Mercury Die Cutting Co.

National Labor Relations Board - Board Decisions

Feb 13, 1961

130 N.L.R.B. 204 (N.L.R.B. 1961)

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation of Section 8( a)(3) of the Act as aforedescribed , the Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1)
and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Leo Fenster, doing business as Mercury Die Cutting Company
and Robert Johnson. Case No. 2-CA-7517. February 13, 1961
DECISION AND ORDER
On November 9, 1960, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that he cease and desist
therefrom and take affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
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 the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Leo Fenster,
doing business as Mercury Die Cutting Company, his officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Truck Drivers' Local Union No.
807, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization, by dis-
criminatorily discharging any of his employees because of their union
membership or activities, or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or condition
of employment.
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their right to self-organization, to
form, join, or assist Truck Drivers' Local Union No. 807, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to bargain col-
130 NLRB No. 20.
MERCURY DIE CUTTING COMPANY 205
lectively 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, and to refrain from any or all of
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959,
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Robert Johnson for any loss of earnings he may
have suffered by reason of the Respondent's discrimination against
him, in the manner and to the extent set forth in "The Remedy" sec-
tion of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity 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.
(c) Post at his place of business in the city and State of New York,
copies of the notice attached hereto marked "Appendix." 1 Copies of
said notice, to be furnished by the Regional Director for the Second
Region , shall, after being duly signed by the Respondent or his repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by him for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall he substituted far the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify my employees that :
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL NOT discourage membership in Truck Drivers' Local'
Union No. 807, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or in any other
labor organization, by discriminatorily discharging employees,
or by discriminating in any other manner against my employees
in regard to their hire or tenure of employment or any term or
condition of employment.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their right to self-
organization, to form, join, or assist the above-named or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining, or other
mutual aid or protection, and to refrain from any or all of such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
I WILL make Robert Johnson whole for any loss of earnings
suffered by him as a result of discrimination, to the extent and in
the manner recommended by the Trial Examiner in his Inter-
mediate Report.
All my employees are free to become or remain members of the
above named Union, or any other labor organization. I will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in, or activity on behalf of, any such labor organization.
LEO FENSTER, DOING BUSINESS AS
MERCURY DIE CUTTING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Robert Johnson on August 9, 1960, and duly served by
registered mail on August 10, 1960, upon the Respondent , Mercury Die Cutting
Company, the General Counsel issued a complaint on September 20, 1960, alleging
that the Respondent , Leo Fenster , doing business as Mercury Die Cutting Company,
committed unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and ( 3) and Section 2(6) and ( 7) of the National Labor Relations Act,
as amended (29 U.S C , Sec. 151) The complaint specifically alleges that (a) in
violation of Section 8 ( a)(1) of the Act , the Respondent interrogated his employee,
Robert Johnson , on or about August 8, 1960, concerning his membership in and
MERCURY DIE CUTTING COMPANY 207
activities on behalf of Truck Drivers' Local Union No. 807, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein
called Local 807, and urged and directed Johnson to resign from Local 807 and "to
join another labor organization"; and (b) in violation of Section 8(a)(3) and (1)
of the Act, the Respondent discharged his employee, Robert Johnson, on or about
August 8, 1960, and failed to reinstate him until August 17, 1960, because Johnson
joined Local 807 and refused to join the other labor organization which the Re-
spondent directed him to join.
The complaint, together with a notice of hearing, was duly served upon the
Respondent by registered mail on September 20, 1960. The notice of hearing stated
that a hearing would be conducted before a duly designated Trial Examiner of the
Board at the Board's hearing room on the fifth floor, 745 Fifth Avenue, New York,
New York, at 9:30 a.m. on October 24, 1960.
On September 28, 1960, the Respondent, Leo Fenster, filed an "Answer of Re-
spondent Company," in which he denies the allegations of the complaint with respect
to the asserted unfair labor practices. However, the answer makes no reference to,
and must therefore be deemed to admit, the allegations of the complaint' as to the
nature of the Respondent's business, the value of its shipments in interstate com-
merce, and Local 807's status as a labor organization within the meaning of the Act.
On October 18, 1960, the General Counsel forwarded to the Respondent, by
registered mail in an envelope bearing the return address of the Board's Regional
Office, a notice of the General Counsel's intention to move for the amendment of
the complaint at the hearing on October 24, 1960, by adding a new subparagraph to
the complaint alleging that the Respondent had further violated Section 8(a)(1)
of the Act by promising benefits to Robert Johnson if he refrained from joining,
assisting, supporting, or remaining a member of Local 807. Thereafter, the envelope
with its enclosure was returned with the notation "Refused, Oct. 19, 1960."
A hearing was held before me, the Trial Examiner duly designated by the Chief
Trial Examiner, at the Board's hearing room in New York City, at 9:30 am. on
October 24, 1960, the place and time set in the notice of hearing served upon the
Respondent and also referred to in the General Counsel's notice of intention to move
for an amendment of the complaint. Although the Respondent had been served
with these papers and had filed its answer to the complaint, he did not appear at the
hearing either personally or by counsel or agent. On the General Counsel's motion,
I proceeded with the hearing, granted the General Counsel's motion to amend the
complaint in accordance with his previously served notice of intention, and took
the testimony of witnesses produced by the General Counsel in support of the
complaint as amended. At the close of the hearing, the General Counsel submitted
a short oral argument and waived the filing of a brief.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Leo Fenster, doing business as Mercury Die Cutting Company,
is engaged in the city and State of New York in the manufacture, sale, and distribu-
tion of die cuts for ladies' handbags, and novelty kits and related products. In the
year preceding the issuance of the complaint, the Respondent manufactured, sold,
and distributed products of a value of more than $250,000. During .the same year,
he shipped products of a value of more than $50,000 from his place of business in
New York State to points in other States of the United States. I find that the
Respondent is engaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction in the case.
H. THE LABOR ORGANIZATION INVOLVED
Truck Drivers' Local Union No. 807, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organ-
ization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES 2
For 41/2 years, Robert Johnson has been the only truckdriver employed by the
Respondent to make deliveries to its customers. During this period, although
1 Section 102 20. Rules and Regulations of the National Labor Relations Board, Series 8.
2 The findings of fact are made upon the testimony of Robert Johnson and two other
witnesses for the General Counsel, the only persons who gave testimony at the hearing.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working for and paid by the Respondent , he has driven a truck rented by the
Respondent from the AA Trucking Company. The Respondent's other 20-odd
employees have been members of Local 107 , International Brotherhood of Pulp,
Sulphite and Paper Mill Workers , herein called Local 107. But Johnson was not
a member of any union , although 12 years earlier he had been a member of Local
807 of the Teamsters.
Johnson 's wages from the Respondent were originally $70 a week . After four
raises-the last one of $5 a week in January 1960-Johnson was being paid $90 a
week , but, although he worked overtime , he received no overtime pay. In February
1960, he asked Robert Sussman , the Respondent's supervisor , for overtime pay.
Sussman complimented Johnson for his work but refused to pay him overtime.
In the third week of July 1960, Johnson telephoned to Organizer Murray of
Local 107 and asked his help in getting overtime. Murray said he would speak to
Supervisor Sussman as to why Johnson did not have "the union card." A few days
later, Johnson heard from Pedro Guzman , Local 107's shop steward for the Re-
spondent's employees, that Murray had seen Sussman and that Sussman had said
he would call AA Trucking Company to find out why Johnson did not have a union
card. Johnson thereupon telephoned Organizer Murray again and told Murray he
worked for the Respondent and not for AA Trucking Company. Murray then said
he would be glad to have Johnson in his union but that he would not support
Johnson's demand for overtime. Murray also suggested that Johnson join a
Teamsters' local.
On August 1, 1960, Johnson visited Secretary-Treasurer Thomas L. Hickey of
Local 807, of which Johnson had once been a member . Johnson explained the
situation to Hickey and applied for reinstatement in Local 807. On the same day,
August 1, Hickey informed the Respondent by letter that its driver was a member
of Local 807 and had authorized it to bargain for him, and that one its business
agents would visit,the Respondent to discuss the matter.
On Thursday, August 4, Johnson received a note at the garage that he was to see
President Roberts of the AA Trucking Company. But Roberts was not there and
Johnson telephoned him the next day, Friday, August 5. Roberts said that he could
not explain over the telephone why he wanted to see Johnson and asked that Johnson
report to him at 6.30 a.m. on Monday, August 8. Roberts, however, did not appear
at the garage by 8:30 a.m. on Monday , August 8, and Johnson then took out the
truck and made the Respondent 's deliveries that day.
When Johnson returned to the Respondent 's shop at 1 p .m. that Monday , August 8,
he was told to see the Respondent , Leo Fenster , in the office . Fenster asked why
Johnson had not consulted the Respondent before joining Local 807 and that the
Respondent 's drivers had always been members of Local 27 of the Teamsters. He
said that he would give Johnson the name of a fellow at Local 27 and that Johnson
should tell this man he had made a mistake and wanted to joint Local 27 and not
Local 807 . Although Fenster asked Johnson 6 or 10 times during this conversation
to join Local 27, Johnson refused , saying that he would stick with Local 807.
Johnson then made his afternoon deliveries for the Respondent . Upon returning
to the Respondent 's shop , he was told by Shipping Clerk Max LeJoe that, on
Supervisor Sussman 's orders, he was to remove all material from the truck , to load
a delivery for only one customer the following day, and to take the truck back to
AA Trucking Company's garage where he was to see AA's President Roberts.
Johnson thereupon went immediately to Sussman and asked whether his orders
to take the truck to AA's garage and to see Roberts meant that he was fired. Suss-
man said , "You see Mr. Roberts." Johnson said , "Well, Mr . Roberts is not my
boss, you are my boss." Sussman replied, "You wanted another boss , you joined
the union. Take the truck to the garage. Mr. Roberts will tell you what to do."
When Johnson took the truck to AA Trucking Company's garage, Roberts was
waiting for him. Roberts said that he was making a change in the trucking and
asked whether Johnson had any papers or personal belongings on the truck.
Johnson said he did not Roberts then said, "Well, you won't be on that truck
tomorrow." When Johnson asked whether the Respondent had requested that he
be told all this, Roberts replied, "No, I'm telling you," and gave no further explana-
tion except that, "I don't want you on that truck."
On the next day, Tuesday, August 9, Johnson filed his charge in the present case.
He collected his pay from the Respondent on the regular payday, Friday, August 12.
On Monday, August 15, a week after he had been removed from his job, Super-
visor Sussman called him on the telephone and asked him to see Fenster the next
morning. When he saw Fenster on Tuesday, August 16, in response to this request,
Fenster said, "Maybe we can straighten this thing out before it goes any further.
I want you to go up to ILocall 107 " Johnson replied that he had already seen
Murray of Local 107 and that Murray, after refusing to help him to get overtime
MERCURY DIE CUTTING COMPANY 209
pay, had suggested that Johnson join a Teamsters' local. Fenster said that Murray
was "only an errand boy" and that Johnson should see a Lou Gordon of Local 107.
Fenster also said he would not sign a contract with Local 807 and asked Johnson
to report back to Fenster after he had seen Gordon.
Following this suggestion the same afternoon, Johnson saw Gordon along with
Murray. Both Gordon and Murray said they would not "have anything to do with"
Johnson's joining Local 107 unless it was agreeable to both Johnson and to Local 807.
Still later that same Tuesday afternoon, August 16, Johnson returned to the
Respondent's shop and was told that Fenster would see him the next day. But, at
Supervisor Sussman's request, he helped load the truck and went back to work,
making his usual deliveries for the Respondent on Wednesday morning, August 17.
After the morning deliveries on Wednesday, August 17, Johnson went into the
office and saw Fenster. Fenster asked about Local 107 and Johnson said he would
stick with Local 807. Fenster said Johnson did not have to belong to a union in
order to get a raise, that he was always fair with his men, and that he would give
Johnson a few hundred dollars and pay him $95 a week plus overtime if he joined
Local 107. But Johnson still said he would stick with Local 807. Fenster asked
whether he would consider any union other than Local 807. Johnson suggested
Local 282 and Fenster said he would check that possibility and see Johnson the next
day.
Johnson has since continued to work for Respondent at $90 a week. Fenster
never spoke to him again about which union, if any, Johnson should or would join.
These are all the relevant facts presented by the evidence. In sum I find that, on
August 8, 1960, Respondent Fenster, having learned that his employee, Robert
Johnson, had joined Local 807, asked Johnson to join Teamsters Local 27 instead;
that when Johnson refused, the Respondent discharged him, attempting to make
it appear that Johnson was actually the employee of AA Trucking Company and
that the AA Trucking Company was responsible for his discharge; that following
Johnson's discharge and his filing of the charge in the present case, Respondent
Fenster attempted to get Johnson to join Local 107, rather than Local 807, as a
condition of his reinstatement; and that, when this failed, the Respondent then tried
to get Johnson to withdraw from Local 807 and to join Local 107, by promising
him several hundred dollars and an increase in his wages. Upon these facts, I
conclude that the Respondent discharged its employee, Robert Johnson, on August
8, 1960, because Johnson had joined Local 807; and that, in doing so, the Respondent
discriminated against Johnson in regard to his hire and tenure of employment,
thereby discouraging membership in Local 807 and committing an unfair labor
practice within the meaning of Section 8(a) (3) of the Act. I further conclude that,
by discriminatorily discharging Johnson, by first asking him why he had not con-
sulted Fenster before joining Local 807 and attempting to force him to join Team-
sters Local 27 or Local 107 rather than Local 807, and by attempting (after his
discharge) to force or induce him to join Local 107 by promising him a cash payment
and a raise in his wages, the Respondent interfered with, restrained, and coerced
Johnson in the exercise of his rights as an employee under Section 7 of the Act, and
thereby committed unfair labor practices within the meaning of Section 8(a)(1)
Of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent set forth in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act, I will recommend that
he cease and desist therefrom and take certain affirmative action in order to effectu-
ate the policies of the Act.
It has been found that the Respondent discriminatorily discharged Robert John-
son on August 8, 1960, and reinstated him on August 17, 1960. I will recommend
that the Respondent make Robert Johnson whole for any loss of pay suffered
by him by reason of the Respondent's discrimination against him, by payment to
him of a sum of money equal to that which he normally would have earned as
wages from August 8, 1960, to August 17, 1960, less his net earnings during said
period.
597254-61-vol 130-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Truck Drivers' Local Union No. 807, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America , is a labor organization
within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Robert
Johnson, thereby discouraging membership in Truck Drivers' Local Union No. 807,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and interfering with, restraining , and coercing Robert Johnson in the
exercise of his rights under Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (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.
[Recommendations omitted from publication.]
Federal Tool Corporation and Textile Workers Union of America,
AFL-CIO. Case No. 13-CA-3510. February 13, 1961
DECISION AND ORDER
On July 28, 1060, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel and the Respondent filed
exceptions to the Intermediate Report and supporting briefs.
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 [Members Rodgers, Jenkins, and Fanning].
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 case,
and hereby adopts the findings,' conclusions, and recommendations of
the Trial Examiner.
i In the absence of exceptions , we adopt pro forma the following findings of the Trial
Examiner • ( a) Respondent violated Section 8 ( a) (2) of the Act by dominating , assisting,
and interfering with the administration of the Committee ; (b) Respondent violated
Section 8 ( a) (1) of the Act by threatening its employees with reprisals for union activities,
including the distribution of union literature during nonworking hours on Respondent's
premises other than work areas, and maintaining in effect a rule against such distribu-
tion, and (c) Respondent violated Section 8(a) (3) of the Act by transferring Boesel to
more arduous work but did not violate that section by transferring Bloodworth to such
work
21n finding that the Respondent unlawfully dominated and interfered with the admin-
istration of the Committee , the Board does not rely upon the Trial Examiner ' s conclusion
that the Respondent ' s power to unseat an employee committee member by terminating lit%
employment necessarily constitutes evidence of such domination and interference
130 NLRB No. 25.