Alberto Culver Co.

National Labor Relations Board - Board Decisions

Apr 25, 1962

136 N.L.R.B. 1432 (N.L.R.B. 1962)

1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing , and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from
any or all such activities except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition
of employment , as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
HARBOR PLYWOOD DIVISION, EVANS
PRODUCTS COMPANY ( FORMERLY
ABERDEEN PLYWOOD & VENEERS,
INC.),
Employer.
Dated------ ------------- By--------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 7th
Floor Falls Building, 22 North Front Street , Memphis, Tennessee , Telephone
Number Jackson 7-5451, if they have any question concerning this notice or
compliance with its provisions.
Alberto Culver Company and Local 1608, Furniture and Wood-
workers Union . Cases Nos. 13-CA-3746, 13-CA-3940, 13-CA-
4030, and 13-CA-4357. April 05, 1962
DECISION AND ORDER
On November 30, 1961, Trial Examiner George L. Powell issued
his Intermediate Report in the above-entitled proceeding, finding that
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 Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs. The Charging
Party also filed exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and the briefs, and the entire record
in these consolidated cases,' and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the following
modifications.
i We deny the Respondent 's motion to incorporate in the record herein the record made
in the United States District Court for the Northern District of Illinois as the result of
which a temporary order Issued on November 17, 1961, restraining the Respondent from
violations of 8(a) (1) and (5) of the Act ( 49 LRRM 2516 ). We agree with the General
Counsel that Respondent has had ample opportunity to present evidence in the cases now
before the Board, and we deem the record herein adequate to dispose of the issues.
136 NLRB No. 115.
ALBERTO CULVER COMPANY 1433
1. We find merit in the exceptions of the General Counsel and of the
Charging Party concerning the employee committee. Thus, contrary
to the Trial Examiner, we find that the General Counsel has estab-
lished by a preponderance of evidence that the Respondent urged and
directed its employees to establish an employee committee and there-
after engaged in collective bargaining with it-as alleged in the
complaint-in violation of Section 8(a) (1) of the Act. We note that
that record is replete with specific testimony that the purpose of the
employee committee suggested to employee Martinez by Plant Man-
ager Couture was to represent the workers in their problems with
management, and that the employee group selected by Martinez did
in fact negotiate another chance for an employee before his discharge,
and did participate in a grievance concerning supervisory direction of
two employees. Although the existence of the committee was ap-
parently short-lived, we find that it did speak for the employees and
represent them in dealing with the Respondent, and that it was not
merely a "witness to management actions." We find, therefore, that
Respondent, by suggesting the establishment of the committee and
thereafter dealing with it, interfered with the rights of its employees
to self-organization and to bargain through representatives of their
own choosing, in violation of Section 8 (a) (1) of the Act. See Walton
Manufacturing Company, 126 NLRB 697, 700-701.
We also find, on the record, that the employee group here in question
did constitute a labor organization within the meaning of Section
2(5) of the Act, but inasmuch as no 8(a) (2) violation was alleged
in the complaint, we do not reach the question whether it was domi-
nated or assisted by the Respondent.
Accordingly, we add the following conclusion of law No. 6 to those
in the Intermediate Report, renumbering conclusions Nos. 6, 7, and 8
as 7, 8, and 9 respectively :
6. By suggesting the formation of an employee committee and
bargaining with it thereafter, the Respondent has interfered with
the rights of its employees to self-organization and to bargain
through representatives of their own choosing within the meaning
of Section 8 (a) (1) of the Act.
2. We agree with the Trial Examiner that Respondent failed to
bargain in good faith with the exclusive representative of its employees
for the "major reasons" set forth by the Trial Examiner. However,
,concerning that portion of the Intermediate Report which has to do
with the granting of a wage increase in June 1961 (the Intermediate
Report inadvertently states "1960"), we find that in the circumstances
of this case-no impasse in bargaining having been reached when
Respondent unilaterally put the increase into effect-the increase it-
self and not merely the blatant manner of effecting it showed a lack
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of good-faith bargaining on the part of Respondent and constituted
a violation of Section 8(a) (5) and 8(a) (1) of the Act. See Herman
Sausage Co., Inc., 122 NLRB 168, 170-171; enfd. 275 F. 2d 229
(C.A. 5).
Accordingly we amend the Trial Examiner's conclusion of law No.
5 to read as follows :
5. By refusing, since November 22,1960, to bargain collectively
in good faith with the Union as the exclusive representative of
employees in the aforesaid unit, and by unilaterally changing
existing wage rates on or about June 12, 1961, the Respondent
has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
We also amend conclusion No. 7 (No. 6 as it appears in the Inter-
mediate Report) to read "the aforesaid unfair labor practices are
unfair labor practices affecting commerce . . ." and conclusion No. 9
(No. 8 as it appears in the Intermediate Report) to read:
9. The Respondent has not violated Section 8 (a) (3) of the Act
as alleged in the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Alberto Culver
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interfering with the rights of its employees by suggesting the
establishment of a committee for employee representation and there-
after dealing with such employee committee.
(b) Refusing to bargain collectively with the Union as the exclusive
bargaining representative of all its employees in the certified unit,
and making unilateral changes in wages without consulting and nego-
tiating with the Union, and otherwise derogating the status of the said
Union.
(c) In the same or any related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the Union or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purposes of
collective bargaining 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 a condition of employment, as authorized in Section
8(a) (3) of the Act, as amended.
ALBERTO CULVER COMPANY 1435
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of employees in the unit certified with respect
to rates of pay, wages, hours of work, and other conditions of employ-
ment, and, if an understanding is reached, embody such understanding
in a signed agreement.
(b) Post at its place of business in Melrose Park, Illinois, copies
of the notice attached hereto marked "Appendix A." a Copies of said
notice, to be furnished by the Regional Director for the Thirteenth
Region, shall after being duly signed by Respondent's representatives,
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 by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
The complaint is hereby dismissed as to the alleged violations of
Section 8(a) (3) and (1) to the extent not found herein.
2
In the event that this Order is enforced by a decree of a United States Court of
Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, En-
forcing an Order" shall be substituted for the words "Pursuant to a Decision and Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 bargain, upon request, with Local 1608, Furniture and
Woodworkers Union, as the exclusive representative of all em-
ployees in the bargaining unit described below in respect to rates
of pay, wages, hours of employment, or other conditions of
employment, and, if an understanding is reached, embody it in a
signed agreement. The bargaining unit is :
All production and maintenance employees employed at our
Melrose Park, Illinois, plant, including janitors, mechanics,
and shipping, receiving, and warehousing department em-
ployees, excluding confidential formulation employees, print-
ers, office clerical employees, plant clerical employees, guards,
and supervisory employees as defined in the Act.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT make unilateral changes in wages without consult-
ing and negotiating with the Union, and we will not otherwise
seek to discredit or undermine the bargaining status of the Union
or otherwise refuse or fail to bargain in good faith with the
Union.
WE WILL NOT interfere with the rights of our employees by
suggesting the establishment of a committee for employee repre-
sentation and by dealing with any such employee committee.
117E WILL NOT in the same or in any 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
the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
engaging in any or all such activities, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment in con-
formity with Section 8(a) (3) of the Act, as amended.
ALBERTO CULVER COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 176 West Adams Street, Chicago 3, Illinois, Telephone Number,
Central 6-9660, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Hearings in this matter were held before George L. Powell, the duly designated
Trial Examiner, on September 12, 13, 14, and 26 and October 27, 1960; and April 25,
26, 27, and 28 and August 17 and 18, 1961. Final briefs from the General Counsel
and Respondent were received by me by October 4, 1961.
On June 20, 1960,1 the Charging Party (also referred to herein as the Union or
the Charging Union) filed a charge against Respondent on the basis of which the
General Counsel of the National Labor Relations Board, herein called the Board,
issued a complaint alleging, in substance, that the Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called
the Act, by interrogating its employees about their union activities and discharging
employees Miguel J. Baez, Laura Jimenez, and Marcos Castro, respectively. Upon
answer filed by Respondent, denying the essential allegations, this case, Case No
13-CA-3746, was heard before the duly designated Trial Examiner on September 12„
13, 14, and 26 and October 27, 1960, in Chicago, Illinois. The complaint was
amended at the hearing adding two additional independent allegations of viola-
tions of Section 8 (a) (1).
1 All dates , unless otherwise indicated , occurred in 1960.
ALBERTO CULVER COMPANY 1437
While the above case was pending before him, the Trial Examiner, on motion
duly made by the General Counsel, issued an order reopening hearing and con-
solidation of cases, dated March 21, 1961, in which Case No. 13-CA-3746 was re-
opened for the purpose of consolidating with it two later cases, Case Nos. 13-CA-
3940 and 13-CA-4030, inasmuch as the facts and issues of the three cases allegedly
possessed common elements. Additionally, the Trial Examiner was of the opinion
that granting the motion would effectuate the purposes of the Act and avoid un-
necessary cost and delay to the parties and to the United States Government. These
two new cases involving allegations of independent violations of Section 8(a)(1)
and (5) of the Act, with Respondent's answer denying the essential allegations,
came on to be heard on April 25, 26, 27, and 28, 1961, in Chicago, Illinois.
While these were still pending, the Trial Examiner, on motion duly made by the
General Counsel, issued on July 21, 1961, an order amending consolidated com-
plaint and Reopening hearing. The complaint was amended to add the allegation
that employees Sonny Agosto and Jose Martinez were discharged in violation of
Section 8(a)(3) and (1) of the Act on August 23, 1960, and September 1, 1960,
respectively. These allegations were in the third amended charge in Case No.
13-CA-3940 but it was not until July 7, 1961, that the General Counsel found
reasonable cause to believe the discharges violated the Act. The hearing date of
August 15, 1961, was set out in the order.
In the meantime, Charging Party filed an additional charge on July 21, 1961, in
Case No. 13-CA-4357, alleging that since on ar about March 30, 1961, Respondent
had refused to bargain with it in violation of Section 8(a)(5) of the Act. Com-
plaint issued, and, on motion duly made by the General Counsel, the Trial Ex-
aminer issued, on August 5, 1961, an order rescheduling hearing and consolidation
of cases in which Case No. 13-CA-4347 was consolidated with the matter in the
paragraph immediately above, but the hearing date was changed from August 15 to
August 17, 1961. The complaint in Case No. 13-CA-4357 alleged that Respondent,
commencing on or about November 22, 1960, and at all times thereafter, and
continuing to date of issuance of complaint, refused to bargain with Charging Party
in violation of Section 8(a)(5) and (1) of the Act by (a) negotiating with the
Union in bad faith and (b) on or about June 12, 1961, unilaterally changing
existing wage rates and other terms and conditions of employment of the employees
involved. These matters were heard on August 17 and 18, 1961. Briefs thereon
were received by October 4, 1961.
Upon consideration of the entire record,2 including the briefs and the demeanor
of the witnesses,3 I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation maintaining a plant and place of business
at Melrose Park, Illinois, at which it makes, sells, and distributes cosmetics.
During the calendar year 1960, Respondent, in the course and conduct of its busi-
ness operations, sold and shipped goods valued in excess of $50,000 from its Melrose
Park, Illinois, plant directly to States of the United States other than the State of
Illinois. I find Respondent is, and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1608, Furniture and Woodworkers Union, is, and at all times material
herein has been, a labor organization within the meaning of Section 2(5) of the
Act.
2At the request of counsel for the Charging Party, the 127 page record In Alberto
Culver Company, Case No 13-RC-7271 (not published In NLRB volumes), was also
studied and considered
s Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his or her
demeanor as I observed it at the time the testimony was given Cf. Biijan Brothers
Packing Company, 129 NLRB 285 To the extent that I indicate hereafter that I reject
in part or entirely the testimony of any given witness, it is my intent thereby to indicate
that such part or whole of the testimony, as the case may be, is discredited by me
Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ISSUES INVOLVED
A. Case No. 13-CA-3746
The complaint alleged that Marion Sansone, assistant production manager, inter-
rogated employees in violation of Section 8 (a) (1) on June 17, 1960; that Raymond
Couture, plant manager, interrogated employees in violation of Section 8(a) (1) on
June 25, 1960; and, as amended at the hearing, that Marion Sansone interrogated,
threatened, and coerced its employees on or about June 24, and on or about June 25
Couture urged and directed employees of Respondent to established an employees'
committee and on or about July 8 and since that date Respondent engaged in
collective bargaining with the said employees' committee. Finally, the complaint
alleged the violation of Section 8(a)(3) in the discharge of Miguel Jimenez Baez,
Laura Jimenez, and Marcos Castro on June 17, 1960.
1. Miguel Jimenez Baez
Baez was hired around November 30, 1959, and discharged at the close of busi-
ness on Friday, June 17, 1960, by his foreman, James Brown, who told him, accord-
ing to Baez, "Miguel, I am sorry, you got laid off. You don't have to come back
no more."
The parties stipulated that the first handbill was passed out at the plant on May 27,
1960. According to the testimony of Baez, he first heard of the Union about 1
month before his discharge. He signed an authorization card for the Union on
June 5, talked up the Union to other employees in his car pool and in the lunch-
room , and got two others to sign union cards. He gave the cards to Castro and
attended the union meeting the evening of June 16 at which time he in effect
ushered others to the correct room for the meeting. The following day he talked to
Diaz telling Diaz the benefits of the Union and told him that he (Miguel), his
wife Laura, and Marco Castro had attended the union meeting the evening before .4
2. Laura Jimenez
Laura, the wife of Miguel above, like most of the other witnesses was of Puerto
Rican extraction. Some of these witnesses testified without the aid of an interpreter,
yet others required this assistance . Laura did not use an interpreter on direct exami-
nation but on cross-examination she appeared to have some difficulty and an interpre-
ter was employed. Her testimony was confusing. She could not remember when
she started work for Respondent but when given her choice of saying it was at the
end of 1959 or at the beginning of 1959, she chose the beginning, yet later on in her
testimony admitted that it was about November 1959. On cross-examination she
admitted being told by Marion Sansone that she, Laura, had lied on a particular occa-
sion , but she did not admit that she had lied and she did admit her participation in
certain activity with another girl employee. As to whether her service with Respond-
ent was continuous since original hire, she was asked if she had been fired on Febru-
ary 29, 1960, then the question was changed to ask if she was employed by Respond-
ent in the period between February 29 and April 18; and she answered she did not
know. And then she said she did not remember. She appeared very reluctant to
testify on this point. Then she admitted that Sansone had discharged her on Febru-
ary 29, 1960. Following this testimony there was a short delay during which all wit-
nesses were excused from the room and upon taking the witness stand again she was
asked if she was discharged on February 29. Counsel for the Charging Party ob-
jected and she answered "I don't remember." Thereupon the question was rephrased
and she admitted that she had been fired on February 29. She was rehired by Re-
spondent and on June 17 was laid off by her foreman, James Brown, who, according
to her testimony, said, "You laid off. Laura, you get laid off." She said, "I didn't
ask him why, because he don't give no reason." According to her testimony she had
talked to Diaz on the day she was fired and had told girls that the Union was good
and that they should sign cards. She had signed a card.
3. Marcos Castro
According to Castro, he was hired on March 14 and fired by his foreman, James
Brown, at the close of business on June 17. This is the same foreman that fired
* There was some testimony tending toward showing the existence of a committee of
employees to organize for a union, and this witness seemed to know about this committee
and who was on it but did not know how many were on it This evidence is too vague
for me to find as a fact that there was such a committee.
ALBERTO CULVER COMPANY 1439
Miguel and Laura above. According to his testimony it was the end of his shift for
the day when his foreman told him, "I got to lay you off." According to hun, that
was all that was said. He testified he had heard of the Union about a month before
his discharge and he signed his card on June 7. Garza, union representative, had
talked to him and had given him cards which he gave out to fellow employees, col-
lected them after they had been signed, and give them back to Garza or mailed them
back to Garza. He got between 30 and 40 cards back from employees, getting 26
cards signed on June 17. These 26 cards had been passed out before work and at
lunch 5 He attended the union meeting the evening of June 16, taking some em-
ployees with him, but could not remember their names. He remembered talking
to Diaz on June 17 about 7 o'clock in the morning and although he said he did not
tell Diaz who attended the meeting, he testified that the man with him told Diaz
He further testified that when he went to get his check after his discharge on June
17, he asked Jack Stone, an official of Respondent, why he was laid off and was told,
in his language, ". . . that the machine is very low, the work, and he said to call
Monday and see what happen. I call him down Monday and he say I got my job.
back. [sic] He said nothing was open right now and I say, `Well, okay."' 6
4. Testimony of Alejandro DeLeon Diaz
The sole direct evidence of Respondent's knowledge of the union activity of Laura
Jimenez, Miguel Jimenez Baez, and Marcos Castro depends upon the credibility of
Diaz. Diaz testified that he obtained a union card from the union representative and
signed it, but did not turn it in. He kept it, he said, as he expected to get a better
job from the Company. If he got the better job, he said he would not need to sign
for the Union. He did not go to the union meeting on June 16 but heard the employ-
ees on that day in the lunchroom talk of the meeting. Because of the importance of
his credibility, some of his testimony on direct examination is set out:
Q. Were you ever invited to attend a union meeting?
A. On Thursday, June 16 when I was in the lunchroom, I was listening-all
the employees said the Union was going to have a meeting tonight. I said, "I
would like to go, but I got some other things to do tonight," I did not go.
Q. Do you know with whom you were talking on that date?
A. It was almost everybody talking about it, especially at my table-Mr.
Marcos Castro.
Q. Did you attend this meeting on Thursday, June 16th?
A. No, sir, I did not go, because I had something else to do, but I was
talking-thinking to go.
Q. Did you have occasion the following day to talk to anyone about the
meeting?
A. No, not especially.
5 On cross-examination he changed his testimony and said that he did not pass out cards
at lunch but merely collected some at lunch This is immaterial.
6 Because of the obvious language difficulty, counsel were permitted a certain degree of
latitude in asking their witnesses leading questions For example, the following took
place between counsel for Charging Party and Castro:
Q Air. Witness, do you remember talking to a foreman at the plant on Thursday,
the day before you were fired, about working Monday overtime?
A. Oh, yes
Q. To whom did you talk '+
A Earlier-Earl talked to me.
Q. Earl?
A. Yes
Q. And what did he say to you on Thursday?
A He told me that he said, "How do you like to work overtime Monday?"
Q. What did you say?
A. I say, "I don't know, but maybe I let you know tomorrow," and lie told inc he
changing mind and told me on Friday. [sic]
Q. I see, and then you were told on Friday that there was no work? [Emphasis
supplied ]
A. Yes
Q. You were told this by Jack Stone, is that right?
A. Yes.
[Note that previous testimony was " . . that the machine is very low, the work . . "
Castro had not testified that he had been told there was no work.]
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Let me rephrase the question: On the day following the meeting-
A. Following?
Q. (Continued.) -Did you talk to anything concerning what happened at this
meeting?
A. Well, that day was almost all day everybody talking, and in the morning
when I went in, the first person I saw was Mr. Marcos Castro. He was giving
some card to somebody. They were to sign. And I talked to him in the
morning and also at the lunchroom, when we were having lunch, he was
explaining how the meeting was, how many things the Union offered and "they
will be the Union. for us."
Q. You testified previously, Mr. Diaz, that you reported to Mr. Jack Stone
and Miss Marion Sansone. Where did you report to them, [His supervisor
was Irving Marks and above him in the supervisory hierarchy was Jack Stone
and Marion Sansone].
A. At the office.
Q. I see. Did you have occasion to talk with Miss Sansone that day?
A. That day?
Q. On Friday, the 17th?
A. On Friday, around 3 o'clock, when I was on my line working, Mr. Jack
Stone went to me and he said, "Go to the office. Marion wants you." I went
to the office and said, "Did you call me?"
"Oh, yes, come man." And she took me back to the lunchroom. She said,
"Okey, set down a have a smoke," and she gave me one cigarette from here. I
started smoking.
And then she said, "Well, just-I'd like to have some conversation. Especially,
I would like to ask why your wife don't come to work." 7
I said, "You know my problem. My car has broke down and it was impossible
for her to come."
Q. Mr. Diaz, did you have any conversation about unions at that time?
A. Yes. She asked me if I know how the Union went to that plant, if I
know who send.
I said, "No, I don't know who, because nobody from here," because that day
I asked to the Union, to Mr. Mike Garza-[union representative] I asked who
send them over, and he told me they went in there theirselves. She said, "I
know that," because she know who and she said, "I know it was [a girl]." 8 she
said-
I said, "Well, I don't know." She said, "You know, because I know."
I said, "If you know, why you asked me?" And also she asked me, "What
about the meeting." Did you went last night to the meeting?"
And I said, "No, I didn't go to the meeting, because 1 had something else to
do, but I was thinking to go."
She said, "Who invited you over there. With whom were you thinking to go?"
I said, "Well, I was thinking to go with Mike and Laura." And I said, "Also
with Marcos Castro, because he had a card, too."
Q. (Mr. RAYFORD.) Will you tell us again, Mr. Diaz, the names of the people
that you told Miss Sansone attended this meeting?
A. Well, the names I told her that 1 was thinking to go with-Mike, Laura-
they are the husband-. [Emphasis supplied.]
Before setting out any contradictory testimony I wish to note my impressions of
the above, bearing in mind that this is the sole witness for the General Counsel to
support his theory of the case that Jimenez, Baez, and Castro attended the union
meeting on the 16th and were thus fired on the 17th within an hour of Diaz' telling
Sansone that they attended the union meeting. This is vital testimony. Diaz knew
the importance of it as he took great pains to point out in later testimony that when
he learned of the discharges around 4 p.m. on the 17th he rushed to the union hall to
report that he may have caused their discharges. He testified that when he heard
the three were laid off, "I thought -I said, `Well, they laid off them and they were
the same three persons I mentioned, that they went to the union; ."' [Emphasis
supplied.] He testified mentioning to the driver who took him to the union hall.
" . they laid them off because I mentioned that they belonged to the Union."
[Emphasis supplied.] He finally testified that when he reached the union office he
told the union representative, "Mr. Mike, right now, I think that some people are
7 Sansone places this testimony "either the latter part of March or the first of April
8 The record shows the testimony to be "I know it was Toni Grazesegro " I recall the
testimony, and my notes show it to be as stated above in brackets and accordingly the
record is hereby corrected
ALBERTO CULVER COMPANY 1441
in trouble because they belong to the union. I am sure of that, because I mentioned
three names today and those three people whose names I mentioned were laid off."
jEmphasis supplied.]
Now with the importance of this conversation with Sansone obviously impressed
on his mind, I look at his testimony given on direct examination above. I find an
unwillingness on his part to get into this vital testimony. When asked if he talked
to anyone the following day about the meeting, he first said, "No, not especially."
He was prodded by the General Counsel again as to whether he talked to anyone
the day following the meeting and he answered that almost everybody was talking
and he saw Castro. Finally, the General Counsel specifically asked him if he had
talked to Sansone "On Friday, the 17th?" He related his story that Sansone wanted
to see him, he went to her office, she took him to the lunchroom, she gave him a
cigarette, and then she said, "Especially, ,l would like to ask why your wife don't come
to work." He was explaining what she "especially" wanted to hear when the General
Counsel again brought him back to the important question and asked if he talked
"about unions at that time." He related that she wanted to know who brought the
Union into the plant but he did not know. Then he said she asked if he went to
the meeting. He said he told her he was "thinking to go" but did not go. Then, in
beautiful English, he said she asked him "with whom were you thinking to go?" He
said he replied, "I was thinking to go with Mike and Laura." Then he added "also
with Marcos Castro, because he had a card too." Again the General Counsel at-
tempted to lead him to the vital testimony by asking, "Will you tell us again, Mr.
Diaz, the names of the people that you told Miss Sansone attended this meeting?"
(Up to this point he had not testified that he told her who attended ) His reply to
this direct lead was, "Well, the names I told her that I was thinking to go with-Mike,
Laura. . Again he never said that he told her who attended, even though
he surely had ample opportunity.
Contradictory Testimony
Marion Sansone's testimony contradicted that of Diaz. According to her, the
only conversation she had with Diaz in the lunchroom was before work started in
the morning of June 13 or 14 (3 or 4 days earlier) when a Mrs. Manuella Garclisa
became upset (she was crying) and Sansone asked Diaz to find out her trouble before
work started. Diaz told her, "I don't want to get involved in it. " When she asked
him "why," he replied he had a job to look out for. Mrs. Garclisa said that Laura
Jimenez had called her names and had threatened her and said things about her
mother and she would rather stay home. The names of Baez and Castro were
not mentioned.
Additionally, Respondent called Elizabeth Easley who clearly, convincingly, and
credibly testified she worked in the office, that the girls there, except for the switch-
board operator, take their coffee break from 3 until 3:15 (the period Diaz said he and
Sansone were in the coffee room), and that she never saw Sansone in the coffee
room during this break.9 This corroborates Sansone and contradicts Diaz who
placed the time of his conversation with Sansone "around 3 o'clock " io
Even if Diaz were to be credited, it is doubted that the preponderance of the
evidence establishes that Jimenez, Baez, and Castro were identified by Diaz to
Sansone as having attended the union meeting on the 16th and for that reason they
were discriminatorily fired "to discourage membership in any labor organization"
(Section 8(a)(3) of the Act). What he said he told Sansone is not the same in
meaning or in context as what he later on said he told others he told her. But I do
not credit Diaz. His above testimony is quoted only as an example of his testimony
to give the reader an insight into the problem of credibility in this case. The
case hinges on credibility. What are the facts, or, more precisely phrased, do the
facts establish the existence of the alleged violation of the Act?
As Trial Examiner Henry S. Sahm of the Board pointed out in his recent article,
6 The testimony follows:
Q (Counsel for Charging Party on cross-examination ) You would not testify,
would you, that she was never there [in the lunchroom] when you were there'
A I couldn't say definitely She could be behind a machine or behind a door But
out in, right there, she would have to be standing behind the door I am po,itive
I never saw her in the lunchroom.
10 Office Manager Joseph Lavin also credibly testified that the 30 to 35 office workers
go to the lunchroom at the 3 to 3.15 coffee break as it is exclusively reserved for them
for this period.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Demeanor Evidence: Elusive and Intangible Imponderables" (Jour. American
Bar Assn., June 1961, vol. 47, pp. 580, 581, 582).
In crediting some witnesses and discrediting others, in giving weight to certain
evidence as against other evidence , in drawing inferences from circumstantial
and conflicting evidence, and finally in coming to certain conclusions, the judge
or hearing examiner necessarily has to detect and appraise various "potent
imponderables" permeating the entire record. One of these "potent imponder-
ables" is the demeanor of the witnesses in testifying, particularly where findings
of the trier of the facts rest on the evaluation of the credibility of oral testi-
mony.
He pointed out how difficult it is to capture and describe in written words the
impression a particular witness makes upon the trier of facts, and he noted that
pointing out inconsistencies in the testimony of a witness may only amount to petty
carping. Additionally, he noted that,
Witnesses are on occasions fouled by the air of bias, partisanship, overzealousness
and other emotions that flesh is heir to. Witnesses do not emerge from sterilized
surroundings nor do they testify in a vacuum which protects them from the
failings to which the human mind and spirit are subject.
I do not credit Diaz based upon his demeanor, evasiveness, and contradictions such
as set out above."
5. Respondents' defense to the discharge of Jimenez, Baez, and Castro
Background
The Respondent had operated its business at a plant on Grand Avenue, Chicago,
until around the middle of January 1960, when it moved to its new building in
Melrose Park, Illinois. Also, for a short period of time ending around December
30, 1959, it rented a warehouse on West Armitage, Chicago. It had been operating
with a night shift, but in May it had caught up with its work and started laying off
employees, laying off as many as 30 in 1 night.12 It did not lay off the entu a night
shift but instead, blended in the most qualified and dependable workers with the
most dependable and qualified day-shift workers. "We started weeding out the
good workers," according to the credited testimony of Marion Sansone, assistant
production manager and floorlady. In this "weeding out" process it laid off 42 em-
ployees in the month of May and 17 in the month of June. These layoffs were
made weekly, and, except for the bulk of night-shift employees who were laid off on
a Thursday night, the layoffs were made on Wednesday and Friday and numbered
from three to five each week. The night shift operated ". . . the first three weeks
in May." As noted at the outset, the parties stipulated that the first union handbill
was distributed on May 27, which would be some 8 days after the layoff of the night
shift.
Sansone testified that she talked over the status of Jimenez, Baez, and Castro with
Stone, her superior, on Wednesday afternoon, June 15, and on Thursday their' fore-
man, Brown, was told to discharge them on Friday, June 17. The layoffs were made
in this "weeding out" process.
a. Jimenez
Laura Jimenez was one of two employees who had worked in the rented plant on
West Armitage, having been hired on November 5, 1959. After a couple of weeks'
work she asked if she could bring her hubsand, Miguel Baez, to work and he was
hired the day after Thanksgiving. They were brought to the Grand Avenue plant
in December and to the new Melrose Park plant in January 1960. Laura Jimenez
was fired on February 29 because of "too many complaints about her from other
n Counsel for Respondent, in an effort to impeach Diaz, made an offer to prove, in effect,
that Diaz was convicted of a criminal conspiracy in helping one, DeLeon, secure a motor
vehicle operator's permit without first taking the required examinations Certain docu-
ments were received by me on July 17, 1961, from said counsel and a letter was received
from counsel for the Charging Party on July 19, 1961. These documents are hereby ad-
mitted in evidence, as Trial Examiner's Exhibits Nos. 1(a) and 1(b), respectively. How-
ever, the resolution of credibility against Diaz, above, was made before receipt of the
documents and was made entirely independently of any allegations made on the record
as to the matter contained in Trial Examiner's Exhibits Nos. 1(a) and 1(b).
12 The cutback was brought about by increased efficiency. Couture, plant manager,
credibly testified he was producing an order of 500 in 8 hours rather than in 16 hours.
ALBERTO CULVER COMPANY 1443,
girls on the line." "She wouldn't work, she wouldn't take orders. .. " In April
she was rehired when Baez begged Sansone to take her back as they needed the
work and she was sick. Baez told Sansone that if his wife did not work out right he
would be willing to quit. She was rehired around April 19 and told if she did not
work out right, her husband would have to go too. She promised to take orders and
give no more trouble. Until May, she worked on the Deal Line but absented herself
from the line spending too much time in the washroom and in talking to the girls
and not paying attention to her work. She was transferred to the Tresemme Line
where she could pack and could not "fool around much " During this period of time,
Sansone had talked to her about her work habits several times and had demonstrated
how to pack the boxes properly, but she still made mistakes. Sansone told Stone
that Jimenez was not doing any better than she did the last time she was an employee
and she wanted her fired.
b. Baez
As stated above, Miguel Baez was the husband of Jimenez. He was hired in
November 1959 and came to the new plant in January 1960. When Sansone told
Stone to fire Jimenez, she also told him to fire Baez and told Stone of the con-
versations, above, when Jimenez was rehired. Also, Baez had a few garnishments
on his pay that Sansone was taking care of. She had talked to Baez about them
and his attitude was that if his wite were laid off he would move to New York
and he would not care about garnishments or how much trouble he caused Re-
spondent. This also was related to Stone when the recommendation to fire Baez was
made.
c. Castro
Sansone hired Castro in February 1960, as a general laborer. He quit for about 2
weeks because he did not like night-shift work yet he had been put on nights because
his day work was not satisfactory. Sansone rehired 13 him and put him on a new
line, the Cream Developer Line where he worked under her supervision until May
when he went under Marx's supervision for a week and then under the supervision
of Brown until his discharge. His work habits, about which Sansone and he talked
from time to time and about which Sansone warned him, were that he would leave
his line, change positions with others, walk over to another line and talk with the
girls in his car pool, and seek help on the Cream Developer Line "where normally
another person would do it alone."
The above findings of fact are based on the credited testimony of Sansone. She
testified in a frank and open manner and impressed me favorably. Although sub-
jected to extremely vigorous cross-examination, she disclosed a remarkable memory,
patience, and stamina and her testimony in the main particulars had the ring of
truth. Based upon her demeanor, I credit her over any witnesses for the General
Counsel who gave conflicting testimony.
It is clear from the above that General Counsel has not sustained his burden of
proof that Jimenez, Baez, and Castro were discharged because of their membership
in or activities on behalf of the Charging Party. All three were discharged during
this "weeding out" process during which the Respondent was seeking to retain the
most efficient help. Jimenez and Baez were not particularly active in the Union
and had to be considered a "package" in accordance with the understanding when
Laura was rehired. When Laura went, her husband, Baez went. This arrangement
was made long before the advent of the Charging Party in the plant. I cannot tell
how much weight was given to Baez' garnishments, but when he told Sansone he
would not care about them and he would move to New York if his wife were laid
off, this is sufficient cause for discharge. As there is no credited evidence of company
knowledge of his union activities there is no ground for even an inference that he
was laid off in violation of the Act.
The case of Castro is much more suspicious than those of Jimenez and Baez.
Castro was active in the Union signing up some 26 cards the last day of his employ-
ment. Again, company knowledge to be found must be inferred under all the
circumstances as I do not credit Diaz and do not find direct evidence of company
knowledge of Castro's activities. He had been an employee for 6 months' time and
had been put on the night shift earlier in his employment period because his day
shift work was not satisfactory. He had quit for 2 weeks and when rehired was put
on a new line, the Cream Developer Line. He had been warned repeatedly about
his work habits of leaving his line, changing positions with others, and talking to
members of his car pool on another line, during working hours. Under these circum-
78 Castro testified he was hired on March 14 I find this was the date he was rehired.
641795-63-vol. 130-92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, when Respondent decided to fire him 2 days before he signed up the 26
.employees, and still within the period of the "weeding out" process, I cannot find
that the General Counsel has sustained his burden of proof that the discharge was
.discriminatory within the meaning of the Act.
6. The 8(a) (1) allegations relating to Sansone
June 17: Sansone denied interrogating Diaz on June 17 and her testimony is
credited over that of Diaz, as noted above. Accordingly, this allegation in the
complaint falls for lack of proof.
June 24: Diaz testified that Sansone asked him on either June 24 or 25, about 10
a.m., if he had signed a union card yet and told him it was better if he did not sign
because he was going to be an assistant foreman but if he belonged to the Union he
would not get that chance. As noted above, Diaz admitted getting a card and
signing it but not turning it in because he figured if he got a better job he would not
need the Union. Sansone had a different version, testifying that Diaz asked her if
there was a better job in the plant and furthermore he asked if he would have a
better job if he did not sign the card. She told him she could not promise anything
and walked away. I credit Sansone over Diaz. This allegation in the complaint
likewise falls for lack of proof.
7. The 8(a)(1) allegations relating to Couture
Raymond Couture started his employment with Respondent on May 2, 1960, as
+chief industrial engineer. Two weeks later on May 15, he was appointed plant man-
ager. Shortly thereafter the bulk of the layoffs took place, as related above.
June 25: The complaint alleged that on June 25, Couture interrogated employees
in violation of Section 8(a)(1). On this point he testified that he asked employee
Jose Martinez in the shipping department if he knew of any organized violence, of
girls being threatened to be beat up in the parking lot and being afraid to come to
work.14 He wanted to know if violence was organized to break machinery and
windows or whether any violence was merely something among two or three people
He testified that Jose told him he knew of no organized violence and that the Spanish
people would not resort to such violence The reason he asked Jose, was because
Jose had "a good command of English and a clear understanding of people." He
further testified that Jose told him some people in the plant were unhappy because
of the way they were treated,15 and that the employees believed Jimenez, Baez and
Castro were fired because they belonged to the Union and that another employee was
interrogated to reveal their names.
Couture reported back to Respondent's president about the lack of organized
violence and of the discussion relating to the discharges of Jimenez, Baez, and Castro
and the interrogation of Diaz. The president called the employees together and
spoke to them.16 Following this meeting, Couture again spoke to Jose asking him
what he thought of the speech. Jose in effect said it would not influence the em-
ployees any, and testified that Couture told him that it was immaterial whether or
not a union came into the plant.
The committee: Also on the same day of June 25, Couture told Jose that the
employees could come directly to management with their problems if they had a seri-
ous problem which could not be solved through their immediate supervisors. In this
latter situation, Couture said he would like to have some English speaking em-
ployees along so any action taken would be understood.
Jose Martinez' testimony corroborated Couture about the conversation on June 25,
relating to whether there was organized violence, the unhappiness of employees, their
belief as to the discharges of Jimenez, Baez, and Castro, and their belief as to the
interrogation of Diaz. Jose credibly testified-
"He [Couture] told me it was a good idea if we could have some kind of com-
mittee to represent the workers.
.4 He testified that Fridel, factory manager, asked him if he knew of these threats being
made if they did not join the Union.
15 The inequity in pay between employees who had worked the same length of time was
discussed Also discussed were jobs that were not liked and the shifting of employees
from one line to another Couture promised to set up seniority, to correct pay inequities,
and attempt to eliminate transfer problems TIii is evidence of employee unrest and of
how management can correct it This is neither "bargaining" nor "interfering" with
employee rights under these circumstances
16 The speech is not an issue
ALBERTO CULVER COMPANY 1445
I told him it was a good idea , because if the people were in any kind of
trouble, they would have someone to represent them. It was his idea, and I
told him it was a very good idea.
Q. Did Mr. Couture-did he tell you or explain to you what the committee
was supposed to do?
A. Yes. He told me the reason was any trouble arising in the Company, any
person that is in trouble or doing something wrong, they would call him in the
office and the committee was supposed to meet there and understand what they
were telling the guys. They were like witnesses to what they would tell the per-
son in trouble.
Q. Did he tell you how the committee should be formed?
A. Yes, he told me to tell the people to elect among themselves-to select a
few guys, one, two, three or four. Of course, he would like to have me in the
committee , but he would not tell me to do this , to be on the committee. He
-did not want me to select myself. He wanted them to be elected by the people,
not by me myself.
Q. Did Mr. Couture tell you, during the conversation that this committee was
to speak for other employees who get in trouble?
A. The main reason was not to speak for them; it was to be like a wit-
ness. . . . We can make a suggestion , but not talk for them."
In his conversation with Martinez on June 25, Couture told Martinez it was im-
material to him whether or not a union came into the plant.17
In August, there was a meeting in the matter of Sonny Agosto. Again, accord-
ing to Jose Martinez and corroborated by Couture, Couture told him they had a
problem and he wanted him to get three or four people into the office to straighten
it out. He got four others as follows:
I told them-I was not telling them to go to the office, but if they wanted to go
to the office, and see what was going on, that is what we want-if they wanted
to go, and if they did not object to it.
These five employees met in the office with Sansone, Stone , Couture, Willard of
personnel, Holshein, and Foreman Marks. Jose announced that his group repre-
sented the employees and had nothing to do with the Union The management
people explained their problem with employee Sonny Agosto and said they had
decided to fire him. Jose and his group suggested Agosto be given another chance
which was done 18
Two weeks later Couture told Jose they had the same problems and said, we
need your people to be there." With one substitute, the same group of employees
attended. The same management people attended According to Jose. management
had decided to let Agosto go and there was nothing the committee could do
On another occasion. Jose himself met with Couture and Carmello, the janitor
(and another unidentified person), to explain to Carmello and the other man what
their duties were and who their supervisor was. Apparently there was confusion on
this point It was satisfactorily explained and cleared up
The fourth and last meeting involved two employees in the Tresemme depart-
ment. They were Mexican. They refused to pick up a bottle from the floor on the
ground they were not janitors regardless of what their foreman's wishes were They
were made to understand they had to follow instructions of their supervisor regard-
less of how they felt about it. Couture said he would decide whether the instruc-
tions were right or wrong. A gentler tone of voice and a smile was suggested to
17 The testimony follows.
Q (By Mr. GILL ) In your conversation with Mr. Couture on June 25. did he tell
you that it was immaterial to him whether or not a union came into the plant?
A. You mean that he did not care?
Q. Yes
A. That is right.
Is Previous to this meeting, Agosto had told Martinez that he was asked to sign some
papers or be laid off. He refused to sign He said management wanted lum to give
names of employees who were for the Union. (Martinez related this to Couture There,
after Couture asked Martinez to round up the employees ) Sansone contended that lie
did not stay on his job He denied this saying he was asked to do janitor 's work and he
refused to do that type of work Thus, management wanted to let him go That is when
another chance was suggested for him and was given him More about Agosto is detailed
later on in this report under section III , A, 8, "The discharges of Agosto and Martinez "
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the supervisor. The group of employees and management people attending this
meeting was substantially the same as those in the earlier meetings where there was
more than Jose.
Analysis of the Allegations of the Complaint Involving Couture
As to the interrogation of employees on June 25, Couture credibly testified, with
corroboration by Jose Martinez, that he asked Jose about some possible violence.
He did not ask about union activities. After the Respondent's president's speech he
again saw Jose and asked him what he thought of the speech. Jose testified that
Couture told him it was immaterial whether a union came into the plant. I find'
nothing in this type of visiting back and forth between employer and employee to
interfere with or coerce an employee in enjoying his rights to join or not to join a
union of his own choice and accordingly find the General Counsel has not sustained
his burden of proof as to this allegation.
The Committee
As to the establishment of a committee by management, the testimony of the
witness for the General Counsel, Jose Martinez, which I credited above, is clear on
this point. He said: "The main reason [for the committee] was not to speak for
them [the employees]; it was to be like a witness. . We can make a suggestion,
but not talk for them." He also credibly testified that Couture did not select the per-
sons to be on this "committee" nor did he want Jose Martinez to select them.
Rather, "He wanted them to be selected by the people, . Under the circum-
stances of this case, including the fact of the language problem, the economic lay-
offs and the misunderstanding of actions taken by Respondent as evidenced by the
mistaken belief of employees that some were fired because of their union activities,
the mistaken belief that others were asked to do things they should not have to do
such as sign papers or pick up bottles, or take orders from more than one super-
visor, it seems reasonable that the Respondent could and should take steps to be
sure its employees fully understood its actions. The step of having witnesses who
spoke both English and Spanish in attendance at times when the management wanted
to communicate with an employee, was assurance both to the employee in question
and to other employees that they could know just what took place without any fear
of reprisals or of something hidden.
Fear was present in the plant. Not only fear of losing a job but apparently bodily
fear of other employees.19 Witnesses for the General Counsel were reluctant at
times to disclose names of fellow employees and witnesses for the Respondent were
likewise reluctant to testify. Indeed, two witnesses 20 were so frightened they could
scarcely testify. Maria Martiniz could hardly talk and giggled nervously almost
continually. When asked if she was scared of the Union or the Company, she
gushed out quickly, "Not of the company-of the union-because while I was work-
ing I received a blow." Manuela Garcia, who followed Maria Martiniz to the
witness stand, immediately after being sworn in said,
The INTERPRETER: She says: I do swear, but I do want to specify if what-
ever I am going to say here will be used against me or will be my own-she
said: I want protection. I want to know if what I am going to say here will
harm me. Will do me any harm.
TRIAL EXAMINER: You tell her that she will not be harmed by anything
she says.
The INTERPRETER: She says; I want to be sure of that.
At the conclusion of her testimony, the following took place:
TRIAL EXAMINER: . . . you mentioned that you wanted some reassurance-
before testifying, that nothing would happen to you.
The WITNESS: Yes, sir.
TRIAL EXAMINER: Now, I have assured you that nothing will happen to you.
and I have an idea to carry it out.
The WITNESS: Thank you.
TRIAL EXAMINER: I am going to give you the card of our interpreter . .
with his phone number. Now, if any employee, or the company, or the union,.
bother you, or threaten you-anyone, whoever it may be, you call Mr. . . .
ie As noted above, on June 13 or 14, Mrs Manuella Garclisa told] Miss. Sansone that-
Laura Jimentz had threatened her.
20 Maria Martiniz and Manuela Garcia de Garcia.
ALBERTO CULVER COMPANY 1447
.and he will call Mr. Rayford at the Board and nothing will happen [to you].
You can tell other people that that is what you can do and will do.
The INTERPRETER: Is this the proper way you want it to be done-this thing?
TRIAL EXAMINER: This is the best way I can think of at the present time
'because you are the neutral interpreter.
The INTERPRETER: But she can also use anybody.
TRIAL EXAMINER: She can use anybody she wants, but for this proceeding
she goes to you.
Mr. SUGARMAN: I would like to interpose a very serious objection to this.
TRIAL EXAMINER: Just a moment.
Tell other people that they can't bother you nor should they bother others-
anyone-with respect to this government proceeding.
Now do you understand that I am not accusing anyone or being or wanting
to bother you. All this is your protection against a fellow employee or the com-
pany or members of the union, or anyone else. You can tell them that if they
bother you, you will call the United States Government.
The WITNESS: Well, I am very proud of that-to have that privilege of
protection.
TRIAL EXAMINER: You may be excused now. (Witness excused.)
Mr. SUGARMAN: I want to note for the record now that the statements are
highly prejudicial in the sense that on many occasions in this hearing and hear-
ings previous to this in connection with these cases that witnesses for the union
and for the General Counsel have expressed fears that they would be fired or
serious action would be taken against them by the Company and at no time did
you give them any assurances, and I find it highly improper and prejudicial to
give assurances in such a statement on the record to the witnesses for the Re-
spondent when the other witnesses for the company are present and such was
not done for the witnesses of General Counsel and the Charging Party.
TRIAL EXAMINER: Mr. Sugarman, I do not know what you refer to, but when-
ever that has happened before, I have assured them that nothing would ever
happen.
This is the first time that I have given a card out because this is the first time
that I have thought of such a thing. This is the first witness that I felt needed
that kind of assurance, particularly following the previous witness.
Now, if any of your witnesses would like I will give them a card also, and tell
them the same thing.
This witness could also tell all other employees that if they are afraid of
anything that is going to happen to them they too can call Mr. .. .
If they speak English, they can call the Labor Board direct.
Mr. SUGARMAN: Now, in your presentation of the card and your statement to
this company witness, there is an implication that the union is what they may
be afraid of.
TRIAL EXAMINER: I made no implication.
Conclusions as to the Committee
Two points are involved in this problem: (1) is this so-called committee a labor
organization within the meaning of the Act; and (2) did the Respondent dominate,
interfere with, or support it as a committee. Mr. Justice Whitaker, speaking for the
Supreme Court in the leading case on this point, Cabot Carbon Company, et al., 360
U.S. 203, 205, said,
The question for decision in this case is whether "Employee Committees" es-
tablished and supported by respondents . for the stated purposes of meeting
regularly with management to consider and discuss problems of mutual interest,
including grievances, and of handling "grievances at nonunion plants and
departments," are in the light of their declared purposes and actual practices,
"labor organizations". .. .
Section 2(5) of the Act includes in its definition of "labor organization" any
"employee representation committee or plan, in which employees participate and
which exists for the purpose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment, or
conditions of work."
Examining the evidence to see lust what this so-called committee was, I find that
Couture told Jose Martinez that the employees could come directly to management
with their problems if they, the employees, had a serious problem which could not
be solved through their immediate supervisors. In this situation Couture said he
would like to have some English speaking employees along so any action taken would
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be understood . These being the facts , it means to me that any given employee who,
had a problem he could not solve with an immediate supervisor could come directly
to management with his problem . In order that there could be no misunderstanding
of what took place in the resolution of the problem, it would be well to have some
English speaking employees along to act as witnesses . Examining the testimony of
Jose as set out in detail above, he first testified that Couture told him it was a good
idea if they could have some kind of committee to represent the workers. Jose went
on to say that he told to Couture that it was a good idea because if the people were in
any kind of trouble they would have someone to represent them . But that the idea
was Couture's. However, in testifying as to what Mr. Couture told him or explained
to him what the committee was supposed to do, he testified as follows:
He told me the reason was any trouble arising in the Company, any person that
is in trouble or doing something wrong, they would call him in the office and
the committee was supposed to meet there and understand what they were telling
the guys. They were like witnesses to what they would tell the person in trouble.
[Emphasis supplied.]
Q. Did Mr. Couture tell you, during the conversation that this committee
was to speak for other employees who get in trouble?
A. The main reason was not to speak for them ; it was to be like a
witness . . . We can make a suggestion , but not talk for them. [Emphasis
supplied.]
I find from the above that Jose corroborated Couture in the latter testimony and
that his previous statement that the people would have someone to represent them
is not what Couture told him. This being the case, I find no evidence that Respondent
created any committee as was done by the Company in the Cabot Carbon case, above.
The fact that grievances were adjusted in the presence of the so-called committee
or even at the suggestion of the committee is not decisive of this issue This is per-
mitted, under these circumstances , in accordance with the proviso to Section 9,(a)
of the Act that states , "Provided, That any individual employee or a group of em-
ployees shall have the right at any time to present grievances to their employer and
to have such grievances adjusted, without the intervention of the bargaining repre-
sentative , . . . [under conditions not relevant here] " At this time there was no
bargaining representative , and it would appear that a group of employees would have
the right to adjust grievances without its being called a labor organization
However, assuming arguendo that the committee was a labor organization within
the meaning of the Act, we reach the second problem in this area . Did the Re-
spondent "dominate , interfere with, or support" an employee committee which
Congress has defined to be a labor organization Under the facts as stated in this
case I see nothing upon which to base a finding that the employer either dominated,
interfered with, or supported this so-called committee . There was nothing regular
about the committee . Its membership fluctuated ; it was created to be a witness; and
it did essentially serve only as a witness . Under these facts , I cannot make a
finding that the Respondent dominated , interfered with or supported this committee
within the meaning of the Act. To go outside of the Act would abridge freedom of
speech in violation of the first amendment of the Constitution.
In Walton Manufacturing Company, 126 NLRB 697, 699, 700, the Board found a
violation of Section 8(a)(1) of the Act when the respondent in that case estab-
lished a management -employee committee for "safety , sanitation , and advisory
matters ." There, the respondent created the committee in an announcement and set
out times when it would meet , what its purpose was, who its members should be and
gave the length of terms of its membership . The implicit purpose of the com-
mittee was to deal with wages, hours , or other conditions of employment. The
Board found that even though that committee was not actually established, the
announcement alone was a violation of Section 8(a)(1) of the Act. The present
case is clearly distinguishable.
Under all the circumstances set out above , I find that the General Counsel has
not established by a preponderance of proof that the so-called committee was estab-
lished by Respondent in violation of Section 8(a)(1) of the Act. The committee
did not speak for the employees nor represent them in dealine with Respondent.
Rather, it was a group of bilingual employees acting as impartial witnesses to man-
agement actions . Recently, the United States Court of Appeals at Washington, D.C.,
stated that "Substantial and meaningful participation of employees" is requried in
order to bring an organization within the meaning of a "labor organization " within
the meaning of the Act. (International Organization of Master, Mates & Pilots of
America, Inc., AFL-CIO v. N.L.R.B. [Chicago Calumet Stevedoring Co.], 48
ALBERTO CULVER COMPANY 1449,
LRRM 2624.) There is no "substantial and meaningful participation of employees"
in the committee in this case.
The Testimony of Robert Currie
On October 27, the fifth trial day of the case (the previous days were Septem-
ber 12, 13, 14, and 26), the Charging Party called Robert Currie as its witness.
At this point in the proceedings the General Counsel had rested his case (Case No.
13-CA-3746) and the Respondent had called some seven witnesses including
Marion Sansone, his principal witness. There was a question of whether Currie was
only a rebuttal witness or was a witness to disclose newly discovered evidence
for the case of the General Counsel. I permitted testimony in addition to rebuttal
testimony to go in the record subject to a ruling, which I reserved, on a motion to
strike made by Respondent. The additional testimony was permitted on the repre-
sentation made by counsel for Charging Party Gore, at the time the General
Counsel rested his case on September 13, ". . that [it] is conceivable that the
Charging Party may have subsequently two witnesses with respect to a matter that
has just came to my attention today. I have not talked to the witnesses, but I do
not choose to ask for a postponement or adjournment until such time as I have an
opportunity to talk to them. It may not be necessary to call them, because of the
cumulative nature of the evidence." On objection by Respondent to any testimony
from Currie other than rebuttal, the following took place:
TRIAL EXAMINER: Is this related to the information just coming to your
attention Mr. Gore, as you referred to in a previous transcript?
GORE: Yes, this is information that came to our attention.
TRIAL EXAMINER: Why would that information come to your attention
recently. Is this general information you get?
GORE: This is only the opening testimony, Mr. Examiner.
TRIAL EXAMINER: Can we get past this.
GORE: Let me suggest this: Counsel seems for some reason disturbed.
TRIAL EXAMINER: Well, I think he may want to complete the case this after-
noon. [Emphasis supplied.]
I find from the above questions and answers that counsel for the Charging Party
did not answer the question of whether the information was newly discovered, and
accordingly the Charging Party failed to bring Currie into the category of the two
witnesses who might have matter that had just come to his attention on Septem-
ber 13. Accordingly, I hereby strike all testimony by Currie, other than rebuttal
testimony, from the record as this is matter which the General Counsel or the
Charging Party could and should have educed in their case-in-chief. Not having
done so, it is untimely to seek to put in the evidence on October 27, almost 11h
months and five hearing dates later. Hearings, to be fair to the parties, must be
conducted in a regular procedure unless good cause to the contrary is shown. Even
hearings must have an end.
As to Currie's rebuttal evidence, it related to the question of whether Castro
talked to the girls or was away from his job station often as testified to by Respond-
ent's witness Sansone I find this evidence insubstantial to counteract the testimony-
of Sansone. Additionally I do not credit him, based upon his demeanor. His car-
riage, behavior, bearing, manner, and appearance when testifying before me did
not persuade me that he was testifying openly and freely and truthfully. (See
N.L.R B. v. Howell Chevrolet Company, 204 F. 2d 79 (C.A. 9), and cases cited
therein.)
8. The discharges of Agosto and Martinez
As noted above, the complaint in Case No. 13-CA-3940 was amended to allege
the violation of Section 8(a)(3) and (1) of the Act by the discriminatory discharge
of Sonny Agosto on August 23, 1960,21 and Jose Martinez on September 1, 1960.
This matter was heard on August 17, 1961. The General Counsel and counsel for
Charging Party jointly moved to withdraw the case relating to Martinez because of
the fact that he was not available as a witness. The motion was granted and Jose
Martinez was dropped from the complaint.
The case for Agosto turns on credibility. He was the only witness for the General-
Counsel on the extent of his union activity and as to whether there was company
knowledee of his union activity. He worked for Respondent from May 2 to
August 22. 1960, the date of his discharge. If he is credited, the General Counsel-
az The parties, at the hearing, stipulated that the discharge was made on August 22, 1960.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will successfully carry the burden of proof that he was discharged in violation of
the Act. On the contrary , if he is not credited , the General Counsel has not sus-
tained the burden of proof and the complaint must be dismissed . He testified on
three different hearing dates, i.e , April 26 and 28 and August 17, 1961.
I am not going to burden this decision with a resume of his testimony because I
ado not believe him. This decision not to credit any testimony of Agosto is based
upon his demeanor-his carnage, behavior, bearing, manner , and appearance-as he
testified before me . He impressed me that he would concoct any story if he thought
it would help him in his personal case. Accordingly, as the General Counsel has
not proven Agosto's union activity nor company knowledge thereof, the case as to
Agosto falls for insufficient evidence 22 It is not necessary to reach and consider
the evidence given by witnesses for the Respondent as to the reason or reasons why
Agosto was fired. Accordingly, I will recommend that the complaint be dismissed
as to the allegations relating to Agosto.
B. The allegations of 8(a ) ( 1) violations in Cases Nos . 13-CA-3940
and 13-CA-4030
The complaint in Cases Nos. 13-CA-3940 and 13-CA-4030 was heard on
April 25, 26, 27, and 28, 1960 . In addition to allegations that Respondent refused
to bargain in good faith in violation of Section 8(a) (5) of the Act, which will be
considered in a section hereafter , this complaint had two allegations of independent
Section 8(a)(1) violations . The first allegation is:
(a) On or about August 3 , 1960, Marion Sansone and Jack Stone inter-
rogated an employee of Respondent ( Agosto ) . . . etc., etc.
As I have discredited the entire testimony of Agosto , above, and as he was the sole
-witness on this point for the General Counsel, I will recommend this allegation
in the complaint be dismissed.
The second allegation is:
(b) On various dates in the month of November 1960, Wesley O. Willard
and Anita Villarreal 23 threatened Respondent 's employees with discharge,
transfer and other reprisals if they became or remained members of the Union
or gave any assistance or support to it , and promised them increases in wages
and other benefits if they withdrew from the Union or refrained from becom-
ing members of it or giving any assistance or support to it.
According to the credited testimony of Anita Villarreal, she scheduled meetings
-of the plant employees in Willard's office. Four or five employees would meet with
Willard and Villarreal at each meeting and each employee attended three or four
meetings. The meetings were started "about a week or so before November" and
were completed about a week prior to the election on November 18, 1960. The
purpose of the meetings was to tell the employees the Company 's side of the story
to "let them know what was going on." Willard told them he wanted them to hear
both sides of the story before they made a decision at the election and he would be
calling them into the office from time to time to discuss and tell them a little of the
Company's story at each meeting.
It is uncontradicted that Willard spoke of the things Respondent had done in the
past without a union. For example , he pointed out the clean and healthy working
conditions enjoyed by the employees , and the fact that they had music in the plant.
He called their attention to the fact that the Charging Party was a woodworking
union and Respondent was in the cosmetic industry and raised the question of
whether the employees had the best union for their needs. He did not say they
should not have any union.
He did talk about the possibility of the plant's closing . There is a conflict in the
-testimony of the witnesses as to how he talked about this . There was talk about the
resulting hardships on the employees with Christmas coming up and no toys for the
children. Witnesses for the General Counsel could not recall hearing him saying
anything about the union striking if it won the election . However, I find from the
credited testimony of Villarreal that he prefaced his remarks about the plant
shutting down with strike action taken by the Union. With respect to this point,
she credibly testified:
22 The cases on this point are too numerous to mention
"Anita Villarreal spoke English and Spanish and Interpreted for the Spanish sneaking
-employees Tt is unnecessary to decide whether she is a supervisor or agent for Respond-
ent in view of the determination of this matter below
ALBERTO CULVER COMPANY 1451
Mr. Willard said that if the Union would win , they would go into negotiations,
and if they didn' t [agree], the Union would probably call a strike. And that
during the strike the Company would be closed because it would not operate
while there was a strike going on.
(The record is hereby corrected by inserting the bracketed word which was inad-
vertently omitted in the transcript. This correction is based upon my recollection of
the testimony and my notes taken at the time of the testimony.) Continuing with
her credited testimony:
Q. (By Mr. GILL.) Did he say why they would not operate?
A. Because they would not operate while the Union was having a strike.
They wouldn't work while the strike was going on.
One of the employees mentioned that it would be two days they would be
closed. Mr. Willard said that we didn't know, it could be a week-two weeks-
or maybe more. That no one would know how long the Company would be
closed.
Further, there was a conflict of testimony as to whether Willard promised a wage
increase if the Union lost the election. Villarreal denied that this happened and her
denial is credited. Manuela Garcia, at one of the meetings, wanted to know why
she did not get a 5-cent wage increase. Willard told her he could not promise any
increases. "That wages couldn't be touched due to the activity of the Union going
on. . . . He couldn't promise anything at that time." Also Willard demonstrated
how the employees should vote in the election. He told them to be sure to mark the
X inside the square "Yes" or "No" because if they marked it outside it would not
count for any vote. He told them Respondent preferred that they vote "No," just
as the Union preferred they vote "Yes." He did not tell them they must vote "No."
The Charging Party put out a handbill,24 the English version of which is repro-
duced herein marked "Appendix B." After asking the employees for their support
for Charging Party, it asked them to compare certain wages, hours, and other terms
and conditions of employment which by inference it had obtained in "better labor
contracts for the Chicago Area." It is not clear just when this handbill was circulated
but it is clear that it and the points involved in it were discussed at some of these
employee meetings. On the other hand, the Respondent, through Villarreal, dis-
tributed to each employee a bulletin bearing date of November 9, 1960, the contents
of which likewise was discussed at some of the employee meetings.25 The contents
of this bulletin referred to a union bulletin distributed on November 7, 1960, in
which the Union "made ten general promises." It then talked about 10 subjects
which, by the way, were items covered in the Union's bulletin reproduced herein
marked "Appendix B." It concluded paragraph 10 with,
You have just as much right to vote against the union as for it. The union
does not want to protect your right to vote against it. We say let your conscience
and good judgment be your guide.
The last and concluding paragraph is,
Please don't be misled by irresponsible promises. Consider all the facts and
then cast your vote. We hope you will then vote "no" on election day for the
mutual good of yourselves and your company.26
1. Concluding findings as to allegation "(b)"
I find that the facts of this matter to be as stated above as I believe Villarreal's
testimony . She impressed me as a truthful person and the record furnishes no com-
pelling reason for rejecting her testimony . These facts do not sustain the allega-
tions in the complaint that Respondent "threatened . . employees with discharge,
transfer and other reprisals if they became or remained members of the Union or
24 Respondent's Exhibit No 8, introduced in evidence, which was distributed to Respond-
ent's employees by Miguel Garza, organizer for the Chicago Area Council to which the,
Charging Party belongs.
25 This bulletin was introduced in evidence as Respondent's Exhibit No. 3, the English
translation of which is reproduced in full marked "Appendix C "
28Additional exhibits of handbills distributed by Respondent and Charging Party were
also introduced in evidence It would serve no useful purpose to reproduce them here
The above fairly states the facts of the case as I find them Likewise, It is unnecessary
to detail the evidence of General Counsel's witnesses which was denied by Villarreal, who-
is credited Thus there is no need to consider evidence given by Respondent's witnesses
in corroboration of Villarreal's testimony
1452 DECISIONS OF NATIONAL LABOR REL ATIONS BOARD
gave any assistance or support to it or promised them increases in wages and other
benefits if they withdrew from the Union or refrained from becoming members of
it or giving any assistance or support to it."
It is well settled by the Board and the courts that in determining whether an
,employer's conduct amounts to interference, restraint, or coercion, within the
meaning of Section 8(a)(1), the test is not the employer's intent or motive, but
whether the conduct is reasonably calculated, or tends to, interfere with the free
exercise of the rights guaranteed by the Act. If the setting, the conditions, the
methods, or other probative context can be appraised, in reasonable probability, as
having the effect of restraining or coercing the employees in the exercise of such
rights, then this activity on the part of the employer is violative of this section of the
Act. The meetings of employees were called only to give the employer's side of the
story. The employees were encouraged to vote accurately and the way they really
desired. They were told by voice and by handbills that they could vote for the
Union or against the Union without fear of reprisal or promise of benefit.27 Accord-
ingly, the General Counsel has not successfully carried his burden of proving by
a preponderance of the credible evidence that Respondent violated Section 8(a)(1)
of the Act, and I will recommend this portion of the complaint be dismissed.
2. The allegations of the refusal to bargain
At the reopened hearing in April 1961, the parties stipulated in essence as follows:
the Charging Union filed a representation petition in Case No. 13-RC-7271 on June
20, 1960; on October 26, 1960, the Board issued a Decision and Direction of Election
-finding the appropriate unit to be "all production and maintenance employees of
Respondent Employer at its Melrose Park, Illinois plant" (including and excluding
certain employees about which there is no issue); in the following secret ballot elec-
tion on November 18, 1960, 100 ballots were cast of which 58 were for the Union,
'28 were against the Union, and 14 ballots were challenged; the Respondent filed
timely exceptions to conduct affecting the results of the election; the Regional Director
conducted an investigation and, on January 3, 1961, issued his report of objections
recommending the objection be overruled and that the Board certify the Union;
Respondent filed timely exceptions to this report; on February 20, 1961, the Board
issued a supplemental decision and certification of representatives adopting the
recommendations of the Regional Director, overruling the objections to the election,
and certifying the Charging Union as the exclusive representative of all the em-
ployees in the unit; on February 27, 1961, Respondent filed a petition with the
Board for reconsideration of the supplemental decision; and on March 7, 1961,
the Board denied Respondent's petition for reconsideration.
The consolidated complaint, in Cases Nos. 13-CA-3940 and 13-CA-4030, heard
.at the reopened hearing in April 1961, alleged the following to be a violation of
.Section 8(a) (5) of the Act, after first defining the stipulated appropriate unit:
VIII.
(a) On or about November 18, 1960, a majority of the employees of Re-
spondent in the unit . selected the Union as their representative . and
on or about February 20, 1961, the Board certified the Union as the exclusive
collective bargaining representative of the employees in said unit.
(b) At all times since on or about November 18, 1960, and continuing to date,
the Union has been the representative for the purposes of collective bargaining
of the employees in the unit described ... .
IX.
Commencing on or about November 22, 1960, and continuing to date, the
Union has requested, and is requesting, Respondent to bargain collectively with
respect to rates of pay, wages, hours of employment, and other terms and condi-
tions of employment as the exclusive bargaining representative of all the em-
ployees of Respondent in the unit described . . . .
X.
Commencing on or about November 22, 1960, and at all times thereafter,
Respondent did fail and refuse, and continues to fail and refuse, to bargain .. .
and more particularly on or about November 22, 1960, on or about February
21 The fact that the Union won the election on November 18, 1900, is not relevant in
,determining as a matter of law whether Respondent's conduct violated the law
ALBERTO CULVER COMPANY 1453
22, 1961 , on or about February 28, 1960, and on or about March 2, 1961,
Respondent did refuse to recognize and/or bargain with the Union as the
exclusive collective bargaining representative . .. .
As noted above, the hearing was again reopened on August 17, 1961 . At this
time Case No. 13-CA-4357 was consolidated with the other cases. The complaint
in this new case specified as follows:
VII.
Commencing on or about November 22, 1960, and continuing to date the
Union has requested, and is requesting , Respondent to bargain .. . .
VIII.
Commencing on or about November 22, 1960, and all times thereafter and
'continuing to date Respondent did fail and refuse . . . to bargain . . . in that:
a. Respondent negotiated with the Union in bad faith.
b. On or about June 12, 1961 , Respondent unilaterally changed existing
wage rates and other terms and conditions of employment of the em-
ployees in the unit described ... .
At the commencement of the hearing on August 17, 1961, I ruled that I would hear
no evidence in the refusal to bargain part of the case for the period prior to the date
of the last hearing in April unless it was newly discovered evidence. The ruling
was based on the fact that the matter involved in the April hearing reached events
in the period between November 1960 and the hearing date in April 1961. Those
matters having been litigated , the August hearing would be confined to matters
between April 28 and August 1961 on this phase of the case. Otherwise there
would be no end to litigation . Now with the pertinent allegations of the two com-
plaints above I will discuss the facts of the issue.
Respondent stated that it would bargain with the Union "if and when" it became
certified, it refused the first request to bargain after the election and filed objec-
tions to the conduct affecting the result of the election. The Regional Director con-
ducted an investigation and issued his report on January 3, 1961, recommending
that the objections be overruled and the Union certified. On January 6, 1961, the
Union again requested Respondent to meet for bargaining. Again Respondent
refused stating it would bargain if the Union was certified and advising that appeal
was taken to the Regional Director's report. Accordingly, the Respondent filed excep-
tions to the report and on February 20, 1961, the Board issued a supplemental
decision adopting the Regional Director 's recommendations and overruled the objec-
tions to the election and certified the Union as the exclusive representative. As
certified, the Union on February 21, 1961, requested a commencement of negotia-
tions for collective bargaining. On February 24, 1961, Respondent replied by letter
and declined to bargain on the ground that the Union (Charging Party) was not
entitled to represent the plant employees. This letter was addressed to Mr. Sam
Spann, business representative Local 1608 Furniture and Woodworkers Union,
Chicago , Illinois. Inasmuch as this address was insufficient , it was returned to the
Company and remailed on March 2, with the address of the Charging Union properly
put as 729 Southwestern Avenue, Chicago 12, Illinois. It was delivered at that time.
However, on February 24 (after the February 24 letter had been signed), Re-
spondent's negotiator, Gill, telephoned the Charging Party from Personnel Manager
Davis' office and set up a meeting that day with Sam Spano and Dominic Rubino
of the Charging Party. Respondent emphasized at this meeting that it had no
intentions of bargaining while the present unfair labor practice charges were pend-
ing, although it was meeting "to break the ice." On February 27, 1961, Respondent
filed a petition for reconsideration of the supplemental decision in Case No.
13-RC-7271 (not published in NLRB volumes). On February 28, 1961, the Union
again requested bargaining negotiations . Respondent 's reply to that request was they
could not bargain because of the absence of its president from the city. The Union
then requested Respondent to set a time for a meeting to which Respondent replied
it would not bargain because the Union's status was "in serious doubt." On March
7, 11961, the Board denied Respondent's petition for reconsideration. On March 10,
1961 , the Union again requested collective bargaining and on March 20, 1961,
Respondent replied it would meet with the Union . As of March 3, 1961, Respondent
notified Rubino that Respondent at that time had no intention of negotiating with
the Union. This is from Rubino's credited testimony.
On March 20, 1961, Respondent, while stating it would meet with the Union
"inasmuch as by law you are now the certified representative, if not the majority
representative, in fact" asserted: "we are deeply concerned about your capacity,
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willingness and ability to engage in good faith collective bargaining. Our reasons are
several, namely that your local obtained a majority vote because of coercion. .. .
Thereafter meeting between representatives of the Union and the Respondent were
held on March 30, April 13 and 24, May 11, 25, and 26, and on July 17, 1961. The
latter meeting was held with the Federal Mediation and Conciliation Service. Gill
was the chief negotiator for Respondent and did its speaking at these meetings each
of which lasted between 2 or 21/2 hours.
Again, according to the credited testimony of Spano and Rubino,28 the Union
presented its contract proposals at the March 30, 1961, meeting. At that time Re-
spondent refused to agree to the Union's proposals for union security, checkoff,
arbitration, and the Union's health and welfare program. As to the health and wel-
fare provision the Respondent secured a copy of the Union's brochure. At this meet-
ing Gill gave Respondent's reasons for refusing union security. These were that inas-
much as 28 people had voted against the Union the Company did not feel that these
28 should be forced to join the Union and also that the Charging Union did not
represent the majority of the employees. Respondent felt that the Charging Party
had won the election under "coercion " At the April 13 meeting Respondent's
contract proposals were discussed after it had insisted that the parties work from its
proposals inasmuch as the Union was not qualified to handle the situation. There-
after the parties never again discussed the Union's contract but worked solely
from Respondent's proposals. Without going into detail as to the provisions of Re-
spondent's proposal, suffice it to say that it contained a management rights clause, a
union responsibility clause containing a no-strike provision with a provision for
indemnity in case of strike, a multistep grievance procedure clause, providing for
final disposition by the general manager of the Respondent, and a clause providing
that "no employee shall be required to join the Union."
Prior to, at, and subsequent to the meeting of April 24, Respondent insisted
that work rules "were the Company's prerogative and they were not negotiable
[and] . . . that the Company would make them and the Union would not partici-
pate in . . . making work rules." At the April 24 meeting Respondent continued
to refuse to grant union security and checkoff while insisting on a no-strike clause
and the Union's financial liability for breach thereof. Respondent also refused to.
agree to arbitration and the Union's health and welfare plan on the ground Respond-
ent had its own.
At the May 11 meeting Respondent again refused to grant anion security or check-
off, refused to accept arbitration of disputes giving the final say on all disputes to.
the plant manager, and saying "under no circumstances would [Respondent] let any
outsiders come in and dictate the policies of the Company." Respondent at this
meeting also declined to accept the Union's health and welfare plan, stating it had
its own, and also "it was something . sponsored by the Union, and . .. the
Company didn't have anything to do with it, and that they had their own program,
and they were not going to pay a salary directly into any union programs." Re-
spondent again insisted on a no-strike clause with the Union being financially re-
sponsible for it and continued to state that work rules were "not negotiable " Up
to and including the meeting of May 11, wages had not been discussed and neither
party had made wage proposals. At the May 25 meeting, however, the Union pre-
sented a $50,000 package proposal representing 25 cents per hour per employee,
covering a wage increase, the difference between Respondent's and the Union's
health and welfare plan and all other fringe benefits. Respondent, without accept-
ing, rejecting, or discussing the Union's proposal stated it would make a wage offer
later. At this meeting Respondent again said "no" to union security, checkoff, and
to the Union's health and welfare plan on the grounds it had its own while insisting
on a no-strike clause and the Union's financial responsibility. Respondent stated
at this time it was prepared to consider the possibility of arbitration on discharge
cases only.
At the May 26 meeting, the Union presented a copy of proposed work rules and
a health and welfare brochure which Respondent initially said it would study. Re-
spondent then proposed a general wage increase of 4 cents per hour for employees
who had worked for Respondent from 6 months to a year, 5 cents for employees
who had worked from 1 to 2 years, and 6 cents per hour for employees who had
worked over 3 years, and asked whether the Union was prepared to bring this to
the employees. The Union stated it believed there were still items on which there
should be bargaining. Thereupon Respondent stated its position as follows: union
security-no; checkoff-no; arbitration-Respondent would arbitrate discharge cases
only; there must be a no-strike clause and union financial liability; work rules-"not
xs These witnesses impressed me as being truthful and the record furnishes no compelling
reason to reject their testimony.
ALBERTO CULVER COMPANY 1455
negotiable"; Union's health and welfare-no, the Company has its own; wages-as
Respondent offered; seniority-either no or will discuss. Respondent asked whether
the Union would bring this offer to the employees and the Union stated that it would
if it were the Respondent's final offer. Respondent asked if the Union would
recommend its acceptance to which the Union stated it would not. The Union
notified Respondent it could not have a meeting for 2 weeks to which the Respond-
ent agreed.
On June 7 the Union notified the employees of a shop meeting to be held to
approve or reject Respondent's proposals. On June 9 the employees met and voted
to reject the offer.
On June 12, 1960, Respondent, without consulting the Union and before being
notified by the Union that its offer was rejected, unilaterally instituted a general
wage increase, the terms of which were as offered by the Respondent at the May 26
meeting, informing its employees: . . the Company feels you have waited long
enough for a wage increase. You deserve a general wage increase. Consequently
we are going to see to it that you get a wage increase irrespective of the consequence
from any additional charges which may be filed by the Union." On June 13 the
Union notified Respondent of the employees' June 9 rejection of its offer and re-
quested further bargaining and the use of mediation and conciliation service. Re-
spondent answered this request and the Union's plea for an "early reply" by stating
that its chief negotiator was out of town and would contact the Union on his return,
giving no date for this return. Thereupon the Union requested the services of the
mediation service.
On June 25 and 26 there was a series of telephone conversations between Gill
and Rubino. It was finally agreed there would be a meeting on July 7 between the
Union and Respondent and a meeting July 17 at the Federal Mediation and Con-
ciliation Service. Rubino desired to arrange a meeting at the mediation service be-
fore July 17, but Gill responded that July 10 was too early and that he was busy
July 13. Then on July 3, without giving a reason, Respondent canceled the meeting
scheduled for July 7.
A meeting was held July 17 at the Mediation and Conciliation Service. At this
meeting the parties agreed that the points in dispute were "union security; checkoff;
arbitration; seniority; union financial responsibility; no-strike clause; the Union's
health and welfare plan; work rules; and the wage increase. After discussion, the
mediator informed the Union that Respondent's position on these points was as
follows: union security-no; checkoff-no; arbitration-Respondent would arbitrate
discharge cases only; seniority-would discuss, Respondent wanted the Union's finan-
cial responsibility and no-strike clause; work rules-"not negotiable . we will
not negotiate them"; Respondent had already given a wage increase; and the Union's
health and welfare-no, Respondent had its own. There have been no meetings
since that time, the Union receiving no answer to its request for further bargaining.
Summary of the Refusal To Bargain Allegation
From the above it appears that throughout the course of negotiations and at
almost all meetings, generally as a reason for refusing union security, Respondent
stated it did not believe the Union represented a majority of the employees and that
it had won the election through coercive tactics. A typical statement was that "the
people didn't need a union . . . that [the Union] had organized these people through
coercion and intimidation." 29 Respondent maintained that the Union had a coerced
majority, that it did not have a majority as of May 11, and that at several of the
meetings Gill said that if there was another election the Respondent would win.
According to the credited testimony of McAvoy, Gill at the meeting on April 24
without further elucidation stated "that he had information on the Upholsterers
International Union which precluded any honest negotiations, and that he would
not trust the Upholsterers International. Also that Local 1608 did not belong as
the bargaining agent in this particular case, because they did not represent any other
employer engaged in the same industry."
Discussion and concluded findings with respect to the 8(a)(5) allegation.
After a study of the entire record in this case, including the briefs of the parties,
I am impressed with the statement attributed to Edmund Burke. Burke is reputed
to have said,
Manners are of more importance than laws. Upon them, in a great measure,
the laws depend. The law touches us but here and there, and now and then.
'9 According to the credited testimony of Kenneth McAvoy, chairman of the Upholsterers
International Union, Chicago Area Council.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize
or refine us, by a constant, steady, uniform, insensible operation, like that of
the air we breathe in. (Quoted in the World of Law, Volume I the Law in
Literature, edited by Ephraim London, Simon and Schuster, New York.)
The role of the Board in the dynamic arena of collective bargaining is .not to condemn
conduct but rather it is to see if the law is violated and if it is violated then to fashion
an order to correct the violation in carrying out the purposes of the Act.
The preamble to the amendment to the National Labor Relations Act, states, among
other things, that it is "to equalize legal responsibilities of labor organizations and
employers." In Section 1(b) it states:
Industrial strife which interferes with the normal flow of commerce and with
the full production of articles and commodities for commerce, can be avoided
or substantially minimized if employers, employees, and labor organizations
each recognize under law one another's legitimate rights in their relations with
each other, and above all recognize under law that neither party has any right
in its relations with any other to engage in acts or practices which jeopardize
the public health, safety, or interest.
It is the purpose and policy of this Act, in order to promote the full flow of
commerce, to prescribe the legitimate rights of both employees and employers
in their relations affecting commerce, to provide orderly and peaceful procedures
for preventing the interference by either with the legitimate rights of the other,
to protect the rights of individual employees in their relations with labor
organizations whose activities affect commerce, to define and proscribe practices
on the part of labor and management which affect commerce and are inimical
to the general welfare, and to protect the rights of the public in connection with
labor disputes affecting commerce." [Emphasis supplied.]
One of the "peaceful procedures" envisaged and set out in the Act is that an
employer must bargain in good faith with the majority with the exclusive repre-
sentative of its employees.30 In determining whether an employer has failed to
bargain in good faith, the Board views the "entire bargaining pattern of Respond-
ent in its totality" (Reed & Prince Manufacturing Company, 96 NLRB 850,
857, affd. 205 F. 2d 131 (C.A. 1)). Respondent's entire course of conduct must be
examined, remembering that "It is not sufficient to satisfy the statutory obligation
to bargain that the parties meet, listen to each other's proposals for a contract, and
make counterproposals." (Duro Fittings Company, 121 NLRB 377, 383; Reed &
Prince, supra; American Aggregate Company, Inc. and Featherlite Corporation, 125
NLRB 909, 918, 919, affd. 285 F. 2d 529 (C.A. 5)). In looking at the entire course
of conduct it is also necessary to examine the substantive terms of proposals. For,.
as Chief Judge Magruder noted:
It is true, as stated in N L.R.B v. American National Ins. Co., 1952, 343 U S.
395, 404, . that the Board may not "sit in judgment upon the substantive
terms of collective bargaining agreements " But at the same time it seems clear-
that if the Board is not to be blinded by empty talk and by the mere surface
motions of collective bargaining, it must take some cognizance of the reason-
ableness of the positions taken by an employer in the course of bargaining
negotiations. [Reed & Prince Manufacturing Company, 205 F. 2d 131, 134
C.A. 1).1
The General Counsel's credited evidence established the fact that the aim of the
Respondent during the course of "bargaining" was to avoid entering into a collective-
bargaining agreement with the Charging Party.
so Section 8(a)(5) and (d)
It shall be an unfair labor practice for an employer-
s s s i. a t s
(5) to refuse to bargain collectively with the representatives of his employees,
s s s s i. s s
(d) For the purposes of this section, to bargain collectively is the performance of
the mutual obligation of the employer and the iepresentative of the employees to.
meet at reasonable times and confer in good faith with respect to wages, hours, and'
other terms and conditions of employment, or the negotiation of an agreement, or-
any question arising thereunder, and the execution of a written contiaet incorporat-
ing any agreement reached if requested by either patty, but such obligation-does not-
compel either party to agree to a proposal or require the making, of a,concession, . .
ALBERTO CULVER COMPANY 1457
I find that Respondent has failed to bargain in good faith with the exclusive rep-
resentative of its employees for the following major reasons 31
1. Respondent's questioning the Union's majority status shows bad-faith bargaining.
Throughout the course of negotiations Respondent questioned the Union's majority
status, maintaining that the Union had a coerced majority, that it no longer repre-
sented the employees, and that it would lose an election if one were held again. A
constant questioning of the Union's majority destroys any chance of good-faith
bargaining. Thus, in American Aggregate Co., Inc., & Featherlite Corp., supra, at
922, an employer's continued assertions and hints during negotiations that the Union
no longer represented a majority was held "to render what negotiations did take place
only meaningless words," leaving "no doubt of Respondent's bad faith." And, not
content to disparage the Union's majority, Respondent continually harped on the
Union's alleged coercive methods in winning the election. Thus did Respondent from
the start of "negotiations" set the stage and atmosphere for bargaining, an atmosphere
which it never allowed to be cleared. But there must be an end to litigation. Good-
faith bargaining cannot be "legalistic." It does not lend itself to a strictly legal eval-
uation of conduct. It is more a matter of mood, of an acceptance of the national
policy, an acceptance of the rule of law which has made this country the great Nation
it is today. The evidence clearly discloses that Respondent did not have the accept-
ance of its duty.
2. The basis for Respondent's refusal to grant union security shows bad-faith
bargaining.
Throughout the course of negotiations Respondent was adamant in refusing to
grant union security and equally adamant in insisting the reason therefor was the
Union's lack of majority status, even though the Board had certified the Union. As
Respondent had accused the Union of lacking majority status even before negotiations
commenced and as this was the reason for refusing to grant union security it is clear
that it entered into the first meeting with a predetermined decision to reject union
security. Entering into collective bargaining with a predetermined decision is not
what is called good-faith bargaining. As Trial Examiner William E. Spencer so,
aptly said:
A predetermined and fixed resolution to reject is not compatible with the term
"negotiate" no matter and how long [the Company] listed to opposing argu-
ments and repeated [its] predetermined rationalization of [its] position. [Cali-
fornia Girl, Inc., approved by the Board in 129 NLRB 209, 218, 219. October 3,
1960.]
Likewise, in Duro Fittings Company, supra, the Board held that a company's
failure to grant union security showed its bad-faith bargaining, its predetermined
position on this bargainable subject making any discussion sterile. And nothing
could render any discussion more "sterile" than Respondent's predetermined reso-
lution in the instant case to reject union security, along with its taunting reasons for
this resolution.32
3. Respondent continued this conduct even after certification. (See Ray Brooks
v. N.L.R.B., 348 U.S. 96.) Respondent utterly refused to bargain over work rules
and hence refused to bargain in good faith. In its proposed contract it stated that
the making and enforcing of plant rules and regulations was its exclusive right, and
thereafter it insisted that work rules were management's sole prerogative and "not
negotiable." However as work rules are "mandatory" subjects of collective bargain-
ing within the meaning of the Act they were bargainable and should have been put
on the bargaining table to be used in the total bargaining picture to arrive at a
collective-bargaining agreement.33 The cases are too numerous to mention in which
the Board and the courts have held that work rules are bargainable subjects. Having
the right to bargain over work rules, therefore, Respondent's adamant insistence that
3i Additional reasons had been advanced by the General Counsel. Because of my find-
ings in this matter it is unnecessary to give any consideration to them
33 "Enforcement of the obligation to bargain collectively is crucial to the statutory
scheme And, as has long been recognized, performance of the duty to bargain requires
more than a willingness to enter into a sterile discussion of union-management differ-
ences " N L R B v American National Insurance Co., 343 U S. 395
33 N L R B v Wooster Division of Borg-Warner Corporation, 356 U S 342 This is
not to say that the Union here must concede or give in to the Respondent's demand as
Section 8(d) of the Act says the obligation to bargain in good faith "does not compel
either party to agree to a proposal or require the making of a concession " N L R B v.
American National Insurance Co, supra
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were "not negotiable" took from the Union part of that which is guaranteed
under the Act and accordingly this action amounts to bad-faith bargaining. As the
court held in N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131,
136 (C.A. 1), "[an] employer who takes the erroneous position that a particular
subject matter is not bargainable can hardly approach discussion of this subject with
an open mind and a willingness to reach an agreement."
4. Respondent refused to bargain in good faith in granting a wage increase.
The law is clear also that an employer may put into effect a wage raise for its
employees if it is the same wage raise it had offered to the Union in bargaining and
had been rejected by the Union. However it seems to me that in the instant case
the Respondent's manner of putting in this wage raise shows such contempt for the
employees' bargaining agent, which would preclude the Respondent from good-faith
responsible bargaining. Respondent told its employees when it gave them the wage
raise, "we believe it is time for action. . Therefore the Company feels you have
waited long enough for a wage increase. You deserve a general wage increase. Con-
sequently, we are going to see to it that you get a wage increase irrespective of the
consequences from any additional charges which may be filed by the Union " This
show of economic power by Respondent is a demonstration to the employees that
only Respondent controlled their economic destinies-regardless of their selection
of an agent or wishes to bargain. Whether or not this was the true reason for mak-
ing the increase is immaterial. As has been wisely said, good-faith collective bar-
gaining must use the power of persuasion and not the persuasion of powe•.
5. Respondent refused to bargain in good faith by failing to deal seriously.
It is well settled that "the Act requires that the bargaining obligation be accorded
the same serious attention as other business affairs of importance," Fetzer Television,
Inc., 131 NLRB 821, and cases cited therein. The Board affirmed this language by
Owsley Vose, Trial Examiner, in his Intermediate Report. There is no question but
what it is galling for a proud employer to be forced by the law of the lard to sit
down and treat and deal with the representative of its employees with the same
serious attention as it must deal with other business affairs of importance. Neverthe-
less that is the law of the land and so long as it continues to be the law of the land
it is the responsibility of the employer to obey it and the obligation of the Board to
enforce it. Consider, if you will, an employer's business affair of importance such
as a defective product. As an example, let us assume that the quality control people
at Respondent's plant detected a breakdown in the quality of the product Surely
when this subject would be brought to the attention of management it would not be
treated with scorn and ridicule and be put down for later discussion with the full
burden on the quality control people. Undoubtedly it instantly would be investigated
with a view to speedy correction I would assume that if serious enough, the actual
manufacture of the product would be brought to a halt in order to be sure the
product was kept to the same high standards necessary in this field of competition.
Now if this attitude of concern over the Company's product were put into the area
of collective bargaining, the result unquestionably would be good-faith bargaining.
That was not done in the instant case by any manner of means. In addition to
belittling the ability of the Charging Party to serve the employees as their bargaining
agent by asserting that it was not the proper union to represent them in the cosmetic
industry, and by stating the employees did not need a union, the Respondent even
became personally abusive by stating it had information on the Upholsters Inter-
national Union which precluded any honest negotiations and that [itl would not
trust the Union." It is not known whether in fact Respondent had such information.
If it did have such information it would be incumbent upon it to discuss this with the
Union so as to remove the obstacle to collective bargaining In the instant case the
observation looks like a predetermined attitude not to deal with the Union. The
misdirected letter of February 24 discloses such contempt as to preclude good-faith
bargaining. The weak alibi that the president was out of town, in a subsequent
refusal to meet, indicates a mental attitude of refusing to bargain in rood faith as
no where else in the record is there any indication that Gill did not have full authority.
In view of the above it is unnecessary to deal with additional bits of evidence tend-
ing to show Respondent's refusal to bargain in good faith.
TV. 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
ALBERTO CULVER COMPANY 1459
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices by
refusing on and after November 22, 1960, to bargain with the Union, the majority
representative and the statutory bargaining representative of its employees in an
appropriate unit, it will be recommended that on request the Respondent bargain
with the Union on all proposals which raise bargainable issues, and, if an under-
standing is reached, embody such understanding in a signed agreement.
Respondent's refusal to bargain in fulfillment of an obligation which "is crucial
to the statutory scheme," convinces me only that this Respondent is in error with
respect to how collective bargaining takes place. I do not and cannot infer from this
conclusion that there is a likelihood of the commission of other unfair labor practices
because it is clear from this record that this Respondent is not engaging in other
unfair labor practices even though they have been alleged and the issues have been
tried in this proceeding. Therefore it will only be recommended that Respondent
cease and desist from refusing to bargain in good faith.
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. Alberto Culver Company is engaged in commerce within the meaning of the Act.
2. Local 1608, Furniture and Woodworkers Union, is a labor organization within
the meaning of the Act.
3. All production and maintenance employees of Respondent at its Melrose Park,
Illinois, plant, including janitors, mechanics, and shipping, receiving, and warehous-
ing department employees, excluding confidential formulation employees, printers,
office clerical employees, plant clerical employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By virtue of Section 9(a) of the Act, the Union has been since November 18,
1960, and now is the exclusive representative of all employees in the above unit
for the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment.
5. By refusing, since November 22, 1960, to bargain collectively in good faith
with the Union as the exclusive representative of employees in the aforesaid unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
6. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. By the said refusal to bargain, Alberto Culver Company, 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.
8. The Respondent has not violated Section 8(a)(1), (2), and (3) of the Act
as alleged in the complaint.
[Recommendations omitted from publication.]
APPENDIX B
ALBERTO CULVER COMPANY WORKERS
Support the Union of your choice. Local 1608-Chicago.
Support a Union that has better labor contracts for the CHICAGO AREA.
Compare for yourself:
Decent wages and good working conditions for you and your family.
Up to 8 paid Holidays.
2 hours off with pay to vote at general elections.
3 days off with pay for death in the immediate family.
Improved free hospitalization and life insurance for each member.
Free hospitalization for your wife and family.
Local 1608 will help you find a job if you quit or are laid off.
Seniority rights and job protection in layoffs and [words obliterated by stamp].
Time and one-half after 8 hours.
641795-63-vol. 136-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Time and one-half on Saturday.
Double time for Sunday work.
Triple time for all Holiday work.
Vacations-one, two and three weeks vacation with pay.
Pay for Jury duty.
Rest periods.
The workers of Alberto will not pay any Initiation Fees during this organization
campaign.
The Union Dues after the contract is approved by the workers and signed will be
$4.00 per month.
VOTE YES FOR YOUR UNION-LOCAL NO. 1608-ON ELECTION DAY-
LocAL No. 1608, AFL-CIO,
729 S. Western Ave.
Chicago 12, 111.
APPENDIX C
ALBERTO CULVER COMPANY
2525 Armitage Avenue-Melrose Park, Illinois-EStebrook 9-3700
To: All Employees. Date: NOVEMBER 9, 1960.
Subject: Wages, Working Conditions, etc.
From time to time the union has been giving you bulletins to read. These bulle-
tins not only contain misstatements of fact but contain many false promises about
what the union is going to do for you. The union knows it can't carry out false
promises and I don't want you to be misled.
On Monday, November 7, 1960, the union gave you another bulletin in which they
made ten general promises. Let's look at each one:
1. The union promised seniority and job security.
You have had seniority for purposes of wage increases, vacations, promotions
and lay-offs since 1955. Job security is dependent upon our volume of business
in a highly competitive market and good workmanship. No union can secure
your job when there is no work available.
2. The union promised better working conditions.
You have a new clean plant and we do everything to make it clean and
pleasant. You have music, rest periods, nearby medical clinic, general dis-
counts on merchandise, emergency assistance on financial and personal matters,
free work uniforms laundered by the company, and many other features. Ask
your friends, neighbors and other working members of your family if their
places of employment can compare with all this. One thing is certain regard-
ing the union's promise-they never did say how they expected to improve these
conditions.
3. The union promised free health and welfare insurance for you and your
families.
You have had free hospitalization and surgical insurance since 1956. In
addition you have free life insurance in the amount of $2,500 to $5,000 for which
your family is the beneficiary.
4. The union promised better wages and benefits.
The peculiar part of this is that the union filed unfair labor charges against
us with the National Labor Relations Board because we have been giving
periodic raises to employees who passed their three month probationary period
and for those who have worked additional periods of six months. We have had
this wage policy for years. The union wants the Labor Board to issue an order
stopping us from giving these wage increases and otherwise reviewing meri-
torious wage increases. We are fighting the issuance of this order. The union
neglected to mention this to you and that is why we want you to know the real
facts. The union has been talking out of both sides of its mouth.
5. The union promised you improved vacations and paid holidays.
You already got more than the union could ever get in those few plants with
whom they have negotiated labor agreements. You are now entitled to one
week of paid vacation after one year of service and two weeks after two years
of service. One of the first benefits the company gave when it started was six
paid holidays for those who passed their three month probationary period.
The union is talking nonsense when they promise to improve the vacations and
holidays.
6. The union promised you there would be no discrimination and favoritism.
You above all should realize that the company has never discriminated or
showed favoritism. The union must be desperate to make such accusations.
TRUMBULL ASPHALT CO. OF DELAWARE 1461
This company has been praised time and time again because of its tolerant re-
ligious and racial employment policy. We have employed people of all races
and all religious creeds. If the union wants to change this policy it means ,that
they want to discriminate and show favoritism to employees of certain races
or religious beliefs.
7. The union promised grievance machinery and an end to bossism.
We already have an active personnel department which will help you at any
time in your grievances . Many of you have taken advantage of its facilities
and whenever you have had a justifiable grievance the personnel department
settled it to your satisfaction . We have no bossism in this company. On the
contrary our supervisors are constantly told they must be absolutely fair but
firm.
8. The union promised you overtime after 8 hours; time and a half for Satur-
day and Sunday work.
We not only pay time and a half for all work over 40 hours in a week but
we pay time and a half for all work in excess of 32 hours in any week where
there is a paid holiday . Saturday work generally is at time and a half because
those hours are in excess of 40. We pay double time for all Sunday and holiday
work. How the union expects to carry out its promise to improve this is a
real mystery.
9. The union promised you a pension.
As you know, we already have been reviewing various pension plans for over
a year. What the union really wants is more money in its own pesion fund
because their pension fund needs money. The union does not say whether they
want pension contribution from you or the company or both . In this respect
they are not particular.
10. The union promised you representation to protect your rights.
This is a matter for you to decide by secret ballot at the election on November
18. You have just as much right to vote against the union as for it. The union
does not want to protect your right to vote against it. We say let your conscience
and good judgment be your guide.
Many of you have been with the company a long time. You have seen us grow.
You have seen us do everything possible to make your jobs as good and pleasant as
the economics of this business permits. The union wants to destroy this friendship.
Not only that but they demand , as I understand it, a minimum of $48.00 per year
of your wages in the form of dues, plus $21 .00 initiation fees , plus possible
assessments.
Please don't be misled by irresponsible promises . Consider all the facts and then
cast your vote . We hope you will then vote "no" on election day for the mutual
good of yourselves and your company. -
Cordially,
(S) E. C. Friedel,
E. C. FRIEDEL.
ECF/bjl
Trumbull Asphalt Co . of Delaware and Warehouse & Mail Order
Employees Union , Local 743, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica. Cases Nos. 13-CA-4085-1,13-CA-4085-2, and 13-CA-4085-3.
April 25, 1962
DECISION AND ORDER
On December 15, 1961, Trial Examiner William Seagle 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 Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
136 NLRB No. 434.