Cadet Records, Inc.

National Labor Relations Board - Board Decisions

May 25, 1964

147 N.L.R.B. 158 (N.L.R.B. 1964)

.158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the right to reinstatement . Interests on backpay shall 'be computed in the manner
set forth in Isis Plumbing & Heating Co., .138 NLRB 716. It is also recommended
that the eight employees specifically named above be made whole by paying each
a sum equal to that which he would have earned since February 1, 1963, to May 2,
1963, absent the discrimination against him , less his net earnings during said
period.
Having also found that the Respondent has unlawfully refused to recognize or
to bargain with the Union as the representative of employees in an appropriate unit,
it will be recommended that the Respondent be required, upon request, ,to extend
recognition to and to bargain with the Union.
It will be further recommended , in view of the nature of-the unfair labor prac-
tices the Respondent has engaged in, that it cease and desist from infringing in any
manner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
3. By interfering with, restraining , and coercing its 'employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
in engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By discriminating in regard to the hire and tenure of employment of the
foregoing named employees , thereby discouraging membership in a labor organiza-
tion , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
5. All employees of Respondent's store located in Taylorville, Illinois, including
part-time employees , excluding the store manager , all guards, professional em-
ployees, and supervisors as defined in the Act, constitute , and have at all times ma-
terial to this proceeding constituted, a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
6. By refusing to bargain collectively in good faith with the Union as the ex-
clusive representative of the employees in the aforesaid appropriate unit , the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order-omitted from publication.]
Cadet Records, Inc. and Aurelia Gonzalez . Case No. 21-CA-
5320. May 25, 1964
DECISION AND ORDER
On February 3, 1964, Trial Examiner David F. Doyle, issued his
Decision 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 in its entirety, as
set forth in his attached Decision. Thereafter, United Electrical,
Radio and Machine Workers of America, Local 1421, filed exceptions
to the Trial Examiner's Decision and a supporting brief.
Pursuant to'the provisions of Section 3(b) of the National Labor
Relations -Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and 'Fanning] .
147 NLRB No. 20.
CADET RECORDS, INC. 159
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 Decision
and the entire record in this case, including the exceptions and brief,
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 orders that the
complaint herein be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding came on regularly to be heard by Trial Examiner David F. Doyle
at Los Angeles, California, on September 18 to 20, 1963, upon a complaint of the
General Counsel and an answer of the above-named Respondent.' The issues liti-
gated were whether the Company (1) had violated Section 8(a)(1) and (3) of the
Act by discriminatorily discharging employee Aurelia Gonzalez on or about March 5,
1963, and by failing and refusing to reinstate her; and (2) had violated Section
8(a)(1) of the Act by an allegedly coercive statement made by James Beard, gen-
eral manager of the Company, to an employee. At the hearing the parties were rep-
resented by the counsel above-named and were afforded full opportunity to present
evidence, examine and cross-examine witnesses, and to present oral argument and
briefs on the issues.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The pleadings establish that the Company is a California corporation with its main
office and principal place of business at Los Angeles, California, where it engages in
the manufacture and sale of phonograph records. In the course and conduct of its
business, the Company annually ships its products valued in excess of $50,000 from
Los Angeles, California, directly to points located outside that State. It annually
purchases and receives at Los Angeles, California, various products valued in excess
of $50,000, which are shipped to it from outside the State of California.
Upon the above facts I find that the Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Upon the pleadings I find that Local 1421, United Electrical, Radio and Machine
Workers of America, herein called the UE, is, and at all times material herein has
been, a labor organization within the meaning of Section 2(5) of the Act.
Upon all the evidence in the record, I find that Local 976, The International
Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
'In this Decision, Cadet Records, Inc., is referred to as the Respondent or the Com-
pany ; United Electrical, Radio and Machine Workers of America, Local 1421, as the UE ;
and Local 976, The International Union, Allied Industrial Workers of America, AFL-
CIO, as the . AIW ; the General Counsel of the National Labor Relations Board and his
representative at the bearing, as the General Counsel ; the National Labor Relations
Board, as the Board ; and the Labor Management Relations Act, as amended, as the Act.
The original charge herein was filed by Aurelia Gonzalez on April 30, 1963. An
amended charge was filed on June 26. 1963, and the instant complaint was issued by the
Regional Director , Twenty-first Region, on July 19, 1963.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of the controversy
At its Los. Angeles plant, the Company employs approximately 88 persons in its
production and maintenance unit. For several years past, both the UE and the AIW
have been rivals to represent the employees in this unit, with the AIW being the
victor. At the time this controversy arose, the AIW was the certified representative
of the employees, and had a labor contract, conventional in form, with the Company.
Pursuant to a Decision and Direction of Election issued by the Regional Director
(Twenty-first Region) on June 5, 1962, and a Second Supplemental Decision issued
on December 4, 1962, a second election by secret ballot was conducted on March 5,
1963, under the direction and supervision of the Regional Office. It is against this
background of the rivalry of the contending unions and the pendency of an election
that the alleged unfair labor practices occurred.
Also as part of the background of the instant case is the employment record of
Aurelia Gonzalez, the Charging Party herein. Her record of employment discloses
that she went to work for the Company originally on February 9, 1961. The record
also shows that her employment was marked by some interruptions due to layoff,
and some absenteeism due to illness. The.testimony of Gonzalez discloses that in
1961 and early 1962, she complained of pain due to bursitis in her right arm and
pains in her back. In November -and December- 1962, according to her testimony,
she experienced some pain due to a gall bladder condition, which ultimately required
an operation.. This condition also caused her to be absent from work occasionally.
In the course of this last mentioned illness and at a time when the rival unions were
actively campaigning for support among the employees, the layoff of Gonzalez and
her termination, with which we are principally concerned in this proceeding, occurred.
B. The alleged discriminatory discharge
It is undisputed that Gonzalez was employed by the Company as a bagging machine
operator, and that her immediate superior was James Takeda, who had the title of
assistant to the general manager, who was James Beard. There is a sharp conflict in
testimony between the version of her discharge furnished by Gonzalez and other wit-
nesses and the version furnished by Takeda and Beard.
Aurelia Gonzalez, called as a witness for the General Counsel, testified that due
to her bursitis and various ailments she had been absent on various occasions in
1961 and early 1962. In the fall of 1962 she began to suffer pain from a gall bladder
condition which caused her to be absent quite frequently. In' October, she talked to
Takeda about the, possibility of her having to undergo an operation on her gall
bladder. She worked during the day of December 19, 1962, but on the next day
when she arose she had such pain that she could not work. Later in the morning
she felt better so she reported to work at approximately noon. She saw that her
machine was occupied by another worker, so she went to Takeda to find out what
she should do. Gonzalez speaks Spanish but very little English, so she took Gallo,
another Spanish-speaking, employee, with her to act as interpreter. Through Gallo,
Gonzalez told Takeda that she had reported late because she was feeling very bad
that morning. According to Gonzalez, Takeda said "that maybe on the following
day he may not have to give me a layoff, because-I was missing a lot, and there was
a lot of work and they needed me." Then, according to Gonzalez, Takeda said
"that he was going *to give me a temporary layoff until I got well, until I would re-
port to work so that I would have an operation, and to let him know on the date that
I was going to be operated," and that, "after I was ready that I should report to
work'."
.Gonzalez had her operation on February 4, 1963. - On the Friday prior to that
date, Gonzalez told her sister-in-law, Maria Martinez, who also works for the Com-
pany, to tell Takeda that she was going into the hospital for the operation on Mon-
day. Gonzalez left the hospital on February 8, and thereafter convalesced at home.
On March 5, 1963, Gonzalez went to the plant to vote' in the election. On this
occasion the observers told her that she was not on the list of eligible voters. She
asked the observers why her name was not on the list but the observers told her that
they did not know why her name was not listed. In the course of her cross-
examination, Gonzalez was asked if she was not told by-the observers that'her em-
ployment had been. terminated by the Company. Gonzalez replied that no one had
told her that she had been terminated. ' • ' .
On or shortly after April 8, 1963, Gonzalez went to the Company and there asked
Martha Torres to act as interpreter for her. The two women went to the office.
CADET RECORDS, INC. 161
Gonzalez showed Tani, the supervisor in charge, a "Notice to Claimant" which she
had received from the State of California Department of Employment. This notice
notified her that she would be able to work on April 8, 1963. On this occasion,
Gonzalez told Tani that she was ready to go to work. Tani asked her if she had not
received notice that she had been terminated. She said that she had not received any
such notice and that it was a surprise to, her. According to Gonzalez, Tani then said
that he would talk to Takeda or Beard about Pit.'! Then Torres asked Tani to call
Takeda immediately. He phoned and talked to'Takeda' and then Tani told Gonzalez
to return on Monday.
On Monday, Gonzalez with Torres again went to the office. On this occasion,
Tani told her that Beard had said -that she had been fired. Thereafter, Gonzalez
signed a grievance form which she presented to the Company and signed the
charges herein.
Maria Martinez, the sister-in-law of Gonzalez, testified that on the Friday before
Gonzalez went to the hospital she told Martha Torres to tell Takeda that Gonzalez
was going into the hospital. Martinez also said that neither Takeda, Tani, nor Beard
ever told her that Gonzalez had been terminated.
Clara Fiering, field organizer for the UE, also testified in support of Gonzalez.
Fiering'testified that on February 21, 1963, she had an appointment to meet with
representatives of the Company in Beard's office for the purpose of checking the
eligibility list for the election. Present at this meeting were Beard, for the Com-
pany; Fiering and Camacho, another organizer, for the UE, and representatives
of A1W. After examining the proposed list, Fiering' pointed out to Beard that the
names of two employees, Bonilla and Gonzalez, were not on the list. Fiering told
Beard that Bonilla was injured in the course of her employment and was drawing
workmen's compensation and was eligible to vote. She also said that Gonzalez
was on sick leave and was also eligible to vote. Beard pointed out that neither of
these employees was on the payroll for the week in question. Beard said he would
check on the matter. He then dialed a number and asked someone who answered
the phone about the status of Bonilla. Then he said that it was all right to put
Bonilla's name on the eligibility list. Beard then asked about Gonzalez, and then
told Fiering that the person at the other end of the line didn't know about Gonzalez'
status, that he would have to talk to Takeda. According to Fiering, Beard then
phoned Takeda. Fiering did not hear what Takeda said except that Beard said,
"Well, allright, how long can you be on sick leave" When Beard hung up he
agreed that the name of Bonilla could go on the eligibility list, but as to Gonzalez,
Beard said he would have to check into it further. Then Beard remarked to
Fiering that since Fiering wanted Gonzalez on the eligibility list that she must
be a strong adherent of the UE.
On the date of election, prior to the election, the representatives of the parties
had a second conference on the eligibility list. Beard represented the Company;
Johnson, a field examiner, represented the Board; Fiering, Camacho and employee
Rodriquez represented the UE; Cortez and White represented the AIW.
At this meeting, Fiering made a final check of the eligibility list and again noticed
that the name of Gonzalez was not on the list. When she pointed that out, Beard
called Takeda into the room and Takeda told him about all the days that Gonzalez
had been absent, but Takeda stated that Gonzalez was on sick leave. Then Beard
said, "I don't think you can be absent that much." Cortez, of the AIW, said that
he would not agree that Gonzalez' name could go on the list until all.the facts were
verified. At that point, Johnson said that Gonzalez could vote on a challenged
ballot. The election began soon thereafter and Gonzalez cast a challenged ballot.
Humberto Camacho, also a field organizer for the UE, and Delfina Rodriguez, the
observer for the UE, both of whom were at this conference, supported this version
of this conference furnished by Fiering.
The witnesses called 'by the Company furnished a quite different version of the
discharge of Gonzalez. James Takeda, assistant to Beard, the general manager,
testified in a creditable manner. He testified with every indication of 'candor and
frankness. Takeda testified that on December 20, Gonzalez came to him with
Martha Torres, who was the stewardess for the A1W. Gonzalez, through Torres,
told Takeda that she wasn't feeling well and that she wanted to go home. Takeda
told her that she had been missing a day prior to that, and that now she was com-
plaining about not feeling well. He told Gonzalez and Torres that under the cir-
cumstances he could not carry on the work of the department with Gonzalez
absent so frequently, and that he was forced to discharge her. At this point, Gon-
zalez said she didn't think that his decision was either right or fair. Tones and
Gonzalez then talked for a few moments and then Torres suggested that Takeda put
756-236-65-vol. 147-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gonzalez on a leave of absence . He told the two women .thaf he.had .to.have some-
one steady on the . job, but he agreed with Torres that he would give Gonzalez a
leave of absence until such time as he would recall Gonzalez . Both women were
agreeable to this procedure. Takeda testified that Gonzalez.did not say anything
about a gall bladder operation at this . time or at any other time; nor was there
any mention of sick leave. On the 20th, Gonzalez had reported for work at 6:46
a.m., and the conversation regarding her physical condition took place around
noon. Gonzalez continued to work until the end of the working day,.about 3:30 p.m.
On January 7, 1963, Takeda called Gonzalez on the phone to recall her to work.
He told her that he wanted her to report for work on the following day. Gonzalez
told him that she was still ill and could not return. She did not, at that time, tell
Takeda the nature of her illness, nor did she say anything about an operation.
Later that day, Takeda spoke to Beard about the employees who were being re-
called to work and those who were not coming back , and in this connection the
name of Gonzalez came up . Takeda and Beard discussed her situation and the
fact that she still couldn 't come back because of her illness. Takeda told Beard
that he recommended that Gonzalez.be discharged so they could get someone who
was more steady in attendance. Beard told Takeda to do as he pleased in the
matter. After this discussion, Takeda noted on Gonzalez ' employment card,
"Terminated due to frequent illness." This occurred on January 7.
. On March 8 Gonzalez called Takeda on the telephone. -She told Takeda that
she was ready to return to work. Takeda told her that she had -already been ter-
minated because of her bad attendance record.
On or about April 5 Takeda had another conversation with Torres and Gonzalez.
On this date, he was at an affiliate of the Company when he received a phone call
from Tani. Tani told him that Gonzalez and Torres were in his office and Gonzalez
was ready to go to work. Takeda told Tani to put Torres on the phone. He told
Torres that Gonzalez had already been terminated because of her record of ab-
senteeism and because she had not returned to work when he had notified her to
come to work on January 7.
Takeda said that on March 5 he attended the preelection conference on the eligi-
bility list. In this conference , Fiering said that Gonzalez ' name had not been added
to the list. At that point Beard said that Gonzalez had been terminated and the.
UE representatives then asked where this termination showed in the records. At
that point Takeda went to the files and obtained Gonzalez' employment card.
This is a 3 by 5 card. He showed the UE representatives an entry marked thereon.
which reads, "Terminated due to frequent illness." According to Takeda this
entry was made on January 7, 1963. The conferees then engaged in an argument
as to Gonzalez' status, but Johnson of the Board said there was no sense in
arguing about it, as Gonzalez could vote on a challenged ballot.
Takeda testified that he was not present at the conference on the eligibility list
in February 1963, but on that occasion Beard had called him at an affiliate of the
Company and had asked him about the status of Bonilla and Gonzalez. He told
Beard that Bonilla was collecting workmen's compensation and that she was en-
titled to vote; he also told Beard that Gonzalez had been terminated but he didn't
know the exact date because the records were not available to him at the office of
the affiliate. Takeda said that he never sent any notice of termination to Gonzalez
because her leave of absence was only until he called her for work; therefore when
he called her on January 7 and she did not come to work, he and Beard decided
that this terminated her employment. On March 8, when Gonzalez phoned him
that she was ready to come to work, he told her that she had been terminated.
James Beard, .the general manager of the Company , testified in a credible manner
in support of Takeda.
Martha Tones, shop stewardess for the AIW, testified that she was present on
December 20, 1962, when Gonzalez told Takeda that she was ill and wanted to go
home. On this occasion Takeda told Gonzalez that she was missing too much
time on her job and that he couldn't have a person like that on the machine. He
told Gonzalez that he would have to discharge her. Gonzalez was not happy
when Takeda said that . She said that it wasn 't fair and she said that she was
going to complain to the AIW about that treatment. Torres told Gonzalez she
would call the Union about the situation but there was nobody at the union office
when she called. Torres and Gonzalez then went to Takeda and Torres told
Takeda that she thought he should give Gonzalez a leave of absence. Takeda said
he was going to give her a leave of absence, but only .for the time until he would
call her back. They all'agreed that Gonzalez would be on layoff until she was
called back to work.
Torres testified that when Gonzalez came back to work she brought a slip of
paper from the doctor that she was able to work . She showed this slip to Tani
RICH'S, INC. 163
who said that he didn't know anything about her situation . Then Torres called
Takeda on the telephone and asked him about it and Takeda said that Gonzalez
"had been dismissed ." When Torres told Gonzalez what Takeda had said Gonzalez
said that it was not fair and she intended to do something about it.
Later Gonzalez filed grievances through the UE and the AIW and later filed the
instant charge with the Board.
The Alleged Coercive Statement
Delfina Rodriguez , previously referred to, testified that in the latter part of April,
Beard came to her at her machine and told her that if the UE had won the election
he would have laid off some of the people 2 days a week and others 3 days a
week, and the next week he would have reversed the process , so that none of the
employees could collect unemployment insurance.
In the course of his testimony , James Beard categorically denied that he had
made any such statement to Rodriguez. On this point I credit Beard.
Concluding Findings
In this case, because of the bitter rivalry between the competing unions and the
closeness of the election which was decided by one vote, absent the count of chal-
lenged ballots , there is a high element of partisanship and self -interest in the testimony
of the witnesses.
Gonzalez is supported in her contention by her sister-in-law and the UE repre-
sentatives; while Takeda is supported by the testimony of Beard and the testimony
of Torres, the stewardess of the AIW. Gonzalez testified through an interpreter
and to some extent she seemed to be confused about some of the dates in her ver-
sion of the sequence of events. However, I have made allowance for Gonzalez'
difficulty in testifying through an interpreter.
Upon a review of the evidence as a whole, I am not persuaded that the pre-
ponderance of the evidence favors the General Counsel. Gonzalez did not impress
the Trial Examiner favorably. Although at some points in her testimony she ap-
peared to have some difficulty understanding some questions propounded to her,
at other times she seemed to have a very quick perception of the purport of the
questions . She impressed the Trial Examiner as a witness who did not hesitate
to conform her testimony to what she believed to be her own best personal interests.
The witnesses who supported her, the two UE representatives and Rodriguez, the
UE observer, were in my judgment highly partisan.
While it is true that the testimony of Takeda, Beard, and Torres must be examined
for the same elements of partisanship, bias, and self-interest, their testimony struck
the auditor as being far less tainted by those vices. Takeda especially testified in
a calm, exact, and forthright manner. The testimony of Beard and Torres sounded
reasonable and plausible. The resolution of this question of credibility between
the two sets of witnesses must be based largely upon those intangible qualities cov-
ered by the term , "the demeanor and bearing of the witnesses ," and the inherent
probabilities of their various testimonies.
Upon a consideration of all the evidence, the Trial Examiner must conclude
that the General Counsel has failed to prove the commission of the alleged unfair
labor practices by the Company by a preponderance of the credible evidence.
Therefore it is recommended that the complaint be dismissed in its entirety.
Rich's, Inc. and Local 60, American Bakery and Confectionery
Workers' International Union , AFL-CIO, Petitioner . Case No.
10-RC-5769. (1Vay 26, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer David M.
Vaughan. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
147 NLRB No. 19.