Lou Taylor, Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1961

134 N.L.R.B. 890 (N.L.R.B. 1961)

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore , while this incident can be construed as restraint and coercion of
Sims, it does not come within the purview of Section 8(b)(1)(A). There is no
evidence that the incident restrained or coerced "employees in the exercise of the
rights guaranteed in section 7" of the Act.
Conclusions
The picketing began on November 22, 1960, and was continuing at the close of
the hearing on April 5, 1961. During this period of over 4 months the isolated and
negligible incidents complained of, and found to be violations , occurred in the
periods from November 16 to 30, 1960 , and January 17 to 19, 1961 . The record
contains no allegations or evidence of other unlawful activity by Respondent.
Conduct of a much graver nature, than any here involved , has been found by
the Board not to deprive strikers of the protections of the Act. Stewart Hog Ring
Company, Inc., 131 NLRB 310.
"Basic to the right guaranteed to employees in Section 7 [of the Wagner Act
which has not been amended] to form , join or assist labor organizations, is the
right to engage in concerted activities to persuade other employees to join for their
mutual aid and protection . the Taft-Hartley Act [amending the Wagner Act]
added another right of employees also guaranteed protection , namely, the right to
refrain from joining a union [ Section 8(b)(1)(A)I . Thus tensions exist
between the two rights of employees protected by Section 7-their right to form,
join or assist labor organizations , and their right to refrain from doing so. Thus
tension is necessarily quite real when a union employs economic weapons to or-
ganize employees who do not want to join the union." Curtis case 362 U.S. 274,
at pages 279-280.18 Therefore, it follows that conduct of a nature and degree which
does not deprive strikers of their rights to protections of the Act when Section
8(a) (1) is at issue should not be held to be illegal when Section 8('b) (1) (A) is at
issue. Otherwise, the rights guaranteed by Section 7 of the Act would be disparately
protected and enforced ; a result which the Curtis case, by dicta, holds untenable.19
While some of*the incidents set forth , above, have been found to be violations
in a semantical sense, I find that they are too insignificant to warrant a cease-and-
desist order; and no useful purpose would be served by the issuance of such an
order in this case. International Ladies Garment Workers Union , AFL-CIO (Twin-
Kee Manufacturing Co., Inc.), 130 NLRB 614.20
[Recommendations omitted from publication.]
"The Curtis case sets forth the legislative history of Section 8 ( b) (1) (A) and compels
"caution against finding in the nonspecific , indeed vague , words 'restrain and coerce'"
19 See the Curtis case , 362 U S 274 , for legislative history, congressional intent, and
scope of Section 8(b)(1)(A).
20 The conclusion would be the same even if General Counsel had proven every incident
that he proffered.
Lou Taylor, Inc. and Seymour Soskel . Case No. 12-CA-1940.
December 1, 1961
DECISION AND ORDER
On September 12, 1961, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Respondent filed a brief in
support of the Intermediate Report.
134 NLRB No. 103.
LOU TAYLOR, INC. 891
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 briefs, and the entire record in this
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
' Pursuant to Section 3(b) of the Act , the Board has delegated its powers in connection
with this case to a three -member panel [ Members Rodgers , Fanning, and Brown]
2 We find no merit in the General Counsel 's contention that the Trial Examiner's
credibility rulings are erroneous and should be overruled As the clear preponderance of
all the relevant evidence does not demonstrate that the credibility findings are incorrect,
we hereby adopt them Standard Dry Wall Products , Inc, 91 NLRB 544 , enfd. 188 F.
2d 362 (CA 3).
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard in Miami Beach , Florida,
on July 25 and 26, 1961, pursuant to due notice . The second amended complaint,
issued on July 18, 1961, by the General Counsel and based on a charge duly filed and
served, alleged in substance that Respondent had engaged in unfair labor practices
proscribed by Section 8 (a) (3) and (1) of the Act, by discharging Seymour Soskel
on March 24, 1961, because of his membership in and/or activities on behalf of
International Leather Goods, Plastics and Novelty Workers' Union , AFL-CIO, and
its affiliated Local Union No. 92 (herein called the Union), and/or because he
exercised his rights guaranteed by Section 7 of the Act. Respondent answered on
July 24, denying the unfair labor practices.
The sole issue on the merits of the case as the evidence was developed was whether
Soskel was discharged because he posted on the bulletin board a notice to the em-
ployees concerning his election as steward or shop chairman of the Union or whether
he was discharged , pursuant to an earlier decision , because of incompetence and the
slowness of business.
Upon the entire record in the case ,' and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS; THE LABOR ORGANIZATION INVOLVED
I find on facts alleged in the complaint and admitted by answer that Respondent,
a Florida corporation , engaged at Hialeah in the manufacture , sale, and distribution
of ladies ' handbags and related products , is engaged in interstate commerce within the
meaning of the Act (by reason of direct inflow from extrastate points of materials
valued in excess of $50,000 annually and direct shipments to extrastate points of
manufactured products valued in excess of $50,000 annually ), and that the Union
is a labor organization within the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background
Though Respondent was a new organization and was operating a new business, it
was one in which its officials ( Lou Taylor , president ; Sam Edelson , vice president;
Harry Brown , plant manager; Sam Rudenstein , foreman ; and Meyer Lemo , shipping
manager ) were fully experienced through prior association with Eli Rosenberg
Originals and other manufacturers in the same business. So, too , were Respondent's
officers fully acquainted with International and local representatives of the Union and
fully aware of the Union 's efforts toward organizing the entire industry in the Miami
area. Indeed , it was the Respondent 's recognition of the Union and bargaining with
i The General Counsel's motion to correct the transcript is hereby granted , absent
objection
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it to a collective-bargaining agreement; without benefit of majority representation
among Respondent's employees, which led to the issuance by the General Counsel
of a complaint against both Respondent and the Union in Cases Nos. 12-CA-1964
and 12-CB-531, which were originally consolidated with the present complaint, but
which were settled on July 18, 1961, and severed from this proceeding.
It is also pertinent to note that the relations between union and company rep-
resentatives were on a personal and friendly basis.
B. The discharge
Though the evidence is in conflict on minor points, the facts of most significance
to Soskel's discharge are not greatly in dispute.
Soskel was hired as shipping clerk on November 29, 1960, and made a good im-
pression at first because of his background, his education (partly in business admin-
istration and labor relations), and his apparent ability. Early in January 1961,
Angelo Lapadula (Angel) was hired to assist, under Soskel's direction. Around
February 3, Taylor hired Meyer Lemo and informed Soskel that Lemo was being
placed in charge of the department, that Taylor had known Lemo at Rosenberg's,
and that Lemo knew how Taylor wanted the department run. Taylor added that
there was enough work for three men
What Taylor did not tell Soskel, however, was that he and Edelson had already
decided to discharge Soskel because of incompetence in the performance of his duties.
In fact, Edelson had directed the issuance of a severance check on February 3,
but upon learning that Soskel had just assumed the support of additional dependents,
had decided to retain Soskel and directed the voiding of the check.2
On February 22, company and union representatives completed their negotiation of
a contract, which by its terms was to become effective on May 29. Peter G. Sosa,
International representative of the Union, suggested at the time that if the Company
had anyone in its employ who was unsatisfactory and whom it wanted to get rid of,
it inform him so that the Union "could cope with the problem " Sosa testified that
Brown expressed satisfaction with the crew 3 Taylor suggested that Vivian Lloyd
(whom Taylor had also known at Rosenberg's) be elected shop chairlady at the
meeting of employees which the Union was calling for February 24 for the purpose
of ratifying the contract, but Sosa stated that that would be up to those who attended
the meeting.
Soskel was elected shop chairman at the meeting, Al Betancourt elected assistant
shop chairman, and a shop committee was chosen. Sosa testified that when he
informed Respondent of the results on February 27, Taylor (or Edelson) stated that
Soskel's election would "create a problem" 4 as the Company intended to discharge
Soskel because he was not capable of doing his work properly. Upon Sosa's
remonstrance that the Company should have informed him before the election,
Taylor explained that the Company had not considered the matter important and
that it had kept Soskel on only because he had assumed additional family burdens
and needed the income.
Sosa argued further that it would make for bad relations with the employees to
discharge the shop chairman and suggested both the possibility of arbitration (a
questionable alternative since the contract was not to take effect until May 29) and
that the matter be brought up before the newly elected committee. Taylor rejected
the latter suggestion with some comment that he did not want a revolution. There
the matter stood, without Respondent indicating when it proposed to terminate
Soskel, though it was agreed that the Company would try to work out the problem.
2 The General Counsel ' s attack on the bona fides of Respondent ' s evidence to the fore-
going effect is based on the merest suspicion Not only was the testimony of Edelson,
Taylor , and Alice Linder ( the bookkeeper ) mutually corroborative , but documentary evi-
dence in the form of the voided check and Soskel ' s new withholding exemption certificate
lent further confirmation Linder ' s disposition to exaggerate the extent of Soskel's errors
was offset by Soskel ' s own attempts to minimize them and to cast the blame on others
In any event , it is not essential to determine the exact extent of Soskel's errors ; what is
material is that Linder repeatedly complained to Edelson about them and that Respondent
acted upon her complaints at a time when there was no hint of union or concerted activities.
3 Though Soskel testified that Taylor made a similar statement on February 27 during a
meeting with employee committee members , that was after Taylor had informed Sosa
privately that it intended to discharge Soskel because of incompetence See next para-
graph, -infre 1
4 Though Sosa testified on rebuttal that Taylor said there would be "some trouble,"
Taylor denied using that language I accept Sosa 's original version , with which Taylor's
testimony was in substantial accord.
LOU TAYLOR, INC. 893
- Though Sosa informed Betancourt, the assistant shop chairman, of Respondent's
intention to discharge Soskel and of its reason's Soskel himself was left in the dark.
No reference was made to Soskel's status in the meeting with the employee
committee which followed immediately. After negotiating for the inclusion of a
10-minute break period, pursuant to the conditional ratification of the contract at
the employee meeting on February 24, the committee signed the contract as previously
negotiated by Sosa.
By Soskel's admission, nothing of consequence happened thereafter until March
22. Though Soskel spent some time on February 27 copying payroll data from
the timecards and though he informed Foreman Rudenstein, on the latter's inquiry,
that he was engaged in "Union business," Respondent expressed no objection to
Soskel's activity.
Soskel testified that on Mardi 22, after obtaining permission from Brown, he
posted on the bulletin board a notice to the employees, composed in Spanish, in
which (in profuse language) he thanked the employees for electing him as their
"delegate," promised to represent them impartially to the best of his ability, and sug-
gested that they bring to him (for discussion with the employee committee and with
management ) any complaints concerning wages, working conditions , relations with
foremen, etc. The notice concluded with the fervent hope that "with your faith
and trust, with the help of God and with the cooperation of management, we can
make of Lou Taylor, Inc, a company of more profits, and a happy and richer
organized group of employees."
Either on that day or the next, Taylor saw the notice and had one of the em-
ployees to translate it for him. Though saying nothing, Taylor indicated disap-
proval. He also informed Soskel loudly, that he should not post anything of that
kind without Taylor's permission. When Soskel explained that Brown had given
permission, Taylor nevertheless remarked that he did not want employees standing
around looking at the union notice.
On March 23, having received word to call the Company, Sosa went there and
talked with Taylor, Edelson, and Brown. Though Taylor admitted that Brown had
given permission, he complained that Soskel's posting of the notice was creating a
problem as it was done without Sosa's knowledge. Sosa agreed that Soskel was
"stupid" or "an idiot" not to have checked first with him. Taylor again informed
Sosa that the Company was going to fire-Soskel because he was not capable of
doing his work, but made a further comment that Castro had freed the Cubans
in Cuba and that Soskel was trying to liberate them in the United States.5 Sosa
renewed the arguments he had made on February 27 and either in that or some
other conversation stated that if the Company wanted to let Soskel go, "you let
him go, but I won't."
At quitting time on Friday, the 24th, Brown notified Soskel he was being dis-
charged because things were slow, and paid him off. Soskel got in touch with
Sosa and they returned to the plant on Monday to see Taylor, but were referred
instead to Brown.
Soskel testified that Sosa asked Brown whether Soskel was discharged because
of the notice and whether the discharge was permanent or temporary. Brown re-
plied that the discharge was permanent and that it was not because of the notice.
Sosa asked why Soskel was discharged out of seniority and Brown stated that
Lemo had been hired to replace Soskel and stated again (as he had on Friday)
that Soskel was terminated because work was slow. Soskel complained that his
notice had been taken down and Brown stated that it had been posted long enough.
Soskel admitted that he did not question Brown's statement that Lemo had been
hired to replace him (presumably because Taylor had told him on February 3
that Lemo was taking over the shipping department which Soskel formerly
directed).
Sosa denied, as did Brown, his alleged inquiry whether the notice had anything
to do with the discharge, but when called on rebuttal, he corroborated Soskel's
testimony, over Brown's denials, concerning the removal of the notice from the
board. Although I credit Soskel's version of the interview with Brown, I do not
credit his testimony elsewhere that the notice was removed before his discharge
on Friday. Brown's testimony that it remained until after Soskel's discharge was
corroborated by Daniel Mursuli, a witness for the General Counsel, who testified
that the notice was on the board for about a week. Brown also testified that, while
he and Sosa were out of Soskel's presence, Sosa expressed relief that Brown had
r I credit Sosa 's testimony as summarized above over Taylor's less credible version, par-
ticularly since Respondent offered no corroboration through Edelson or Brown.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not given him away by mentioning Sosa's prior knowledge of the Company's in-
tention to discharge Soskel. I credit that testimony over Sosa 's denials.
Disposing finally of the notice , Brown testified that he directed Foreman Ruden-
stein to remove it because there was no point in it being posted after Soskel's dis-
charge. Taylor denied that he discussed the notice with anyone after Sosa's visit
on the 23d , and there was no evidence that he had any hand in directing its re-
moval from the board.
We revert briefly to Respondent 's evidence concerning the steps which led to
Soskel 's discharge . Taylor testified ( and was corroborated by Lemo ) that he
checked with Lemo from time to time prior to March 20 , and that Lemo sug-
gested on each occasion that Soskel was needed for a while longer. Taylor and
Edelson testified that finally on March 20, they discussed again the Soskel question
and decided , because business was slackening off, to discharge Soskel as of the
end of the week . Again , as on February 3, no notice was given to Soskel that
he was to be released, but it was not company policy to give notice of discharge.
The handling of the discharge was left in Edelson 's hands, and he and Taylor did
not discuss the matter again.
On Friday , Edelson directed Brown to deliver Soskel's severance check and to
inform him he was not needed further. Though Edelson denied that he instructed
Brown to inform Soskel that he was being let go because business was slow, Brown
testified that was the reason which he gave Soskel.
Respondent 's evidence showed that, as normal in the industry , its peak season
lasted until shortly before Easter , when both its sales and its payments for over-
time work declined sharply , as shown by the following tabulations for various
weeks in March and April:
Weekly
sales
Overtime
payments
Week ending-
March 3----------------------------------------------------------- $18, 023 $1,040
March 10-------- -------------------------------------------------- 23,018 1,121
March 17------- -------- ------ --------------------------- 25,179 1,009
March 24---------------------------------------------------------- 20,018 --------------
Marsh 31---------------------------------------------------------- 11, 933 76
April 7 ------------------------------------------------------ --- -------------- 6107
Concluding Findings
Despite the fact that Sosa 's testimony squared with Respondent 's evidence that
the Union was fully informed on February 27 of Respondent' s intention to dis-
charge Soskel, of its reasons for doing so, and of its reasons for keeping him on
temporarily , the further Sosa-Soskel testimony concerning Respondent's reaction to
the posting of the notice, if considered alone and without explanation on Respond-
ent's part, would support the inference that Respondent acted when it did because
of Soskel's notice thanking the employees for electing him shop chairman and
soliciting the submission of grievances.? The entire circumstances , however, con-
cerning the relations between Union and Company would preclude a finding that
the discharge was made to discourage membership in the Union, as alleged in the
complaint . Indeed, the General Counsel's theory that Respondent was acting
"through the convenient device of an unlawfully assisted union" to suppress em-
ployee rights is incompatible with any view that Respondent intended discourage-
ment of the Union.
8 The evidence did not include overtime payments for the week ending March 24, nor
sales subsequent to March 31 . No overtime payments were made after April 7.
7 Though Soskel testified he posted the notice in part because the contract provisions
were not "up to par," the notice contained no such suggestion , and there was no evidence
that Soskel had spoken out against the contract either in the February 24 meeting of
employees or in the committee meeting with management on February 27. Indeed, there
was no substantial evidence of conduct which would support the General Counsel 's theory
that Soskel had made himself such a thorn in the flesh that Respondent discharged him to
"suppress employee rights by eliminating an effective spokesman for the employees."
TEAMSTERS, CHAUFFEURS, ETC., LOCAL 901 895
At best then , standing alone, the General Counsel 's evidence would make out
a prima facie case that the discharge , made because of Soskel 's engagement in pro-
tected concerted activities , was violative , not of Section 8(a)(3), but of Section
8(a) (1), because it was reasonably calculated to interfere with , restrain, and coerce
employees in the exercise of rights guaranteed by Section 7 of the Act.
Respondent 's evidence overcame that prima facie showing, establishing by a
clear preponderance that it discharged Soskel, pursuant to a decision long since
arrived at , because of his incompetence , and at a time when the anticipated seasonal
slack had materialized . As found above (footnote 2), not only were the General
Counsel's attacks on the bona fides of Respondent's evidence based only on suspi-
cion , but Sosa's testimony itself went far to underwrite the genuineness of Respond-
ent's claims.
When Respondent's evidence was concluded, only the timing of the discharge
and Taylor's remark about Soskel freeing the Cubans remained as suspicious cir-
cumstances suggestive of unlawful intent. But aside from the fact that suspicion is
not proof and that the General Counsel must prevail by a preponderance of the
evidence on the record as a whole, Respondent's evidence largely refuted the suspi-
cious force of those circumstances. Thus Respondent's officers had decided on
March 20 that the time had come to separate Soskel. Though Sosa was called in
after Soskel posted his notice , Sosa was again informed that Soskel was to be dis-
charged, and for the same reasons which Sosa had known of since February 27.
I therefore conclude and find that the General Counsel failed to establish by a
preponderance of the entire evidence that Respondent's discharge of Soskel was
an unfair labor practice under either Section 8 (a)(1) or (3).
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSION OF LAW
Respondent has not engaged in unfair labor practices as alleged in the complaint.
[Recommendations omitted from publication.]
Teamsters, Chauffeurs , Warehousemen & Helpers , Local 901,
IBTCW & H of America and Editorial "El Impartial," Inc.
Case No. 24-CC-67. December 1, 1961
DECISION AND ORDER
On March 22, 1961, Trial Examiner A. Norman Somers issued
his Intermediate Report 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 Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in and was not engaging in certain other
unfair labor practices and recommended that those allegations of the
complaint be dismissed. Thereafter the General Counsel and the
Respondent filed exceptions to the Intermediate Report and briefs in
support thereof.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
134 NLRB No. 83.