S. B. Thomas, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1960

128 N.L.R.B. 1434 (N.L.R.B. 1960)

1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Budnick. It therefore shall be recommended that the Respondent Company reinstate
the said Frances Budnick to her former or substantially equivalent position without
prejudice to her seniority or other rights and privileges and that the Respondent
Union and the Respondent Company jointly and severally make whole the said
Frances Budnick for any loss of pay she may have suffered as a result of the dis-
crimination against her. The amount of backpay will be computed in accordance
with the Board's usual formula. F. W. Woolworth Company, 90 NLRB 289; Crossett
Lumber Company, 8 NLRB 440, 497-498. The Respondent Union shall also notify
the Respondent Company that it has no objection to the employment of Frances
Budnick or the employment of any other person without referral from or approval
of the Respondent Union.
Having found that the Respondent Union is party to an illegal closed-shop hiring
arrangement with the Respondent Company and that by enforcing or maintaining
in effect the closed-shop conditions of employment contained in the written agree-
ment between the Respondent Union and the Respondent Company, while Respond-
ents have inevitably coerced employees to pay the dues, fees, and assessments neces-
sary to achieve and retain membership in the Respondent Union, it shall be recom-
mended that in order to expunge the coercive effect of these illegal exactions, and
adequately to remedy the unfair labor practices found, the Respondent Union and
Respondent Company be required to reimburse the employees of the Respondent
Company and any other employer within the territorial jurisdiction of the Respond-
ent Union for any dues, fees , assessments , permit fees , or other moneys that are
unlawfully exacted from them as a condition of obtaining or retaining employment,
such reimbursement to be made jointly and severally by the Respondents. The
liability for reimbursement shall include the period beginning 6 months prior to the
filing and service of the original charges against the Respondent Union and the
Respondent Company, respectively , and shall extend to all such moneys thereafter
collected until the abandonment by the Respondent Union and the Respondent
Company of the unlawful hiring practice.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Retail Drug Employees Union, Local 1199, Retail, Wholesale and Department
Store Union , AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
2. By maintaining in effect an unlawful union-security agreement between them,
the Respondent Union and the Respondent Company have engaged in and are
engaging in unfair labor practices within the meaning of the Act. The Respondent
Union has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(b)(1) (A) and (2) of the Act; the Respondent Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1),
(2),and (3) of the Act.
3. The activities of the Respondent Union, above described, occurring in con-
nection with the operation of the business of the Respondent Company, as set forth
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce and constitute unfair labor
practices as noted in paragraph 2, above.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication. ]
S. B. Thomas, Inc. and Ethel G. Fitzpatrick and Jacqueline H.
Hagner. Cases Nos. 2-CA-6387 and 2-CA-6388. August 31, 1960
DECISION AND ORDER
On April 29, 1960, Trial Examiner James T. Rasbury issued his
Intermediate report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
128 NLRB No. 134.
S. B. THOMAS, INC. 1435
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report
appended hereto. Thereafter, the General Counsel, the Charging
Parties, and the Union filed exceptions to the Intermediate Report
and supporting briefs.' The Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the ruling 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
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
, The Union 's request for oral argument is denied as, in our opinion , the record , excep-
tions, and briefs adequately present the positions of the parties.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with all parties represented was heard before the duly designated
Trial Examiner in New York, New York, on February 24, 25, and 26, 1960, on the
consolidated complaint of the General Counsel and answer of S. B . Thomas, Inc.,
herein called the Respondent . The issues litigated involved the alleged violation
of 8(a)( 3) and ( 1) of the National Labor Relations Act, as amended , herein
referred to as the Act.
Upon consideration of the entire record, the oral argument , the briefs filed, and
my observation of the witnesses , I make the following: 1
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation duly organized under and existing by virtue of the
laws of the State of New York having its principal office and place of business on
Queens Boulevard , Long Island City, New York. During the past year Respondent
in the course and conduct of its business operations caused to be manufactured,
sold, and distributed at its plant, products valued in excess of $3,500,000 of which
products valued in excess of $500,000 were shipped in interstate commerce directly
to other States of the United States. From these admitted facts I find that it will
effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Local 50, American Bakery and Confectionery Workers International Union,
AFL-CIO, is and has been at all material times herein a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The Charging Parties, Ethel Fitzpatrick and Jacqueline Hagner, were discharged
by Respondent on February 3, 1959. The General Counsel alleges the discharge and
i The Respondent 's counsel submitted with their brief a number of record corrections.
The corrections all appear to be inadvertent transcription or typing errors and do not
affect the determination herein. No objections have been received and the corrections
are hereby made a part of the official record herein.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued refusal to reinstate these employees to be because said employees joined
and assisted Local 50 and sought to bargain collectively through representatives of
their own choosing and engaged in other concerted activities for the purposes of
collective bargaining, mutual aid, and protection. The Respondent does not deny
the discharges but contends that the discharge of each of these two women em-
ployees was for a good cause and asserts the Respondent's complete lack of knowl-
edge of any union activity by the dischargees or other clerical employees of the
Respondent. The primary issue involved herein is one of motivation.
B. Activities of the dischargees
Both of the Charging Parties had worked for the Respondent Company in excess
of 1 year as comptometer operators in the accounts receivable department of the
Respondent's clerical force. These girls worked on the second floor of the Re-
spondent's main plant in a large open area where there were a number of other
female clerical employees totaling approximately 30 to 35 at all times material herein.
The story unfolded by the two Charging Parties as it relates to their union
interest and activity is substantially the same and may be related as follows: About
January 28 or 29, 1959, they became interested in being represented by a labor
organization. Pursuant to this interest they contacted Mr. Moran, who was a shop
steward of the labor organization herein involved representing the production and
maintenance employees of the Respondent. Following this contact a luncheon
meeting was arranged for February 2, 1959, with Mr. McIntyre, business agent of
Local 50, and Moran, Fitzpatrick, and Hagner. These four people met in a diner
approximately three-quarters of a mile from the Respondent's plant and there the
two girls had explained to them the procedure to be followed in organizing the
clerical employees. Both Fitzpatrick and Hagner signed union authorization cards
at this time, and received similar authorization cards which they intended to dis-
tribute to other clerical employees whom they might interest in seeking the assistance
of a labor organization. As these four people were in the act of leaving the diner,
McIntyre, Fitzpatrick, and Hagner each testified that they saw a Mr. Getty, the
purchasing agent of the Respondent, who was standing at the street corner some 25
feet away from them, apparently waiting for a bus While McIntyre testified that
he waved at Mr. Getty but that Mr. Getty did not acknowledge the wave both Fitz-
patrick and Hagner testified that they nodded to Mr. Getty and that he returned
their nod in a similar manner. There was no testimony from either McIntyre, Fitz-
patrick, or Hagner that Getty mentioned the name of any of the group in his nodding
acknowledgement of their greeting. Moran did not testify at the hearing.
Both Fitzpatrick and Hagner testified that on the afternoon of February 2 they
spoke to several of the other clerical employees, attempting to interest them in the
Union. They were similarly active on February 3. Neither witness, however,
related any incident which indicated that any of the Respondent supervisors might
have seen the union authorization cards possessed by the Charging Parties or had
any knowledge of the conversations which they were having concerning the
Union with their fellow employees. The most that can be gathered from the testi-
mony of these two witnesses of the General Counsel is that some of their con-
versations occurred at the desks of a number of other clerical employees within
the possible sight and possible hearing of some Respondent supervisors. Testimony
also indicated, however, that it was not unusual for the clerical employees to oc-
casionally move from one person's desk to another in the course of their normal
work.
On the afternoon of February 3, 1959, shortly after 4 p.m. each of the Charging
Parties was called to the office of Raymond H. Studley, the controller of Respondent,
and there told that she was being let go. At that time each received their final
paycheck which included 2 days' work for the current partial week, plus their pro-
portionate earned vacation pay and in addition 1 full week's pay.
C. Respondent's contentions
The Respondent contends that it had absolutely no knowledge of the activity or
interest of the Charging Parties, or any other clerical employee, in any labor or-
ganization until they were so informed by the business agent of Local 50, Mr. McIn-
tyre, on February 5, 1959. In addition a great portion of the testimony of Re.
spondent's witnesses outlines the Respondent's reasons for discharging Ethel Fitz-
patrick and Jacqueline Hagrer.
Briefly stated the testimony indicates that Hagner was late 45 times in 1958 and
absent 12 days. In January of 1959 she was late several times and absent at least
3 times The Respondent further contends that on the late evening of February 2,
1959, Hagner spoke disrespectfully to the assistant cashier, Mr. Agnew, on an
S. B. THOMAS, INC. 1437
occasion when he inquired about some work which she was performing. At that
time she stated, "shut up and go away." Thereafter she tossed some work state-
ments toward Mr. Agnew which landed on the floor a few feet away from him.
The occurrence of this event was not denied by Hagner, but was related in a much
less dramatic fashion and purported by her to have occurred approximately 3 weeks
prior to her discharge. Employee Henry Heinz overheard Hagner's remark and he
fixes the time in his testimony as February 2, 1959. On the basis of the entire testi-
mony I find that Hagner made the above-quoted remark to Agnew on February 2.
Fitzpatrick's work record, while definitely not good, was not as bad as that of
Hagner. She frequently voiced complaints concerning staying late to perform work
after her "regular quitting" hours. While Fitzpatrick claims that at the time she
was hired she was told that her regular work hours provided for only a 35-hour
workweek, the credited testimony of other witnesses convinces the Trial Examiner
that the clerical employees had a scheduled 35-hour workweek and were advised
that they might go home upon the completion of their regular schedule provided
their work had been completed; otherwise they would be expected to perform a
40-hour week. This additional work on several occasions had caused differences
between Fitzpatrick and her supervisors and it had been necessary on at least one
occasion for Mr. Studley to advise her that unless she stayed and completed the
work that he would regard her as having voluntarily withdrawn herself from the
labor market. On JanuAry 28, 1959, Studley gave Fitzpatrick a letter (see Respond-
•ent's Exhibit No. 2) which related that there had been telephone calls received at
his home from a person identifying himself as Fitzpatrick's husband in which abusive
language had been used and the complaining party voiced their dissatisfaction with
the late hours of work by Mrs. Fitzpatrick. In addition another telephone call had
been received by the receptionist at the S. B. Thomas Company in a similar vein.
The letter advised Mrs. Fitzpatrick that the Respondent would not tolerate further
actions of this nature and in the event it occurred again it would be necessary to
sever her services. The final event which precipitated Fitzpatrick's release was her
request on February 3, 1959, for additional "time" she believed to be due her.
The record is not entirely clear whether the employee was requesting "time" for
extra work performed during the Christmas week of 1958 or whether it was for
New Year's Day week of 1959. However, the Trial Examiner does not regard this
lack of specificity as material. The record is abundantly clear that the Respondent
regarded her request as the final act of an ungrateful employee who was causing it
considerable difficulty as to her hours of work
At the first of the year (1959) the salaries of the clericals were reviewed and
adjusted. It was particularly significant to the Trial Examiner that the dischargees-
Fitzpatrick and Hagner-were the only comptometer operators that did not receive
an increase. This action by the Respondent, occurring prior to any union interest by
the dischargees, provides the Trial Examiner with an excellent expression of the
Respondent's regard for Fitzpatrick and Hagner in a completely "union free"
atmosphere.
D. Legal conclusions
I have set forth the Respondent's reasons for the discharge of Fitzpatrick and
Hagner only briefly in order to show that the Respondent had reasons wholly dis-
associated from the union activity of these two employees upon which it based their
discharges It is well-established court and Board law that an employer may dis-
charge an employee for a reason, or no reason, so long as the reason is not because
of the employee's union activity or interest.2 The Trial Examiner is convinced from
the entire record in this case that Fitzpatrick and Hagner were not satisfactory
employees and but for a tight labor market and a pressing work problem among
the clerical employees would have been released by the Respondent at a much
earlier date than February 3, 1959. However, the accepted and credited reasons
advanced by Respondent for the discharge of Fitzpatrick and Hagner do not provide
the Trial Examiner with the only basis upon which this case shall be disposed.
A vital issue in this case concerns company knowledge, or lack of knowledge, of
the union activity of the dischargees or any other employee within the clerical
department of the Respondent. The principle is well established that employer
knowledge-either directly or as a reasonable inference under all of the circum-
stances-is an essential ingredient to sustain an 8(a)(3) violation of the Act.3 I
2 For a recent pronouncement of this long-standing principle see N.L.R . B. v. Peerless
Products , Inc., 264 F 2d 769, 772 (C A. 7)
8 The principle is so well established in both Board and court decisions that citations
are hardly necessary but see for example Marion Mills, 124 NLRB 56, and Union News
Company, 112 NLRB 420.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accept as a fact that the dischargees, Fitzpatrick and Hagner, signed union authoriza-
tion cards (see General Counsel's Exhibit No. 2) and that on the afternoon of
February 2, 1959, as well as during the day on February 3, 1959, these two em-
ployees discussed among other clerical employees the possibilities of joining the
Union. However, the testimony of neither of these two employees indicate any
occurrence under which the supervisors of Respondent might have acquired knowl-
edge of what the girls were doing. Both testified that it was not unusual for them
to do some moving around from desk to desk in the course of their regular employ-
ment. In fact their own testimony indicates that they were very circumspect in their
use of the authorization cards and at most the only possible inference is that some
of the supervisors could have seen their activity and could possibly have overheard
their conversation. The supervisors that testified for the Respondent all emphatically
denied any knowledge of union activity by any clerical until after the discharges
had occurred and they were questioned by Plant Manager Edward Jones who was
directly responsible for all labor relations of the Respondent. Jones had received
his information concerning activity among the clericals from McIntyre, the business
agent of Local 50, following the discharges. Mr. Jones also testified that he had
absolutely no knowledge of any interest on the part of Local 50 among the clericals
until he was so notified by Mr. McIntyre. I credit the testimony of the Respondent
supervisors as to their complete lack of knowledge of any interest on the part of
the clerical employees in Local 50, or any other labor organization, until after the
discharges occurred on February 3, 1959.
McIntyre, Hagner, and Fitzpatrick each testified that as they were leaving the
diner with Moran on February 2, 1959, that they were seen by Mr. Getty, the
purchasing agent for the Respondent Company. In spite of the fact that Mr. Getty
suffered a heart attack in March of 1959, and has not returned to the Respondent's
plant for work since that attack and is still under a physician's care and direction,
he was called as a witness and testified in this case. Getty testified that the only
possible reason that he would ever have occasion to be in the vicinity of the diner
would be on the occasions of his making bank deposits at his bank, which is located
in the general vicinity of the diner, or on his return home from work in the evening
at which juncture he makes a commuter's bus stop change on his way home. Getty
exhibited all of his bank deposit slips for the months of January and February 1959,
which failed to indicate that he had made a bank deposit on February 2, 1959. At
the hearing each of the dischargees were called forward and Getty was asked if he
recognized either of them. Getty was quite certain that he had never seen either
of these dischargees and had absolutely no knowledge of their ever having been
employees of the Respondent. From my observations of Getty I am convinced
that he is an honest, sincere individual who would not commit perjury under any
circumstances and I accept his testimony as being creditable. In so doing I do
not, conversely, indicate that witnesses McIntyre, Hagner, and Fitzpatrick, de-
liberately lied, but I am convinced that if they did in fact see Getty on February 2,
1959, that Mr. Getty had absolutely no recollection of the event and did not recog-
nize any of these people and therefore could not have informed any other super-
visors of the Respondent as to this event.
The General Counsel argued at the close of the hearing that in spite of the paucity
of evidence as to company knowledge that the Board frequently infers company
knowledge of union activities under circumstances where but a few employees are
involved as was true in this situation. In support of this argument the General
Counsel cited N.L.R.B. v. Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149,
enfd. 185 F. 2d 285 (C.A. 2), cert. denied 342 U.S. 812 and Stokely Foods, Inc.,
91 NLRB 1267, enfd. 193 F. 2d 736 (C.A. 5). It should be noted, however, that
in both of the cases cited by the General Counsel there was also found other
independent 8(a)(1) violations and under all the circumstances of the cases the
Board concluded that company knowledge was a reasonable inference. In the
instant case there were not any allegations of independent violations of 8(a)(1)
nor was there any evidence received at the hearing touching on such activity either
currently or for background purposes. To the contrary the limited evidence received
clearly indicates that the Respondent Company and Local 50 have had a normal labor
management relationship for a period of approximately 20 years during which time
Local 50 has represented the production and maintenance employees of Respondent.
This record is void of any evidence reflecting union animus by the Respondent. In
the case of Hadley Manufacturing Corporation, 108 NLRB 1641 at page 1650 the
Board stated:
However, the mere fact that Respondent's plant is of a small size, does not
permit a finding that Respondent had knowledge of the union activities of
specific employees, absent supporting evidence that the union activities were
TOL-PAC, INC. 1439
carried on in such a manner, or at times that in the normal course of events,
Respondent must have noticed him.
After a careful review of the Board and court cases dealing with the question of
inferred company knowledge the Trial Examiner is convinced that these decisions
hold that company knowledge of union activity may be inferred , provided it is a
reasonable inference under all of the circumstances of the case . The size of the
plant is only one circumstance or factor which is to be considered in the resolution
of such inference?
Under all the circumstances of this case and particularly including the credited
testimony of the Respondent 's supervisors it is impossible to arrive at a conclusion of
inferred knowledge on the part of the Respondent of union activity among their
clerical employees . I find that the Respondent had absolutely no knowledge of
union activity among its clerical employees and specifically the dischargees, Fitz-
patrick and Hagner, on February 3 , 1959. Based on the findings and reasons set
forth above I shall recommend dismissal of the complaint in its entirety.5
Upon the above findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication.]
' Compare Wiese, Plow Welding Co., Inc., 123 NLRB 616 , and Diamond Ginger Ale,
Incorporated , 125 NLRB 1173.
5 At the hearing the Trial Examiner rejected Respondent 's Exhibit No . 1, a decision of
New York State Unemployment Insurance Section involving Hagner, and General
Counsel's Exhibit No. 5, a transcript of the hearing before the same State agency. In
accordance with the Board's decision in Cadillac Marine and Boat Company , 115 NLRB
107, footnote 1, the Trial Examiner 's ruling at the hearing is hereby reversed and the
exhibits received and made a part of the official record herein.
Tol-Pac , Inc. and International Longshoremen 's Association,
Local 1317, AFL-CIO, Petitioner. Case No. 8-RC-3826. Au-
gust 31, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John Vincek, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Jenkins and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in the commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
128 NLRB No. 132.