The Warren-Teed Products Co.

National Labor Relations Board - Board Decisions

Aug 14, 1962

138 N.L.R.B. 131 (N.L.R.B. 1962)

THE WARREN-TEED PRODUCTS CO. 131
The Warren -Teed Products Co. and Retail , Wholesale and De-
partment Store Workers Union , AFL-CIO. Case No. 9-Cd-
0395. August 14. 1960
DECISION AND ORDER
On February 20, 1962, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices al-
leged in the complaint and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
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, except as noted below.' The Board has
considered the Intermediate Report, the exceptions and brief, and the
entire record in this proceeding, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
IThe Board dismissed the complaint.]
i The General Counsel excepted, inter alga , to the Trial Examiner's refusal to permit
amendment of the complaint to allege an independent violation of Section '8(a) (1). The
Trial Examiner ruled that the amendment could not be supported by the charge filed in
this case. The charge alleged a violation of Section 8(a) (3) through the discharge of
Hobart Wells, and also contained the following paragraph: "Since August 25, the Company
has openly stated to some employees that any employee discussing unionism will be
fired " At the hearing, the General Counsel sought to allege as a violation of Section
8(a) (1) a remark made by Maintenance Supervisor Hartley in a conversation with Wells
about August 1, that if Wells was going to talk union "to get away from here" or "not to
talk it around here " We are satisfied that the matter which the General Counsel sought
to add to the complaint arose from the same fact situation which gave rise to the charge,
and that the language in the charge quoted above was sufficient to sustain the amend-
ment. Dal-Tex Optical Company, Inc, 130 NLRB 1313 However, we find that the Trial
Examiner ' s refusal to permit the amendment was not prejudicial since we agree with him
that in the circumstances the remark was not violative of Section 8(a) (1)
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
Upon the basis of a charge filed on September 1, 1961, a complaint in this matter
issued on October 20, 1961, alleging violations of Section 8(a)(1) and ( 3) of the
National Labor Relations Act, as amended, herein called the Act. The complaint
was predicated on the discharge of Hobart Wells and an allegation that The
Warren-Teed Products Co ., herein called Respondent , through its maintenance
foreman, Joseph Hartley , violated the Act "in telling an employee of the Respondent
that if any of the Respondent 's employees are talking union talk it would be best
for said employee not to be around." By an answer dated October 30, 1961,
Respondent denied that it had engaged in the unfair labor practices alleged. A
hearing on the issues thus joined was held before Trial Examiner Albert P. Wheatley,
138 NLRB No. 21.
662353-G3-vol 138-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Columbus , Ohio, on November 21, 1961 . Thereafter , on December 18, 1961,
counsel for the General Counsel filed a "motion to amend complaint and reopen
record" on the basis of an affidavit by employee Lynwood Gibson, a witness during
the hearing on November 21, 1961 , that he had testified falsely and that his false
testimony was because he was in fear of reprisals by Respondent . On December 29,
1961, I entered an order reopening the record , granting the motion to amend the
complaint , and ordering a further hearing. Further hearing was held on January 24,
1962. On February S', 1962, the General Counsel and the Respondent filed briefs
which I have considered in the preparation of this report.
Upon the entire record, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS INVOLVED
Respondent is an Ohio corporation engaged in the manufacture of pharmaceutical
products in Columbus , Ohio. Annually , Respondent receives from points and places
outside of Ohio goods and material valued in excess of $50,000 and ships to points
and places outside of Ohio products and merchandise valued in excess of $50,000.
Respondent admits, and I find, that it is engaged in commerce or in a business
affecting commerce within the meaning of Section 2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail , Wholesale and Department Store Workers Union, AFL-CIO, herein called
the Union , is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Facts
Employee Carl E. Strong testified that when he was first hired ( in January 1960)
Respondent's vice president in charge of production , Yale Campbell , said to hun
(Strong ), "I understand that you men are involved in union activities . We pay fair
wages and furnish free uniforms and free insurance and we have a good group of
people working here and we don't want a union here." This testimony by Strong
was received as "background" evidence only and over Respondent 's objection and
Campbell was not interrogated concerning this conversation although he ( Campbell)
did admit ( over objection by Respondent ) that Respondent "did not want a union."
On or about August 1, 1961, Hobart Wells i left the department where he was
supposed to be working and went to the maintenance shop where he approached
Maintenance Supervisor Joseph Hartley, while Hartley was working, and declared
that he (( Wells) was working on getting a union in the plant Hartley responded
that "if he [ Wells] was going to talk union to get away from here" or "not to talk
it around here." This testimony was elicited from Hartley . Wells did not testify
concerning this matter. At the hearing the General Counsel moved to amend the
complaint to incorporate Hartley's response as a violation of Section 8(a) (1) of the
Act. I denied the motion on the ground that the charge involved herein is not suffi-
cient to support such an allegation . Having reconsidered the matter I adhere to the
ruling made . Furthermore , upon examination of Hartley 's statement in the circum-
stances in which it was made I am of the view that it was not violative of the Act
and may not be interpreted to mean if Wells talked union Respondent would take
action against him-as contended by the General Counsel.
,On Monday , August 21 , 1961, about 11:30 a.m . (prior to Wells' normal quitting
time ), Vice President Campbell observed Wells walking away from Respondent's
plant. In view of this fact and the fact that it had been reported to him (Campbell)
several times (by Department Head Paul R . Watts ) that Wells "had been absent
more times than it was necesary ," Campbell decided to examine Wells' timecards.
He arbitrarily chose the timecards for the immediately preceding 13 weeks (quarter
of a year ). The timecards revealed that Wells had been absent 13.75 percent of the
time. At this time Department Head Watts was on vacation . As soon as Watts
returned to Respondent's plant ( on August 28, 1961 ), Campbell discussed with him
inter alia the information noted immediately above.
Hobart Wells testified that on some undisclosed date 2 while he and Phil Calhoun,
a supervisor of Respondent , "were having lunch together," he (Wells ) told Calhoun
that he ( Wells) was going to try to get a union and Calhoun responded that was
1 Wells' employment with Respondent started January 11, 1960
a Wells could not remember when except that it was before his discharge
THE WARREN-TEED PRODUCTS CO. 133
"murdering words" and that he "shouldn't talk union around the plant." Wells
replied, "Well, if I get fired, I will try to draw unemployment, but I am going to
try to get a union in the plant." The complaint herein does not refer to this con-
versation and Calhoun did not testify in this matter.
On Friday morning, August 25, 1961, Wells criticized Respondent's free soup
and free uniforms programs stating to Virginia Watkins, a supervisor of Respondent,
that he would rather provide these items himself and have the cost thereof added
to his wages and that he was "going to try to get a Union in the plant." After this
incident Wells contacted the Union and arranged to meet with Gerald A. Hughes,
regional director for the Union, either that evening or the next at his (Wells) home.
The meeting took place as planned.
On Monday, August 28, 1961, the first day Department Head Watts returned to
work after a week's vacation, Supervisor Virginia Watkins brought him "up to date
on the work schedule and then she told me [Watts] about Hobart [Wells] coming
to her, in a rather crude way, and stating that he was going to get a union in the
plant." Shortly thereafter Vice President Campbell talked to Watts about Wells'
absenteeism and at that time Watts informed Campbell of the conversation with
Virginia Watkins concerning Wells' intention "to try to get a union."
At the same meeting in which Campbell was told of Wells' union sympathies, he
and Watts decided to give Wells a written warning concerning his absences and such
written warning was given to Wells on that date (August 28, 1961).3 This was the
first time Respondent had ever given an employee a written warning. In this instance
Campbell and Watts talked about discharging Wells but upon advice of Watts that
there was a chance that Wells "was trying to do something to get fired, so he could
collect unemployment compensation," 4 it was decided to give him (Wells) a written
warning for the purpose of having a record in case Wells was discharged and filed a
claim for unemployment compensation.
On either Monday or Tuesday evening (August 28 or 29, 1961), Gerald A.
Hughes, regional director for the Union, met with employee Carl Strong and Wells
at the latter's home and discussed procedures for organizing Respondent's employees.
At this meeting union application cards were given to the employees. Thereafter,
Wells obtained the signatures of four persons on such cards. Whether these four
persons were solicited before or after Wells' discharge on August 30 is not revealed
by the record herein. In fact, there is no evidence indicating that there was any
soliciting at the plant prior to Wells' discharge or that there was any union discussion,
except as already noted in this report.
On Wednesday, August 30, 1961, an attorney (Mr. Witchey) telephoned Respond-
ent's assistant comptroller, Marjorie Williams, and told her he was representing a
person who had been involved in an automobile accident with Wells, that he
(Witchey) was seeking information about Wells "which would help him plot his
course of action to make a recovery of a damage," and that he (Witchey) was trying
to decide whether "to follow a garnisheement of wages or bring a suit, or what
method to use." Following this conversation, and on the same date, Marjorie
Williams reported the conversation to Vice President Campbell and suggested that
in view of the frequency of such calls 5 it was time to terminate Wells' employment.
That same day (August 30, 1961), Campbell delivered to Department Head Watts
a memorandum reading as follows:
The attendance record of Mr. Hobart Wells has been examined carefully
and it shows that he has been absent 13.75% of the time he should have worked
in the past 3 months most of which has been unexcused. This record has been
established since the time he took his vacation in April.
There have been many calls to our accounting department requesting credit
information for him with great loss of time for these people. His wages were
garnished twice. They had a call from an attorney Mr. Witchey this morning
who was trying to decide whether to bring suit or garnishment against Mr.
Wells. Mr. Witchey says that Mr. Wells owes his client Mr. Ronald Dye $242
I The written warning reads as follows
We are hereby giving You a warning notice that any more absenteeism without just
cause or notification to us will bring about your immediate dismissal.
h Watts had been told by another employee ( George Miller) that Wells "wanted to get
discharged and get unemployment compensation " Unemployment compensation is not
subject to attachment by creditors.
5 The accounting and payroll department had received other calls concerning Wells'
credit-on 1 day within the 6 months preceding Wells ' discharge three such calls were
received-and Williams had previously complained to Campbell claiming that such calls
were "very bothersome in her department "
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in settlement of auto accident in November. A letter sent to Mr. Wells by Mr.
Witchey on August 10, 1961, has gone unanswered.
In view of Mr. Wells' unsatisfactory attendance record and his many financial
difficulties we feel that he should be discharged at the end of today with the
attached check paying him in full plus one week's separation pay handed to
him at 4:30 p.m.
The record herein reveals Wells' absenteeism had been called to his "attention
a good many times" by Department Head Watts, that in May 1961 and again in
June 1961 Respondent received an order and notice of garnishment attaching Wells'
wages and that on the latter occasions and on other occasions Wells was warned
to get his finances in order or he would be dismissed. The record reveals further
that Respondent was reluctant to keep in its employ persons in financial difficulties
resulting in garnishment of their wages.
At the end of the day on August 30, 1961, Department Head Watts discharged
Wells. Watts told Wells about Attorney Witchey's inquiry and that he was being
discharged because of his unsatisfactory attendance record and his financial diffi-
culties. Watts added that he (Wells) was a big strong man and he could work
if he was willing to work and that he should not have any trouble getting work.
Wells protested that he was not being discharged for the reasons asserted but be-
cause of the Union-"[Wells] took out a union card and I showed him the union
card, and I said, `Paul, this is the reason you are letting me go' . . . and he [Watts]
said he didn't know anything about the union business."
TRIAL ExAMINER: Go on, what else was said?
The WITNESS: As far as I recall, that is all that was said. I walked out and
got my time card and that is all that was said.
At the reopened hearing held on January 24, 1962, employee Gibson testified that
around the first week of September 1961, Maintenance Supervisor Hartley asked
him if he had seen Wells and that upon his (Gibson's) reply in the negative Hartley
said that "if any of the employees were talking union that it would be best if I
wouldn't be around them." Gibson testified further that he lied at the original
hearing concerning this matter and with respect to other matters and that on
November 21, 1961 (the date of the original hearing) Hartley had induced him
to testify falsely under threat of reprisal. Hartley denied making the statements
attributed to him by Gibson and denied inducing him to testify falsely. Upon
the basis of observations of witnesses and analysis of the record herein, I reject
Gibson's testimony. I am of the view that Gibson is a thoroughly discredited witness
and that consequently his entire testimony should be completely disregarded.
Conclusions
In summary, the facts found above reveal the following:
1. Respondent does not want its employees organized.
2. On August 21, 1961, Wells was observed leaving the plant early and in view
of this fact, his attendance record was checked and found to be undesirable.
3. On August 25, Wells criticized Respondent's programs and indicated an
intention to try to get a union in the plant.
4. On August 25 or 26, Wells contacted a union representative but there is no
direct evidence that Respondent was aware of this fact.
5. On August 28, Department Head Watts returned from his vacation and was
informed of Wells' intent to try to get a union in the plant.
6. On August 28, Vice President Campbell and Department Head Watts discussed
Wells' attendance record and intent to try to get a union in the plant and decided
to warn him (Wells) about his absences.
7. On August 28, Wells was given a written warning about absences.
8. On August 28 or 29, Wells contacted a union representative for the second
time but there is no direct evidence that Respondent was aware of this fact.
9. On August 30, Attorney Witchey inquired of Respondent's assistant comptroller
about Wells' financial condition.
10. On August 30, Respondent's assistant comptroller reported Attorney Witchey's
inquiry to Vice President Campbell and recommended that Wells be discharged
because of the frequency of calls concerning his financial condition which were
"bothersome" in her department.
11 On August 30, Campbell directed Department Head Watts to discharge Wells
because of his unsatisfactory attendance record and his financial difficulties.
12. On August 30, Department Head Watts discharged Wells telling him his dis-
charge was because of his attendance record and his financial difficulties.
STATLER HILTON HOTEL 135
In the light of Respondent's desire not to have its employees organized, the fact
that Wells was discharged 2 days after Vice President Campbell learned of Wells'
intent to engage in union activity and within a day or two after Wells attempted to
effectuate this intent, cast considerable suspicion upon Respondent's motive in dis-
charging Wells. Perhaps the timing and abruptness of the discharge are sufficient
to warrant an inference that Respondent was aware of Wells' attempt to organize its
employees, but on the basis of the record as a whole I believe, find, and conclude
that these factors are not sufficient to warrant a further inference that Respondent
bore animosity toward Wells because of this activity. Furthermore I believe, find,
and conclude that the evidence adduced herein is insufficient to warrant rejection
of Respondent's contention that Wells was discharged for cause. In Fairbank Knit-
ting Mill, Inc., 134 NLRB 951, relied upon by the General Counsel herein, Re-
spondent's contentions did not stand up under close examination. Such is not the
situation herein and this is a crucial difference.
The allegations of the complaint, as amended, that Respondent violated Section
8(a) (1) of the Act independent of its violation of the Act through the discharge of
Wells are dependent upon the credibility of Gibson. As noted earlier in this report
I am not willing to accept his testimony.
CONCLUSIONS OF LAW
1. Respondent is engaged in and, during all the times material herein, was engaged
in commerce or a business affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Retail, Wholesale and Department Store Workers Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The evidence adduced does not establish that Respondent violated the Act
in the manner alleged in the complaint, as amended.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, I recommend that the complaint, as amended,
be dismissed in its entirety.
Hilton Hotels Corporation d/b/a Statler Hilton Hotel and Hotel,
Motel, Restaurant and Club Employees Union , Local 353, affili-
ated with Hotel & Restaurant Employees and Bartenders
International Union , AFL-CIO. Case No. 16-CA-1584. August
1.5. 1962
DECISION AND ORDER
On May 2, 1962, Trial Examiner Harold X. Summers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in unfair labor practices as alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [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
138 NLRB No. 15.