Dal-Tex Optical Co, Inc.

National Labor Relations Board - Board Decisions

May 24, 1962

137 N.L.R.B. 274 (N.L.R.B. 1962)

274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
I
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of our employees , by discriminating
against any of our employees in regard to hire or tenure of employment or any
term or condition of employment , because of the union membership or activity
of such employees.
WE WILL NOT refuse to bargain collectively exclusively and in good faith
with United Steelworkers of America , AFL-CIO, as the certified bargaining
representative of our employees in the appropriate unit described below.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist United Steelworkers of America , AFL-CIO, or
,any other labor organization, to bargain collectively through representatives
of their own choosing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from
any or all such activities , except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition
of employment , as authorized in Section 8(a) (3) of the Act, as amended.
WE WILL, upon request, bargain collectively with United Steelworkers of
America , AFL-CIO, as the exclusive representative of all employees in the
appropriate unit described below , with respect to wages, rates of pay, hours
of employment , or other terms or conditions of employment , and, if an
understanding is reached , we will embody such understanding in a signed
agreement . The bargaining unit is:
All production and maintenance employees , including plant clerical
employees , but excluding office clerical employees , professional employees,
guards, and supervisors as defined in the Act.
WE WILL make Elias Mancillas whole for any loss he may have suffered as
a result of the discrimination against him.
All our employees are free to become, remain , or refrain from becoming or
remaining , members of the above-named or any other labor organization.
Roy E . HANSON, Jr., MFG.,
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, 849 South
Broadway , Los Angeles, California, Telephone Number , Richmond 9-4711, Exten-
sion 1031 , if they have any question concerning this notice or compliance with.
its provisions.
Dal-Tex Optical Company , Inc. and International Union of Elec-
trical , Radio and Machine Workers , AFL-CIO. Case No. 16-
CA-1560. May 24, 1962
DECISION AND ORDER
On February 8, 1962, Trial Examiner Lloyd R. Fraker 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 in
137 NLRB No. 27.
DAL-TEX OPTICAL COMPANY, INC. 275
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
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 [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case , and finds merit in the exceptions as set forth below. Accord-
ingly, the Board adopts the findings and conclusions of the Trial
Examiner only to the extent that they are consistent herewith.
The complaint in this case alleges unlawful surveillance by Re-
spondent on September 7 and 14, 1961, and the discriminatory dis-
charge of three employees, namely, Gary Wilson, James G. Brown,
and R. A. Prather, on September 7, 8, and 9, 1961, respectively. The
Trial Examiner found that Respondent engaged in none of these al-
leged unfair labor practices. For reasons given below, we do not adopt
the Trial Examiner's disposition of this case.
A representation election held among Respondent's employees in
1959 was set aside by the Board because of threats and promises by
the Respondent which violated the Act.' A new election was held on
September 22, 19612 Objections filed by the Union alleging that Re-
spondent's conduct also interfered with a free election on this oc-
casion are presently pending before the Board. The events of the
instant case occurred shortly before this second election.
The Surveillance
The Union resumed organizational activity among Respondent's
employees in August 1961. The testimony which we credit 3 shows
that a union meeting was held on August 31 and it was followed by
1 130 NLRB 1313. Respondent was again found to have violated the Act in 131 NLRB
715 because of its discriminatory action taken against employees who testified adversely
to it in the prior proceeding Before the hearing in the latter case a Section 10(j) in-
junction had been obtained against the Respondent to protect the integrity of the hear-
ing and restrain the Respondent from taking retaliatory action against employees who
testified as witnesses . Edwin A . Elliot, Regional Director v Dal-Tex Optical Company,
Inc., June 14 , 1960 ( No. 8505, D .C. N. Tex )
2 On August 24, 1961, the Union filed with the Board a request to proceed with the new
election . The election was scheduled for September 22 and the Respondent was duly
notified of this fact.
i The Trial Examiner stated that he was unable , on the basis of either demeanor or the
record, to determine the relative credibility of Purcell and Crone whose testimony, as re-
flected in the Intermediate Report , would, if believed, establish surveillance , as against
Josserand , Walls, and Martinez , who denied the alleged surveillance . For the reasons set
forth hereinafter , we find that the denials of surveillance are not entitled to credence.
There is, moreover , nothing in the record , other than these denials , to cast doubt on the
testimony of Purcell and Crone ; in these circumstances, therefore , we credit their
testimony.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
others held on September 7 and 14 at union headquarters on Maple
Avenue in Dallas. During the meeting on September 7, Supervisor
Josserand drove past the union hall several times, driving very slowly.
In the course of the meeting of September 14, Josserand again rode by
the hall several times, this time in a car driven by Supervisor Walls.
On this occasion, the car came to a stop at a point immediately across
the street from the meeting place, where it remained parked for 3 or 4
minutes.
It is admitted that Josserand and Walls were in the vicinity of the
union hall on the nights in question and even that Josserand, on Sep-
tember 7, and Josserand and Walls, on September 14, had twice driven
down Maple Avenue. However, a reason other than surveillance has
been offered for their presence on Maple Avenue on those nights. On
the basis of the record, this asserted reason does not withstand analysis.
We are not persuaded by the explanations. Thus Josserand's testi-
mony is that he, on September 7, and he and the others, on Septem-
ber 14, happened to be on Maple Avenue on their way to and from a
visit to a lady employed at Speedy Drive-In. Josserand testified that
this lady was an acquaintance of his. Martinez, another passenger in
Walls' automobile on the night of September 14, however, testified that
it was either he or Josserand who knew this woman. According to
Josserand, he had met her in June. His only other meetings with her
took place on the nights, a week apart, when the Union was holding its
preelection meetings. On each occasion, there was only a passing
conversation between this person and Josserand and his companions.
It was Josserand's testimony that he never noticed the union hall or
even knew of its exact location. However, Walls testified that a neon
sign outside the building made it easy to see and Martinez testified that
someone in the car pointed to the union hall on their September 14 ex-
cursion saying, "There is the hall." The September 14 meeting had
been publicized by leaflets distributed outside the plant, and Walls and
Martinez admitted seeing union leaflets publicizing union meetings.
Josserand, too, apparently was aware of the preelection union activity
for, while disclaiming knowledge of the precise location of the union
hall, he admitted knowing that it was somewhere on Maple Avenue
because that fact had been publicized in union bulletins. Further
testimony by Josserand in this connection is also noteworthy. Thus,
on the evening of September 14, a company across the street from the
union hall was being picketed. Josserand testified that there were
pickets in front of a company across the street. He then testified as
follows :
Q. Picket signs across the street from where?
A. Across from the-Across from the ah-Across from the,
well, I guess it was the drive-in up there, Speedy Drive-In.
DAL-TEX OPTICAL COMPANY, INC. 277
Q. Across the street from Speedy Drive-In?
A. Yes, sir.
Q. How far from Speedy's Drive-In were the pickets?
A. About a half a block.
In dismissing the allegation of surveillance, the Trial Examiner
attached considerable significance to the fact found by him that "there
is nothing in the record to indicate that the Respondent intended to use
or used information obtained by surveillance." For reasons suggested
below, we are not prepared to accept this evaluation of the record.
In any event, we think that the Trial Examiner has relied too heavily
upon this factor.
Under all the circumstances, we are persuaded by the record that
the Respondent engaged in surveillance as alleged in the complaint
and thereby violated Section 8 (a) (1) of the Act.
The Discharge of Wilson and Prather
Wilson and Prather were employed in department 14, of which Jos-
serand was the supervisor . On September 5, Josserand circulated a
notice to employees of that department stating that too much produc-
tion time was lost on account of "unnecessary conversation and mov-
ing from assigned work station to other unrelated sections of the
dept." and that "infractions of this nature" would result in appropriate
action being taken. On September 7, Wilson was discharged by Jos-
serand because, according to Josserand's testimony apparently credited
by the Trial Examiner, Wilson "left his work station and crossed two
lines of cylinder machines to talk to Teddy Alexander"; Alexander
was also a department 14 employee. Two days later, on September 9,
Prather was discharged, for "Misconduct. Violation of Company
rules. Talking on job and reducing departmental efficiency." 4
The reasons assigned for these discharges must be examined in the
light of all the facts and circumstances disclosed by the record. At
the outset, it is noted that coinpany rules and regulations which specify
grounds for discharge or suspension make no mention of mere talking
on the j ob. The notice issued by Josserand to employees in his depart-
ment on September 5, soon after the resumption of union activity and
the union meeting of August 31, was the first such notice issued by
Josserand as a supervisor. The statement in the notice that too much
production time had been lost on account of unnecessary conversation
and moving from assigned work stations is not persuasively cor-
roborated. Indeed, there is uncontradicted testimony that, just before
the union meeting of August 31, Josserand had complimented his
supervisees on their work. If unnecessary talking and moving about
was a problem which concerned Josserand on September 5, there is
4 The misconduct and violation of company rules charges stem from the alleged talking
on the job.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a complete lack of evidence to show that Wilson or Prather contributed
to this problem in any way. Until the day of each discharge, neither
dischargee was individually warned or reprimanded or criticized for
engaging in any such activity. Wilson was discharged on September 7,
on which date Josserand engaged in the surveillance found above.
He and Prather had been wearing union buttons on the job; Prather
had also attended the union meeting of August 31. Although the
duties of employees in department 14 required their movement about
in the department and conversations with other employees, Jos-
serand decided to discharge Wilson and Prather without seeking any
explanation from them regarding the conversations he attributed
to them and admittedly "had no idea" what these conversations were
about. Actually, it was employee Simmons who talked to Prather
when they were observed together by Josserand and he, Simmons, ad-
vised Respondent's personnel manager that he had initiated the con-
versation. Yet, Prather was discharged and Simmons, who was not a
union adherent, was suspended for 1 day.
On the basis of all the foregoing, and the entire record, we are
satisfied, and find, that Wilson and Prather were discharged because
of their union adherence, in violation of Section 8 (a) (3) of the Act.
The Discharge of Brown
Brown worked in department 18 as a postal clerk whose job it was
to weigh and apply the proper amounts of postage to outgoing mail.
On September 8, he was discharged, the reasons given in his termina-
tion notice being unnecessary and unwarranted conversation during
working hours about nonjob related subjects, and that Supervisor
Adamak had observed him not using the scales on certain packages. In
the latter connection, the Trial Examiner found that Adamak saw
Brown not weigh certain package or at least was convinced that he
had failed to do so.
On September 8, Brown appeared at work wearing a union button.
He had attended the union meeting of the evening before. On the
day of his discharge, Adamak had stationed himself at Brown's work
location for the purpose of observing Brown at work. Prior to this
date, there had been no complaints or criticism of Brown for not
weighing packages for mailing, of which there were about 3,000
daily. Nor does it appear that any package had ever been returned
because of insufficient postage or that customers complained because
they had to pay additional postage. Adamak himself testified that
Brown was doing good work until September S. Even on Septem-
ber 8, however, when the packages Brown was accused of not weighing
were weighed, it was found that they contained the proper postage.
As already noted, unnecessary conversation was also assigned as
a reason for Brown's discharge in his termination notice. No com-
DAL-TEX OPTICAL COMPANY, INC. 279
pany policy against talking had ever been mentioned to Brown.
Until he attended the union meeting on September 7 and wore his
union button on the following day, he had never been criticized by
Adamak, his supervisor , for talking on the job. In fact, Adamak
admitted that it was only on September 8 that Brown engaged in
"unnecessary conversation."
Considering all the foregoing , we find that Brown was discrimina-
torily discharged on September 8, 1961, just as Wilson was on the
day before and Prather on the day after, the reason for the discharge
being his union adherence . The Respondent thereby violated Section
8(a) (3) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with its operations described in the Intermediate Report, have
a close, intimate , and substantial relation to trade, traffic , and com-
merce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
The unfair labor practices found are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
As we have found that the Respondent has engaged in certain
unfair labor practices , we shall order that it shall cease and desist
therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent unlawfully discharged Gary
Wilson on September 7, 1961, James G. Brown on September 8, 1961,
and R . A. Prather on September 9, 1961, we shall order that the
Respondent offer each of them immediate and full reinstatement to
his former or substantially equivalent position , without prejudice to
his seniority or other rights , and make each of them whole for any
loss of pay suffered as a result of the discrimination against him, by
payment to each of them a sum of money equal to the amount he
would have earned from the date of the discrimination to the date of
the offer of reinstatement, less net earnings during said periods, to
be computed on the quarterly basis, in the manner established by the
Board in F. W. Woolworth. Company, 90 NLRB 289. We shall also
order that the Respondent preserve and, upon request , make available
to the Board or its agents, for examination and copying , all payroll
records, social security payment records, timecards , personnel records
and reports , and all other records necessary to analyze the amount of
backpay due under the terms of the Order.
As the unfair labor practices committed by the Respondent are of
a type which strike at the very roots of employee rights safeguarded
280 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
by the Act, and in view of Respondent's previous unfair labor prac-
tices, as found by the Board, we shall order that the Respondent cease
and desist from infringing in any manner upon the rights guaranteed
its employees in Section 7 of the Act.
CONCLUSIONS or LAW
The Board, upon the basis of the foregoing facts and the entire
record, concludes as follows :
1. Dal-Tex Optical Company, Inc., is an employer within the mean-
ing of Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Machine Workers,
AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Gary Wilson, James G. Brown, and R. A. Prather, the
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
4. By engaging in surveillance of union meetings the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) 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, Dal-Tex Optical
Company, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO, or any other labor
organization of its employees, by discriminating in regard to the hire
or tenure of employment or any term or condition of employment of
any of its employees.
(b) Engaging in surveillance of union meetings.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, including the above-named
labor organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the
purpose of collective bargaining or mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Gary Wilson, James G. Brown, and R. A. Prather
reinstatement to their former or substantially equivalent positions,
DAL-TEX OPTICAL COMPANY, INC. 281
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may have suffered
as a result of the discrimination against them, in the manner set forth
in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Dallas, Texas, copies of the notice attached
hereto marked "Appendix" 5 Copies of such notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
duly signed by an authorized representative of the Respondent, be
posted immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
5In 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 National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Union of
Electrical, Radio and Machine Workers, AFL-CIO, or any other
labor organization of our employees, by discriminating in regard
to the hire or tenure of employment or any term or condition of
employment of any of our employees.
WE WILL NOT engage in surveillance of union meetings of our
employees.
WE WILL NOT in any other manner interfere With, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, including
the above-named labor organization, to bargain collectively
through representatives of their own choosing, or to engage in
other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all
such activities.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Gary Wilson, James G. Brown, and R. A. Prather
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority, or other
rights and privileges, and make them whole for any loss of earn-
ings they may have suffered at a result of the discrimination
against them.
All our employees are free to become and remain, or refrain from
becoming or remaining, members of any labor organization.
DAL-TEX OPTICAL COMPANY, 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, 300 West Vickery, Fort Worth, Texas, Telephone Number
Edison 5-5341, Extension 284, if they have any questions concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The unfair labor practice charge on which the complaint herein is based, was
filed October 16, 1961, and the complaint was issued November 16, 1961.
This case was heard by Lloyd R . Fraker , the duly designated Trial Examiner,
at Dallas, Texas, on December 18, 19, and 20, 1961. The General Counsel and
Dal-Tex Optical Company, Inc., herein called the Respondent, were represented
by counsel and all parties participated fully in the hearing.
After the close of the hearing, the Respondent submitted a brief within the time
fixed by me at the hearing for the filing of briefs and that brief has been duly
considered by me in arriving at my findings and recommendations herein.
After the time within which to file briefs, as so fixed by me, had expired, the
General Counsel , without explanation of the delay and without having requested
an extension of time within which to file his brief , submitted a brief which, for
obvious reasons, I have not considered in reaching my findings and conclusions
herein.
It is alleged in the complaint , as amended , that on or about September 7, 8, and
9, 1961, respectively, the Respondent discharged employees Gary Wilson, James
G. Brown , and R . A. Prather and thereafter failed and refused to reinstate them
because they had "joined or assisted the Union [the Charging Party herein] or
engaged in other Union activity or concerted activities for the purpose of collective
bargaining or mutual aid or protection." All of such conduct being alleged to be
in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended, herein called the Act.
It is also alleged in the complaint , as amended , that on or about September 7,
1961, the Respondent 's supervisor , Josserand , engaged in surveillance of a meeting
of its employees and that on September 14, 1961 , the Respondent 's supervisors,
Josserand and Walls, and its leadman , Jesse Martinez , had engaged in similar con-
duct all alleged to be in violation of Section 8(a) (1) of the Act.
The Respondent by answer denied each and every allegation of unfair labor
practices alleged in the complaint.
Prior to the close of the hearing and after all of the evidence was in, the Re-
spondent moved that paragraphs numbered 7, 8, 9, 10, 11, 12, 13, 14, and 15 of
the complaint , both severally and collectively , be dismissed . I reserve ruling on
this motion and will dispose of it hereinafter.
DAL-TEX OPTICAL COMPANY, INC. 283
Clarifying Background
It is clear from the evidence adduced in this case that an election was conducted,
on September 22, 1961, among employees of the Respondent. The evidence does
not indicate, however, if the election was conducted pursuant to an order of the
Board or by an agreement of the parties nor the results thereof.
It is admitted that on the dates indicated below after their respective names,
that the Respondent discharged its employees as follows: Gary Wilson, September 7,
1961; James G. Brown, September 8, 1961; and R. A. Prather, September 9, 1961.
During the course of the hearing the parties stipulated that Pierre L. Josserand,
Jerry E. Adamek, and Don Walls are supervisors as defined in the Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Since the allegations of the, complaint in this case of the facts upon which the
jurisdiction of the Board is predicated, are admitted in the answer, I find that
the Respondent is engaged at Dallas, Texas, in the business of manufacturing optical
goods and in the wholesale distribution and sale thereof, that during the year prior
to November 16, 1961, it purchased goods and materials of a value in excess of
$50,000 which were purchased and shipped directly to it at Dallas, Texas, from
points outside of that State, and that during said period it sold and shipped its
products of a value in excess of $50,000, directly to points outside of that State.
I find, therefore, that the Respondent is engaged in commerce and in operations
affecting commerce , as those terms are defined in Section 2(6) and (7), respectively,
of the National Labor Relations Act, as amended, herein called the Act, and that
it will effectuate the policies of the Act to assert jurisdiction over the Respondent.
H. THE LABOR ORGANIZATION INVOLVED
The General Counsel alleged , the Respondent admitted , and I find that the
Charging Party herein (International Union of Electrical , Radio and Machine
Workers, AFL-CIO), herein called the Union , is a labor organization as defined in
Section 2 ( 5) of the Act.
III. THE ALLEGED DISCRIMINATIONS
It is not contended and there is no evidence in the record to indicate that any
of the three alleged discriminatees (Gary Wilson, James G. Brown, and R. A.
Prather), hereinafter called Wilson, Brown, and Prather, respectively, were keymen
in the Union's efforts to organize the Respondent's employees or that their activities
in behalf of the Union were more extensive or important in the organizational
campaign than were the activities of any of the other adherents of the Union. They
as well as many other employees signed authorization cards and wore union buttons
in the plant, two of them as well as others attended union meetings.
There is likewise no evidence in the record that either Wilson, Brown, or Prather
were engaging in union or other concerted protected activity at the time of their
discharges or that any representative of the Respondent indicated at any time that
their discharges were in any manner related to such activities.
At the time of their respective discharges both Wilson and Prather were employed
in department 14 of the Respondent's operations and both of them were discharged
by Josserand who was the supervisor in charge of that department.
Josserand, a former rank-and-file employee of the Respondent, became the super-
visor of department 14 the second week in July 1961. He testified, and the General
Counsel's witnesses who testified as to such conditions admitted, that prior to
September 5, 1961, the employees in that department had been engaging in horse-
play and talking freely during working hours. Josserand also testified, without
contradiction, that by the second or third week in August 1961, such conduct had
resulted in a "general slowdown in production to the point that it became critical."
He also testified that shortly before September 5, 1961. he "called the entire section
together and told them that if there were any more disturbances of that nature, I
would have no choice but to fire the entire department and start over with new
personnel." He testified further that a day or two after his threat to discharge
the entire department, "the talking started again" and on September 5, 1961, he
prepared the notice "TO: ALL PERSONNEL DEPT. #14" which is in evidence
as Respondent's Exhibit No. 2 and required each of the employees in that depart-
ment to sign it so, as he expressed it, "they would have it in writing that the talking
would be stopped or that I would take appropriate action."
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since Wilson was discharged on September 7, 1961, before Josserand delivered
his second written ultimatum, of September 8, 1961, to the employees in department
14, I will complete the discussion and finding as to his discharge before considering
the discharges of Brown and Prather further.
Wilson had been employed by the Respondent since July 24, 1961. He testified
that after Rowzee, the Respondent's personnel manager, had told him he was being
discharged for "goofing off," he talked with Josserand and that Josserand told him
that Shelton, the Respondent's plant superintendent, was responsible for the dis-
charge because, "he walked by your machine this morning and saw you talking to
the Spanish Boy, Eddie."
Josserand testified that he discharged Wilson without any direction from anyone
because, "he left his work station and crossed two lines of cylinder machines to talk
to Teddy Alexander." Alexander was then employed by the Respondent in the
same department in which Wilson was employed. Significantly neither Wilson nor
Alexander, both of whom had testified for the General Counsel before Josserand
testified, were recalled to refute Josserand's statement as to the reason for Wilson's
discharge. From my observation of Josserand as a witness in this case I am con-
vinced that he did not make the statement attributed to him by Wilson. My ob-
servation of Josserand as he testified in this case leads me to the conclusion that he
is a positive character highly imbued with a sense of his importance and authority
as a supervisor, with a fixed determination to assume full responsibility for operation
of the departments under his supervision. If this conflict in the testimony needs
resolution then I would resolve in Josserand's favor. As a matter of fact I do
not think that it needs resolution since on the basis of the entire record in this
case I am convinced that there is no credible evidence that Wilson was discharged
for any reason related to his union or other concerted protected activity. I also
credit Josserand's testimony as to the reason why he discharged Wilson.
On the basis of the foregoing discussion and conclusions, I find that Wilson was
not discharged because of his activity in behalf of the Union or because of any
other concerted activity protected under Sections 7 and 8 of the Act. I therefore
recommend that the allegations of the complaint as to his discharge be dismissed.
Since Prather's discharge was effected by Josserand, the same supervisor who
discharged Wilson, and was based on the same alleged type of conduct which led
to the discharge of Wilson, I will dispose of it before proceeding to the disposition
of Brown's discharge although his discharge was earlier in point of time than was
Prather's.
Prather who had been employed by the Respondent since July 31, 1961, was
discharged September 9, 1961. On that date he was working in department 14.
He was present in that department shortly before September 5, 1961, when Josserand
threatened to discharge the entire department He was also present when Respond-
ent's Exhibit No. 2 was circulated in that department and signed it at that time
On September 8, 1961, Josserand circulated, in that department, the document
which is in evidence as Respondent's Exhibit No. 3 and Prather signed it also as
did the other employees. He admits that, on the date of his discharge he had a
short conversation with one L C. Simmons, another employee in that department,
or that Simmons had a conversation with him in which he participated only to the
extent of answering a question pronounded to him by Simmons and that during a
part of the conversation he was at Simmons' work station. Simmons, a witness for
the General Counsel, on the contrary, testified that after he overheard a conversa-
tion between Prather and the "fellow that runs the fining machines" about Prather
being in the police reserve, he and Prather discussed the subject of police reserve
for "a minute or two" near Simmons' work station and thereafter again for not
more than "a minute or two" at Prather's work station. Josserand testified that he
discharged Prather for talking to Simmons for 5 minutes. at the vice used by the
emniovees with "a hack saw in one hand and a lap in the other." during an overtime
period on a Saturday He also testified that he had seen Prather talking in the
denartment on numerous occasions after he had been warned about such conduct.
Whether or not Prather said anything to Simmons on the occasion under discus-
sion, he was in a conversation with him during working time which interfered with
the work to the same extent as though he had done all of the talking Neither
Prather nor Simmons was recalled to the witness stand after Josserand had testified
and consequently no attempt was made to refuse his detailed testimony on this
issue. Under the circumstances, I credit Josserand's testimony as to the incident
in ouestion.
The fact that Simmons was not discharged but only suspended for I day although
he was at least as guilty of the infraction as was Prather, raises a suspicion as to
the motivation for Prather's discharge. This because Prather had signed an author-
ization card for the Union and had worn a union button at work while Simmons had
DAL-TEX OPTICAL COMPANY, INC. 285
done neither. On the other hand Simmons had only been employed by the Respond-
ent for about 10 days; Josserand had had no "trouble" with him previously and may
have been justified in rating him as a more desirable employee for retention.
In any event there is no evidence in the record to indicate that Prather was more
active in protected concerted activity than many of the Respondent's other em-
ployees. In fact his entire activity in that regard consisted of signing a union
authorization card and of wearing a union button at work. He did not attend any
of the union meetings as some of the other employees did.
On the basis of all of the evidence in this case, I cannot find that Prather was
discharged for union or other concerted, protected activity. Suspicion alone is not
a sufficient basis for such a finding. (Punch and Judy Togs, Inc. of California, 85
NLRB 499; Strachan Shipping Company, 87 NLRB 431; and Trim fit of California,
inc., 101 NLRB 706.)
On the basis of the foregoing discussion and conclusions, I find that Prather was
not discharged for any concerted activity protected under Sections 7 and 8 of the
Act. I therefore recommend that the allegations of the complaint as to his discharge
be dismissed.
The discharge of Brown is in a somewhat different category from those of Wilson
and Prather since his discharge involves the alleged failure on his part to carry out
an important element of the work tasks assigned to him by the Respondent.
Brown came to work for the Respondent on August 11, 1961. He was employed
in the mailing section to weigh, rate, and apply the proper amounts of postage to
all of the Respondent's outgoing mail. The amount of postage involved in such
operation was approximately $600 per day. Guessing at the amounts of postage
required might result either in overpayment to the Respondent's pecuniary loss or
in underpayment which might cause delay in delivery and customer harassment and
dissatisfaction. Brown was discharged September 8, 1961, by his supervisor, Jerry
E. Adamek.
Like Wilson and Prather, Brown was not particularly active in the Union's
organizational campaign among the Respondent's employees. Although the record
does not indicate that he ever signed a union authorization card, he did attend one
union meeting and did wear a union button at work on the day of his discharge.
The testimony also indicates that as many as 50 of the Respondent's approximately
200 employees also wore union buttons at work.
Brown testified that two different supervisors, Rowzee and Nobles, on different
occasions, asked him if he needed help, presumably to keep up with the mailing
work, and that the latter promised him help if he needed it. Such conduct by the
supervisors serves to illustrate the importance which the Respondent attaches to its
mailing operations.
Brown also testified at the hearing on direct examination that on the day of his
discharge he had properly weighed all of the outgoing mail and that when Super-
visor Adamek accused him of not having weighed certain packages, he told him
that he had weighed them all. In cross-examination, however, when confronted
with the affidavit which he had given to a Board agent in the investigation of this
case he admitted that he told Adamek, "I don't believe that I didn't weigh it but I
might have," and "I told him if I did it was a mistake and I didn't do it deliberately."
In view of the foregoing, I cannot credit Brown's testimony that he weighed all
of the outgoing packages and I do credit Adamek's testimony that he saw him not
weighing certain types of packages. Whether or not Brown weighed all of the
outgoing packages, I find that Adamek was convinced he had failed to do so and
discharged him for that reason.
On the basis of the foregoing discussion and conclusions, I find that Brown was
not discharged for any concerted activity protected under Sections 7 and 8 of the
Act. I therefore, recommend that the allegations of the complaint as to his
discharge be dismissed.
There remains for disposition only the allegations of the complaint that the
Respondent engaged in surveillance of "the meeting places, meeting and activities
of the Union or other concerted activities its employees engaged in for purposes of
collective bargaining or other mutual aid or protection," on September 7, 1961, by its
Supervisor Pierre Josserand, and on September 14, 1961, by its Supervisors Josserand
and Don Walls and its leadman, Jesse Martinez (see paragraph numbered 10 of the
complaint, General Counsel's Exhibit No. 1(c) ).
The General Counsel's evidence on this issue consists of the testimony of R. W.
Purcell, the Union's International representative who was conducting the Union's
campaign to organize the employees of the Respondent, the testimony of one
Kenneth F. Crone, a member of the Union who was assisting it voluntarily in its
organizational activity, and of one Jackie Wilson, a former employee of the
Respondent.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jackie Wilson's testimony did not, in itself, indicate any surveillance but served
only to corroborate the testimony of Purcell and Crone as to the presence of Josser-
and, Walls, and Martinez in the neighborhood of the union hall on some one or the
other of the occasions when Wilson attended a union meeting either on August 31,
1961, or one of three held in September 1961. Since all three of the alleged sur-
veillants testified that they were in a drive-in on Maple Avenue in the immediate
vicinity of the union hall, the evening of September 14, 1961, as Wilson testified they
were, his testimony adds nothing to that of Purcell and Crone.
Purcell testified that he observed Josserand drive back and forth very slowly,
several times, along Maple Avenue in front of the Union's headquarters on a date
which he fixed as September 7, 1961, during the period in the evening when the Union
was conducting a meeting of the Respondent's employees, at said headquarters. He
also testified that automobiles of people attending the meeting were parked in front
of said meeting place between the headquarters building and the curb line of Maple
Avenue, that on one occasion Josserand's automobile was driven by the meeting
place by someone other than Josserand, who was unknown to Purcell, and that shortly
thereafter said automobile was driven into and parked in an alley behind the meeting
place. He testified further that he inspected the automobile, determined that the
hood was "hot," and caused another individual, whom he thought was a "Smith"
detective, to inspect it. As to this incident of alleged surveillance he also testified that
a striker from some plant across the street from the meeting place observed said auto-
mobile pull out from the alley, with Josserand and another occupant in it, and park
in front of a hardware store about 40 yards from the meeting place and that when
the striker and he approached the automobile the occupants tried to hide their faces,
"backed out," drove up to Denton Cut-off, and pulled into a beer joint. Neither the
detective nor the striker was called to testify in this case.
As to the other alleged incident of surveillance, which he fixed as about Septem-
ber 14, 1961, Purcell testified that he saw Don Walls, who is admitted to be one
of the Respondent's departmental supervisors, drive a black Renault automobile
slowly back and forth on Maple Avenue in front of the meeting place during a
meeting of Respondent's employees "four, five or six times" and that there were others
in the automobile whom he did not recognize.
Kenneth F Crone, an unemployed member of a local of the Union who does
voluntary organizing work for the Union, testified that on September 14, 1961, at
the request of Purcell, he followed a black Renault automobile from the meeting
place to a drive-in near Denton Cut-off and Maple Avenue where the occupants
parked it, went in, and stayed for 10 or 15 minutes. He testified further that when
the Renault left the drive-in it was driven slowly along Maple Avenue past the
meeting place to a cafe and back over the same route in front of the meeting place
to a point beyond it and thereafter again back to a point immediately across the street
from the meeting place where it was parked for 3 or 4 minutes, all while the union
meeting was going on , after which the Renault was driven on that side of the street
to some point beyond the meeting place and back to the drive-in where it was
parked and the occupants went in and had a beer.
There is no evidence in the record that surveillance was a part of a preconceived
campaign to defeat the Union's organizational efforts or that any official of the
Respondent knew of, sponsored, sanctioned, or intended to make use of information
obtained by surveillance.
Josserand, Walls, and Martinez all denied in detail any surveillance on Septem-
ber 14, 1961, and accounted for their presence on that date at the drive-in which
is located just off of the heavily traveled street in Dallas, Texas, on which the meet-
ing place is located.
Josserand also accounted for his presence at the drive-in on September 7, 1961,
and denied in detail that he had engaged in surveillance on that date.
The evidence indicates clearly that Martinez is not a supervisor. It is admitted that
both Josserand and Walls are departmental supervisors with full authority to hire
and discharge the employees in their respective departments. There is no evidence,
however, that the Respondent has any supervisors who rank lower in authority than
they do.
Based on their respective demeanor as witnesses I rate Purcell as well as Josserand,
Walls, and Martinez as credible witnesses and I have no measuring stick with which
to determine the relative value to be given the testimony of Purcell and Crone on the
one hand and that of Josserand, Walls, and Martinez on the other. After again care-
fully evaluating all of the testimony on this issue as it appears in the transcript, I
am not convinced that Josserand and Walls or either of them engaged in surveillance
on either of the dates in question. Certainly there is nothing in the record to indicate
that the Respondent intended to use or used information obtained by surveillance.
WATERTOWN UNDERGARMENT CORPORATION 287
Under these circumstances I must and do find that the General Counsel has failed
to sustain the burden of proof on such issue . (See Casa Grande Cotton Oil Mill,
110 NLRB 1834.)
In arriving at the findings and conclusions on which my recommendations herein
are based , I have carefully considered all of the evidence adduced and have based my
findings and recommendations on the entire record in this case.
CONCLUSION OF LAW
On the basis of the foregoing, I conclude that Dal-Tex Optical Company, Inc., the
Respondent herein, has not violated Section 8(a)(1) or (3) of the Act as alleged in
the complaint herein, as amended.
RECOMMENDED ORDER
I therefore recommend that the complaint herein , as amended , be dismissed in its
entirely.
Watertown Undergarment Corporation and Local 223 of the
International Ladies ' Garment Workers ' Union . Cases Nos.
1-CA-346 and 1-CA-3461. May 24, 196.2
DECISION AND ORDER
On November 16,1961, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report, together with a supporting brief I and the
General Counsel filed a brief.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and finds merit in certain exceptions of the Respondent.
Accordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent they are con-
sistent with the Decision and Order herein.
1. We concur in the Trial Examiner's findings that the Respondent
interfered with, restrained, and coerced employees in violation of
Section 8 (a) (1) of the Act ; and that the Respondent admittedly
"stalled" the Union during negotiations, failed to make good-faith ef-
forts to secure resolution of disputed issues, repudiated agreements
reached with the Union, engaged in a course of coercive action at its
plant designed to secure repudiation of the Union by the employees,
1 The Respondent 's request for oral argument is hereby denied as the record , including
the exceptions and briefs , adequately presents the issues and the positions of the parties
137 NLRB No. 34.