T. J. Fleming Co.

National Labor Relations Board - Board Decisions

Aug 30, 1965

154 N.L.R.B. 800 (N.L.R.B. 1965)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence that any employee was required to join the Reform Mine
Workers (Garrison) as alleged in paragraph 6(c). Again to the contrary, the only
"new" employee who testified, Don Williams, testified that no one asked him to
join the Reform Mine Workers between September and November.
The evidence to support paragraph 6 is not minimal, it is nonexistent.
Paragraph 8 alleges that Carl Skeens and Don Williams were discharged because
of their activities on behalf of and sympathy for UMW. Neither, as a matter of
fact, was discharged. Williams, as he admitted, was bumped from his job on
November 6 in accord with the seniority provisions of the bargaining agreement.
He was rehired January 14 and would have been rehired before that date if he had
been at home when he was sent for by Wiseman.
Skeens was told by Wiseman when he was laid off that it would be for a few
days or a week and indignantly told Wiseman that he did not want to work for
Garrison again. Under this circumstance I cannot find that Respondent was under
any obligation to offer him reemployment unless his union activity was the cause
of his discharge.
The General Counsel presumably relies, and again I must make an assumption
of his theory, on the fact that Skeens and Williams signed cards with UMW on
November 5 and were laid off on the following day to establish an inference of
discriminatory motive. The timing does create suspicion, of course, but I do not
think that post hoc ergo propier hoc rationale is sufficient in itself to substitute for
proof. I find no other factor to support a finding of discrimination Respondent,
through Bullock, had indicated an indifference toward union designation by the
employees on July 21, and there was no evidence of any change in Respondent's
attitude after that date. Respondent, if it knew of the signing of cards by the
two Skeens and Williams on the previous day, would also have known that they
were the only three to sign and the majority of the employees had rejected the
UMW. Thus there was no threat of representation by the UMW and no action was
called for to thwart such a move. This does not, of course, preclude the possibility
that Respondent took such action precipitately and without deliberation of its
necessity. But this requires overlooking the testimony, which I credit, that both lay-
offs were occasioned by factors which were not discriminatory and both were
intended to be of temporary duration. In the absence of other unfair labor practices
and of any display of hostility toward the UMW (the UMW representatives were
given permission to talk to the employees on company property) the timing of the
layoffs does not establish that the motive was discriminatory.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. Local 50, Reform Mine Workers Union, Logan, West Virginia; Local 50,
Reform Mine Workers Union, Garrison, West Virginia, District 17, United Mine
Workers, are labor organizations within the meaning of the Act
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
T. J. Fleming Company and District Lodge 71, International
Association of Machinists , AFL-CIO. Case No. 17-CA-2556.
August 30,1965
DECISION AND ORDER
On June 8,1965, Trial Examiner W. Edwin Youngblood issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and recommending
154 NLRB No. 70.
T. J. FLEMING COMPANY 801
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. The Trial
Examiner further found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended dismissal as to them. Thereafter, the General Counsel filed
exceptions to the Decision and a supporting brief. Respondent filed
limited cross-exceptions on a procedural issue, a brief in support
thereof, and an answering brief to the General Counsel's exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Jenkins and Zagorial.
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
Decision, the exceptions, cross-exceptions, and briefs, and the entire
record in this case, and hereby adopts the findings, conclusions, and,
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as,
its Order the Recommended Order of the Trial Examiner, and
orders that Respondent, T. J. Fleming Company, Kansas City,,
Kansas, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.2
1In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's findr
ings as to violations of Section 8(a) (1) of the Act
Respondent renews its motion to strike certain pleadings relative to the alleged dis-
criminatory discharge of employee Ramirez on the ground that the preparation, of its
defense was hampered by alleged instructions from Counsel for the General Counsel to,
Ramirez not to talk to Respondent 's counsel . In view of our affirmance of the Trial
Examiner's Decision which found that Ramirez was not discriminatorily discharged, the,
motion to strike such pleadings is now moot, and we find it unnecessary to consider or
pass on the merits of such motion We note, in any event, that we have permitted'
defense counsel to interrogate employees, whether alleged discriininatees or prospective,
witnesses, about matters relevant to the complaint when proper safeguards are observed,
See Johnnie's Poultry Co , 146 NLRB 770, 774-776.
9 The telephone number for Region 17, appearing at the bottom of the Appendix at,
tached to the Trial Examiner's Decision, is amended to read: Telephone No. 221-2732;
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding arises upon the complaint of the General Counsel issued Decem
ber 2, 1964,' upon a charge filed October 27, by District Lodge 71, International'
Association of Machinists, AFL-CIO, herein called the Union. The complaint
alleges that T. J. Fleming Company, herein called Respondent or the Company,
violated Section 8(a)(1) of the Act by interrogating employees concerning unjoj
1 Unless otherwise indicated , all dates herein are in 1964.
206-446-66-vol. 154-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, and violated Section 8(a)(3) of the Act by discharging Refuglo Ramirez
and Benjamin L. Muro. Respondent's answer to the complaint denies the com-
mission of any unfair labor practices.2
All parties were represented at the hearing which was conducted on February 15,
1965, before Trial Examiner W. Edwin Youngblood in Kansas City, Missouri.
Briefs have been received from the General Counsel and the Respondent.3
Upon the entire record,4 including my evaluation of the witnesses based on the
evidence 5 and my observation of their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Missouri corporation, is engaged in the sale and repair of railroad
equipment at its office and plant at Kansas City, Kansas. Respondent annually
purchases materials valued in excess of $50,000 directly from outside the State of
Kansas, and annually sells goods and renders services valued in excess of $50,000
directly to customers outside the State of Kansas. Respondent admits, and I find,
that it is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The interrogations
On August 19, the Union filed a petition for certification as bargaining repre-
sentative of the employees of Respondent. On the morning of August 20 (following
receipt of this petition by Respondent) former employees Leo Arzola and Joe
Ramirez along with employee John Florez were called down to the office by T. J.
Fleming, Respondent 's president . 6 After they were seated in his office , Fleming
said, "Somebody here turned us in to the Union," and that he wanted to find out
"who it was" Fleming asked each employee there if he was the one and each
employee denied that he was. Fleming also said that if any of the employees present
had a gripe they ought to leave. Fleming stated that somebody had to start the
Union. Joe Ramirez asked, "Why us, you have 14 men working for you."
Fleming replied that he had called everybody in and everybody had denied it and
that he had never had a union and he did not want one.
2 On February 8, 1965, Respondent filed a motion to strike pleadings insofar as Gen-
eral Counsel 's pleadings refer to the alleged discriminatory discharge of Refugio Ramirez.
The basis of the motion was the alleged inability of Respondent to interview Ramirez in
preparation of its defense because of instructions to Ramirez from General Counsel.
General Counsel filed a statement in opposition to Respondent ' s motion to strike I denied
Respondent's motion at the opening of the hearing At the conclusion of General Coun-
sel's case -in-chief, and after Ramirez had testified , I inquired of Respondent's attorney
if he was ready to proceed with his defense or if he would like some time for preparation,
and was informed that Respondent was ready to proceed In its brief , Respondent re-
newed the motion. I adhere to the ruling made at the hearing.
3 Respondent attached to Its brief copies of a determination of the Kansas State De-
partment of Labor relative to the unemployment compensation claim of Refugio Ramirez
which was issued after the hearing closed This document was not received in evidence
and Is not therefore part of the record in this case. Accordingly , I have given no con-
sideration to it in evaluating the merits of this case
*I received a stipulation to correct the transcript forwarded by the General Counsel,
and the transcript is ordered corrected in accordance with the stipulation with the
following additions.
6(a). Page 11 , line 19-change "Trial Examiner" to "Mr. Bruckner"
16(a). Page 126 , line 10-change "I believe that is what he said " to "Just tell
us what you said."
The document marked as Respondent 's Exhibit No 6 in the exhibit file is actually part
of Respondent's Exhibit No. 8. Respondent's Exhibit No. 6 was withdrawn at the hear-
ing and therefore not received in evidence It is hereby ordered that the document
marked Respondent's Exhibit No 6 be changed to read Respondent's Exhibit No. 8.
6 The parties stipulated that the Regional Director had found that Joe Ramirez was
a supervisor.
T. J. FLEMING COMPANY 803
Fleming called Refugio Ramirez in the same morning and asked him if he knew
anything about the Union. Ramirez replied that he knew nothing about it. Flem-
ing then advised Ramirez that the Union was trying to get in, that he did not
know who was trying to bring it in, but he would find out who was trying to bring
it in
Benjamin Muro was also called into Fleming's office on the morning of August 20
and asked if he was the one who was trying to bring a union in. Muro replied,
"No" and Fleming said, "Somebody is" and Muro went back to work.?
On the afternoon of August 20, Arzola was called down to talk to Fleming's sons,
Tom and Joe Fleming. Both Tom and Joe Fleming are admittedly agents and/or
supervisors of Respondent. Joe Fleming said that he wanted to talk about "this
union business," and said that the Union was not any good, the Company was too
small and "We don't need no union . . Joe Fleming asked Arzola if he knew
anybody who had a gripe and when Arzola replied that he did not, Joe Fleming
asked him if he had a gripe. Arzola replied in the negative adding that he had
not been there "too long." 8
Sometime during the same afternoon, Refugio Ramirez was called into the office.
Joe and Tom Fleming and Ramirez were the only ones present. Tom Fleming
asked Ramirez if he was satisfied working for him and Ramirez replied that he was.
Tom Fleming then said that the Union was going to cut their wages if it got in,
and also said that if any employee had any "gripe" to come in and they would iron
it out.9
On the afternoon of August 20 about 1 p.m., Tom and Joe Fleming called Muro
into the office and asked him if he "had any gripe or complaints or anything like that,
that we could straighten them out, that we didn't have to bring no union in."
Muro replied that he had no complaints.10
Joe Ramirez was talked to in Fleming's office by Tom and Joe Fleming right
after lunch on August 20. Tom Fleming asked him if he knew anything about the
Union or who had started it, and also told him that they were going to fight the
Union and had turned everything over to their attorneys. After being asked three
times by General Counsel if anything else was said, Joe Ramirez testified that Tom
Fleming then said, "Anyway, we are going to try to eliminate the votes before the
voting."
Tom Fleming testified that on the day the Company received the petition, he
and his brother contacted the lawyer who handled all their general legal work
about the petition. They asked the lawyer if it would be all right to talk to the
men about the petition, and were informed that it was all right. Shortly after lunch,
Tom and his brother began calling the men in one by one. Neither Tom Fleming
nor his brother Joe denied the testimony of Arzola, Muro, and the two Ramirezes
except on one point. Tom and Joe Fleming both specifically denied that Tom
Fleming told Joe Ramirez that he was going to try to eliminate votes. It is signifi-
cant that none of the three other employees who were interviewed that afternoon
and who testified as witnesses for General Counsel testified as Joe Ramirez did in
this regard. I was impressed with Tom Fleming's candor insofar as these inter-
views were concerned. Accordingly, I reject Joe Ramirez' testimony on this point
and credit Tom Fleming's denial.
It is clear from the foregoing that promptly after receipt of the Union's petition
Respondent, acting through President T. J. Fleming and his sons Tom and Joe
Fleming, commenced interrogating its employees in the office in an effort to ascer-
tain the identity of the Union's adherents. Thus, T. J. Fleming advised employees of
the Union's appearance on the scene and stated that he wanted to find out who
brought the Union in. Likewise, the inquiries of Joe and Tom Fleming as to which
employee had "gripes" were designed to learn the identity of union adherents appar-
ently on the not-unlikely theory that it would be the employees who had gripes
who wanted the Union to come in. Moreover, Tom Fleming's purpose in conduct-
ing the interviews is made even clearer because in the interview, with Joe Ramirez,
Tom Fleming squarely asked Ramirez if he knew anything about the Union or
who had started it. Such widespread interrogations seeking to learn the identity of
the employees who started the Union and other union adherents conducted in this
locus of authority clearly tend to coerce and restrain employees in the exercise of
7 The foregoing findings are based on the credited and virtually undisputed testimony
-of Arzola , Joe Ramirez , Refugio Ramirez , and Muro According to Fleming the essence
of these conversations was "what grievance did they have that we couldn't correct
ourselves."
8 The foregoing is based on the credited testimony of Arzola
0 The foregoing is based on the credited testimony of Refugio Ramirez.
10 The foregoing is based on the credited testimony of Muro.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rights guaranteed by Section 7 of the Act.11 Respondent contends, however,,
that any coercive effects of the interviews were nullified or dissipated by Tom
Fleming's speech delivered some 3 or 4 days later to employees (Respondent's
Exhibit No. 4). This contention must be rejected because it is clear that the speech,
did not specifically refer to the widespread interrogations described above of Tom,
Joe, and T. J. Fleming, and thus did not specifically repudiate the prior unlawful
conduct.12 Accordingly, I find and conclude that Respondent violated Section
8(a)(1) of the Act by the conduct of T. J. Fleming and his sons, Tom and Joe,
Fleming, as set forth above.
B. The alleged discriminatory discharges
1. The discharge of Refugio Ramirez
Ramirez worked for Respondent on three separate occasions. The first period
of employment began in October 1963 and ended in June 1964 when, according-
to Ramirez ' testimony, he quit. Ramirez was reemployed in August. On August 21,
Ramirez signed a union card. As set forth above, T. J. Fleming called Ramirez
and other employees in on August 20 and interrogated them about the Union, and
Joe and Tom Fleming also questioned him and other employees on August 20. On
September 9 Ramirez was fired in T. J. Fleming's office. T. J. Fleming, Tom and
Joe Fleming, and a man from Westinghouse Air Brake were present in the office.13
Ramirez testified that he walked in the office, and T. J. Fleming asked him if he was
supporting his children, and when he replied in the negative, T. J. Fleming said that
was all he wanted to know, adding, "You are an undesirable character. We don't
want men like you around here." T. J. Fleming then told Ramirez to go change his
clothes while he made out Ramirez' check Ramirez stated that his parents are
taking care of his child by his first marriage, and he himself contributes money to the-
support of the child. Ramirez testified that he has two children by his second wife
and that he supported them for a while until his second wife remarried and asked
him to stop.
Joe Ramirez credibly testified that the day after his brother Refugio was fired he-
had a conversation with T. J. Fleming in his office. Fleming said that he had heard
that Joe had been talking about him in connection with his discharge of Refugio.
Joe Ramirez then explained to Fleming why Refugio had not been supporting his
family.
On the afternoon of December 7, Ramirez received a letter signed by Joe Flem-
ing offering reinstatement to Respondent's employ effective the morning of
December 7. Ramirez then went to the plant and waited for awhile to talk to
T. J. Fleming until Tom suggested that he come back the next morning. The next
morning Ramirez talked to T. J. Fleming in his office and showed him the letter.
T. J. Fleming looked at the letter and then according to Ramirez asked Ramirez
what he was doing there, told him he was not wanted there, and suggested he go
somewhere else and look for a job. T. J. Fleming also told Ramirez that he and
his brother were nothing but troublemakers and if he were Ramirez he would just
walk out of there. Then T. J. Fleming said that he was going to put Ramirez
back to work but if he did any other thing wrong, he was going to "bounce" him,
out and "make it stick this time." T. J. Fleming called in an employee named Ernie
Sanchez and told Sanchez that he was going to give orders to Ramirez through him.
Ramirez further testified that he cut his hand off the job and when he went to
work showed his hand to Tony Sanchez, his boss, and asked if he could go later
on to see if he could get it stitched. Later on Ramirez was given permission to go to
the doctor. The doctor gave him a shot, cleaned the wound, and told him that he
could not go to work. Ramirez went on sick leave on January 4, 1965. That night-
he called Tony Sanchez at home and informed him of the situation . Ramirez also took
to Sanchez a certificate signed by the doctor showing that he would be able to return
to work on January 7, 1965. On the following Wednesday Ramirez returned to the
doctor. According to Ramirez, he reported to Tony Sanchez every time he went to
the doctor by going to Sanchez' home. Ramirez testified that the third time he went _
to Sanchez' house, Sanchez told him that Fleming had said that he should not try
to go back as long as the wound was open. Ramirez could not recall the last time he
talked to Sanchez about his inability to work. Ramirez made quite a few visits to
the doctor, in fact he went every day. His last day of employment was January 4,.
11 Cf Producers, Inc, 129 NLRB 1161 , 1164 . The Interrogations of Joe Ramirez, how--
ever, are not violative of the Act because of his status as a supervisor.
'2A. P. Green Fire Brick Co., 140 NLRB 1067, 1072, enfd . 326 F. 2d 910 (C.A. 8).
u One Respondent 's principal contracts is with Westinghouse.
T. J. FLEMING COMPANY 805
1965. As set forth above, Ramirez went on sick leave then and was discharged on
January 21 , 1965, when he returned to work. According to Ramirez when he walked
in the door on January 21, 1965, Tom Fleming said to him, "Rufus , I am sorry we
will have to let you go." Tom Fleming said that he would mail Ramirez ' check.
We turn now to the testimony of witnesses for Respondent with respect to Ramirez
-discharge . T. J. Fleming testified that Ramirez was gone from work for 3 to 4 work-
days in June . When Ramirez came in on about July 3, T. J. Fleming asked him where
he had been , and Ramirez replied that he had been "detained" in Birmington , Missouri,
for a period of 72 hours . T. J. Fleming further testified that Ramirez said that when he
,was "temporarily let out of this incarceration or what ever it was" he was immediately
picked up and "put back" for another 72 hours. Also Ramirez said he was not allowed
to use the telephone or get in touch with the Company . T. J. Fleming testified that he
tried to check out Ramirez ' story by calling the sheriff . The sheriff told him that
Birmington was in another county and to check at Birmington which he did and was
informed that Birmington had no chief of police or marshal and he was referred to
Liberty, Missouri . When he called the sheriff 's office at Liberty he was informed that
they had no record of "anybody such as Rufus being in jail or being detained in any
other manner."
Tom Fleming testified that he was present when his father talked with Ramirez.
T. J. Fleming told Ramirez that he had tried to check out the story Ramirez had
given him concerning his absence and had been unable to find any substantiating
evidence . T. J. Fleming further said that he could not tolerate men being off for
that period of time and he just did not feel that Ramirez was trustworthy . T. J. Flem-
ing then offered Ramirez the choice of quitting or being fired and Ramirez chose to
quit.
Tom Fleming further testified that Ramirez was reemployed on August 18, and
-that he was present when this happened . T. J. Fleming told Ramirez that he was
going to get another chance , and he would have to keep his nose clean . Ramirez
was also told that if he did a satisfactory job everybody would get along fine. Tom
Fleming testified that he was in a position to observe Ramirez' work both before and
after July , and before July it was very good , but after his return in August Ramirez'
-work was unsatisfactory . After his return in August, Ramirez was assigned to work
,on railroad cutout cocks ( angle cocks ), which was work he had done before. Tom
Fleming testified that Ramirez ' production on this job was approximately one-third
that of another man with less experience . About the first week in September, Don
'Scherer, who is employed by Westinghouse , came out to the plant and said that
Westinghouse was dissatisfied with Respondent 's production . Scherer said that
Respondent 's production did not "live up to the standards ..." agreed upon under
the contract . Tom Fleming also testified that after his return in August, Ramirez
came to work in such a condition that he could not work satisfactorily because of
his activities the night before. Tom Fleming testified that Ramirez had boasted
. about his activities the previous night.
Tom Fleming further testified that he was present at the meeting with Ramirez
when Ramirez was discharged on September 9. Also present were T. J. Fleming,
Joe Fleming , and John Morris from Westinghouse . T. J. Fleming "presented"
Ramirez with his production record, and told him that it was not satisfactory adding
that it was unsatisfactory "in comparison to the other men " Tom Fleming testified
that Ramirez' production was 8 units compared to 17 to 22 units for the other men.
Tom Fleming further testified that Ramirez ' production before his termination in July
was in the "22 category ." Several reports had been received from men in the shop
that Ramirez had been bragging about not supporting his family . Tom Fleming
testified that T. J. Fleming also asked Ramirez if he was supporting his family to
which Ramirez replied in the negative . T. J. Fleming admitted that he had heard
before Ramirez ' reemployment in August that Ramirez was boasting about not con-
tributing to the support of his family . T. J. Fleming testified, however, that the rea-
son he brought it up in this conversation was because it was "being made such a
public joke around the place " Ramirez did not offer any defense respecting his
work record . Tom Fleming testified that a day or two before this conversation he
heard an employee tell T. J . Fleming that Ramirez "stated he was going to lay down
on the job." According to Tom Fleming , T. L. Fleming confronted Ramirez with
this statement and told him what they had heard . Ramirez offered no defense to
this. At the conclusion of the meeting , Ramirez was discharged
John Morris, district sales manager for Westinghouse , testified that he was present
on the day Ramirez was discharged on September 9. According to Morris, Ramirez
was asked if he supported his family and admitted that he did not. Ramirez was then
,confronted with his performance record and acknowledged it was not up to par.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T. J. Fleming had a book on his desk and he pulled it on to his lap and said to
Ramirez, "Now I want to talk to you about your performance record. You were
turning out 17 and you are now doing 9."
T. J. Fleming also testified briefly about the discharge conversation of September 9.
According to T. J. Fleming, he called Ramirez down to his office and said, "I
understood that you are bragging to the rest of them back there that you are spending
your money promiscuously and you have a wife and family to support and you are
evading that." T. J. Fleming testified Ramirez made no answer to this. Then T. J.
Fleming started comparing the production records and stated that a culmination of
these things led to Ramirez' discharge.
Joe Fleming testified briefly about the discharge conversation of September 9.
Joe Fleming testified that Ramirez was confronted with his work record and about
bragging about not supporting his family. Joe Fleming further testified that Ramirez'
production was compared to that of Salvatore Abita during this conversation.
Tony Sanchez testified that he worked with Ramirez at various times. Sanchez
was a leadman for Respondent and testified that the repair units had not built up as
they should so he started checking to see where the trouble was. Since Ramirez was
working on that particular item, Sanchez started checking Ramirez' production.
Sanchez testified that no one suggested that he do this. Sanchez checked the produc-
tion of other employees also. Sanchez testified that he checked Ramirez' production
between August 18 and September 9 and found his production below par. Sanchez
stated that he kept written records at various times on Ramirez' production. Ramirez'
production was about 50 percent of that of the other man.14
Ramirez was rehired in December upon advice of Respondent's attorney to elim-
inate the possibility of any backpay. T. J. Fleming testified that he talked with
Ramirez when he came back to work in December. He told Ramirez that he would
have to toe the line or be discharged and that this time he would make it stick.
According to Tom Fleming's testimony, Ramirez' work record was very good after he
came back in December. Tom Fleming testified that Ramirez came to work on
January 4, 1965, with a cut on his hand. Tom Fleming told Tony Sanchez to release
Ramirez to go to the doctor. The next day Sanchez gave Tom Fleming a slip of
paper from the doctor (Respondent's Exhibit No. 2) reflecting that Ramirez would
be off work from January 4 until 7, 1965. The next day Sanchez told Tom Fleming
that Ramirez had contacted him and told him that it would take longer to treat
Ramirez' hand, and that it would be awhile before Ramirez came back to work but
he would be in to see T. J. Fleming on Saturday. Ramirez did not come in on Satur-
day, in fact they did not hear from him again for 21/2 weeks. Ramirez came in on
January 21, 1965, and Tom Fleming told him that they were going to have to let
him go because he had been gone too long without giving them any information as
to his whereabouts or intentions. Ramirez replied that he had talked to Sanchez
at various times and had given messages to Sanchez' children. Tom Fleming testified
that the messages were never relayed because they never did hear them.
In an effort to rebut the testimony of Respondent's witnesses Ramirez was recalled
as a witness. Ramirez denied stating to anyone that he was going to "lay down on
the job," and further denied that anyone said anything to him on the day of his
September discharge to this effect or accused him of having made such a statement,
or that it was even mentioned during the conversation. Ramirez also denied seeing
any work records on that occasion. Ramirez testified that he worked on air-
brake valves after his reemployment in August, and stated that Salvatore Abita
did not work in that area. On cross-examination, however, Ramirez admitted that
although he worked on airbrake valves after being reemployed in August, he was
transferred to angle cock valves after that.
I was not impressed with Ramirez' testimony, particularly his failure to make any
reference to production being mentioned in the September discharge conversation.
Moreover, Ramirez' exnlanatinn about why the rerords of the nnemnlovment com-
pensation commission reflected that he was laid off for lack of work after his Septem-
ber discharge was not convincing.15 On the other hand, I am persuaded that Ramirez'
production was a major factor in this conversation as reflected in the testimony of T. J.
Fleming. Joe and Tom Fleming, and Morris. Under the circumstances, I do not
consider Ramirez' testimony as reliable as that of Respondent's witnesses, and where
it is at variance with their testimony it is not credited.
"As set forth above the other man was identified as being Salvatore Abita.
u Respondent introduced into evidence Ramirez' Board affidavit in an effort to dis-
credit his testimony by showing that according to the affidavit Ramirez made a state-
ment which in his testimony he attributed to Fleming. As I do not believe the affidavit
establishes this point, I attach no significance to it in evaluating the credibility of
Ramirez.
T. J. FLEMING COMPANY 807
Thus the evidence for the General Counsel shows that Ramirez signed a union
card in August, that Respondent made a determined effort in August to determine
who started the Union, and specifically interrogated Ramirez and other employees
as to their knowledge of the Union, and that Respondent made statements that it
was going to "fight" the Union. Further the evidence shows that T. J. Fleming knew
when he reemployed Ramirez in August that he was bragging about not supporting his
family. In addition, there is no evidence that Ramirez was warned about his produc-
tion and nonsupport of his family after his reemployment in August and prior to
the discharge conversation on September 9. Finally the evidence shows that Ramirez
was discharged a few days after a Board hearing on the Union's petition for certifica-
tion as bargaining representative of Respondent's employees.
On the other hand, the evidence shows that Ramirez quit on the threat of being
discharged for excessive absenteeism in July which was before the union activity
started. When reemployed in August, Ramirez was expressly warned to "keep his
nose clean." Thereafter his production dropped, management heard reports which
he did not deny later that he said he was going to "lay down on the job," and manage-
ment also heard reports that he was bragging about not supporting his family which he
also did not deny. Although T. J. Fleming had heard such reports prior to the
August reemployment of Ramirez, it was after this time that the nonsupport point
became, as T. J. Fleming put it, "such a public joke." Moreover, I am unable to
attach the significance General Counsel desires to the fact that Ramirez received
no warning about his low production or the nonsupport of his family prior to the
discharge conversation because of the circumstances in connection with his prior
separation from Respondent's employ and the specific warning he received when
reemployed in August. I am persuaded that even if Respondent knew of Ramirez'
very minimal union activity consisting of signing a union card, that this played no
part in the decision to discharge him. Accordingly, I find and conclude that Gen-
eral Counsel has failed to establish by a preponderance of the evidence that Ramirez
was discharged in violation of the Act,is and I shall recommend the dismissal of
this allegation.
2. The discharge of Benjamin L. Muro
Muro was employed in April and worked mostly on boilers. Muro signed a
union card on August 13. As set forth above, Muro was asked on August 20 if he
was the one who was trying to bring a union in, and Muro replied in the negative.
Muro testified that about September 1 he was called in by T. J. Fleming who asked
why he had not paid an ambulance bill. According to Muro, 2 weeks before this
he had "passed out" on the job and had been taken to the hospital in an ambulance.
Muro told T. J. Fleming that his wife had told him not to pay the bill. T. J. Fleming
then instructed Muro to bring the bill in the following morning. The next morning
Muro informed T. J. Fleming that his wife had thrown the bill away. T. J. Fleming
then told Muro that he "better be careful because [he] was walking on thin ice."
The bill was paid by T. J. Fleming.
On September 23 about 3 p.m. Muro was called into T. J. Fleming's office. In
addition to T. J. Fleming, Tom Fleming, and Joe Gallardo, Muro's supervisor, were
present. T. J. Fleming handed Muro a document to read captioned "Order To
Employer To Pay To The Trustee." This document constituted an order to the
employer to deduct from Muro's pay a sum of money weekly and pay it to a named
individual as trustee. Apparently T J. Fleming then asked Muro if he was going
to have his wages garnisheed and he answered in the affirmative. T. J. Fleming then
told Muro that he did not have the facilities or time to make separate checks, and
he would have to let Muro go. Muro told T. J. Fleming that if he would give him a
chance to straighten it out, he probably could. T. J. Fleming said that Muro "had to
go and that [is] all."
Muro then went back to work to finish the day out, and T. J. Fleming came to
talk to him and asked Muro what the reason was that he got into "this kind of
predicament." Muro told T. J. Fleming that his wife had been sick and he had not
worked for 3 months.17
Muro further testified that just before he left the plant, he talked with Tom Fleming
who had his check. According to Muro, he asked Tom Fleming what the reason
was that he was going to be fired and if the reason was because of "this damn union."
1O In view of this finding, I do not reach the question of whether Ramirez was validly
reinstated by Respondent in December Nor do I consider it necessary to decide whether
Ramirez' low production could have been or was caused by a broken finger
17 Muro had entered into the wage earner arrangement which led to the "Order"
referred to above prior to his employment by Respondent.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Toni Fleming replied, "well, I don't know, Ben, more or less. I hate to lose you, you
are a good working man." Muro then left.
About the second week in December, Muro received a letter from Respondent
offering him reinstatement effective December 14.18 Muro went to the plant and
talked with T. J. Fleming. No one else was present. T. J. Fleming asked Muro how
he was getting along on his new job and Muro replied "fine." T. J. Fleming asked
Muro how much he was making a week and Muro informed him about $96 a week.
Then, according to Muro, T. J. Fleming "said about Joe Ramirez, he apologized
to [Muro ] because he thought [Muro] was the one that caused the Union, but he had
found out that Joe was the one that brought the Union in, that his attorneys had
found out that Joe brought the Union in." Muro also testified that T. J. Fleming
told him on this same day that John Florez (another employee) was in "the same
predicament" Muro was in with respect to garnishments by Respondent. Muro also
admitted that T. J. Fleming told him he could come back to work for the Company
if he wanted to do so.
Muro further testified that there was no published rule concerning garnishments
or wage earner plans as the basis for discharge.
On cross-examination, Muro was asked when he fainted on the job and testified
that he "would say June or July, something like that." (It will be recalled that on
,direct examination Muro testified he "passed out" about 2 weeks before September 1.)
Muro was then asked if he thought it might have been in April and he replied
"no, no." Muro was then asked if it might have been on April 17 and he replied
that he did not remember. Muro then reaffirmed his testimony on direct examination
that the Company received notice about the ambulance bill about 2 weeks after he
fainted. Muro was then asked if he thought it would be 5 months after he fell that
the Company got this notice and he replied that he did not think so. Muro was
then asked if T. J. Fleming told him when he was called in about the ambulance bill
that the Company could not tolerate garnishments, and he replied that he did not
remember. After Muro's attention was directed to his Board affidavit, he admitted
that T. J. Fleming did tell him that he did not like garnishments on any of his employ-
ees Muro also admitted that he understood as a result of this meeting that T. J.
Fleming would not tolerate garnishments. Muro was then asked how long it was
after his conversation with T. J. Fleming about the bill that the Company received
notice of the wage earner's plan, and he answered "about 3 or 4 months." Muro
testified again that it was about 3 months between the Company's receipt of the
ambulance bill and receipt of notice with respect to the wage earner plan, and stated
that he did not think it was a matter of a week or 10 days.
We turn now to the estimony of Respondent's witnesses concerning Muro's dis-
^charge. Tom Fleming testified that Muro "passed out" at work and was taken to the
hospital in April in an ambulance. Muro was advised that the insurance company
would take care of any bills. Tom Fleming identified a letter from a collection
agency dated September 10 (Respondent's Exhibit No. 5) as the notice Respondent
received seeking payment for the ambulance service. Tom Fleming was shown
a statement from the ambulance service at the hearing which reflected that April 17
was the date Muro was taken to the hospital. Tom Fleming testified that he was
present when T. J. Fleming called Muro in about the bill. According to Tom Fleming,
T. J. Fleming asked Muro why he had not brought the bill in in the first place to be
paid, and told Muro that he would not tolerate anything like that Tom Fleming
testified that T J. Fleming was very angry. T. J. Fleming testified that he was
"particularly irritated" by the letter from the collection agency. Tom Fleming
further testified that about 2 weeks later Respondent received a notice concerning the
voluntary bankruptcy procedure that Muro was taking. According to Tom Fleming,
T. J. Fleming then called Muro into the office and reminded him that he had warned
him, and told Muro that he would give him about a week to get it straightened out.
Tom Fleming further testified that T. J. Fleming told Muro that he would then talk
to Muro about getting his job back if he wanted to come back. According to T. J.
Fleming, the final reason for Muro's discharge was the garnishment about which
he had previously warned Muro. Tom Fleming testified that Muro said that he
might as well pick up his check, and was then discharged. According to Tom
Fleming, Muro did not get the matter cleared up nor did he return in a week or so.
Tony Gallardo testified that he was present when Muro was discharged. Accord-
ing to Gallardo, T. J. Fleming asked Muro if he was able to take care of his bills
because he did not want to be involved with "that bankruptcy deal," and he told Muro
he would give him a "certain amount" of time to do it in. Muro replied that he
just would not be able to do it.
8 Respondent 's Exhibit No. 8.
T. J. FLEMING COMPANY 809 ,
Tom Fleming testified that he talked with Muro as Muro started to leave the plant.
on the day of his discharge and told him that he was sorry "it had to happen under
those circumstances," and Muro replied that he was thinking about quitting anyway-
because of the Union. Tom Fleming specifically denied that Muro was discharged'
because of the Union or that he told Muro that he was discharged because of the
Union. Tom Fleming testified further that Muro was later offered reinstatement by
Respondent in order to stop the running of any possible backpay. Tom Fleming
testified that Respondent had another case of an employee discharged because of a
voluntary bankruptcy petition in early December 1964. Tom Fleming was present
when employee John Florez was called into the office and told that Respondent
could not put up with this. Florez replied that he was familiar with Muro's case
and knew that the Company would not tolerate this type of proceeding. Florez was
given the same offer as Muro. Florez was discharged, got the matter cleared up in
a few days, and then returned to work
T. J. Fleming testified that he talked with Muro after he was offered reinstatement
and came to the office. According to T. J. Fleming, Muro stated that he had a much
better job paying "quite a bit" more money with a "far better Company" with good
prospects for continued employment. Muro asked T. J. Fleming for advice, and T. J.
Fleming stated that he told Muro that he would keep the job if he was making more
money adding that he would seem to be better off where he was and ought to stay
there. T. J. Fleming also told Muro that if they did run out of work later on where
he was and he wanted to come back he would be considered. As to any apology,
T. J. Fleming stated that he "might have apologized to [Muro] as a gentleman, but
as far as the Union, no." 19 T. J. Fleming specifically denied that the Union was
even mentioned during this conversation.
It is apparent that if Muro's version of the dates these events happened is accepted
only about 2 weeks elapsed between the time he fainted and when T. J. Fleming
called him in with respect to the ambulance bill. Also if his testimony is accepted,
there was a lengthy period of 3 to 4 months between his conversation with T. J.
Fleming about the ambulance bill, during which he was warned that the Company
could not tolerate garnishments and told him that he was walking on "thin ice," and
the discharge conversation. Thus, it is obvious that if Muro's versions were accented
his case would look much better. The evidence establishes, however, that Muro
fainted and the ambulance was called on April 17, the conversation between T. J.
Fleming and Muro about the ambulance bill was in early September and Muro's
discharge occurred on September 23. Therefore Muro's testimony as to dates is
flagrantly erroneous. Moreover, Muro's reluctant and contradictory testimony was
very unimpressive. Also it will be recalled that Muro at first testified that he did not
remember that he had been warned about garnishments prior to the discharge con-
versation, and only after his attention was directed to his Board affidavit did he
remember that he had been warned. I am persuaded that Muro's testimony, where
it is at variance with that of T. J. Fleming, Tom Fleming, and Gallardo, whose
testimony was mutually consistent and candidly given, cannot be credited.
Thus the evidence supporting a violation insofar as Muro is concerned may be
briefly stated as follows: On August 13 Muro signed a union card, on August 19
the Union filed its petition, on August 20 T. J. Fleming interrogated Muro and other
employees about union activities, and on September 15 the Regional Director issued
his decision directing an election, and Respondent's responsible officials also made
statements to the effect that Respondent was going to "fight" the Union. There is
no direct evidence that Respondent knew Muro had signed a union card. Assuming,
however, that Respondent knew that he had done so, I do not believe that General
Counsel has established by a preponderance of evidence that Muro was discharged
in violation of the Act. It is clear that Muro failed to pay the ambulance bill after
it was received, and failed to notify Respondent that he had received the bill. Like-
wise, it is clear that T. J. Fleming was "particularly irritated" when he received a
"dunning" letter about the bill from the collection agency and that he told Muro
that he did not like "these garnishments" on any of his employees. T. J. Fleming
then warned Muro about such matters saying he was walking on "thin ice." A short
time later T. J. Fleming received a notice that Respondent was ordered to deduct
money from Muro's pay and pay it to a trustee. T. J. Fleming then called Muro in,
reminded him of the prior warning, and discharged Muro giving him the opportunity
however, to straighten the matter out and come back to work. A similar situation
19 The reference to apologizing as a "gentleman " is not clarified anywhere in the record.
However, in view of T. J. Fleming ' s denial that the Union was mentioned in this con-
versation, the reference to an apology is immaterial.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involving another employee also occurred. I cannot find that the reasons advanced
by Respondent for Muro's discharge under these circumstances were mere pretexts.
Accordingly, I find and conclude that the General Counsel has failed to establish
by a preponderance of evidence that Respondent discharged Muro in violation of
the Act, and I shall recommend the dismissal of this allegation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities found to be unfair labor practices in section II, above,
occurring in connection with the operations of Respondent described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
In view of my findings that the Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights under the Act, I shall recommend
that it cease and desist therefrom and post an appropriate notice.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following.
CONCLUSIONS OF LAW
1. Respondent is an employer 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 the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the 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) and Section
2(6) and (7) of the Act.
4. Respondent has not violated Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that Respondent, T. J. Fleming Company, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union activities in a manner
constituting interference, restraint, or coercion in violation of Section 8(a)(1) of
the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post at its place of business in Kansas City, Kansas, copies of the attached
notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional
Director for Region 17, shall, after being duly signed by the Respondent's representa-
tive, be posted by it immediately upon receipt thereof, and be maintained by it for
at least 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees customarily are posted. Reasonable steps shall be taken
by the Respondent to insure that notices are not altered, defaced, or covered by any
other material.
(b) Notify said Regional Director, in writing, within 20 days from the receipt
,of this Trial Examiner's Decision, what steps the Respondent has taken to comply
herewith.2i
It is further recommended that the complaint be dismissed insofar as it alleges
Respondent violated Section 8(a)(3) of the Act.
211f this Recommended Order should be adopted by the Board, the words "as ordered
by" shall be substituted for "as recommended by a Trial Examiner of" in the notice.
In the further event that the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing
an Order of" shall be substituted for "as oidered by".
n In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
HUTTIG SASH AND DOOR COMPANY, INCORPORATED
APPENDIX
811
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of the rights guaranteed them in
the National Labor Relations Act, as amended.
WE WILL NOT interrogate our employees concerning their union activities
in a manner constituting interference , restraint, or coercion in violation of
Section 8(a)(1) of the Act.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in
any union activities.
All our employees are free to become or remain members of District Lodge 71,
International Association of Machinists , AFL-CIO, or any other union , and they are
also free to refrain from joining any union.
T. J. FLEMING,
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, 1200
Rialto Building , 906 Grand Avenue, Kansas City , Missouri , Telephone No. Baltimore
1-7000, Extension 2733.
Huttig Sash and Door Company, Incorporated and Carpenters
District Council of St. Louis and Vicinity. Case No. 14-CA-
3564. August 31, 1965
DECISION AND ORDER
On June 14, 1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed with respect to
such allegations. Thereafter, the Respondent and Charging Party
,filed exceptions to the Decision, and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
154 NLRB No. 67.