Top Notch Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1963

145 N.L.R.B. 429 (N.L.R.B. 1963)

TOP NOTCH MANUFACTURING COMPANY, INC. 429
WE WILL offer Keith Weekley immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority and
other rights and privileges , and make him whole for any loss of pay suffered
as a result of the discrimination against him.
All our employees are free to become , remain , or refrain from becoming or re-
maining members of any labor organization.
THE HALSEY W. TAYLOR COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
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.
Employees may communicate directly with the Board 's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland , Ohio, Telephone No. Main
1-4465, if they have any question concerning this notice or compliance with its
provisions.
Top Notch Manufacturing Company, Inc . and Guillermo Aguirre.
Case No. . 28-CA-992 .' December 13, 1963
DECISION AND ORDER
On August 16, 1963, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report 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 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
Intermediate Report, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner?
1 Reference to Case No. 28-CB-253 against United Garment Workers of America, Local
284, and United Garment Workers of America , AFL-CIO, as it appears in the Intermediate
Report, is deleted from the case caption , inasmuch as the Trial Examiner granted, without
objection , the General Counsel's motion to sever that case and to adjourn the hearing
herein pending the effectuation of a settlement agreement.
s We hereby modify the backpay remedy recommended by the Trial Examiner to include
payment of interest at the rate of 6 percent , as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
145 NLRB No. 44.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order 3 of the
Trial Examiner 4
3 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , its officers , agents , successors , and assigns , shall:
4 Paragraph 1(b) of the Trial Examiner 's Recommended Order is amended to read as
follows :
In any like or related manner interfering with, restraining , or coercing its employees
in the right to self-organization , to form labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities.
The second indented paragraph of the notice attached to the Intermediate Report is
amended to read as follows:
WE WILL NOT in any like or related manner interfere with, restrain , or coerce our
employees in the exercise of the right to self -organization , to form labor organiza-
tions, to join or assist a labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On a charge and amended charge in Case No. 28-CB-253, filed respectively on
March 4 and 22, 1963, against United Garment Workers of America, Local 284,
United Garment Workers of America, AFL-CIO, herein called the Union, and a
charge in Case No. 28-CA-924 filed on March 4, 1963, against the Respondent,
Top Notch Manufacturing Company, herein called the Company, all charges duly
filed by Guillermo Aguirre, an individual, the General Counsel of the National
Labor Relations Board, the latter herein called the Board, by the Regional Director
for the Twenty-eighth Region, on an order consolidating the two cases, issued a
complaint dated April 16, 1963, alleging in Case No. 28-CB-253 that the Respond-
ent Union engaged in unfair labor practices within the meaning of Section 8(b)
(1) (A) of the National Labor Relations Act, as amended, and in Case No. 28-CA-
924 that the Respondent Company engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act, in that
the Respondent Company discharged Aguirre because of his concerted and union
activities . The hearing upon the consolidated complaint , conducted by Trial Ex-
aminer William E. Spencer at El Paso, Texas, on June 19 and 20, 1963, was par-
ticipated in by all parties. At the outset of the hearing, the General Counsel
moved to sever the two cases and to adjourn indefinitely, pending the effectuation
of a settlement agreement , the hearing against the Respondent Union in Case No.
28-CB-253. The motion was granted without objection and there will be no further
reference to this case in the report that follows . Briefs have been filed by the
General Counsel and the Respondent Company.
Upon consideration of the entire record in the case and from my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
Respondent , a Texas corporation , with its principal office, plant , and place of
business in El Paso , Texas, is and at all times material herein has been engaged
at the said plant in the manufacture , sale, and distribution of work clothes and
related products . During the 12-month period preceding issuance of the complaint
herein , in the course and conduct of its business , it manufactured , sold, and dis-
tributed at its El Paso plant products valued in excess of $50 ,000, of which products
valued in excess of $50,000 were shipped from the said plant directly to States
other than Texas.
TOP NOTCH MANUFACTURING COMPANY, INC. 431
II. THE LABOR ORGANIZATION INVOLVED
United Garment Workers of America , Local 284; United Garment Workers of
America , AFL-CIO, are labor organizations within the meaning of the Act.
as. THE UNFAIR LABOR PRACTICES
A. The material facts
Most of the basic and determinative facts here are undisputed . For some 16
years the Respondent has had bargaining relations with the Union . At a meeting
of the Local about September 1962, Marina Bernal, president of the Local, an-
nounced that the Company would reduce production in what was known as its
"blue" department, while increasing production in its "white" department. One of
the employees present asked Bernal if there would be the same guarantee in their
wages as they then had in the blue department , and she replied that there was no
guarantee and that for anyone who did not want to work in that department under
the changed conditions , the doors of Top Notch were open and they could leave.
Presumably , this statement by the Local 's president gave rise to dissatisfaction among
some of the employees represented by the Local, and when an election of officers
was held in November , the dissident group nominated and elected their own slate
of officers over the slate proposed by the incumbent group. Guillermo Aguirre,
upon whose undisputed testimony these findings on the Local are made, was active
in the dissident group . On some technicality , this election was voided by Emily
Jordan , a representative of the Local's International , who was in El Paso in late
November. She scheduled new nominations and a new election for a date in De-
cember. The December election was conducted under the supervision of the In-
ternational 's representative . Again, the dissident group was successful in electing
its own slate of officers over the incumbent group. At an executive board meeting
of the newly elected officers of the Local , Aguirre was designated chairman of the
Local's shop steward committee . A letter notifying Respondent of Aguirre 's designa-
tion was delivered to Respondent's manager of operations , Maury Cohen, about
January 14, 1963.
At a meeting of the Local on about January 8, again on Aguirre 's undisputed testi-
mony, Emily Jordan entered the union hall accompanied by two policemen, and
read , in English , a letter which she said was from the International . Asked to
translate the letter into Spanish she replied that she did not know Spanish. There-
upon she left the hall. The newly elected executive committee of the Local re-
quested the International to replace Jordan with some "neutral " person, but ap-
parently received no response from the International . On January 29, Aguirre's
attention was called to a letter on the Company 's bulletin board which stated, in
effect, that Jordan was announcing that the newly elected officers of the Local were
disqualified "because they did not attend two meetings that she had called." Ac-
cording to Aguirre this announcement caused anger among a group of employees,
and as he was returning to his work at the end of the lunch period some em-
ployees told him that they did not wish to continue to pay "quotas" to the Inter-
national . Aguirre advised referring the matter to their business agent, but some of
the employees suggested a meeting with Cohen , Respondent 's president , and Aguirre
volunteered to speak to Cohen . During the afternoon break Aguirre, accompanied
by some of the newly elected officers of the Local and others, spoke to Joe Ramos,
plant superintendent , and asked him to arrange ' a meeting with Cohen , as the em-
ployees wanted to see if Cohen "would help to withhold the dues that they have
to pay to the International , until the officers were recognized ." Ramos refused
to arrange the meeting , saying that he did not think anyone could do anything
about the matter because there was a signed contract with the International.
Aguirre said there was a group of employees willing to walk out unless such a
meeting could be arranged , or words to that effect . Ramos told him to return to
his job and he did so.
Ramos reported to Reuben Cohen that Aguirre had requested a meeting with
Cohen , had purported to represent a number of employees , and wanted to discuss
some "dissatisfactions and grievances ." He also informed Cohen what Aguirre had
said about some of the employees being willing to walk out unless a conference was
granted. Cohen thereupon had Aguirre summoned to his office , and in the presence
of Ramos and Maury Cohen , asked him if he had credentials from the Union author-
izing him to "represent the people ." According to the Cohens , Aguirre replied
that he did not have such credentials . Aguirre testified that he referred to the
letter of January 14 advising the Company of his appointment or election as a
shop steward , but while not denying receipt of the letter , Respondent's witnesses
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied that Aguirre made reference to it at this meeting. Reuben Cohen reminded
Aguirre of the Company's contract with the Union, told him to go to the union hall
and get the proper credentials and he would be glad to talk with him on any
grievances he had, but otherwise could not talk to him because under the union
contract he must talk to the ones who were authorized by the Union. According
to the Cohens and Ramos, Aguirre said that he knew what his rights were in the
matter and at the next meeting with Company officials he would be accompanied
by three lawyers. Aguirre denied that he made reference to his lawyers at this
meeting . Admittedly, when Cohen instructed him to return to his job and not "cause
any more trouble," he complied and worked until quitting time.
After Aguirre had left Cohen's office the two Cohens and Ramos conferred, and
it was decided that Aguirre would be discharged. After the decision had been
tentatively agreed upon but before Aguirre was informed of it, Cohen got in touch
with Emily Jordan by long distance telephone, inquired concerning Aguirre's status,
and received a negative reply followed by a telegram from Jordan advising him that
Aguirre had no representative status with the Union. Aguirre was then called to
Reuben Cohen's office and discharged. Admittedly, on refusing to accept his final
check, Aguirre told the Cohens that he would have his lawyer pick it up. Reuben
Cohen, apparently regarding this as an insult or threat, ordered Aguirre off company
property and told him he never wanted to see him there again.
B. Concluding findings
The reasons advanced by the Respondent for Aguirre's discharge, as recited in
Respondent's brief, were that he was insubordinate and was disturbing employee-
management relations. Insubordinate, as construed by the Respondent, embraced
Aguirre's alleged threat to confront the Respondent with three lawyers; his threat,
or implied threat, that a group of employees might walk off the job if he was not
granted an appointment with Cohen; and, apparently, almost any conduct that was
associated with his activities in concert with and on behalf of the group of employees
who were attempting to bring about a change in the management of the Local.
Respondent's refusal to discuss grievances with Aguirre unless he produced creden-
tials from the Union, made without any inquiry concerning or reference to the nature
of the grievances Aguirre wished to present, was a denial of employee rights to
present grievances not in conflict with terms of an existing bargaining agreement,
through someone other than their bargaining representative. See proviso to Section
9(a) of the Act. Also Douds v. Local 1250, Retail Wholesale Department Store
Union of America (Oppenheim Collins & Co.), 173 F. 2d 764 (C.A. 2). Any dis-
charge predicated in whole or in part on the effort of an employee, representing him-
self and one or more other employees, to present such grievances, absent unusual
circumstances not present here, would be a discharge for protected union and con-
certed activities and therefore a violation of the Act. The merit or lack of merit
in the grievance that would be presented, if permitted, is immaterial . Mushroom
Transportation Co., Inc., 142 NLRB 1150. Salt River Valley Water Users' Associa-
tion v. N.L.R.B., 206 F. 2d 325, 328-329 (C.A. 9). Since work stoppages were
prohibited under Respondent's contract with the Union, a walkout or threat of
walkout might well be regarded as unprotected activity, but aside from the fact that
there is no evidence that Aguirre promoted or in any way agitated for a walkout
and that at most he used the willingness of certain employees to walk out as a lever
for getting a conference with Reuben Cohen, after the request for such a conference
had been refused by the plant superintendent, the discharge admittedly was not
predicated upon this threat or alleged threat alone. Obviously, the chief overall
factor in the effectuation of the discharge was Aguirre's efforts, in concert with
others, to bring about a change in the management of the Local, activity which the
Respondent not unreasonably regarded as a threat to its continued honeymoon with
the Union which over some 16 years had not been marred by a single dispute.1 A
1 Reuben Cohen : "Since Aguirre threatened me and I was told that he did not represent
the workers of Top Notch Manufacturing Company, I discharged him on the grounds that
he was disturbing employee-management relations, as he did not represent the organized
workers of Top Notch Manufacturing Company, Inc. . . The said Aguirre has used his
best efforts to prevent the United Garment Workers of America from representing the em-
ployees of Top Notch Manufacturing Company, Inc., and he has upset the employees of
Top Notch Manufacturing Company, Inc., and has caused confusion and turmoil in
said plant, and that was one of the main reasons why Top Notch Manufacturing Com-
pany discharged the said Guillermo Aguirre." There is no evidence that any of Aguirre's
activity on behalf of the dissident group occurred on company time, or that he incited or
was associated with any interruption in production or breach of company discipline.
TOP NOTCH MANUFACTURING COMPANY, INC. 433
remarkable record, though not unique, certainly not in the case of company-domi-
nated unions or when "sweetheart" contracts prevail. Naturally, the Respondent
would desire the continuance of such a harmonious relationship and would be dis-
turbed by anything that threatened to disrupt it. But as much as the Act is designed
to promote economic stability, it does not contemplate that such stability be achieved
and maintained at the cost of rendering employees helpless in their efforts to bring
about a change in the status or direction of their representation, or subjecting them
to discrimination for such efforts.
I find that Aguirre was discharged because of his concerted and union activities,
and by the said discharge that the Respondent violated Section 8(a)(3) of the Act
and interfered with, restrained, and coerced its employees in violation of Section
8(a)(1) of the Act.
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.
V. THE REMEDY
It having been found that the Respondent discharged Guillermo Aguirre because
of his union 2 and concerted activities, it will be recommended that the Respondent
offer him immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other rights and privileges, and make
him whole for any loss of pay suffered because of the discrimination against him,
by payment to him of a sum of money equal to that which he normally would have
been paid in Respondent's employ from the date of the discharge to the date of
Respondent's offer of reinstatement, less his net earnings, if any, during said period.
Loss of pay shall be computed upon a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289.
The circumstances in this case are such that in my opinion no broad cease-and-
desist order is required
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of its em-
ployee, Guillermo Aguirre, thereby encouraging continued membership in the Union,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
3. By the said discharge the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed them in Section 7 of the
Act, and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. 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
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the Respondent, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in a labor organization of its employees, by dis-
charging its employees or by discriminating in any other manner in regard to their
hire or tenure of employment, or any term or condition of employment.
2 Aguirre's efforts in concert with other employees to take over management of the
Local by electing an independent slate of officers appears to me to be properly character-
ized as union as well as concerted activity, but if it be regarded as concerted activity
alone, the remedy is the same.
734-070-64-vol 145-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with , restraining , or coercing its
employees in the right to self-organization, to form labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain .from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor or-
ganization as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer Guillermo Aguirre immediate and full reinstatement to the position
he held at the time he was discharged, or an equivalent position, without prejudice
to his seniority and other rights and privileges, and make him whole for any loss of
pay he may have suffered as a result of the discrimination against him in the manner
set forth above in the section entitled "The Remedy."
(b) Upon request make available to the Board or its agents, for examination and
copying, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the amount of
back pay due under the terms of this Recommended Order.
(c) Post at its plant in El Paso, Texas, copies of the attached notice marked
"Appendix." 3 Copies of said notice, to be furnished by the Regional Director for
the Twenty-eighth Region, Albuquerque, New Mexico, shall, after being duly signed
by a representative of the Respondent, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-eighth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.4
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 "
4In 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 the 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, we hereby notify our employees that:
WE WILL NOT discourage or encourage affiliation with any labor organization,
by discharging our employees, or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations , to join or assist a labor organization , to bargain collectively
through representatives of their own choosing , and to engage in collective bar-
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 authorized by the National
Labor Relations Act.
WE WILL offer Guillermo Aguirre immediate and full reinstatement to the
position he formerly held, or its equivalent , without prejudice to seniority or
other rights and privileges, and make him whole for any loss of pay he may have
suffered as a result of the discrimination against him.
Top NOTCH MANUFACTURING COMPANY, INC.,
Employer.
Dated-------- ----------- By-------------------------------------------
(Representative) (Title)
HOCK AND MANDEL JEWELERS 435
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
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.
Employees may communicate directly with the Board's Regional Office, 1015
Tijeras Avenue NW., Albuquerque, New Mexico, Telephone No. 243-3536, if they
have any question concerning this notice or compliance with its provisions.
Samuel Levine, doing business as Hock and Mandel Jewelers and
Local No. 1, Amalgamated Jewelry, Diamond and Watchcase
Workers Union, AFL-CIO. Case No. 2-CA-9010. December 16,
1963
DECISION AND ORDER
On June 20, 1963, Trial Examiner Sidney D. Goldberg issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices as alleged in the complaint,
and recommended dismissal of the complaint as to them. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted
below.'
Based upon his resolutions of credibility and the inferences drawn
from the record facts, the Trial Examiner found that Respondent had
made an unconditional offer of reinstatement to Juan Garcia which
Garcia refused unless Respondent first agreed to recognize the Union
as the employees' bargaining representative. The Trial Examiner
therefore concluded that Respondent's backpay liability ceased when
1 Contrary to the Trial Examiner , we find that Respondent's interrogation of its em-
ployees as to whether they had joined the Union was coercive and violated Section 8(a) (1)
of the Act . In this connection , we note that Respondent had indicated to the employees
that it was opposed to the Union and had discriminatorily discharged Garcia. We shall
therefore modify the Trial Examiner's Recommended Order to provide that Respondent
cease and desist from engaging in this type of conduct.
145 NLRB No. 46.