notify
Respondent that they no longer wish dues moneys
withheld from their paychecks."
"(e) In any other manner, interfering with,
restraining, or coercing its employees in order to
1011
discourage union membership or activities on behalf
of the United Steelworkers of America , AFL-CIO,
or any other labor organization among its
employees."
3. Delete paragraph 2(c) of the Recommended
Order and in lieu thereof insert the following:
"(c) Reimburse Beth Matcek and all others
similarly situated for all moneys exacted as dues
after Respondent received notification that said
employees no longer wished dues moneys withheld
pursuant to the checkoff provision of the illegal
collective - bargaining agreement ; said reimburse-
ment to be with interest at the rate of 6 percent per
annum.
4. Insert the following after the third indented
paragraph of the Notice:
WE WILL NOT interfere with , restrain, or
coerce our employees by applying the checkoff
provision under our illegal collective -bargaining
agreement to employees who have notified or
will notify us that they no longer wish dues
moneys withheld from their paychecks.
5. Delete the next to the last indented paragraph
of the Notice and in lieu thereof insert the following:
WE WILL reimburse Beth Matcek and all
other employees similarly situated for all
moneys exacted by us as dues payments after
we received notification that said employees no
longer wished their dues to be withheld under
the checkoff provision of our illegal collective-
bargaining agreement, and pay interest on such
sums at the rate of 6 percent per annum.
We find no merit in Respondent's contention that a dues
reimbursement order is not warranted in the circumstances of
this proceeding The Trial Examiner recommended dues
reimbursement to employee Matcek and other employees
similarly situated as a remedy for Respondent's unlawful conduct
in refusing to accede to Matcek's request that Respondent cease
checking off money from her paychecks as dues to Local 666
under the terms of an illegal contract between Respondent and
Local 666 While the conduct upon which the Section 8(a)(1)
violation is predicated was not specifically alleged in the,
consolidated complaint, the matter was fully litigated at the
hearing and the facts upon which the finding is based are not in
dispute. Likewise, the General Counsel's failure to request a dues
reimbursement remedy does not limit the Board's authority to,
fashion an order that will effectively remedy the unfair labor
practices committed Accordingly, we shall adopt the Trial
Examiner's recommendation that Respondent be required to
make dues reimbursement payments with interest to employee
Matcek and other employees similarly situated However, we
shall modify our Order by providing for a specific "cease and
desist" provision directed to this conduct and by also providing in
the affirmative provisions of our Order that such employees are
entitled to reimbursement only for those moneys which were
withheld by Respondent after it received notification that the
employee no longer wished to have his dues withheld under this
arrangement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon individual
charges duly filed on June 28 and October 7, 1966
165 No. 121
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(subsequently amended on October 18, 1966 ), in each of
the aforementioned cases, respectively , by United
Steelworkers of America , AFL-CIO, hereinafter referred
to as the Union or Charging Party, the General Cousel of
the National Labor Relations Board , hereinafter called the
General Counsel ' and the Board , respectively, by the
Regional Director for Region 23, Houston , Texas, issued
individual complaints dated October 7 and 21, 1966,
respectively , against the subsidiaries of Keller Industries,
Inc., aforementioned , hereinafter called the Respondent.
By order dated October 24 , 1966 , said Regional Director
ordered said cases consolidated for hearing.
The consolidated complaints alleged that Respondent
had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and (3 ) and Section (6) and (7) of the Labor Management
Relations Act of 1947, as amended , herein called the Act.
Respondent duly filed individual answers admitting
certain allegations of the complaints but denying the
commission of any unfair labor practices.
Pursuant to notice , a hearing thereon was held in Bryan,
Texas, on November 29 and 30 and December 1 and 2,
1966 ,2 before me. All parties appeared at the hearing,
were represented by counsel , and were afforded full
opportunity to be heard , to produce , examine and cross-
examine witnesses , and to introduce evidence material
and pertinent to the issues. At the conclusion of the
hearing, oral argument was waived . Briefs have been
received from General Counsel and Respondent on
January 23, 1966.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Keller Industries, Inc., is a Florida corporation having
its principal offices in Miami, Florida, and operating
wholly owned subsidiaries and plants in several States of
the United States, including the States of Florida, New
Jersey, and Texas. At all times material herein it has
operated at Caldwell,Texas, an aluminum chair plant and,
50 to 75 yards away, a ladder plant, where it is engaged in
the manufacture, sale, and distribution of aluminum chairs
and ladders and related products. Respondent, during the
past 12-month period, which period is representative of all
times material herein, manufactured, sold, and shipped
products valued in excess of $50,000 from each of its two
plants in Caldwell, Texas, its only facilities involved
herein, to points outside of the State of Texas.
The complaints alleged, the answers admitted, and I
find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor
organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
On October 17, 1966 , the Board issued its Decision, 161
NLRB 21 , involving the same Respondent and the same
' This term specifically includes the attorney appearing for the
General Counsel at the hearing
Union as Charging Party as well as Local 666, Concrete
Products & Material Yard Workers Union, Allied
Industries Division, International Hod Carriers Building
and Common Laborers Union of America, AFL-CIO,
which was there involved as the "party to the contract." In
that Decision the Board, adopting the Decision of Trial
Examiner Fannie Boyls, found that Respondent had
illegally aided and assisted Local 666 in violation of
Section 8(a)(1) and (2) of the Act and ordered Respondent
inter alia, to withdraw recognition from said Local 666 and
to cease giving any force and effect to the agreement then
in existence between Respondent and Local 666. In its
brief Respondent says, "the final disposition of that
decision is unresolved" which, as I understand it, means
that the Board's Decision has not yet gone to the courts for
enforcement.
After Trial Examiner Boyls' Decision came down on
March 23, 1966, the Union began holding organizational
meetings for the employees at the plant. At the June 16
meeting employee members of the Steelworkers were
elected to the Steelworkers organizing committee. At the
chair plant employees Dellaphene Marek, Laura
Engleman, Beth Matcek, Grace Moore, and Charles
Carter were selected as members of that committee.
By letter to the Caldwell plants' general manager,
Charles Prevost, employee Matcek requested that no
further dues to Local 666 be checked off from her
paycheck due to that Trial Examiner's Decision.
Respondent never answered this letter, nor any of the
other 9 or 10 similar letters sent to it by other employees,
but on or before July 5 these persons received answers to
their letters sent them on stationery of Local 666 by
Seymour A. Gopman, attorney for Local 666.
On June 21 Marek, Engleman, Matcek, and Moore all
appeared at the plant wearing buttons bearing the words
"Join U.S.A." The buttons were red and white and
approximately the size of a 50-cent piece. The fact that
these buttons were being worn at work was soon known by
General Manager Charles Prevost, Chair Plant Manager
Dick Turner, and Foremen William (Pee Wee) Edwards,
Eddy Gaas, and R.J. Smith, as well as by the other
employees.
Soon after work began that day Local 666 stewards,
John Prosky and Marie Norman, were seen coming from
the plant office and, either singly or together, spoke to
each of the button wearers informing them that Plant
Manager Turner had told them to tell the employees to
remove their union buttons. In some instances, at least,
the stewards added the threat that, if the buttons were not
removed, the wearers would be fired. That day all the
union buttons were removed.
After Matcek had taken her button off, Foreman R.J.
Smith came to Matcek's work station and, noting her
button was off, said, "Well, you have already taken it off."
When Matcek explained that Prosky had already told her
to do so, Smith informed Matcek that "they"-- obviously
referring to Prevost and Turner- had ordered him to tell
Matcek to remove the button.
The following day, June 22, Marek sought advice from
the Steelworkers organizer, Joie Hughes, who advised her
that the employees had the right to wear union buttons at
work under Federal law.
So on the next day, June 23, Marek, Engleman, Matcek,
and Moore again appeared at work wearing union buttons
2 All dates herein are in the year 1966 unless otherwise noted.
KELLER ALUMINUM CHAIRS
attached to their clothing.
Soon after beginning work that morning and while
acting as an off-bearer from the hydraulic punch press
bending machine, Charles Carter made himself a sign out
of waste material and tape bearing the pencil legend "vote
for the Steelworkers." He taped this kitchen matchbox
sized sign (approximately 4 by 6 inches) to his chest with
gray tape. Shortly thereafter his foreman, Gaas, ordered
Carter to remove the sign and then departed. Promptly
thereafter Local 666 Steward Prosky came up and
informed Carter that he, Prosky, had been instructed to
tell Carter to remove the sign or he would be discharged.
Minutes later Edwards, foreman of another department,
came by and told Carter that he would be fired if he did not
remove the sign . Thereafter when Carter reiterated his
refusal to remove the sign, Gaas left him a second time
only to return with a dismissal slip giving as the cause of
discharge Carter's refusal to obey a direct order. During
his last two visits to Carter, Gaas made it clear that, if
Carter removed his sign, he could continue his
employment with Respondent. Carter accepted his
termination slip, was paid , and has never since been
reinstated.'
Also early that same morning, Foreman Edwards came
to Engleman's work station and told her, "Laura, if you
don't take that button off, you are going to get fired." After
Engleman refused to remove the button, Edwards said that
"they" were real mad about it and that since Engleman
belonged to one union, she could not work for both.
Engleman answered that since the Trial Examiner's
Decision in the previous case, she had written a letter to
Prevost and was free to work for any union she wanted to.
To this Edwards replied, "I dust told you what they told me
to tell you." Just prior to 12:30 p.m. Edwards returned and
told Engleman that Manager Prevost sent word that she
was either to remove the button or be fired. Engleman
again refused. Edwards left for a few minutes before
returning and handing Engleman her pink dismissal slip
which gave the assigned reason for the discharge as
"Direct Disobedience of Order."
Thereupon Engleman walked over and reported her
dismissal to Marek She then retreated a few steps to the
water fountain behind Marek's work station.
Just before Engleman was given her termination slip in
one part of the plant, R.J. Smith, a supervisor but not of
Marek's part of the plant, came by Marek's work station
and told her that, while he did not have any right to tell
Marek because it was her own supervisor's place to do it, if
she did not take her union button off she would get fired.
Marek refused to remove the button on the ground that she
had the right to wear it. A few minutes later, about 12:30,
Edwards, Marek's supervisor, came and told her that
"they" had told him to tell Marek that she would have to
take her button off or go home. Marek answered, "In other
words, you are firing me?" Edwards answered, No, not
me, they will do it in the office." He explained that by
"they" he meant Turner and Prevost. Marek told him that
she was not going to take off the button and asked where
she could pick up her dismissal slip. Edwards left at that
time only to return and request that both Engleman and
Marek go into the office as Prevost wanted to talk to them.
In the office with Turner, Prevost told Marek and
Engleman that he had called Miami and the lawyer had
Carter's timecard shows that it was punched for the final time
at 902 am . onJune23
While Prevost and Turner denied making any statement
1013
told them that the employees could not wear the buttons in
the plant nor get any cards signed because the plant was
private property .4 Marek answered that "we could wear it
because we had a government law that backed us up on
that" and pointed out that the button did not bear a
controversial slogan. At least three times during the
ensuing conversation Prevost told the women that they
could return to work if they would take off their buttons.
They refused. Prevost then ordered the bookkeeper to
make out a termination slip for Marek saying, "She is
fired, too." The termination report, when made out, gave
the reason for Marek's discharge as "Direct Disobedience
of Order." Marek and Engleman were thereupon paid off
and left the plant. They have not been reinstated since.
On the other hand Matcek had seen Engleman with the
pink termination slip in her hand while on her way to
report her discharge to Marek. Matcek thereupon removed
her union button. Earlier that morning Foreman R.J. Smith
had similarly advised Matcek that, if she did not remove
the union button, she would be discharged. Matcek had
asked if he was dissatisfied with her work. Smith
answered that her work was satisfactory but that she
"would be fired for wearing the button and not for
unsatisfactory work."
The next day, June 24, however, Matcek returned to
work wearing her button again. About 7 a.m. Smith
informed Matcek that "they" were telephoning Miami for
instructions as to what to do about Matcek. About 9 a.m.
Smith returned and informed Matcek that "they" were
going to let her wear her button but that she had better
watch herself, that she should not do any talking to
anybody or roam around the plant, that if she had to go to
the restroom she should try to go on her breaks, and that if
she had to have a drink of water during working time he
would bring her one.
Just before the lunch break at 11:30 a.m. Smith returned
and ordered Matcek to take the button off or go home
because they had just received word that Congress had
passed a law that employees could not wear buttons in the
plant. Matcek stated that she did not believe him and
continued to wear her union button. She has continued to
wear her button since and is still employed
Although Matcek's letter of June 20, requesting that her
dues no longer be checked off to Local 666, had been
addressed to Prevost, neither she nor any of the other
employees sending similar letters received any answer
from Prevost or Respondent. However, in due course of
the mails Matcek and the others did receive letters on the
letterhead of Local 666 under date of June 29, signed by
Seymour A. Gopman, attorney for Local 666, in which the
opening paragraph states:
The undersigned is the attorney for Local 666. Your
letter to Mr. Prevost, requesting that the monthly
deduction of dues be discontinued, has been
forwarded to the Union, and by the Union to myself
for reply.
The remainder of this two-page letter denied Matcek's
request about the dues checkoff on the ground that her
request was "untimely" and added the following thought:
The collective bargaining agreement between Keller
Industries and Local 666 remains in effect and will
continue until a Court sets it aside. We are of the legal
opinion that this will never occur.
regarding "private property," they did not deny the substance of
this conversation
299-352 0-70-65
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 5 a copy of this letter addressed to Matcek was
posted by Respondent on Respondent's bulletin boards.
Upon seeing it, Matcek requested Manager Turner to
remove same. Turner refused the request on the ground
that he had been "ordered" to post that copy. When asked
why the posted letter had to be the one addressed to her,
Turner answered, "Well, you are the only one of the
committee left in the plant that has written a letter." That
copy of the letter remained posted on the bulletin board.
It was stipulated at the hearing that Respondent has
continued checkoff dues on behalf of Local 666 under the
contract at least up to the date of the present hearing.
Matcek's dues have thus continued to be checked off to
Local 666 despite Matcek's protest.
Among the employees of the ladder plant, Henry F.
Charanza, Lonnie Jackson, Danny Jones, and Jo Ann
Gilliam had become employee members of the
Steelworkers organizing committee on or about June 16.
On July 11 Charanza, Jackson, and Jones appeared at
work with the regular type of union buttons on. Shortly
after 7 a.m. that day Foreman Billie Joe Shupak ordered
these three employees into Production Manager Eddy
Allison's office where Allison told them that they would
have to remove their buttons. Allison also told them
several times that, if they removed their buttons, they
could go back to work. When the three men continued to
reiterate their refusal to remove the buttons, Allison stated
that he would have to discharge them for disobeying an
order. Charanza answered that, if he was discharging
them, Allison should attach their buttons to the
termination slip to indicate the reason therefor. About this
time Valigura, who was in temporary command in the
absence of Prevost, entered the office, conferred privately
with Allison, and then departed with Allison to make
telephone calls to Miami. After the three men had waited
in Allison's office for approximately an hour, Allison
finally returned to his office and ordered the men, "Go
back to work." Charanza inquired, "With everything on?"
Allison answered, "Yeah, with everything on, but don't
keep production down." The men returned to work
wearing their buttons.
Charanza worked until July 20 when Respondent
selected him as 1 of some 20 or 30 employees whom
Respondent laid off for economic reasons. Lonnie Jackson
was also included in this layoff.
According to Respondent's witnesses, these economic
layoffs were determined on the basis of "departmental"
seniority. However Respondent's contract with Local 666
provided for the use of "plant-wide" seniority in such
layoffs.
Respondent's own testimony proved that, under either
type of seniority, Respondent had discriminated against
Charanza. There was one man even on the "step ladder
line" retained with less seniority than Charanza had.
Respondent also retained a rather large number of
employees throughout the plant with less seniority than
Charanza. Charanza has never been recalled to work since
July 20.
Jones who was not included in this layoff has continued
to wear his union button in the plant ever since.
On July 14, following the above episode in Allison's
office, Jo Ann Gilliam, another member of the employees'
S Respondent produced timecards showing that on Friday,
August 12, Gilliam reported for work 5 minutes late and that she
was absent on the morning of Monday , September 12
organizing committee for the Steelworkers, began wearing
her union button at work.
Two or three days before September 22 Gilliam copied
on a sheet of paper all the names of the employees of the
ladder plant from their timecards. Just as she was
finishing this chore, Foreman Shupak and Fritcher walked
up.
On September 22 when Gilliam picked up her
paycheck, she found attached to it the following
mimeographed letter which in pertinent part read as
follows:
Upon reviewing your work, we find it is not up to our
standards. Therefore, unless improvement is shown
in one week, you will be subject to dismissal.
Her work had never been criticized before.
The timecard of Gilliam shows that on September 22
she had clocked into the plant at 7:53 a.m. and was thus 53
minutes late for work. This timecard also indicated that
Gilliam was paid for the full 40-hour week that week .5
Respondent's testimony proved that the only warning
Gilliam was ever given was the warning slip of
September 22. Likewise it was admitted that she was
given no indication that her work was "unsatisfactory"
because of tardiness or absence.
During the following week ending on September 10,
1966, Gilliam's timecard indicates that she was absent the
whole day of Monday and again the whole day of
Wednesday. She had worked a full 8-hour shift on Tuesday
and another full 8-hour shift on Thursday. On Friday
Gilliam worked from the beginning of work at 7 a.m. until
9:17 a.m. when she was terminated, still without being told
that her termination was due to absenteeism and/or
tardiness. In fact Respondent failed to produce any
testimony that Gilliam had not called into the plant on
Monday and again on Wednesday to give notice that she
was going to be absent during the day. Nor did Respondent
produce evidence that these absences were unexcused.
Gilliam has never been reinstated.
B. Conclusions
1. The discharges
Dellaphene Marek, Laura Engleman , and Charles
Carter were admittedly discharged, according to
Respondent, for "Direct Disobedience to Order." The
order disobeyed in each instance was to remove a union
button from the employees' clothing. In the absence of
proof that wearing such union buttons interfered with
production or discipline or tended to litter the premises,
Section 7 of the Act guarantees such use of union insignia
under the circumstances of this case- as Respondent
here ultimately was informed by its own attorneys. Thus
the order disobeyed was illegal under Board and court law.
Hence these three employees were discharged for
engaging in a protected union activity guaranteed to them
by Section 7 of the Act and their discharges, therefore,
violated Section 8(a)(3) and (1) of the Act.
One word need be said regarding the Carter incident. In
his case Respondent contended that the order was
justified as a safety measure because Carter was
employed part time on a hydraulic bending press. If the
Respondent produced testimony that Gilliam had neither called in
nor had been given permission to be late or absent on these
occasions . She received no reprimands or warnings
KELLER ALUMINUM CHAIRS 1015
sign Carter had fashioned for himself had been the large,
flapping 10- by 8-inch sign hanging loosely from Carter's
neck as described by Respondent's witnesses,
Respondent's order for its removal might well have been
justified as a safety measure. However, the evidence here
requires the finding, here made, that the sign was a small
4- by 6-inch sign firmly taped either to Carter's chest or
shirt and hence was no more dangerous than any other
piece of wearing apparel. Futhermore the evidence also
justifies the finding, here made, that at the time the order
was given Carter was working as the off-bearer from the
press so that even the sign as described by Respondent
would not have been dangerous. Hence I must find that
the order was not given to Carter as a safety precaution.
As for Henry Charanza the complaint alleges that he
had been discharged on July 20 and that the Respondent
had since refused to reinstate him because of his union
activities. The admitted facts show that Charanza was
included with 20 to 30 others, including Lonnie Jackson
who was 1 of the 3 including Charanza who had been
previously ordered to remove their union buttons, in an
economic layoff. However, in Charanza's case,
Respondent chose to lay him off, in this instance
admittedly in derogation of his seniority rights, no matter
whether those rights were under the "plantwide" seniority
rights established by the Respondent- Local 666 contract
or under the more restrictive departmental seniority rights
which Respondent claimed it used in making the layoff
selections. Thus it is clear that, unlike the others laid off
on July 20, Respondent was in fact discharging Charanza
at this time by including him on the list contrary to his
seniority rights. At the hearing Respondent maintained
that it elected to retain an employee with lesser seniority
then Charanza at this time in preference to Charanza
because of the employee's alleged "greater versatility."
This contention, being made in regard to admittedly
unskilled jobs, leads to the conclusion that the real reason
for Respondent's deviation from seniority in Charanza's
case was the fact that he also had "disobeyed a direct
order" to remove his union button only 6 days before.
Respondent defends on the ground that the Union had
filed charges of discrimination against Respondent for all
those included in the July 20 layoff but had subsequently
withdrawn that charge with the Regional Director's
permission. Respondent objected to the Charging Party's
refiling the charge on Charanza's behalf in the instant
case. A withdrawal of a charge is not necessarily final. In
this case the Union apparently was satisfied after
investigation that the layoff of July 20 was in fact
economic, which called for the withdrawal of the charge as
to all laid off. However, the discrimination in seniority
applicable exclusively in Charanza's case justified the
refiling of a charge on his behalf. Actually Charanza
himself had vainly attempted to convince Respondent of
this distinction at the time of his layoff. This record
indicates no discrimination in seniority as to any of the
others for whom the original charge was filed. Thus
Charanza's case is unique.
Respondent also points to the fact that the Union filed
no charge on behalf of Lonnie Jackson who was laid off at
the same time. However there is no showing that Jackson
was laid off out of seniority as was Charanza. This
contention lacks merit therefore.
Accordingly, I am convinced and, therefore, must find
that Charanza was discharged on July 20 because of his
known union sympathies and activities in violation of
Section 8(a)(3) and (1) of the Act.
The Gilliam case is only slightly more doubtful. After
Respondent's "mistaken idea" as Prevost put it, that it
had a right to prohibit union buttons on clothing in the
plant had been cleared up finally by its own attorneys,
Gilliam wore her Steelworkers button continuously. Also
to Respondent's knowledge Gilliam had copied the
employees' names from their timecards. One might
surmise that possibly this list was intended for union
purposes. Three days later there was attached to her
paycheck her first and only warning which read as follows:
Upon reviewing your work, we find it is not up to our
standards. Therefore, unless improvement is shown
in one week, you will be subject to dismissal.
One week thereafter, without further explanation, Gilliam
was discharged.
At the hearing Respondent disclosed that its reason for
discharging Gilliam was allegedly because on occasions
she had been tardy or absent from work without having
called in and/or without permission. Respondent called
attention to the fact that on August 12 Gilliam had
reported for work 5 minutes late and had been absent on
the morning of September 12, both times without reporting
in and/or without permission. Gilliam's timecard for the
week ending September 30 disclosed that she had been
absent on Monday and again on Wednesday of that week.
Respondent strangely failed to establish as to these
absences of September 26 and 28 that Gilliam had failed to
notify Respondent and/or did not have permission to be off
as it had done for the other absence and tardiness above
noted.
However, Respondent's own evidence established that
at Respondent's plant it was customary to give at least two
warnings before final discharge. In Gilliam's case, on the
contrary, Respondent gave one warning that her work was
"not up to our standards" without any explanation that
this complaint referred to her tardiness and absence-and
then discharged her without more. I am convinced that the
fortuitous absences of September 26 and 28, whether
excused or not, were merely used by Respondent as a
pretext for discharge and that Respondent actually
discharged Gilliam because of her known union activities
and sympathies, such as openly wearing a union button
contrary to Respondent's desire, in violation of Section
8(a)(3) and (1) of the Act.
2. Interference , restraint , and coercion
On August 8 Respondent posted new "Plant Rules,
Policies, and Procedures" on the bulletin boards at the
chair plant and at some date in October on the bulletin
boards at the ladder plant.
These new rules contained a completely new rule, 17,
which read as follows:
17. Soliciting , without prior permission, in the plant
or on plant time will not be tolerated.
As Respondent ' s counsel candidly conceded at the
hearing this rule 17 is illegally broad both as to time and
place as presently phrased . Based upon both Board and
court decisions , I must , and hereby do, hold that rule 17
interferes with , restrains , and coerces Respondent's
employees in violation of the rights guaranteed them in
Section 7 of the Act and thus violates Section 8 (a)(1) of the
Act.
Nor has this Trial Examiner ever heard a much more
flagrant violation of Section 8(a)(1) than that which
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred on June 24 when Foreman R.J. Smith ,6after first
telling Beth Matcek that she would be fired if she
continued to wear her Steelworkers button, finally told her
that, although Respondent was going to permit her to wear
her union button, she "had better watch herself," that she
"should not do any talking to anybody or roaming around
the plant," that she should go to the restroom only on her
breaks, if possible, and that if she needed a drink of water,
he, the foreman, would get it for her. These new stringent
rules applicable to Matcek alone were definitely in
retaliation for the fact that Matcek had displeased
Respondent by wearing her Steelworkers button and in an
effort to force her to abandon her right to wear that button
in the plant . As such, Respondent's action against Matcek
violated 8(a)(1). I so find.
On July 5, Manager Turner posted on Respondent's
bulletin board a copy of the letter addressed to Matcek
from Seymour A. Gopman, attorney for Local 666,
answering Matcek's request to Respondent that
Respondent cease checking off her dues to Local 666
because of the holding of Trial Examiner Boyls in the
previous case. Matcek requested that Turner remove that
copy of the letter containing her name from the bulletin
board as it was embarrassing to her. Turner refused to do
so as he had been ordered to post that copy by his
superiors in Miami. When Matcek inquired why the copy
addressed to her had to be the copy posted, Turner
answered, "Well, you are the only one of the committee
left in theplant that has written a letter."
There can be no doubt from Turner's remark that
Respondent's purpose in posting the copy of the letter
addressed to Matcek was that of interfering with,
restraining , and coercing its employees in regard to their
union activities by proving to them how those who opposed
Respondent's desires in that matter could be publicly
embarrassed and humiliated by Respondent, even short of
discharge. I find this to constitute another violation of
Section 8(a)(1) of the Act.
Further I find that Respondent's refusal to accede to
Matcek's request that Respondent cease checking off
money from her paycheck as dues to Local 666 under the
illegal contract between Respondent and Local 666 also
constituted coercion as to an illegal condition of
employment and thus a violation of Section 8(a)(1) of the
Act .7
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 the Respondent's
operations 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 commerce.
V. THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices , I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
" Smith was not called as a witness.
This same finding is applicable to all others who wrote
Respondent making a request similar to that made in Matcek's
It having been found that Respondent discriminated in
regard to the hire and tenure of employment of Dellaphene
Marek, Laura Engleman, Charles Carter, Henry F.
Charanza, and Jo Ann Gilliam by discharging them, I shall
recommend that Respondent offer each of them
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make each of
them whole for any loss of pay he may have suffered by
reason of said discrimination against him by payment to
him of a sum of money equal to that which he would have
earned as wages from the date of the discrimination
against him to the date of his reinstatement, less his net
earnings during such period, in accordance with the
formula set forth in F.W. Woolworth Company,90 NLRB
289, with interest thereon at 6 percent per annum.
In addition, I shall recommend that Respondent
reimburse Beth Matcek and all others in a similar position
for the amount of dues Respondent checked off to Local
666 from each as an illegal term or condition of
employment together with interest thereon at the rate of 6
percent per annum.8
Because of the numerous types of unfair labor practices
engaged in by Respondent, I see an opposition by
Respondent to the policies of the Act in general.
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of
employment of Dellaphene Marek, Laura Engleman,
Charles Carter, Henry F. Charanza, and Jo Ann Gilliam in
order to discourage membership and activities of its
employees in the United Steelworkers Union of America,
AFL-CIO, and to prevent its employees from exercising
the rights guaranteed to them in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
2. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed them in
Section 7 of the Act by various and sundry means,
Respondent has violated Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce 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 the entire record in this case, I
recommend that Respondent, Keller Aluminum Chairs
Southern, Inc., Keller Ladders Southern, Inc., both
subsidiaries of Keller Industries, Inc., Caldwell, Texas,
and Miami, Florida, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership or activities of its
employees in United Steelworkers of America, AFL-CIO,
by threatening or actually discriminating in regard to the
hire and tenure of any of its employees by discharging
them or by discriminating in any other manner in regard to
any term or condition of their employment in order to
discourage union membership or activities therein or
concerted activities.
letter.
9 Bedford Can Manufacturing Corp., 162 NLRB 1428.
KELLER ALUMINUM CHAIRS
(b) Discouraging union membership or activities in
United Steelworkers of America, AFL-CIO, or any other
labor organization, by publishing and enforcing an illegal
"no-solicitation rule" or imposing more severe working
rules.
(c) Discouraging union membership or activities of its
employees in United Steelworkers of America, AFL-CIO,
or any other labor organization, by holding its employees
engaged therein up to ridicule or embarrassment among
its euipioyees.
(d) Interfering with, restraining, or coercing its
employees in any way in order to discourage union
membership or activities on behalf of the United
Steelworkers of America, AFL-CIO, or any other labor
organization among its employees.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer to Dellaphene Marek, Laura Engleman,
Charles Carter, Henry F. Charanza, and Jo Ann Gilliam,
and each of them, immediate and full reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make each whole in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Notify any of the above-named employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Reimburse Beth Matcek, and all others similarly
situated, in the amount of money illegally exacted from her
as dues under the terms of the illegal collective-bargaining
agreement with Local 666 with interest thereon at 6
percent per annum.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plants in Caldwell, Texas, copies of the
attached notice marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director for
Region 23, 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 notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.10
I FURTHER RECOMMEND that, unless within 20 days from
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision 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 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 Respondent has taken to comply herewith "
1017
the date of the receipt of this Decision, Respondent has
notified the said Regional Director that it will comply with
the foregoing Recommended Order, the Board issue an
order directing Respondent to take the aforesaid action.
APPENDIX A
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discharge, or threaten to discharge,
or otherwise discriminate against employees in order
to discourage membership in or support of United
Steelworkers of America, AFL-CIO.
WE hereby cancel our illegal "no-solicitation" rule
(rule 17).
WE WILL NOT seek to embarrass any of our
employees because they are members of United
Steelworkers of America, AFL-CIO, or because of
their activities on behalf of that organization.
WE WILL NOT make our working conditions more
severe or restrictive for the purpose of discouraging
membership and activities on behalf of United
Steelworkers of America, AFL-CIO, or any other
labor organization.
WE WILL permit employees to wear in the plant
union insignia for United Steelworkers of America,
AFL-CIO, or any other labor organization.
WE WILL offer each of the following named
employees immediate and full reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority or other rights and
privileges, and make each of them whole for any loss
of pay he may have suffered by reason of
discrimination practiced against him together with
interest thereon at 6 percent per annum : Dellaphene
Marek, Laura Engleman, Charles Carter, Henry F.
Charanza, and Jo Ann Gilliam.
WE WILL reimburse Beth Matcek, and all others
similarly situated, for all moneys illegally exacted
from her as dues under our illegal contract with Local
666 together with interest thereon at 6 percent per
annum.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization , to form labor
organizations, to join or assist United Steelworkers of
America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of
their own choosing, and 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.
KELLER ALUMINUM CHAIRS
SOUTHERN , INC., A
SUBSIDIARY OF KELLER
INDUSTRIES, INC.
(Employer)
Dated By
(Representative ) (Title)
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KELLER LADDERS States of their right to full reinstatement upon application
SOUTHERN , INC., A in accordance with the Selective Service Act and the
SUBSIDIARY OF KELLER Universal Military Training and Service Act, as amended,
INDUSTRIES , INC. after discharge from the Armed Forces.
(Employer) This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
Dated By or covered by any other material.
(Representative ) (Title) If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Note: We will notify any of the above-named employees Office Building, 515 Rusk Avenue, Houston , Texas 77002,
if presently serving in the Armed Forces of the United Telephone 228-0611.