Aclang, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1971

193 N.L.R.B. 86 (N.L.R.B. 1971)

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aclang , Inc. and Tran Van Bich, Diem Thi Vo and employees, to engage in concerted activities for the
Nguyen Chi Long and Nguyen Thi Ky-My. Cases purposes of collective bargaining or other mutual aid
28-CA-2186,28-CA-2203 or protection, or to refrain from any such activities."
September 10, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 19, 1971, Trial Examiner Herman Coren-
man issued his Decision in the above-entitled pro-
ceeding finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
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 the Respondent had
not engaged in certain other unfair labor practices as
alleged in the complaint and recommended dismissal
as to them. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief. The General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the proceeding 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 adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Aclang, Inc., its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order as modified below.
Add the following as paragraph 1(c) of the Trial
Examiner's recommended Order:
"(c) In any manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist labor
organizations, including the Union herein, to bargain
collectively through a bargaining agent chosen by the
1 In adopting the Trial Exarruner's finding of the 8(a)(I) violation based
on the coercive interrogation of Miss Kim-Cuc by Gary Moore, we
specifically find that Respondent was bound by the statements attributed
to Moore The obtaining of a proper visa status was a prerequisite to
employment as an instructor with Respondent , and Moore was responsible
for assisting the instructors in obtaining this status Since Moore's
statement was in connection with the performance of his principal duties
for Respondent , and at least in part concerned Kim-Cuc's visa status, we
find that Moore had apparent authority , if not actual authority , to speak
for Respondent in such matters and that Respondent is bound by his
conduct We note additionally that Moore receives hourly compensation
far in excess of other employees , that he was a vice president of
Respondent's predecessor corporation , that his wife holds the office of
secretary with Respondent , and that his office is located proximate to
others possessing managerial authority.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner: Upon a charge
filed by Nguyen Chi Long, Tran Van Bich, and Diem Thi
Vo in Case 28-CA-2186 on September 30, 1970, and a
charge filed by Nguyen Thi Ky-My on October 15, 1970, in
Case 28-CA-2203, the General Counsel of the National
Labor Relations Board (herein called the Board) on behalf
of the Board issued a complaint December 24, 1970 , against
Aclang, Inc., herein referred to as the Respondent, alleging
that the Respondent in refusing to hire the four charging
individuals and by certain employee threats and interroga-
tion engaged in, and was engaging in, unfair labor practices
within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the National Labor Relations Act, as
amended, herein referred to as the Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice, a hearing thereon was held before the
undersigned Trial Examiner at El Paso, Texas, on February
23, 24, and 25, 1971. All parties appeared at the hearing,
were represented by counsel, and were afforded full
opportunity to be heard, to produce and examine, and
cross-examine witnesses. Briefs submitted by counsel for
the General Counsel and counsel for the Respondent have
been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
It is established by the pleadings, and I find, that the
Respondent is a Texas corporation with its principal office
and place of business at Biggs Field, El Paso, Texas, where
it is engaged in the operation of a language school teaching
the Vietnamese language to military personnel of the
Armed Services of the United States. During the last
calendar year, the Respondent, in the course and conduct
of its business operations, received gross revenues in excess
of $500,000 for services furnished to the United States
193 NLRB No. 18
ACLANG, INC. 87
having a substantial impact on the national defense. The
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
H. THE UNION INVOLVED
highly educated and extremely fluent in the English
language. The four charging individuals are fast friends and
Miss Ky-My is the acknowledged leader who in addition to
her educational attainments commands their loyalty
because "she stands for the good cause." 1
The Union of Language Teachers , American Federation
of Teachers , Local 1949 , AFL-CIO, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent, Aclang, Inc., was created as a Texas
corporation to take the place of its predecessor, the
Academy of Language Studies, Inc., a Virginia corporation,
which was dissolved after Mr. and Mrs. Kenneth Schiweck
moved their administrative headquarters from Virginia to
Texas. The Schiwecks owned and controlled both corpora-
tions . Although Mrs. Schiweck is the owner of all the stock
of Respondent and its president, it is clear and undisputed
that both Mr. and Mrs. Schiweck assume executive
direction of Respondent.
The Academy of Language Studies, Inc., owned and
controlled by Mr. and Mrs. Schiweck, was awarded the
government contract at Biggs Field, El Paso, Texas, to
teach Vietnamese to Air Force and Army personnel for
fiscal 1969 (July 1, 1968, to June 30, 1969). The Sanz
School, a competitor, was awarded the contract for fiscal
1970 (July 1, 1969, to June 30, 1970), and the Respondent,
also owned and controlled by Mr. and Mrs. Schiweck, was
awarded the contract for fiscal 1971 (July 1, 1970, to June
30, 1971). All three schools had entered into collective-
bargaining agreements with the Union as the representative
of the Vietnamese teachers. The Respondent's collective-
bargaining agreement was executed September 15, 1970,
and continues in force as long as the duration of the
Respondent's government contract.
The evidence shows, without dispute, that there exists an
intraunion division between essentially two groups in the
Vietnamese community, which comprise the union mem-
bers. This division or conflict of interest between the two
groups is part cultural and based on differentiation in status
related to degree and excellence of education and in part
based on the immigration status of these teachers.
Generally, these Vietnamese teachers who have secure
status as "immigrants," as contrasted with those teachers
who hold only temporary visas, were more likely to
manifest a harder line and to hold out for greater benefits in
collective bargaining, whereas the temporary visa holders,
dependent on a job in order to retain visa eligibility, were
more inclined to accept the Respondent's contract
proposals.
The four charging individuals in this case are all
"immigrants ," a secure status which precludes their
vulnerability to deportation. Their education is superior.
The ideological leader of the four of them is Miss Ky-My
who was the chief instrument in founding the Union. She is
1. Events preceding the Respondent's refusal to
hire Miss Ky-My
Miss Ky-My had been employed as a language instructor
for the Academy of Language Studies, Inc., at Biggs Field
in El Paso from October 14, 1968, to October 1969, and
with the loss of the contract to the Sanz School, she worked
as an instructor for Sanz School until September 25, 1970.
Miss Ky-My is an "immigrant," and in such status she is
considered a legal resident of the United States who may
engage in any occupation for anyone and she is eligible for
U. S. citizenship. Her status is more secure than the holder
of an H-2 or temporary visa who thereby becomes
dependent on the government contractor, as the temporary
visa holder must work for a specific employer, and the visa
automatically expires when his work for that employer
ends.
Miss Ky-My, resentful of abuses by governmental
contractors toward the Vietnamese instructors and motivat-
ed by a desire to improve their wages and working
conditions, gave much of her time and energy to organize
the Union and secure its charter. She wrote the Union's
bylaws and completed its organization. She was elected
president of the temporary committee. She declined the
presidency of the Union to become its first secretary-
treasurer where she served from May 1969 to May 1970
when she refused to seek further office because she wanted
to work on her doctorate degree. She was a member of the
committee that negotiated the first collective-bargaining
agreement with Mr. Schiweck who then operated as the
Academy of Language Studies, Inc., and she negotiated the
second collective-bargaining agreement with Mr. Sanz.
2. The July 17 union meeting
She attended a union meeting at the Sanz School on July
17, 1970. At this meeting the union president, Mr. Trung,
having opened the meeting, told the members, according to
Miss Ky-My's credible and uncontradicted testimony, that
"all of us who wanted to apply for Aclang had to go
through the union, but there was one member, Miss
Nguyen Thi Ky-My who went directly to Aclang and filed
an application. She went against the interests of the union.
She is not a good member of our union." Although Miss
Ky-My had raised her hand to speak, the president gave the
floor to two other members who both said "that Miss Ky-
My was going against the interest of the union." Then the
president gave Miss Ky-My the floor. Miss Ky-My,
according to her own credible and undisputed testimony,
told Mr. Trung and the membership "that the act of filing
an application for employment is an act of freedom on my
part. No one can stop me looking for a job." Then,
according to Miss Ky-My, the "whole room shouted at me,
1 The above quote is from Mrs . Long's testimony Mrs. Vo testified, "I interest of the instructors."
support the union and Miss Ky-My, because she always fight for the
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stopped me from talking, and I was so nervous I said
these other words, I said 'I wish I could insult all of you,' 2
and the noise came back again, and Mr Trung [the union
president] came to me and he wanted to hit me in the
face." 3
After this incident at the July 17, 1970, union meeting, the
five members of the union committee signed and circulated
among the members for signature a petition to expel Miss
Ky-My from the Union with the following preamble.
We, the undersigned members of the Union of
Language Teachers local # 1949, assembled on a
general meeting on July 17, 1970 unanimously request
to expel NGUYEN-THI-KY-MY, a member of this
Union, for her misbehavior (calling names, shouting
insults, and vociferations) and her misconduct with the
membership in particular and the Union in general.
Sixty-five members signed the petition Dr. Vinh's4 wife,
a union member, attended this meeting
3 The August 7 union meeting
A union meeting was held at the Sanz School on August
7, 1970, to consider the Respondent's contract proposal.
Mr. Givens, the Union's supervisor, who was in attendance
recommended against acceptance and, by a secret ballot
vote of 85 to 1, the membership rejected Respondent's
proposal
4. Respondent's acts of restraint and coercion on
August 12
On August 12, 1970, Gary Moore upon instruction from
Mr. Schiweck called in a number of Vietnamese instructors,
ostensibly to check on their visa status.5
Miss Kim-Cuc, employed as a Vietnamese instructor by
Respondent at Biggs Field since July 23, 1970, and the
holder of an H-2 temporary worker visa, was told by her
supervisor to report to Mr. Moore on August 12, 1970. Miss
Kim-Cuc testified credibly that she reported to Mr. Moore
in the Teacher Room, and he talked to her alone although
there were other people in the room. Miss Kim-Cue's
testimony, which I credit, is as follows:
Mr. Moore talked to me about the previous union
meeting, and he tell me about there are 85 votes against
the school proposal, and have only one accept that
school proposal He also tell me he know who is that
person. Then he tell me about, they have two salaries,
500 for beginning teacher, . and 525 for experienced
teacher, and he asked me do I accept the Aclang School
proposal, and he tell me about if I accept it, I will not
get in any trouble about my visa or anything else. If I
don't, I want to work for $550 for one month, I could
work one month, or two months, and I say O.K., I
accept Aclang School proposal about the last meeting.
Miss Kim-Cuc further credibly testified that after Mr.
Moore finished talking to her "he check my name on the list
2 Mr Trien, the secretary- treasurer of the Union, who was present at
the meeting , testified that Miss Ky-My said, you are all stupid and
dumb "
3 Union Secretary-treasurer Trien's testimony corroborates Miss Ky-
My Trien testified that "a very hot tempered man after she said it, he
was so angry he almost hit her
4 Dr. Vmh is vice president of the Respondent and he directs the
. a yellow sheet of paper." She further testified credibly
that Mr. and Mrs. Schiweck came into the room and Mrs.
Schiweck said, "why Vietnamese person have 85 vote
against her, and she said she helped them to send money to
their country and to buy house or something like that, and
how come, why they are not nice to her." Miss Kim-Cuc
further testified that before it was her turn to talk to Mr.
Moore, she saw other instructors, namely, Miss Hai, Mr.
Do, Miss Psuonganh, and Miss Yen, talk to Mr. Moore but
she did not hear the conversation.
Called as a witness by Respondent, Mr. Gary Moore
conceded that he had called in a number of instructors to
the teacher's ready room on August 12, that he spoke to
them in groups of two or three; and he "assumes" that Miss
Kim-Cuc was among them. Moore testified that he didn't
remember speaking to Miss Kim-Cuc individually. Mr.
Moore offered no evidence as to the content of his
conversation with Miss Kim-Cuc individually or in a group,
and it is apparent that his testimony did no more than gloss
over his meeting with Miss Kim-Cuc in a studied effort to
obscure the content of the conversation with the excuse that
he didn't remember talking to her, Miss Kim-Cuc's
testimony was simple, direct, and forthright, with conscien-
tious attention to accuracy and detail. I credit Miss Kim-
Cue's testimony, and I find that Mr. Moore, as an agent of
the Respondent, by summoning Miss Kim-Cuc to the
Respondent's office and carrying on with Miss Kim-Cuc
the conversation related by her, thereby interrogated her
concerning her union activity and threatened her with
possible loss of her visa status and loss of work if she did
not accept the Respondent's wage proposals. I make no
finding concerning the content of conversations carried on
by Mr. Moore with other instructors on that same day in
the absence of competent nonhearsay evidence on the
matter. By the foregoing conduct of Mr. Moore, I find that
the Respondent interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights. The
Respondent, I find, thereby violated Section 8(a)(1) of the
Act.
5. The August 14 union meeting
Notwithstanding instruction from the Union's supervi-
sor, Mr. Givens, not to hold any union meetings during his
absence from the city, the union committee, having
received an improved proposal on certain benefits from Mr.
Schiweck, called a meeting on August 14, 1970, in Mr.
Givens' absence. Obedient to Mr. Givens' instructions,
none of the four charging individuals in this case attended
that meeting. The membership voted by secret ballot 68 to
18 to accept the Respondent's contract proposal.
6. The August 22 union meeting
On Mr. Givens' return to the city another union meeting
was called on August 22, 1970, to reconsider the Union's
supervision of the instructors
5 Mr Moore at the time was employed in the front office to handle the
immigration visa status of the instructors He was an intimate acquaintance
of long standing with Mr. Schiweck and was paid $75 for a 10-hour week
Mr Moore's wife also worked in the front office and holds the office of
secretary of Respondent Mr Moore had served as vice president of the
Academy of Language Studies, inc
ACLANG, INC.
action of August 14. At this meeting, Mr. Givens, the
Union's supervisor, told the membership he had convened
the meeting to consider whether employees had been
threatened by Mr. Moore. Four persons arose and told of
their conversations with Mr. Moore concerning their visas
and the August 7 membership 85 to I vote rejecting the
Respondent 's contract proposal.6 Mr. Givens expressed his
opinion to the group that Mr. Moore's action in attempting
to influence these instructors constituted unfair labor
practices . Although Mr. Givens recommended against
accepting the Respondent's proposal, the membership
voted 31 to 30 by show of hands to reaffirm the Union's
August 14 action in accepting the Respondent's contract
proposal and to put off filing unfair labor practice charges
against the Respondent. The four charging individuals in
this case were among the 30 who voted to reject the
Respondent's contract proposal.
B. The Refusal to Hire Miss Ky-My
Aware that the Sanz School's government contract would
soon expire and that Respondent had been awarded the
contract for fiscal 1971, Miss Ky-My made written
application for work with the Respondent in July 1970. Her
name was also submitted along with 36 other union
members as an applicant in the Union's August 10, 1970,
letter to the Respondent.
On September 10, 1970, having received a 2-week notice
of her pending layoff by Sanz, Miss Ky-My went to the
Respondent's office and inquired of Respondent's vice
president, Dr. Vinh, if there was an opening. Dr. Vinh
replied, "You are a special case You have to see Mr.
Schiweck." Miss Ky-My saw Mr. Schiweck the following
day regarding an opening and related to him her
conversation with Dr. Vinh. Mr. Schiweck told Miss Ky-
My he had no opening-she could come back and ask him
later. Miss Ky-My was laid off by Sanz on September 25,
1970. In the second week in October 1970, she phoned the
Respondent's office and talked to Mrs. Schiweck who told
her that Mr. Schiweck was out of the city-that she would
have to talk to him. Miss Ky-My sought advice from the
Board's El Paso office and she then returned to the
Respondent's office where she saw Mr. Schiweck about
employment. Mr. Schiweck told Miss Ky-My, according to
her credible testimony:
I am not going to hire you because some teachers told
me they would walk out on the job if I hired you
Miss Ky-My then told Mr. Schiweck that she had dust
come from the N.L.R.B., to ask another time if he has an
opening, but since he had refused to hire her she was going
to file charges Miss Ky-My then filed her unfair labor
practice charges in this case with the Board's El Paso office
on October 15, 1970.
Concerning the reason he refused to hire Miss Ky-My,
Mr. Schiweck testified that personally he liked her and he
considered her "well qualified." But he had refused to hire
6 Because of the hearsay rule, I make no findings as to the truth of the
facts related by these four people to the union membership, with the
exception of Miss Kim-Cuc who testified at the hearing concerning her
conversation with Mr Moore on August 12
r The quote is from the credible testimony of union secretary-treasurer,
Mr. Trien, who gave the above quote as the translation from the
89
her because. "The feeling in the community ... at the
moment would be that they would prefer not to work with
her. . . . I would like to maintain a smooth operation
primarily with 100 and some teachers. It is essential that we
don't have strife in this country among the teachers.. . . I
am not saying she will be a troublemaker.. . . it would lead
to some disagreements now whether she would be at fault, I
don't know." Mi. Schiweck testified other people had told
him they didn't want to work with Miss Ky-My. Mr.
Schiweck conceded he had also heard of the petition to
expel Miss Ky-My from the Union, and this in part caused
him to refuse to hire Miss Ky-My, and he so advised the
U.S. Department of Labor in a letter dated October 1, 1970,
in which he said with respect to Miss Ky-My:
Miss Nguyen Thi Ky-My has had and continues to have
personality conflicts with fellow instructors. She has
exhibited a violent temper and has almost come to
blows. Seventy-nine of the instructors in the El Paso
area have signed a petition to expel her from the local
Union because of her actions and attitude.
Testifying further, Mr. Schiweck said: "I eventually heard
of that petition, . . . but the initial encounter with this
situation was they had a meeting one night, . . . but the
next morning when the teachers came in they were quite
agitated and it looked like it might have disrupted s' me of
our operations, so I inquired what was going on and ^,t that
time I found out allegedly what happened at the meeting
and some feelings were very strong about it, . . . it is just as
well to keep trouble out. . . . I heard of one statement that
she had made . . . I would have to believe it."
C. Analysis and Conclusionary Finding Concerning
Respondent's Refusal to Hire Miss Ky-My
Although there is evidence that Miss Ky-My was the
leader of a group composed of immigrants who opposed
acceptance of the Respondent's contract proposal, .t has
not been established on the record that the Respondent's
refusal to hire her was based on her opposititin to
acceptance of the Respondent's contract proposal. I Lind, in
accordance with Mr. Schiweck's testimony on the record,
that he refused to hire Miss Ky-My because of his
apprehension of discord from other teachers who resented
Miss Ky-My's conduct at the July 17 union meeting and
because of the petition to expel Miss Ky-My from the
Union. At the July 17 union meeting the union president
and two other members from the floor criticized Miss Ky-
My because she had applied in person to the Respondent
for an instructor's position and condemned her as not a
good union member. Miss Ky-My took the floor to ttefend
her freedom to look for work and was provoked by shouts
from the membership which prevented her from speaking
out. In anger and frustration, she told the group "you are all
stupid and dumb." 7
It is clear, and I find, that the conduct of Miss Ky-My at
Vietnamese idiom I do not credit Miss Ky-My's testimony that she told
the membership " I wish I could insult all of you " Mr Tnen impressed me
as a fair and objective witness , and in view of the provocation and the
moment of Miss Ky-My's anger , it is more likely that she uttered the
remarks as testified to by Mr Trien
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the July 17 union meeting was protected by Section 7 of the
Act.8 It is well settled law that an employer, even in the
interest of promoting harmony or preventing discord in his
establishment, may not discharge or refuse to hire an
employee to appease an opposing faction of union or
nonunion employees who harbor an opposition to that
person's employment which grows out of that person's
union or Section 7 activity. Here, it is clear that the
opposing faction, which happened to be headed by the
union leadership, resented Miss Ky-My's remarks and
ideology expressed in union debate. It is common
knowledge that the expressing of opinions and positions at
union meetings often becomes heated and is the cause for
division among factions. It is clear that a faction of the
union members, which included the union president, was
resentful of and disapproved Miss Ky-My's asserted
freedom to look for work without going through the Union.
They shouted their disapproval of her stand taken at the
meeting and when she further provoked them by calling
them stupid, the union president in anger assaulted her
person and 65 members, led by the union committee, signed
a petition to expel her. Mr. Schiweck was apprised of these
circumstances and refused to hire Miss Ky-My because a
faction opposed to Miss Ky-My threatened they would not
work with her. Under the circumstances, it became the duty
of the Respondent not to yield to such pressures resulting in
his refusal to hire Miss Ky-My.
What the Court of Appeals for the Second Circuit said in
N.L.R.B. v. Local 138, Operating Engineers (Zara Contract-
ing Co.), 293 F.2d 187, is appropriate here:
There seems to be no doubt that an employer who
denies employment . . . because the applicant or
employee has been expelled from a union for causes
other than failure to tender dues and initiation fees or is
otherwise in disfavor with the union because of
activities protected by Section 7 finds himself in
violation of Section 8(a)(1) and (3), even though he acts
under the economic duress of a threatened work
stoppage , N. L. R. B. v. BellAircraftCorp., 206 F.2d 235,
237 (2 Cir. 1953); N. L. R. B. v. ImparatoStevedoring Corp.,
250 F.2d 297,302 (3 Cir.1957);N.L.R.B. v. United States
Steel Corp., 278 F.2d 896, 898 (3 Cir. 1960).
The Trial Examiner's decision in A Itamont Shirt Corpora-
tion, 131 NLRB 112, adopted by the Board, at page 120
aptly states the employer's duty not to surrender his right to
hire to employee groups as follows:
This case is governed by principles which are now well
established. Both the Board and the courts agree that
there is an affirmative duty imposed upon an employer
by the Act to insure that its right to discharge is not
delegated or surrendered to any union or antiunion
group, and that an employer who acquiesces in the
exclusion of employees from his plant by such a group
will be regarded as having constructively discharged the
excluded employees in violation of Section 8(a)(3). Fred
P. Weissman Co., 69 NLRB 1002, 1025; enfd. 170 F.2d
952 (C.A. 6); cert. denied 336 U.S. 972; D. D. Newton,
8 Section 7 Employees shall have the right to self-organization, to form,
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
an Individual d/b/a Newton Brothers Lumber Co., 103
NLRB 564, 567 ; enfd . 214 F.2d 472, 475 (C.A. 5);
N. L R. B. v. Goodyear Tire & Rubber Company, 129 F.2d
661, 664 (C.A. 5); N. L.R.B. v . Hudson Motor Car
Company, 128 F.2d 528 , 532-533 (C.A. 6); Detroit
Gasket and Manufacturing Company, 78 NLRB 670,
671; J. P. Florio & Co. Inc., 118 NLRB 753, 754, 756.
And as the court held in the Goodyear Tire case , supra,
whether Respondent had, or had not, responsibility for
any part of the feeling which existed is beside the mark,
for the evidence here plainly established that union
adherents were repeatedly excluded , to Respondent's
knowledge , except on condition they sign a renuncia-
tion of the Union . Difficult as an employer's position
may be under such circumstances , his duty requires him
to resist the domination of his managerial prerogative to
employ , whether manifested by or against a union
faction . Id., and see also Majestic Metal Specialties, Inc.,
92 NLRB 1854, 1862.
Upon the entire record , I find that by refusing to hire
Miss Ky-My on and after September 15, 1970, the
Respondent thereby discriminated against her and coerced
and restrained employees in the exercise of rights
guaranteed by Section 7 of the Act in violation of Section
8(a)(1) and (3) of the Act.
D. The Refusal to Hire Mr. Bich, Mrs. Vo, and
Mrs. Long
Mrs. Vo, Mrs. Long, and Mr. Bich are, like Miss Ky-
My, among the group of approximately 120 Vietnamese
teachers who comprise the community and like all the other
teachers are members of the Union. The three are well
educated and admittedly competent Vietnamese instructors
who have taught for a number of government contractors at
Biggs Field in El Paso, Texas. As related earlier in this
Decision, they are fast friends of Miss Ky-My and accept
her leadership in union matters.
The husbands of Mrs. Vo and Mrs. Long, together with
Mr. Bich, organized a language school under the name
School of Vietnamese Language and Culture on January
30, 1970, and on that date filed a Certificate of Business
under assumed name with the county clerk of El Paso
County. This firm, in competition with the Respondent and
others, submitted bids for the government teaching
contract at Biggs Field in El Paso as well as at Monterey,
California. The formation of this competing firm came to
Mr. Schiweck's attention when he saw the published record
of the filing of the Certificate of Business in a news
publication known as "The Commercial Recorder" in early
February 1970. Later Mr. Schiweck learned from govern-
ment sources that this firm had submitted competing bids
at Biggs Field and in Monterey, California. None of the
three notified the Respondent that they or their husbands
had set up a school in competition with the Respondent.
Like Miss Ky-My, Mr. Bich and Mrs. Vo attended the
August 22 union meeting and all three voted against the
Respondent's contract proposal by show of hands. Mrs. Vo
protection , and shall also have the right to refrain from any or all of such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment as authorized in section 8(a)(3).
ACLANG, INC.
put up both hands, one for herself and the other as proxy
for Mrs. Long who was absent. As related earlier in this
Decision, the vote was 31 to 30 to accept the Respondent's
contract proposal.
During the first or second week in September 1970, Mr.
Bich and Mrs. Long went to the Respondent's office and
talked to Respondent's vice president, Dr. Vinh, about
employment. They were told by Dr. Vinh that their case
was too special, they must see Mr. Schiweck. Near the same
date Dr. Vinh had also told Mrs. Vo that she too was a
special case requiring that she see Mr. Schiweck. On the
following day, the three, Mr. Bich, Mrs. Vo, and Mrs. Long,
called on Mr. Schiweck together to inquire about
employment. Mrs. Long asked when there would be an
opening for the three. Mr. Schiweck replied he had no
openings; he would let them know when there would be an
opening. Mr. Schiweck inquired if they had applied through
the Union, and they replied they had .9 Mr. Schiweck never
called the three to offer them employment. Nothing was
said by Mr. Schiweck to the three about their competing
firm.
Mr. Schiweck credibly testified that he refused to hire
the three, namely, Mr. Bich, Mrs. Vo, and Mrs. Long,
because "They are directly affiliated with a competitor
.. . . The Vietnamese School of Language and Culture
.. . . Mrs. Chi Long is the wife of the president of the
company. Mrs. Diem Thi Vo is the wife of the vice-
president, and Mr. Tran Van Bich is secretary-treasurer of
the company." Stating his further reasons for refusing to
hire the three, Mr. Schiweck testified that it was important
not to hire these people because he considered them a
"definite threat to our business... . we felt that it was
necessary to keep them out of our main offices primarily
because there is too much information that goes over those
desks. . . . if we know someone is going to spy on us we
don't want them."
Counsel for the General Counsel contends that the
assigned reason for Mr. Schiweck's refusal to hire these
three individuals is pretextual, arguing that it is possible
that any of his instructors or other personnel could submit
bids in competition with the Respondent. He further argues
that the three charging individuals were not hired because
they were against accepting the Respondent's contract
proposal. On the basis of the record, I must disagree with
the counsel's argument. Initially, it should be observed that
it is the common practice in the every day business world
not to give employment to one's competitors and it is
pointed out that the Respondent was following what is
generally regarded as prudent business practice. Indeed, the
Board itself has disclosed its philosophy in this regard in
Bausch & Lomb Optical Company, 108 NLRB 1555, where it
refused to sanction a union's representation of Bausch &
Lomb's employees because the union at the same time was
engaged in a business in competition with Bausch & Lomb.
The Respondent could not be expected to give employment
to no one for fear that such persons would some day
compete with it. To employ no one based on such an
unnecessary fear would mean that the Respondent could
not function. But certainly it is understandable that the
9 The names of all four charging individuals in this case were included
in a list of applicants submitted by the Union to Respondent August 10,
91
Respondent would not employ viable and active competi-
tors. One does not as a rule permit the competitor to enter
its camp.
Considering the second point in counsel's argument,
namely, that the three were not hired because they had
opposed Respondent's contract proposal, it is pointed out
(1) that there is no evidence that the Respondent was aware
that the three had opposed Respondent's contract proposal.
In this connection, it is noted that the vote at the August 7
meeting was by secret ballot and 85 members opposed the
contract proposal. The three did not attend the August 14
meeting, and although the August 22 meeting's vote was by
show of hands, there is an absence of evidence that
Respondent's officials were informed how each member
voted. Additionally it is pointed out that 26 other union
members openly voted against the Respondent's contract
proposal at the August 22 meeting and there is no showing
that any discrimination was practiced against them.
I am satisfied that there is insufficient evidence in the
record to sustain General Counsel's contention that Mrs.
Vo, Mrs. Long, and Mr. Bich were refused employment in
violation of Section 8(a)(1) or (3) of the Act. On the
contrary, I find that they were refused employment for
reasons not violative of the Act. I will, therefore,
recommend that the complaint be dismissed insofar as it
alleges violations with respect to the Respondent's refusal
to hire those three Charging Individuals.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Miss Ky-My by
refusing to hire her on and after September 15, 1970, I will
recommend that Respondent offer her immediate employ-
ment as an instructor at Biggs Field or, if thatjob no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of pay she may have suffered
by reason of said discrimination against her by payment to
her of a sum of money equal to that which she would have
earned from the date of the discrimination against her to
the date of her reinstatement less her net earnings during
such period in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289, with interest
1970
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereon at 6 percent per annum, Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the basis of the forcr'oing findings of fact and upon
the entire record,10 I make the following-
Ci.NCLUS) ONS OF LAW
1. The Respondent is art employer engaged in com-
merce within the definition of Section 2(6) and (7) of the
Act.
2. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminating in regard to hire and tenure of
employment of Miss Ky-My because of her union and
protected concerted activities, Respondent has engaged in,
and is engaging in, unfair labor practices in violation of
Section 8(a)(3) and Section 8(a)(1) of the Act.
4. By interrogating Miss Kim-Cue and by threatening
her as found above, the Respondent interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act, thereby engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:''
ORDER
Aclang, Inc , its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercing and restraining its employees from engaging
in union activities and the exercise of other rights
guaranteed by Section 7 of the Act
(b) Discriminating with respect to the hire and tenure of
employees or applicants for employment because of their
union activity or their exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative actions which, I find,
will effectuate the policies of the Act:
(a) Offer Nguyen Thi Ky-My immediate and full
employment to an instructor's position at Biggs Field or, if
that position no longer exists, to a substantially equivalent
position, without prejudice to her seniority and other rights
and privileges, as provided in section V, above, entitled
"The Remedy," and make her whole according to the
formula and method prescribed in said section V.
(b) Preserve until compliance with any order for
reinstatement or backpay made by the National Labor
Relations Board in this proceeding is effectuated, and make
available to the said Board or its agents, for examination
and copying, all payroll records, social security records,
timecards, and personnel records which may be relevant to
a determination of the amount of backpay due, and to the
reinstatement and related rights provided by such order.
(c) Notify Miss Ky-My, in the event that she is now
serving in the Armed Forces of the United States, of her
right to full employment, upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(d) Post in conspicuous places at the Respondent's place
of business in El Paso, Texas, including all places there
where notices to employees are customarily posted, copies
of the notice attached hereto marked "Appendix." Copies
of the said notice to be furnished by the Regional Director
for Region 28 of the National Labor Relations Board, shall,
after being duly signed by an authorized representative of
the Respondent, be posted by it immediately upon receipt
thereof and maintained by it for 60 consecutive days
thereafter in such conspicuous places. Reasonable steps
shall be taken by the said Respondent to insure that said
notice is not covered, altered or defaced by any other
material.12
(e) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of the receipt of a
copy of this Decision, what steps the Respondent has taken
to comply therewith.13
IT IS ALSO RECOMMENDED that the complaint be dismissed
to the extent that it alleges that the Respondent engaged in
unfair labor practices by refusing to hire Mrs. Long, Mrs.
Vo, and Mr. Bich.
10 In accordance with the General Counsel' s unopposed motion, the
record is corrected
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall , as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto
shall be deemed waived for all purposes.
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
13 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 28, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Nguyen Thf Ky-My an instructor's
position at Biggs Field, El Paso, Texas, or, if thatjob no
longer exists, a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and we will pay her for any loss of pay she
may have suffered by reason of our discrimination
against her together with interest thereon at 6 percent.
WE WILL NOT discharge, refuse to hire, or otherwise
discriminate in regard to the hire and tenure of
employment or any term or condition of employment of
our employees because of their membership in and
activities on behalf of the Union herein or any other
labor organization of their choice.
WE WILL NOT in any manner interfere with, restrain,
ACLANG, INC.
or coerce our employees in the exercise of their right to
self-organization , to form , join , or assist labor organiza-
tions, including the Union herein, to bargain collective-
ly through a bargaining agent chosen by our employees,
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any such activities.
ACLANG, INC.
(Employer)
Dated By
(Representative) (Title)
WE WILL notify immediately Nguyen Thi Ky-My, if
93
presently serving in the Armed Forces of the United States,
of the right to full employment, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, Room
1025, The Mills Building, 303 North Oregon, El Paso, Texas
79901, Telephone 915-533-538 1.