Southern Wire and Iron, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1957

118 N.L.R.B. 820 (N.L.R.B. 1957)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 986 AND TO ALL EMPLOYEES OF
MAX FACTOR & COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Max Factor & Company
to discriminate against employees in violation of Section 8 (a)
(3) of the National Labor Relations Act as amended.
WE WILL NOT give effect to the contract of June 13, 1956, with
Max Factor & Company, or to any extension, renewal, modifi-
cation or supplement thereof, or to any superseding agreement,
unless and until Local 986, International Brotherhood of Team-
sters, AFL-CIO, shall have been certified by the National Labor
Relations Board as the representative of the employees of Max
Factor & Company.
WE WILL NOT in any other manner restrain or coerce employees
of Max Factor & Company in the exercise of the rights guaranteed
by Section 7 of the Act, 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
by Section 8 (a) (3) of the National Labor Relations Act.
LOCAL 986, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , AFL-CIO,
Union.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Southern Wire and Iron , Inc. and Construction and General
Laborers' Union Local No. 438, International Hod Carriers',
Building and Common Laborers ' Union of America , AFL-CIO.
Case No. 10-CA-2646. July 25,195 7
DECISION AND ORDER
On December 20, 1956, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
118 NLRB No. 100.
SOUTHERN WIRE AND IRON, INC. 821
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter the Respondent filed
exceptions to 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 Interme-
diate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Southern Wire
and Iron, Inc., Scottdale, Georgia, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the Construction and General La-
borers' Union Local No. 438, International Hod Carriers', Building
and Common Laborers' Union of America, AFL-CIO, or in any other
labor organization of its employees, by discharging them or in any
other manner discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment, except to the extent
permitted by Section 8 (a) (3) of the Act.
(b) Interrogating its employees concerning their union member-
ship and activities; threatening discharge because of union member-
ship and activities or because of refusals to reveal the names of union
adherents; threatening arduous and unpleasant work for failure to
inform on union activities and for failure to inform the Respondent
why an employee's name was contained in a charge filed with the
Board; threatening to engage in surveillance of union meetings or in
other forms of surveillance; or instructing employees to inform on
union members and promising reinstatement or financial benefits
for such information.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join or assist the above-named Union, or any other labor organ-
ization, to bargain collectively through representatives of their own
I The Respondent excepts only to the finding that it violated Section 8 ( a) (1) and (3)
by the discriminatory discharge of John Fowler. Respondent offered no testimony to
refute the witnesses for the General Counsel. Contrary to the Respondent' s contention,
we find that the pendency in a State court of a civil action brought by Fowler for damages
allegedly sustained by reason of the acid tank incident here involved does not excuse the
Respondent 's failure to adduce contradicting evidence in a Board proceeding.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended , the Board has delegated its powers in connection with this case to a three-
member panel [ Chairman Leedom and Members Murdock and Jenkins].
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid and protection, or to refrain
from engaging in any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer John Fowler immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority and other rights and privileges, and make him whole in
accordance with the Board's usual remedial policies (Chase National
Bank, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; F. W.
Woolworth Co.) 90 NLRB 289) ; for any loss of pay he may have
suffered since June 4, 1956, by reason of the discrimination against
him.
(b) Preserve ,and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records relevant to a determination and verification of
the amounts of back pay due to the complainants under the terms of
this Order.
(c) Post in its plants at Scottdale, Georgia, copies of the notice
attached to the Intermediate Report marked "Appendix A." 3 Copies
of said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order as to what steps it
has taken to comply herewith.
8 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof the words "A Decision and Order." In the
event that this Order is enforced by a decree of a United States Court of Appeals, the
notice shall be further amended by substituting 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."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act as amended (61 Stat. 136), was heard in Atlanta, Georgia, on November 14
and 15 , 1956 , pursuant to due notice. The complaint , issued on July 18 , 1956, by
SOUTHERN WIRE AND IRON, INC. 823
the General Counsel of the National Labor Relations Board,' and based on charges
duly filed and served, alleged in substance (as amended at the hearing) that Re-
spondent had engaged in unfair labor practices proscribed by Section 8 (a) (1) and
(3) of the Act by discharging John Fowler on or about June 5 because of his union
membership and activities and by engaging in various specified acts of interference,
restraint, and coercion from April 12 to July 2. Respondent, by its answer filed
July 26, denied the commission of unfair labor practices as alleged.
All parties were represented by counsel and were afforded full opportunity to
participate in the hearing and to file briefs and proposed findings of fact and con-
clusions of law. Oral argument was waived; the General Counsel has filed a brief.
At the close of the hearing, Respondent moved to dismiss on the ground that the
charges had been filed after the representation petition in Case No. 10-RC-3544,
that there had been no waiver of that proceeding, and that the Board could not
proceed herein without such a waiver. Respondent's counsel stated he had no
authority to support his position and he has filed no brief. The General Counsel
interpreted the motion to relate to the fact that the Union had filed a waiver of
charges for the purpose of enabling the representation case to proceed. As so
interpreted, Aerovox Corporation (supplemental decision), 104 NLRB 246, 247,
is dispositive of Respondent's motion. If the motion is interpreted literally,
N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79, 86 (C. A. 9) affd. 346 U. S. 482,
is dispositive. Under any interpretation, the motion is hereby denied.
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; THE LABOR ORGANIZATION INVOLVED
I find upon facts alleged in the complaint and admitted in the answer (i. e., annual
shipments extrastate exceeding $500,000) that Respondent is engaged in commerce
within the meaning of the Act; and I find on stipulation of the parties that the Union
is a labor organization as defined in Section 2 (5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The General Counsel called some 14 employee witnesses who testified to numerous
incidents of interrogation, threats, promises of benefits, and instructions to report
the identities of, and otherwise to inform on, union adherents and activities. Most
of such acts were attributed to Respondent's president, Charles Z. Borochoff, and
to its supervisors, Kennedy and Pettus, and the remainder to foremen of less than
supervisory rank under such circumstances that Respondent's responsibility was
clearly established? Since Respondent offered no evidence to refute that testimony,
much of which was cumulative and mutually corroborative, it is unnecessary to
The General Counsel and his representative at the hearing are referred to herein as
the General Counsel, and the National Labor Relations board as the Board. Southern
Wire and Iron, Inc., is referred to as Respondent and as the Company, and the Charging
Union as the Union and as Local 438.
All events herein occurred in 1956.
'The Board found, in its Decision and Direction of Election in Case No. 10-RC-3544,
that the foremen in question did not possess supervisory powers. Though accepting that
finding here, the General Counsel contended that Respondent had held those foremen out
as representatives of management and was consequently responsible for their conduct.
I find that the evidence establishes that Respondent placed the foremen in such a
position as to identify them with management in the eyes of the employees, giving them
just cause to believe that the foremen were acting for and on behalf of management.
International Association of Machinists v. N. L. R. B., 311 U. S. 72 ; Birmingham Post
Co. v. N. L. R. B., 140 F. 2d 638 (C. A. 5) ; Harrison Sheet Steel Company, 94 NLRB 81,
enfd. 194 F. 2d 407 (C. A. 7). Indeed, the foremen actually participated with Borochoff
in some of his inquisitions, and they were otherwise so engaged in a parallel course of
conduct, with such coincidence of acts of hostility as to justify in the minds of the
employees unity and identification as between the foremen and management. N. L. R. B.
v. Laister-Kauffman Aircraft Corp., 144 F. 2d 9, 15 (C. A. 8).
Actually the evidence concerning the foremen's conduct is cumulative, requiring neither
a broadening of the findings of unfair labor practices nor of the scope of the remedial
order.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
summarize in detail the testimony of the individual witnesses ; it will suffice to find
the ultimate facts which are established by the undenied testimony and to cite
occasional examples of testimony to illustrate the. full flavor of the evidence and the
flagrancy of the unlawful conduct.
On April 12, the Union had distributed among the employees printed invitations
to a unio>} "party" or meeting to be held on April 14. On April 13, Borochoff
directed Helen Eubanks, a forelady in the upholstery department, and Bertha
Mitchell, her assistant, to inform the girls in their department that if they attended
the meeting they would be discharged and that he would know, or find out, whether
they went. Eubanks and Mitchell complied, and Eubanks reported back to Boroch-
off that she did not think he would have any trouble because she thought the employees
were afraid to go to the meeting. Other similar orders and threats were repeated by
Borochoff around April 16, 17 and 31, relating both to attending union meetings
and talking with union representatives. In some cases the threatened penalty was
expressed in terms of a vacation without pay, sending the employee home, or
(in the case of Elijah Norrington) to "fire all the colored boys and have all white
people working there." 3
On a number of other occasions (April 31, June 1, 4, 6, 8, 12, and mid-July)
Borochoff, Kennedy, and Pettus questioned employees at length concerning their
union membership and their knowledge of union activities, and directed them to find
out what they could and to report what they had learned concerning the identity of
the members and the leaders in the union drive. In some cases the instructions were
implemented with promises of raises in pay and in some by threats of discharge or
layoff or of more arduous work assignments.
Foremen Memphis Heard, Otis Bryant, Henry Mitchell, Philip Cook, and Oscar
Wilder were participating concurrently in a parallel course of conduct, sometimes
with offers of money and sometimes with representations that Borochoff would pay
substantial sums for information regarding the union activities and the identities of
union members. Bertha Billingslea and Etheleen Welch testified also that around
June 8 (after a layoff) Bryant, after questioning them concerning their knowledge of
union activities, promised to see that they would get their jobs back if they would
tell him what they knew.
That the participation by the foremen was with Borochoff's knowledge was shown
by the testimony of Mary Alexander and Della Tomlinson. Thus Alexander testi-
fied that on June 4, Borochoff, after questioning her about signing a union card
and about whether she knew of others who had signed, summoned Memphis Heard
to continue the inquisition. Tomlinson testified that on June 8 (after a layoff) she
returned to the plant pursuant to a letter from the Company. Borochoff questioned
her at length in his office in Wilder's presence concerning why her name was on the
charge filed with the Board and threatened to have her jailed unless she told the
truth or to put her to work on the acid tank so that she would have to talk.
Then, while Borochoff was present at least part of the time, Bryant, Cook, and
Henry Mitchell also came in and urged her to tell Borochoff the truth and to tell
on the others even if she did not tell on herself.
Tomlinson testified further that Borochoff not only followed through on the
threat of assigning her to more arduous work, but that he ordered Jesse (to whom
she was assigned) to get her to talk or to frighten her into quitting inasmuch as he
was unable to discharge her because her name was contained in the charge.
It is concluded and found on the basis of the entire evidence that by interrogating
its employees concerning their union membership and activities, by threatening
discharge because of union membership and activities or because of refusals to reveal
the names of union adherents, by threatening arduous and unpleasant work for
failure to inform on union activities and for failure to inform Respondent why
an employee's name was contained in a charge filed with the Board, by threatening
to engage in surveillance of union meetings or in other forms of surveillance, and
by instructing employees to inform on union members and promising reinstatement
or financial benefits for such information, Respondent interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act.
B. Discrimination-the discharge of John Fowler
Fowler had been employed since 1953, and for over 2 years he had worked in
the stockroom as a stock and receiving clerk, working directly under Borochoff.
Fowler joined the Union in May 1956, and was active in attending meetings and in
soliciting membership both before and after he joined. Though there is no evidence
3 Norrington and the other employee witnesses were colored.
SOUTHERN WIRE AND IRON, INC . 825
that Borochoff was aware of Fowler's earlier participation in the organizational
efforts, it did show that by June 1, Borochoff strongly suspected not only that
Fowler was a union member but that he was a leader in the campaign.
Thus Fowler testified (without denial) that on June 1, Borochoff asked him to
find out what the girls in the upholstery department knew about the Union. Later
on the same day, Borochoff sent for him to come to the office and there in the
presence of Heard, requested Fowler to produce his driver's license. When
Fowler handed over his billfold and cardcase, Borochoff looked through the bills
and papers and said, "You're clean. Where's your union card?" Fowler replied
that he did not have it.
When Fowler reported to work on June 4 (the next workday), Borochoff first
told him to stay on the platform 4 and that the first time he made a mistake he
would be fired. Borochoff later came into the shop and directed Kennedy and
Russell to take Fowler from the stockroom and put him on the acid tank. The
acid tank work required gloves which Fowler did not have, and when he told
Borochoff he needed a pair of gloves, Borochoff stated he did not have any but
when he got some he would let Fowler know. Fowler was able to borrow a pair,
but after a couple of hours the lender took them back. Fowler nevertheless worked
the remainder of the day without gloves, despite the fact that his hands were
burned by coming in contact with the acid. During that time Pettus called Fowler
from the acid tank platform and told him:
John, you've got yourself on the spot. You know you haven't got any business
on that acid tank because you have asthma. Tell me the name of the people
that are helping you organize the union . . . You know who they are; don't
you? [Emphasis supplied.]
When Fowler replied that he knew but would not tell on them and get them into
trouble, Pettus continued, "You've got yourself on a spot. You'd better think it
over and let me know."
Fowler testified further that at the end of the workday Pettus asked him again
if he had decided to tell the names of the people who belonged to the Union and
Fowler replied that he had not. Pettus continued that the only thing for Fowler
to do was to stop work, and that if he would do so, Pettus would try to get him 3
weeks with pay. Fowler refused, stating that he would not stop work and would
not tell the names of the people who belonged to the Union.
Fowler testified further that when he reported for work on the morning of June 5,
Pettus again inquired whether he had decided to tell the names of the employees
who belonged to the Union. When Fowler refused, Pettus stated that the only
thing for Fowler to do was either to inform on the members of the Union, or stop
work, or remain on the acid tank. Fowler stated he would not divulge the names
of the union members and he would not stop work. Pettus then requested him
not to agitate the union outside the shop, and Fowler replied that he would not
promise anything, that he would work anywhere they wanted him to work, except
that he would not work on the acid tank without gloves. Pettus then took Fowler's
identification button and keys and told him to return on Friday and get his pay.
Respondent offered no evidence to refute Fowler's testimony. Certain lines of
cross-examination endeavored to imply that Fowler may have had some hand in a
supposed theft of furniture, or that he was at least suspected of so having. However,
further examination disclosed that the incident had occurred some 2 months before
Fowler was discharged, that Fowler was guiltless, and that Borochoff had expressed
a belief to that effect to the investigating detectives. Furthermore the subject was
not again referred to, and it was not mentioned at the time of Fowler's discharge.
The foregoing evidence shows plainly that on June 1 Respondent apparently
suspected for the first time that Fowler was participating in, if not leading, the
union activities, that on June 4 he was transferred to a more arduous job in an
effort to make him divulge the names of employees who were assisting him in
organizing the Union, or to force him to quit, and that after his repeated refusals
to do either he was discharged by Pettus on the morning of June 5. Although no
corroboration is necessary in view of Fowler's undenied testimony, the other unre-
futed testimony summarized under section A, supra, showed that Respondent was
engaged in an unremitting campaign of inquisitions designed to discourage the
employees in their organizational efforts and to ferret out and to discharge those
who were leading the organizational drive.
4 Fowler testified that it was impossible to perform all his duties as stock and receiving
clerk on the platform and that he had never done so.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is therefore concluded and found that Respondent discharged Fowler on June
5 because of his membership in and activities on behalf of the Union, thereby dis-
couraging membership in the Union.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of John
Fowler, thereby discouraging membership in the Union, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
and (1) of the Act.
4. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondent's business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning of Section 2 (6) and
(7) of the Act.
THE REMEDY
It having been found that Respondent engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and that it take certain affirma-
tive action, which I find necessary to remedy and to remove the effects of the unfair
labor practices and to effectuate the policies of the Act. For reasons stated in
Consolidated Industries Inc., 108 NLRB 60, 61, I shall recommend a broad cease
and desist order.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Construction and General Laborers'
Union Local No. 438, International Hod Carriers', Building and Common
Laborers' Union of America, AFL-CIO, or in any other labor organization
of our employees by discharging them or in any other manner discriminating
in regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT interrogate our employees concerning their union member-
ship and activities or threaten to discharge them because thereof or because
of refusal to reveal the names of union members; threaten arduous and un-
pleasant work for failure to inform on union activities and for failure to inform
us why an employee's name was contained in a charge filed with the Board;
threaten to engage in surveillance of union meetings or in other forms of
surveillance; or instruct employees to inform on union members or promise
reinstatement or financial benefits to employees for such information.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to join or assist
Construction and General Laborers' Union Local No. 438, International Hod
Carriers' Building and Common Laborers' Union of America, AFL-CIO, or
any other labor organization, to bargain collectively through representatives
of their own choosing, or to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the National Labor
Relations Act.
THE HOLMES CONSTRUCTION CO. 827
WE WILL offer to John Fowler immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to his seniority
and other rights and privileges , and make him whole for any loss of pay he may
have suffered by reason of our discrimination against him.
All our members are free to become or refrain from becoming . members of the
above Union or any other labor organization.
SOUTHERN WIRE AND IRON, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
The Holmes Construction Co. and William McMahon , its agent'
and Harold A. Hanlon and Carpenters District Council of Madi-
son County , Illinois, and Vicinity, affiliated with United
Brotherhood of Carpenters and Joiners of America , AFL-CIO,
and Local 633, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, Parties to the Contract
Carpenters District Council of Madison County, Illinois, and
Vicinity, affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and Local 633, United Brother-
hood of Carpenters and Joiners of America , AFL-CIO, and
William McMahon , their agent and Harold A. Hanlon and The
Holmes Construction Co., Party to the Contract. Cases Nos.
14-CA-1485 and 14-CB-378. July 05,1957
DECISION AND ORDER
On January 11, 1957, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report, attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and supporting brief. The Respondents
filed no exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Leedom and
Members Murdock and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
118 NLRB No. 101.