Russell-Newman Mfg., Co., Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1967

167 N.L.R.B. 1119 (N.L.R.B. 1967)

RUSSELL-NEWMAN MFG. CO. 1119
Russell -Newman Mfg. Co., Inc. and International
Ladies' Garment Workers' Union , AFL-CIO.
Cases 16-CA-2116 and 16-CA-2138
October 31, 1967
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN ANDJENKINS
On July 6, 1965, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding in which, inter alia, it found
contrary to the Trial Examiner, that the Respond-
ent had engaged in certain unfair labor practices,
and ordered the Respondent to take specific action
to remedy such unfair labor practices. It affirmed
the Trial Examiner's rulings made at the hearing,
and his rejection of the Respondent's offer of proof
made after the hearing had closed, and, in agree-
ment with the Trial Examiner, denied the Respond-
ent's motion to reopen the hearing to enable
Respondent to introduce the evidence set forth in
the offer of proof.
Subsequently, the Respondent filed with the
United States Court of appeals for the Fifth Circuit
its petition to review and set aside the Board's
Order, and the General Counsel filed an answer to
the petition and a cross-petition for enforcement of
the Order. Thereafter, on December 27, 1966, the
court handed down its decision, refusing to enforce
the Board's order. The court held, inter alia, that
the Respondent had been denied due process by the
Trial Examiner's refusal to grant it time to prepare
its defense to, and hearing on, the two additional al-
legations of Section 8(a)(1) violations contained in
an amendment to the complaint, notice of which
was made by the General Counsel 4 days prior to
the hearing. The court denied enforcement of the
Board's Decision and Order with respect to these
two allegations without prejudice to a further hear-
ing, and remanded the proceeding to the Board for
further hearing consistent with the court's view. On
February 16, 1967, the Board issued an order
reopening the record in this case and directing that
a further hearing be held for the purpose of adduc-
ing evidence with respect to the allegations con-
cerning (1) the granting of a wage increase at the
Pilot Point plant and (2) the threat to sell the
Denton plant.
On June 6, 1967, Trial Examiner Boyd Leedom
issued a Supplemental Decision attached hereto, in
which he recommended affirmance of the Board's
original Decision and Order. Thereafter, Respond-
ent, General Counsel, and the Charging Party filed
exceptions to the Trial Examiner's Supplemental
Decision on Remand, and supporting briefs, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the reopened hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Trial Examiner's Supplemental Decision (On Re-
mand), the exceptions 2 and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner to the
extent consistent3 with our original Decision and
Order.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, Rus-
sell-Newman Mfg. Co., Inc., Denton and Pilot
Point, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's supplemental Order (On Remand).
153 NLRB 1312
The General Counsel and Charging Party filed motions to consolidate
the instant case, Russell-Newman Mfg Co, Inc, Cases 16-CA-2116
and 2138, with Russell-Newman Manufacturing Company, Inc, Case
16-CA-2660 Respondent filed an opposition to the motions to con-
solidate In view of the fact that the instant case is before us for limited
review, we deem it improper to consolidate it with another proceeding
which contains additional issues and matter relating to other events In
like manner, we shall deny the backpay remedy requested by the General
Counsel and Charging Party at the reopened hearing as we do not deem it
appropriate at this time to consider issues outside the scope of the court's
remand
I With regard to the January 28, 1965, wage increase at Pilot Point, we
reaffirm our finding that Respondent had knowledge of the Union's or-
ganizational activity at the Pilot Point plant at the time the increase was
granted With respect to the posting of the For Sale" sign, at the Denton
plant, 5 days after the Union won the election there, the record shows that
at least one employee working at Pilot Point, some 18 miles from Denton,
knew of the posting of the sign In addition, the record discloses that
Respondent's Vice President Martino did not object when realtor Barnes
requested permission to post the "For Sale" signs In fact, Martino ac-
companied Barnes to the plant at the time of posting
" Member Jenkins adheres to his original decision in not finding the
posting of the "For Sale" sign violative of Section 8(a)(I)
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION [ON REMAND]
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: On April 22, 1965, I
Issued a decision herein, finding that Respondent had not
engaged in the unfair labor practices alleged in the com-
plaint, and recommended that the complaint be dismissed
in its entirety. On exceptions to the decision, filed by the
General Counsel, the National Labor Relations Board
entered its decision and order, finding, among other
things, contrary to my determination, that the Respond-
ent had engaged in certain unfair labor practices and or-
dered Respondent to take specific action to remedy them.
167 NLRB No. 152
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the original trial I had left the record open for the
purpose of receiving from the Respondent an offer of
proof relating to two allegations of additional unfair labor
practices made by the General Counsel just before the
trial opened . Respondent had claimed , in connection with
these late amendments , that it did not have time to
properly investigate and prepare its defense and sought a
postponement . I denied the motion for a postponement,
indicating that if at the time the offer of proof was made,
it appeared to me in the consideration of the case that
Respondent had suffered prejudice and lack of due
process by my failure to grant the postponement , I would
reopen the hearing to accept the evidence offered. When
the offer of proof came in I rejected it, indicating that
even if error had been committed in not granting the post-
ponement, and receiving the evidence offered with
respect to alleged unfair labor practices raised by the late
amendment to the complaint , such error would not be
prejudicial in view of my dismissal of the complaint.
In its order and decision herein , dated July 6, 1965, the
Board among other things found , contrary to my deter-
mination , that the Respondent had engaged in the two un-
fair labor practices raised by the late amendment to the
complaint . The Board affirmed my rulings made at the tri-
al, my denial of the postponement , and my rejection of the
Respondent 's offer of proof, made after the hearing had
closed ; and in agreement with me, denied the Respond-
ent's motion to reopen the hearing to enable it to in-
troduce the evidence set forth in the offer of proof.
Subsequently the Respondent filed with the United
States Court of Appeals for the Fifth Circuit its petition
for review , and to set aside the Board 's Order . Thereafter
on December 27, 1966 , the court handed down its deci-
sion , refusing to enforce the Board 's Order (370 F.2d
980). The court held that the Respondent had been de-
nied due process through the circumstances of my refusal
to grant it time to prepare its defense and then have a
hearing on the two allegations of violation contained in
the late amendment to the complaint , and the Board's
subsequent reversal of my dismissal of these allegations
and finding violations thereon . The court in denying en-
forcement of the Board's Decision and Order did so
without prejudice to a further hearing to be conducted in
keeping with the requirements of due process and re-
manded the case to the Board for further hearing con-
sistent with the court 's views. Thereupon the Board ac-
cepted the court 's remand and returned the case to me for
the reception of further evidence on the two critical al-
legations of violation of Section 8(a)(1), that Respondent
(1) had unlawfully granted the 5-cent wage increase to
employees at its Pilot Point plant ; and (2 ) had unlawfully
posted " For Sale " signs in one of the buildings at Denton,
Texas, thereby threatening loss of employment.
Pursuant to all of the foregoing the case was reopened
and the evidence offered by the Respondent was received
in Denton on April 18, 1967.
On the entire record made in the whole case, my obser-
vation of the demeanor of the witnesses as they testified,
and on consideration of the briefs filed by the parties, I
make the findings of fact and conclusions of law
hereinafter set forth ; and for the reasons hereafter ap-
pearing I determine that Respondent violated the Act in
the two respects alleged in the late amendment to the
complaint.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Sufficiency of the "Charge"
At the reopened hearing Respondent challenged the ju-
risdiction of the Board by renewing a motion made at the
original hearing to dismiss the allegations of the late
amendments to the complaint on the ground they were
not supported by a "charge ." This motion was denied
with the request that the question be briefed and I in-
dicated it would be considered with the other questions
involved in this decision . Respondent 's brief argues the
point at length , especially as to the wage raise. I hereby
affirm the denial of the motion.
This problem has been before the Board with some
frequency. The "charge" on which this case proceeded
was specific as to the other issues tried, but was not
specific as to the "For Sale" signs and the Pilot Point
wage increase . These two events occurred considerably
after the complaint issued and there was no amendment
of the "charge" to cover them specifically. The charge
however contained this not uncommon general language,
following the specifics as to other alleged violations:
By the above acts and other acts and conduct the
Employer by its officers, agents, and employees, has
interfered with , restrained and coerced its employees
in the exercise of their rights guaranteed in Section
7 of the Act.
The placing of the "For Sale" signs and the questioned
wage increase were so much a part of the general course
of conduct engaged in by Respondent , some of which had
been specifically charged as violative of the Act, that
Respondent itself timed the two events according to the
state of union activity. Thus, relating so directly to union
activity (most specifically the union ' s victory in the elec-
tion) and the employer reaction, to the union activity,
which resulted in the specific charges of violation of the
Act, it can hardly be said that the new allegations are not
in substantial accord with the charge , or that the sub-
stance of the allegations of the complaint are so complete-
ly outside the charge , as to result in the Board initiating
the proceeding on the late amendments to the complaint
on its own motion.
B. The Background
The record made at the first trial provides the
background for the alleged commission of the unfair labor
practices heard when the case was reopened . Thus the
Union had been seeking to organize two units of Respond-
ent's employees , one unit being the employees at its
Denton plant and the other the employees of its plant at
Pilot Point.
The Union had just won an election at Denton. No
petition for an election had ever been filed at Pilot Point.
Right after the election at Denton the crucial 5-cent wage
increase, involved here, was given the employees at Pilot
Point; and "For Sale" signs went up in one of the
buildings of Respondent 's plant at Denton.
From the time of the late amendment to the complaint
alleging violations of the Act through this wage increase,
and the offer of the building for sale, to the present time,
it has been the contention of the General Counsel that
notwithstanding the two plants form separate units,
Respondent 's action at one plant affected and affects the
RUSSELL-NEWMAN MFG. CO. 1121
Union's campaign and the employees at the other. The
plants are 18 miles apart. Thus the offer of the building
for sale at Denton, General Counsel argues, would tend
to discourage union activity and adherence not only at
Denton but also at Pilot Point; and that the wage increase
given immediately following the election at Pilot Point
would tend unlawfully to interfere with the employees'
union adherence at both plants.
From the evidence adduced by Respondent at the
reopened trial I make the findings and conclusions, first,
as to the "For Sale" signs, and secondly, as to the wage
increase, as hereafter set out in the following subpara-
graphs.
C. The "For Sale" Signs
(1) The "Masonic Building," the one where the con-
troversial "For Sale" signs were placed following the
election in Denton, served as a main sewing room and is
one of several buildings used there in the total operation.
(2) While the title to the building involved was not
vested in Respondent (and was in Newman Realty Com-
pany, a corporation) the relationship between the
Respondent and the owner of the building is such that the
decision to sell it is in legal effect the decision of Respond-
ent, and is so regarded by Respondent itself.
(3) As a part of a comprehensive plan to construct a
one-story building that would house Respondent's entire
Denton operation, conducted in several buildings, the
decision to sell the Masonic Building was made as early
as 1960. The sale as of that time was placed in the hands
of a real estate agent; that periodically since then efforts
of varying intensity had been made to sell the building,
directly with prospective buyers and occupants, through
the Chamber of Commerce of Denton, and through vari-
ous real estate agents; that Z. L McCart, realtor, sought
to sell the building for several months, beginning in 1962
and advertised it in the Wall Street Journal, and still holds
it for sale; that in January of 1965 Joe Barnes, realtor, ob-
tained an exclusive listing so that he would be authorized
under local law to advertise it in the manner he desired;
he placed the for sale signs, in question, in windows of the
building on two adjoining streets on his own initiative and
not at the request of any of Respondent's management
personnel; that the first signs were standard "For Sale"
signs used by his Company, placed temporarily until signs
especially prepared for this particular building could be
obtained from sign painters; that the temporary signs
went up 2 or 3 days after January 29, 1965, and probably
on the Sunday following that date, the date the agreement
listing the building with Barnes was signed; that the lan-
guage on the temporary or first signs read "For Sale,
Barns Realty Company, Jean & Joe Barns," and in addi-
tion the telephone number of the agents; the especially
prepared signs went up to replace the first ones about a
week after they had been placed and carried this sales
message "This 18,000 Sq. Ft. Air Conditioned Bldg. For
Sale Barnes Realty, Phone 382-2509"; these permanent
signs stayed in place as long as Barns' exclusive listing
was effective, approximately 7 months; that the building
as of the date of the reopened hearing remained unsold,
but the effort to sell continued.
(4) That a new structure, large enough to house
Respondent's entire operation at Denton, has been built
and is in use; that one of the older buildings, formerly
used at the Denton operation by Respondent, has been
sold.
(5) No evidence was offered in behalf of the General
Counsel to establish that the signs posted in the building
attracted the attention of any employees; nor was there
any offered by Respondent to establish that employees
had any knowledge of the earlier effort to sell the build-
ing.
D. The Wage Increase
(1) That a 5-cent-an-hour wage increase for the em-
ployees at the Pilot Point plant was announced by
Respondent on January 28, 1965, to be effective as of the
date of the announcement, the first pay period under the
new wage rate ending February 3, 1965; that considera-
tion had been given by Respondent to giving the 5-cent
wage increase in the fall of 1964, but that it was not given
on advice of counsel that it would affect the outcome of
the representation election at the Denton plant, and that
such a wage increase had been contemplated as a part of
the 1964 25th anniversary special events of Respondent
Company, a plan interrupted by the union organizational
campaign.
(2) That the factors that went into Respondent's deci-
sion to give the raise were three in number: (1) the timing
was "right" in that there had been no organizing activity
at the Pilot Point plant, insofar as Respondent knew,
since the latter part of September 1964; (2) that such
wage increase was due the employees according to the
research of wage scales for 1964 issued by the American
Apparel Manufacturers Association, Inc., based on the
fourth quarter of 1963; (3) the productivity or "efficien-
cy" of the Pilot Point plant and employees justified the
raise when given.
(3) That following this 5-cent wage increase a 10-cent-
an-hour wage increase was given the employees in con-
formity with the requirements of the Federal enactment
respecting minimum wages, and still a second 5-cent-an-
hour wage increase was granted and was alleged and
found to be in violation of Section 8(a)(1) of the Act in
NLRB proceeding numbered 16-CA-2660, heard by
Trial Examiner Herman Tocker.
E. The Offer of Proof, The New Evidence , and the
Board Decision - Final Conclusion
I find and conclude that the evidence proffered in the
offer of proof, if taken as true, was more probative of a
valid defense to the two new allegations of violation, than
the evidence actually adduced in the reopened hearing.
Thus the "offer" tends to establish in considerable detail
through a comparison of "make up pay" and "Percentage
of Efficiency Figures" that a 5-cent increase was justified
and due the employees at Pilot Point and not at Denton.
The evidence adduced does not do so. As to the placing
of the "For Sale" signs on the building there is no signifi-
cant difference in legal effect between the evidence
referred to in the offer and that adduced at the hearing.
Inasmuch as the Board gave full weight to the offer of
proof by assuming the truth of the facts stated therein
even though I had rejected the offer, in rendering its deci-
sion in which it disagreed with the conclusions reached by
me as to the effect of the 5-cent wage increase involved
herein, and the placing of the for sale signs on the build-
ing, the Board has in legal effect decided the issue raised,
and presented by the evidence, here. I find and conclude
that there is nothing in the new evidence as compared
with the offer, to exonerate the action of Respondent in
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
giving the wage increase and in placing the for sale signs,
and therefore nothing in this reopened proceeding to alter
the Board's determination that these two acts did con-
stitute violations. Under these circumstances I have no
authority or function other than to find and conclude, as
I do, that the granting of the wage increase and the plac-
ing of the for sale signs on the Masonic Building both vio-
lated Section 8(a)(1) of the Act as alleged. If it should be
that the present posture of the case (resulting from the
Board's acceptance of the remand from the court, thus
eliminating from the instant proceeding all question of un-
fair labor practices excepting only the allegations in-
volved in this reopened hearing) - if this posture
eliminates the foundation of the Board's inference that
the "For Sale" signs and the Pilot Point wage increase did
in fact interfere with the employee's Section 7 rights, such
lack of foundation would, in my judgment, be within the
Board's cognizance. My own inferences were recorded in
my earlier decision. I cannot rightly draw inferences for
the Board.
THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices set forth above, I shall require it to
cease and desist thetefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
I shall recommend that Respondent cease and desist
from interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed under
Section 7 of the Act by granting economic benefits to its
employees. Nothing herein, however, shall be construed
as requiring the Respondent to vary or abandon any
economic benefits heretofore granted I shall also recom-
mend that the Respondent be ordered to cease and desist
from threatening its employees with loss of jobs if they
select the Union. The request of the General Counsel to
apply here the unusual remedy of ordering Respondent to
give its employees at Denton, the controversial wage in-
crease granted at the Pilot Point plant, will be left to the
discretion of the Board.
RECOMMENDED ORDER
Upon'the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
hereby ordered that Respondent , its officers, agents, and
representatives , shall:
1. Cease and desist from:
(a) Interfering with , restraining, or coercing its em-
ployees in the exercise of rights guaranteed in Section 7
of the Act, or the granting of economic benefits; pro-
vided , however, that nothing in this order shall be con-
strued as requiring the Respondent to vary or abandon
any economic benefits which it has heretofore
established.
(b) Threatening employees either directly, or by post-
ing "For Sale " signs, with loss of work or jobs if they
become or remain members of the International Ladies'
Garment Workers ' Union , AFL-CIO, or any other labor
organization.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act-
(a) Post at its plants in Denton and Pilot Point, Texas,
copies of the attached notice marked "Appendix."'
Copies of said notice, to be furnished by the Regional
Director for Region 16, after being duly signed by the
Respondent Company's representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.2
i In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
2 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of the rights guaran-
teed in Section 7 of the Act by the granting of
economic benefits, provided, however, that nothing
in the Recommended Order requires us to vary or
abandon any economic benefits which have hereto-
fore been established.
WE WILL NOT threaten employees either directly,
or by posting "For Sale" signs, with loss of work or
jobs if they become or remain members of the Inter-
national Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed in Section 7 of the
Act.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of any
labor organization.
RUSSELL-NEWMAN MFG.
CO., INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Region 16,
8A24 Federal Office Building, 819 Taylor Street, Fort
Worth, Texas 76102, Telephone 334-2921.
U S GOVERNMENT PRINTING OFFICE 1970 OL-310-541