Universal Cigar Corp.

National Labor Relations Board - Board Decisions

Nov 19, 1968

173 N.L.R.B. 865 (N.L.R.B. 1968)

UNIVERSAL CIGAR CORP.
Universal Cigar Corporation and The Cigar Makers
International Union, AFL-CIO. Case 12-CA-
3985(1-2)
November 19, 1968
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On June 20, 1968, Trial Examiner W. Edwin
Youngblood issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the General Counsel and the Respondent
filed exceptions to the Trial Examiner's Decision
together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner, as modified herein.
The Trial Examiner found that the Respondent did
not violate Section 8(a)(3) and (1) of the Act by
discharging James E. Townsend, Jr., for passing out a
union card in violation of a valid no-solicitation rule.
Although it is undisputed that Townsend violated the
rule, it is our opinion that the Respondent discrim-
inatorily applied the rule when Townsend was dis-
charged on October 20, 1967.
The Respondent promulgated the no-solicitation
rule in October 1966, after an unsuccessful union
organizing campaign. Since that time, many violations
of the rule have occurred. Vegetables were sold in
July 1967, during working time and with the approval
of supervisor Nolin. Stockings were modeled in the
wrapper loosening department sometime in 1967.
1 Footnote 8 is amended as follows: Although Todd was listed as a
member of the 1967 organizing committee , he was not actually on the
committee.
2 These findings and conclusions are based , in part , upon credibility
determinations of the Trial Examiner , to which the Respondent has
excepted . Having carefully reviewed the record , we conclude that the
865
That same year cookies were sold in the packing
departments. In November 1967, a memorandum was
circulated in the packing department asking for
money for Christmas presents. There was a passing of
a "flower-pot" fund on company time. Supervisor
Nolin had engaged in selling Avon cosmetics and
admitted that some employees paid her on Company
time by means of putting money in her pocket as she
walked by. None of the employees involved in these
incidents was discharged or reprimanded although it is
apparent that supervisors with the authority to hire
and fire knew of them.
It was not until the Townsend incident occurred in
the midst of the renewed union compaign which
began in July 1967, that the Employer saw fit to
invoke the no-solicitation rule. The Employer dis-
charged Townsend without warning and without
discussing the incident with him prior to making the
decision to fire him.3
We are therefore convinced that the record as a
whole established disparate treatment against Town-
send, and that his dismissal for violating the no-
solicitation rule was merely a pretext.
THE REMEDY
Having found that the Respondent, Universal Cigar
Corporation, has engaged in violations of Section
8(a)(3) and (1) of the Act, it will be ordered to cease
and desist from the unfair labor practices found and
from in any other manner infringing upon the
statutory rights of its employees, offer Tellis Smith
and James E. Townsend, Jr., immediate, full, and
unconditional employment in their former jobs or
substantially equivalent positions of employment
without prejudice to their seniority or other rights
and privileges, and reimburse them for any loss of pay
suffered as a result of the discrimination against them
in the manner set forth in F. W. Woolworth Com-
pany, 90 NLRB 289, 291-293, and Isis Plumbing &
Heating Co., 138 NLRB 716; and post appropriate
notices.
CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's Conclusion
of Law except for paragraph 4, for which we make
the following substitution:
4. By discharging James Townsend on October 20,
1967, the Respondent violated Section 8(a)(3) and
(1) of the Act.
Trial Examiner's credibility findings are not contrary to the clear
preponderance of all the relevant evidence . Accordingly , we find no
basis for disturbing those findings. Standard Dry Wall Products, Inc., 91
NLRB 544, enfd . 188 F.2d 362 (C.A. 2).
3 See Talon, Inc., 170 NLRB No. 42.
173 NLRB No. 129
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders that
the Respondent, Universal Cigar Corporation, Clear-
water, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein modified:
1. Amend paragraph 2(a) to read: Offer to Tellis
Smith and James Townsend ... and make them
whole for any loss of pay suffered by them in the
manner set forth in the above section entitled "The
Remedy."
2. Amend paragraph 2(b) to read: " ... above-
named employees ... of their right ...."
3. Delete the recommendation of the dismissal of
the amended complaint insofar as it alleges Respond-
ent violated the Act by the discharge of James
Townsend.
4. Modify the notice attached to the Trial Exam-
iner's Decision by:
(a) Substituting the following for the third in-
dented paragraph:
WE WILL offer to Tellis Smith and James E.
Townsend, Jr., employment in their former jobs or
substantially equivalent positions of employment
without loss of any seniority or other rights and we
will make them whole for any loss of pay they may
have suffered by reason of the discrimination
against them.
(b) Substitute the following for the Note
Note: We will notify the above-named employees,
if presently serving in the Armed Forces of the
United States, of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
(c) Correct the telephone number to read
228-7711.
MEMBER ZAGORIA , dissenting in part:
For essentially the reasons relied on by the Trial
Examiner, I would not find that the Respondent's
discharge of Townsend was unlawful. As the Trial
Examiner points out, the instances of solicitation in
violation of the rule known to the Respondent's
supervisors were minimal.
In addition, as I have indicated in other cases,4 I do
not believe that an employer who permits limited
work-time solicitation which is unrelated to union or
concerted activity thereby forfeits his right to main-
tain and enforce in a nondiscriminatory manner a rule
barring solicitation which is related to union or
concerted activities. The solicitation on which my
colleagues rely to support their conclusion of dis-
parate treatment was limited in nature and clearly
unrelated to union or concerted activities.
In all the circumstances, I am not persuaded that
there is a preponderance of the evidence to establish
that Townsend was discharged for any reason other
than his violation of a lawfully maintained and
lawfully enforced no-solicitation rule. I would there-
fore adopt the Trial Examiner's Decision without
modification.
4 E.g. Saco-Lowell Shops, a Division ofMaremont Corporation, 169
NLRB No. 151 , Marlene Industries Corporation , 166 NLRB No . 58, and
Gooch Packing Company, 162 NLRB No. 2.
TRIAL EXAMINER'S DECISION
W. EDWIN YOUNGBLOOD , Trial Examiner. The complaint',
as amended on January 8, 1968, alleges that Universal Cigar
Corporation, herein called Respondent or the Company,
violated Section 8(a)(1) of the Act by the conduct of Foreman
Charles Pursser in interrogating an employee about union
activities and violated Section 8(a)(3) of the Act by (a)
refusing to recall Tellis Smith since about July 10, 1967 and
(b) discharging James E. Townsend, Jr., on October 20, 1967.
I conducted a hearing in Tampa, Florida on March 25, 26,
and 27, 1968. At the conclusion of the hearing, the General
Counsel and Respondent made oral statements of position and
since the hearing I have received briefs from the General
Counsel and the Respondent. Respondent's motion to dismiss
the complaint upon which I reserved the ruling at the
conclusion of the hearing is disposed of in accordance with the
findings and conclusions set forth herein.
Upon the entire record,2 including my evaluation of the
witnesses based on the evidence and my observation of their
demeanor, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, is engaged at
Clearwater, Florida, in the manufacture, sale, and distribution
of cigars, and during the 12 months preceding issuance of the
complaint, shipped cigars valued in excess of $50,000 from
Clearwater to points directly outside the State of Florida.
Upon these admitted facts, I find that Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act.
1 Issued December 19, 1967, upon charges filed October 11, 1967,
and October 27, 1967, by the Cigar Makers International Union,
AFL-CIO, herein called the Union.
2 I am in receipt of a motion to correct the record filed by the
General Counsel . Respondent objects to certain portions of the motion
on the ground that they make material alterations in the substance of
the record . The proposed changes conform to their context in the
record or to my recollection of the testimony . Accordingly, the motion
is granted with the following qualification: I note regarding the
proposed change on page 110, line 9 that the motion is obviously
erroneous . There is no word "she" to change to "he" but there is the
word "he" to change to "she." Therefore the word "he" is corrected to
read "she." In addition, I noted and corrected errors in the record.
UNIVERSAL CIGAR CORP. 867
II THE LABOR ORGANIZATION INVOLVED
John P. McGivern (staff organizer for the Union) credibly
testified that the Union admits employees to membership and
bargains collectively with employers for employees regarding
wages and working conditions. Accordingly, I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Interrogation of Todd
Frank Todd testified that he worked under the immediate
supervision of Foreman Charles Pursser as a wrapper wetter.
Todd had many conversations with Pursser about the Union,
most of which occurred in the last part of 1967. In these
conversations Pursser asked Todd if he thought the unions
were very strong and if he thought "it might come in
sometime ..." Pursser also asked Todd if he knew which way
some employees were going. For example, Pursser asked Todd
regarding a newly hired employee named Sherrel Cutts if he
thought Cutts was with the Union. Pursser also asked Todd if
he thought an employee named Melvin Banks was for the
Union.3
I find in context with the other unfair labor practices found
herein that Pursser coercively interrogated Todd in violation of
Section 8(a)(1) of the Act.
B. The Failure To Recall Smith
Tellis Smith worked for Respondent about 12 years in all
departments. Smith was well-known to Respondent as a strong
union adherent having been named in a wire to Respondent
dated May 19, 1966, as one of the seven employees who were
active members of the Union in its campaign to organize
Respondent's workers. Smith served as an observer for the
Union in the Board conducted election in August 1966 which
the Union lost. Shortly before entering the hospital on April
18, 1967, for tests, Smith talked to Floorlady Zenotia Nolin,
an admitted supervisor within the meaning of the Act, about
her expected entry into the hospital. Smith was "scared to
take the operation" and Nolin told her to "trust God" and she
would be all right and further Nolin told Smith that she did
not have anything to worry about and that her job would be
waiting for her when she came out and was able to go back to
work 4 After the tests were completed, Smith returned to
work for a few days and then reentered the hospital on May 1,
1967, for an operation-a hysterectomy. She had her final
check-up on June 3 and her physician advised that she could
return to work on June 5, that she was "okay." On Sunday
night, Smith telephoned Nohn to tell her that she was ready to
go back to work. Nolin at first told Smith to come in on
Monday, then Nohn asked if Smith had a release. Smith replied
that she did not and Nolin told her that the Company had new
rules and Smith would have to have a release. Smith said that
she would go get one on Monday and come in Tuesday and
Nolin said "all right." On Tuesday Smith went to the factory
and told Nolin that she had the release. Nohn then told Smith
that there was not anything to do-"there wasn't very much
work" and asked Smith if she would stay off till after vacation.
Nolin told Smith that she would be called back to work after
the vacation.5 Nolin suggested that Smith try to get her
unemployment pay but Smith told Nolin that she would rather
have her vacation and then try to draw unemployment. On the
same day, Smith talked to Pursser who told her that he would
like to have her work for him, that she was a good worker.
Smith gave the medical release to Sandra Bergman, an office
employee who does payroll and insurance work for Respond-
ent. Bergman told Smith that she could not draw unemploy-
ment because she was still on the payroll. Bergman also advised
that they would call Smith and tell her whether or not she
would draw her vacation pay but they never called Smith
On September 21, 1967, Smith went to the factory seeking
work and was permitted to fill out an application. Smith
returned to the factory on September 28, and talked to
Morton Goldstein, Respondent's vice president and manager of
shipping and receiving department, about going to work.
Goldstein told her that they did not have anything to do, that
he had her application on file and as soon as they had some
empty stripping machines he would call her. Smith was never
returned to work by Respondent.6
The Union reactivated its organizational campaign in
earnest at Respondent's factory in July 1967 and held fairly
regular meetings with employees and handbilled the factory.
Smith signed a union card in July. About November 1, 1967,
Respondent was notified the names of the 1967 organizing
committee-only one person was listed on this committee who
had been on the 1966 organizational committee-Frank
Todd.7
Todd testified regarding this matter that for 2-3 days
"everybody" seemed very unfriendly. About this time Todd
had a conversation with Melvin Banks who advised him that his
name was listed on the Union committee Todd stated that it
was not supposed to be and asked Pursser about it because he
wanted to know what was the matter with everybody.' Pursser
said that he did not know but would find out. A short time
later, Pursser returned and confirmed to Todd that his name
was on the letter to Respondent. Todd then stated that he
wanted to see John Cueva, Respondent's factory superintend-
ent. Cueva and Todd had a conversation about the matter and
Cueva, too, confirmed that Todd's name was on the letter.
Later Eloy Vega, Respondent's vice president and general
manager, came to see Todd and told Todd that he had heard
from Cueva that Todd did not want to be on the committee.
Todd said that he wanted to know how to get off the
committee and Vega advised him to write the Union and ask
them to withdraw his name. Todd never did write the letter.
Several times after this Pursser asked Todd if he had written
the letter and Todd replied in the negative and asked Pursser if
he would write it. Pursser left and returned shortly and stated
that he could not write it and suggested to Todd that he get his
3The foregoing is based on the credited testimony of Todd. To the
extent that Pursser's testimony is at variance with the foregoing it is not
credited.
4Tellis Smith 's daughter-in-law was present during this conversation
and corroborates Smith 's testimony . Nolin admitted telling Smith when
Smith told her of the impending operation that Smith would be back to
work.
5Respondent usually experiences a slack period in the summer and
was shut down for two weeks for vacation in the summer of 1967.
Thirty-five employees were laid off on June 23 and the factory
reopened July 10, 1967.
6The foregoing is based on the credited testimony of Smith except
as otherwise indicated.
7The foregoing is based on the credited testimony of McGivern.
8 Todd was not on the 1967 organizing committee.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wife to write it. Pursser told Todd that if he did not write the
letter Vega would be "very, very unhappy," and would think
that Todd worked for the Union.
Some time after Labor Day, Smith's husband, Burie Smith,
who was also an employee of Respondent and worked under
Pursser, asked Pursser when his wife was coming back to work.
Pursser replied that he would like to have Mrs. Smith back at
work and said that he had talked it over with John Cueva
(Respondent's factory superintendent). Cueva told Pursser that
they were not going to hire any more girls right then and
Pursser would have to make out with what he had.' o
During the fall of 1967 about 6 or 7 weeks after the
vacation ended on July 10, Frank Todd heard some of the girls
asking Pursser when Smith was coming back to work and if she
was coming back and Pursser replied that he did not know but
that he would be glad to have her back.' 1
As noted above, the General Counsel alleged in his
complaint that Respondent has since July 10, 1967, failed and
refused to recall Smith because of her union acitivites. It is
conceded by Respondent that Smith sought employment with
Respondent approximately July 20-25, 1967. We turn now to
Respondent's defense to this allegation.
A pretrial conference was held at which the attorneys stated
their positions regarding the issues in this case. Early in the
hearing, Morton Goldstein testified that as far as he knew
Smith's physical condition had nothing to do with Respond-
ent's failure to recall her to work. At that point, I stated to
Respondent's attorney, Mr. Rock, that I had understood from
our pretrial conference that the reason Smith was not recalled
as far as Respondent was concerned was her physical con-
dition. I inquired if that was correct and Rock stated that it
was. Rock added that unsatisfactory work resulted from
inability to peform work and Smith's physical condition was
such that she could not perform the work in the position she
had held. When it later appeared during the hearing that an
issue might be developing as to lack of work being the reason
for Respondent's failure to recall Smith, I stated that I had
understood that the reason she was not recalled was due to a
physical condition. Respondent's attorney then stated that was
"essentially Respondent's position" but that issues might come
out during the hearing that neither side was aware of prior to
going into a hearing, and he would not want to "preclude"
himself. I then inquired if it was Respondent's position that
Smith was not recalled not only because of health but also
because of lack of work. Mr. Rock stated that tied in with the
overall situation and further replied that lack of work would
have a bearing on Respondent's defense. Rock also stating that
even assuming a normal work load, Smith would not have been
hired because she could not do the work she formerly did.
Rock then stated that she would not have been recalled
because of lack of work at least up to the start of the
Christmas rush. Rock agreed that Respondent did hire
employees in September or October 1967 to perform work
which was of the same type that Smith had performed.
9The foregoing is based on the credited testimony of Todd. Pursser
confirmed that he talked with Todd in the fall of 1967 about a letter to
the Union to get Todd's name off the committee list. To the extent that
Pursser's testimony is at variance with that of Todd it is not credited.
The General Counsel does not contend that the foregoing constitutes
independent evidence of unfair labor practices ; it is offered insofar as it
has bearing on the motivation for the discrimination with respect to
Smith.
Goldstein testified in support of Respondent's defense that
both Pursser and Nolin had complained to him about the
quality of Smith's work. Several employees testified that
Smith had a nervous difficulty, that Nolin had trouble with her
work, and also that Smith was wasteful. In fact, Nolin testified
that Smith was transferred from her department (stripping) to
Pursser's department (processing) in January 1967 because of
waste in connection with her work. Nolin testified that she
talked with Smith "time and time again" about her waste in
removing the stems from leaves. Nolin further testified that
although Smith was able to meet her quota on the P. L. filler
which was based on an hourly rate and could meet the
production quota on Pennsylvania tobacco, she could not meet
the quota on wrapper tobacco.
Pursser testified that Smith was nervous and broke leaves of
tobacco and that he corrected her "several" times about that.
When queried about how many times he talked with Smith,
Pursser testified "3 or 4 times a day, sometimes." Later when
recalled as a witness , Pursser testified that he talked with
Smith about her nervousness "about 3 times" between January
and March 1967. Pursser also testified that Smith was an
unsatisfactory worker in his department and that he told
Smith she was not an average worker "3 or 4 times a day,
sometimes" in 1967. Further, Pursser testified that Smith
worked in his department some in 1966 and he talked to her
then about her work, and also talked to her in 1965 about her
work.
On the other hand, Smith denied that Nolin had ever talked
to her about waste and further denied that Pursser had ever
said anything to her individually about leaves, or talked to her
about nervousness. Also, Smith denied that Nolin had ever
criticized her work. Smith impressed me as an honest,
forthright witness. On the other hand, Pursser made a
singularly unimpressive witness both as to demeanor and his
vague and contradictory testimony. Nor did I find Nolin to be
an impressive witness. I note also that Pursser admitted on
cross-examination that the reason he did not consider Smith
for hire when Helen Chasen was employed on October 9,
1967,, was because he thought Smith was still under the
doctor's care. I note further Pursser's statements to Bune
Smith and other employees that he would like to have Tellis
Smith come back to work. Then too, it is clear from the
testimony that Nolm told Smith before her operation that her
job would be waiting for her when she was able to come back
to work. All the foregoing statements by Pursser and Nolin are
clearly inconsistent with their other testimony that Smith was
an unsatisfactory employee unworthy of rehire. Accordingly,
I, credit Smith's testimony and reject the contrary testimony
of Pursser and Nolin.
It is apparent from the foregoing credited testimony that
Smith was a satisfactory employee to both her supervisors with
some 12 years experience at Respondent's factory; never-
theless Respondent did not recall her after the operation.
Obviously it was not because of her work or physical condition
10The foregoing is based upon the credited testimony of Burie
Smith. Pursser , when asked about this conversation , at first firmly
denied that it had occurred. When shown his Board affidavit , he finally
did recall the conversation and further affirmed that he did consider
Smith for employment and did not recall her only because he thought
she was still under a doctor's care.
"The foregoing is based on Todd's credited and undenied
testimony.
UNIVERSAL CIGAR CORP.
and I must reject Respondent's defense based on the quality of
her work or her physical condition as pretextual. In con-
nection with the defense related to lack of work, I note that
Respondent employed a person in the classification of stripper
in July 1967 (G.C. Exh 4) which was work that Smith had
satisfactorily performed. Subsequently, in August and
September and later Respondent employed a number of
strippers including stripper-learners without offering employ-
ment to Smith. In addition, other employees were hired in
classifications where Smith had worked. It is apparent that
lack of work was not the reason Respondent failed to recall
Smith. Why then was Smith not recalled?
It is clear from the record that Respondent was strongly
opposed to attempted organization of its employees by the
Union. Thus, I note Pursser's interrogation of Todd about
employees' union activities in an effort to determine the
strength of the Union and the union sympathies of certain
employees, Pursser's statement to Todd that Vega would be
unhappy if Todd did not write the Union to withdraw his
name as a union organizer, and Respondent's letter to its
employees (G.C. Exh 3) which is highly critical of the Union.
Smith's strong adherence to the Union and leading activities on
behalf of the Union renewed its efforts to organize Respond-
ent's employees and cards were signed, meetings were held and
Respondent's plant was handbilled Commencing in July and
continuing thereafter openings for which Smith was qualified
occurred but Respondent did not recall her. It is clear that
Respondent's asserted reasons for failure to recall Smith were
mere pretexts and not the real reason for its action. Under all
the foregoing circumstances, including the shifting nature of
Respondent's defenses, I believe and find that the real reason
for Respondent's failure to recall Smith was her known strong
allegiance to the Union. I therefore find that Respondent
discriminatorily refused to recall Smith on July 21, 1967, and
thereafter because of her union activities and did thereby
violate Section 8(a)(3) and (1) of the Act.
C. The Discharge of Townsend
The complaint alleges that Respondent violated the Act by
discharging James E. Townsend, Jr. It is conceded by the
General Counsel that Townsend violated Respondent's valid no
solicitation rule which was instituted in October 1966. The
rule reads as follows.
OUTSIDE BUSINESS EMPLOYEES SHALL NOT SOLICIT MEM-
BERSHIPS, OR SUBSCRIPTIONS FOR ANY PUBLIC OR
PRIVATE ENTERPRISE NOR SHALL MONEY BE COLLECTED
OR ACCEPTED FOR PLEDGES, MEMBERSHIPS , SUBSCRIP-
TIONS, OR ADMISSIONS TO ANY PUBLIC OR PRIVATE
ENTERPRISE OR FOR GIFTS OF ANY NATURE ON COMPANY
TIME WITHOUT THE CONSENT OF THE MANAGEMENT.
CIRCULATION OR PASSING OF ANY PETITIONS OR NOTICES
AMONG EMPLOYEES (ONE TO ANOTHER) IS PROHIBITED.
EMPLOYEES ARE NOT ALLOWED TO LOAN OR COLLECT
MONEY OR TO SELL OR BUY ITEMS OF PERSONAL PROP-
ERTY ON COMPANY TIME
Townsend was discharged on October 20, 1967. The General
Counsel contends, however, that Respondent treated
Townsend's violation of the rule differently than it did other
employees who violated the rule or put another way that
Townsend received disparate treatment and his violation of the
rule was a mere pretext and the real reason for his discharge
was umon activities. The issue then is whether General Counsel
has established disparate treatment. General Counsel in his
869
brief details the other instances of solicitation upon which he
relies. We turn to the testimony in support of this contention.
Frank Todd testified that he has seen collard green and
tomatoes sold on Company time. Todd stated that some time
after the vacation of July 1967 Supervisor Nolin came by and
told him that Mae Norton was selling tomatoes and asked him
if wanted any. This was about 11 a.m. and not on a lunch
break. Todd then went out and bought some tomatoes. Todd
testified that he and other employees would pick up the
tomatoes the next day on the back porch after they clocked in
in the morning. Todd stated that Pursser knew of this activity
and testified about a time when he and Pursser went out on
the porch one morning and moved some collard greens in order
to get to some tobacco. Another instance of solicitation relied
upon by the General Counsel occurred when an employee
identified only as "Granny" asked Todd on Company time to
buy some collard greens. This happened in October or
November of 1967. Another instance occurred when Todd and
others were loosening wrapper and a female employee named
Thomas came in wearing some stockings and said that Nolin
had sent her in to show them the stockings This was in 1967
sometime.
Frank James was an employee from August to late
November or early December 1967 and testified that he saw a
lady selling cookies (he could not identify her) but it is unclear
whether this was on Company time or not. James placed the
incident in the packing department in 1967 while he was
employed but without further specificity as to time and date.
James also testified that he saw a memo sent around on
Company time by two ladies in the packing department-one
named Maisel Tarr and the other unidentified-asking for
money for Christmas presents for his supervisor-Serefino and
another employee named Albert.
Alma Reynolds testified that her immediate supervisor was
Mrs. Nolin. Reynolds testified that she saw a flower pot passed
around on Company time on more than one occasion to
collect money for employees who were sick or employees who
had died. This was placed as occurring in 1967. Reynolds also
testified that Nolin sold Avon products on Company time in
1967 on more than one occasion but could not recall what
month in 1967 this occurred. On cross-examination Reynolds
admitted that any products she bought from Nolin were
already placed on her machine when she reported to work.
Reynolds also admitted that she paid Nohn for products
before she began her work. Further, Reynolds testified that
Nohn announced to employees in the stripping department
that collections for flower funds on Company time would have
to be stopped. This was sometime after October 26, 1967.
Reynolds also admitted that she had heard that Nolin had said
that she would not be able to take orders and deliver and
collect for Avon products on Company time.
Nolin testified that she advised her employees that the
flower pot fund was canceled at a time which was some 8-10
months before the hearing of this case. Nolen testified that she
herself did not sell Avon products but had accepted orders for
a friend. Nolin further testified that she told her employees in
November 1966 that if they wanted Avon products they
would have to tell her on their time or call her at home. Nohn
stated that she has accepted orders for Avon products recently
from employees when they start to leave work or at lunch
time. She has delivered Avon products to employees' houses
and placed them at employees ' machines at noon time or early
in the morning before she goes to work. Nolin stated that she
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had accepted money from employees for Avon products at
lunch time or in the evening or at her home. Further, Nohn
stated that she asked Vega's permission to sell Avon products
but that Vega inposed the condition in November 1966 that
she would have to restrict it to non-worktime. She then
cautioned the employees to that effect. Nolen also testified
that she had not seen any collections for flower funds recently
on Company time.
Nolin testified that a memo directed to supervisors was
posted in her department this past Christmas of 1967 where
employees could see it. This memo (Resp. Exh. 6) relates to
the exchange of Christmas gifts by employees and states also
there should be no collections of money on working time or
exchange of gifts on work time. Nolin denied ever receiving
money for Avon products on Company time but did admit
after being shown her Board affidavit that once in a while
employees hand money to her as they are working and as she
walks by. This has occurred since Vega spoke to her.
Juan Cueva testified that employees asked him in the fall of
1967 if gifts would be exchanged at Christmas time. He told
them he would have to take it up with Vega which he did. Two
or three days after he talked to Vega the memo referred to
above was posted. Vega testified that the 1966 rules did not
prohibit employees from exchanging gifts. Respondent had
approximately 352 employees in its factory at the time of the
hearing. Vega testified that when he found out about 2 years
ago that Nolin was selling Avon products he stopped it.
The General Counsel has adduced some vague and indefinite
evidence of scattered instances of solicitation on Company
time since the rule went into effect in October 1966. But there
were only a few instances established by the evidence that
were shown to be known to supervisors. Of course, the Board
has often held that knowledge of supervisors may be imputed
to respondents. But here the only instances of solicitation or
collecting money on Company time shown to be known to
supervisors were those involving Nolin. These instances
violated the rule but there is no evidence that Vega or
Goldstein were aware of it. I do not believe that the fact that a
supervisor personally interested in solicitation violates a
Company rule against solicitation a few times in a factory of
352 employees is sufficient to show condonation by the
Company of breach of the rules or disparate treatment. Nor do
I believe the few instances of the circulation of the flower pot
on Company time or the single instance of the circulation of
the memo relating to Christmas presents are evidence of such
widespread violations of the rule as to require a different
result.' 2 I am also unable to attach the significance General
Counsel seeks to Vega's memo to supervisors. I am satisfied
that the memo was wrtiten because of the concern expressed
to Cueva by employees over the exchange of Christmas gifts
which was reported to Vega. I am persuaded from the record
that Vega was interested in enforcing the Company's rule
against solicitation on Company time whether the solicitation
involved Avon products, Christmas gifts or union activities. In
short, I cannot find on this record that Respondent discrunina-
torily applied its no solicitation rule to Townsend.13
Accordingly, I shall recommend the dismissal of this allegation.
THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
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.
THE REMEDY
The Recommended Order will contain the conventional
provisions entered in cases of this kind involving discrim-
ination in violation of Section 8(a)(3) and (1) of the Act:
Cease and desist from the unfair labor practices found and
from in any other manner infringing upon the statutory rights
of its employees, offer Tellis Smith immediate, full, and
unconditional employment in her former job or substantially
equivalent position or employment without prejudice to her
seniority or other rights and privileges, and reimburse her for
any loss of pay suffered as a result of the discrimination
against her in the manner set forth in F. W. Woolworth, 90
NLRB 289, 291-293 and Isis Plumbing & Heating Co., 138
NLRB 716; and post appropriate notices.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discouraging membership in a labor organization
through discrimination in employment and by interfering with,
restraining and coercing employees in the exercise of their
rights under the Act, Respondent has engaged in and is
engaging in unfair labor practices affecting commerce within
the meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act.
4. Respondent has not, as alleged in the complaint, violated
the Act by the discharge of James E. Townsend, Jr.
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 Respondent , Universal Cigar Corporation, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Cigar Makers Inter-
national Union , AFL-CIO, or in any other labor organization
of their employees by refusing to recall any employee or in
any other manner discriminating in regard to hire or tenure of
employment or any term or condition of employment.
i2Cf. Taylor Instrument Company, 165 NLRB No. 83. General Counsel was more than minimal involving conversations
13 In view of this finding , I cannot attach the significance General between Townsend and the employee solicitated (Martin) on two
Counsel desires to his argument that Townsend 's interference with different occasions , and also the solicitation herein unlike that in Taylor
Respondent 's work processes was minimal . In any event , I note that the was admittedly violative of Respondent 's rule.
interference herein unlike that in the Taylor case, supra, relied on by the
UNIVERSAL CIGAR CORP
(b) Interrogating employees with respect to their union
activities
(c) In any other manner interfering with, restraining or
coercing employees in the exercise of their rights under
Section 7 of the Act
2 Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Offer to Tellis Smith immediate, full and unconditional
employment in her former job or substantially equivalent
position of employment without prejudice to her seniority or
other rights and privileges and make her whole for any loss of
pay suffered by her in the manner set forth in the section
entitled "The Remedy "
(b) Notify the above-named employee if presently serving
in the Armed Forces of the United States of her right to full
employment upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces
(c) Upon request make available to the Board and its agents
for examination and copying all payroll and other records
containing information concerning Respondent's backpay
obligation under this Recommended Order
(d) Post at its factory at Clearwater, Florida, copies of the
notice attached hereto marked "Appendix "14 Copies of said
notice on forms furnished by the Regional Director of Region
12 after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately upon
receipt thereof and 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 by Respondent to insure that
said notices are not altered, defaced or covered by any other
material
(e) Notify the Regional Director for Region 12, in writing,
within 20 days of the receipt of this Decision, what steps
Respondent has taken to comply herewith 15
I FURTHER RECOMMEND the dismissal of the amended
complaint insofar as it alleges Respondent violated the Act by
the discharge of James E Townsend, Jr
14 In the event that this Recommended Order is adopted by the
Board , the words a Decision and Order" shall be substituted for the
words a Recommended Order of a Trial Examiner" in the notice In
the further event that the Board s Order is enforced by a decree of the
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 "
15 In the event that the Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said Regional
871
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 Relations Act, as
amended, we hereby notify our employees that
WE WILL NOT refuse to recall or take any other dis-
criminatory action against any employee because he is a
member of or supports the Cigar Makers International
Union, AFL-CIO, or any other labor organization
WE WILL NOT ask you questions about your union
activities
WE WILL offer to Tellis Smith employment in her
former job or substantially equivalent position of employ
ment without loss of any seniority or other rights and we
will make Smith whole for any loss of pay she may have
suffered by reason of the discrimination against her
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of these rights
All our employees have the right to form, join, or assist any
labor organization or not to do so
UNIVERSAL CIGAR CORPO
RATION
(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
her right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, 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
If employees have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board 's Regional Office, Room 706, Federal
Office Building, 500 Zack Street , Tampa, Florida 33602,
Telephone 228-7227