National Screen Products Co.

National Labor Relations Board - Board Decisions

Jun 26, 1964

147 N.L.R.B. 746 (N.L.R.B. 1964)

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that
such right may be affected by the provisos in Section 8(a)(3) of the Act.
All our employees are free to become or remain members of any labor organiza-
tion or to refrain from becoming or remaining members thereof.
DAYLIGHT GROCERY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623, if they
have any question concerning this notice or compliance with its provisions.
National Screen Products Co. and Industrial Carpenters Union,
Local 530, affiliated with International Brotherhood of Car-
penters and Joiners of America, AFL-CIO. Case No. 21-CA-
5280. June 26, 1964
DECISION AND ORDER
On January 31, 1964, Trial Examiner David Karasick issued his
Decision 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 attached Trial Examiner's De-
cision. The Trial Examiner also found that the Respondent did not
engage in other unfair labor practices alleged in the complaint and
recommended dismissal of these allegations. Thereafter, the Re-
spondent filed exceptions to the Decision and a brief in support thereof.
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 Members
Leedom 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 Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following addi-
tions and modifications.
The Trial Examiner found, and we agree, that the Respondent dis-
criminatorily discharged employees Rodolfo Garcia and Humberto
147 NLRB No. 85.
NATIONAL SCREEN PRODUCTS CO. 747
Snares on March 27, 1963.1 The Trial Examiner further recom-
mended that the Respondent be required to reinstate Garcia and
Scares with backpay from the date of their discharges. We adopt
the Trial Examiner's recommended remedy with respect to Garcia.
However, for the reasons stated below, we find that Snares is not en-
titled to backpay after March 29,1963.
The Trial Examiner found in this connection that on March 28,
1963, the day following their discriminatory discharges, Garcia and
Suares complained of the Respondent's action to Armando Vergara, a
business representative of the Union, who promised to take the matter
up with the Respondent. On March 29, pursuant to a prearranged
conference, Vergara, accompanied by Garcia and Snares, went to
the plant. Vergara entered first and preliminarily conversed with
Skaggs, Respondent's president, and Leonard, the general manager.
Skaggs indicated that while the Respondent would not take Garcia
back, it was prepared to return Scares to his former job. Suares was
then called into the plant and told that he could return to work at
once or wait until the following Monday, which was the next work-
day. Snares then asked to be paid for the 2 days' work he had lost,
which request was refused by the Respondent. Vergara and Suares
then left the plant, and Suares did not thereafter return to work.
On the basis of the foregoing facts, the Trial Examiner concluded
that Suares was entitled to reinstatement and to backpay from the
date of his discharge on March 27 to the date on which the Respond-
ent offers him reinstatement. The Trial Examiner reasoned that
Suares' refusal to return to work absent the backpay to which he was
entitled did not constitute a quitting on his part or relieve the Re-
spondent of its continuing obligation to offer him reinstatement and
backpay in full.
In disagreement with the Trial Examiner, we find that Suares is not
entitled to backpay after March 29, 1963, the date on which the Re-
spondent offered to reinstate him to his original job. As noted, Re-
spondent on March 29 indicated to Snares that it was willing to rein-
state him fully. We do not believe that the fact that the Respondent's
offer here did not include an offer of backpay from the date of Suares'
discharge warrants our treating that offer as if it were a nullity, as did
1 We find no merit in the Respondent 's contention that the Board should dismiss the
Section 8 ( a)(3) allegations in the . complaint because the contract between the Respondent
and the Union contained a grievance procedure providing for the arbitration of disputes
arising under the contract . We rely. among other considerations on the facts that
(1) neither the Respondent nor the Union brought the issue of the discriminatory dis-
charges to arbitration , and (2 ) the section of the contract dealing with arbitration pro-
vides that the Union may, at its option, proceed through Court or administrative remedies
or have the right to engage in economic action," thus making it clear that the parties did
not intend that the arbitration procedure should be the exclusive means of settling disputes
under the contract.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner. Indeed, if an employee could lawfully reject a
reinstatement offer in circumstances such as these, a respondent em-
ployer seeking to mitigate its backpay liability would be compelled to
offer to an employee allegedly discharged for discriminatory reasons
reinstatement with accrued backpay, and thus the employer's right to
litigate the issue whether the discharge was unlawful would for all
practical purposes be nullified 2 However, we agree with the Trial
Examiner that the Respondent should be required, to offer reinstate-
ment to Suares. It is apparent from the record that Suares refused
the Respondent's offer of reinstatement only because it did not include
an offer of backpay. Even assuming that Scares was mistaken in his
judgment as to the legal sufficiency of Respondent's offer, it would
not, in our view, effectuate the policies of the Act to force an employee
to make a snap judgment as to whether an employer's offer of rein-
statement without backpay is conditional under Board law, on penalty
of the loss of his job if his judgment on this issue turns out to be
mistaken. We believe that the approach we have adopted in this case
preserves the right of an unlawfully discharged employee to be re-
stored to his original employment and at the same time protects the
right of an employer to litigate its claim that it did not engage in un-
lawful conduct.. We shall therefore modify the Recommended Order
by limiting the Respondent's backpay liability to Suares to the period
from March 27, 1963, the date of his discriminatory discharge, to
March 29, 1963, the date on which the Respondent offered him rein-
statement,3 and from the date 5 days after,the date of this Order to
the date on which the Respondent offers him reinstatement pursuant
thereto.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
2 As the Board has held, a discharged employee who refuses an unconditional offer of re-
instatement loses all right to further backpay. See, for example, The Ready-Mix Concrete
Company of Lawrence, Kansas, 142 NLRB 502.
1In finding that Respondent's offer of reinstatement to Snares was conditional and that
Snares is therefore entitled to 'backpay for the full period from the date of his discharge,
our dissenting colleague relies on the March 29 conversation between Snares, Vergara, the
Union's business agent, Leonard, Respondent's general manager, and Skaggs, Respondent's
president ; particularly, on Skaggs' statement that if Snares did not want to return to
work without the lost time, "then he doesn't want to work here." Our colleague reasons
herefrom that the Respondent required Snares to forego any backpay to which he might
have been entitled as a condition of reinstatement. However, only Vergara testified as to
that version of the conversation, while Snares' testimony makes no reference to any such
statement. Suares testified, rather, that when he asked if he was going to get paid for the
time lost, Leonard replied "that he couldn't do that" : and, further, that when Snares
asked Skaggs about the matter, Skaggs said that he "didn't want to pay me [forl the
time that I had lost." S'cares' version of this conversation was generally substantiated
by Respondent's officials, Leonard and Skaggs. The Trial Examiner, while neither credit-
ing nor discrediting any witness, made findings more consistent with the testimony of
Snares than that of Vergara. Under these circumstances, unlike our dissenting colleague
we would not rely on Vergara's uncorroborated version of the March 29 conversation and
would accordingly find that Snares was not entitled to full backpay.
NATIONAL SCREEN PRODUCTS CO. 749
mended by the Trial Examiner with the following addition, and
orders that the Respondent, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's recommenda-
tion as modified herein.
The following shall be added to paragraph 2(b) of the Recom-
mended Order : "as modified by this Decision and Order."
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleged the commission of unfair labor practices
except as specifically found herein.
MEMBER BROWN, dissenting in part :
Employee Suares was discriminatorily discharged on March 27,
1963, in violation of Section 8(a) (3) of the Act, and I would find that
not only must Respondent offer him immediate and full reinstatement
as ordered by my colleagues but that, in the circumstances of this case,
an appropriate remedy should also include backpay for the full period
from the date of discharge as found by the Trial Examiner.
The record reveals that on the morning of March 29, at a prear-
ranged conference between Respondent's officials and the Union's busi-
ness agent, Respondent indicated, it would be willing to take Snares
back because he was a.'.good worker." Suares, who- had come to' the
plant with the union representative, was thereupon called into the
conference room and, in the presence of Respondent's president, Gen-
eral Manager Leonard asked Suares "whether he was willing to go
back to work and if he-was going to work like he was previously
working." Suares replied, "Yes, he was willing to go back to work."
Leonard then said that Suares "can go back to work right now or .. .
can come back Monday." Suares asked if he was going to "get paid
for the two days that I have lost." Leonard said, No, this is an
indication that he [Suares] doesn't want to go back to work." Presi-
dent Skaggs, who was present, then stated that "I f he [Suares] doesn't
want to come without the lost tinge, then he doesn't want to work here."
[Emphasis supplied.] Thereupon, Suares and the business represent-
ative left and Suares did not report to work-the following Monday.
From the foregoing it is clear that Respondent's offer of reinstate-
ment was a. conditional one. At first it appeared to be subject only
to Suares' willingness to continue to be the "good worker" he had
been in the past. Suares unhesitatingly accepted this condition. It
was only after Respondent specified that Suares had the option of
reporting to work immediately or on the next working day, Monday,
that Suares, recognizing a difference in working time and pay in-
volved in this choice apparently questioned whether some effect upon
his right to backpay for the 2 working days subsequent to his discharge
was also 'present in the offer -of reinstatement. Accordingly, he re-
quested clarification- with respect to his pay for lost time. In so doing,
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he in no way indicated that he was staking his acceptance of reinstate-
ment upon receipt of backpay. It would have been appropriate for
Respondent to explain, if this were the case, that it did not concede
Suares' entitlement to backpay and that this was a matter for separate
consideration. Instead Respondent's president stated that "If he
[Suares] doesn't want to come without the lost time, then he doesn't
want to work here." Thus, Respondent clearly conveyed the idea that
if Snares desired reinstatement he must forgo his right to backpay.
For his response to Scares' query was tantamount to specifically con-
ditioning Suares' reinstatement upon his waiver of any claim to pay
for lost time.
In my view this is not a bona fide offer of reinstatement which would
warrant abatement of backpay, for Respondent imposed thereon a
condition which Suares was not obligated to accept. Accordingly, I
would, in agreement with the Trial Examiner, order Respondent to
make Suares whole for the entire period.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding is based upon a charge filed on April 2 , 1963, by Industrial Car-
penters Union , Local 530, affiliated with International Brotherhood of Carpenters
and Joiners of America, AFL-CIO (herein called the Union) and a complaint issued
by the General Counsel of the National Labor Relations Board, on behalf of the
Board, on May 23, 1963 , alleging that National Screen Products Co. (herein called
the Respondent ) has engaged in violations of Section 8(a)(1) and ( 3) of the
National Labor Relations Act, as amended , 61 Stat. 136, 73 Stat . 159, herein called
the Act. A hearing, at which the General Counsel , the Respondent, and the Union
were represented , was held at Los Angeles, California, on July 18 and 19, 1963.
Following the close of the hearing, briefs , which have been fully considered, were
filed on behalf of the General Counsel and the Respondent.
Upon consideration of the entire record in the case, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent , a California corporation , with its principal office and place of
business located in Paramount , California , is engaged in the manufacture , sale, and
distribution of aluminum screen , windows, and sliding doors . During the calendar
year 1962, the Respondent sold and shipped from its plant, located in Paramount,
California , to points located outside the State of California , products valued in excess
of $50,000. I find that the Respondent has been, at all times material to this proceed-
ing, an employer engaged in commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material to this proceeding , a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
On the evening of March 20 , 1963, some 15 or 16 employees of the Respondent
met with Armando Vergara, assistant business representative of the Union. The
employees complained that they were not receiving the rates of pay set forth in the
contract in effect between the Respondent and the Union. On the following Monday,
NATIONAL SCREEN PRODUCTS CO. 751
March 25 1 Vergara , together with Union Representatives Joseph Benfatti and one
McKinzie met with Roy Skaggs, president , and Robert Leonard , comptroller and
general manager of the Respondent . After checking the Respondent 's payroll, it
was found that a number of the employees were not receiving the rates of pay pro-
vided for in the contract. Skaggs agreed to raise the wages of such employees to
meet the requirements of the contract . The union representatives stated that the
employees were also demanding the backpay which had accrued. Skaggs declared
that the Respondent could not afford to give the employees involved the backpay
in a lump sum but offered instead to pay them 5 cents per hour over the maximum
rate established in the contract in lieu of backpay . Vergara left the meeting, which
was being held in Skaggs ' office, and communicated the Respondent 's offer to the em-
ployees in the plant . When he returned shortly later , he reported that the employees
had rejected the Respondent 's offer. The union representatives stated that they
would raise no objection if the Respondent could induce the employees to relinquish
the •backpay due them and suggested that the Respondent call a meeting of the em-
ployees and see if a satisfactory solution of the problem could be worked out.
A meeting was held after working hours that day. Most of the 30 to 35 persons
employed by the Respondent were present ? Many of the Respondent's employees are
of Mexican extraction and experience difficulty in understanding and expressing them-
selves in English . During the meeting one of their number , who was fluent in both
English and Spanish , was chosen to act as interpreter . Skaggs opened the meeting
by asking the employees what their problems were and stating that the Respondent
would see if they could not air them out. Some of the employees claimed that they
were working as leadmen or other classifications and were not being paid the rate
required for such classifications . Skaggs soon became involved with these employees
in a disagreement as to their respective classifications . According to the uncon-
troverted evidence , Skaggs became angry and stated that the employees were a
bunch of wetbacks and should be happy with what the Respondent was paying
them . He further stated that if the employees who were complaining were dis-
satisfied they could all look for work elsewhere.
At this point , Leonard took over the meeting. He told the employees that no one
had been discharged but read off a list of names of approximately five employees who
were trainees or were employed packaging hardware whom the Respondent felt it
could not pay the minimum rate required by the contract . These, he said , were being
laid off . He further stated that he had added the names of additional employees who
were also being laid off because they claimed to work in a classification which the
Respondent did not believe they were qualified to fill; that if these employees were
willing to work at their listed classifications and rates of pay, they could report for
work the next day and if any of them had any questions, he or Skaggs would discuss
their problems with them on an individual basis; but that if they insisted on working
on their terms in classifications which the Respondent did not feel them qualified
to fill, they need not return to work.
The meeting ended in confusion and some, if not all, of the employees whose
names had been read from the list by Leonard believed that they had been dis-
charged . Following the meeting, Rodolfo Garcia, one of the employees whose name
had been read by Leonard, called Vergara and informed him that a number of
the employees had been discharged.
At the plant the next morning, March 26, Vergara and Benfatti met employees
Rodolfo Garcia, Humberto Suares, Apolonio Camarena , Ramon Carbajal, and
Jesus De La Cadena , all of whom were among the employees who had been termi-
nated the prior day .3 The employees waited outside the plant while Vergara and
Benfatti went inside where they spoke to Skaggs and Leonard. Both officials of the
Respondent told the union representatives that the employees in question had been
laid off and had not been discharged .4 As a result of the discussion , Skaggs and
Leonard agreed that Garcia, Suares, and the three employees with them could
return to work without any loss of time for that day 's work . The problem relating
to the backpay claimed by the employees for the failure of the Respondent to pay
them the rates set forth in the contract was left for future resolution . The employees
returned to work at 2:30 that afternoon.
1 Unless otherwise noted, all dates refer to 1963.
2 The meeting had been announced over the public address system in the plant as one for
all union members who had grievances.
8 These were the employees whose classifications were in dispute and whose names
Leonard had added during the meeting to the list of employees who were being laid off.
4 The complaint does not allege nor does the General Counsel contend that the termina-
tion of these employees violated the Act.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the lunch hour , a number of the employees saw Vergara at the gate of the
plant and complained that the union steward was not able to do his job properly
since he could not understand some of the employees . They suggested that it
would be more practical to have someone who could understand both Spanish and
English. Vergara spoke about the matter to Walter McKinney, who was then the
union steward . McKinney stated that he was willing to step down and have some-
one else take the job as steward. Garcia and another employee were proposed as
nominees, and an election was held on the spot. A majority of the employees voted
for Garcia. Approximately 25 of the 30 or 35 employees on the payroll were
present at this election. Skaggs was also present .5
On Wednesday, March 27, at the end of the workday, Roger Collins, a member
of the Union and one of the employees who had been laid off on March 25, came
to the plant to pick up some tools. According to the credited testimony of Garcia,
Suares informed him that Collins had been laid off out of order of seniority. Garcia
spoke to Suares and Collins and stated that it would be best to call the Union. He
asked Collins for his telephone number and went to an adjoining office to get a
pencil. When he returned, Skaggs had come over and asked Collins why Garcia
needed his telephone number, but Collins did not reply. Skaggs then asked Garcia
why he wanted Collins' telephone number and Garcia answered that Collins had
told him that he was going to give it to him nand again asked Collins for the number
but Collins again did not reply. Thereupon, Garcia told Skaggs that perhaps Collins
was afraid because of Skaggs' presence but that it was agreeable with Garcia if
Collins did not want to give him the number. Garcia attempted to leave, saying
that it was after working hours, that someone was waiting for him and he would
have to go, and that he no longer had any business there. Skaggs declared that
he was supposed to know everything that was said and done on the job and that
Garcia could not return to work if he left without telling Skaggs why he wanted
Collins' telephone number. Garcia then stated that he had made the request be-
cause he wished to call the Union. When he mentioned the word "union ," Skaggs
became angry and stated that he knew Garcia was the one who was causing all the
trouble in the plant. After further conversation concerning the return of an auto-
mobile which Garcia was buying from Skaggs , Garcia and Suares left the plant.
Skaggs' version of what occurred , in addition to the denials noted hereafter, sig-
nificantly varies from the foregoing recounting of Garcia primarily in Skaggs' asser-
tion that, when he asked Garcia why he wanted the number of Collins, Garcia
replied that it was none of his business.6 Skaggs denied that at this time he was
5 This finding is based upon the testimony of Garcia and Snares . According to Snares,
Skaggs stood some 12 to 15 feet away . Although Skaggs did not deny expressly that he
was present at this time, he did deny that , on the following day, he knew Garcia was the
shop steward of the Union . Each of these witnesses has an obvious interest in the out-
come of these proceedings which conceivably could affect his testimony . Neither of the
two employees speaks or understands English as well as he does Spanish. The services of
an interpreter were used in eliciting the testimony of Snares , though not that of Garcia.
In evaluating the testimony of these two witnesses , I have considered the possibility that
their lack of full familiarity with the English language might have'caused them to mis-
understand , misinterpret , or misstate their recountings of the events about which they
testified . After a careful examination of their testimony as it relates to the record as a
whole , however , I am convinced that their comprehension was sufficiently complete for all
practical purposes to be regarded as reliable . Both men impressed me as intelligent and
trustworthy witnesses , and their testimony was not marred by any internal inconsistencies.
Skaggs' testimony , however , was at times contradictory and evasive . I find that Skaggs
was present at the time Garcia was elected and at that time he knew that Garcia had
succeeded McKlnney as union steward.
9 Garcia in substance denied that he had made such a statement . From my observation
of the demeanor and manner of bearing of Garcia and upon consideration of the substan-
tial agreement on the part of all witnesses who testified as to this incident that the general
effect of the conversation was that Skaggs was pressing insistently for information while
Garcia was seeking to avoid the encounter and leave the scene , it appears to me unlikely
that Garcia would have exhibited a direct defiance of Skaggs ' authority by telling him the
question he had asked was none of his affair , and I accordingly find that he did not make
such a statement . I am also taking into account the fact, as noted elsewhere , that Skaggs'
testimony was at times evasive and contradictory . I have in addition considered the fact
that Collins , a witness called on behalf of the General Counsel, admitted in answer to a
leading question on cross -examination by the Respondent 's counsel that Garcia made a
statement that it was none of Skaggs ' business "or something like that."' No mention of
NATIONAL SCREEN PRODUCTS CO. 753
aware of the fact that Garcia had been elected shop steward of the Union on the
previous day; denied having told Garcia that the latter was causing all the trouble
in the plant; and denied that there had been any mention of the Union or of union
activities during the course of the conversation. I do not credit the first of these
denials since I have found, as noted above, that Skaggs was present at the time
and knew that Garcia was elected union steward. Nor can I credit Skaggs' denial
of Garcia's testimony that Skaggs had accused Garcia of causing all the trouble in
the plant, for, despite such denial, Skaggs had admitted that he had made such a
statement in an affidavit given to an agent of the Board some 21/2 months before the
hearing. In like manner, I find that I cannot credit Skaggs' denial that any men-
tion was made of the Union or of union activities since Collins testified without
denial that Skaggs himself asked Garcia why he wanted Collins' telephone number
since they were neither acquaintances nor union members. Moreover, Collins fur-
ther testified without contradiction that after Garcia and Snares had left the plant,
Skaggs asked Collins whether he was a member of the Union.7 Moreover, irrespec-
tive of Skaggs' knowledge that Garcia was acting in a representative capacity at this
time insofar as the Union was concerned, it is reasonable to infer, from the substance
of the testimony of all the witnesses on this point, that Skaggs' insistence upon being
told why Garcia had requested the telephone number from Collins was because
Skaggs suspected that Garcia wished to enlist the assistance of the Union on Collins'
behalf, just as he had done on his own behalf and that of Suares and the other
three employees whom the Respondent had agreed could return to work on the
preceding day.
After Garcia and Suares had left the plant, Skaggs instructed Foreman Enrique
Hernandez to remove the timecards of the two employees.
On the following morning, March 28, when Garcia and Suares reported for work,
they found that their timecards were missing. They spoke so Foreman Hermandez
who told them they no longer had cards. When the employees asked whether they
were fired, Hernandez replied that he thought so. Hernandez further told the two
employees that Skaggs no longer wanted them in the plant and that they should
wait outside until Leonard arrived. As they waited outside the plant, Leonard came
by and told them that their checks were already made outs and that they would have
to wait for Skaggs to sign them. Leonard also told them that they could wait
inside the plant if they wished to do so, but they said they would remain outside
until Skaggs appeared. After they saw Skaggs enter the plant, the two men went to
the office and a short while later Skaggs came out and handed each of them their
final paychecks. Skaggs said nothing to either man as he handed him his check.
Garcia and Suares notified Vergara that they had been discharged and Vergara
arranged to meet with the Respondent the following day. The next morning, Garcia
and Suares met Vergara in front of the plant. The two employees waited outside
such a statement was made by Collins in his recounting of the conversation on his direct
examination. Whether a remark that Garcia testified he made to Skaggs, to the effect that
it was after 4:30 and "I got no more business over here" was construed by Collins as a
statement that it was none of Skaggs' business is impossible to determine for I do not be-
lieve that his testimony at this point, occurring in the manner it did, carries sufficient
weight to overcome the denial of Garcia. Suares made no mention of such a statement
having been made in his recounting of the conversation on direct examination and was not
questioned about the matter on cross-examination. Although Foreman Enrique Hernandez
was present at the time, he was not called as a witness.
7 Collins also testified that he had formally become a union member 2 days before which
would account for the fact that Skaggs did not know of his union affiliation at the time of
the conversation, despite the fact that-the collective-bargaining contract contained a union-
security clause.
s Garcia so testified on direct examination, reiterated his testimony on cross-examination,
and was corroborated on this point by the testimony of Snares. Leonard denied having
told the two employees that the checks had been made out and testified that he told them
that if they wanted their checks, they would have to wait until they were,made out and
Skaggs came in to sign them. The testimony of Garcia and Snares, which I credit in this
respect, is more consistent with other uncontradicted evidence in the record than is that
of Leonard. Thus, Vergara testified without denial that, in response to a message from
Skaggs on the morning in question, he called Skaggs at his home before the latter appeared
at the plant and Skaggs then stated that he had discharged both Garcia and Suares.
756-236-65-vol. 147-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while Vergara went in the plant and met with President Skaggs and Plant Manager
Leonard. Vergara 'requested that the two employees be returned to their jobs.
Skaggs said that Garcia was terminated and that he wanted nothing to do with him.
He also declared that Suares just happened to be there, but that he had gotten rid
of him also because Suares and Garcia were friends and shared the same opinions.
After further discussion, it was agreed that Suares could return to work and he was
called into the plant. Leonard told Snares he could return at once or wait until the
following Monday, which was the next workday. Suares asked to be paid for the
2 days' work which he had lost. Both Leonard and Skaggs refused and Vergara
and Suares then left the plant. Suares did not return to work and the Union there-
after filed charges with the Board alleging that Garcia and Snares had been dis-
criminatorily discharged.
B. Concluding findings
The General Counsel contends, and the Respondent denies, that at the meeting
with the employees on March 25, the Respondent engaged in individual bargaining
in derogation of the rights of the Union as majority representative of the employees,
thus violating Section 8(a)(1). of the Act; and that the Respondent terminated the
employment of Garcia and Snares because of their union or other concerted activities
thus violating Section 8(a)(3) and (1) of the Act.
1. Alleged bargaining with individual employees
The General Counsel asserts that, although the Union on March 25 invited the
Respondent to discuss the matter of backpay with its employees, it did not. thereby
waive its right as bargaining agent and that the conduct of the Respondent in dis-
cussing and taking a position with regard to employee classifications constituted in-
dividual bargaining in derogation of the Union. In light of the record as a whole, I
do not believe that the General Counsel has sustained this position by a preponder-
ance of the evidence. The testimony as a whole shows that the Respondent called
the meeting for the purpose of seeing whether it could induce the employees to re-
linquish their claims to backpay. The question of proper job classifications was
raised by the employees themselves. Wage rates and job classifications are integrally
related and it is difficult to see how the former could be discussed if the latter were
in dispute. On the morning following the meeting, the Union protested the layoff
of Garcia and the other employees but there is no showing that then or later it also
protested the discussion of job classifications. At best, the testimony establishes
that the discussion between Leonard and Skaggs and the employees at the meeting
on March 25 was unorganized and confused and that disagreements arose as to some
of the employees' classifications. I do not believe, however, the evidence shows that
the Respondent was attempting to engage in individual bargaining with. the em-
ployees regarding their classifications or to effect a change in such classifications.
Accordingly, I find that the Respondent did not bargain with the individual em-
ployees and thereby usurp the authority of the Union in violation of Section 8(a)( I)
of the Act.
2. Alleged discriminatory discharges
a. Garcia
As noted above, I have found that on March 27 Garcia did not tell Skaggs that it
was none of his business when Skaggs inquired as to the reason Garcia was seeking
to obtain the telephone number of Collins. I therefore am unable to accept this as
the true reason for the termination of Garcia.
My conclusion in this respect is reinforced by the contradictory nature of Skaggs'
testimony. He first testified that when Garcia made the statement in question, he
did not "feel that this type of employee was any longer desirable" and that he
ordered Garcia out of the plant almost immediately after the statement was made.
Thereafter, he testified that neither Garcia nor Snares was discharged on the after-
noon of March 27, that he had instructed Foreman Hernandez to take the time-
cards of the two employees but of the rack because he wanted to talk to them before
they returned to work, and that when he heard the next morning that they wanted
their checks, he assumed that they had. quit and gave their checks to them.
I cannot credit Skaggs' testimony that Garcia had quit, not only because it con-
stitutes a departure from the assertion made by the Respondent at the beginning of
the hearing that he had been discharged, but also because it is contrary to other
NATIONAL SCREEN PRODUCTS CO. 755
credible evidence, including the undenied testimony of Vergara that, on the morn-
ing of March 28 before Skaggs arrived at the plant, he told Vergara that both Garcia
and Suares had been discharged .9
I find myself equally unable to credit the testimony of Skaggs that he had in-
tended to speak to Garcia on the morning of March 28 about Garcia's attitude
toward his superiors in the plant and about his work which had not been up to
standard for his classification. This testimony on the part of Skaggs likewise con-
stitutes a departure from the contention advanced by the Respondent at the com-
mencement of the hearing that Garcia had been discharged and that the sole reason
for his termination was that he had been insubordinate. Apart from that fact, I am
convinced that the record does not support an assertion that the quality of Garcia's
work was a factor in his discharge. Comptroller and General Manager Leonard
testified that on March 25 it was agreed that Garcia was not being paid the rate he
was entitled to under the contract and it was further agreed at that time that his
rate of pay would be increased to reach such rate. I cannot believe that the Re-
spondent would have agreed to increase the rate of pay of Garcia 2 days before he
was discharged if one of the factors which led to his discharge was his failure to
perform his work satisfactorily. In this connection, Vergara, Suares, and Garcia all
testified without contradiction that Alejandro Torres, Garcia's foreman, when ques-
tioned about Garcia's termination on the morning of March 29, stated that Garcia
was a good employee. Upon the basis of the foregoing facts and upon the record
as a whole, I find that Garcia was discharged by the Respondent on March 27 be-
cause Skaggs knew that Garcia had been elected by the employees as the union
steward and because Skaggs knew or suspected that Garcia had requested the tele-
phone number of Collins for the purpose of taking up with the Union the question
of Collins' layoff which had occurred 2 days before, and not for the reason asserted
by the Respondent or added to by Skaggs in his testimony.io
b. Suares
With respect to Snares, the Respondent contends that he was not discharged, that
he was told on March 29 that his job was available, and that it is still available but
that he failed to return. On the basis of the evidence recounted above, I have
found that Skaggs intended to discharge and in fact did discharge both Garcia and
Suares on March 27. Vergara testified without contradiction that on March 29 he was
told by Skaggs that Snares happened to be standing by and that Skaggs got rid of him
and Garcia and that he did so because they were friends and shared the same opinions.
It is clear, and I find, that Garcia was discharged by Skaggs on March 27 because
Skaggs knew or suspected that he was engaged in union or concerted activities and
that Suares was likewise discharged at the same time because Skaggs regarded him as
being closely associated with and in accord.with the views of Garcia and that the ter-
minations of both employees were acts of discrimination which discouraged union
membership within the meaning of Section 8(a) (3) of the Act and in addition inter-
fered with, restrained, and coerced the employees of the Respondent in the exercise of
the rights guaranteed them in Section 7, thereby violating Section 8(a)(1) of the
Act. Having been discriminatorily discharged, Snares was entitled to full reinstate-
ment, including backpay, and his refusal to return to work absent the backpay to
which he was entitled did not constitute a quitting on his part or relieve the Respond-
ent of its continuing obligation to offer him reinstatement and backpay in full.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
° This testimony of Vergara was in effect corroborated by Skaggs himself and by Leonard
as well. Thus, Leonard. testified that on March 29 Vergara inquired whether the Respond-
ent "would take back the two men we had fired." Skaggs admitted that on this occasion
Vergara "asked me if I wanted to take the two employees back." Vergara also testified
without contradiction that on March 29 Skaggs stated that he had gotten rid of both
Garcia and Snares because they were friends and shared the same opinions.
10 Even If I were to find that Garcia made the statement attributed to him by Skaggs,
I could not conclude on the basis of this record that such statement constituted the real
reason for his discharge . N.L.R.B. v. Texas Independent Oil Company , Inc., 232 F. 2d 447
(C.A. 9) ; N.L.R.B. v. Buitoni Foods Corporation, 298 F. 2d 169 (C.A. 3).
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative of
Section 8(a) (3) and (1) of the Act, I shall recommend that it cease and desist
therefrom and -take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that the Respondent has discriminated with respect to the hire
and tenure of Rodolfo Garcia and Humberto Suares. I shall therefore recommend
that the Respondent offer them immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or, other
rights and privileges.ll See The Chase National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 65 NLRB 827. I shall further recommend that the
Respondent make them whole for any loss of pay suffered by reason of its discrimina-
tion against them. Said loss of pay, based upon earnings which they would have
earned as wages from the date of the discrimination to the date of offer of rein-
statement, shall be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B. v. Seven-up
Bottling Company of Miami, Inc., 344 U.S. 344. Interest thereon at the rate of 6
percent per annum shall be added, as provided in Isis Plumbing and Heating Co.,
13 8 NLRB 716.
The unfair labor practices committed go "to the very heart of the Act." N.L.R.B.
v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). The inference is therefore war-
ranted that the Respondent maintains an attitude of opposition to the fundamental
purposes of the Act designed to protect the rights of the employees. It will ac-
cordingly be recommended that the Respondent- cease and desist from infringing in
any manner upon the rights -guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Union is, and has been at all times material to the issues in this proceeding,
a labor organization within the meaning of Section 2(5) of the Act.
2. The Respondent is, and has been at all times material to the issues in this
proceeding, an employer within the meaning of Section 2(2) of the Act.
3. By discriminating with respect to the hire and tenure of employment of Rodolfo
Garcia and Humberto Suares, thereby discouraging membership in a labor organiza-
tion, the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act, the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding, I recommend that the Respondent, Na-
tional Screen Products Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in Industrial Carpenters
Union, Local 530, affiliated with International Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other labor organization of its employees, by
discharging or in any other manner discriminating against any individual in regard to
hire, tenure of employment, or any term or condition of employment, except as
authorized in Section 8(a)(3) of the Act.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in other con-
certed activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities, except to the extent
11 An offer made to Snares by counsel for the Respondent during the course of the hear-
ing to reinstate him without backpay if he would agree to a dismissal of the charge in his
case does not constitute a, sufficient and unconditional offer of reinstatement and does not
therefore relieve the Respondent of its. continuing obligation. under the Act.
NATIONAL SCREEN PRODUCTS CO. 757
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) of
the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to Rodolfo Garcia and Humberto Suares immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges.
(b) Make whole Rodolfo Garcia and Humberto Suares for any loss of pay suffered
by reason of the discrimination against them in accordance with the method set
forth above in the section entitled "The Remedy."
(c) Preserve until compliance with any order for reinstatement or backpay made
by the National Labor Relations Board is effectuated and make available to the said
Board and its agents, upon request, for examination and copying, all payroll records,
social security payment records, timecards, personnel records and reports, and all
other records relevant to a determination of the amount of backpay due, and to the
reinstatement and related rights provided under the terms of any such order.
(d) Post at its usual place of business located in Paramount, California, copies of
the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by
the Regional Director for the Twenty-first ,Region of the National Labor Relations
Board, shall, after being duly signed by an authorized representative of the Respond-
ent, be posted by it immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Twenty-first Region, in writing, within
20 days from the receipt by the Respondent of a copy of this Decision, what steps
the Respondent has taken to comply therewith.13
It is further recommended that unless on or before 20 days from the date of the
receipt of this Decision the Respondent notify the Regional Director that it will
comply with the foregoing Recommendations, the National Labor Relations Board
issue an order requiring the Respondent to take the action aforesaid.
12 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
is In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Industrial
Carpenters Union, Local 530, affiliated with International Brotherhood of Car-
penters and Joiners of America, AFL-CIO, or any other labor organization, by
discharging or in any other manner discriminating against any individual in re-
gard to hire or tenure of employment or any term or condition of employment,
except as authorized in Section 8(a)(3) of the Act.
WE WILL offer Rodolfo Garcia and Humberto Suares immediate and full re-
instatement to their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and we will make them
whole for any loss of pay suffered by reason of our discrimination against them.
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 the above-named Union or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, or to engage in other concerted activities for the purpose of collective bar-
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining or other mutual aid or protection, or to refrain from any or all 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) of the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization. We will
not discriminate in regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in or activity on behalf
of any labor organization.
NATIONAL SCREEN PRODUCTS CO.,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees, if presently serving in the
Armed Forces of the United States, of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Information regarding the provisions of this notice or compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
849 South Broadway, Los Angeles, California, Telephone No. 688-5204.
Sportswear Industries, Inc. and District 65, Retail, Wholesale
and Department Store Union , AFL-CIO and Local No. 2, Cap
Makers Union, affiliated with United Hatters, Cap and Milli-
nery Workers , AFL-CIO,. Party in Interest . Case No. 2--CA-
9268. June 26, 1964
DECISION AND ORDER
On December 24, 1963, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also found that the Re-
spondent had not engaged in certain other unfair labor practices and
recommended dismissal of the complaint as to them. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a supporting brief, the Respondent filed an answering brief and cross-
exceptions, and the Party in Interest filed an answer to the General
Counsel's exceptions 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 Members
Leedom and Jenkins].
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 Trial
147 NLRB No. 79.