Midwest Timer Service, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1967

163 N.L.R.B. 810 (N.L.R.B. 1967)

810 DECISIONS OF NATIONAL
APPENDIX C
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 discourage membership in Cannery
Workers & Fishermen's Union of San Diego,
AFL-CIO, or any other labor organization by
discriminating as to the hire, tenure, or other terms or
conditions of employment of any of our employees.
WE WILL withdraw and withhold all recognition
from Fishermen's Union Local 33, International
Longshoremen's- and Warehousemen's Union, as the
exclusive representative of our employees, and we
will not enforce the contract entered into with such
Union on June 19, 1965, unless and until such Union is
certified by the National Labor Relations Board as the
exclusive representative of the crewmembers of the
Eastern Pacific.
WE WILL NOT in any like or related manner
interfere with the rights of our employees as
guaranteed by Section 7 of the Act.
WILLIAM A. MAGELLAN,
JOSEPH S. MARTINAC,
FREDERICK T. BOROVICH,
G. E. SKEWIS,
EUGENE DAHOUT, AND
J. M. MARTINAC
SHIPBUILDING
CORPORATION D/B/A
M. V. EASTERN PACIFIC
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone 688-5229.
APPENDIX D
NOTICE TO ALL MEMBERS OF FISHERMEN'S UNION
LOCAL 33, INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION
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 you that:
WE WILL NOT demand or accept recognition from
or contract with William A. Magellan, Joseph S. Mar-
tinac, Frederick T. Borovich, G. E. Skewis, Eugene
Dahout, and J. M. Martinac Shipbuilding Corporation
d/b/a M. V. Eastern Pacific as the representative of
LABOR RELATIONS BOARD
the crewmembers of the vessel Eastern Pacific, nor
will we enforce the contract entered into with
William Magellan, as captain or owner of the Eastern
Pacific on or about June 19, 1965, unless and until we
have been certified by the National Labor Relations
Board as the exclusive representative of such
crewmembers.
FISHERMEN 'S UNION
LOCAL 33, INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN 'S UNION
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone 688-5229.
Midwest Timer Service , Inc. and Thelma L.
Hazlewood . Case 7-CA-5592.
March 31, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 9, 1966, Trial Examiner Max
Rosenberg 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 Respondent's exceptions
and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
163 NLRB No. 111
MIDWEST TIMER SERVICE 811
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Midwest Timer
Service, Inc., Benton Harbor, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner: With all parties
represented, this case was toed in St. Joseph, Michigan,
on September 20, 1966, on an amended complaint of the
General Counsel of the National Labor Relations Board
and the amended answer of Midwest Timer Service, Inc.,
herein called the Respondent.[ The issues posed in the
pleadings are whether Respondent violated Section 8(a)(3)
of the National Labor Relations Act, as amended, by
terminating the employment of Thelma L. Hazlewood, and
whether Respondent independently violated Section
8(a)(1) by certain conduct to be detailed hereinafter. At the
hearing, the General Counsel orally argued his cause.
Briefs have been received from the General Counsel and
the Respondent, which have been duly considered.
Upon the entire record made in this proceeding and my
observation of the witnesses, including their demeanor
while testifying on the stand, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE RESPONDENT'S BUSINESS
Respondent , a corporation duly organized under the
laws of the State of Michigan , maintains an office and
place of business in Benton Harbor, Michigan , where it is
engaged in the manufacture , sale, and distribution of
laundry appliance controls and related products . During
the annual period material herein , and in the course and
conduct of its business operations , Respondent
manufactured , sold, and distributed at its place of
business products valued in excess of $500,000 , of which
products valued in excess of $500,000 were shipped from
said place of business directly to points located outside the
State of Michigan . The complaint alleges, the answer
admits, 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 Papermakers and Paperworkers , AFL-CIO,
herein called the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The complaint alleges that Respondent discharged
Thelma L. Hazlewood on June 3, 1966, because she joined
and assisted the Union, thereby violating Section 8(a)(3) of
the Act. It further alleges that Respondent offended the
provisions of Section 8(a)(1) by promulgating, maintaining,
and enforcing an unlawful no-solicitation rule in the plant;
by threatening an employee with enforcement of that rule
for soliciting fellow employees during nonworking time; by
refusing to process or discuss a grievance during working
time with the union steward, threatening to discharge said
steward for pressing the grievance, and threatening to
refuse to recognize the Union and the aforesaid union
steward; and, by engaging in acts of surveillance of its
employees' union activities and creating the impression of
such surveillance. For its part, Respondent contends that
Hazlewood was discharged solely because of excessive
absenteeism from work. While admitting that it
promulgated a no-solicitation rule which is statutorily
proscribed, Respondent denies that this rule was either
maintained or enforced by it. Finally, Respondent denies
the commission of the other unfair labor practices alleged
in the complaint.
B. The Evidence
In large measure, the facts giving rise to this proceeding
are not in essential dispute and I find them to be as
follows:
Respondent manufactures laundry appliance controls
such as automatic timers at its Benton Harbor plant. Its
products are fabricated on an assembly line basis with
each employee assigned to a particular operation. Thelma
Hazlewood, who had been employed at the plant in 1957
and 1959, was recalled to work by Respondent in
November 1965 and was classified as a component
technician. In this capacity, she performed the task of
setting the steps on the automatic timers. Hazlewood
apparently performed her work well, inasmuch as
Respondent awarded her a merit wage increase on
Jaunary 20, 1966. Pursuant to a Board-conducted election,
the Union was certified as the collective-bargaining
representative of Respondent's employees on March 17,
1966. Hazlewood, who had cast her lot with the Union a
few weeks earlier when she signed a union authorization
card, attended a union meeting on March 17 at which she
was appointed to the Union's bargaining committee and
was designated as a shop steward. By letter dated
March 30, the Union notified Respondent of the names of
the employees who had been elected to office in that
organization, including that of Hazlewood.
The regular hours of work at Respondent's plant
encompasses the period from 7 a.m. to 3:30 p.m. Believing
that it would be more advantageous for the employees if
management reconstituted the workday to run from 6 a.m.
to 2:30 p.m. because they could then utilize their
afternoons to visit the local beaches, Hazlewood spoke to
some of her fellow employees on April 5 concerning this
matter. Following these discussions, she addressed a
petition to James Chapman, Jr., Respondent's plant
manager, requesting the change in hours, and she solicited
the support of her coworkers in this venture. In her
testimony, Hazlewood stated that she solicited this
support only during her coffee and lunch breaks on that
i The original complaint, which issued on August 1, 1966, is
based upon charges which were filed and served on June 13, 1966,
and July 26, 1966, respectively
At the hearing, I granted the General Counsel's motion to
further amend the complaint by the addition of a subparagraph
8(d) which alleges that Respondent, through General Manager
James Chapman, Jr , violated Sec 8(a)(1) by engaging in acts of
surveillance of its employees' union activities, and by creating the
impression of such surveillance
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date, although she confessed that she might have spoken
to one employee about this subject near her work station
during working hours.2 Armed with the petition,
Hazlewood entered Plant Manager Chapman' s office on
company time where she presented him with the petition
and explained in detail the reason for the requested
change in hours. Chapman asked whether she was familiar
with a printed company rule forbidding the solicitation of
signatures without prior permission which was posted on
the plant bulletin board . When Hazlewood expressed
ignorance as to the existence of any such rule, Chapman
proceeded to read it to her . This rule provides:
No solicitation of employees for contributions,
purchases , signatures , etc., will be allowed without
prior consent of management . Infraction of this rule
will be considered grounds for immediate dismissal.3
After quoting the rule to her , Hazlewood testified that
Chapman stated he could discharge Hazlewood for this
infraction but that he would not do so.a Chapman then
went on to explain to her that he was unable to alter the
workday in the manner desired by Hazlewood because, as
Respondent was essentially a service company, it was
obligated to tailor its operational time to meet the
requirements of its customers . Upon receiving this
explanation , Hazlewood returned to her work station.
Based upon the foregoing, I find that Respondent
promulgated the aforementioned no-solicitation rule in
July 1964. I also find that the Respondent threatened to
enforce this rule against Hazlewood by discharging her if
she solicited the signatures of employees without
obtaining prior permission to do so from management. I
further find that the rule, as well as the threat of its
enforcement , was not limited to the solicitation of
employees on company time in work areas.
In Gale Products , Div. of Outboard Marine Corp. 5 the
Board declared that a rule which prohibits solicitation
during nonworking time in either work or nonwork areas is
presumptively invalid absent special circumstances which
would rebut this presumption , such as interference with
production or the creation of disciplinary problems. By its
breadth , Respondent 's rule incurred upon the right of
employees to enlist the collective support of their fellow
employees during nonworking time in both work and
nonwork areas. Respondent 's threat to enforce the rule
2 Employees Lucille Collis , Florence Casey , and Joseph
Hodorowski were summoned by Respondent to testify concerning
this incident Collis recalled that she had a discussion with
Hazlewood concerning a change in worktime on Aprils which
took place "probably at breaktime " Casey stated that her
conversation with Hazlewood on this subject occurred at the
conclusion of a work break and while they were returning to their
stations Hodorowski conceded he never discussed this matter
with Hazlewood . In his testimony , Chapman admitted that he did
not know when Hazlewood obtained the signatures on the petition
at the time he discussed the change of hours with her
3 The parties stipulated that this rule was promulgated by
Respondent in July 1964 and remained posted on the plant
bulletin board since that date.
' Chapman testimonially denied that he threatened Hazlewood
that she could be discharged for soliciting However, it is
undisputed that he read the rule to Hazlewood on this occasion
which contained the threat of dismissal for its violation and
admitted that , when asked by Hazlewood whether she would be
terminated , he replied , " No, not necessarily " Moreover,
Chapman conceded that he reprimanded Hazlewood for her
conduct, as evidenced by a notation which he made on her
personnel card. [ credit Hazlewood 's testimony in this regard
made a similar incursion . No special circumstances were
advanced by Respondent to support the breadth of the
rule. Accordingly , I conclude that, by its promulgation,
coupled with Chapman ' s threat to Hazlewood, the
Respondent thereby promulgated , maintained, and
enforced a broad no -solicitation rule which infringed upon
the rights of employees guaranteed in Section 7 of the Act,
and thereby violated Section 8 (a)(1).
On April 12 , 1966 , while she was at work on the
assembly line, Hazlewood received a visit from former
employee Karen Angele . Angele had previously been
discharged by Respondent for absenteeism and the
purpose of her visit on this date was to enlist the support of
Hazlewood in her capacity as shop steward to process a
grievance which was bottomed on Angele's termination.
According to Hazlewood 's testimony , she proceeded with
Angele to the office of James Chapman , Respondent's
general manager , leaving her work station without
permission from Foreman Theodore Demski about 30
minutes prior to her regular lunch break . Upon arriving in
Chapman 's office, Hazlewood inquired into the reasons for
Angele's termination . Foreman Demski was then
summoned by Chapman. It is Hazlewood 's testimony that,
at this point, Chapman remarked that "he did not
recognize the Union , and he did not recognize me
[Hazlewood ] as a union steward ," and Chapman
instructed her to return to work in 20 seconds on pain of
discharge because she had left her station on the assembly
line where she was needed without Demski's permission.
Hazlewood asked Angele to wait outside the plant until the
lunch break and promised that the grievance would be
pressed with the assistance of Athel Williams , the union
president , at that time.6
Shortly before lunchtime , Williams appeared outside of
Chapman 's office and the two men engaged in preliminary
discussions concerning the Angele matter . Chapman
asked Williams whether the latter desired the presence of
Hazlewood during the discussion of the grievance, and
Williams answered in the affirmative. According to
Williams, Chapman then stated that Hazlewood could be
present if she remained quiet. Williams testimonially
acknowledged that he was in full possession of all the facts
necessary to press Angele's grievance and that he did not
protest the condition which Chapman had imposed.
5 142 NLRB 1246 . See also Stoddard- Quirk Manufacturing Co ,
138 NLRB 615
6 During his cross -examination by the General Counsel,
Chapman testified that, after he instructed Hazlewood to return to
work, Angele voluntarily remained in his office Chapman
inquired whether Angele wished to discuss any matter with him,
and the latter asked for the reason for her discharge Chapman
thereupon explained the reasons At this juncture , the General
Counsel moved to amend his complaint to allege that Respondent
violated Sec . 8(a)(5) of the Act by Chapman 's conduct in this
regard, claiming that his discussion of Angele's termination
bypassed the Union in derogation of its certified bargaining
status. I preliminarily granted this motion and allowed
Respondent to amend its answer accordingly After a
consideration of all the evidence on this issue , I find no merit in
the General Counsel's contention that Chapman illegally refused
to bargain with the Union I am fortified in this conclusion by the
testimony of Union President Williams and Hazlewood that,
shortly after this discussion with Angele, Chapman fully and
completely reviewed the factors prompting Angele 's separation
with Williams and Hazlewood to the latter 's apparent satisfaction
MIDWEST TIMER SERVICE
Williams, Hazlewood, and Angele entered Chapman's
office where they discussed Angele's discharge for 30 to 45
minutes with Chapman and Demski. Despite Williams'
testimony that Chapman had conditioned Hazlewood's
presence upon her remaining silent, Hazlewood conceded
that she did speak up at the meeting to urge Angele's
rehire, explaining that the latter possessed a medical
certificate justifying her absence from work. Chapman
responded to Hazlewood's plea by stating that Respondent
would not reinstate Angele, and the session ended with
apparent agreement of all parties that Angele's
termination was justified.
The testimony of Chapman and Demski is not at war
with that of Hazlewood or Williams concerning the Angele
affair, except in two salient areas. Both men stoutly denied
Hazlewood' s testimonial assertions that, when she first
brought Angele to the office, Chapman remarked that "he
did not recognize the Union" or that "he did not recognize
[Hazlewood] as a union steward," and Chapman denied
that he imposed a condition of silence upon Hazlewood's
participation in Angele's grievance. I credit these denials
because, when viewed against the established record
facts, Hazlewood's and Williams' testimony lacks
plausibility. Thus, Hazlewood admitted that, since the
Union's certification on March 17, 1966, and prior to
April 12, Respondent met with the union representatives
including Hazlewood, and apparently bargained in good
faith with them. Moreover, it is undisputed that Hazlewood
was not only present at the grievance session during the
lunch break on April 12, but, by her own admission, she
entered into discussions concerning the separation of
Angele, and Chapman responded to her questions in this
regard.7 Furthermore, it is uncontroverted that
Respondent continued to recognize and bargain with the
Union, again including Hazlewood, as evidenced by the
negotiating session held on June 2, 1966. In sum, I find
that Chapman did not tell Hazlewood on April 12 that he
declined to recognize the Union as the bargaining agent of
Respondent's employees, or that he would not deal with
Hazlewood as a union steward. I further find that
Chapman did not refuse to discuss the Angele grievance
with Hazlewood.
The complaint alleges that Respondent violated Section
8(a)(1) of the Act when Chapman refused to process
Angele's grievance with Hazlewood during working time,
and by threatening Hazlewood with discharge unless she
immediately returned to her assembly line station. It
seems clear, based on Foreman Demski's undisputed
testimony, that Hazlewood's attendance on the production
line, unless excused, could cause production difficulties,
and I so find. Angele's discharge had occurred sometime
prior to April 12, 1966, and the General Counsel failed to
adduce any evidence in this proceeding which even
remotely suggests that her reinstatement was a matter of
urgency to sustain the integrity of the bargaining unit or to
right a wrong which had suddenly festered. In this
episode, time was not of the essence, but production
requirements were. To be sure, an employer may not
lawfully place an unreasonable impediment on the
' In his testimony, Williams admitted that "it seemed like
[Hazlewood] did say a few words [at the meeting], but I don't
remember what it was. "
9 See Russell Packing Company and Peerless Packing
Company, 133 NLRB 194, 196, Doyle W Terry dlbla Terry
Poultry Company, et at, 109 NLRB 1097,1098
1 Demski corroborated Hazlewood's testimony when he
813
processing of employee grievances by a duly designated
bargaining representative in order to destroy the efficacy
of collective representation. And, I am mindful that one of
the rewards of such representation is the assurance
afforded to employees that they may effectively reach the
ear of their employer when crises of employment, no
matter how large or small, befall them. But management
should not be condemned for imposing reasonable
restraints upon its communication with a bargaining agent
concerning terms and conditions of employment where the
area of controversy can readily be explored and resolved
during periods which do not inconvenience either party.'
Thelma Hazlewood, apparently through inexperience or
zeal as a union steward, chose to leave her work station on
the assembly line to press the cause of a former employee,
without obtaining the permission of her foreman so that
her place might be taken by another to insure the
continuity of production. On this record, I am convinced
that Angele's grievance could have awaited another 30
minutes for processing, and I conclude that Chapman's
directive that Hazlewood return to her job on pain of
discharge was, under the circumstances, a reasonable
exercise of Chapman' s managerial prerogative to secure
the uninterrupted flow of production and was statutorily
privileged. Neither Chapman nor Demski refused to
consider the discharge of Angele during the lunch break,
and, in fact, the matter was fully discussed and amicably
resolved during that period. Accordingly, I conclude that
Respondent did not unlawfully refuse to process or discuss
a grievance during working time with Union Steward
Hazlewood, and did not illegally threaten her with
discharge if she failed to return immediately to work.
Accordingly I conclude that Respondent made no
transgressions into the province of Section 8(a)(1) in its
relations with Hazlewood when she acted in her capacity
as a union steward.
Events in this litigation abided until May 16, 1966. On
that date, Hazlewood suffered from a deep chest cold
which prompted her to call upon her doctor. The physician
instructed Hazlewood to report to his office for daily
injections to alleviate the condition. Hazlewood testified
without contradiction and I find that she telephoned
Foreman Demski to advise him of her affliction and the
regimen for her cure, and was told "to stay at home and
get well; and when you get able to, come back, to work."9
Hazlewood dutifully followed her doctor's instructions.
However, on May 19, while returning from a medical
appointment, she was involved in an accident which
caused a whiplash injury to her neck. Hazlewood was
taken by ambulance to her physician, and it is admitted by
both Chapman and Demski that they were informed of
Hazlewood's added misfortune on this date. Moreover,
there is nothing in this record to establish that either
informed Hazlewood that her extended absence due to her
cold and injury would in any way affect her tenure of
employment.
On Thursday, June 2, a scheduled collective-bargaining
session was held. Chapman and Demski represented the
Respondent, and Harasim, Williams, Arivertte, and
admitted that he received a telephone call from her on this date to
report that she would be absent because she was under medical
care due to a heavy cold Demski also testified that he informed
Hazlewood that she was still an "active employee," despite her
illness, and that her position with Respondent was not in peril
because of her absence
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hazlewood appeared on behalf of the Union. Hazlewood
testified that, at the inception of the meeting, Demski
inquired as to when she would be capable of returning to
work. Hazlewood replied that she had an appointment with
her doctor on the following day, June 3, and that, if the
doctor released her for work, she would resume her duties
on Monday, June 6.10 It is Hazlewood's further testimony,
corroborated by her union cohorts, and not seriously
disputed by Chapman or Demski that, as bargaining
discussions got under way, Hazlewood remarked that she
had worked for a local company which was unionized and
stated that that employer paid higher wages than those
paid by Respondent, operated under a union-shop clause,
and had more cordial labor relations. When Hazlewood
asked why the same conditions could not prevail in
Respondent's plant, Chapman angrily retorted that if
Hazlewood was dissatisfied with her lot, "then why didn't I
[Hazlewood] go over there [to her former employer] and
get me a job."
On Friday, June 3, Hazlewood consulted with her
physician and, after examination, was declared fit to
return to work on June 6. On June 4, however, she
received a letter from Chapman which was written on
June 3 and which recited that Hazlewood had been
discharged on the latter date. In pertinent part, the letter
read: "Let this serve as notice that we are terminating
your employment as of 6/3/66 due to excess absenteeism
Our records show that during the last 4 months you have
been absent 24 full days plus several other occurrences of
being absent less than a full day. As you know, our
attendance Rule #11, as posted on the bulletin board
states in part `Continued tardiness or absenteeism will be
considered grounds for dimissal."' Upon receipt of this
letter on June 4, Hazlewood testified that she telephoned
Chapman to complain of her discharge and, after an angry
exchange, during which she attempted to inform him of
her availability for work on June 6, the conversation
abruptly terminated.
On this issue, it is undisputed that Hazlewood had
absented herself from work, beginning the date of her cold
on May 16 until the date of her discharge on June 3. It is
also clear on this record that Hazlewood had been absent
from work on several occasions between the period of
January 1, 1966, and May 16 due to illness. Respondent
could, of course, have lawfully discharged Hazlewood for
her absenteeism at any time it chose if, in truth and fact,
the termination was occasioned solely by her excessive
absences from work. However, on the record before me, I
am convinced that Chapman and Demski selected
Hazlewood for discharge on June 3 because she attended
the bargaining session on the previous day and pressed
Respondent for improved terms and conditions of
employment for the employees, and not for excessive
absenteeism. Thus, neither Chapman nor Demski denied
Hazlewood's testimony that, at the bargaining meeting on
June 2, she was asked by these individuals when she
would be able to return to work and she informed him that
she had a doctor's appointment the following day and that,
if she received a clean bill of health, she would return on
June 6.11 Moreover, at one point in his testimony Demski
averred that Hazlewood's absences became a matter of
concern and were reviewed by Respondent almost 6 weeks
10 Harasim, Williams, and Arivette corroborated Hazlewood's
testimony in this regard
" In this regard, Demski testified that "I have no recollection
of engaging in any conversation with any of the union members"
prior to her discharge. Demski then testified that this
concern was discussed by him and Chapman about 2
weeks before her termination, and finally Demski
admitted that the only appraisal of Hazlewood's work
attendance occurred on June 3, the date of her discharge.
Demski further testified that, in conjunction with
Chapman, Hazlewood's work record was reviewed on
June 3 by comparing her attendance with that of other
employees and that this review prompted her termination.
Demski then recanted and admitted that he could not
recall having compared Hazlewood's attendance with the
records of other employees, and even candidly conceded
that Hazlewood was not the worst employee from the
standpoint of absenteeism who was under his supervision.
Initially, Chapman denied that the selection of June 3 as
the date of Hazlewood's termination bore any relationship
to her attendance at the bargaining session on the previous
day. According to Chapman, he and Demski simply
decided to review Hazlewood's record on June 3 although
Chapman confessed that he could offer no reason for
scrutinizing her particular record on that particular date.
However, Chapman then admitted that he was piqued by
the fact that although Hazlewood had been absent from
work due to a neck injury, she nevertheless managed to
walk a considerable distance to attend the bargaining
session on June 2. Finally, notwithstanding that Chapman
asserted that he discharged Hazlewood for excessive
absenteeism, he conceded that no such assigned reason
for the termination appeared on her personnel record.
After a careful review of the record made herein, I find
and conclude that Respondent selected Hazlewood for
discharge on June 3, 1966, because she attended the
bargaining session on the previous day and, as a member
of the Union's bargaining committee, vigorously sought to
extract beneficial contract terms from Respondent. By
doing so, Hazlewood was engaged in a protected,
concerted activity for which she could not lawfully be
discharged. In short, I find and conclude that Respondent
utilized Hazlewood's record of absenteeism as a pretext to
cloak its discriminatory motive in separating her from
Respondent's employ. Accordingly, I conclude that, by
discharging Hazlewood on June 3, 1966, Respondent
violated Section 8(a)(3) of the Act.
I turn next to the General Counsel's assertion that
Respondent, through Plant Manager Chapman, engaged in
illegal acts of surveillance of its employees' union
activities. The record shows that the Union had scheduled
a meeting of its members for August 11, 1966, in order to
vote upon the acceptability of a proposed contract which
Respondent had previously tendered to the Union. During
this meeting, the members voted to reject Respondent's
offer. On August 19, Respondent and the Union held a
bargaining session. Chester Harasim, the Union's
International representative, testified that he accompanied
J.W. Arivette, vice president of the union local, and Athel
Williams, president of the local, to the meeting. It is
Harasim's testimony that, before negotiations
commenced, James Chapman informed the union
negotiators that he had heard from "his grapevine" that
the employees had turned down Respondent's contract
proposals at the meeting of August 11, and Chapman
asked what the area of differences was. At this juncture,
on June 2 Chapman's response to a similar question on this
subject was "I have no knowledge of any conversation
[concerning Hazlewood's return to work] "
MIDWEST TIMER SERVICE
the union officers acknowledged that a negative vote was
taken on the proposals. Chapman admitted in his
testimony that he mentioned to the union negotiators on
August 19 that he had heard from the "grapevine" that the
members had rejected his contract offer. However,
Chapman testified that he received this knowledge on
August 12, the day following the union meeting, from none
other than Union President Williams himself.12 Indeed,
Williams testimonially related that, prior to the bargaining
session on August 19, he visited Chapman's office and
volunteered the information that the Company's proposed
contract had been rejected by the employees, thereby
corroborating Chapman's version of where he received
this intelligence.
To insure that employees exercise and enjoy their
statutory right to join or assist labor organizations of their
choice, uninhibited by employer interference, restraint, or
coercion, the Board has consistently held it to be unlawful
for an employer to engage in surveillance of union
activities of his employees, or even to create the
impression of such surveillance. The reason for such
holdings is manifestly clear. Experience has shown that,
where employers monitor union meetings and so inform
their employees , or intimate that management is aware of
their attendance at these convocations or of the events
which transpired at them, employees become reluctant to
exercise their statutorily guaranteed rights and hence the
purposes and policies of the Act are thwarted. But this is
not to say that all statements reflecting an employer's
knowledge of his employees' doings at union meetings fall
within the proscriptive ambit of the statute. Respondent's
employees met on August 11 to vote on a proposed
collective-bargaining agreement which it had previously
offered to the Union. On the following day, the Union,
through President Williams, voluntarily apprised
Chapman of the negative vote which was taken. Simply
because Chapman chose to repeat what was common
knowledge which had come to his attention through his
"grapevine," namely, the union president, the General
Counsel has seized upon this happenstance in an effort to
portray Chapman in the role of a wrongdoer. If logically
pursued, the General Counsel's position would lend itself
to the unsavory practice of allowing a union to entrap an
employer into a violation of the Act by funneling
information to him concerning the union activities of his
employees in the hope that he might convey this
information to the employees, and thereby entangle
himself in a web of illegality. I believe that proof that an
employer has interfered with his employees' rights under
the statute must be made of sterner stuff. Accordingly, I
find and conclude that the Respondent did not engage in
acts of surveillance in violation of Section 8(a)(1) by the
foregoing conduct, and I shall therefore dismiss this
aspect of the complaint.
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
815
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent discriminatorily
discharged Thelma L. Hazlewood on June 3, 1966, I shall
recommend that Respondent offer her immediate and full
reinstatement to her former or substantially equivalent
employment and make her whole for any loss of pay she
may have suffered by reason of the discrimination
practiced against her, by payment to her of a sum equal to
that which she normally would have earned from the date
of her discharge to the date of offer of reinstatement, less
her net earnings during said period. The backpay provided
for herein shall be computed in accordance with the
Board's formula set forth in F. IV. Woolworth Company, 90
NLRB 289, with interest thereon at the rate of 6 percent
per annum computed in the manner prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716.
Because of the nature and extent of the unfair labor
practices engaged in by Respondent, which evince an
attitude of opposition to the purposes of the Act in general,
I deem it necessary to recommend that Respondent cease
and desist from in any other manner infringing upon the
rights of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Thelma L. Hazlewood, thereby
discriminating in regard to her hire and tenure of
employment, in order to discourage membership in and
activity on behalf of the Union, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that Respondent, Midwest Timer
12 Chapman also related that this information came to his
attention on August 12, before his conversation with Williams,
because it became a matter of common knowledge in the plant
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service, Inc., Benton Harbor, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf
of United Papermakers and Paperworkers, AFL-CIO, or
any other labor organization of its employees, by
discharging any employee or in any other manner
discriminating in regard to hire or tenure of employment,
or any term or condition of employment.
(b) Promulgating, maintaining , or enforcing a rule
forbidding the solicitation of employee signatures during
nonworking time in work and nonwork areas, and
threatening employees with discharge if they engage in
such solicitation.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
the Union, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the
extent that such right may be affected by an 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.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act:
(a) Offer to Thelma L. Hazlewood immediate and full
reinstatement to her former or substantially equivalent
employment and make her whole for any loss of pay she
may have suffered as a result of the discrimination
practiced against her in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Notify Thelma L. Hazlewood if presently serving in
the Armed Forces of the United States of her 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) 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 Recommended Order.
(d) Post at its plant in Benton Harbor, Michigan, copies
of the attached notice marked "Appendix."13 Copies of
said notice, to be furnished by the Regional Director for
Region 7, after being duly signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained 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.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days of receipt of this Decision, what steps the
Respondent has taken to comply therewith.14
IT IS FURTHER RECOMMENDED that the complaint herein
be dismissed insofar as it alleges violations of the Act not
heretofore found.
'A 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 "
'4 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 "
APPENDIX
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 discourage membership in or
activities on behalf of United Papermakers and
Paperworkers , AFL-CIO, or any other labor
organization , by discharging any of our employees or
in any other manner discriminating against our
employees in regard to their hire or tenure of
employment , or any term or condition of employment.
WE WILL NOT promulgate , maintain , or enforce any
rule forbidding the solicitation of employee signatures
during nonworking time in work or nonworking areas,
and we will not threaten employees with discharge for
engaging in such solicitation.
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 , or to join or assist the above-named
Union or any other labor organization, to bargain
collectively through representatives of their own
choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected
by an 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.
WE WILL offer Thelma L. Hazlewood immediate
and full reinstatement to her former or substantially
equivalent employment and make her whole for any
loss of pay suffered as a result of our discrimination
against her.
WE WILL notify Thelma L. Hazlewood if presently
serving in the Armed Forces of the United States of
her 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.
All our employees are free to become or refrain from
becoming members of the above - named Union or any
other labor organization.
MIDWEST TIMER SERVICE,
INC.
(Employer)
Dated By
RETAIL CLERKS, LOCAL 1288 817
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.
Retail Clerks International Association, Local
Union No. 1288, AFL-CIO and Nickel's
Pay-Less Stores of Tulare County,
Incorporated
Retail Clerks International Association, Local
Union No. 1288, AFL-CIO and Nickel's
Pay-Less Stores of Tulare County,
Incorporated
Retail Clerks International Association, Local
Union No. 839, AFL-CIO and James Mead
and Roger Mead, d/b/a Mead' s Market.
Cases 20-CB-1327, 20-CC-481, and
20-CC-489-1.
April 3,1967
DECISION AND ORDER
On March 11, 1966, Trial Examiner Louis S.
Penfield issued his Decision in the above-entitled
proceeding, finding that Respondents had not
engaged in the unfair labor practices alleged and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel and the Charging Parties filed exceptions to
the Decision, and the General Counsel and Mead's
Market filed supporting briefs.' Respondents and
Intervenor Retail Clerks International Association2
filed a reply brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
i Subsequent to the issuance of the Trial Examiner's Decision,
Nickel's moved for allowance to withdraw the charges in Cases
20-CB-1327 and 20-CC-481 The General Counsel opposed the
motion, noting that Nickel's had signed a contract including the
clauses at issue herein
Once a charge is filed the General Counsel proceeds, not in the
vindication of private rights, but as the representative of an
agency entrusted with the enforcement of public law and the
assertion of the public interest thereof United Mechanics' Union
Local 150-F, Fur, Leather & Machine Wo, kers Union,
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, etc (American Photocopy Equipment
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent that they are
consistent with this Decision and Order.
The consolidated complaint herein alleges that
Respondent Local 1288 violated Section 8(b)(4)(i)
and (ii)(A) and 8(b)(3) of the National Labor Relations
Act, as amended, and that Respondent Local 839
violated Section 8(b)(4)(i) and (ii)(A). Both
Respondents admitted that they struck and picketed
the Charging Parties with an object of obtaining
certain "demonstrator clauses" in collective-
bargaining agreements with those employers.
Consequently, the issue presented by this case is
whether the demonstrator clauses are prohibited by
Section 8(e) of the Act.
Nickel's and Mead's, the Charging Parties herein,
operate retail grocery markets in northern
California. The stores involved are all of the self-
service variety, with clerks performing such duties
as stocking shelves, marking prices, and checking
out groceries. For a number of years, many of the
suppliers and producers of products sold at Nickel's
and Mead's have conducted demonstrations for
those stores' customers. These demonstrations
consist of the distribution of free samples along with
a few words about the virtues of the merchandise.
The demonstrations serve both to stimulate sales of
the particular products demonstrated and to
increase the business of the stores in general. They
are conducted by women, known as demonstrators,
who are hired by and carried on the payrolls of the
suppliers.
For approximately 15 years Nickel's empioyees
had been represented in collective bargaining by
Respondent Local 1288. Upon the expiration of its
last contract in 1964, Nickel's withdrew from the
employer association to which it belonged and began
to bargain individually with that Local.
Mead's employees are represented by Respondent
Local 839, pursuant to a bargaining order issued by
the Board in 1964,3 but Mead's has never been a
party to any collective-bargaining agreement with a
labor organization.
During the 1964 contract negotiations,
Respondent Locals 1288 and 839 sought to have
Nickel's and Mead's, respectively, agree to clauses
which would make the demonstrators subject to the
Company), 151 NLRB 386, New York Central Trans ort Company,
141 NLRB 1144 When a matter has ripened to the point of being
before the National Labor Relations Board for decision, we must
of course give paramount weight to the public interest affected by
withdrawal of the underlying charge As any alleged illegality
present in the clauses proposed by Respondents would not be
cured by Nickel's consent, we hereby deny the motion
2 Retail Clerks International Association was granted
permission to intervene at the hearing
' James A Mead and Roger Mead, co-partners d/b/a Mead's
Market, 148 NLRB 383
163 NLRB No. 112