Monsanto Chemical Co.

National Labor Relations Board - Board Decisions

Mar 2, 1961

130 N.L.R.B. 1097 (N.L.R.B. 1961)

MONSANTO CHEMICAL COMPANY 1097
supplement , or renewal thereof , or any substitute therefor, unless and until Respond-
ent Union shall have been duly certified by the Board.17
By their unlawful union-security agreement , Respondents have unlawfully required
employees to maintain membership in Respondent Union at the price of their em-
ployment , thereby inevitably coercing the payment of initiation fees and dues. I
find in accordance with established Board policy , ( United Association of Journeymen
& Apprentices of Plumbing & Pipefitting Industry of the United States and Canada,
Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115
NLRB 594; Morrison -Knudsen Company , Inc., 123 NLRB 12; Gay Engineering Cor-
poration , 124 NLRB 451, that it will effectuate , the policies of the Act to order Re-
spondents jointly and severally to refund to employees all initiation fees and dues
paid by them for a period of 6 months prior to April 7, 1959, the date upon which
charges were filed regarding this matter.
It has also been found that Respondent Company discharged its employee, Ruth
Dirr, because of her union activity thereby discriminating against her within the
meaning of Section 8(a) (3) of the Act. It will be recommended that the Respondent
Company offer reinstatement to Dirr and make her whole for any loss of pay suf-
fered by reason of the discrimination against her. Said loss of pay shall be com-
puted in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
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. Respondent Company, Max B . Oscherwitz, Bernard Oscherwitz and Millard S.
Oscherwitz, Co-partners doing business as I. Oscherwitz and Sons, is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union, Amalgamated Meat Cutters and Butchers Workmen of
North America, AFL-CIO, Local No. 7, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By maintaining a contract containing an unlawful union -security provision and
by collecting initiation fees and dues thereunder; Respondent Company has engaged
in unfair labor practices within the meaning of Section 8(a) (2) of 'the Act.
4. By discriminating with respect to the hire and tenure of employees, thereby
discouraging membership in Respondent Union, Respondent Company has engaged
in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, Respondent Company has engaged in un-
fair labor practices within the meaning of Section 8(a)(1) of the Act.
6. By maintaining a contract containing an unlawful union -security provision Re-
spondent Union has engaged in unfair labor practices within the meaning of Section
8 (b) (2) of the Act.
7. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, Respondent Union has engaged in unfair labor practices within
the meaning of Section 8(b) (1) (A) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
"This is not intended to require Respondent Company to vary or abandon the sub-
stantive features of its relations with its employees, established in the performance of
the agreement , or to prejudice the assertion by employees of any rights they may have
thereunder.
Monsanto Chemical Company and International Chemical Work-
ers Union , Local 16, AFL-CIO. Case No. 14-CA-PJ17. March 2,
1961
DECISION AND ORDER
On June 7, 1960, Trial Examiner C. W. Whittemore issued his In-
termediate Report in the above-entitled proceeding, finding that the
130 NLRB No. 119.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
. Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Fanning and Kimball.]
The Board has reviewed the ' rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed 1
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, briefs, and the entire record in the case
and hereby adopts the findings, conclusions, and recommendations of '
the Trial Examiner.
In adopting the Intermediate Report of the Trial Examiner, we
have denied Respondent's motion to dismiss the complaint because of
an arbitration award resulting from a proceeding involving the par-
ties which issued after the Intermediate Report.2
The Board is, of course, not bound as a matter of law by arbitration
awards.3 Nor is the Board mandated by the Act to exercise its ple-
nary power over unfair labor practices in all situations. In the cir-
cumstances, the Board has taken the view that the voluntary settlement
of disputes between management and labor should be encouraged and,
to promote such voluntary adjustment of 'labor disputes, the Board
has adopted the policy of honoring arbitration awards where it can
do so without abandoning its obligation to protect rights which the
Act guaranteed to employers, bargaining representatives, individual
'The Respondent requested all pretrial statements of all the General Counsel's wit-
nesses. This request was made after the General Counsel had rested and ,his witnesses
had been excused and after the Respondent had presented two witnesses ., The Trial
Examiner ruled that the General Counsel's witnesses were no longer before him , having
been excused, and the General Counsel objected , indicating no intention of recalling these
witnesses . The Trial Examiner ruled that the request was untimely . We affirm this
ruling. We find no error in the rulings of the Trial Examiner except with respect to his
failure to admit in evidence Respondent 's Exhibits Nos. 1 and 5, to which Respondent
has filed exceptions . Exhibit No. 1 contained written instructions to supervisors in
disciplinary eases and was offered to show that the disciplinary procedure followed was in
accordance with written policy . Exhibit No . 5 was a written list of discharges and was
offered to show that the discharge of the discriminatee was consistent with action taken
in other like eases . As the Trial Examiner 's finding, which we adopt, is supported even
with the offered evidence, we find that Respondent was not, in fact , prejudiced by the
Trial Examiner 's error.
2 The Respondent contends that it was denied due process at the hearing in that the
Trial Examiner imposed a time limitation on the hearing, which precluded Respondent
from introducing additional evidence . We find no merit in this contention. While the
Trial Examiner suggested a tentative time schedule at the commencement Hof the hearing,
all parties agreed to this procedure . Moreover , the record is clear that the Respondent at
no time was precluded from introducing pertinent evidence nor , indeed, did the Respond-
ent request an extension of time for the introduction of additional evidence during the
course of the hearing . Accordingly , the Respondent's motion to set aside the Intermediate
Report or to reopen the hearing is denied.
8 N.L.R.B. v. Walt Disney Productions, 146 F. 2d 44 ( C.A. 9), cert . denied 324 U . S. 877.
MONSANTO CHEMICAL COMPANY 1099
,employees, or the'public 4 'Thus, it will not interfere in disputes which
'the parties have submitted to arbitration where the proceedings have
been fair and regular, all parties had agreed to be bound by the deci=
-sion of the arbitrator, and the decision of the arbitrator is not clearly
repugnant to the purposes and policies of the Act.' On the other
.hand, the Board will not recognize an award which is at'odds with
:the statute, as where it is contrary to existing law e The application
,of these principles to the instant case compels dismissal of Respond-
ent's motion as noted. For in this case the matter of 'whether Till was
discharged for union activities, an issue submitted to the. arbitrator,
was not even passed upon by the arbitrator, as appears from the fol-
lowing language by him : "... I have given a good deal of thought
to the dilemma which arises out of the dual jurisdiction over the
essence of the unfair labor practice charges. Because the NLRB has
exclusive jurisdiction in the event of a conflict, and because I believe
the case can be decided on other grounds, I have chosen to ignore for
purposes of decision the allegations herein contained that Till's Union
activities played a part in his discharge." It manifestly could not en-
courage the voluntary settlement of. disputes or effectuate the policies
and purposes of the Act to give binding effect in an unfair labor prac-
tice proceeding to an arbitration award which does not purport to
resolve the unfair labor practice issue which was before the arbitrator
and which is the very issue the Board is called upon to decide in the
proceeding before it.
ORDER
Upon the entire record in the 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 , Monsanto Chem-
ical Company, St. Louis , Missouri , its officers , agents , successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in and activity on behalf of Inter-
national Chemical Workers Union , Local 16, AFL-CIO, or in any
,other labor organization , by discharging, laying off, refusing to rein-
state, or in any other manner discriminating against employees in
regard to their hire or tenure of employment or any term or condition
of employment.
'A Honolulu Star-Bulletin, 123 NLRB 395, 408.
8 Spielberg Manufacturing Company, 112 NLRB 1080.
9 Monsanto Chemical Company, 97 NLRB 517, enfd. 205 F. 2d 763 (C.A. 8).
7 Member Kimball agrees that as the arbitrator himself excluded from consideration the
unfair labor practice aspects of this matter, the arbitration award cannot be determinative
of the present case. However, for the reasons more fully set forth in his dissent in
Max B . Oscherwitz, et al., d/ b/a I. Oscherwitz and Sons, 130 NLRB 1078 , he does not
agree with the doctrine of the Spielberg case, supra, and he would not in any event
recognize an arbitration award as determinative of the unfair labor practice proceedings
before the Board.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, 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 the Board finds
will effectuate the policies of the Act :
(a) Offer Nicholas P. Till immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of the discrimina-
tion against him, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the National
Labor Relations Board and its agents, for examination and copying,
all records necessary for the determination of the amount of back-
pay due under the terms of this Order.
(c) Post at its John F. Queeny plant, in St. Louis, Missouri, copies
of the notice attached hereto marked "Appendix." 8 Copies of said
notice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon re-
ceipt thereof, in conspicuous places, including all places where notices
to employees are customarily posted, and maintained by it for at least
60 consecutive days thereafter. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material. `
(d) Notify the. Regional Director for the Fourteenth Region, in
writing, within 10 days from the date o.f this Order, what steps it has
taken to comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for 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, we hereby notify our employees that :
MONSANTO CHEMICAL COMPANY 1101
WE WILL NOT discourage membership in or activity on behalf
of International Chemical Workers Union, Local 16, AFL-CIO,
or in any other labor organization , by discharging, laying off,
refusing to reinstate , or in any other manner discriminating
against employees in regard to their hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self -organiza-
tion, to form , join, or assist the above-named or any other labor
organization , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities , except to the
extent that such right may be affected by an agreement requir-
ing membership in a labor organization as authorized by Section
8(a) (3) of the Act, as modified by the Labor -Management Re-
porting and Disclosure Act of 1959.
WE WILL offer Nicholas P. Till immediate and full reinstate-
ment to his former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay he may have suffered by reason of
the discrimination against him.
MONSANTO CHEMICAL 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
STATEMENT OF THE CASE
A charge having been duly filed and served , a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National Labor
Relations Board , and an answer having been filed by the above -named Respondent,
a hearing involving allegations of unfair labor practices in violation of Section
8(a)(1) and ( 3) of the National Labor Relations Act, as amended, was held in
St. Louis, Missouri , on April 18 and 19, 1960 , before the duly designated Trial
Examiner.
All parties were represented by counsel at the hearing , and were afforded full
opportunity to be heard and to present evidence pertinent to the issues. Oral
argument at the conclusion of the hearing was waived . Briefs have been received
from the Respondent and General Counsel . After the close of the hearing the
Respondent filed a motion with the National Labor Relations Board for an order
withholding the issuance of an Intermediate Report in this matter. On May 17, 1960,
the Board issued its order denying the Respondent 's motion without prejudice to
"the filing of a new motion when and if the arbitrators award becomes pertinent."
Upon the record thus made and from his observation of the witnesses , the Trial
Examiner makes the following:
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Monsanto Chemical Company is a Delaware ' corporation with its principal office
in St. Louis County, Missouri, and a plant at St. Louis, Missouri, known as the.
John F. Queeny plant.. During the. year preceding the issuance of the complaint the
Respondent purchased raw materials valued at more than $500,000-from points out-
side and shipped into the State of Missouri.
The complaint alleges, the answer admits, and it is here found that.the Respondent
is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union, Local 16, AFL-CIO,. is a labor organiza-
tion admitting to membership employees of the Respondent'at its St. Louis plant.
M. THE UNFAIR LABOR PRACTICES
A. Setting and major issue
During the period material herein the Respondent and the Charging Union have
been parties to a formal collective-bargaining agreement.
It is admitted and found that employee Nicholas P. Till, a union steward for
.millwrights, was discharged by the Respondent on April 29, 1959. The actual reason
for the dismissal is in issue . General Counsel contends that the action was unlawful
in that it was motivated by the Employer's resentment against Till's activity on behalf
of the Union and his fellow employees in processing grievances. The Respondent
denies this allegation and urges that (1) Till was discharged for cause not illegal, and
(2) in any event the question is not properly before the Board because it is the sub-
ject of a grievance and arbitration proceeding initiated by Till and in accordanm
with procedures set up by the existing contract between the Union and the Employer-
B. The discharge of Till
For the following reasons the Trial Examiner believes that General Counsel, by
credible evidence, established a clear prima facie case in support of his allegation:
1. At the time of his discharge Till had been employed by the Respondent for
about 25 years, most of this period as a millwright and for the past 10 years in the.
responsible position of leadman.
2. In contrast to this long period of employment, obviously satisfactory or he.
would hardly have continued to hold the position of leadman, Till served as steward'
for the millwright group, under the plantwide contract, for only about 4 months
before his dismissal.
3. As steward, Till was active and vigorous in processing grievances arising in his:
department. During the short period of his service in this office he filed as many
grievances as his predecessor had filed during the entire preceding year.
4. Management was concerned, during Till's stewardship, not only with the:
number but also the nature of grievances brought up by Till. Iri particular, a con-
tinuing dispute existed between the millwrights and management in regard to the:
implementing of a provision in the contract providing for a rotation plan on "un--
pleasant work." Management's concern with the nature of the grievances is shown.
by the following:
(a) Although Shop Supervisor C. W. Woodland at first endeavored to.make it.
appear that Till did not come to him regarding the rotation records "any more than.
some other stewards," he finally admitted that such daily rotation"involved millwrights-
only. Woodland also further admitted that he even called a meeting of all mill-
wrights to "improve the situation" regarding rotation.
(b) It is undisputed that "many times" Woodland tried to persuade Till to agree
to relinquishment of the millwrights' rights of rotation under the - agreement, and.
that the last time he-declined was shortly before his discharge. '
(c) Maintenance General Superintendent Stratmeyer, at a meeting called by him.
of the mechanical group while Till was steward, told him that management "could.
no longer abide by" the rotation plan previously set up.
(d) It is undisputed that Maintenance Superintendent W. B. Papageorge told'.
Till while he was steward that the Union was "beating them to death" with.insistence
upon maintaining the rotation plan. (Papageorge was, not questioned about this.
point on direct examination. General Counsel drew from the superintendent, on,
cross-examination, his claim that he and Till "never did discuss rotation." The.
MONSANTO CHEMICAL COMPANY 1103
Trial Examiner does not .accept this general denial as meeting the specific remark
attributed to him by. Till.) .
5. Management's concern with the number of grievances brought by Till, as
steward, is shown by the following:
(a) It is uncontradicted that at a grievance meeting in February or March, Plant
Manager Charles J. Smith asked if Till, as the new steward for the millwright group,
was the "cause of this increase in numbers of millwright grievances."
(b) It is uncontradicted that Shop. Foreman Art Schwab, on two or three occa-
sions, complained to W. C. Gusky, the Union's recording secretary and chairman
of its executive board, that Till. was bringing "excessive grievances."
(c) It is uncontradicted that Assistant Personnel Director Hassett "from time to
time" during Till's stewardship complained to Gusky about the number of grievances
being filed by Till.
(d) ' It is also uncontradicted that Personnel Director J. H. Kernen, who admitted
participating in the discharge of Till, likewise complained to Gusky about the number
of grievances being brought by Till.
6. On April 21 and 22 Till was absent from work. He called in on the first day
to report his absence was for personal reasons, but did not call in the second day.
7. On April 23, upon his return to work, Till was summoned before Schwab and
Papageorge, previously identified as -shop foreman and maintenance superintendent
respectively. They demanded to know the reason for his absence, and Till refrained
from giving them an answer. Papageorge accused him of being out playing golf-
the day before, and Till denied the accusation.
8. The next morning, April 24, Till and Gusky, the union secretary, met with
Papageorge and Woodland, the latter previously identified as shop supervisor. At
this meeting Papageorge told Till that he was in "serious trouble" and he would look
further into .it.
9. Later the same day Papageorge informed Till that he now had evidence that-
he had been out playing golf and that he was suspended until further notice.'
10. On April 28 management sent word to Till to report at the plant the next-
day. Three meetings were held on April 29 between management officials, Till,.
and union representatives. While the testimony is somewhat confused as to pre-
cisely what occurred at each meeting, it appears that at the first meeting Till was.
discharged and that the later meetings were in the nature of steps in the grievance
procedure. In any event, it is conceded that Till was in fact discharged on that
date. He was told that the reason for his discharge was that he was "an unsatis-
factory, unreliable, employee."
In the opinion of the Trial Examiner, the evidence presented by the Respondent-
in support of its claim that Till was discharged for cause fails to overcome the
strong prima facie case established by General Counsel. This conclusion is based'
upon the following:
1. The answer claims that Till was discharged "as an undesirable and unreliable-
employee for repeated and consistent violation of plant rules."
2. Although Till's employment record, in evidence, shows various derelictions-.
during his long period of employment, Plant Manager C. J. Smith, who approved and:
apparently took the final responsibility for the firing, admitted as a witness that
"Mr. Till's record up until the dates of those two absences (on April 21 and 22)
would not have been sufficient cause for discharge in my opinion."
3. Thus there is established a notable inconsistency between the claim in they
answer and the testimony of the official responsible for the action.
4. Smith's statement that Till's record up to April 21 "would not have been suf-
ficient cause for discharge" is buttressed by the plain fact that whatever his previous.
record he had remained as leadman. It appears unnecessary, therefore, to prolong-
this report by detailing past derelictions of whatever nature, or to review the com-
ments or recommendations of officials under Smith.
5. As to Till's failure to report his absence in advance on April 22, company -
records. shows that he had been' disciplined for "absenteeism and insubordination"'
in January 1958 by being laid off for 5 days.
6. According to Smith, however, he was discharged completely in April 1959
for failing to give a satisfactory reason for his absence of 2_ days and when, so fare
as the record shows, insubordination-ordinarily considered to be a more serious-
offense-was in no way involved.
7. Grave doubt upon management's claimed motive for the discharge is cast by--
the fact that even before Till had returned to work, and before he was either asked-
or given an opportunity to explain his absence, Labor Relations Manager Russell-
The Respondent offered no competent evidence that Till was playing golf that day.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retained the Pinkerton Detective Agency to report on Till's whereabouts and activi-
ties, an action which appears to have been unprecedented. Russell admitted that "it
certainly isn't a custom" to have detectives follow employees when out fora day
or two.
C. Conclusions
The Trial Examiner concludes and finds that the Respondent 's contentions as to
why Till was discharged are without merit. General Counsel does not urge that
the week's layoff was unwarranted, and the Trial Examiner does not have that issue
before him.
The Trial Examiner is convinced, however, and concludes and finds, that the
Respondent took the discharge action not as a disciplinary measure, in accordance
with its practice and custom, but because it wished to rid itself of a troublesome
union steward who, as undisputed evidence establishes, was diligently performing his
office as representative of the millwrights, and that it seized upon Till's brief ab-
sence as a pretext.
Section 7 of the Act accords employees the right to present grievances through
representatives of their own choosing. It follows that to discharge a union steward
for bringing grievances on behalf of his fellow employees is to discourage both
concerted activity and union activity, since the processing of grievances is an appro-
priate activity of a labor organization?
The Trial Examiner therefore concludes and finds that Till was discriminatorily
discharged on April 29, 1959, to discourage membership in and activity on behalf
of the Charging Union, and that thereby the Respondent interfered with, restrained;
and coerced employees in the exercise of rights guaranteed by Section 7 of the Act .3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described 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 obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer immediate and full reinstate-
ment to Nicholas P. Till to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make him whole for any
loss of pay he may have suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he normally would have
earned as wages from the date of the discrimination to the date of the offer of rein-
statement, less his net earnings during such period, in accordance with the Board
policy set forth in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber
Company, 8 'NLRB 440.
It will be further recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records pertinent
to the analysis of the amount due as backpay.
Since the violations of the Act which the Respondent committed are closely
related to other unfair labor practices proscribed by the Act, and the danger of
their commission in the future is reasonably to be anticipated from its past conduct,
the preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
2 See Moss Planing Mill Co ., 103 NLRB 414; also Hoppers Company, Inc ., December 30,
1958, and Rossi Trucking and Excavating Company, October 1959, both of which Inter-
mediate Reports were complied with.
8 For the reasons stated by the Trial Examiner in denying the Respondent 's motion for
postponement of the hearing, he refrains from passing here upon the alternative point
raised by the Respondent-that the Board , in its discretion , should decline to decide a'
matter presently in arbitration . This appears to be a policy question for the Board alone
to decide.
FLORIDAN HOTEL OF TAMPA, INC. 1 105
CONCLUSIONS OF LAW
1. International Chemical Workers Union, Local 16, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
•2. By discriminatorily discharging employee Till on April 29, 1959, to discourage
membership in and activity on behalf of the above-named labor organization, and
thereby interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged 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 com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Floridan Hotel of Tampa, Inc. and Hotel & Restaurant Em-
ployees and Bartenders Union , Local No . 104, affiliated with
Hotel & Restaurant Employees and Bartenders International
.Union, AFL-CIO. Case No. 12-CA1414. March 2, 1961
DECISION AND ORDER
On August 30, 1960, Trial Examiner John C. Fischer,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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
Pursuant to the. provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Fanning and
Kimball].
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 Interme-
diate Report, the exceptions and brief, and the entire record in the-
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, to the extent consistent with our Decision
herein.
We agree with the Trial Examiner, for the reasons set forth here-
inafter, that the Respondent violated Section 8(a) (1) of the Act.
Shortly before April 1, 1960, the incumbent certified union, the
Charging Party ' herein, distributed stewards' and members' union
buttons to be worn by all stewards and members. On or about April
1, 1960, the Employer issued a bulletin promulgating "a rule that no
badges of any kind will be worn by any employee so that they may be
seen by any customer or guest."- The reason stated in the bulletin for
130 NLRB No. 110.
5 9 7 2 5 4-O 1-vol. 130-71