Palette Sample Card Co., Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1961

134 N.L.R.B. 70 (N.L.R.B. 1961)

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Palette Sample Card Co., Inc . and Local 413, International
Brotherhood of Pulp , Sulphite & Paper Mill Workers, AFL-
CIO and Local 222, International Production , Service and
Sales Employees Union . Cases Nos. 2-CA-7199 and 2-CA-7303.
November 8, 1961
DECISION AND ORDER
On June 6,1961, Trial Examiner Thomas A. Ricci issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 and
recommended that such allegations be dismissed. Thereafter the
Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board 1 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with certain modifications of and addi-
tions to the Order in paragraphs as appear therein.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Palette Sample
Card Co., Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Assisting or contributing support to Local 222, International
Production, Service and Sales Employees Union, or any other labor
organization.
(b) Recognizing and contracting with Local 222, International
Production, Service and Sales Employees Union, as the bargaining
representative of its employees unless and until said labor organization
shall have been certified as such representative by the Board.
(c) Performing or giving effect to its February 1960 agreement
with Local 222, International Production, Service and Sales Em-
1 Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated
its powers in connection with this case to a three-member panel [Members Leedom,
Fanning, and Brown].
134 NLRB No. 13.
PALETTE-SAMPLE CARD CO., INC. 71
ployees Union, or to any extension renewal or modification thereof,
or to any superseding contract, unless and until the said labor organi-
zation has been duly certified by the National Labor Relations Board
as the exclusive representative of its employees; provided, however,
that nothing herein shall require the Respondent to vary or abandon
any wage, hour, seniority, or other substantive feature of its relations
with its employees which the Respondent has established in the per-
formance of this agreement or to prejudice the assertion by the em-
ployees of any rights acquired thereunder.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to re-
frain 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 modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Local 222, Inter-
national Production, Service and Sales Employees Union, as the
collective-bargaining representative of its employees, unless and until
said labor organization shall have been certified as such representative
by the Board.
(b) Post at its New York City plant, copies of the notice attached
hereto marked "Appendix."' Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being
duly signed by the Respondent's representative, be posted by said
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 Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby is,
dismissed to the extent that it alleges violations of the Act not found
herein.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order-"
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
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, we hereby notify our employees that :
WE WILL NOT assist or contribute support to Local 222, Inter-
national Production, Service and Sales Employees Union, or to
any other labor organization.
WE WILL NOT recognize or contract with Local 222, Interna-
tional Production, Service and Sales Employees Union, as the
bargaining representative of our employees, unless and until said
labor organization shall have been certified as such representative
by the Board.
WE WILL NOT perform or give effect to our February 1960 agree-
ment with said Local Union 222, or to any renewal, extension,
modification, or supplement thereof, or to any superseding con-
tract, unless and until the said labor organization has been duly
certified by the National Labor Relations Board as the exclusive
representative of our employees; provided, however, that nothing
herein shall require'us to vary or abandon any wage, hour, sen-
iority or other substantive feature of our relations with our em-
ployees which we have established in the porformance of any such
agreement, or to prejudice the assertion by employees of any
rights they acquired thereunder.
WE WILL withdraw and withhold all recognition from Local
222, International Production, Service and Sales Employees
Union, as the collective-bargaining representative of our em-
ployees, unless and until said labor organization shall have been
certified as such representative by the Board.
WE WILL NOT order our employees to listen to solicitation by
Local Union 222 agents, threaten to discharge or otherwise to
discriminate against our employees in their employment for fail-
ure to accept our choice of union, grant pay increases as benefits
for union membership unwanted by our employees, or pay them
for working time spent listening to union solicitations ordered by
our management representatives.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights to
self-organization, to bargain collectively through representatives
of their own choosing, and to engage in other 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 requir-
PALETTE SAMPLE CARD CO., INC. 73
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
PALETTE SAMPLE CARD CO., 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly designated
Trial Examiner in New York , New York, on April 17 thni 20 , 1961 , on consolidated
complaint issued by the General Counsel ', against Palette Sample Card Co., Inc.,
herein called the Company and the Respondent . The issues litigated were whether
the Respondent had violated Section 8(a) (1), (2), and (3) of the Act.
The initial charge in this proceeding ( Case No. 2-CA-7199), was filed on Febru-
ary 15, 1960, and accused the Respondent of having illegally assisted Local 222,
International Production , 'Service and Sales Employees Union , herein called Local
222, in violation of Section 8(a),(2) of the Act. On March 31, 1960, the same
Charging Party-Local 413, International Brotherhood of Pulp , Sulphite & Paper
Mill Workers , AFL-CIO, herein called Local 413-filed a second charge against
the Respondent ( Case No. 2-CA-7303), reasserting unlawful assistance in favor
of Local 222, and also alleging the illegal discharge of employee Ruby Edmond, in
violation of Section 8(a) (3) of the Act. Separate complaints were issued pursuant
to these charges on March 18 and April 18, 1960, respectively . Both the cases were
settled by stipulation dated December 29, 1960, but the Respondent thereafter failed
to comply with the terms and provisions of the settlement agreement . In conse-
quence, the Regional Director , on behalf of the General Counsel, consolidated the
two cases and on March 7, 1961, issued an amended consolidated complaint. It
was on this complaint that the hearing before me took place.
An affirmative defense, set out in the Respondent's answer and reiterated at the
start of the hearing as a motion to dismiss part of the complaint , relies upon the dis-
position of a third case (Case No. 2-CA-7418), also brought against the Respondent
and filed by the same Charging Party, Local 413. The complaint in Case No.
2-CA-7418, issued on July 8, 1960 , made no reference whatever to Ruby Edmond
or to Local 222; its essential allegations were that the Respondent had illegally dis-
charged one Ida Anthony and restrained and coerced its employees away from activi-
ties in favor of Local 413. This latter case was settled by stipulation whereby the
Respondent agreed to pay Ida Anthony $429 for loss of earnings (with the state-
ment she did not desire reinstatement ) and to post notices advising its employees it
would not thereafter resort to illegal methods to prevent their continued adherence
to Local 413. The agreed -upon posted notice also stated-in accordance with long-
established Board requirement for remedial action in unfair labor practice cases-
that the Respondent would not "in any other manner" violate the statute with respect
to employee activities on behalf of Local 413, or "any other labor organization."
The settlement stipulation in Case No. 2-CA-7418 was signed on August 15, 1960,
and the Respondent complied with its terms . It now argues that the Respondent's
action in posting the notice in settlement of that case precludes the Government
from proceeding under the complaints in Cases Nos 2-CA-7199 and 2-CA-7303
on the grounds "either this is res adjudicata or they are attempting to split causes of
action." In substance counsel for the Respondent contends that, having been re-
quired to advise the employees that it would not "in any other manner" interfere
with their statutory rights to choose unions freely, or to interfere with their basic
rights with respect to "any other labor organization ," it necessarily cleansed itself, or
dissipated the coercive effect of any other violations of the basic statutory rights
which mieht have been committed at any time before the regular posting of that
notice. He also argues that because part of the eventual remedy sought by the
General Counsel in both proceedings is the same, it follows that the particular
'74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offenses detailed in the various complaints must be viewed as of like kind and
therefore not relitigable as prosecution upon prosecution. More precisely, he points
to the fact that the instant proceeding, if successful, would end with a notice con-
taining language, in part, phrased like that called for by the settlement stipulation
in Case No. 2-CA-7418.
I find no merit in this affirmative defense. Apart from the discharge of Ruby
Edmond, which the Respondent, inconsistently, concedes may be litigated now
although she was discharged at the time of the events which gave rise to Case No.
2-CA-7418, the essential burden of the consolidated complaint before me is aimed
at the Respondent's conduct in imposing an unwanted union-Local 222-upon
its employees. This matter not only involves a union nowhere mentioned in Case No.
2-CA-7418, but also alleges violation of Section 8(a)(2) of the statute, a different
one from anything suggested in the other proceeding. Both the type of conduct and
the legal issues involved, therefore, vary from the matters litigated in Case No.
2-CA-7418.
More significant, however, is the clear fact that the parties-General Counsel
and Respondent-necessarily understood that settlement of Case No. 2-CA-7418
was not intended to, and did not set at rest the charges contained in Cases Nos.
2-CA-7199 and 2-CA-7303. When the charge in Case No. 2-CA-7418 was filed,
on June 2, 1960, the separate complaints in the other two cases had already been
issued and were in the Respondent's hands. If the intent of the settlement reached
in August in Case No. 2-CA-7418 had been thereby to wipe the slate clean against
the Respondent, the pending proceedings would hardly have been ignored. All
doubt that the Respondent well understood there was no such collateral effect of
the settlement upon the other outstanding complaints, is removed by its written
agreement 4 months later in December 1960 to take further steps-whatever they
may have been-to satisfy the General Counsel's demands with respect to Cases Nos.
2-CA-7199 and 2-CA-7303. This proceeding went to hearing on the consolidated
complaint issued in March 1961 only because the Respondent thereafter failed to
take those steps which it had voluntarily agreed were proper long after the settle-
ment now urged as a legal impediment to any further proceedings in the earlier
charges and complaints. I find no element of undue or improper prosecution of
charges by the General Counsel in this total situation.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Palette Sample Card Co., Inc., is a corporation duly organized under and
existing by virtue of the laws of the State of New York. It maintains its principal
office and place of business at Long Island City, in the city and State of New York,
where it is engaged in the manufacture, sale, and distribution of sample cards and
related products. During the Respondent's fiscal year 1959 it caused to be manu-
factured. sold, and distributed from its New York place of business products valued
about $400,000, of which products valued in excess of $50,000 were shipped by it in
interstate commerce directly to States of the United States other than the State of
New York. I find that the Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act to exercise jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and I find that Local 413 , International Brotherhood of
Pulp, Sulphite & Paper Mill Workers , AFL-CIO, and Local 222, International Pro-
duction , Service and Sales Employees Union , are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The consolidated complaint sets out two major allegations; one is that the Re-
spondent, acting mostly through Seymour Koehl, a high officer, dominant stock-
holder, and general manager of the Respondent, attempted, with promises of bene-
fits and other illegal methods, to compel the employees to become members of Local
222 against their will, extended recognition to that union although it never repre-
sented a majority of the employees, and entered into -a collective-bargaining agree-
ment with it; the second is that Koehl discharged Rubv Edmond because she impeded
his efforts to entrench Local 222 in the plant. The evidence in support of the
complaint was offered by a number of employee witnesses called by the General
PALETTE SAMPLE CARD CO., INC. 75
Counsel. The General Counsel also called Koehl to the stand as a hostile witness,
and elicited information from him on only a limited aspect of the case. Koehl was
not questioned by the Respondent's counsel, who called no witnesses at all. The
testimony of the General Counsel's witnesses thus stands uncontradicted. In
defense the Respondent asserts that Edmond was not discharged but quit volun-
tarily; it also defends generally on the ground that the General Counsel has failed
to prove a prima facie case in support of the complaint.
A. Violations of Section 8(a)2 and (1) of the Act
I credit the testimony of the employee witnesses entirely with respect to the activi-
ties of the Respondent's officials in exercising improper influence upon them to
compel their acceptance of Local 222 as their collective-bargaining agent. Their
testimony was not only uncontradicted, but was given in a forthright, candid, and en-
tirely plausible manner. Most of the witnesses are still in the Respondent's employ
and their testimony is also substantiated by the Respondent's admission that, despite
the fact Local 222 never represented a majority of the employees, the Company
invited the employees to the office to "inspect" the "contract" between that union
and the Respondent. Accordingly I deem it unnecessary to detail the testimony
relating to pertinent facts in terms of which individual witnesses referred to particular
events. The following facts are clear on the entire record and I so find.
For a number of years Local 413 tried unsuccessfully to organize the plant em-
ployees. At least one election, held in the summer of 1959, was lost by that union.
During the last few days of January 1960 representatives of Local 222 appeared at
the premises and distributed their membership application cards. The evidence
as a whole shows that very few employees signed up. Early in the morning of Feb-
ruary 3, 1960-about 9:30 a.m.-two representatives of Local 222-Ladmer, its
president, together with a delegate-entered the plant, shook hands with Koehl, and
conferred with him 10 or 15 minutes in his office. When they emerged one of the
union officials spoke to several girls at their machines and invited them to constitute
a committee and to confer with him. Each of the employees so approached refused.
Koehl then went to the machines of each of these-including Daisy Williams, Felicia
Romez, Aggie Dowdy, Mary Benjamin, Ella Crawford, and Albert Lombardo-and
ordered them to stop their machines and to go into the office to meet with the union
agents. They obeyed, followed Koehl into the office, and remained there when,
after a few minutes, Koehl left. For the rest of the morning Ladmer and his asso-
ciate spoke to these employees of the benefits that would flow from being repre-
sented by Local 222; he spoke of holidays, hospitalization insurance payments, sick
pay, working glasses, and a $5 raise. There was some talk of these benefits being
no different from what the Respondent had been doing for the employees without
a union, and some asked what would happen if the employees refused to sign up
with Local 222. Ladmer said it would be immaterial because he already had a
majority, that "he had a contract signed with the boss," and could call a strike.
Ladmer then called Koehl back into the room and detailed the proposed benefits
he had discussed with the "committee." Koehl protested he could not add $5 to
the wages. The general conference was resumed again in the office after lunch for
an additional half hour. Here Koehl, after talking with his partner; Bremer, offered
an immediate $3 weekly raise and $2 more a year later. Everyone then left the
office and Koehl, speaking through the plant loud speaker, called all the employees
to stop work and gather at one place in the plant. All 75 or 80 workers left their
places, assembled in one area, and were addressed by Ladmer, who stood on a table.
Koehl introduced Ladmer and then stood by to listen. Ladmer proceeded again
to explain the benefits he had detailed in the morning, told the employees that a
majority of them had already signed cards, and called for a show of hands on
whether the employees were agreeable to the contract, including a $3 raise now and
$2 more a year later. There was a general shout of "No," with only one employee
agreeing; the scene was described by one witness as an "uproar." The employees
questioned Local 222's majority status and protested these were benefits they al-
ready had. Ladmer held the workers through an hour and a half, called for a
second vote-with the same results-said he would be back at a future date, and
closed with: "In the meantime , the boss is going to give you some cards. This is
a card what is going to say your benefits is so. And I mill be back. In the mean-
time, you can sign these cards and give it to him."
The Respondent paid all employees for time spent in conference with Ladmer in
the office and while listening to him speak out in the plant area.
Within a few days the Respondent had a printed notice prepared which it posted
at three locations about the plant , where they remained for several months. The
notice read as follows:
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TO ALL EMPLOYEES:
The Circular that has been Distributed to you has been put out by a Union
that has been repeatedly held by The National Labor Relations Board NOT
to Represent our Employees. It is an attempt by OUTSIDERS to mislead
you to your injury. We have your Interest at Heart and have dealt only with
a Union that Represents you.
Your Union Contract is available for 'Inspection at all times, but BEWARE
OF OUTSIDERS, not Recognized by The National Labor Relations Board.
Their purpose is to use YOU as their spies for their OWN SELFISH
INTEREST.
THE MANAGEMENT.
On the following Thursday, the first payday following the Ladmer speech, all the
employees reecived a $3 raise in their weekly pay. Daisy Williams asked her fore-
man, Pedro Davila (called Manos), why the raise, and Davila replied: "You are
in the Union." Williams protested: "I didn't sign a card for Local 222 . . . I'm
not going to pay him a damn thing." She kept arguing, and when Koehl approached
and learned of her complaint, he said: "You are in the Union whether you like it
or not . . . do what you want." Eleuterio DeJesus thought he had been mis-
takenly overpaid and so told Koehl, who replied: "No, this is not a mistake. This
is a raise you got on account of the Union. You are a union member now."
DeJesus also insisted he was not a member because he had not joined-"Seymour,
this union is not good for us and you are trying to force this union in." Koehl's
parting answer was: ". I'm sorry, but who don't want the union can leave, be-
cause this is the union we have."
Koehl also requested employees on many occasions, both in groups and individu-
ally, to sign cards for Local 222. He explained the benefits while they worked,
appealed to them to accommodate him out of friendship, and even used threats
To Pearl Boyd he said: ". . if Local 413 came in and Hymie Lasher [official of
that union], that he was going to treat us so mean that we wished we would quit."
To Harry Miller: ". the people in the factory did not know what was good for
them." Again to Pearl Boyd: ". . . we were stupid for not wanting it."
Koehl accused more than one employee of impeding his efforts. He asked
whether certain employees whom he named were responsible, and added, to Audrey
Brown: "Nobody is going to hurt me, not even 413 . . because I'll fire them and
see if the Union will help them then." Koehl waged a regular campaign with
DeJesus, pleading with him to "let" others sign and to distribute cards; when
DeJesus asked to see the union contract , as the posted notice invited the employees
to do, Koehl said he could not do so.
Koehl gave a supply of Local 222 membership application cards to the office
girl, Sylvia Sussman, with instructions to ask all new employees to sign it when
they were hired. She did so; some signed and some did not. Two days after
Ladmer spoke to the employees from atop the table, Koehl also called a group of
four or five foremen to a special meeting in his office and instructed them to make
efforts to prevail upon employees to join Local 222. They replied they were re-
luctant, lest "it would look as if they were working with the bo ss against the people
in the shop."
Koehl was markedly unsuccessful in his organizational campaign . McFadden,
a foreman, even threatened to quit if he had to solicit signatures. DeJesus gave
Koehl a complete runaround, and virtually laughed at the owner. The parties
stipulated that Local 222 never represented a majority of the Respondent's em-
ployees in any appropriate bargaining unit.
From the witness stand Koehl denied he had ever executed a written contract
recognizing Local 222 as exclusive bargaining agent in the plant. His evasive and
ambiguous explanation of the Company's written announcement that the "union
contract" was at all times "available for inspection," coupled with the failure to
deny any of the testimony showing the most determined resolve to implant Local
222 as the employees' bargaining agent, compel me to reject his denial. His con-
fused and almost unintelligible testimony seems to add up to an assertion that all
he meant, when he said there was a contract to "inspect," was that he had agreed
with Local 222 that in the event it should ever achieve majority status, and prove
the fact to him, he would then extend recognition and sign an agreement with it.
From an established businessman I find such an explanation at best insufficient to
offset the affirmative indication elsewhere in the record that the Respondent had
come to a binding agreement with Local 222 to extend complete recognition to it.
I am satisfied a written agreement was signed. In any event, even assuming this
accord was an oral one, it is clear that the Respondent gave the employees to under-
stand that a contract had been made and that their choice in the matter was no longer
PALETTE SAMPLE CARD CO., INC. 77
of any avail. As Local 222 at no time represented a majority of the employees,
execution of a contract giving it exclusive recognition was clearly a violation of
Section 8(a)(2) of the Act and I so find. The illegal assistance to a labor organ-
ization proscribed by that section, and its inherently coercive effect upon the em-
ployees in their statutory freedom to select a representative of their own choosing,
is found no less in an employer's conduct in creating the impression that it has ex-
tended such unlawful recognition. I also find that Koehl's separate acts of inviting
the officers of Local 222 into the plant to harangue the employees into accepting that
union, his orders to employees to closet themselves with that union agent in the
office and to be subjected to solicitation in the "locus of authority," his threat of
harsh treatment in employment and discharge for refusal to join that Union, his
granting of a raise in pay as a "union benefit," and his payment to all the employees
for time spent listening to the union agents at his instructions, in each instance
constituted further illegal assistance to Local 222 and a violation of Section 8(a) (2)
and (1) of the Act attributable to the Respondent.i
B. The discharge of Ruby Edmond
Ruby Edmond worked for the Respondent for 5 years. During the workweek
ending Friday, March 18, she suffered from a pain in her arm and on that day found
it so painful she decided to go home. At lunch hour, about 12:30, she told Davila,
her foreman, she was leaving work because her arm was "hurting." The foreman
replied: "Ruby, Seymour [Koehl] is going to get angry because so many of you
girls are going home." She left without further talk and did not return to the plant
until Tuesday, March 29.
Edmond telephoned the plant twice during her absence, on Thursday, March 24,
and again on Monday, March 28. Her testimony relative to these telephone calls is
quite confused. At first she said she called in on the Monday immediately following
her departure, or 3 days after March 18. Later, however, she definitely placed one
of the two talks with the office girl as the day before her return, March 28, for she
insisted she returned to work "the next day." Indeed, she expressly conceded she
had erred in saying she had called the plant on the first Monday at all. As to this
conversation, Edmond was also not clear concerning what she said or why she called.
Her first version was that she simply asked Sussman, the office girl, to put her through
to Seymour Koehl, that when she reached him she said she would not be in that day
but the next, and that Koehl replied: "All right, Ruby." As she continued to testify,
Edmond said that in this conversation she told Sussman to tell Seymour she would
not be in that day but the following one. A third version of this same telephone
call was that she told Sussman she would return the next day.
Edmond also telephoned the office girl on Thursday, March 24, to ask her to
deliver her paycheck to Audrey Brown, another employee, who would call for it the
regular payday, Friday. Edmond testified that Sussman then asked her how she was
feeling and that she replied "a little better." Sylvia Sussman, who was called by the
General Counsel to testify about the Local 222 membership application cards which
Koehl instructed her to give all the new employees, said she recalled no telephone
conversations at all with Edmond during the latter's absence. She did not, however,
deny Audrey Brown's testimony, which I credit, that on Friday, March 25, Sussman
delivered Edmond's check to her. Brown also testified that as she was leaving the
office that day, Sussman asked, "How is your friend Ruby?" and she replied: "She
is getting along fine."
When Edmond returned to work on March 29, her timecard was missing from
the clock and her foreman told her to see Koehl, who then said he had heard
Edmond had quit. Edmond replied: "I didn't tell you I quit. I didn't tell nobody
else." Koehl repeated what he had heard and pointed to another girl as a replace-
ment he had hired. Edmond then asked for a layoff slip and received it an hour or
so later.
From the plant Edmond went to the office of Local 413, and from there telephoned
Koehl to inquire who had reported her as having quit. Her testimony, uncontra-
dicted like all the rest, was that Koehl replied: "Ruby, I'm not going to tell you
because you have something in your head that you wouldn't tell me. And I'm not
going to tell you who said it. . . -. You could go to Local 222 and they will give you
a job." Edmond hung up and never returned to the plant.
The complaint alleges that Koehl discharged Edmond because she was a member
of Local 413 and because she refused to support Local 222. To the contrary the
Respondent contends that she quit her job and that no element of dismissal was
1Dixie Bedding Manufacturing Company, 121 NLRB 189, enfd. 268 F. 2d 901 (CA. 5).
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved at all when she ceased work . On the evidence in this record I cannot find
that Edmond intended to leave her job voluntarily .2 She never said so and the
Respondent produced no evidence of any such intent. I deem the fact she sent
for a paycheck due during her absence insufficient to show she thereby intended never
to return to the plant.
The essential issue raised by the complaint, however, is not whether she quit or
was dismissed, but whether the record as a whole proves, by a preponderance of
the affirmative evidence, that the Respondent in fact discharged her because of her
chosen union activities or because of her refusal to assist Local 222, as Koehl,
desired all employees to do. The following facts would tend to support this,
complaint allegation
When President Ladmer, of Local 222, told the assembled employees on February
3, 1960, in Koehl's presence and hearing, that he had a majority of cards signed,
Edmond spoke up to ask to see her card and then said ".. . if I noticed anybody
signed my name to a card, that I would do something about it." Edmond also testi-
fied, quite credibly, that ". . . he [Koehl] would tell me, he would say, `Ruby, I
know you for Hymie [Hyman Lasher, representative and organizer for Local 413]."'
And Audrey Brown said that sometime back in November or December 1959 Koehl
accused her of being an instigator for Local 413, and that "I hear Ruby is an insti-
gator." And lastly, in her final conversation with Koehl, when she called him from
Lasher's office after she had left the plant for the last time, Koehl said to her: "You
could go to Local 222 and they will give you a job."
Against the foregoing, there are other equally unquestioned facts which also bear
a relevancy upon the question of Koehl's possible motivation, but which would indi-
cate that he may not have selected Edmond for an illegal discrimination in employ-
ment. She was not particularly active on behalf of Local 413. She signed a card:
"That was all I did . I wasn't no leader." She never spoke at any union meet-
ing, and conceded that Koehl told her "long ago" that she was "for Hymie."
Edmond was not the only one who spoke her mind in opposition to the attempt
to force Local 222 by Ladmer's speech in the plant on February 3. Archie Wolfe
also quarreled with Ladmer with: "What can you do for us that the boss is not
doing now? He gives us a raise every year. He gives us bonuses for Christmas.
What can you do that he is not doing?" Olric Frazier, another employee, got into,
an argument with Ladmer over who would be steward, and ended with saying aloud:
"you are calling me a liar?" Edmond's expressed opposition to Local 222 was
matched by the responses of others to Koehl's attempts to induce them to join that
union. Like Edmond, when Daisy Williams was told by Koehl she had received a
pay raise because she was "in the union whether you like it or not," she answered:
"I didn't sign any card for the union." DeJesus wrote to the office of Local 222
for a copy of the "contract" to test the notices Koehl had posted about the plant, and
Koehl upbraided him for it, with ". . . you don't have to lie to me . . . you better
stop all that." With complete candor DeJesus flaunted his indifference to Koehl.
And McFadden threatened to quit unless Koehl stopped trying to force him into
soliciting membership for Local 222; Koehl then "just dropped the conversation."
There were others whom Koehl considered antagonistic to his design; he accused
Martha Wilson, Daisy Williams, and Ida Anthony also of putting the "screws" on
him.
Apart from these indications that Koehl's resentment, based on grounds of union
activity, must have been directed more towards other employees, whom he did not
mistreat in consequence, than against the relatively inconspicuous Ruby Edmond,
there is also evidence of the probability, at least, of other unrelated grounds for her
separation from the Company. Koehl was "angry" with her for leaving the shop in
the middle of the day; Foreman Pedro Davilla said at the moment Edmond left that
2 In partial support of its affirmative defense the Respondent placed in evidence the
decision of a referee of the New York State Department of Labor Unemployment Insurance
Referee Section, sustained on review by its appeal board, rejecting Edmond's application
for unemployment insurance benefits A reading of the transcript of testimony taken be-
fore that referee shows that his conclusion was based in part on evidence which was not
offered in the hearing before me and that additional evidence, received on the complaint
in this proceeding, was not available to him Moreover, the referee did not unequivocally
find Edmond had quit, but concluded, "Her cumulative actions provoked her dismissal
and were equivalent to her voluntary termination. . . " I therefore deem the decision in
the unemployment compensation proceeding not binding on me on either the factual ques-
tion of quit or discharge or the allegation of illegal motive in the Respondent's conduct.
See- Transitron Electronic Corporation, 129 NLRB 828
PALETTE SAMPLE CARD CO., INC. 79,
the manager was upset over the fact that "so many " women were going home.
Moreover, Edmond's own testimony shows that there was a practice, if not an obliga-
tory rule, for employees to call into the plant to advise the Company that they were
not coming in for work. Whether this practice involved a call only when a woman
left without notice the day before, or extended to an obligation to report an extended
absence following a midday departure like Edmond's on March 18, is not clear in
her testimony. She said: "You are supposed to call," when illness caused an absence,
but she also added: "I figured after I left Friday, and I told him my arm was hurting,.
that it was my place to call," but she did not do so until 10 days later, March 28.
And finally her total testimony cannot fairly support a finding that when she did
call, the day before her return, she spoke to Koehl at all. She gave three versions
of the conversation: first that she told Koehl she would not be back, then that she
told the office girl to relay the message to him, and last that she just told Sussman of
her intention to return. That she may not have spoken to Koehl at all is also strongly
indicated by the fact that when she came in Tuesday and Koehl said she had quit,
she denied having quit but made no mention of the fact, which she asserted at the
hearing, that the day before Koehl had said to her on the telephone "all right," in
reference to her stated intention to work Tuesday. Had he so assured her the
day before, I think it highly likely she would have reminded him about it then and
there. Nor did she attempt to remind him of any such conversation when she called
him from the office of Local 413 a few hours later.
In weighing the total record on the question of Edmond's separation, I have con-
sidered not only the foregoing detailed direct evidence, but also the fact the Re-
spondent resented any employee activities in favor of Local 413 and resorted to
illegal measures to deny them their statutory freedom to be free of any union not
of their choice. However clear it may be that the Respondent felt no compunction
at violating the statute in one respect, it does not follow that any other of its con-
duct, suspicious as it may be, necessarily was also illegally motivated. In the -normal
operation of a business enterprise employees come and employees go. One essen-
tial element of proof for any allegation of illegal separation is that the employer's
antiunion animus, in one way or another, was directed against the employee involved.
Like any other necessary element of fact this too must be established by a pre-
ponderance of the credible evidence. On consideration of the entire record, in-
cluding those facts which tend to support the complaint, and those which tend to
disprove it, I believe the General Counsel has failed to satisfy the burden of proof
resting upon him with respect to the separation of Ruby Edmond. Accordingly, I
shall recommend dismissal of the complaint as to her.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Company as set out in section I , above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist therefrom and to take
certain affirmative action necessary to effectuate the policies of the Act.
I have found that the Respondent recognized Local 222, International Production,
Service and Sales Employees Union, and entered into an exclusive recognition col-
lective-bargaining agreement with it in the month of February 1960, although that
Union did not at any time represent a majority of the employees of the Respondent
in any appropriate bargaining unit. By such conduct the Respondent has interfered
with, restrained, and coerced its employees in the exercise of their right freely to
select their own bargaining representative, and has accorded unlawful assistance
and support to that Union. In order to dissipate the effect of the Respondent's unfair
labor practices, I shall recommend that it be ordered to withdraw and withhold all
recognition from Local 222, International Production, Service and Sales Employees
Union, and to cease giving effect to the aforementioned agreement, or to any renewal
or extension thereof, until such time as that labor organization shall have demon-
strated its exclusive majority representative status pursuant to a Board-conducted
election among the employees. Nothing herein shall, however, be construed to
require that the Respondent vary or abandon any existing term or condition of
employment. Upon the basis of the foregoing, and upon the entire record in the
case, I make the following:
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Palette Sample Card Co., Inc., is an employer within the meaning of Section
2(2) of the Act.
2. Local 413, International Brotherhood of Pulp, Sulphite & Paper Mill Workers,
AFL-CIO, and Local 222, International Production , Service and Sales Employees
Union, are labor organizations within the meaning of Section 2(5) of the Act.
3. By recognizing and contracting with Local 222, International Production, Serv-
ice and Sales Employees Union, by ordering its employees to listen to solicitation
by Local Union 222 agents, by threatening to discharge and otherwise discriminate
against employees in their employment for failure to accept the Respondent's choice
of union, by granting pay raises as benefits for union membership unwanted by
its employees , and by paying them for working time spent listening to union solici-
tations as ordered by management representatives , the Respondent has contributed
unlawful assistance and support to that union, and has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act, and has thereby engaged in and is engaging, in unfair labor practices within
the meaning of Section 8(a) (2) and (1) of the Act.
4. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Southern Electronics Company, Inc . and United Steelworkers
of America, AFL-CIO. Case No. 10-CA-4640. November 8,
1961
DECISION AND ORDER
On June 30, 1961, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is 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. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only insofar as they are consistent with
the following :
The Trial Examiner found that the Respondent violated Section
8(a) (1), (3), and (4) of the Act by laying off five employees I and
thereafter failing and refusing to recall them because they were union
adherents and had given testimony in a prior Board proceeding z
1Jane Hardin, Louise Kesterson , Margaret Brown, Evelyn Weems, and Cora Belle
Foshee.
2 Southern Electronics Company , Inc., 131 NLILB 1411.
134 NLRB No. 2.