Tucker Aluminum Products, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1962

137 N.L.R.B. 1090 (N.L.R.B. 1962)

1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tucker Aluminum Products , Inc. and Manuel Vilas. Case No.
12-CA-2071. June 29, 1962
DECISION AND ORDER
On January 16, 1962, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed,
as set forth in the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate Report to-
gether with a supporting brief; Respondent filed a reply brief thereto.
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 McCulloch and Members Rodgers and Leedom].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts only so much of the findings, conclusions, and
recommendations of the Trial Examiner as are consistent herewith.
1. As indicated more fully in the Intermediate Report, the Trial
Examiner found that employee Vilas had been interrogated by Re-
spondent's Vice President Tucker, regarding a meeting held at the
house of Frank Guihan, a supervisor, on the day Guihan had appar-
ently left the Respondent's employ. The meeting, attended by a num-
ber of Cuban employees of Respondent, was concerned with methods
of reconciling Guihan with the management of Respondent, as Guihan
was the only supervisor employed by Respondent who spoke Spanish.
The Trial Examiner found that such a meeting was not a protected
concerted activity and, therefore, that the interrogation as to the meet-
ing was not violative of Section 8 (a) (1) of the Act.
We do not agree with the Trial Examiner. It is clear from the
record that the continued employment of Guihan by Respondent was
of great concern to the Cuban employees because he was the only super-
visor who was able to communicate with them in their native language,
Spanish, and was the only person able to understand any grievances
which they might have. Accordingly, we find that the restoration of
Guihan to his former position concerned the employees' conditions of
employment and was therefore a proper subject for concerted activity
and that Respondent's interrogation with respect thereto, accordingly,
was violative of Section 8 (a) (1) of the Act.'
2. The Trial Examiner also found that the General Counsel had
failed to prove that the discharge of Vilas and his wife was motivated
1 N L It B. v Phoenix Mutual Life Insurance Company, 167 F 2d 983 (C A. 7) ;
N L R.B v. Guernsey -Muskingum Electric Cooperative , Inc., 285 F. 2d 8 (CA. 6).
137 NLRB No. 54.
TUCKER ALUMINUM PRODUCTS, INC. 1091
by union activity so as to constitute a violation of Section 8(a) (3) of
the Act. In reaching this conclusion the Trial Examiner credited
testimony given by James Metzger, a supervisor of Respondent, rather
than that of Vilas, his wife, and a coworker, regarding the circum-
stances surrounding the discharges. As we indicated in Standard Dry
Wall Products, Inc., 91 NLRB 544, 545: ". . . we do not overrule a
Trial Examiner's resolutions as to credibility except where the clear
preponderance of all the relevant evidence convinces us that the Trial
Examiner's resolution was incorrect." After a thorough review of
the entire record, we do not believe that rejection of the Trial Ex-
aminer's resolutions is warranted.2 Accordingly, we find that a viola-
tion of Section 8 (a) (3) has not been proven by the General Counsel,
and we must affirm the Trial Examiner's dismissal of this allegation
of the complaint.
THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The conduct of the Respondent set forth in the Intermediate Report
has a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tends to lead to labor dis-
putes burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in an unfair labor
practice we shall order that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of
the Act.
2. Manuel Vilas is an employee within the meaning of Section 2(3)
of the Act.
3. By interrogating Vilas regarding concerted activity, the Re-
spondent has engaged in and is engaging in an unfair labor practice
within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid labor practice is an unfair labor practice affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Tucker Alumi-
num Products, Inc., Hialeah, Florida, its officers, agents, successors,
and assigns, shall :
2 Cf N 7, R B v. Pittsburgh S S Co, 337 U S 656
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from interfering with, restraining, or coercing
its employees in the exercise of the right to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Hialeah, Florida, copies of the notice at-
tached hereto marked "Appendix." 3 Copies of said notice, to be fur-
nished by the Regional Director for the Twelfth Region, shall, after
being duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
customarily are posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint, insofar
as they allege unfair labor practices not found herein, be, and they
hereby are, dismissed.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we are notifying our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
TUCKER ALUMINUM PRODUCTS, 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.
Employees may communicate directly with the Board's Regional
Office, Ross Building, 112 East Cass Street, Tampa 2, Florida, Tele-
phone Number, 223-4623, if they have any question concerning this
notice or compliance with its provisions.
TUCKER ALUMINUM PRODUCTS, INC. 1093
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein (issued September 15, 1961; charge filed July 25, 1961), as
amended, alleges that the Company has violated Section 8(a) (3) of the National
Labor Relations Act, as amended, 73 Stat. 519, by discharging Manuel Vilas and
Evangelina Montero on or about July 24, 1961, because they engaged in protected
concerted activities; and Section 8(a)(1) of the Act by said alleged acts and by
interrogating employees concerning protected concerted activities, threatening em-
ployees with discharge for participating in such activities, telling employees that they
were discharged because of their union activities, and threatening to close the plant
if there were union trouble. The answer denies the allegations of violation.
A hearing was held before Trial Examiner Lloyd Buchanan at Miami, Florida,
from October 25 to 27, 1961, inclusive, and at the close the General Counsel and
the Company were heard in oral argument. Pursuant to leave granted to all parties,
a brief has been filed by the Company.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Florida corporation with principal
place of business in Hialeah, Florida, is engaged in the manufacture, sale, and dis-
tribution of aluminum windows and screen doors and related products; and that it
annually purchases goods and materials valued at more than $50,000 directly from
States of the United States other than the State of Florida. Although at the beginning
of the bearing the Company stood on its denial that it is engaged in commerce, and
appeared to indicate that a real issue is involved in that connection, and it was there-
upon requested to cover the point in oral argument if not before, and in its brief,
neither thereafter during the hearing, in oral argument, or in its brief has the Com-
pany adverted to this matter or otherwise suggested any insufficiency in the admitted
facts. I find that the Company is engaged in commerce within the meaning of the
Act.
It was admitted and I find that United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
The basis for the credibility findings herein lies in the entire record as well as in
the witnesses' demeanor. To that extent the testimony received in connection with
the 8(a)(1) allegations and the 8(a)(3) allegations has been considered as a whole,
credibility findings with respect to one subsection depending to some extent on the
testimony received with respect to the other allegations. While, as will be seen, I
accept as more reliable the testimony of the Company's witnesses, they several times
impelled me to reject their testimony; they were merely more reliable than the
General Counsel's witnesses, especially the alleged discriminatees, Vilas and Montero.
While thus rejecting those elements of the Company's testimony which appeared to be
directed at "strengthening," if falsely, its position, I nevertheless have found sub-
stantial elements of reliability therein; or, conversely, I have not found such ele-
ments in the General Counsel's case, the burden of proof being upon him.
In addition to the issues on which the evidence must be reviewed, there is one
other item, which like the question of commerce, needs to be mentioned. The answer
admits that Tucker and Metzger, vice president and foreman in the window assembly
department, respectively, each "has the title" thus assigned to him; but denies that
they are agents and supervisors within the meaning of the Act. Aside from noting
the fact that Metzger was identified by counsel for the Company as the supervisor and
in charge of the slider window and single hung window sections, and testified to a
most significant role in discharging Vilas, it is entirely unnecessary, despite the point-
less denial , to recount all of the testimony which without contradiction indicates that
each of these is a supervisor within the meaning of the Act.
A. The alleged independent violation of Section 8(a) (1)
Guihan, a supervisor and troubleshooter at the plant, and assistant to Tucker,
quit his job on July 19, 1961, apparently because of some personal dissatisfaction.
Guihan could fairly well understand and make himself understood by the Spanish-
speaking employees, to whom he was "sympatico" and who liked him. That after-
noon, Pedro Garcia, foreman in the awning windows section, suggested that Vilas
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go to Guihan's home that evening; and approximately 15 employees (the number
varied with the testimony ) met there that evening to inquire, as they did, whether
Guihan had quit or been discharged , and to urge him to return . (Further details con-
cerning this meeting will be considered infra. ) There is no claim or proof that
Guihan 's quitting or possible return was so connected with the employees ' terms or
conditions of employment as to make their discussion thereof a protected concerted
activity.
The next morning Vilas was called into Tucker 's office. He testified that Tucker
asked whether he had been at Guihan 's house the night before and , when Vilas said
that he and Montero had been there, continued to ask who else, Vilas replying that
there had been more than 15 but that he would not disclose their identity . At this
point , although he had not been told who had been there, Tucker allegedly called
someone and directed that the payroll be held since he was going to fire all who had
been at Guihan 's house. All of this refers to the allegations of interrogation and
threat, in paragraphs numbered 7(a) and ( b) of the complaint, in connection with
"union and other concerted activities ." But the question and the threat , as Vilas him-
self related them , made no mention of protected concerted activities; they referred
only and specifically to those who had been at Guihan 's house, and we have already
seen that , whatever occurred or was discussed there, it was not protected concerted
activity . Not until recross -examination , when he was questioned about this for the
fourth time, did Vilas testify that Pedro Garcia had called him to the meeting to
explain the Union to the employees. This latter contradicted or certainly differed
from Vilas' previous statement , in reply to the direct question why he had gone to
Guihan 's house, that Garcia had told him that Guihan wanted Vilas to come to his
house.
Aside -from the question whether concern over a supervisor 's employment, in the
absence of proof of connection with employees ' working conditions constitutes a
basis for protected concerted activities , we have here the issue of credibility whether
the meeting was in fact connected with union activities . The additional remarks at-
tributed by Vilas to Tucker , asking why he wanted Guihan to return , to the effect
that Guihan was no good , drank in the plant , and had caused the Company to lose
a great deal of money, do not suggest any connection or concern with protected
activities.
Both Tucker and Metzger testified that Vilas volunteered the information that there
had been a meeting at Guihan's house the night before and that about 50 had attended.
Although this was alleged as violative , Tucker admitted that he asked Vilas who had
been there ; and this supports Tucker's credibility . Not denying that Tucker asked,
Metzger testified only that Vilas did not say who had been at Guihan 's. I find that
these allegations of interrogation concerning protected activities , and threat have not
been proved.
Tucker is alleged to have made another unlawful threat during that same con-
versation on July 19, declaring that if there were union trouble, the plant would be
closed. As pointed out at the hearing and in the Company's brief , none of the three
prehearing statements given to the General Counsel by Vilas mentioned any such
threat, which was made the subject of an amendment to the complaint after Vilas
testified to it. We are informed that not until after the complaint issued did Vilas
speak to the General Counsel 's representative who tried the case, at which time he
mentioned this item . I credit Tucker 's and Metzger 's denials. Vilas' testimony on
this point and the manner in which it was obtained and submitted reflect on his
credibility.
Vilas further testified that when Metzger agave him and Montero their checks
shortly before noon on July 24 and told them that they were discharged, Metzger
explained that someone had told him that Vilas was a unionman , and he did not want
him there ; he did not want any trouble. Montero's version included the further
statement that Metzger did not want any unionman there. This alleged admission by
Metzger , which he denied is too pat and is not in keeping with his character as I ob-
served it . I do not find the violation alleged.
B. The alleged violation of Section 8(a) (3)
There is apparently no dispute that the action taken by the Company with respect
to Montero was based on the fact that she is Vilas' wife . If his discharge was dis-
criminatory , her's was also violative of the Act; if his was not , then there was no
discrimination in terminating her employment to avoid a rancorous situation or a
"personnel problem." 1
i John McAuliffe Ford, Inc., 134 NLRB 340
TUCKER ALUMINUM PRODUCTS, INC. 1095
While not to the extent claimed by the General Counsel, company knowledge of
Vilas' union activities is indicated by the circumstances on the record. Vilas testified
that he signed a union card about July 17 or 18; that he received more than 100 cards
for distribution, and union literature; and that he distributed cards to about 16 to 20
employees, unidentified, during the few days prior to July 24. Despite the purpose
clearly indicated to persuade Guihan to return to work, Vilas testified as did his wife,
that at the gathering on the evening of July 19 he told those present not to quit work;
that they could "get help" only if they signed a union card and had an election. (It
does not appear that any cards were signed at that time despite the testimony that
Vilas so urged. We shall soon note that various cards were signed on July 14, and
some before.)
Employee Sarrain, who sought effectively to bolster the General Counsel's case in
connection with the events when Vilas was terminated on July 24, testified that about
seven employees signed union cards on July 14, but that he and Vilas, who accom-
panied these others, signed a day or two before, "or after." The General Counsel
later, on rebuttal, produced a witness, Lastra, who, only after his recollection was
refreshed by a leading question, testified that Vilas at,Guihan's house spoke of union
cards, organization, and protection; and another witness, Alvarez, who testified quite
confusedly and differently from others, that it was agreed at Guihan's house that
they would not go to work immediately the next morning in order to persuade Tucker
that Guihan should return to work, and then that Vilas told them that, if nothing
came of such an effort, he would be able to facilitate affiliation with the Union. Here
again attention and effort were focused on Guihan's return, not on employees' pro-
tected activities. Not to slight any who were present at Guihan's house and who
were called to testify, Pedro Garcia testified credibly that no one spoke to him there
about the Union or union cards. While the latter witness adopted the General Coun-
sel's suggestion that he did not "remember too well" what else occurred at the meeting,
he did say that Vilas did not address the group, everybody talking at the same time.
If during the course of the various private or man-to-man conversations held, Vilas
mentioned the Union to anyone, there was no such prominence or general discussion
of this or of the employees not returning to work the next day as to constitute this
meeting a protected concerted activity; nor any evidence of company knowledge of
or interest in such private discussion. As the complaint and his argument indicate,
the General Counsel's position is that the meeting as such was a protected concerted
activity; reference to private discussions was presumably made to support such
allegation, not as a claim that the asides themselves constituted such activity. Nor,
despite Vilas' alleged urging that they sign union cards, is it claimed that anyone
signed a card at Guihan's house. The gathering there can properly be called a meet-
ing only in the generic sense of the word. In no sense can we refer to what was there
said as protected concerted activity, or that company knowledge thereof added to its
knowledge of such activity by Vilas or Montero.
Having considered the extensive testimony concerning this meeting, I find that,
but for its aid in making credibility findings, that testimony served little purpose.
No more than with respect to Vilas' attempts to get employees to sign union cards
do we have reliable direct evidence that the Company knew of any protected con-
certed activities by Vilas or Montero at Guihan's home. (In connection with the
dismal attempt to show that these were concerted activities, we have seen that Tucker
questioned Vilas about that meeting in connection with the employees' desire for Fore-
man Guihan's return. Whatever the source of Tucker's knowledge that Vilas had
been at the meeting, he presumably knew of at least some of the more than 15 who
attended; except for Vilas and Montero, none was discharged.)
In reliance on the small plant rule,2 I find that the Company had knowledge of
Vilas' union activities generally; and such knowledge is sufficient as motive if we
find unlawful discrimination in the action taken against Vilas and Montero. But if
Vilas did in fact at Guihan's house urge union activity in man-to-man talk, there is
no basis for attributing knowledge thereof to the Company even in this small plant.
The possibility exists from some of the testimony that someone may have discussed
the Union in English. But if any English was spoken, it surely was not in any
general remarks addressed to the group, so many members of which do not under-
stand the language, as was apparent at the hearing. Neither is it likely that Vilas
or other employees would employ their limited knowledge of English to discuss or-
ganizational activities. Nor does the General Counsel rely on such limited or
individual discussion. Recognizing perhaps that an aside would not determine the
nature of the meeting , his proof was of a general appeal and discussion of union
activities ; and this I do not credit.
2 Wiese Plow Welding Co , Inc, 123 NLRB 616.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vilas admittedly said that the employees should not refuse to work the next day,
the issue being Guiban's voluntary departure. I credit Guihan's testimony that
nothing was said at his house about the Union. Guihan returned to the Company's
employ on August 2, but I do not believe that, as the employees' friend and sup-
porter, and independent as he appeared to be, he would stultify himself by testifying
falsely as claimed by the General Counsel. His testimony was consistent in the face
of detailed cross-examination in this connection.
The question is not, as the Company argues, the reasonableness of Vilas' alleged
suggestion that the employees sign union cards in order to insure Guihan 's return-
when the latter had quit. It is rather whether there was in fact talk about joining the
Union or about other protected concerted activities . I find that there was not.
Whether other employees besides Vilas (and Montero) and Sarrain made early
contact with the Union, we do not know. But attributing to the Company knowledge
that Vilas had distributed and solicited union cards, we come to the alleged dis-
crimination against him and his wife. Work to be done on orders had fallen off by
July 23, and it was decided to lay employees off unless a large order which the
Company had been awaiting was received the following morning. There is no
issue concerning fluctuation of employment and the need for layoffs and the evidence
offered by the Company in support thereof need not be analyzed. It is not claimed
that the layoff of any other employee was discriminatory or unjustified. (One wit-
ness, testifying to the need for more people in the department to fill some large
orders in August, declared that sometimes people are transferred from other depart-
ments. With the orders filled, there were layoffs.)
About 9 or 9:30 a.m. on the 24th Metzger gave Vilas a list of Spanish-speaking
employees whom he should tell to go home. (Vilas, differing from his wife and
Metzger, had it that this instruction was given to him by another foreman.) Vilas
passed this information on to some 10 or 12 as requested. Vilas and Montero, who
assembled windows, were slightly more skilled than other employees,3 and Metzger
testified that he kept these two so that they could make up windows if any orders
should come in, and authorized Vilas to select one other to help him; while awaiting
such additional orders,4 Metzger directed them to keep busy making up some standard
sizes. When no orders were received in the 11 o'clock mail, Metzger had Vilas'
and Montero's paychecks drawn; then at or shortly before noon he called Vilas to a
small vacant office and, handing him checks for himself and his wife, told him that
there were no orders and he would have to lay him off. Unlike the others who had
been told they were laid off and who were to return for their checks on the regular
payday, the 28th, if not sooner recalled to work (most of them were not recalled,
although Sarrain and other witnesses mentioned the names of those who they said
were), Vilas and Montero were not told to check back the next morning to see
whether they would be needed. Metzger testified that he paid Vilas off because of a
"commotion" a few days before, and that he called him aside for the same reason.
Called on to explain his reference to the earlier commotion, Metzger testified
that Vilas had berated some people in the shop; Vilas had merely "let off some steam,"
but Metzger did not want to be "upset" again. While Vilas and Montero had it that
Metzger discharged them at their work table when he referred to Vilas as a unionman,
as noted supra, neither, although recalled, denied Metzger's testimony concerning
the earlier commotion as explaining why he now called Vilas aside. Further, Vilas
appeared to be quite volatile, a characteristic which lends support to Metzger's
explanation for the manner in which he acted.
We should here note Vilas' belligerence as he himself testified that he asked
whether Tucker wanted to fire him when he asked about the meeting at Guihan's
house, and admittedly repeated the challenge when Tucker allegedly spoke of closing
the doors. He testified that he had previously hurled the same challenge at his fore-
lady. In none of these cases was there a showing of provocation to warrant his
challenge. If it be explained that Vilas was edgy because of circumstances not be-
fore us, we must with understanding of such circumstances sympathetically reply
that our concern is with the facts here in issue and the question of discriminatory
discharge. As I observed him, Tucker also has a low boiling point; but that is not
3 All were paid at or near the minimum rate. Tucker testified that a man could be
trained in a few hours to do Vilas' assembly work. Supporting this is Vilas' testimony
that other and newer employees were given more overtime and that he had complained
about it several months before the commencement of union activities
' Correspondence dated August 4 and thereafter, received in evidence and offered to sup-
port this testimony, does not refer to any delay in sendin_ the order or support the Com-
pany's alleged expectation on July 24. beyond a request that the items be hurried along
-1 do not credit the oral testimony in this connection
TUCKER ALUMINUM PRODUCTS, INC. 1097
in issue here. I credit Metzger's testimony concerning these events, and not that
of Vilas, Montero, or Sarrain. (Some support may be found in the fact that Metzger
gave Vilas both his own check and Montero's.) The latter was quite explicit in
his corroboration of Vilas' and Montero's testimony that it was at Vilas' work table
that Metzger discharged Vilas and, when asked why, replied that it was because
Vilas was a unionman. I have not overlooked the fact that Sarrain skillfully and
credibly explained away what at first appeared to be several contradictory prior
statements. But he contradicted himself on a simple but important item: How soon
after Vilas' discharge Metzger told him that he was no longer needed either.
Coming to the nature of the action taken against Vilas and Montero, it should be
noted at the outset that Tucker mentioned complaints against them, but regarded
them as good workers, and let them go because of lack of work. He testified vari-
ously that Vilas was discharged, here adopting the General Counsel's characteriza-
tion, and laid off, with emphasis on the latter. It is clear from the fact that Vilas
and Montero alone, of all who were sent home on July 24, were not told to call
back for work and were paid when they were let out, that the two, their employ-
ment terminated as was that of the others for lack of work, were, unlike the other
employees, discharged.5 This is indicated further by Metzger's testimony despite
his denial. That testimony and the different form of their termination (referring
here to the fact that they were paid and were not told to call back) indicate that
Tucker was not truthful in saying that Vilas and Montero would have been hired
had they been outside the plant when people were thereafter hired, employment be-
ing admittedly "at the gate"; or that as late as the hearing he did not know of and was
not concerned with Metzger's trouble with Vilas and the finality of the action taken
against the latter and his wife.
But the issue which concerns us is not primarily the failure to restore the two
to work after July 24. If they were not discriminatorily discharged as alleged, there
was no violation in failing to rehire them, in the absence of proof that any hiring
was done except "at the gate." While employees were hired on personal application
at the gate or in the plant, these two did not thereafter thus apply. On the other
hand, if they were discriminatorily discharged, such a violation calls for an ap-
propriate and sufficient remedy regardless of later application.
We have seen that, although replacements were easily trained, Metzger kept Vilas
and Montero and told the former to select another employee to remain and work with
him, while he asked him to notify the others that they would be laid off--.this de-
spite the previous trouble or commotion; now, at noon, Metzger gave the two their
checks and did not even ask them to call back. What prompted this change in treat-
ment, for it was such, we do not know.
One might speculate that, if the Company had knowledge of Vilas' union activi-
ties, it would more likely have included him when it gave notice of the layoff to the
other employees on the morning of the 24th, retaining instead a few others, who,
although less experienced, could have been assigned had an order come in later that
morning. Perhaps on the other hand, an immediate hoped-for order would em-
phasize the need for Vilas' and Montero's experience. But such speculation is pur-
poseless. We do have Metzger's explanation, but no more, concerning their reten-
tion for a possible immediate order. Whatever the explanation for the retention in
the morning and the outright discharge at noon, whatever inconsistency might be
claimed, whatever puzzlement may exist, it has not been shown that Vilas and Mon-
tero were discriminatorily discharged because of protected concerted activities.
Thus if the Company was discriminatorily motivated and had knowledge of Vilas'
organizational activities, there is no sufficient explanation for the retention of these
two on the morning of July 24, such retention on its face being in marked contrast
to the action later taken; and it has not been shown that the Company, between ap-
proximately 9:30 a.m. and noon on that day acquired knowledge of Vilas' or Mon-
tero's protected activities, or that any other discriminatory element was injected into
the picture at that time and connected with their discharge. We must not speculate
or attempt to guess why the Company did not discriminate at 9:30 a.m. but allegedly
did at noon. (This is not intended as a suggestion to the General Counsel that he
should belatedly claim that the retention in the morning itself somehow suggests
discrimination.) The General Counsel to this point has not even ventured to specu-
late on his own.
5 The Company's list of checks issued immediately on termination is admittedly in-
complete. Omission therefrom of Vilas' and rontero's checks of July 24 therefore does
not show that they were not discharged Nor, if other checks were sometimes issued
immediately on layoff as a matter of convenience, as testified for the Company, does it
appear that this was the case with respect to these two checks or whose convenience was
in this case served
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
True, it is conceivable that between 9:30 a.m. and noon the Company for the first
time 6 learned of Vilas' union activities. (We recall that according to Vilas it had
at least connected him with union activities several days before.) Even the General
Counsel has not claimed that some employees, pointing to Vilas as not to be laid
off, if they knew that, may have informed the Company of his union activities; of
this we have no evidence. There is no reasonable and sufficient basis, if we rely
on the small plant rule, for an inference that it was specifically on the morning of
July 24 that the Company acquired knowledge of Vilas' organizational activities; or
that it so cleverly plotted to retain him earlier in the day in order to avoid the ap-
pearance of discriminatory discharge If the General Counsel would argue that
there was a prior intention to discharge but that it was masked by the retention that
morning, or if he would submit any other argument to support his claim of discrim-
ination, he has not to this point suggested these things, much less proved them.
Here it may further be noted that Tucker refused to discharge Vilas on July 19
despite another foreman's insistence. With Vilas' union activities going back to
July 14 or earlier, the Company's knowledge thereof may be found to have existed
when it thus previously refused to discharge him.
As for the assignment to Vilas and Montero of a job for stock while orders were
awaited on the morning of the 24th, this was fill-in work to occupy them during the
waiting period. There was no need to keep them on until the stock job was com-
pleted; with the absence of orders in the mail, it could reasonably be deemed prefer-
able to leave such work for later brief slack periods.
Although I do not rely on the Company's claim that Vilas and Montero were laid
off and not discharged, I have credited Metzger's testimony concerning the reason
for the different treatment accorded them. If Vilas had received less overtime, as
noted supra, perhaps because he did not get along with Anderson, foreman at that
time, and well before the commencement of union activities, that fact would not
support ,the claim of discrimination. The facts here alleged to be discriminatory and
the reason given concerning personal difficulties may bear some relation to that
earlier situation; mere intrusion or addition of concerted activities neither immunizes
the employee involved nor itself makes the employer's action discriminatory.
It is to be noted that Sarrain was also let go at noon on July 24, and was not told
to check back the following morning. Discrimination against him is not alleged.
But having said this, we should also note that he was told to check back for work in
2 or 3 days and in any event to come for his check on Friday, the regular payday.
This latter circumstance offers support to Metzger's testimony that checks were given
to Vilas and Montero alone to avoid commotion should they return on Friday still
unemployed.
Bearing in mind that Metzger testified only that he had laid off Vilas and Montero,
we do not have even an attempt to explain any discharge as here found. But we
do have Metzger's explanation for the alleged layoff action taken, and the question
here is whether that explanation is sufficient and justifies what the Company did even
if it says that it did something else. The circumstances here do not warrant a find-
ing that the reason given is merely pretextual. In the face of Tucker's earlier "op-
portunity" to discharge Vilas, it cannot be fairly found, in the absence of evidence
of change insofar as company knowledge or motive is concerned, that Vilas was
discharged on July 24 because of his protected activities.
If we weigh the practical effect of the action taken, we have seen that single hung
and slider window employees in the window assembly department were laid off on
July 24 and that few were later recalled or reemployed. (No discrimination against
others is claimed.) Thus Vilas and Montero sustained no greater loss than did
those others. Although these two were treated differently in that they were not told
to check back and especially since they were given their checks at once, such difference
has not been shown to have been discriminatory and in violation of the Act.
In finding that discrimination has not been proved, I recognize a further pos-
sibility which the General Counsel has not mentioned: that the decision to dis-
charge Vilas and Montero had been made before the announcement of the layoffs
early on July 24; and that these two were ostensibly retained for an additional short
time both to counter any impression of animus against them and to gloss over the
distinction between their discharge and the layoff of other employees with the direc-
tion that they check back the following day. But this is speculative and imaginative
to a degree which I would not credit (or charge) to either Tucker or Metzger.
Whatever might conceivably be argued by the General Counsel on a "second
chance," it is also conceivable that the Company, found herein to have discharged
Vilas and Montero, decided to avoid a public explosion or commotion by the former,
6 This Is contrary to our presumption , supra, commonly indulged in under such circum-
stances, of company knowledge.
LORI-ANN OF MIAMI, INC., ETC. 1099
and therefore used him to notify only the others about their layoff; and now letting
him go, decided to avoid future trouble by terminating him and his wife permanently.
One may wonder, but whether this favors the General Counsel or the Company,
there is no profit in such speculation. No more than did .the General Counsel offer
a theory or explanation supported by the evidence to prove discrimination, has the
Company offered this or any other to show absence of unlawful intent. But
as noted, .the burden is on the General Counsel. If there is more than meets the eye
on the record, we may not go beyond that record and the evidence adduced. In
short, the burden is not on the Company to show that it did not discriminate. If it
did .in fact discriminate (on the record before us I would make no positive finding in
its behalf), that fact has not been shown; we have a failure of proof.
Similarly, if Vilas and Montero were discharged because they or either of them
urged an employee to strike in support of Guihan on July 20, as testified to and denied,
this was brought out only to throw light on what Vilas had urged at Guihan's house
the night before, and to show that it was not protected activity. A finding of dis-
charge for that reason would not sustain the allegation of unlawful discrimination.
Sarrain testified that, when he returned for his check on July 28, work on sliding
windows was being done by Americans, not Cubans It is not clear whether the wit-
ness or the General Counsel here intended to indicate company prejudice against
Cubans. Its employment policy appears to negate any such charge, but in any event
such a charge, so far from proving the alleged violation, would provide a contrary
motive, however unworthy in itself.
I do not conceive it to be my duty to anticipate all possible arguments which may
be made to the Board for the first time, no brief or argument pinpointing his claims
having been submitted to me by the General Counsel, and assuming that the Board
will accept such new arguments. But I have sought to analyze the testimony and the
impressions made by the witnesses as these bear on the recognized positions of the
respective parties. To the extent that new arguments or approaches may be submitted,
the Board will have the record before it; but it will not have the opportunity to re-
late this to the demeanor of the witnesses.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of the Act.
2. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Company has not engaged in unfair labor practices within the meaning of
Section 8 (a) (3) or (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the complaint be dismissed in its
entirety.
Lori-Ann of Miami , Inc., Rose Uniforms, Inc., Rose of Miami,
Inc. and Myron Warshaw and Local 415, International Ladies'
Garment Workers' Union , AFL-CIO. Case No. 12-CA-°027.
June 29, 1962
DECISION AND ORDER
On February 7,1962, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondents Lori-Ann of Miami, Inc., and Myron Warshaw had en-
gaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto. The Trial Ex-
aminer also found that the Respondents had not engaged in certain
137 NLRB No. 114.