Tru-Scale Products, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1122 (N.L.R.B. 1964)

1122 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
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
Relations Act, as amended , we hereby notify our employees that:
WE WILL, upon request , bargain collectively with United Steelworkers of
America, AFL-CIO, as the representative of our production and maintenance
employees with respect to rates of pay, wages , hours of employment , or other
terms and conditions of employment.
WE WILL offer the employees who went on strike on May 27, 1963, and who
on November 14, 1963, applied for and were refused reinstatement , immediate
and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges , dismissing,
if necessary , any employees hired since May 27, 1963.
WE WILL make each employee whole for any loss of pay he may have suffered
by reason of our discrimination against him.
WE WILL offer immediate reinstatement to Florence Alsbury to her former
or substantially equivalent position , without prejudice to her seniority or other
rights and privileges , and make her whole for any loss of pay she may have
suffered by reason of the discrimination against her.
WE WILL NOT discourage membership in the above -named labor organization
or in any other labor organization of our employees , by refusing to reinstate
or in any other manner discriminating against our employees in regard to hire
or tenure of employment or any term or condition of employment , except as
permitted by Section 8(a) (3) of the Act.
SAN ANTONIO MACHINE & SUPPLY CORPORATION,
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 reinstatement upon application
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, 6617
Federal Office Building, 515 Rusk Avenue, Houston , Texas, Telephone No. Capitol
8-0611, Extension 271, if they have any question concerning this notice or com-
pliance with its provisions.
Tru-Scale Products , Inc. and International Association of Ma-
chinists , AFL-CIO. Case No. 21-CA-5474. June 29, 1964
DECISION AND ORDER
On February 19, 1964, Trial Examiner Howard Myers issued his
Decision in the. above-entitled case, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set forth in his at-
tached Decision. Thereafter, the General Counsel filed exceptions
to the Trial Examiner's Decision and both the General Counsel and
the Respondent filed 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 [Chairman McCulloch and Members Leedom and Jenkins].
147 NLRB No. 149. .
TRU-SCALE PRODUCTS, INC. 1123
The Board has reviewed the rulings of the Trial Examiner made at
thehearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered, the Decision
and the entire record in this case, including the exceptions and briefs,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
[The Board dismissed the complaint.]
CHAIRMAN MOCULLOCH, dissenting in part :
I agree with my colleagues and the Trial Examiner in finding that
the Respondent did not discharge employee Dopp for union activity,
and thus did not violate Section 8(a) (3). The supporting reasons
are convincingly set forth in the first paragraph of the section of the
Trial Examiner's Decision entitled "Concluding Findings."
I cannot agree, however, that these same reasons support a dismissal
of the 8(a) (4) allegations. Section 8(a) (4) was included in the Act
to protect employees against discrimination brought about, not by
union activity, but by' the exercise of an entirely different right : the
right to resort to or assist the Board in carrying out its statutory duties.
In my opinion Dopp's discharge was brought about in substantial part
because of a statement she gave to assist the Board.
As the Trial Examiner found, in a telephone conversation in July
1962, Menzies , then the production manager for another company,
Silver Streak Corporation, asked Dopp, then a Silver Streak em-
ployee, to influence her fellow employees against the Union in its or-
ganizational drive at that plant. To achieve his purpose Menzies
promised Dopp a promotion and threatened that the plant would be
closed if it were unionized. Menzies also asked Dopp to keep the con-
versation confidential.
Charges were subsequently filed with the Board against Silver
Streak, and during the Board's investigation of these charges, Dopp
told a Board agent' about Menzies' conversation. In March 1963 the
Board agent asked Menzies for his version of the conversation, ac-
cording to Menzies' own admission at the hearing, and Menzies gave
the Board agent an affidavit. But Menzies and Dopp were not then
working for the same company, and Menzies was not in a position to
vent his irritation on Dopp, with whom he had previously been on
friendly terms, until some months later.
1 The General Counsel contended that the Respondent violated the Act by discharging
Dopp because she divulged toy a'•Boa-ed agent the contents of a "confidential" but coercive
statement made to Dopp by nlenzies, a management representative . In adopting the Trial
Examiner's Decision, we rely, in addition to the reasons noted by the Trial Examiner,
upon the fact that the record does not show that General Manager Kniff, who made the
discharge decision , had, any prior kndwledge that Dopp divulged the "confidential",com-
munication . As it was not shown that Dopp's act of disclosure entered. into the discharge
decision or that, absent ' discriminatory motivation , Menzies would not' have reported to
Kniff complaints about Dopp' s misconduct in the plant , unlike our dissenting colleague,
we are not persuaded that Dopp's act of disclosure was a causal factor in her discharge.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 22, 1963, Menzies was hired by Respondent as production
manager , and was finally in a position to do something because Dopp
was also employed by Respondent. In the evening of July 25 , Menzies
received a complaint from Dopp's fellow employee, Jackson, that Dopp
was "picking" on her. When Menzies reported for work the follow-
ing morning, Woodshop Superintendent Mangrum told him, "George,.
I want you to know there is a girl in Pat's department who is causing
trouble in the plant." Menzies asked him who it was, and Mangrum
replied, "It is Mary Ann Dopp." Without asking Mangrum for any
further details or investigating the situation in any other way, and
without exploring whether the situation should fairly have been re-
solved by some action other than the summary discharge of an ad-
mittedly valuable employee, Menzies immediately reported it to Kniff,
the vice president and general manager, and secured Kniff's authoriza-
tion to discharge Dopp. Menzies then did so, after taking her to task,
according to his own admission at the hearing, for having revealed to
the Board agent his "confidential" July 1962 effort to bribe and
threaten Dopp into becoming an antiunion agent.
The Trial Examiner, by crediting Menzies' and Kniff's testimony
that it was Kniff and not Menzies who made the discharge decision,
sought to make his dismissal of the 8(a) (4) complaint seem like an
ordinary credibility finding. I would not, however, place controlling
reliance on the employer's self-serving testimony as to what occurred
in the inner councils of management. Such testimony is too immune.
from contradiction even if completely false. Moreover, I do not
believe that the Trial Examiner's finding, based entirely on such evi-
dence, should be treated as absolving Menzies from responsibility for
the decision. Decision-making is too complex a process for such a
resolution of this delicate issue. I would find that Menzies' participa-
tion in the decision to discharge Dopp was sufficient to charge Re-
spondent with Menzies' unlawful motivation, as much as if Menzies
had made the final decision by himself. Since I have no doubt that
Menzies was motivated in this matter by unlawful considerations,
I conclude that Respondent has violated 8(a) (4).
However, even if we accept the Trial Examiner's finding that Kniff
alone was responsible for the final decision to discharge Dopp, I never-
theless believe Respondent violated 8(a) (4), for, as we have seen,
unlawful considerations prompted Menzies to take the matter to Kniff
in the first place. See Allegheny Pepsi-Cola Bottling Company, 134
NLRB 338, 401, enfd. 312 F. 2d 529 (C.A. 3). Dopp's statement to
the Board was, therefore, in any event a contributing cause of her
discharge.
In sum, the Trial Examiner seems to me in effect to have overlooked
the legal significance of Menzies' admissions . While I agree that
Menzies told Dopp that her statement to the Board agent had nothing
TRU-SCALE PRODUCTS,' INC. 1125
to do with her discharge, I cannot agree that this disposes of the
8 (a) (4) allegation, or even that the Trial Examiner found that it did.
In my view, the Trial Examiner has not fully evaluated the 8(a) (4)
aspect of the case.
Accordingly, I would reverse the Trial Examiner and would sustain
the 8(a) (4) allegation and issue an appropriate remedial order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on August 2 , 1963 ,1 by International , Association of
Machinists (AFL-CIO), herein called the Union , the General Counsel of the Na-
tional Labor Relations Board , herein respectively called the General Counsel 2 and
the Board , through the Regional Director for the Twenty -first Region (Los Angeles,
California )., issued a complaint , dated November 6, 1963 , against Tru-Scale Products,
Inc., San Dimas, California, herein called Respondent , alleging that Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1), (3 ), and (4 ) and Section 2(6) and ( 7) of the National Labor Relations
Act, as amended from time to time, 61 Stat . 136, herein called the Act.
Copies of the charge , complaint, and notice of hearing were duly served upon
Respondent and copies of the complaint and notice of hearing were duly served
upon the Union.
Specifically , the complaint , as amended at the hearing , alleges that on or about
July 26 , 1963, Respondent discharged Mary Ann Dopp , and thereafter refused to
reinstate her because ( 1) of her activities and sympathies on behalf of the Union,
(2) she had engaged in protected concerted activities , and (3 ) she had given testi-
mony before an agent of the Board.
On November 14, Respondent duly filed an answer denying the commission of the
unfair labor practices alleged.
Pursuant to :due notice , a hearing was held on January 8, 1964 , at Los Angeles,
California , before Trial Examiner Howard Myers . The General Counsel was repre-
sented by counsel , the Respondent by an industrial relations consultant , and the
Union by an official thereof . Full and complete opportunity was afforded the parties
to call, examine , and cross-examine witnesses , to introduce evidence pertinent to the
issues, to argue orally at the conclusion of the taking of the evidence , and to file
briefs on or before January 28, 1964 . Briefs have been received from the General
Counsel and from Respondent which have been carefully considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS OPERATIONS
Respondent, a California corporation, has its principal offices and place of business
at San Dimas, California , where it is engaged in the manufacture , sale, and distribu-
tion of model road trackage and landscaping material . During the 12-month period
immediately preceding the issuance of the complaint herein, Respondent's
out-of-State shipments of finished products exceeded $50,000 in value . During the
same period , Respondent purchased goods and supplies amounting to more ,than
$50,000 in value from firms which , in turn , had purchased these same goods and
supplies directly from suppliers located outside the State of California.
Upon the basis of the foregoing facts, I find , in line with established Board author-
ity, that Respondent is engaged in, and at all times material was engaged in, business
affecting commerce within the meaning of Section 2(6) and (7) of the Act and that
its operations meet the standards fixed by the Board for the assertion of jurisdiction.
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
i Unless otherwise noted, all dates mentioned herein refer to 1963.
z This term specifically includes counsel for the General Counsel appearing at the
hearing.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharge of Mary Ann Dopp; the alleged
interference, restraint, and coercion
1. The pertinent facts 3
In August 1961, George Menzies, who was then production manager at Globe
Models, hired Dopp as a production worker for that firm. She was laid off for
lack of work in January 1962.
In April 1962, Menzies, who then was operations manager for Silver Streak
Corporation's La Verne plant, hired Dopp as a production worker for that plant?
In July 1962, the Union began organizing Silver Streak's employees.
On either July 27 or 28, 1962, shortly after the Union had filed a petition with
the Board seeking to be certified as the statutory collective-bargaining representative
of certain employees of Silver Streak, Menzies telephoned Dopp at her home and
asked her, .to quote from Menzie's credited testimony, "If she was on my side
[regarding the Union] . I told her that she and Velma Jackson were the, next
people I was considering for lead people." Menzies also told Dopp that if the
employees were unionized the plant would close because "Mr. Atheran 5 had a
great loss the previous year and could not afford to pay any more salary," and
therefore she should use her influence with her coworkers and have them forsake
the Union. Dopp informed Menzies that she favored having the Union in the plant
and hence could not do as Menzies had suggested. The conversation ended with
Menzies' request that Dopp keep said telephonic conversation confidential.
On the Wednesday following the telephone conversation referred to immediately
above, Menzies told Dopp that he wanted her to understand that anything he said
in said telephone conversation was in no means to be construed by her to be an
attempt by him to influence her vote in the forthcoming Board election.
On August 3, 1962, the Board-conducted election was held. The Union won the
election and on September 19, 1962, it was certified as the statutory collective-
bargaining representative for the employees in the appropriate unit.
In September 1962 Dopp and another female employee were laid off in anticipa-
tion of a plant shutdown.6
Within a week after Dopp was laid off by Silver Streak, Menzies telephoned a
friend of his and recommended that he hire Dopp because she was a good worker
on a "heavier job" but, was not so good on "small work" because the latter type of
work made her nervous.
Dopp was hired by Menzies' friend but only remained with him for about 2 weeks.
She left for a better paying job.
3 Certain evidence was adduced at the hearing relating to events occurring more than
6 months before the filing and service of the charge herein. Said evidence was received,
not as a basis for any finding of unfair labor practices as such, but solely for such effect
it might have in elucidating, evaluating, and explaining the character and quality of Re-
spondent's alleged illegal conduct after the cutoff date. It is well settled that Section
10(b) of the Act allows consideration of related acts transpiring prior to the statutory
limitation date for the purpose of throwing light on the specific conduct within the period
In Issue. Local Lodge No. 1424, International Association of Machinists v. N.L.R.B.
(Bryan Mfg. Co.), 362 U.S. 411 ; N.L.R.B. v. Sharples Chemicals, Inc., 209 F. 2d 645
(C.A. 6) ; N.L.R.B. v. Fredrica Clausen d/b/a Luzerne Hide & Tallow, 188 F. 2d 439
(C.A. 3) ; N.L.R.B. v. General Shoe Corporation, 192 F. 2d 504 (C.A. 6) ; Superior Engrav-
ing Company v. N.L.R.B., 183 F. 2d 783 (C.A. 7) ; N.L.R.B. v. White Construction and
Engineering Co., Inc., 204 F. 2d 950 (C.A. 5) ; N.L.R.B. v. Ozark Dam Constructors, et at.,
203 F. 2d 139 (C.A. 8) ; Banner Die Fixture Company, 109 NLRB 1401; Florida Tele-
phone Corporation, 88 NLRB 1429; Sun 'Oil Company, 89 NLRB 833. It is also well
settled that to prove Respondent had engaged in unfair labor practices it must be shown
that the acts and conduct relied upon occurred within the 6-month period or extended into
said period. Joanna Cotton Mills Co. v. N.L.R.B., 176 F. 2d 749 (C.A. 4) ; Stewart
Warner Corp. v. N.L.R.B., 194 F. 2d 207 (C.A. 4) ; Superior Engraving Company v.
N.L.R.B., supra; Universal Oil Products Company, 108 NLRB 68.
4 The record indicates that Globe Models and Silver Streak were in some manner affili-
ated with each other.
5 Presumably the head of Silver Streak.
s Globe Models, Silver Streak, and Respondent, at all times material, manufactured so-
called Christmas items and hence their businesses were seasonal. The busy seasons of
these firms usually ended in the early fall.
TRU-SCALE PRODUCTS, INC. 1127
On January 31, 1963, the Union filed an unfair labor practice charge with the
Board against Silver Streak alleging, among other things, that Dopp , Velma Jackson,
and numerous other employees had been discriminatorily discharged . On April 30,
the said charge was dismissed.
In February , during the investigation of the aforementioned charge, Dopp related
her July 1962 telephone conversation with Menzies to an agent of the Board, and
submitted an affidavit with respect thereto.
Dopp was employed as a production worker by Respondent in May 1963, under
the supervision of Plant Supervisor Mark Kimmelman . After working 2 weeks
she received a 10-cent-per -hour increase . In fact , the record discloses , and I find,
that at no time did Dopp receive any complaint about her work.?
Dopp and Velma Jackson, who had been rehired by Respondent in April8 and
who had worked with Dopp at Silver Streak during Dopp 's employment there, were
quite close friends both at Silver Streak and at Respondent , until July, when their
friendship cooled. The cause of this coolness was due solely to Dopp's numerous
unflattering and sarcastic remarks to Jackson , most of them being made in the
presence of other employees , about Jackson 's newly acquired eyeglasses , Jackson's
manner of dress, and about Jackson 's workmanship . These remarks Jackson con-
sidered uncalled for, and in fact, made her very nervous. Jackson testified, and I
credit her testimony , that because of Dopp 's uncalled-for remarks during working
hours, she , on many occasions , would return home in such a nervous state that
her husband advised her to either see to it that Dopp discontinue her remarks or
she should quit her job.
On July 25, Dopp had an argument at work with Jackson . The cause of the
argument was Dopp's oft-repeated unflattering and sarcastic remarks to Jackson.
This time Jackson retorted by calling Dopp a troublemaker.
When Jackson arrived at her home that afternoon, July 25, accompanied by one
of her coworkers , Dopp was there waiting for her. The argument between Dopp
and Jackson , related immediately above, was renewed and became more heated;
that is, Dopp demanding to know what Jackson meant by calling her a trouble-
maker and Jackson explaining.
That evening , July 25, Jackson telephoned Menzies and told him that for a long
time Dopp "has been picking" on her ; had been making remarks about her eye-
glasses; had been making remarks about the manner in which she cleaned her work
area; had been making remarks about her starting work before the appointed time.
Jackson then advised Menzies that Dopp 's remarks and actions , to quote from
Menzies' credited testimony , made "her very nervous" and she could not do her
work "properly , she was having difficulty sleeping and . the main reason she
had called me that day was that [ Dopp ] had followed her home that day and
started or continued [ the] argument" which the two•had in the plant early that day.
This telephone conversation concluded when Menzies advised Jackson that he would
see what could be done about the matter.
Menzies credibly testified that he had no intention of taking any action against
Dopp based upon Jackson's report ; that he changed his mind, however, when upon
arriving at work the next morning, July 26, George Mangrum , Respondent's wood-
shop superintendent , told him that Dopp had been causing trouble in the plant; that
since he had only been working for Respondent for 4 days he thought he would
submit the Jackson-Dopp affair and Mangrum 's report to Vice President and Gen-
eral Manager August Kniff 9 and seek his advice ; that he thereupon went to Kniff's
office and related to Kniff the Jackson and Mangrum complaints ; and that Kniff
stated, "We have a big program going this year and we don't want people in the
plant making trouble , so let's get rid of her."
That afternoon , July 26, Menzies called Dopp into the office he shares with Kniff
and discharged her. During this termination meeting some discussion was had about
Dopp informing a Board agent, during the investigation of the Union's January
1963 unfair labor practice charge against Silver Streak, about the aforementioned
Menzies-Dopp telephone conversation which took place just prior to the Board-
conducted election at Silver Streak . The record is not clear as to who first brought
up this topic. The record , however, is very clear , and I find , that Menzies assured
7 Dopp's workmanship is not in issue.
8 Jackson was first employed by Respondent or its predecessor in 1956. She worked for
Respondent or its predecessor for four seasons ; part of such employment was when
Menzies was plant superintendent of the Respondent's predecessor.
9 Kniff formerly owned, under a sole proprietorship , Respondent and Menzies was at one
time his plant superintendent.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dopp at that time that her union activities played no part in Respondent's decision
to discharge her and neither did the fact that she had related to a Board agent the
statements he made in his July 1962 telephone conversation with her.
2. Concluding findings
Upon the entire record in the case , I find that the allegations of the complaint
that Respondent violated Section 8 (a)(1), (3), and (4) of the Act by discharging
Popp on July 26, are not supported by substantial evidence . This finding becomes
inescapable when consideration is given to the fact that the credible evidence clearly
establishes (1) a total lack of any antipathy by Respondent to the Union or to any
other labor organization ; ( 2) a complete lack of union antipathy by Kniff, the per-
son who decided to discharge Dopp ; (3) no evidence whatsoever that Kniff knew
that Dopp was or had been a member of any labor organization ; (4) no activity
by the Union or any other labor organization in Respondent 's plant at any time;
(5) Menzies securing a job for Dopp at a friend 's plant within a week after Dopp's
September 1962 Silver Streak layoff; (6) the only union activities by Dopp were
^(a) signing a union -authorization card in July 1962, while employed at Silver Streak,
and (b) attending one union meeting in July or August 1962. Accordingly, it is
recommended that the complaint be dismissed in its entirety.
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. Tru-Scale Products , Inc., San Dimas , California , is engaged in, and during
all times material was engaged in, commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. International Association of Machinists, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent has engaged in and is en-
gaging in unfair labor practices , within the meaning of Section 8(a)(1), (3), and
'(4) of the Act , have not been sustained.
RECOMMENDED ORDER
It is recommended , upon the basis of the foregoing findings of fact and conclu-
sions of law and upon the record as a whole, that the complaint be dismissed in its
entirety.
Local 559, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Anopolsky & Son,
Inc. Cases Nos. 1-CC-368 and 1-CC-370. June 29, 1964
SUPPLEMENTAL DECISIONS AND AMENDED ORDER
On December 30, 1963, the Board issued a Decision and Order 1
finding that Respondent had engaged in consumer picketing at second-
ary establishments. Relying on Fruit & Vegetable Packers & Ware-
4ousemen, Local 760 (Tree Fruits), 132 NLRB 1172, 1177, the Board
concluded that Respondent had thereby violated Section 8(b) (4) (ii)
(B) of the Act. The Board also found that Respondent violated
Section 8 (b) (4) (i) and (ii) (A) by engaging in a strike and picketing
with an object of forcing or requiring Anopolsky & Son, Inc., to enter
into an agreement proscribed by Section 8(e). On April 20, 1964,
1145 NLRB 722.
147 NLRB No. 152.