Southeastern Regional ILGWU Health and Welfare Fund

National Labor Relations Board - Board Decisions

Apr 13, 1964

146 N.L.R.B. 790 (N.L.R.B. 1964)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing with the Union, or to gain time within which to dissipate the Union's majority
status. Of course, the absence of contemporaneous unfair labor practices on the
part of an employer, as in this case, while an important factor in determining motiva-
tion, does not necessarily establish the employer 's good faith in questioning the union's
majority status . Thus, in the Groh case , the Board held that the absence of unfair
labor practices did not preclude a finding of bad faith where the employer 's decision
to question the union 's majority was not timely and there was evidence that he
rejected the collective -bargaining principle . 16 It is equally clear that bad faith may be
not imputed to an employer on the ground that he has committed an unfair labor
practice , and nothing more.17 Considering the course of action followed by the
Company, plus the absence of any evidence indicating unlawful conduct on the part
of the Company, or its rejection of the collective -bargaining principle , I am con-
vinced the Company 's refusal to bargain with the Union was motivated by its good-
faith doubt concerning its majority status.
I therefore find the Company did not refuse to bargain with the Union on and after
December 7, 1962 , in violation of Section 8(a) (5) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The Union is a. labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the com-
plaint within the meaning of Section 8(a) (5) and ( 1) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the complaint be dismissed.
10 George Groh and Sons , 141 NLRB 931.
17 Sunset Lumber and KTRH cases, supra.
Southeastern Regional ILGWU Health and Welfare Fund and
Clarice P. Day
International Ladies' Garment Workers' Union and Clarice P.
Day. Cases Nos. 10-CA-5354 and 10-CB-1410. April 13,196,11
DECISION AND ORDER
On January 10, 1964, Trial Examiner Ivar H. Peterson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had not engaged in any unfair labor practices as alleged in the
complaint and recommending that the complwint be dismissed in its
entirety. Thereafter, General Counsel filed exceptions to the Decision
and supporting briefs and Respondent filed an answering 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 [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 Trial
146 NLRB No. 97.
SE. REGIONAL ILGWU HEALTH AND WELFARE FUND 791
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Ivar H . Peterson in Atlanta,
Georgia, on September 16 and 17 , 1963, on the consolidated complaint issued by
the General Counsel of the National Labor Relations Board against the above-
named Respondents , Southeastern Regional ILGWU Health and Welfare Fund,'
herein called the Fund , and International Ladies ' Garment Workers ' Union , herein
called the Union , alleging that the Fund discharged and that the Union caused the
discharge of Clarice P. Day, in violation of Section 8(a)(3) and ( 1) and Section
8(b)(1)(A ) and (2 ) of the Act , respectively? The issues litigated were (1)
whether the Fund is an employer whose operations affect commerce within the
meaning of the Act, and (2 ) if so, whether the Union caused the Fund to discharge
Day in violation of the Act. All parties were represented and participated at the
hearing, and were afforded full opportunity to examine and cross-examine witnesses,
to argue orally on the record, and to file briefs . Respondents ' motion to dismiss the
complaint is disposed of in accordance with the findings below . Briefs received
from the General Counsel and the Respondents have been duly considered.
Upon the entire record in the case,3 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE FUND AND THE ORGANIZATION INVOLVED
The Fund is a trust established for the purpose of providing employees covered
by collective-bargaining agreements between the Union and employers in the seven
States in the southeastern region of the United States with a wide range of health,
hospitalization , and recreational benefits. It is financed by contributions made by
such employers pursuant to collective -bargaining agreements based upon percentages
of their gross payroll . Contributions to the Fund annually amount to approxi-
mately $750 ,000. The Fund has two trustees , one representing employees and one
employers . The former trustee is the Union 's southeastern regional director, who
is also treasurer of the Fund and responsible for day-to -day operations , such as hiring
and direction of personnel and payment of claims. At the time of the hearing, and
for some years theretofore , E. T. Kehrer was the employees' trustee. Attorney
Frank A. Constangy , who represents employers in labor relations matters in the
southeastern region , serves as employers ' trustee . About 50 employers contribute
to the Fund , and with respect to 15 or 20 of these employers the Union achieved
recognition as the certified collective -bargaining representative of their employees
following Board-conducted elections 4
The Fund is a self-insurer, and from the moneys collected pursuant to collective-
bargaining agreements pays claims to employees covered thereby for various bene-
fits, including hospitalization and surgical benefits, medical costs, and sick benefits.
It is located in the same premises as the Union 's southeastern regional office in
Atlanta, Georgia, and employs seven or eight clerical workers who process claims.
The Fund maintains its own bank account , payroll , and records separate from the
Union , and pays from its funds all expenses such as rent , supplies, and equipment.
1 By amendment granted at the hearing , the correct name of the Fund appears as above.
2 The charges against both Respondents were filed on June 4, 1963, and the complaint
was issued on July 18, 1963.
3 The unopposed motion of counsel for the Respondents to correct the transcript of the
hearing Is hereby granted.
4 All the employers are engaged in the manufacture of garments . No claim is made that
none is engaged in commerce within the meaning of the Act. Plainly the 15 or 20 over
which the Board asserted jurisdiction in representation proceedings are so engaged; the
record does not disclose what proportion of the annual payments to the Fund is made by
these employers.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In about 1957 the Fund purchased and placed in operation a mobile health unit
or clinic, which travels from State to State in the region visiting plants whose em-
ployees are covered by the Union's collective-bargaining agreements, giving such
employees free physical examinations and diagnostic services. A medical doctor,
nurse, and laboratory technician comprise the staff of the unit. Utilizing the cus-
tomary medical and technical equipment, they give the employee-patients, who
voluntarily avail themselves thereof, a complete physical examination, including
blood tests and X-ray and electrocardiograph examinations. No treatment of
employees is performed by the health unit staff; if such is indicated, reports are
furnished to family or designated physicians of the patient, to whom the patients
are referred. The unit performs about 2,000 examinations per year, the cost of
which Kehrer estimated, if performed by a private physician, at between $60 and
$85 each . The annual cost of operating the unit , including salaries, is between
$40,000 and $ 50,000 . Kehrer estimated that , on an annual basis , about 80 percent
of the unit's services is performed outside the State of Georgia.
The aspect of the Fund's operations with which this proceeding is directly con-
cerned is the mobile health unit, the unfair labor practices alleged being that the
Union caused the -Fund to discriminate against Miss Day, the nurse on the unit,
thereby encouraging membership in the Union. In arguing that the complaint
should be dismissed on jurisdictional grounds, the Respondents contend that only
the health unit aspects of the Fund 's operations should be considered , in harmony
with the Board 's approach in determining whether certain activities of nonprofit
educational , charitable, or religious organizations are commercial or noncommer-
cial in nature . On this approach , urge the Respondents , the mobile unit is outside
the Board 's jurisdiction because it "is actually a hospital within the meaning and
intendment of the exclusion in Section 2(2) of the Act ." 8 Secondly, they argue
that if the mobile health center cannot properly be characterized as a hospital,
jurisdiction should be declined because the activity involved is that of a nonprofit
institution and is noncommercial in nature . Finally, they contend that declination
of jurisdiction would have no effect upon the collective-bargaining rights of the
three employees who constitute the staff of the health unit.
The jurisdictional contentions of the Respondents are lacking in merit. Although
the term "hospital" is not defined in the Act, it would be giving that term a scope
far beyond its ordinary or intended 6 meaning to conclude that a mobile diagnostic
clinic such as is here involved is a hospital . Moreover, the Board has asserted
jurisdiction over a similar trust fund in Chain Service Restaurant etc. Employees,
132 NLRB 960, enfd. 302 F. 2d 167 (C.A. 2). In that case the fund involved pro-
vided the health and welfare services through the purchase of insurance policies
and contractual arrangements with physicians , dentists, and hospitals, whereas here
the Fund performs diagnostic services through its own staff and clinic and directly
pays the benefit claims of covered employees. These factual differences, in my
opinion , do not alter the essential nature of the Fund , or operate to exempt it from
the Board 's jurisdiction . In Chain Service, the Board viewed the contributions
made to that fund by employers who met the Board's jurisdictional standards as
payments for services to be rendered by the welfare fund to such employers in the
discharge of the employer 's contractual obligation to furnish certain protection to
their employees. The Board there said (132 NLRB 960, at 962-963) :
The employers ' contributions to the Fund represent payments made to defray
the cost of various forms of protection for the employees covered by the Fund,
and conversely they represent the amount charged by the Fund as the cost of
furnishing such protection . Thus, we view the amount of $ 165,000 contributed
to the Fund by the foregoing nine employers as payments for services to be
rendered by the Fund to such employers , such services consisting in the dis-
charge on behalf of such employers of their contractual obligation to furnish
various forms of insurance protection to their employees . The Fund performs
this service in part by purchasing insurance policies from Northeastern, and in
part by contracting with physicians, dentists, and hospitals for various services.
'In relevant part, Section 2(2) provides that the term "employer" "shall not in-
clude . . . any corporation or association operating a hospital , if no part of the net earn-
ings inures to the benefit of any private shareholder or individual . .
"In proposing the amendment which exempts hospitals, Senator Tydings stated that it
was designed "to help a great number of hospitals which are having very difficult times"
and that it "affects only charitable institutions , which do not derive a cent of profit, but
are maintained by donations almost entirely , except for a small amount of revenue re-
ceived for services rendered." II Leg. Hist. of the Labor Management Relations Act
1947 , 1464-1465.
SE. REGIONAL ILGWU HEALTH AND WELFARE FUND 793
However , this does not alter the fact that , as between each employer and the
Fund , the employer 's contribution represents the cost to the employer of the
protection provided by the Fund . Any transaction between the Fund and
Northeastern or between the Fund and the hospitals , etc., is analogous to a
subcontracting arrangement which does not affect the essential nature of the
relationship between the Fund and the employers.
Accordingly, we find that during 1958 the Fund furnished services valued in
excess of $50,000 to employers who met the Board 's jurisdictional standards,
that the Fund is engaged in commerce within the meaning of the Act, and that
it will effectuate the policies of the Act to assert jurisdiction over the Fund.
The court of appeals , in rejecting the contention of the welfare fund involved in
Chain Service that it came within the Board 's discretionary rule exempting non-
profit charitable organizations , observed (302 F. 2d 167, at 173) :
Union welfare trust funds are different from non -profit organizations such as
hospitals and universities . The Fund may be "non -profit" but it exists solely
to service the employees of a particular industry as an integral part of the in-
dustry 's system of labor relations . It is a mechanism whereby certain ends of a
thoroughly commercial activity are achieved. . . We agree with the Board
that there is nothing in the inherent nature of a welfare fund that places it
beyond the jurisdiction afforded by the Act.
I conclude that the Fund is an employer within the meaning of Section 2(2) of
the Act and, since it furnishes services valued in excess of $50,000 annually to
employers outside the State of Georgia , that the Fund is engaged in commerce
within the meaning of the Act, and that it will effectuate the policies of the Act to
assert jurisdiction over the Fund?
I find , as alleged in the complaint and admitted in the answer , and as the record
shows, that the Union is a labor organization within the meaning of Section 2(5) of
the Act.
If. THE ALLEGED UNFAIR LABOR PRACTICES
Clarice Day was employed by the Fund as as nurse on the mobile health unit on
July 28, 1961, having been interviewed by Dr. Richard Heilman, the medical doctor
with the unit, who recommended her employment to the Union's regional director
and employee trustee and treasurer of the Fund, E. T. Kehrer. Her starting salary
was $75 per week and it was understood that after a 6-month trial period she
would receive an increase of $7.50 per week assuming her work was satisfactory.
No commitment was made regarding future salary increases, although Kehrer testi-
fied that in accord with established policy her remuneration, along with the salaries
of other employees, would be reviewed annually in July thereafter. Miss Day re-
ceived the $7.50 weekly increase in January or February 1962, but none during the
remaining period of her employment, which was terminated on May 6, 1963.
In addition to assisting Dr. Heilman in performing physical examinations and keep-
ing necessary records, Day acted as the "front" or contact representative of the health
unit with employer and union representatives in arranging for and scheduling
physical examinations. Customarily, when the unit moved to a new location, Day
would communicate with the local representatives of the Union, such as the chair-
lady of the shop, in order to work out the necessary arrangements.
Early in July 1962,8 the health unit moved to the State of Mississippi and was
engaged until the latter part of September in giving physical examinations to the
employees of the Movie Star Companies in Poplarville, Purvis, Magnolia, and
Ellisville, Mississippi. The unit first went to Poplarville, where it stayed for 4 or
5 weeks. Upon arrival in Poplarville, Day contacted the Union's chairlady, Mrs.
Doris Thomas, whom she had called earlier from Gordo, Alabama, to make the usual
arrangements for the unit's visit. Day became friendly with Thomas, visiting at her
home and attending church with her. This association continued throughout the
period the unit was in Mississippi, Day returning to Poplarville several weekends
while the unit was in the other Mississippi towns, during which visits she saw
Thomas and other friends.
7 Contrary to the suggestion of the Respondents that only the effect on the collective-
bargaining rights of the mobile unit staff members should be considered in determining
whether to assert jurisdiction, and that declination of jurisdiction would have no effect
upon them, it is relevant to consider in this connection the effect on commerce of a dis-
ruption of the operations of the Fund. Interruption of the processing of claims or the
services performed by the mobile health unit would have a direct impact upon the employ-
ment benefits provided for employees of interstate employers.
s All dates are in 1962 unless otherwise indicated
794 DECISTONS OF NATIONAL LABOR RELATIONS BOARD
When the unit arrived in Poplarville , the Union was involved in collective-
bargaining negotiations with the Movie Star Companies .9 Early in August these
companies made an offer to the Union and urged members and local representatives
of the Union to accept it. Although the Union formally rejected the offer , it appears
that some employees and union members felt that the Union should have accepted the
offer. According to Regional Director Kehrer, who was in charge of negotiations for
the Union, Chairlady Thomas "officially" voted to reject the Movie Star Companies'
offer , but he was informed that unofficially she favored accepting it. About the end
of August Kehrer had come to regard Thomas as the ringleader of the group in
opposition to the Union 's position on new contract terms. Early in September
Thomas became a supervisory employee.
About the first week in August Kehrer received a report from local union offi-
cials, who were opposed to Thomas, that Day was in very close social association
with Thomas, and that they objected to it. Kehrer testified he spoke to Dr. Heilman
and asked him to request Day to refrain from any close contact with Thomas. Later
in August Kehrer received a second report that Day was continuing her association
with Thomas , and again he spoke to Dr . Heilman in the same vein as before.
Kehrer denied that he spoke directly to Day about her association with Thomas
except on the occasion when he terminated her services on May 6, 1963.
Day, however , gave a somewhat different version of the admonitions she received
while in Mississippi concerning her association with Thomas . According to her,
Kehrer visited the unit while it was stationed in Purvis . Day asked Dr. Heilman if he
had spoken to Kehrer regarding a raise for her, which she and the doctor had dis-
cussed earlier . Dr. Heilman stepped outside the unit and spoke to Kehrer. When
he returned , Dr. Heilman told Day, in response to her inquiry about a raise, that
"Mr. Kehrer told him I was buddying around with Doris Thomas and the union
members in Purvis were complaining , and that he had asked me not to do that."
On a subsequent occasion , while the unit was in Ellisville, Day received instructions
to telephone Kehrer . - This occurred on a Monday in September , following a weekend
visit to Poplarville where she had seen Thomas . According to Day, Kehrer said he
understood she had been in Poplarville "waltzing around with Doris Thomas,"
that he had previously asked her not to do that , and asked if she was aware that
Thomas "was doing something to tear up the very Union that was paying [ Day's]
salary." Day, acknowledged having gone to church with her friend Thomas, said
she knew nothing about Thomas ' involvement or differences with the Union, which
she regarded as none of her business , and told Kehrer she intended to continue the
friendship.io
After leaving Mississippi in the latter part of September the unit went to several
towns in Georgia and South Carolina, arriving in Lake City , South Carolina, early
in January 1963 , where it remained until Day's discharge on May 6, 1963. During
this period, Day on several occasions spoke to Dr. Heilman about a raise According
to her, Dr. Heilman explained her failure to obtain an increase by stating that Kehrer
"is still mad" because she was "still buddying with Doris Thomas."
Sometime in April , Day, having received a card from Thomas, remarked to
Miss Stead and Dr . Heilman that she planned to go to Mississippi on her vacation.
She testified Dr. Heilman asked if she would promise not to go to Mississippi on her
vacation if he would seek a raise for her. She declined to make such a promise,
stating her vacation was her own and that no one had 'a right to tell her where
she could go. Dr. Heilman asked her if she did not know it was wrong for her to go
to church or be seen in public with a nonunionist and she replied she did not know
such conduct was wrong . Dr. Heilman testified he did not believe he asked Day not
to go to Mississippi and denied telling her it was wrong to associate with non-
unionists. However, he did testify that he tried in every way he could to dissuade
Day from her association with Thomas and he felt all the discussion with Day about
her association with Thomas interfered with the medical work of the mobile unit.
Late in April 1963, Day told her landlady that she planned to take her vacation
in Mississippi, and remarked to her that "Mr. Kehrer would have a- fit if he knew
I was going to Mississippi on my vacation ." The landlady inquired why Kehrer
would object, and Day said that Kehrer had "withheld a raise from me since last
August because I corresponded with Mississippi ." The landlady replied, "That
sounds like Communism with [ to] me, when people can tell you who you can
write to and who you can't and where you can go on vacation ." According to
9 See Movie Star, Inc , et al , 145 NLRB 319.
10 Kehrer denied that he received a telephone call from Day , as she testified Her recol-
lection of the incident seemed positive and I accept it.
SE. REGIONAL ILGWU HEALTH AND WELFARE FUND 795
Day, she made no reply to this observation by her landlady . The next day
Day related this conversation to Emily Stead, the laboratory technician , because,
as she testified , she thought it was "funny."
From the testimony of Kehrer and Mary Cameron , a business agent of the Union
in the Lake City area, it appears that Stead reported to Cameron what Day had
told Stead about the conversation she (Day ) had had with her landlady, and
Cameron deemed it sufficiently important to notify Kehrer by telephone on Sunday,
April 28. Kehrer testified Cameron reported "that Miss Day had talked to people
outside the membership of the Union and the staff saying that I was dictating to
her where she should take her vacation , specifically , that I was denying her the
right to take her vacation in Mississippi . . . [and] that I was holding up a pay
increase for her because I objected to her association with Doris Thomas." Kehrer
further testified Cameron told him she had received similar reports from local union
officers "that this had been said in the community by Miss Day."
On Thursday , May 2, Kehrer sent Day a telegram directing her to report at the
Atlanta office on Monday , May 6. On Friday , May 3, Stead remarked to Dr.
Heilman , as he testified , that she thought Day was going to be fired ; Dr. Heilman then
telephoned Kehrer and in the course of their discussion expressed the opinion that
Day lacked discretion and agreed with Kehrer that she should be terminated.
Kehrer testified he told Dr. Heilman he would give Day "a chance to discuss it and
explain it or deny it before taking any action."
Day and Kehrer gave somewhat different accounts of the May 6 discharge
interview . By her version , Kehrer first mentioned that he understood she was
going to Mississippi on vacation and inquired if she intended to see Thomas. When
she replied in the affirmative , Kehrer, so she testified , "let me know that he had
asked me to stop having anything to do with Doris Thomas , and he reminded me
that I had not stopped corresponding with Doris Thomas." Kehrer then said that
he understood she was "telling people in Lake City" that he had "withheld a raise
from you since last August because of your correspondence with Doris Thomas";
when she rejoined , "Well, it's true, isn 't it," Kehrer made no reply. Day testified
she admitted to'Kehrer that she had made such a statement , and that he then "said
he just couldn't have such talk going on in the towns where we were working, that
it was against union policies to tell private problems that we had." Day testified
she asked Kehrer whether there had been any complaints regarding her work and
that he said there had been none to speak of; she specifically denied that he had
charged her with having revealed the results of any medical examinations.
Kehrer testified that in the May 6 interview he first asked her whether it was
true that she had revealed the medical finding on a particular patient at Lake City
and she she admitted she had but was unaware that in the circumstances this was
a breach of policy. He then inquired whether she had stated in the Lake City
community that he was "dictating" where she could take her vacation and had
withheld a raise from her because of her association with Thomas , and "whether
or not she had had a conversation with her landlady in which the landlady said
that `it sounds like a Communistic organization ' and that Miss Day replied 'I hope
not' " He testified she admitted having made such remarks and , in response to his
inquiry why she would "gossip in such a manner with people that had no connec-
tion with us," replied that she intended to secure revenge for not having received a
raise. Kehrer then discharged her, giving her 2 weeks ' separation pay in addition to
vacation pay. He testified that his decision to terminate her was based in part
upon her admission that she had revealed a medical confidence and also upon her
admission "that she was in fact stating publicly things which , even if they were true,
which they were not, would properly be confined to the organization."
Business Agent Cameron testified that late in February or early in March, on a
visit to the plant in Lake City , she received a report that Day had disclosed the
name of any employee-patient as having cancer , and that this revelation was caus-
ing concern to a number of members . Cameron promptly reported to Dr. Heilman,
who said he knew nothing about the matter but would investigate . Some days
later, Cameron was shown the employee 's medical file by Day, which contained a
medical report indicating that the patient had cancer . Cameron reported this
incident , so she testified , to Dr . Heilman , and subsequently , at a time she placed in
April, to Kehrer.
Testifying on rebuttal , Day admitted that she had spoken to the local chairlady
in an effort to locate the employee -patient in question , and had informed the chair-
lady that a letter had been sent the patient to see her doctor . She further testified
that she told the chairlady that it was important to ascertain whether the patient
had gone to her doctor ; she could not recall whether she disclosed the patient's con-
dition to the chairlady . Day also testified that later she asked Cameron to assist
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in ascertaining whether the patient had seen her doctor. Both Day and Dr. Heil-
man testified that he had reprimanded her for disclosing the medical information
to Cameron.
Analysis and Conclusions
The theory of the complaint is that Day was discharged because she "refused to
cease associating with and communicating with" Doris Thomas, "who was in dis-
favor with Respondent Union for opposing" the Union's rejection of the Movie Star
Companies' collective-bargaining proposals, thereby encouraging membership in
the Union. The reprisal against Day for her friendship and association with Thomas,
argues the General Counsel, had the foreseeable (indeed calculated) consequence
of "encouraging adherence to a particular power faction" of the Union. This is
not a case, the argument runs, of the "possibly proper" disciplining of an employee
for not carrying out union policy as against an employer with whom the Union is
dealing; rather, it is a case of a "menacingly powerful interference" in the employee-
employer relationship between Day and the Fund by the Union "which would
brook not the slightest appearance of dissidence from its concept of unionism and
policy." On the other hand, the Respondents contend that the "real reason or
true purpose" of Day's discharge was her "unsuitable, undesirable and disloyal
conduct while in South Carolina" and not her friendship or association with Doris
Thomas. Moreover, they say, even assuming that Day's association with Thomas
was a factor in bringing about the discharge, "it strains logic and credulity to the
breaking point to conclude that the discharge of Day would have any effect what-
soever on encouraging membership" in the Union. We turn first to a consideration
of Kehrer's "true purpose" or "real motive" in effecting Day's discharge.ll
That Kehrer objected to Day's association with Doris Thomas following the
latter's identification as an opponent of the Union's position in the Movie Star
negotiations in the early part of August 1962 is firmly established. She was twice
asked to refrain therefrom, first by Dr. Heilman who made the request on behalf
of Kehrer and later by Kehrer directly ( as she testified). The basis for the objection
on the part of Kehrer and the anti-Thomas group within the Union appears to have
been that by openly associating with Thomas, Day, as the nurse on the mobile unit,
a union-related enterprise, was giving the appearance of support to and sympathy
with Thomas, thereby embarrassing the Union. However, after the mobile unit
left Mississippi in the latter part of September Day's public association with Thomas
ceased and, so far as appears, the fact that Day was continuing to correspond with
Thomas did not come to Kehrer's attention until Business Agent Cameron called him
on Sunday, April 28, 1963.
In the meantime, and particularly after the mobile unit arrived in Lake City
early in January, Day was becoming increasingly concerned about her failure to
obtain a raise in salary. She and Dr. Heilman discussed the matter on several
occasions. From their testimony regarding these conversations, I think it reason-
able to infer, as I do, that both of them, and especially Day, believed that Kehrer
was opposed to granting her an increase because of her earlier association with
Thomas and her failure to break off the relationship after having been requested to
do so 12 That Day entertained a deep-seated belief, in April 1963 when she was
planning her vacation, that Kehrer would object to her visiting Thomas, is evident
from her remarks to her landlady. She told the landlady that Kehrer "would have
a fit" if he knew she was going to Mississippi, and further stated that Kehrer had
withheld an increase from her since August 1962 "because I corresponded with
Mississippi." She made no comment, according to her testimony, when the land-
lady said that such dictation regarding where she went on vacation and whom she
wrote to "sounds like Communism to me." Because she "thought it was funny,"
Day the next day related the conversation to Emily Stead, the laboratory technician.
11 The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull
Steamship Company ) v. NL.R.B., 347 U.S. 17 , 42-43; Local 857, International Brother-
hood of Teamsters etc. v. NLRB., 365 U.S. 667, 674-675. In ascertaining Kehrer's
motivation, I think it is immaterial , in the circumstances of this case and considering
the close identification of the Fund and its mobile unit with the Union and Kehrer's dual
capacty as an agent of both the Fund and the Union, whether his action in discharging
Day be viewed as having been taken in his role as regional director of the Union or as
employees' trustee of the Fund, or both.
12 While I find that Dr. Heilman sought to dissuade Day from continuing to associate
with Thomas and further believe that he no doubt indicated that her chances of securing
a raise would be improved if she ended the relationship, I do not believe that he in fact
said he would seek a raise for her if she "promised" not to go to Mississippi on her
vacation.
SE. REGIONAL ILGWU HEALTH AND WELFARE FUND 797
Apparently Stead did not regard the incident related to her by Day as amusing.
She called Cameron, the local business agent of the Union, and said she wished
to discuss a matter with her in person rather than on the telephone. Accordingly,
Cameron invited Stead to come to her house the following day, Sunday, April 28.
Cameron testified Stead told her Day had told her landlady "about the trip to
Mississippi on her vacation, that Mr. Kehrer wouldn't like it if he knew it, and that
the landlady's remark [was] that it `sounded like a Commie organization' and [Miss
Stead] said Miss Day's remark was `I hope not.' " is
Cameron testified that when she called Kehrer on April 28, while Stead was still
with her, she told him, referring to Day's conversation with her landlady, that "it was
very difficult in a small town to have something like this, talk like this going on"; she
also referred to the earlier report she had made about Day's disclosure of medical
findings, which had caused Cameron "trouble no end" in reassuring employees that
the disclosure was an accident and contrary to union policy. Kehrer, according to
Cameron, was upset.
As stated above, Kehrer testified he questioned Day, during the discharge interview,
about the revelation of medical information, and that she admitted having done so.
Day denied that Kehrer made any reference to this incident. Considering that the
incident did occur, that Day was admittedly reprimanded by Dr. Heilman for reveal-
ing the information, and that Cameron reported it to Kehrer prior to May 6, I am
persuaded that Kehrer did, contrary to Day's testimony, refer to the incident in the
discharge interview.
It seems evident, after carefully considering all the testimony about the association
of Day with Thomas, and the discussion between Day and Kehrer on this matter at
the discharge interview, that what Kehrer took particular exception to was that Day
was revealing internal affairs to outsiders and, more especially, in his opinion mis-
representing his position as to where she could go on her vacation and why she had
not been given a raise. Day, by her own testimony, left unrebutted the characteriza-
tion given by her landlady of Kehrer's action and attitude regarding her personal
plans and associations, that it "sounds like Communism to me"; indeed, she thought
the incident amusing and related it to Stead. Doubtless the account received by
Kehrer from Cameron, given the batter's tendency to exaggerate, overstated the
trouble caused by the disclosure of the medical information and pictured Day as
engaged in widespread malicious gossip damaging to the Union. But even dis-
counting any embellishments that may have been contained in Cameron's report
to Kehrer, the fact remains that Day had disclosed a medical confidence and admitted
to Kehrer that she had represented that, because of her association with Thomas,
he had withheld an increase and was opposed to her going to Mississippi on vacation.
Although I have no reason to doubt that Day honestly believed Kehrer harbored
resentment against her because of the Thomas association and for that reason had
not given her a raise, it does not follow that he discharged her on that account. If
in fact Kehrer was so opposed to Day's association with Thomas, it seems strange
that he would have taken no more severe measures than requesting that she refrain
therefrom when he learned of and received complaints about the association in
August and September 1962, while the mobile unit was still in Mississippi. Had
Day's public association with Thomas been regarded by Kehrer as so inimical to the
Union's position and image among employees of the Movie Star Companies as the
General Counsel suggests, then it would seem that Kehrer would have acted promptly
when Day, early in September, made clear to him that she intended to continue the
friendship. Instead of discharging her then, he took no action until the following
May, long after the unit had left Mississippi. This lapse of time, coupled with the
reports of Day's conduct in Lake City that came to Kehrer's attention shortly before
the discharge, suggest that her past relationship with and contemplated vacation visit
to Thomas were not factors motivating Kehrer in his decision to terminate Day's
services.
is Cameron had earlier testified twice that she was told by Stead that Day's reply to the
landlady's observation about communism was "I don't know." Day testified she made no
rejoinder to the landlady. Stead did not testify. Kehrer testified Cameron had told him
that Day's reply to the landlady's observation had been, "I hope not," and further that
Day admitted to him in the discharge interview that she so responded to the landlady.
Day denied that Kehrer asked her specifically about a conversation she had had with her
landlady. From my observation of her as a witness, I formed the impression that Cameron
was somewhat inclined to exaggerate. On the other hand, I was favorably impressed with
Day as a witness. In several respects, Kehrer's testimony was at variance with his pre-
trial affidavit. On ibalance, I credit Day's testimony, and I do not believe the testimony
that Cameron told Kebrer that Day had responded with "I hope not" when the landlady
made the observation about communism.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal reason for the discharge , I am persuaded , was Day's admitted dis-
closure to persons in the Lake City community not connected with her employer or
the Union of a problem relating to her employment and, in doing so, attributing
a dictatorial attitude to Kehrer which, in his view, not only misrepresented his posi-
tion but convinced him she lacked discretion and a proper sense of loyalty to her
employer . A contributing factor, I find, was the revelation to the local chairlady
and Cameron , contrary to policy, of information about the medical findings relating
to an employee-patient. While I have no doubt that Kehrer was displeased with
Day's association with Thomas , I do not believe that this relationship caused her
termination . Accordingly , I find that Day was discharged for reasons not violative
of the Act , and I shall therefore recommend that the complaint be dismissed in
its entirety.14
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Southeastern Regional ILGWU Health and Welfare Fund is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Ladies' Garment Workers ' Union is is labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondents have not engaged in any unfair labor practices as alleged
in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety.
14 In view of my finding that Day was not discharged because of her association with
Thomas or because she refused to cease such association, as alleged In the complaint, it
seems unnecessary to consider whether, If I had found the reason to be as alleged , a viola-
tion of Section 8(a) (3) and 8(b) (1) (A ) and (2 ) would thereby be established.
Haag Drug Company, Incorporated and Retail Clerks Union
No. 725, a/w Retail Clerks International Association, AFL-
CIO, Petitioner. Case No. 25-RC,-92455. April 13, 196.4
DECISION, DIRECTION, AND CONTINGENT ORDER
AND DIRECTION OF SECOND ELECTION
Pursuant to a stipulation for certification upon consent elec-
tion, an election by secret ballot was conducted on August 22, 1963,
under the direction and supervision of the Regional Director for the
Twenty-fifth Region, among the employees in the agreed-upon unit.
Upon the conclusion of the election, the parties were furnished a tally
of ballots which showed that of approximately 315 eligible voters,
267 cast ballots, of which 124 were for, and 117 were against, the
Petitioner, and 25 were challenged and 1 was void. The challenges
were sufficient in number to affect the results of the election. There-
after, the Petitioner filed timely objections to conduct affecting the
results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation and on December 23, 1963, issued
and duly served on the parties his report on challenged ballots and
objections, in which he recommended that 5 challenges be sustained
146 NLRB No. 96.