Myers Ceramic Products Co.

National Labor Relations Board - Board Decisions

Dec 21, 1962

140 N.L.R.B. 232 (N.L.R.B. 1962)

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ethel J. Hinz, As an Individual and as Executrix of the Estate
of Lester F. Hinz , d/b/a Myers Ceramic Products Co. and
Walter Dzielak. Case No. 2O-CA-240. December 21, 1962
DECISION AND ORDER
On August 27, 1962, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in unfair labor
practices and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel filed exceptions to the Intermediate Report and a
supporting brief. The Respondent also filed a 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 McCulloch and Members
Leedom and Brown].
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 entire rec-
ord, including the Intermediate Report,' the exceptions, and the briefs,
and finds merit in the exceptions of the General Counsel. Accordingly,
the Board adopts only those findings, conclusions, and recommenda-
tions of the Trial Examiner that are specifically mentioned herein-
after.
1. We find, in disagreement with the Trial Examiner, that the
Respondent violated Section 8(a) (3) and (1) of the Act by closing
her plant and laying off employees on October 16,1961.
As described more fully in the Intermediate Report, the Respondent,
Mrs. Ethel Hinz, who is sole owner of Myers Ceramic Products Co.,
is engaged in the manufacture, sale, and distribution of ceramic tile.
Early in October 1961, employees Walter Dzielak, the Charging Party
herein, and Carl Cook commenced an organizing campaign among the
employees at the Respondent's plant. By October 11, a majority of the
employees had signed authorization cards for United Brick & Clay
Workers of America, AFL-CIO, hereinafter referred to as the Union.
On that date, the Union sent a certified letter to the Respondent stat-
ing that it represented a majority of her employees and requesting
recognition. The letter was received by the Respondent on October 12,
1962.2 On Sunday, October 15, the Respondent mailed letters to all
'We hereby correct the following inadvertent error in the Intermediate Report: The
word "not" shall be inserted in the appropriate place to reflect Mrs Hinz' testimony that
she did not "tell Mr. Dzielak that . . . the contract depended on having no union at
the plant"
2 In spite of the Respondent' s denial of knowledge of the contents of this letter, her
signature on the return receipt establishes that she received the letter on October 12.
140 NLRB No. 33.
MYERS CERAMIC PRODUCTS CO. 233
employees informing them that the plant would close immediately,
"due to the large inventory of unsold products on hand." Prior to the
beginning of the first shift on Monday, October 16, the Respondent
told Foreman Maderios to close the plant immediately. Maderios then
informed the employees of the Respondent's decision,' and the plant
was closed before work commenced that morning.
The Trial Examiner found that the Respondent had closed the plant
for economic reasons and therefore did not violate the Act. He relied
primarily on the facts that the Respondent's business had been slow
for a long period prior to the shutdown and the inventory at the plant
had been increasing, so that by October 16, the inventory of finished
tile, was about 1 million square feet; that the Respondent had con-
sidered closing the plant in the past and discussed this possibility with
Foreman Maderios and other supervisory personnel ; and that the
Respondent's son, who was general manager of the plant, had been
recalled by the Army, and the Respondent felt that she was insuffi-
ciently experienced to run the plant herself.
While these factors relied on by the Trial Examiner may indicate
that the Respondent had intended to close the plant for economic
reasons at some indefinite date in the future, in our view they do
not establish that this was the reason for the precipitate shutdown
of the plant on October 16. We find rather that the Respondent de-
cided to close the plant on October 16 and not on some later date
in order to avoid dealing with the Union, which had requested recogni-
tion as representative of Respondent's employees 4 days earlier. This
is established by the following factors : (1) The Respondent closed the
plant within 4 days after she received a request for recognition from
the Union;' (2) the decision to close the plant was made by the
Respondent without consulting other management personnel, despite.
the fact that, as the Trial Examiner found, the Respondent, because
of her lack of business experience, had delegated all responsibility
in running the plant to Foreman Maderios, to her son, who was the
general manager, and to her daughter;,' (3) notice that any such
action was contemplated was first given by the Respondent to the
3 When the employees came to work on Monday morning , they had not yet received the
letters aunounciug the closing, which the Respondent had sent to the employees on
Sunday , October 15
'Preston Feed Corporation , 124 NLRB 629, enfd 309 F 2d 346 (CA. 4). while the
letters sent by the Respondent stating that the plant was being closed were dated
October 5, which was prior to the Union 's demand for recognition , the record establishes
that when the Respondent originally wrote those letters, she had no particular closing
date in mind , that she hoped she would not have to send them, and that she did not
decide to send them until after the Union' s demand for recognition.
6Rspiey Manufacturing Company, 138 NLRB 1452. Although the Trial Examiner found
that Respondent had spoken to Foreman Maderios about closing the plant on several occa-
sions in the past, these discussions were of a general nature and related to the condition
of the business and not to the specific possibility of closing the plant on October 16.
Respondent does not contend that she had any discussion with Madeiios about closing
the plant in the period immediately preceding the shutdown.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman or to employees on the very morning of the closing; " and
(4) the Respondent failed to produce company records or other proof
indicating that there was an economic necessity for closing the plant on
October 16 .' Although the Trial Examiner found that on October 16
the Respondent had on hand a large inventory of tile, Foreman
Maderios testified , without contradiction , that on a number of occa-
sions in the past the Respondent had had similarly large inventories
and had not closed the plant, and that approximately one-quarter
of the inventory as of October 16 consisted of a type of tile which
was no longer marketable and which had been on hand for a number
of years.
In view of the foregoing , particularly the timing of the closing
immediately after the Union's demand for recognition , its precipitate
nature, and the failure of the Respondent to offer persuasive evidence
that there was an economic basis for the October 16 closing, we find
that, even though it may have been necessary for the Respondent to
close the plant for economic reasons at a later date, she accelerated
the closing of the plant because of the Union 's demand for recognition
on October 12. We accordingly find that the resulting layoff of em-
ployees violated Section 8 ( a) (3) and ( 1) of the Act"
2. We find , however, in agreement with the Trial Examiner, and
for the reasons stated by him, that the Respondent did not violate
Section 8 ( a) (3) and ( 1) of the Act by failing to recall employees
Walter Dzielak, Carl Cook, Pedro Cortez , and Jack Horton when the
tile trim department was reopened on October 30, 1961.
3. We also find , in agreement with the Trial Examiner, that the
Respondent did not interfere with, restrain , or coerce employees in
violation of Section 8(a) (1) of the Act by offering benefits to em-
6 Ripley Manufacturing Company, supra.
Z Morrison Motor Freight, Inc, 137 NLRB 933 ; Tabulating Card Company, Incorporated,
123 NLRB 62, 73, enfd 272 F 2d 710 (CA 3).
9 Ox-Wall Products Manufacturing Co , Inc, et at, 135 NLRB 840, enfd. 301 F. 2d 878
(C.A. 2) ; see also Brown-Dunkin Company, Inc, 125 NLRB 1379, enfd. 287 F 2d 17
(C.A. 10). As we indicated in Ox-Wall Products Manufacturing Co, Inc., et al, supra,
we respectfully disagree with two circuit court decisions, N.L.R.B. v. Rapid Bindery, Inc.
& Frontier Bindery Corp , 293 F. 2d 170 (C A. 2), and N L R.B v. J. M. Lassing, et al.,
d/b/a Consumers Gasoline Stations , 284 F. 2d 781 ( CA 6), cert. denied 366 U.S. 909
Those cases held in effect that a respondent employer does not violate Section 8(a)(3)
by accelerating the termination of its business or the moving of its plant because of the
advent of a union Moreover, those cases are distinguishable from the instant case. In
those cases, the preponderant motive for the acceleration was business necessity ; that
is, reasonably anticipated increased costs, including the cost which might result from the
unionization of employees In the instant case, however, the Respondent does not con-
tend that the economic problem confronting the Respondent-the large amount of inven-
tory-was one which would be adversely affected by the advent of the Union, so as to
justify the acceleration of the closing upon receipt of the demand for recognition. While
Member Leedom dissented in Ox-Wall and would have found that Respondent did not
violate Section 8(a) (3) by moving its plant, this position was based on the view that the
acceleration by the employer of the transfer of its plant was also for economic reasons.
However, where, as here, the employer decides to close its plant at an earlier date be-
cause of the advent of the Union, Member Leedom agrees that such conduct violates
Section 8(a) (3).
MYERS CERAMIC PRODUCTS CO. 235
ployees if they rejected the Union and by threatening them with re-
prisals if they joined the Union. We also agree with the Trial Exam-
iner that the Respondent did not violate Section 8(a) (4) of the Act
by conditioning the reinstatement of employee Cortez on his using his
influence to have the unfair labor practices against the Respondent
withdrawn. In recommending the dismissal of those allegations of
the complaint, the Trial Examiner credited the testimony of those
witnesses appearing for the Respondent and discredited the testimony
of the General Counsel's witnesses whenever it conflicted with testi-
mony for the Respondent. As a clear preponderance of all the relevant
evidence does not convince us that the Trial Examiner's credibility
resolutions were incorrect, we shall not overrule them.'
TIIE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of Myers Ceramic Products Co., as set
forth in section I of the Intermediate Report, 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 ob-
structing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order her to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
We have found that on October 16, 1961, the Respondent discrimina-
torily accelerated the closing of her plant. However, as we have also
found that, even absent the unfair labor practices, the Respondent
might have been forced to close the plant at a subsequent time for
economic reasons, we shall not order the Respondent to resume any
portion of her business which is not presently in operation.1° We have
also found that by discriminatorily closing her plant on October 16,
1961, the Respondent laid off employees in violation of Section
8(a) (3). While it is possible that some of the discriminatorily laid-
off employees might have been affected by a nondiscriminatory shut-
down taking place at a later time, the record furnishes no basis for
determining the order in which they might have been laid off or dis-
charged. Under these circumstances, we shall order the Respondent to
offer those employees who were discriminatorily laid off on Octo-
ber 16, 1961, and who have not been recalled for employment, im-
e Standard Dry Wall Products . Inc, 91 NLRB 544.
10 Respondent reopened the tile trim department on October 30, 1961 , and, so far as
appears from the record , this department is still in operation.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate and full reinstatement to their former or substantially equiv-
alent positions," without prejudice to their seniority and other rights
and privileges, and, in the event that there is insufficient work for all
such employees, to dismiss, if necessary, all persons who were newly
hired after the discriminatory layoff of October 16. If there is not
then sufficient work available for the remaining employees and those
to be offered reinstatement, all available positions shall be distributed
among them without discrimination against any employee because of
concerted activities, in accordance with the system of seniority or
other nondiscriminatory practices heretofore applied by the Respond-
ent in the conduct of her business. The Respondent shall place those
employees, if any, for whom no employment is available after such
distribution on a preferential list, with priority in accordance with
such system of seniority or other nondiscriminatory practice hereto-
fore applied by the Respondent in the conduct of her business, and
thereafter offer them reinstatement as such employment becomes avail-
able and before other persons are hired for such work.12
We shall also order the Respondent to make whole the employees
discriminatorily laid off on October 16, 1961, for any losses they may
have suffered because of the Respondent's discrimination, by payment
to each of them a sum of money equal to the amount that he normally
would have earned as wages from the date of such discrimination to the
date of the offer of reinstatement, or placement on a preferential list,
the case may be, less his net earnings during said period, the back-
pay to be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company.13 Earnings in one quarter
shall have no effect upon the backpay liability for any other such pe-
riod. We shall also order the Respondent to preserve and, upon re-
quest, make available to the Board payroll and other records necessary
to determine employment rights and the amount of backpay due.
As it is possible, however, that one or more of these employees might
have been laid off even if the Respondent had not engaged in any un-
fair labor practices, this possibility will be taken into consideration
in determining the amounts of backpay due to these employees in com-
pliance with our Order herein.
In view of the nature of the Respondent's unfair labor practices,
the commission by the Respondent of similar and other unfair labor
practices may be anticipated. We shall therefore order that the Re-
"We arc' deferring to the comnlianep stage of thin proceeding the resolution of the
issues whether in May and June employees Horton and Cortez were reinstated to their
former or substantially equivalent positions
12United Butchers Abattoir, Inc, 123 NLRB 946, 959-960
is 90 NLRB 289 Interest at the rate of 6 percent per annum shall be added to the
backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716. Member Leedom, for the reasons set forth in his dissenting opinion in Isis,
would not award interest on the backpay obligation.
MYERS CERAMIC PRODUCTS CO. 237
spondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
CONCLUSIONS Or LAW
1. Ethel J. Hinz, As an Individual and as Executrix of the Estate
of Lester F. Hinz, d/b/a Myers Ceramic Products Co., Santa Clara,
California, is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Brick & Clay Workers of America, AFL-CIO, is a labor
'organization within the meaning of Section 2(5) of the Act.
3. By accelerating the shutdown of her plant in order to avoid ne-
gotiating with United Brick & Clay Workers of America, AFL-CIO,
thereby discharging employees employed at the plant, the Respondent
has engaged in discrimination with regard to hire and tenure of em-
ployment of her employees within the meaning of Section 8(a) (3) of
the Act.
4. By the foregoing conduct the Respondent has interfered with,
restrained, and coerced her employees in the exercise of rights guaran-
teed them by Section 7 of the Act, and thereby 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
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
6. The Respondent has not engaged in unfair labor practices within
the meaning of Section 8 (a) (4) of the Act.
7. The Respondent has not engaged in other unfair labor practices
within the meaning of Section 8(a) (1) and (3) of the Act.
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, Ethel J. Hinz,
As an Individual and as Executrix of the Estate of Lester F. Hinz,
d/b/a Myers Ceramic Products Co., Santa Clara, California, her offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Brick & Clay Workers
of America, AFL-CIO, or any other labor organization of her em-
ployees, by discriminatorily discharging, laying off, or refusing to
reinstate such employees or in any other manner discriminating in
regard to their hire or tenure of employment or any term or condi-
tion of employment except as authorized by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner, interfering with, restraining, or coercing
her employees in the exercise of their right to self-organization, to
form, join, or assist the aforesaid labor organization, 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 and all such activities, except to the extent that
such rights 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 to the following-named individuals immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay they
may have suffered by reason of the discrimination against them, in the
manner set forth in the section herein entitled "The Remedy" :
William Carey John M. House
Carl J. Cook Andres J. Navarro
Leonard L. Cortez Lorenzo J. Navarro
Pedro L. Cortez Thomas J. Navarro
Jose S. De Faria Fernando Oliveira
Walter Dzielak Jose M. Sanchez
Herculano I. Freitas Edward A. Tarot
Julio Freitas Tony Visconti
Joaquin C. Gonsalves James R. White
Jack K. Horton
(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 for determination of the amount of back-
pay due and the right of reinstatement under the terms of this Order.
(c) Post at her plant in Santa Clara, California, copies of the at-
tached notice marked "Appendix." 14 Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by Respondent, be posted immediately upon
receipt thereof, and be maintained by her for 60 consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
14In 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 "
MYERS CERAMIC PRODUCTS CO. 239
(d) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges violations of the Act other than those
found herein.
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, we hereby notify our employees that :
WE WILL NOT discourage membership in United Brick & Clay
Workers of America, AFL-CIO, or any other labor organization
of our employees, by discharging, laying off, refusing to reinstate,
or in any other manner discriminating in regard to their hire or
tenure of employment or any term or condition of employment,
except as authorized by Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form, join, or assist the aforesaid labor organization, or any
other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion 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 to the following-named employees immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges :
William Carey John M. House
Carl J. Cook Andres J. Navarro
Leonard L. Cortez Lorenzo J. Navarro
Pedro L. Cortez Thomas J. Navarro
Jose S. De Faria Fernando Oliveira
Walter Dzielak Jose M. Sanchez
Herculano I. Freitas Edward A. Tarot
Julio Freitas Tony Visconti
Joaquin C. Gonsalves James R. White
Jack K. Horton
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make the aforementioned individuals whole for any
loss of pay they may have suffered by reason of the discrimina-
tion against them.
ETIIEL J. Hu z, As AN INDIVIDUAL AND
AS EXECUTRIX OF THE ESTATE OF LESTER
F. HINZ, D/B/A MYERS CERAMIC PIIOD-
UCTS CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above - named employees presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selective
Service Act after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional
Office, 830 Market Street, San Francisco 2, California , Telephone No.
Yukon 6-3500 , Extension 3191, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on March 6 and April 25, 1962,
respectively, by Walter Dzielak, the General Counsel of the National Labor Rela-
tions Board, respectively called herein the General Counsel 1 and the Board, through
the Regional Director for the Twentieth Region (San Francisco, California), issued
a complaint, dated May 10, 1962, against Ethel J. Hinz, As an Individual and as
Executrix of the Estate of Lester F. Hinz, d/b/a Myers Ceramic Products Co.,
herein called either Respondent or Mrs. Hinz, alleging that Respondent has engaged
in and is engaging in 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 from time to time, 61 Stat. 136, herein called the Act.
Copies of the charges and complaint, together with notice of hearing thereon,
were duly served upon Respondent and copies of the complaint and notice of
hearing were duly served upon Dzielak
Specifically, the complaint, as amended at the hearing, alleged that Respondent:
(1) on certain stated dates (a) offered and promised a bonus and other benefits
to her employees if they would disavow the United Brick & Clay Workers, AFL-CIO,
herein called the Union, as their collective-bargaining representative, (b) offered
and promised her employees a medical plan, a change in the system of wage payments,
and other benefits if they would vote against the Union in the impending Board-
conducted election, and (c) threatened and warned her employees that she would
not resume full operation and recall and reinstate her employees if they voted for
the Union in the said election; (2) on or about October 16, 1961, closed the plant's
operations and warehouse and locked out 19 named employees "because of [herl
suspicion and belief, and because [she] had been notified and advised by the Union
that a substantial number" of her employees had joined or assisted the Union and had
designated and selected it as their collective-bargaining representative; (3) on or
about October 30, 1961, resumed a portion of the plant's operations but since that
date has failed and refused to reinstate 4 named employees, including the Charging
'This term specifically includes counsel for the General Counsel appearing at the
hearing
MYERS CERAMIC PRODUCTS CO. 241
Party herein, because of their membership and activities in behalf of the Union; and
(4) on or about June 8, 1962, refused the request of Pedro L. Cortez to be reinstated
and advised him that if and when the charges herein were withdrawn he and the
other employees not then reinstated would be returned to their respective jobs.
On May 12, 1962, Respondent duly filed an answer denying the commission of
the unfair labor practices alleged. The answer averred, as a separate defense, that
because the Union had won the aforementioned Board-conducted election, which was
held on November 14, 1961, and the Union was subsequently certified as the collective-
bargaining representative of the employees here involved, it would not effectuate
the policies of the Act to proceed further with this matter.
Pursuant to due notice, a hearing was held at San Jose, California, on June 14, 15,
and 16, 1962, before Trial Examiner Howard Myers. The General Counsel and
Respondent were represented by counsel and participated in the hearing. Full and
complete opportunity was afforded the parties to be heard, to examine and cross-
examine witnesses, to introduce evidence pertinent to the issues, to argue orally at
the conclusion of the taking of the evidence, and to file briefs on or before July 9,
1962.2 Briefs have been received from the General Counsel and from Respondent's
counsel which have been carefully considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS OPERATIONS
Ethel J. Hinz, As an Individual and as Executrix of the Estate of Lester F. Hinz,
d/b/a Myers Ceramic Products Co., owns and operates Respondent, which has, and
during all times material had, its plant and principal offices at Santa Clara, California,
where it is engaged in the manufacture, sale, and distribution of ceramic tile.
During the 12-month period immediately preceding the issuance of the complaint
herein, a period representative of all times material, Respondent's out-of-State ship-
ments of finished products exceeded $50,000.
Upon the basis of the foregoing facts, it is found , in line with established Board
authority, that Respondent is engaged in, and during all times material was engaged
in, business affecting commerce within the meaning of Section 2 ( 6) and (7) of the
Act and that its business operations meet the standards fixed by the Board for the
assertion of jurisdiction.
II THE LABOR ORGANIZATION INVOLVED
United Brick & Clay Workers of America, AFL-CIO, is a labor organization
admitting to membership employees of Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Some 26 or so years prior to the opening of the hearing herein , a man named
Myers started Myers Ceramic Products Co., herein called Myers Ceramic.
Sometime in the early 1940's, Lester F. Hinz, Sr., herein called Hinz, Senior,
became a partner of Myers Ceramic.
Myers passed away some 15 or 16 years prior to the opening of the hearing in the
instant proceeding and apparently Hinz, Senior, became the sole owner of the business
in question, subject to Mrs Hinz' community property rights therein.
On July 23, 1960, Hinz, Senior, passed away. In his will, Hinz, Senior, named his
widow executrix of his estate and bequeathed to her, inter alia, his share of Myers
Ceramics
Prior to the death of Hinz, Senior, Mrs. Hinz very seldom visited the plant. Prior
to her husband's death. Mrs. Hinz had absolutely no connection, except a possible
financial interest, with the plant nor did she know anything about its operations.
At the time of the death of Hinz. Senior, Edward Maderios, who had been in the
employ of Myers Ceramics from November 9, 1936, until March 31, 1962, was
foreman and had been such for the 4 or 5 years immediately prior to his quitting
his job with Myers Ceramics.
From the time of the death of Hinz, Senior, and until he severed his connection
with Myers Ceramic, Maderios was the plant's main operating head. He was assisted
2 At the request of counsel the time to file briefs was extended to and including
July 23, 1962.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the operation of the plant by Lester F. Hinz, Jr. Mrs. Hinz' daughter, Leseth A.
Marasa, became office manager a few months after the passing of Hinz, Senior. Al-
though Mrs. Hinz has been the sole owner of Myers Ceramic since her husband's
death, she, because of her lack of any business experience, delegated all responsibility
of the running of the plant to Maderios, to her son, and to her daughter.
At the time of his father's death, Hinz, Junior, was about 21 years of age. Hinz,
Junior, commenced his connection with Myers Ceramic about 1953, at which time
he was a high school student. From said date until 1958, when he became a full-
time employee, Hinz, Junior, worked at the plant only during his summer vacations.
With the death of his father, Hinz, Junior's plant responsibilities greatly increased.
In fact, he and Maderios became the plant's sole operating heads with the death of
Hinz, Senior.
Mrs. Marasa's connection with the plant commenced several months after her
father's death when the then bookkeeper quit. During all times material, Mrs.
Marasa has held, as she credibly testified, "an all-around position" and doing "what-
ever is necessary when it is necessary."
B. Analysis and conclusions with respect to the unfair labor practices alleged
and Respondent's defenses thereto
This case mainly centers around the shutdown of Respondent's plant on October 16,
1961,3 and the resolution of the question whether, by such action, Respondent locked
out her employees in violation of the Act.4
In the forepart of October 1961, Walter Dzielak, the Charging Party herein, and
who, at that time, was an employee of Respondent, and Carl Cook, also a former
Respondent employee, discussed between themselves "the decrease of wages [the
employees were then encountering] and what [they] could do to make a living
wage." As a result of this discussion, Cook went to the union hall where Otto Sar-
gent, "the man in charge" of the hall, gave him some union authorization cards with
instructions to return them to him when and if a majority of Respondent's employees
had signed them.
On Monday evening, October 9, Paul Pelfrey, an international vice-president of the
Union, conferred at Cook's residence, with Cook, Cook's wife, Dzielak, Charlie
Monsanto, president of Local 994 of the International union here involved, regarding
the unionization of Respondent's employees.
On Friday evening, October 13, 11 employees and their respective wives attended
a meeting at a hotel located in San Jose, California, a city not far distant from the
plant's location, where Pelfrey discussed with those present the benefits the employees
could derive from being organized.
By October 11, a majority of the employees had signed union authorization cards.
On said date, the Union wrote Mrs. Hinz that it represented a majority of her em-
ployees and requested a meeting for the purpose of negotiating a collective-bargaining
contract. Said letter was received by Mrs. Hinz on October 12
Commencing on October 5, and continuing for a few days thereafter, Mrs. Hinz
had prepared letters addressed to her employees, reading as follows:
Due to the large inventory of unsold products on hand, it has become neces-
sary to close down the plant and lay off the employees, effective immediately.
Enclosed is your pay check to date. Your incentive pay will be forwarded
when records are complete.
We will contact you when the situation allows us to continue operations.
Very truly yours,
MYERS CERAMIC PRODS CO.,
By (S) E. J. Hinz,
ETHEL J. HINZ.
These letters were not mailed to the employees until Sunday, October 15.
3 Unless otherwise noted, all dates hereinafter mentioned refer to 1961.
4 As the General Counsel apparently recognizes, the Act does not outlaw a lockout
per se In the so-called Buffalo Linen case (N L.R B. v Truck Drivers Local Union
No 449, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, 353 U.S. 87), the Court was of the view that a lockout could only be
found illegal if its use amounts to a breach of a specific provision of the Act See also
N.L.R B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins Co.),
361 U.S. 477; The Radio Officers' Union of the Commercial Telegraphers Union, AFL
(A. H. Bull Steamship Company ) v. N.L R B., 347 U . S. 17; Local 357, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Los
Angeles-Seattle Motor Express ) v. N.L.R.B., 365 U.S. 667.
MYERS CERAMIC PRODUCTS CO. 243
On the following day, October 16, Mrs. Hinz went to the plant just prior to the
commencement of the morning shift, and informed Maderios, "to get ready to
close the plant down." When Maderios asked, "Now?," Mrs. Hinz replied in the
affirmative. Maderios then went into the plant proper and notified the employees
of Mrs. Hinz' decision. The plant was closed down before work started that
morning.
On October 17, all the employees, except Ed Tarot and Fernando Oliveira, at-
tended a meeting at the home of Andres Navarro where discussion was had about
the provisions of a bargaining contract to be presented to Respondent. The em-
ployees present at said meeting then elected or appointed Cook, Dzielak, Jack Horton,
Pedro Cortez, and Navarro to be members of said committee .5
On October 20, Respondent unexpectedly received an order from Coronet Ceramic
and Mosaic Tile Co., a Denver, Colorado, concern, for a tremendous amount of tile.
On the evening of the day Respondent received the Coronet order, referied to
immediately above, a meeting was had in the offices of Respondent's general counsel,
a Mr. Christy, which was attended by Christy, Joe De La Roi, and Dzielak. At
said meeting, Christy stated, among things, that Mrs. Hinz was thinking of re-
opening the plant. Christy then inquired whether De La Roi and Dzielak had a
copy of the Union's contract.6
After leaving Christy's office, Dzielak went to Horton's home and there informed
the other members of the then ne"otiating committee of what transpired at the
aforementioned meeting with Christy.
During the course of the meeting at Horton's home, referred to immediately
above, Dzielak's daughter called him and informed him that Mrs. Hinz had called
and desired him to return her call. Upon returning home that evening Dzielak
called Mrs. Hinz.
Regarding his telephone conversation with Mrs. Hinz, Dzielak testified that Mrs.
Hinz said, "Walter, my prayers have been answered. A miracle is in the offing
if it is not too late"; that Mrs. Hinz then stated that some buyers from some eastern
outfit "had been down at the plant all day" and that she had sold these persons "all
the tile that she had in the building, all the tile that she could manufacture in
the future, and, oh, everything was all set if we would just come back to work fine
and dandy"; that when he asked Mrs. Hinz whether she had spoken to her at-
torney, she replied, "No, I am only interested in reopening this plant"; that Mrs.
Hinz further stated "she had some pictures made of Mr. Hinz which she was
about to give to all the employees but now that we wanted to bring a union in
there and stuff she would not give us these pictures" but "she was ready to start
distributing some requests [sic] to fulfill Mr. Hinz' wishes"; that he again asked
Mrs. Hinz whether she had talked to Christy, her attorney, adding, "Why don't
you have Mr. Christy talk to Mr. De La Roi, our business agent, and we will be
all glad to come back. We would have a union and everything would be fine"; that
Mrs. Hinz replied, "No, Walter. This is one of the things, if there is a union, why,
I cannot have this contract to sell this tile. Walter, you employees come back.
I will give you a big fat bonus for Christmas"; that he replied, "Mrs. Hinz, I would
like to do this through our business agent, Mr. De La Roi"; and that "she just
talked over and over again how we have [sic] been one big happy family during
the past, that she would like to see these conditions come back. . And again
she mentioned that big fat bonus for Christmas . . . that they are so happy to have
all of us back to work and everything, but she could not sell this tile if she had
a union."
During the course of her examination regarding her telephone conversation with
Dzielak, Mrs. Hinz testified that she called him at the request of a Mr. Carey; 7
that she asked Dzielak if Maderios had informed the employees regarding the
contract to sell the tile; that she "probably" mentioned to him "it would be nice
to get all the employees back to where they were beforehand, one big happy family";
that she did not say "if all is well, we will give everyone a big Christmas bonus";
that she "didn't think" that she mentioned a Christmas bonus; that she did not
"discuss with Mr. Dzielak at this time the possibility of certain requests [sic] being
made to the employees pursuant to an oral request of [her] deceased husband";
that she did not tell Dzielak that she intended to have some photographs made
6 On October 30, Navarro returned to work for Respondent at which time lie was
dropped as a member from the above-mentioned committee.
O For some reason, not disclosed by the record, the details of what transpired at this
meeting were not brought out at the hearing herein.
7 Apparently employee Bill Carey.
681-492-63-vol. 140-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of her late husband and distribute them to the employees; that she did "tell Mr.
Dzielak that although [we] had this very wonderful contract to sell all your tile,
that the contract depended on having no union at the plant"; and that she "really"
could not "recall" mentioning the word "union" in said conversation.
After a very careful scrutiny of the entire record, all of which has been care-
fully read, and parts of which have been reread and rechecked several times, and
being mindful of the parties' contentions regarding the credibility problems in-
volved, of the fact that testimony was given regarding events which occurred many
months prior to the opening of the hearing herein, and of the fact that very strong
feelings have been generated by the circumstances in this case, the Trial Examiner
finds that Mrs. Hinz' version of what was said in her October 20 conversation with
Dzielak to be substantially in accord with what was actually said. This finding is
supported by the fact that Mrs. Hinz particularly impressed the Trial Examiner
as being one who is careful with the truth and meticulous in not enlarging her
testimony beyond her memory of what occurred. On the other hand, Dzielak gave
the Trial Examiner the impression that he was studiously attempting to conform
his testimony to what he considered to be to the best interest of himself and of
the Union .8
The next morning, October 21, the Union placed a picket line at the plant.
Horton testified that about 10 a.m. on October 21, while he was doing picket duty,
"Mrs. Hinz drove through the [picket] line about 30 feet . . . and motioned for me
to come over"; that he went over to Mrs. Hinz and said, "You had better talk to
Walter [Dzielak]"; that Mrs. Hinz then stated, "I've already talked to Walter and
it didn't do any good. What do you fellows want?" and that the following then
ensued:
I said, "Better conditions and wages at the plant."
She said, "The union can't get them for you; why didn't you come to see me?"
I said, "I did come to you and the wages went down two months in a row."
She said, "If you fellows will forget the union and come back to work, we
will work out the wages and give you a nice bonus for Christmas."
I said, "But we have already joined the union."
She said, "Just because you signed those cards doesn't mean you have to go
through with it."
I said, "I'm sorry, Mrs. Hinz, I have to go back to the picket line." So I left.
Mrs. Hinz testified that, from time to time, she spoke to all the pickets as she
went through the picket line and undoubtedly she spoke to Horton while he was doing
picket duty. Mrs. Hinz, however, emphatically denied asking Horton, "Why didn't
you come to me, rather than picketing, or rather than going to a union if you had any
problems?" or saying to Horton that he "didn't have to picket; they could all come
back to work and have a nice big family once again." Mrs. Hinz also emphatically
denied that she asked, or motioned to Horton to come over to her car; or that she
told "Mr. Horton during this conversation that if he came back, everyone came back,
that [I will] give them all a big Christmas bonus."
As noted above, Mrs. Hinz particularly impressed the Trial Examiner as being a
credible witness. On the other hand, Horton, like Dzielak, gave the distinct impres-
sion that he was studiously attempting to conform his testimony to what he considered
to be to his and the Union's best interests. Under the circumstances, the Trial Ex-
aminer finds that Mrs. Hinz did not make the statements attributed to her by Horton.
Mrs. Rafaela Sanchez, the wife of Jose Sanchez, a plant employee, testified that in
the latter part of October, she telephoned the plant regarding a day's pay due her
husband; that she talked to Mrs. Marasa who explained to her that the check had been
mailed. Mrs. Sanchez then testified that the following took place:
8 This is not to say that at times Mrs Hinz was not confused on certain matters or
that there were not variations in her objectivity and convincingness. But it also should
be noted that the candor with which she admitted, during a long and searching examina-
tion, that she could not be certain as to certain dates or the exact words used, only
serves to add credency to what a careful study of her testimony shows what she honestly
believed to be the facts. One of the reasons for Mrs. Hinz' confusion while on the
witness stand was the often, but necessary, reference to her late husband. In fact, at
one stage of the proceeding she became so emotionally upset that she had to be assisted
from the hearing room. Another reason for her confusion may be attributed to the fact,
as she testified, "I have had a death. I have had a fire. I have had a theft I have had
all sorts of troubles. I mean personal and business-wise. . . . I have had endless troubles
at the plant and at home."
MYERS CERAMIC PRODUCTS CO. 245
After that was over she (Mrs. Marasa) asked me what did I have to say
about the activities that were going on at the plant I told her I had no idea
what was going on since my husband was a man of few words, he never spoke
to me about anything.
So then she told me that she would bring me up to date on what was going
on about the union coming into the plant. And she told me that the union, if
they got the union in the plant, it wouldn't help them in any way because they
could always sign a contract for a year and after it-after a year they had no
obligation to keep it going.
And then they could tear the building down brick by brick or either sell
out to a bidder, whoever would buy it
Mrs. Sanchez further testified that she related her conversation with Marasa to her
husband.
Regarding her conversation with Mrs. Sanchez, referred to immediately above,
Mrs. Marasa testified under Rule 43(b) of the Federal Rules of Civil Procedure as
follows :
Q. Would you tell us what was said?
A. I believe Mrs. Sanchez reminded [me] that her husband had a day's
wages coming and she had not received them.
Q. What did you say?
A. At that time I believe I told her that I had mailed them-or-yes, that
they had been mailed. I remember [now]. There were several men who
had the same problem with a day's wages.
Q. Was anything further said?
A. I don't recall anything further.
Q. Do you recall telling Mrs. Sanchez that [if] the union won the election,
that the most the company would do . . . if they had to sign a contract, would
be just for a year and no more?
A. No, I don't recall saying that.
Q. Isn't it true that you told Mrs. Sanchez that if the union won the election,
after a year you would tear down the plant brick by brick so no one would
[sic] work.
A. That is not true.
The Trial Examiner finds that Mrs. Marasa's version of her telephone conversa-
tion with Mrs. Sanchez to be substantially in accord with the facts and rejects that of
Mrs. Sanchez. The Trial Examiner further finds that Mrs. Marasa did not make the
statements attributed to her by Mrs. Sanchez. These findings are based not only
upon the entire record in the case, but also on the fact that Mrs. Marasa, like her
mother, particularly impressed the Trial Examiner as being an honest, forthright, and
truthful witness. Moreover, it seems incredible that Mrs. Marasa would make any
mention of the Union when Mrs. Sanchez only asked for the check due her husband
and was immediately advised that it had been mailed.
On October 28, Mrs. Hinz, through Attorney Christy, hired Eugene Gummerson
as her labor relations consultant. That day Christy and Gummerson met in Christy's
office with De La Roi and two members of the negotiating committee; namely,
Dzielak and Navarro. There a written agreement was entered into, which provided,
among other things, for a Board-conducted election among the maintenance and
production employees on Respondent's payroll for the period of October 27.
At the aforesaid October 28 meeting, Respondent's representatives informed the
Union's representatives that the plant would reopen on October 30 solely for the
purpose of manufacturing trim. The Union's representatives then inquired of
Gummerson which employees would be recalled. Gummerson responded, to quote
from his credible and undenied testimony, "The Company was going to resume the
production of trim only, and that those people who were best qualified by training
and experience would be recalled." Although De La Roi, Dzielak, and Navarro
testified none of them was questioned about the subject of recalls.
On October 30, the plant reopened for the manufacture of trim "to go along
with" the tile which was then on hand. The trim was especially needed for the tile
for which Coronet had agreed to purchase. All the employees who had previously
worked in the trim department and about four employees who had not previously
worked in that department were recalled.
Although the Union never voiced any objection to the manner of selection of
the persons who were actually recalled on October 30, the General Counsel at the
hearing and in his brief contended that the four of the remaining members of the
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiating committee,9 each of whom had more plant seniority 10 than the four
persons who had been recalled on October 30, and who, prior to the October 16
shutdown, had never worked in said department, should have been recalled because
of their seniority status and because they could have performed the work and
hence Dzielak, Horton, Cook, and Cortez were discriminated against in violation of
Section 8(a)(3) of the Act because they were not recalled on said date. There
is absolutely no evidence in the record, either credible or otherwise, that Respondent
at any time prior to or after the death of Hinz, Senior, laid off or recalled employees
pursuant to a seniority policy. Accordingly, the Trial Examiner finds, in view of
the added fact that there is no evidence that Respondent selected the persons she
recalled on October 30, by antiunion motives, the General Counsel's contention that
Dzielak, Horton, Cook, and Cortez were discriminated on and after October 30,
to be without substance or merit.il
Gummerson credibly testified further, and again without contradiction, that at
a negotiating meeting held on or about December 14, the Union representatives
brought up the question of the recall of certain employees and whether any further
employees would be recalled," and that he "advised them that the employees that
were working were, in our opinion, those best qualified to do the work available."
In furtherance of his contention that the October 16 shutdown was illegally
motivated, as was the failure to recall all of the employees and to retain them,
the General Counsel points to, and relies heavily upon, certain antiunion remarks
allegedly made at a meeting of employees held on November 10.
Since it would unduly protract this report to summarize all the testimony given
with respect to this meeting, which was called by Hinz, Junior, or to spell out fully
the confusion and inconsistencies contained therein, the following is a composite
picture of what transpired thereat. The parties may be assured that in reaching
all resolutions, findings, and conclusions, the record as a whole has been carefully
reviewed; the credibility of the witnesses given great consideration; relevant cases
have been studied; and each contention advanced has been weighed, even though
not specifically discussed.
On the evening of November 10, Hinz, Junior, called a meeting of Respondent's
employees for the purpose of discussing with them the Board election which was
scheduled to be, and was, held on November 14. All said employees attended the
meeting, which was held in the plant, except Pedro Cortez and Tony Visconti.
There, a discussion was had relative to the advantages and disadvantages of union
representation. Hinz, Junior, told the men that good management-employee rela-
tionships had existed in the plant for some 25 years without a union; that he
"didn't feel it was necessary" to have a union at that time; that "union representation
could not guarantee the men any benefit that [the Company] could not afford or
the business did not allow"; that he knew the men were unhappy with the incentive
pay system then in effect, adding, "I am sure that a satisfactory arrangement could
be worked out" without the aid of a union; that "union representation would not
guarantee the institution of a [medical-health] plan" for the institution of such a
plan "was also contingent upon how much money there was"; and that "there was no
relationship between union representation and the gaining of these benefits" because
the Company would try [its] best, as we always had in the past, to take care of
the men and observe their wishes, but that union representation or not, there was so
much money in the pot and that is what had to be split."
The above recital of what Hinz, Junior, said at the aforementioned meeting clearly
indicates, and the Trial Examiner finds, that he was only endeavoring to wean the
employees away from the Union and hence to bring about its defeat at the forth-
coming Board election. This conduct, standing alone, as it does , is not violative of
any provision of the Act and the Trial Examiner so finds. This finding is supported
by the fact that nothing contained in his remarks contained any threat of reprisal
or any promise of benefit.
Mary Cortez testified that on the evening of November 13, Hinz, Junior, tele-
phoned and asked to speak to her husband, Pedro Cortez, a Respondent employee
and a member of the negotiating committee; that she informed Hinz, Junior, that
O Namely, Dzielak, Horton, Cook, and Cortez
10 Except Al Smith, who had retired from Respondent's employ prior to the death of
Hinz, Senior. Smith was recalled because of his knowledge of the workings of the trim
department and for the added purpose of supervising the employees who were recalled
to work therein.
n It is significant to note the provisions of the bargaining contract between Respondent
and the Union, dated May 4, 1962, provide, regarding layoffs and recalls, that seniority
shall govern only "where ability and fitness are relatively equal."
MYERS CERAMIC PRODUCTS CO. 247
her husband was not home and then inquired if Hinz, Junior, cared to leave a
message; and that Hinz stated:
tomorrow there is going to be an election at the plant. I am not
telling Peter how to vote but it is not going to solve anything. If he votes the
union in there will be a stall in reopening the plant. But if the union is voted
out I will give him a larger incentive pay and a big bonus for Christmas.
Hinz, Junior, testified that pursuant to his attorney's instructions he contacted no
employee on the eve of the Board election; that on November 9, he called Cortez'
home, as well as the homes of all the other employees, to notify them of the afore-
mentioned November 10 plant meeting; and that he could not recall whether he
spoke to Cortez or to Cortez' wife or what was said if he actually had spoken to
either of them because that evening (November 9) he "spoke to the homes of
virtually all the employees" and therefore he was unable to testify as to what was
said during each telephone conversation. Hinz' testimony elicited by the General
Counsel under Rule 43(b) of the Federal Rules of Procedure concludes with respect
to this matter as follows:
Q. Do you remember telling Mrs. Cortez that if the union won the election
that the company would stall in fully reopening the plant and calling back
employees?
A. I said nothing of that kind to anybody, sir.
Q. And if the union lost the election that the plant would be immediately
reopened and all the employees would be recalled?
A No, sir. I said this [sic] to no one, sir.
As in the cases of his mother and his sister, Hinz, Junior, particularly impressed
the Trial Examiner as being an honest, forthright, and truthful witness. On the other
hand, Mrs. Cortez did not so impress the Trial Examiner. Under the circumstances,
the Trial Examiner finds that Hinz, Junior, did not make the statements attributed
to him by Mrs. Cortez.
It is the General Counsel's contention that the reasons advanced by Respondent
for the October 16 shutdown "are patently false." He bases this contention mainly
on the fact that: (1) "no discussion [was had] with the foreman (Maderios) prior
to the shutdown that such an act was contemplated"; (2) "no notice was given to the
employees" prior to the shutdown; (3) "the abrupt termination of all [her] em-
ployees" cannot support her argument "that business was poor with no favorable
outlook"; (4) in the past Respondent had similar adverse business conditions and
the plant was not shut down and the employees laid off; (5) "the alleged decline
in business does not explain the striking coincidence that the plant shutdown occurred
immediately after the receipt of the Union's letter" of October 11; (6) "Respondent
did not consider shutting the plant prior to the receipt of knowledge of [her] em-
ployees' union activity"; (7) "the impetus for making" the decision to shut the
plant was "Mrs. Hinz' hostility to the Union as the collective-bargaining representa-
tive of her employees; and (8) Mrs. Hinz failed to substantiate [her] economic
defense in that [she] produced no records at the hearing to support [her] economic
contentions."
The record establishes, and the Trial Examiner finds, that for a long period of
time prior to October 16, business was "slacking off" and the plant's inventory was
increasing; that as of October 16, there was on hand about 1 million square feet
of tile; that over a long period of time Mrs. Hinz and Maderios discussed the closing
of the plant; that on at least one occasion Maderios suggested to Mrs. Hinz that
the plant go on a 4-day week; that in August, September, and October, 1961. Maderios
went to Mrs. Hinz and "called to her attention that the sales were way off" and that
something should be done about it; that sometime in 1961, Maderios advised Mrs.
Hinz that she "could shut the doors of the plant and still have enough tile for six
months"; that there was no shipment of tile for about 2 months immediately prior to
the shutdown; that Hinz, Junior, was, on October 16, a member of the Armed
Forces Reserve and was about to be called into active service at any time; that Mrs.
Hinz' attorney suggested she close the plant; and that Mrs. Hinz, new and inexperi-
enced in the business world, just did not know how to operate the plant, especially
one in such a poor economic condition such as the one here involved. Upon the
foregoing findings, the Trial Examiner is convinced, and finds, that the plant was
closed on October 16, solely for economic reasons and not for the reasons advanced
by the General Counsel. The Trial Examiner finds that the Union's demand of
October 1l for recognition and closing of the plant on October 16. did not establish
any relationship other than temporal coincidence between Respondent's action and
her employees' organizational activities. The Trial Examiner further finds that, under
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the circumstances of this case , especially since most of the testimony regarding
Respondent 's poor economic condition was elicited by the General Counsel from per-
sons called by him,12 there is no merit in the General Counsel's contention that it was
Respondent's duty to support her economic defense by her books and records.
It is true , as the General Counsel points out, that during the time Hinz , Senior, was
running the plant, the plant 's inventory , on at least one occasion , was as high as it
was on October 16, 1961 , and the plant was not shut down . What the reason for
such a large inventory during Hinz, Senior 's time was not disclosed by the records nor
was the season of the year established . Here , as Maderios testified and which por-
tion of his testimony the Trial Examiner credits , the cold and wet season was coming
on and that was one of the factors which prompted him to seek out Mrs. Hinz and
suggest to her to close the plant or to establish a shorter workweek.
In the latter part of May 1962, Cortez and Horton were recalled to work and each
worked 11 days and were then laid off because work had run out on the job to which
they had been assigned . The General Counsel 's contention , to quote from his brief,
"that such employment (11 days) does not constitute full reinstatement" is without
merit or substance. In the first place, the shutdown of October 16, as found above,
was not violative of the Act and therefore Respondent was under no duty to offer
to Horton or to Cortez, as the General Counsel states in his brief, "reinstatement to
their former or substantially equivalent positions." In the second place, their second
layoffs were not antiunion motivated.
Under date of Saturday, June 9, 7 days prior to the opening of the hearing in the
instant proceeding , Horton wrote Mrs . Marasa requesting a job. About 9 a.m. on
June 11, Horton received a telephone call, instructing him to report for work the
next morning. When he reported for work on June 12, Horton was assigned to the
spray machine. Horton testified that it required two men to run that machine and
that he was told that he would have to operate it by himself. A careful reading of the
testimony regarding this incident clearly establishes, and the Trial Examiner finds,
that Horton was told that he would have a helper assigned to him as soon as he got
the machine started. However, Horton demanded that this additional person be
assigned to the machine before he would commence work. When Horton's demand
was refused, he walked out of the plant. Upon the entire record in the case, the
Trial Examiner finds that Horton was assigned to a job on June 12, and that he re-
fused the assignment. The Trial Examiner further finds that the Horton incident
on June 12 cannot properly be attributed to any union hostility on Respondent's part
and hence was not violative of any provision of the Act.
About 11 p.m. on June 8, Cortez called the plant and spoke to Mrs. Hinz for sev-
eral hours.13 The purpose of this call was, as Cortez admitted on the witness stand,
to entrap Mrs. Hinz into making some admission against interest which he could then
use at the hearing herein which was scheduled to, and which did, open on June 14.
It is the General Counsel's contention, relying upon the testimony of Cortez and
that of Cortez' wife, that during the said telephone coversation, referred to im-
mediately above, Mrs. Hinz offered to reinstate Cortez, provided he used his in-
fluence to have "the boys drop these labor charges." Mrs. Cortez testified that she
listened to a portion of this telephone call and her testimony with respect to what
she heard is, in the main, substantially the same as that given by her husband. Mrs.
Hinz testified that she spoke to Cortez that night; that Cortez introduced his wife
during said call; that she spoke to Mrs. Cortez; 14 and that she and Cortez were not
discussing the pending Labor Board unfair labor practice charges but talking about a
grievance which had been filed by an employee under the grievance procedure of the
Union's contract with Respondent. The Trial Examiner finds that Mrs. Hinz' ver-
sion of what was said during aforesaid telephone conversation to be substantially in
accord with the facts and rejects the Cortez versions thereof. This finding is based
not only on the fact that the Trial Examiner finds Mrs. Hinz to be a credible witness,
but also on the fact that he gives no credence to those portions of the testimony of
either Cortez or of Cortez' wife which are contradicted or explained and which are
not corroborated by objective circumstances or by the testimony of credible witnesses.
22 The Trial Examiner is not unmindful of the fact that most of the witnesses who
testified regarding Respondent 's economic condition were called by the General Counsel
under the aforementioned Rule 43(b). Maderios, however, was not and he gave a fairly
detailed description of the plant's poor economic condition for a long period of time prior
to the October 16 shutdown.
13 It was Mrs . Hinz' custom to arrive at the plant about mid -afternoon and remain there
far into the night.
14 What transpired between Mrs. Hinz and Mrs Cortez during this conversation was
about matters not here pertinent.
HERSHEY CHOCOLATE CORPORATION 249
Upon the record as a whole, it is recommended that the complaint be dismissed
in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case , the Trial Examiner makes the following:
CONCLUSIONS OF LAw
1. Ethel J. Hinz, As an Individual and as Executrix of the Estate of Lester F. Hinz,
d/b/a Myers Ceramic Products Co., Santa Clara, California, is engaged in, and during
all times material has been engaged in, commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Brick & Clay Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The allegations of the complaint that Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (1), (3 ), and (4)
of the Act, have not been sustained.
RECOMMENDED ORDER
It is recommended , upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in the case , that the complaint be dis-
missed in its entirety.
Hershey Chocolate Corporation and Larry S. Moyer and Jacob
H. Howard
Local 464, American Bakery and Confectionery Workers Inter-
national Union , AFL-CIO and Larry S. Moyer and Jacob H.
Howard . Cases Nos.. -CA-2417 and 4-CB-731. December 21,
1962
DECISION AND ORDER
On April 2, 1962, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had not engaged in the unfair labor practices as alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel and the Charging Parties filed ex-
ceptions to the Intermediate Report and supporting briefs. Re-
spondent Union filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.
[The Board dismissed the complaint.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
140 NLRB No. 31.