West Coast Casket Co., Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1971

192 N.L.R.B. 624 (N.L.R.B. 1971)

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
West Coast Casket Company , Inc. and Cabinet Makers
& Milimen Local 721, United Brotherhood of
Carpenters & Joinrers of Ameerica,,AFL-CIO
WeW 'Coast - Casket Company, Inc. and Mrs. Gladys
Selvin and Cabinet Makers-4 Milimen Local 721,
United Brotherhood of Carpenters & Joiners of
America, AFL-CIO. Cases 21-CA-8763 and
^21-CA-8807
August ` 13, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER-AND MEMBERS
FANNING AND, BROWN
On' March 10, 1971, Trial Examiner Richard D.
Taplitz issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were Iengaging in certain unfair labor
practices , and recommending that they cease and
desist therefrom and'take de`rtain affirmative'action,
as set forth in the'attached Trial Examiner's Decision.
The Respondents filed exceptions to the Decision and
supporting briefs, and the•Charging Party filed a brief
in support of the Trial Examiner's Deckion. The
General Counserfiled'an answering brief to Respon-
dent Selvin's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding,' and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as herein
modified.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondents, West Coast Casket Company, Inc.,
Los Angeles, California, its officers, agents, succes-
sors, and assigns , and Mrs. Gladys Selvin shall take
the action set forth in the Trial Examiner's recom-
mended Order, as herein modified:
1. Delete paragraphs B, 1, (b) and (c) of the
recommended Order.
2. Delete paragraph B, 2, (b) and renumber the
subsequent paragraphs accordingly.
3. Substitute' the attached Appendix B for the
Trial Examiner's Appendix B.
CHAIRMAN MILLER, concurring: ,
I concur, but I do not agree that the contract clauses
proposed by Selvin on behalf of, Respondent Employ-
er were unlawful or an indication of bad faith.
Furthermore, any single one of Selvin's idiosyncracies,
such as insisting on a specified meeting place,' might
well not be enough, standing alone, to support an
8(a)(5) finding. But it is impossible, for anyone
'experienced in negotiations to read this record and
not conclude that the combination of strategems
utilized by Selvin was designed to produce a complete
breakdown in negotiations, rather than agreement. ,
The unilateral wage increase was part of this overall
strategy. While there ,are circumstances in which an
employer may, (and might even be -required' to)
continue during negotiations with a preestablished
pattern of merit increases based on periodic reviews
of employee performance, it is clear here that Selvin
chose to use the wage review and the ' resulting
unilateral increases as a substitute for a bona fide
wage proposal in the negotiations. Thus, under the
circumstances here, this was one more step calculated
to sabotage any effective bargaining, and indeed it
had precisely that effect.
As to the 8(a)(3) violations, the Examiner tended in
my view substantially to overstate the degree of union
animus evidenced by the record. Nevertheless, I find
sufficient evidence of discriminatory motivation with
respect to the three discriminatees to support the
findings of discriminatory discharge. I fully concur
with my colleague in ruling that the belated motion of
the Respondent Employer seeking an opportunity to--
reopen the record to proffer evidence which it had f
opportunity to present at the hearing cannot'
granted if we are to maintain any semblanc,,
orderly proceedings.
i Respondent, West Coast Casket Company, Inc., requested oral
argument. The request is hereby denied as, in our opinion, the record
these cases, including the exceptions and briefs , adequately presents tL
issues and positions of the parties . We similarly deny the Respondent's
motion to reopen the record. Respondent had adequate opportunity at the
hearing to present available evidence and there is no showing that the
evidence it proposes to introduce was unavailable at that time.
2 Respondent Selvin excepted , inter alra, to the Trial Examiner's
recommended remedy as to herself, claiming that the proposed order is too
broad. We find merit in this exception . Although Selvin has been involved
as an employer agent in other proceedings before us , she has not previously
been named as a party respondent. We are not satisfied that in these
circumstances there is a sufficient record as to warrant the entry of a broad
order, as recommended by the Trial Examiner, and we will accordingly
limit the order as to her.
192 NLRB No. 78
APPENDIX B
NOTICE To EMPLOYEES
WEST COAST CASKET CO., INC.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, a Trial Examiner of the National Labor
Relations Board has found that I violated the
National Labor Relations Act, and has ordered me to
post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things
except to the extent that membership in a
union may be required pursuant to a lawful
union-security clause.
I WILL NOT, when I am an agent for West Coast
Casket Company, Inc., do-anything that interferes
with these rights. More specifically,
I WILL NOT refuse to bargain in good faith with
Cabinet Makers & Millmen Local 721, United
Brotherhood of Carpenters & Joiners of America,
AFL-CIO, and Painters Local Union No. 1798,
Brotherhood of Painters, Decorators and Paper-
hangers .of America, AFL-CIO, as the exclusive
representative of the employees of West Coast
Casket Company , Inc., in the following unit:
All production . and maintenance employees, in-
cluding paint department employees and truckdri-
vers, employed by West Coast Casket Company,
Inc., excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
GLADYS SELVIN
(Employer)
Dated By
(Representative) (Title)
"his is an official notice and must not be defaced by
.gone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
- Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 600, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
625
RICHARD D. TAPLITZ, Trial Examiner ; This case was
tried' at Los Angeles, California, on November 30, and
December 1, 2, and 3,1970. The complaint, which issued on
September 25, 1970, as amended during the course of the
trial, alleges in substance that West Coast Casket
Company, Inc., herein called West Coast, violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by threatening employees for engaging in activities
protected by the Act and violated Section 8(aX3) and (1) of
the Act by discharging 121 employees because of their
union activities. In addition, the complaint alleges that
West Coast and its agent, Mrs. Gladys Selvin, herein jointly
called Respondent, violated Section 8(a)(5) and (1) of the
Act by refusing to bargain in good faith with the Cabinet
Makers & Mil men Union Local 721, United Brotherhood
of Carpenters & Joiners of America, AFL-CIO (herein
called the Carpenters), and Painters Local Union No. 1798,
Brotherhood of Painters, Decorators and Paperhangers of
America, AFL-CIO (herein called the Painters), herein
jointly called the Union. Respondent's answer admits many
of the factual allegations of the complaint, but denies any
violation of the Act. The complaint was based on a charge
in Case 21-CA--8763 filed on September 3, 1969, and
amended on September 30, 1969, by the Carpenters and a
charge in Case 21-CA-8807 filed on September 26, 1969,
by the same Charging Party. The charges were consolidated
upon issuance of complaint.
All parties appeared at the hearing, were given full
opportunity to participate, to introduce relevant evidence,
to examine and cross-examine witnesses, to argue orally,
and to file briefs. Briefs, which ,have been -,carefully
considered, were filed on behalf of the General Counsel
and Respondent.
Issues
1. Did West Coast discharge 12 of its employees
because of their activities on behalf of the Union and
thereby violate Section 8(aX3) and (1) of the Act.
2. Did Respondent violate Section 8(aX5) and#1) of the
Act by failing to bargain in good faith with the Union.
3. Did West Coast violate Section 8(a)(1) of the Act'oy
sending a telegram to a striking employee saying in
substance that the employee would lose all interest in her
former employment unless she reported for work.
4. Was a strike engaged in by some of the employees of
West Coast caused or prolonged by West Coast's unfair
labor practices.
Upon the entire records of the case, and from my
observation of the witnesses and their demeanor, I make
the following:
I The original complaint listed 13 employees, but the name Roxanne
Lewis was deleted upon motion of the General Counsel.
2 Counsel for the General Counsel filed a motion to vorrect the
transcript of the record. Certain transcript corrections are duly noted.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. TIME BUSINESS OF WEST COAST
West Coast is a . corporation engaged in the business of
manufacturing and selling burial caskets at its place, of
business located at 1526 East Washington Boulevard,
herein called the Washington Street plant , and 734 East
17th Street, herein called the 17th Street plant , Los Angeles,
California . West Coast annually sells and ships goods
valued in excess of $50,000 directly to customers located
outside the State of California or to customers located
within California each of whom in turn annually sells and
ships materials valued in excess o $50,000 directly to
customers located outside the State of California.
West Coast is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Carpenters and the Painters are labor organizations
within the meaning of Section 2(5) of the Act.
W. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharges
1. The setting
As part of an organizing drive that the Carpenters and
Painters Unions were jointly conducting among the
employees of West Coast 'during March 1969, a meeting
was held at the Painters union hall on March 26, 1969. At
that meeting, the following employees of West Coast either
signed or handed in signed cards authorizing the Carpen-
ters to represent them : Marco Aguirre, Miguel Betancourt,
Jesus Cisheroz, Roy Cooper, Miguel Vilegas, Raul
Betancourt , George Saiza, Regino Encisco, Leopoldina
Hajaistron, Rodolfo Ramirez, Pedro Guarola, and Aurelio
Mena. All of these employees , with the exception of
Aguirre, Guarola, and Hajaistron , also signed cards at that
meeting authorizing the , Painters to represent them.
Hajaistroa mailed in her Painters card shortly after, The
record does not disclose how many employees of West
Coast other than those listed above signed authorization
cards on behalf of the Union , but it was stipulated that the
Union did have additional cards. In April of 1969, five of
the listed employees were discharged . In June, five more
were let go and by July 2, 1969, all of them had been fired.
The organizational drive culminated in a secret ballot
election on June 13, 1969, conducted under the supervision
of the Regional Director for Region 21 of the National
Labor Relations Board. A majority of the employees voted
for the Union and the Carpenters and Painters were
certified on June 24, 1969, as the joint bargaining agent of
the West Coast employees in the following bargaining unit:
All production and maintenance employees , including
s These findings are based on the credited testimony of Guerro. Winkler
denied the substance of Guerro 's testimony . He averred that he had been
told that Duenas kept going into the sewing room at the Washington Street
plant and telling employees that there was going to be a union shop and
that they better get in line ; that Gene Shelton, foreman at,the 17th Street
plant, -told him that Duenas was going there and organizing during working
hours; and that he spoke to Guerro and told him to instruct Duenas to
paint department employees and truckdrivers employed by
West Coast; excluding all office clerical employees,
professional employees , guards and supervisors as defined
in the Act.
2. West Coast's animus towards the Union
a. The Duenas incident
Martin Winkler, Jr., is the president of West Coast and
the executive who makes all, of the day-to-day operational
decisions . Pilar Guerro was for 5 years poor to about
September 15, 1969, a foreman for West Coast . He was in
charge of the trimming room and through a forelady was
also in charge of the sewing room . In the latter part of May
1969 , Winkler had a conversation with Guerro in the
trimming room. Winkler said that an 'employee named
Salvador Duenas was causing trouble by going to the 17th
Street plant and organizing a union . Guerroreplied that as
long as °Duenas went on his own time there was nothing he
could do about it. About a week later, Winkler had another
conversation with Guerro at the same place . Winkler
approached Guerro and said, "Mr. Duenas is still insisting
on going out to the 17th Street plant to organize- , , ., I
think we have to let him go." Guerro replied that Duenas
was a good man and that he [Guerro ] didn't think that
Winkler could let him go. Winkler said - that if IJuenas
wanted to organize, he should work for the Union and,get
paid for it . Guerro replied, 'Ifyou 'want to fire him youhave
to make a check for me; too, because I wouldn'tmalce that
mango." 3
b. The statements by Selvin
Soon after the Union began its organizational drive,
Winkler retained Gladys Selvin as West Coast's labor
relations consultant. All of the Union's dealings with West
Coast were through Selvin . As is more fully set forth below,
Selvin had six meetings ' with the Union after the
certification. All these meetings wereattended by a'reporter
who made a verbatim transcript of the proceedings. The
first of these meetings was on July 2, 1969 , and was
attended by Selvin; Tony Bogdanowicz, business manager -
and recording secretary of the Carpenters ; George Warr-r'
business representative of the Painters; and Pete'
Ceremello, general representative of the Painters Ir`
tional. Warren testified that at this meeting, during a t:
of discussion in which Selvin mentioned that she felt tr E_
union instigator was Winkler's [the president of West
Coast] son-in-law, Selvin said that she intended eventuall''
to get rid of the union instigators or troublemake`
According to Warren, Selvin indicated that West Coast,-
going to terminate those that were in the Union. Tho
the transcript of that meeting discloses discussions abd,
Winkler's son-in-law , there is no mention of such a threat -
by Selvin. Ceremello corroborated Warren's testimony in
stop going into the sewing room and to do what was necessary if Duenas
continued. Guerro, who was foreman of the trinimingtoom , (Duenas was a
trimmer) averred that Duenas was' a good worker and never organized
during working hours. After observing both Winkler and ,Guerro on the
witness stand , I credit Guerro over Winkler. In addition , Winkler's
credibility was damaged, by his testimony relating to the telegram incident
which is discussed, infra.
WEST COAST CASKET CO., INC. 627
part by averring that Selvin criticized the son-in-law as
being the instigator of the trouble in the plant and that she
said that they knew who the troublemakers were and they
were going to get rid of -them. Ceremello attempted to
explain the absence of such statements from the transcript
of the meeting by averring that Selvin made the threat
immediately after she had received a phone call. On
occasions throughout the meetings, the parties did go "off
the record" where Selvin saw fit and presumably the
statements attributed to Selvin were not taken down
because they occurred immediately after an "off the
record" phonecall. Neither Bogdanowicz or Selvin testified
about the alleged threat to terminate the union employees,
though they both took-the stand. Though the testimony of
Warren and Ceremello in this regard is uncontradicted by
Selvin, I do not believe itiis worthy of credit. Warren's
testimony relates to the alleged threat. Ceremello goes
further and quotesSelvin as saying she knew who the union
troublemakers were: The transcript of the record is silent on
this issue and_ Bogdanowicz did not corroborate the
testimony of the two other union officials. After observing
and listening to Selvin for 4 days during the trial and after
reading the transcripts. of the four meetings, I am of the
opinion that the remarks attributed to=her would be so out
of character for her as to be simply unbelievable. Whether
or not Selvin is capable of participating in serious unfair
labor practices , she does go through, the motions of
complying with the law. The transcript of the meetings
indicates a knowledge of statutory language and a
sophistication in labor relations matters which is wholly
inconsistent with the type of statements attributed to her.
She might be instrumental in firing employees'because they
join a union, but she would not tell three union officials that
that is what she was going to do. Selvin's testimony and the
transcripts themselves indicate that she is not always well
organized and that her rambling soliloquies are sometimes
difficult to follow. It may well be that Warren and
Ceremello misunderstood what she actually said; however,
I can make no findings with regard to union, animus or
company knowledge of the employees' union activity based
on their testimony about Selvin's remarks.
3. The discharge of Cooper
Roy Cooper was an employee of West Coast from August
6, 1956, until April 20, 1969, when he was discharged. He
was a trimmer, who worked on the handles and upholstery
of the , caskets. In addition, he put glue on wood caskets so
that cloth- ,could be applied and he placed the beds and
panels- inside the caskets. He worked at the 17th Street plant
under the immediate supervision of Ralph Dennis.4
In the latter part of March 1969, Cooper spoke to another
employee named Rudy Ramirez. Ramirez informed
Cooper that he had contacted the Painters Union and he
asked Cooper whether he was interested. Cooper replied
that he was and a meeting was arranged with a union
representative for the following day after work behind the
building. The next day,' Cooper and five or six other
employees . met George Warren, business representative of
the Painters. Cooper told Warren that he thought the
employees would go for the Union. He-attended the union
meeting at the Painters Hall on March 20, 1969, and signed
cards for both the Painters and the Carpenters. He passed
out six or-seven-cards at the 17th Street plant and gage one
to sewing room supervisor Pearl Meyers. After work,one
day, he also gave a card to his own supervisor, Ralph
Dennis. Dennis took the card and said he didn't know that
that was going on.
On April 20, 1969, Dennis approached Cooper and told
him that he (Cooper) was going to be laid-off. Cooper asked
for a reason and questioned whether it was his work, to
which Dennis replied that it was ,not his work and that his
work was good. Cooper then said, "Well, is it because of the
Union?" and Dennis hunched his shoulders and replied,
"Well, I guess that's it." 5
Later that same day, Cooper asked, Winkler the reason
for the discharge. Winkler replied that they had to start
cutting. Cooper asked why he was being laid off when there
had been a recent hire of an employee named Higgins and
Winkler replied that Higgins had experience as a foreman
in the plant before. Cooper said that he, too, could do the
duties of a foreman, and Winkler replied that he had to
start cutting somewhere.
Winkler testified that Cooper was discharged because
work on cloth caskets was being eliminated and Cooper
spent 90 percent of his time gluing caskets, for cloth covers
and trimming the, cloth-covered caskets. He also averred
that while West Coast was gradually,reducing the cloth
covering work, he gave Cooper other tasks, to do; that he
asked Cooper whether. Cooper wanted to go to the other
plant, to which Cooper answered that he wasn't sure
because he didn't like the foreman there;-and that later the
foreman at the Washington Street plant told him that he
didn't want Cooper because Cooper didn't attend to the
job. Though as is more fully set forth below, there was a
substantial change in the nature of the 17th Street plant's
operation, I do not credit Winkler's testimony'with regard
to the offer of transfer to Cooper or - the -testimony
concerning Cooper's attending to the job. Cooper had been
an employee for some 12-1/2 years, and, according to his
own supervisor, Dennis, he was a good worker. The
Respondent's answer and basic defense throughout the trial
was , that the employees named as discriminatees lost their
jobs because of a reorganization of West Coast's operation
that resulted in the elimination of jobs and less employe
being needed. Winkler's attempt in his testimony to show
that Cooper might have been transferred to the Washington
Street plant but for his own poor work appears to be a shift
in position which sheds' some doubt on Respondent's
defense generally. It is noted that this was, not the onlYsuch
shift. In a statement of position to Region 21 of the Board
dated July 27, 1969, Selvin wrote "No employees at the 17th
Street plant have been terminated by the Company. The
Company is merely phasing out the operation and not
replacing those who quit voluntarily."
On October 30,1970, Cooper visited the 17th Street plant
4 The complaint alleges, the answer admits , and I find that Dennis was did not take the stand, and Cooper's testimony with regard to his
a supervisor within the meaning of Section 2 (11) of the Act. conversation with Dennis was both believable and uncontradicied.
5 These findings are based on the credited testimony of Cooper . Dennis
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and saw -employees doing the same work that he had been
ding before . hjs discharge.
4, The discharge of Ramirez
Rodoifo Ramirez was an employee of West Coast from
January 10, 1962 until June 23, 1969. Listed on West
Coast's records as a spray man, he was a finisher who spent
about a day and a half a week repairing metal caskets and
the balance of the week working on wood caskets . Winkler
testified that Ramirez was an assistant foreman who had
never been downgraded from that position. Ramirez
contradicted Winkler's testimony and averred that at one
time he had been assistant foreman but that some 2 or 3
years prior to his discharge, Winkler stopped giving him a
bonus check and told him that he had no more
responsibilities. West Coast's records listed Ramirez as a
rank-and-file employee and Ramirez voted without chal-
lenge at the Board-conducted election. I credit Ramirez
and find that he was an employee within the meaning of the
Act at the time of his discharge. Ramirez worked at the 17th
Street plant under the immediate supervision of, Gene
Shelton s
Ramirez was at the union meeting on March 20, 1969,
and signed cards for both the Painters and the Carpenters.
In addition, he passed out union authorization cards at the
17th Street plant on two occasions. On about May 15, 1969,
he had a conversation with Winkler in Shelton's presence.
Winkler said that Don [last name unknown], an employee
of another casket company who had been making deliveries
of metal shells to the 17th Street plant, had accused
Ramirez of threatening him to keep him from making
deliveries. Ramirez denied that he had made any threats.
Winkler told: him that if he threatened anyone, he would be
discharged . Winkler then asked Ramirez who paid his
wages. Ramirez replied that the Company did and that he
worked from 7:30 in the morning until 4 o'clock. Winkler
replied, "Well, if you want to be a union organizer, why
don't youilet those bums payyour- wages?" 7
At the Board-conducted election on June 13, 1969,
Ramirez and Salvador Duenas were the union, observers.
Ten days later on June 23, 1969, Ramirez was discharged.
On that day, Ramirez asked, Foreman Shelton why he was
discharged and Shelton replied that they were cutting
dowzi.
The employees went out on strike on September 15, 1969.
Ramirez participated in the picketing. On one occasion
while Ramirez and employee Aurelio Mena were on the
picket, line, Winkler passed by the 17th., Street plant and
said, "What are you boys doing out here? Why don't you go
in to work? The doors are open." Ramirez answered that
they were fired and Winkler replied, "Well, there was a
reason for it " In another conversation on, the picket line,
Winkler asked the pickets to come in where it was warm
and comfortable 8 Ramirez and Aurelio Mena, while on the
a The complaint alleges, the answer Admits, and I find that Shelton was
A supervisor within the meaning of Section 2(11) of the Act.,
7 Winkler testified with regard to the Don [last name unknown ] matter
but did not mention his remark about the Union paying Ramirez' wages.
These findings are based on the credited testimony of Ramirez.
a T'hese findings are based on the credited testimony of Ramirez.
Winkler acknowledged that he asked pickets to come in where it was
warm, but denied he asked them to come back to work . Ramirez credible
picket line, also spoke to Supervisor Shelton . Ramirez
asked Shelton how it was going and Shelton.replied that it
was "lousy as, ever and worse,",and that there was too muck
work. Ramirez said, "If there was so much work, why were
we laid off," and Shelton replied, "Well, you know it, .I
know it, we all know it, but proving it try to prove it." 9
Winkler testified that Ramirez was discharged solely
because the gradual phaseout that West Coast was
undertaking eliminated the need fprhis services.
5. The discharge of Aurelio Mena
Mena was an employee of West Coast from'March 26,
1951, until July 2,1969. Listed on the"Company records as a
polisher, he was a spray painter who worked ' or[ metal and
wood caskets at the 17th Street plant.
Mena attended the 'March 20, 1969, meeting and signed
cards for both the Carpenters and the Painters. =Shortly
after June ' 23, 1969, he met Ramirez on the street, and
Ramirez asked him to tell the other workers that there was
going to be a union meeting on the following Thursday.. lie
told the other workers and went to the meeting. Some 4 or-5
days later, on July 2, 1969, he was discharged.'On that day,
his supervisor, Gene Shelton, told him-that he was sorry but
there was nothing` he could do. The following day, Mena
spoke to Shelton again and asked him why he was being
laid off. When Shelton said that the place was going to be
moved and changed, and there would be things cut-out,
Mena' said, "Well, probably because my union activity.."
Shelton replied, "I don't know. Probably." to
As noted above, when Shelton was talking to Ramirez
and Mena on the picket line, Ramirez asked why they were
laid off, as there was a lot of work and Shelton -replied,
"Well, you know it, I know it, we'ill know it, put proving
it-try to prove it."
On June 11, 1970, Mena was rehired by West' Coast for
the same job as spray painter.
6. West Coast's defense to the discharge
allegations
West Coast was both a jobber and manufacturer of metal
and wooden caskets which it sold primarily to funeral
directors . Some ' of the caskets were purchased complete
from other manufacturers. In addition,, West Coast
purchased metal casket shells and did the necessary work to
complete them. Wooden caskets were manufactured from
scratch and were either polished or covered with cloth. The
steps in production were as follows ': metal shells would be
purchased or wooden shells built, finishers would finish the
outside of the shells by sanding; painting, polishing,
lacquering or whatever else was appropriate, the interior
work such as the installation of the pillows and satin o'the
inside of the casket would be done", and finally the
hardware would be attached to the outside. Some of these
testimony was corroborated in substantial part by Aurelio Mena, who was
also present on the picket line.
It These findings are based on the credited and uncontradicted
testimony'' of Ramirez . Shelton ' did not take the stand . Though Mena's
testimony was less complete than that of Ramirez; the two witnesses did in
substance corroborate each other.
10 These findings are based on the uncontradicted Wand 'credible
testimony of Mena.
WEST COAST CASKET CO., INC. 629
functions were performed at both the Washington Street
and 17th Street plants., The 17th Street plant was used for
finishing metal caskets, polishing wooden caskets, and cloth
work. -In 'the beginning of 1969, West Coast employed
approximately 92 -employees, some 34 to 40 of whom
worked at-,, the 17th Street plant. By the beginning of
December 1970, the employee complement had been
reduced to approximately 52 , or 54 of whom some 5 or 7
were still working mat the 17th Street plant.
In 1964, or 1965, the 17th Street plant was condemned by
the building and safety department of the City of Los
Angeles and West Coast was given notice that it was to be
torn down. The 17th Street plant had been operated by
West Coast since about 1940. After receiving the notice,
West Coast sold the building to the city but remained in
possession as a month-to -month tenant . Because West
Coast expected to be given extensions of the time to vacate,
it took no definitive action for several years, but in 1968
Winkler began thinking about whether to get new space or
to reduce production. Winkler credibly testified that
because of, lack of `capital in the tight money market he
decided in 1968 not to build new premises but instead to
discontinue some of the items betng produced and to
develop a source from which' West Coast could buy the
types of caskets it would no longer be making. Winkler
decided to eliminate polished wood caskets and to move the
cloth covering work from the 17th Street to the Washington
Street plant. An'orderly phaseout of the work at the 17th
Street building was begun with the intention of using up
hardware and parts that were in stock. It had been West
Coast's- practice to buy a large number of metal casket
shells unpainted, but West Coast began to 'purchase the
shells either painted' or the metal caskets completed." By
December 1970, 80 percent of the metal 'caskets were
painted when 'purchased. In the past, almost all the shells
were unpainted. In addition, West Coast found sources of
supply to purchase- more completed, caskets. These
suppliers were outside manufacturers in which West Coast
did not have any investment. The end result was that while
West Coast had produced about 200 polished wood caskets
a month prior to the condemnation of the building, in 1970,
only 35 or 40 were produced a month., Even though West
Coast's business operation changed, it kept doing business
with approximately the same number of customers and the
sale of caskets was about the same in the beginning of 1969
and the end of 1970. The difference was that West Coast
purchased much more merchandise from the outside. The
decision to change the operation was made in the fall of
1968 and West Coast contemplated that it would take 2
years,to, completely get out of the building. In August,1969,
West Coast received the final decision that the 17th Street
plant had to be vacated by the end of that year. Prior to that
time, West Coast had sought another extension. Winkler
testified that the phaseout had reached a point where he
was ready to start laying off people at the beginning of
1969. The date these layoffs began is important because the
union activity did not , begin until, March of that, year.
General Counsel placed in evidence company records
indicating the dates of termination of employees butthose
records only show terminations between April I', and
October 31, 1969. In the absence of any conflicting
evidence, I credit Winkler's version of the above incidents
as set up above. --
The gravamen of West Coast's defense is that all the
people named as discriminatees in the amended complaint
were discharged because there was no work for them due to
the phasing out at the 17th Street plant. Winkler decided
who was to be layed off in the phasing out process after
consultation with lower level supervision. West, Coast
through Winkler further contends that employees were
hired back from layoff status when they were needed
without regard to union considerations. Two of the alleged
discriminatees who were rehired were Raul Betancourt and
Aurelio Mena.
The General Counsel points to the fact that three of the
alleged discriminatees, Raul Betancourt, Leopoldina` Ha-
jaistron, and George Saiza, were employed at the Washing-
ton Street plant at the time of their discharges,,and argues
that West Coast's defense that the discharges were' caused
by a phasing out of the 17th Street plant, does not hive
substance. This argument loses some of its force because, as
has already been noted, some of the job functions were
performed in both the 17th Street and Washington Street
plants. It is to be expected that any serious disruption of the
17th Street plant would also have had an impact on the
Washington Street plant. As the total number of persons
employed kept dropping, it,1s understandable that West
Coast would look to its entire operation to see where cuts
could best be effectuated.
The General Counsel also points to the fact that long-
term seniority employees were discharged and 'that
thereafter nine new employees were hired in the same job
classifications as some of the dischargees.12 The business
records of West Coast elicited by the General Counsel show
new hires between June 1, 1969, and October 31, 1969.
During that period, nine employees were hired, including
three sanders, three trimmers, a cabinet man, a spray man,
and a driver.13 However, only one of these new employees,
11 Winkler's testimony about reduction in work at the 17th Street plant
was corroborated by Roy Cooper, who testified during 1969 production of
clout-covered caskets and the 17th Street plant was substantially reduced
and that shortly, before April 20, 1969, all cloth-covered caskets were
discontinued in the 17th Street plant.
12 The dates of hue and discharge, and the job classifications of the
alleged discnmtnatees are listed in Appendix C attached hereto.
13 See Appendix C.
14 A twenty-north name, Pilar Guerro, is listed as a trimmer, but Guerro
was a supervisor.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jose Acevado , remained as a long-term employee and also
he was the only new hire who was , employed prior to
September 15, 1969 , the date of the strike. There is no
indication on the record whether the new employees were
put to work in the 17th Street or the Washington Street
plant , and there is also no evidence as to the number of
strikers or,the need of West Coast to find replacements to
continue its operation even at the phased down level.
The West Coast records put in evidence by the General
Counsel show . terminations between April 1, 1969, and
October 31 , 1969. Twenty-eight employee terminations are
listed during that period .14 The term "termination" as used
by West Coast included cessation of employment of an
employee for any reason . Sixteen of those employees were
terminated on or before July 2, 1969 , the last date -of
discharge of the employees named in the complaint.
Though the 12 employees named in the complaint all signed
union authorization cards, there is no evidence in the
record whether all or any of these other employees who
were terminated also signed.15
B. Legal Analysis and Conclusions as to the
Discharges
1. Cooper
West Coast had a virulent animosity toward the Union
and toward people who engaged in union activity. This was
established not only by remarks that West Coast's
president, Winkler, made to employee Ramirez, to the effect
that it was West Coast who paid his wages and that if he
wanted to be a union organizer, he should "let those bums
pay your wages," but by Winkler's statement to Foreman
Guerro that employee Duenas was engaging in union
activities and that "I think we have to let him go." Guerro
protected Duenas by telling Winkler that Winkler would
have to fire him also if Duenas was discharged, and' Duenas
is not alleged in the complaint as a discriminatee. However,
the incident indicates the depth of Winkler's animosity
toward the Union.
Cooper was active on behalf of the Union. He attended a
meeting on March 20, 1969, and signed cards for both
unions. In addition he passed out six or seven authorization
cards at the 17th Street plant. West Coast had knowledge
that Cooper was soliciting for the Union because he gave an
authorization card to Sewing Room Supervisor Meyers and
to his own supervisor, Ralph Dennis.'6 On April 20, 1969,
less than a month after West Coast learned that he had
been handing out union authorization cards, Cooper was
discharged without prior notice after 12-1/2 years of
employment. Cooper was, according to his own supervisor,
Dennis, a good worker. On the day of his discharge, Cooper
asked Dennis whether the discharge was because of -the
Union and Dennis hunched his shoulders and replied,
"Well, I guess that's it." From the context in which that
15 As noted, it was stipulated that some employees other than those
listed in the complaint did sign union authorization cards.
16 The knowledge of a supervisor as to the union activities of an
remark was made, I am convinced, that the word- !' guess"
indicated a rather sheepish and reluctant-admission rather
than any real doubt as to the reason for the discharge. It is
noted that Winkler admitted that he conferred: with the
supervisors before going through with, the, `discharges.
Dennis' statement to Cooper was an acknowledgement that
Cooper was being let go because of the Union. -
As indicated above, West Coast harbored a virulent
animosity against the Union and the union activity of its
employees; Cooper was openly active on ^ behalf' of the
Union; West Coast had knowledge of` Cooper's,' union
activities; less than a month after such knowledge Cooper
was discharged without prior notice after 12-1/2 years
employment; and the statements of Supervisor- Dennis to
Cooper established a causal connection between the union
activities and the discharge. In the face of this forceful
prima facie case of the General Counsel, the Respondent's
defense is unconvincing. Though some of Cooper's work
was the gluing of wooden caskets that were to be' cloth
finished, he was, trimmer and he also worked on handles
and upholsteries for the caskets and on interior work such
as the putting in of the beds andpanels. Though the cloth-
covered casket work was being phased out of ' the ",,17th
Street plant, Cooper was not. limited to that work,and,
according to Winkler's, own testimony, there was work
available that Cooper could have done in the Washington
Street plant. West Coast's defense with regard to Cooper's
discharge originally was that there were no discharges but
that voluntary quits were not being replaced because of the
phasing out of the 17th Street plant. This defense shifted to
an argument that the dischargees were let,go because-of a
lack of work due to the phaseout. The discredited defense
finally, relied on by Winkler in his testimony was, that
Cooper was solicited to work at the Washington Street
plant but, because of, Cooper's hesitancy, or -the poor
opinion of Cooper by a foreman at the Washington Street
plant, Cooper was not transferred.
I find that a preponderance of the evidence establishes
that Cooper was discharged because of his activities on
behalf of the Union in violation of Section 8(a)(3) and (1) of
the Act.
2. 'Ramirez
The facts indicating West Coast's hostility toward the
Union discussed in connection with the discharge of
Cooper,,must also be considered as a background against
which the other, discharges must be viewed. Ramirez
attended the March 20, 1969,' meeting, signed-cards on
behalf of the Union, and distributed union authorization
employee can be, and under the facts of this case is, imputed to the
Company. Texas Aluminum Co. v. N.L.RB., 435 F.2d 917 (C.A. 5,
December 16, 1970), enforcing 181 NLRB No. 15.
WEST COAST CASKET CO., INC. 631
cards at the 17th Street plant. By May 15, 1969, West Coast
knew , that he was an active union supporter . On that day,
Winkler spoke to him about some of his prounion activities
and told him that if he wanted to be a union organizer, he
should "let those bums" pay his wages . Ramirez continued
with his visible union activity by being a union observer at
the June 13 ,` 1969 , Board-conducted election . Ten days
later, he was discharged by West Coast without notice after
7-1/2 years employment . Sometime after the discharge,
Ramirez and Aurelio Mena , who were on the-picket line,
spoke to Supervisor Shelton, who complained that there
was. too much swork to do . When Ramirez asked why they
were laid - off if there was so much work , Shelton replied,
"Well, you know it, I know it , we all know it, but proving
it-try to prove it." Under the circumstances in which
Shelton made that remark, it could mean nothing other
than thatRamirez and Mena were laid off because of their
union activity. Such a remark was completely inconsistent
with the assertion made by West Coast that those
discharges were based solely on lawful , economic reasons.
As- already indicated, West Coast's animosity toward the
Union was extreme ; -Ramirez was active on behalf of the
Union ; West Coast had knowledge of that activity;
Ramirez was discharged a little over a month after West
Coast indicated that it had knowledge of that activity and
only 10 days - after , Ramirez manifested his continued
support of the Union by appearing as a union observer at
the election. In addition, Supervisor Shelton's remarks to
Ramirez and Mena on the picket line were an acknowledge-
ment that their discharges were causally connected to their
union activity.
West Coast's defense is that Ramirez was discharged
because the phaseout and resulting reduction in force at the
17th Street plant eliminated the need for his services.
However, Ramirez was an employee of 7-1/2' years
standing and he worked on both wooden and metal caskets
as a finisher. West Coast did not establish that there was no
need for his services at the Washington Street plant where
at least some of the 17th Street plant work was transferred.
Even assuming, however, that one of the reasons Ramirez
was selected to be discharged was the reduction in force
incident to the phaseout of the 17th Street plant, I am
convinced that a substantial motivating reason for his being
selected was also- his protected union activities. Where, as
here, a substantial motivating reason for discharge is
unlawful, the fact that other reasons for the discharge may
be present does not prevent the discharge from being a
violation of the Act. As the Court said in NLRB. v. Whitin
Machine Works, 204 F.2d 883 (C.A. 1,, 1953)
In order to supply a basis for inferring discrimination, it
is necessary to show that one reason for the discharge is
that the employee was engaging in protected activity. It
need not be the only reason but it is sufficient if it is a
substantial or motivating reason, despite the fact that
other reasons may exist 14
I find that Ramirez was discharged because of his union
activity in violation of Section 8(a)(3) and (1) of the Act.
3. Mena
Aurelio Mena attended the March 20, 1969, meeting and
signed cards for the Union. In addition, near the end of
June 1969, he told other employees about a meeting which
the Union was going to hold and he attended that meeting.
About 4 or 5 days later, on July 2,1969, he was discharged
without prior notice after being an employee for some 18
years. The day following the discharge, when Mena asked
Shelton whether the discharge was motivated by his union
activity, Shelton replied, `-`I 'don't know. Probably." As
already mentioned in the discussion of Ramirez ' discharge,
Supervisor Shelton explained to Mena and Ramirez why
they were laid off when there was a lot of work by saying,
"Well, you know it, I know it, we'all know it, but proving
it try to prove it "
Shelton's remark to Mena to the effect that he didn't
know but that probably the discharge was motivated by the
union activity must be considered in the light of Shelton's
subsequent remark to Mena and Ramirez that they all
knew the real reason for the discharge but "try to prove it."
In the total context in which these two statements were
made, I am convinced that they both constituted admis-
sions by Shelton that Mena, was discharged for his union
activity. No other reasonable inference can be drawn from
Shelton's remarks. Though there is no evidence that West
Coast had knowledge of Mena's union activities other than
Shelton's remarks to Mena the day after the discharge,
those admissions do establish that somehow or other West
Coast did obtain such knowledge.
West Coast was extremely hostile toward the Union;
Mena engaged in union activities; as indicated by Shelton's
postdischarge remarks to Mena, West Coast knew of those
union activities; and 4 or 5 days after Mena notified
employees about a union meeting he was discharged
without notice after 18 years of employment. In addition,
Supervisor Shelton's remarks to Mena constituted an
acknowledgement that Mena's discharge was causally
connected to his union activities.
For the reasons set forth in connection with the discharge
of Ramirez, I find that even if one of the reasons for Mena's
discharge was the reduction in force required by the
phasing out of the 17th Street plant, a substantial
motivating factor in picking Mena for that discharge was
Mena's protected union activities.'8
I find that Mena was discharged because of his union
activity in violation of Section 8(a)(3) and (1) of the Act.
4. The other alleged discriminatees
With regard to Cooper, Ramirez, and Mena, the evidence
establishes gross antiunion hostility on the part of West
17 See also Sutherland Lumber Company, Inc., 176 NLRB No. 143;
N.L.R.B. v. Lexington Chair Company, 361 F.2d 283 (C.A. 4, 1966);
N.L.Jt B. v. Symons Manufacturing Ca, 328 F.2d 835 (C.A. 7, 1964).
as West Coast's defense that there was no work available for Mena is
somewhat put in doubt by the fact that Mena was rehired on June 11,
1970, for the same job as spray painter that he had formerly done.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coast; activities on behalf, of the Union by those -three
individuals that went well beyond the attending of -meetings
and signing of cards; knowledge by West Coast of the
union activities of those employees; and remarks made by
supervisors that established a causal connection between
the protected activities and the discharges. The situation
with regard to the other nine discriminatees named in the
complaint , herein called the other nine, was quite different.
All 12 of the alleged discriminatees were -similar in that all
must be, considered in the light of the same union animus
demonstrated by, West Coast; each of them did attend the
March 20,. 1969,, meeting and signed upon cards; and each
was fired sometime between April 16 and July 2, 1969.
However, only on behalf of Cooper, Ramirez, and Mena
was there credible evidence on which a finding could be
based .that West Coast had knowledge of the union activity
and that there was a causal connection between the union
activity and the discharges.19
The Board has held "Unquestionably, knowledge by the
Respondents of the dischargees' union activity is a
prerequisite to a finding that the discharges were made for
that reason, -and the General Counsel has the burden of
proving this knowledge beyond mere suspicion or surmise.
Mook Weiss Meat"Packing Company, 160 NLRB 546. See
also Kayser-Roth Hosiery--Co., Inc,,166 NLRB 372. There is
no direct 'evidence in the record to establish that West
Coast had knowledge that the other nine had engaged in
union activities of any, kind. The question presented is
whether there is any evidence upon which an inference of
knowledge can be based. Knowledge cannot be inferred
simply 'from the fact that' West Coastwas a small plant with
between -92 and 52 employees. Though the size of a plant is
considered in determining whether it would have been
likely that an employer would know who was active in the
union, that is only one of'the factors. Wiese Plow Welding
Co., Inc., 123 NLRB 616. In Hadley Manufacturing
Corporation, 108 NLRB 1641, 1650, the Board said
"However, the mere fact that Respondent's plant is of a
small size, does not permit a finding that Respondent had
knowledge of the union activities of specific employees,
absent supporting, evidence that the union activities were
carried on in such a manner, or at times that in the normal
course of events, Respondent must have noticed them." See
also Ralston Purina Company, 166 NLRB 566;, M S.
Plastics of Ohio, 181 NLRB No. 104. Thus in Saxon Paint
Stores, Inc., 160 NLRB 1757, the Board refused to find that
an employer in a store with, 70 employees had knowledge of
the union activities of its employees where there was no
union activity at the store "which could be'inferred to have
come to the attention of Respondent ... and the activity
away from the store area was not shown to be known by
Respondent ... "
None of the circumstances in this case make it likely that
West Coast had observed the union activity of the other
nine . There was no evidence of any such activity at or near
the West Coast plants, nor was there any evidence of
activity other than that which occurred at the union
meeting hall on March 20, 1969, and the signing of cards.
None of the credited evidence indicated statements or
actions by supervisors from which an inference could be
drawn that the union activities of the other nine ,were
known to West Coast. The evidence does not establish-that
the phaseout of the 17th Streetwplant was motivated by the
union activity. Only 12 discriminatees are alleged ,in the
complaint, while 28 employees are listed as,, having been
terminated between April 1 and October 31, 1969.
I have found that Cooper, Ramirez, and Mena were
discharged in violation of the -Act, but as to the=other nine
discriminatees alleged in the complaint, I cannot find=any
basis in'the record-for distinguishing them-from the-many
other employees who were terminated due, to the,reduction
in force stemming from the phaseout of, the 17th Street
plant. All of those nine did attend the union meeting and
signed union authorization cards, but there is no evidence
as to how many other employees also-engaged in, similar
union conduct. If it could be shown that a ,disproportionate
number, of union adherents were discharged, it could,be
seriously argued that a basis existed for inferring-that the
discharges were causally connected to the union-activity.
Though it was agreed that the 12 alleged discriminatees
were not the only ones who signed union authorization
cards, it cannot be ascertained from the record- whether
almost all the employees signed for the Union or whether
only a few other than the 12 alleged discriminatees did. It is
reasonable to assume that a substantial , number of
employees were union adherents-`as a majority of them
voted for the Union at the election on , June -13, 1969. In
short, I can find no bases for imputing-knowledge, of the
union activities of the other nine to West Coast-nor can' I
find facts upon which. to base a conclusion that the union
activity of the other nine was causally connected to their
discharges.
I find that the General Counsel has not established by a
preponderance of the evidence`tliat Marco Aguirre, Miguel
Betancourt, Jesus Cisheroz, Miguel 'Vilegas, , Raul Betan-
court, George Saiza, Regino'Encisco, Leopoldina' Hajais-
tron, or Pedro Guarola, were discharged in` violation of
Section 8(a)(3) or (1) of the Act.
C. The Refusal To Bargain
1. The July 2 and 10 meetings
The election was held on June 13 and the Union was
certified as the bargaining agent of West Coast employees
on June 24, 1969. On June 25, 1969, Selvin received a
written request to bargain from the Union. Selvin was West
Coast's agent for the purpose of engaging in-, collective
bargaining with the Unions.20 In his testimony'West Coast
President Winkler acknowledged that when he hired her he
told her to do whatever was required and gave her full
bargaining authority. Tony Bogdanowicz, the business
manager and recording secretary , of the Carpenters,
followed up the demand letter by calling Selvin on the
telephone and arranging for a meeting on July 2, 1969, at
Selvin's office.' Bogdanowicz had requested that the
meeting be held at the Carpenter's office but Selvin told
him that she would not meet at the union hall. In her
18 It is also noted that only with those three was there evidence of union and the signing of cards. -
activity that went beyond the attendance at the March 20, 1969, meeting 20 This is alleged in the complaint and admitted in the answer.
WEST COAST CASKET CO., INC. 633
testimony, she acknowledged that she never meets at a
unionhall.
The meeting on July 2, 1969, was held at Selvin's office
and was attended by Selvin , Bogdanowicz, George Warren,
business representative of the Painters , and Peter J.
Ceremello, general representative of the Painters Interna-
tional. A verbatim record of the meeting was taken by a
reporter hired by Selvin. She acknowledged that she was
labor relations consultant for a large number of employers,
including West Coast,, and that in the course of her
negotiations she invariably makes'arrangements to have a
reporter present. Selvin's office and her living quarters are
both in the same apartment . The apartment consists of six
rooms of which two were used as her office. These two had
each been subdivided so that there-were four office rooms.
All of the bargaining took place in one of these office rooms
and when the Union desired to hold a caucus, the living
room was used. The office in which bargaining was
conducted measured approximately 10 by 14 feet and was
arranged in such a manner ` that iif one person wanted to
leave the room another one - sitting near the door would
sometimes have to get up. The union negotiators had no'
place to puttheir papers other than the floor. Particularly at
later meetings when a mediator was present ; the meeting
room was very crowded. At this and other meetings, union
representatives objected to meeting at Selvin's apartment
office but •Selvin repeatedly, insisted that was the only place
she would meet.21 Near the beginning of the meeting,
Selvin gave Bogdanowicz the, list of the names, classifica-
tions, and present rates of pay of the ;employees in the
bargaining unit which the Union had requested in their
letter of June 25, 1969, Bogdanowicz-replied that he was
going into the plant the following week to review the
classifications and Selvin replied, that he was not going to
be allowed into the plant. She said any information he
wanted would have to come from her because West Coast
was, paying hez to, be the contact between it and the Union
and .that if he insisted on going in to the West Coast plant,
the police would be called to remove him. Selvin added that
she was the Employer's sole representative, and that "I
don't take their cases unless I have that authority. The
reason I don't is because employers don't know anything
about this problem." She then added that she was the only
person the Union would ever see. At another point in the
meeting; Selvin told-Bogdanowicz that the union represent-
atives were not going to be allowed into the plant until they
had a contract and even then they would negotiate `when
and wherein the plant the union representatives could go.
There was some discussion - about the change in
operations in West Coast's plants and Selvin offered to
make certain changes on the, classification list Bogdanow-
21-Bogdanowicz credibly testified that he told Selvin on a number of
occasions that the apartment was not acceptable for negotiations and that
he asked her` to meet at other sites but that she always replied that if they
couldn't meet at her apartment, there would be no meeting. Selvin
acknowledged that she told the Union that she would not meet at the
union hall but she denied saying that ' -she would not meet at any place
except her own office. I do not credit the denial . According to the
transcript of the July 2 meeting, Warren asked Selvin,"Mrs. Selvin, I ask
for my own clarification, so that I understand you, what you are stating is
you do all your negotiating at this address and no place else? This is your
statement to us at this time? ' To which Selvin replied, "Yes. This is my
statement." The transcript of a meeting on July 10 , 1969, shows that
icz then gave Selvin an outline of the Union's proposals.
The meeting was adjourned until 2 o'clock July 10, 1%9.
The July 10, 1969, meeting was also held at Selvin's
office. Selvin, Bogdanowicz, and Ceremello were , present.
Again, as in all these meetings , a verbatim transcript was
taken by a reporter . Bogdanowicz gave Selvin an industry
contract as a basis for starting negotiations . They discussed
the provisions of that contract in very general terms . Selvin
explained that West Coast- was not in favor of compulsory
union membership and that she believed such membership
to be harmful to an employer in that it deprived him of the
labor of people who didn 't want to belong to a union. After
looking at the union proposals,. Selvin ' objected to the
introductory clause which read "Whereas the parties have
entered into this agreement in mutual good faith, each
proposes to live up to the spirit as well as the letter of this
Agreement." She said she didn't like such language. When
Bogdanowicz pointed out that it involved'mutual respect,
Selvin answered that that was nothing they even had to
bargain about because it was not a condition of employ..
ment. Selvin then objected to the opening paragraph of the
Union's proposal which read "This : Agreement is a
voluntary Agreement ... 'sayinggthat it wasn't a voluntary
agreement because the employees required West Coast to
bargain when they voted for the - Union. Selvin then
objected to the Union's proposed recognition clause which
provided for recognition within the jurisdiction of the Los
Angeles County District Council, of Carpenters .'She said
she would prefer to use her own language.
As to Bogdanowicz' proposal for union security, SelvinS
counterproposed that membership in the Union would not
be a condition of employment For, the Union's proposed
retirement plan, Selvin pointed out `that West Coast was
already required by law to pay employees' retirement, that
is, social security.
After, discussing the changeover of West Coast's opera-
tion, Selvin said that she needed - time to study the Union's
proposals. Bogdanowicz asked for a' meeting the following
week, and she replied that she was not available until July
22, and that it would take her that long to see the Company
in any event . Bogdanowicz asked for the next meeting to be
in his office and she replied that she had good reason for
not going away from the office . Selvin said that she would
take the proposals totheCompany and give counterpropo-
sals at the next meeting . They agreed to meet again at 9 a.m.
on July 22, 1969 . Bogdanowicz said they had to settle the
question of the layoffs and Selvin replied that the, layoffs
were caused by the putting together of the two plants.
Bogdanowicz said that the reason for the layoffs was the
concerted union activity but Selvin denied it. -
Bogdanowicz asked for the next meeting to be at his office to which she
replied that she had a good reason for not going any place else. The
transcript of the meeting on September 2x, 1969 , shows that James Flores
of the Los Angeles District- Council of Carpenters , who' was present to
assist the Carpenters in negotiations , told Selvin that the place for
negotiations was not acceptable and suggested the commissioner's office
(Federal Mediation and Conciliation Service) as a neutral place. She
replied she had a disability and that this wa& ,her office and where she
bargained. This same theme was repeated at the October 16, 1969, meeting,
where she answered Flores' request to bargain at a different place with the
comment, "If you want `to bargain with me you have to make the exception
for me...." and then referred to a doctor's certificate.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The events leading to the strike By letter dated September 6, 1969 , Selvin confirmed the
conversation of the previous day and told Bogdanowicz
that she was unable to meet at the time -and place suggested
in his letter. The letter then went on to say "In the
meantime, I have received another charge against the
company, which they have mailed to me for'my attention. I
will have to give this my attention prior to any further
meetings with you." -
The union meeting was held at the Painters Hall on
September 10, 1969, with about 30 West Coast employees
present. Bogdanowicz gave them a progressreport in which
he described what had happened at the first two meetings
and his conversations with Selvin. After hearing that Selvin
was planning an ,Alaskan vacation, one of the employees
suggested that, a strike be called the following morning.
Bogdanowicz asked them to hold off until `he had an
opportunity to review the situation and possibly consult
with Winkler. A strike vote was taken and it was decided
that a strike would take place the, following Monday,
September 15, 1969, if a negative answer was received from-
the Employer.
Also on September, 12, 1969, the attorneys for the
Carpenters wrote .a letter to Selvin, in which the prior
dealings were reviewed- With -reference -to, Selvin's letter of
September 6, this'letter, stated that her position that she
would not meet until- she gave attention to the unfair labor
practice charges filed against West Coast was unacceptable
and constituted a refusal to bargain in good faith. In
addition, the letter stated,that she- was not bargaining in
good faith- by refusing to, meet-"with the Union and, by
insisting that all meetings be held in her office. Selvin'was
advised that the' employees intended to - protest West
Coast's unfair labor practices by taking appropriate action,
and that the Union was willing to meet, with her at a
mutually convenient time and place on 24h6urs' notice: - '
Also on September 12, Bogdanowicz went to 'the 17th
Street plant and spoke to Winkler, telling him that there
was a critical situation at the- plant of which he might not
have been aware. Bogdanowicz also told him that-there had
been no progress during negotiations and thathe should sit
down and review the union proposals and set up further
meetings to settle the unrestamong the employees. Winkler
replied that his counsel' was well'-informed on those
procedures and he felt that' she was going in the right
direction. When Bogdanowicz pointed out'that she was
going on vacation and the people were becoming restless,
he replied that he was going to leave it up to his labor
relationsconsultant.24
After leaving the plant,,Bogdanowicz tried unsuccessfully
to contact Selvin on several occasions . Each time, he-left a
message which was not answered. Pursuant to 'the' strike
vote on September 10, the employees went out on strike on
September 15, 1969.
Winkler testified that he never had'a meeting with Bogdanowicz , then he
went on to say that Bogdanowicz came into the plant one day and asked
him, to discharge -Selvin without -giving any reasons. He averred that
Bogdanowicz told'bim, "You do that andthere will be ; na problem," but, he
didn't know what Bogdanowicz' problem was and he didn't inquire. I do
not credit Winkler.
At 4:15 p.m. on July 21, 1969 , Selvin called Bogdanowicz
and canceled the meeting that she had scheduled for 9 a.m.
the following morning . She told him that she had to be at a
board hearing in Long Beach, California, the following
morning. In a pretrial affidavit, Selvin averred that she
canceled the meeting because she had to help another client
prepare for its election on the following day. He asked her
why she hadn't let him know earlier and she replied that he
had been late for the first two meetings . Selvin said there
was no possible way she could make the meeting the next
day because she had to go to Long Beach and because she
had several other clients she had to see in the interim before
another meeting could be arranged . Selvin also said she was
going on an Alaskan vacation for 2 weeks starting July 27,
from which she would return on August 10, 1969 . He asked
for a meeting with her on August 11, and she replied that
she would call when she got back and arrange for another
meeting.
Bogdanowicz did not receive any can, from Selvin in
August, even though he called her- five or six times and left
messages with , her answering service 22 , Though she
returned from her ,Alaskan vacation on August 14, 1969,
Bogdanowicz was unable to contact her W^nntil September 2,
1969. When he finally reached her on the phone on that
date, he suggested that when they did meet it should be at a
place ,other than her office, and he suggested one of the
union halls . She replied that she couldn't meet at any place
other ,than her office because of her incapacity to move
about. Bogdanowicz told her that the employees Were
getting restless about the fact that there wasn't any ' progress
and that he wanted,to give 'the employees a report at a
union meeting which was scheduled for September 10. She
replied that she wasn't concerned about a progress report to
the union people and that West Coast was moving along in
its business and had plenty of people . Bogdanowicz replied
that the people were getting concerned' about the layoffs
and what was going to happen: He said that he would send
her a letter setting up a meeting.'
On September 3, 1969, Bogdanowicz sent Selvinn a letter
requesting a meeting at one of the union offices at 9 a.m. on
September 9, 1969:" On September 5, 1969,- Selvin called
Bogdanowicz and acknowledged his letter . She said -she
couldn't ' meet on September '9 because she had clients
coming in from New York and she would probably have to
go to the East Coast for 3 or 4'weeks. She added that she
would notify hini when she was ready for another meeting.
He -replied that the employees and the management had to
get together to get problems resolved ^ because the
employees were getting very upset . Selvin said that she had
received unfair labor practice charges from West Coast and
she had to -dispose of those prior to thinking of arranging
for another meeting. It is noted that the initial charge in the
instant case was filed on September 3, 1969. 23
22 In a pretrial affidavit, Selvin averred that she called Warren on
August 15, 1969, and left a message for him . In her testimony at the trial,
she stated that at some time she tried to call Bogdanowicz . I do not credit
her.
23 That charge alleged that West Coast discharged 13 employees in
violation of Section 8(axl) and (3) of the Act.
24 These findings are based on credited testimony of Bogdanowicz.
WEST COAST CASKET CO., INC. 635
3. The poststrike meetings
Commissioner Joseph Vierra, of the Federal Mediation
and Conciliation Service, came into the picture after
Bogdanowicz called the mediation service and told them
the situation. Commissioner Vierra arranged for the
scheduling of another meeting at Selvin's office on
September 24, i969.' The September 24 meeting was
attended by Commissioner Vierra, Selvin, Bogdanowicz,
Warren, and Flores, of the Carpenters District Council.
Although at the July '10 meeting Selvin had promised to
bring counterproposals ' to the next meeting, she had no
meaningful counterproposals to offer on, September 24,
1969. Union security was discussed and Selvin said she
would not agree to any form of union-security or checkoff
,proposed that membership in the. Unionand she counter
should not be required as a condition of employment, that
the Union would not restrain any employee who elects to,
remain outside the Union, and the Company would not
restrain an employee who joins the Union. Commissioner
Vierra -asked for a point-by-point position of West Coast.
Selvin took the following position, she: rejected the
preamble, and the grievance procedure; proposed a 3-year
rather than, a 1-year, contract; rejected any binding
arbitration; proposed a }management prerogative clause to
follow the, recognition clause said she would submit a
grievance proposal that would tie into a no-strike clause
with no arbitration provision; rejected the subcontracting
clause with ' the statement "we have a right to contract out
anything that we want to do under any conditions"; said
discharge and discipline were to be covered under her
grievance procedure; rejected the union label provision;
said she would give a counterproposal on seniority, rejected
the proposal that West Coast give the Union a complete list
of seniority every 30 days; proposed that such a list be given
on request but not more than every 6 months, and that the
list have no home Addresses because "We have got people
that are answering an ad to come to work through a picket
line, and, we are not going to expose those people unduly to
the union"; rejected a shift clause proposal; proposed, on
the question of insurance that West Coast continue in force
the,same or better insurance coverage than it had at that
time; rejected the union request for 40 percent increase in
wages, and said, she would propose another figure; rejected
the Union's retirement fund, stating that West Coast paid
the employees', social security; and stated she would make
counterproposals on sick,leave.
During the entire meeting,,there were only two points of
agreement : Selvin agreed to the inclusion of a separability
clause which stated that any provision running foul of law
was to be supeiceded by 'such law, with the remaining
provisions of, the agreement unaffected. She also agreed
that West Coast would provide a bulletin board that would
be used by the Union for 'posting notices which were
approved by the Company.
Bogdanowicz proposed another meeting for October 7,
1969, but Selvin declined, citing commitments, and the fact
that West Coast was "one of 100 clients that I help." Selvin
informed them of a hearing that might last for 3 weeks that
'25 These included a proposal relating to grievance procedures which
were submitted in error and for which a, substitute was furnished at a later
she had to attend in San Bernardino, California, which was
to start on October 7. She said she would call the
commissioner before October 7 and let him know whether
the San Bernardino case was going to settle : When the
subject of the employees' getting back to, work was
mentioned, she replied that there would not be many,of
them going back to work because their jobs had already
been filled.
Flores said that the place of negotiation was not
acceptable and he suggested the commissioner's office as a
neutral place, to which Selvin replied that she had a'
doctor's certificate that she couldn't go any other place-and
that she bargains in her office. Flores pointed out that she
had just said she was going to San Bernardino -and -she
replied that she was trying to get the location changed to
Los Angeles. Flores answered that if she could go to a
hearing in Los Angeles, she could also appear at a meeting
in the mediator's office. Selvin acknowledged that she did
go to the Labor Board on certain occasions . She insisted,
however, that the meeting be at her office, The meeting
adjourned with Selvin saying that she would get in touch
with the commissioner. -
The next meeting took place at Selvin's office on October
16, 1969. It was attended by Commissioner Vierra, Selvin,
Warren, Bogdanowicz, Flores, and Oscar Lynch, another
spokesman for the Union. Bogdanowicz asked for a copy of
the transcript of the meetings and Selvin refused. Bogda-
nowicz- then objected to having a reporter present and she
replied that the reporter took her notes and that if
Bogdanowicz wanted to object, he could. Bogdanowicz
insisted that the next meeting be held at a neutral place, and
she replied that she would give him a doctor's statement
saying that it was best for her to bargain atther office. When
Bogdanowicz spoke about "getting the show on the road"
because the employees were frustrated by their experiences,
Selvin replied that West Coast did not need one single
employee and had a full staff. After a dis'cussion,relating to
some of the jobs that had been phased out, Flores said they
wanted to go through the plant and see_ the operation so
that they could intelligently, negotiate. Selvin replied that he
was not going to get into the plant until they had a contract.
Selvin said that she had counterproposals but that her
duplicating machine was not working so that she could not
distribute them at that time. There was a 2-hour delay while
Selvin tried to sort out and get her counterproposals
duplicated. Finally, Selvin_gave' the union representatives
copies of her counterproposals.ui Some of the counterpro-
posals were: a broad management rights clause which
provided in part that shop rules were to be made by the
Company and that the Company had the unlimited right to
contract out bargaining unit work; membership in the
Union would not be required; representatives of the Union
could come into the plant during working hours only when
necessary to investigate a grievance subject to step 3 of the
grievance procedure and only where and when the
Company 'designated; a 3-year, contract; and a health and
welfare provision whereby the Company agreed to carry.
insurance equal to or better than, the protection afforded
on -the date the agreement was executed. In addition,
date.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Selvin's counterproposals included a "settlement of griev-
ances" clause which interrelated with ^a no-strike clause.
The first three steps of this procedure required discussions
at various levels. At each step, strict time limitations were to
be observed, and, if these limitations were not met, the
grievance was to 'receive no further consideration. In,the
fourth step, the Union could, subject to other time limits,
give notice to the Company that the no-strike clause in the
contract was void and thereafter the Union could strike,
provided that no strike could be called prior to the lapse of
10 days and not longer than 20 days from the date of
mailing of such notice. The grievance procedure contained
no'provision for' arbitration.
Selvin's counterproposals did not include one relating to
`wage'offer. She stated that she was not prepared to give a
wage proposal at that time because a review of wages had
not yet been made. She said that before such aproposal
could -be' given,, West Coast would want to review the
individual employees. When Bogdanowicz said that they
had an obligation to finish up the contract and get the
people back to work,' she^answered that she didn't want
them back to work and that they had the jobs all filled.,In
Selvin's words, West Coast " ... has better employees and
more cooperative employees. He had some very uncoopera-
tive employees- and they went- out on strike and their jobs
are filled.'
On` two-occasions during the meeting, Selvin referred to
West Coast's wage policy. The first time she said that the
Company had the policy over many years of reviewing the
wages of employees in the spring and fall of each year, and
that since it was ' a practice of long standing, theCompany
had'to -make the review which she said they would do in the
month of-October. The second time Selvin mentioned West
Coast's wage proposal, she went into, more detail. 'She
repeated that the company policy was to review wages twice
a year and said that West Coast wished to make a review of
the wages at that time but she told the Company that it
could not make any increase until she had, submitted it to
the Union. She added that they didn't always give everyone
an increase, just those who were valuable to West Coast.
She said,,that she thought West Coast was required to offer
a wage increase at that time because of the past history, but
that she-didn't want to do ituntil it had been discussed with
the Union.' She ' then referred to West Coast's practice of
reviewing ,the wages and giving raises twice a year and said
"He has reviewed them as a matter of practice and where he
has done it as a past practice for many years he is allowed
to do it even though you sayhe,can't do it . But I told him I
wanted t'o `inform you first and I ` thought it was better to
have your cooperation than just say you` were going to do-it.
If you say no, we are going to do it anyway."
Sometime after the close of the October '16, 1969,
meeting, Selvin furnished the Union, with a wage proposal
which was dated October 17, 1969. he proposal keyed all
wages to the individual employee with no basic wage based
on classification. in effect, -each of the 56 persons listed on
the wage proposal were given ' a "red circle" rate. No
increase was proposed for nine of the listed employees-and
most of `the others were given a 10- or 15-cent-an-hour
increase.
Other meetings were held on November 4 and 13, 1969,
but there was no progress. The Union made no further
requests for meetings because , in its view, it would have
been an exercise in futility to continue.,
D. Analysis and Conclusion , as to the Refusal To
Bargain
Section 8(d) of the. Act states that, the duty to bargain
requires an employer to "meet at reasonable times `and
confer in good faithwith respect to wages, hours, and other
terms and conditions of employment, or the negotiation of
an agreement, or any question arising thereunder ... but
such obligation does not compel either party to agree to a
proposal or require the making of a concession . . . ." In
determining whether an employer' has bargained in, good
faith, it is necessary to scrutinize the totality of its conduct.
From the context of an employer's total conduct, it mustbe
decided whether the employer is lawfully'engaging in hard',
bargaining to achieve`a contract that it considers desirable
or is unlawfully-endeavoring to frustrate the'possibility of
arriving at any agreement. Sunbeam" Plastics' Corporation,
144 NLRB 1010._
The conduct of West Coast, set forth above, shows Ia
consistent pattern. Selvin's actions were of such a nature as
to polarize any hostilities that existed between West Coast
and the Union, to force thebargaininginto 'a rigid exchange
of words from which a meeting of the minds would be
extremely difficult, and in general to force a wedge between
West Coast and the Union that would prevent=any hope for
an areement. Her game plan had a- variety of'plays. She
began- by isolating the union representatives from any,
contact, with the plant. She was the only person the Union
would ever see. There could be no contact with, the
operating manager in the plant who knew the workings of
the business. She, threatened to, call the police-if the union
representatives attempted to come in to the plant. The
union representatives had to accept' her statements with
regard to such matters as job classifications' with no
opportunity, to verify her assertions with"on-site inspection
of the plant. This isolation" was enhanced and, the
11
union
representatives were put on a psychological defensive by
her adamant refusal to meet, at any place other than her
"territory," that' is her office-apartment which was; badly
suited for negotiations because of its lack of space. The
contention that the office was- the only place where she
could bargain because of` her health cannot be ; sef iously
considered in the light of her admitted mobility with regard
to other work she carried out at about the same time. The
rigidity of the meetings was further enhanced'by Selvin's
insistence on"the presence of a reporte'r` to take a verbatim'
transcript. Not only did the presence of such a reporter 'tend
to inhibit the' free exchange of views that its customarily
associated, with `good-faith bargaining but it, indicated that
Selvin was looking toward future litigation; where such,,a
transcript"would be useful rather than an agreement ,where
such a transcript would have little value. With such a tone
to negotiations,it is difficult to reach,a meeting of-„the
minds.
Selvin also managed to keep the negotiations off balance
by her actions in regard to scheduling meetings and her
insistence on unreasonable delays:,^A-t the ,July 10, 1969,
meeting she refused to agree to meet with the Union the
WEST COAST-CASKET CO., INC. 637,
following week and arranged for a July 22 meeting . Though
that July 22 meeting was scheduled to begin at 9 o'clock in
the morning, she did not notify the Union that she would
not attend until 4 :I5 p.m. the day before . Whether, as she
claimed in her testimony, she had to attend a Board hearing
the following - morning; or as she claimed in her pretrial
affidavit that she had to help a client prepare for an
election; no valid reason appears why she could not have
given the Union more notice that she-was unavailable on
July 22. The implication is clear that she waited until the
last minute to notify the Union , simply to keep the Union
off balance. Though she canceled that meeting, she
scheduled no new ones and she disregarded her agreement
to call the Union when she returned from her Alaskan
vacation. Throughout the latter part of August, she kept
ignoring the messages left for her by the Union and when
the Union finally reached her on September 2, 1969, no new
meeting was scheduled. In her conversation with the Union
on September -, 5, after she received the letter from
Bogdanowicz ,asking for a meeting on September 9, she said
that she had to attend to affairs on the east coast for 3 or 4
weeks and told him that she would call him about
scheduling a meeting. Selvin even tied in her refusal to sit
down and bargain with the Union with the filing of the
unfair labor charge in -this case by saying that she had to
dispose of the charge before thinking of arranging for
another meeting. It was not until after the strike and after
the Federal mediator -entered the picture that Selvin agreed
to a new meeting. Selvin's conduct with regard to the
scheduling of meetings can be explained only in terms of an
attempt to disrupt negotiations.
Selvin's actions at the negotiating sessions were such as to
demonstrate a complete absence of a desire to reach
agreement with the Union. At, the July 10, 1969, meeting,
she went out of her way to find frivolous objections to
certain union proposals . Thus she objected to an introduc-
tory contract clause saying that "Whereas the parties have
entered into , this, agreement in mutual good faith, each
proposes to live up to the spirit as well as the letter of this
Agreement." She objected to the inclusion of language that
indicated the parties had mutual respect for each other,
arguing that such matters were not conditions of employ-
ment that she had to bargain on. She objected to the
statement that "This Agreement is the voluntary Agree-
ment" because West Coast was required to bargain with the
Union. On apoint-for-point basis she rejected substantially
all of the Union's proposals (except for the separability and
bulletin board clauses mentioned , above). Her counterpro-
posals-in turn evidenced a hard line which , when viewed in
the context of her other behavior., indicated a desire to push
the Union to the wall - and avoid an agreement. The
counterproposals contained a broad management rights
clause which would give West Coast sole discretion with
regard to the formulation of shop rules and which would
give- the Company an,unlimited right to reduce the work
force , through contracting out of unit work . Her proposals
provided far- an open shop with extremely limited visitation
privileges , for union representatives in the plant. Any
improvements in the health and welfare benefits which
were in existence were to be,left completely to the discretion
of West Coast. There was to be a no-strike clause but no
arbitration provision as a quid pro quo. The grievance
procedure, which would under certain circumstances allow
the Union to escape from the no-strike clause, amounted to
little more than giving the parties some opportunities to
converse and the setting up of a series `of procedural
stumbling blocks which were to be conditions precedent to
the Union's escape from the no-strike clause.
Selvin's wage counterproposal even more clearly demon-
strated West Coast's intention to keep unilateral control
over matters that should have been the subject of collective
bargaining. Selvin said that West Coast was going to review
the wages of the employees and give certain raises, as it had
done twice a year in the past. She told the Union that West
Coast was going to continue its wage practices as it had in
the past even if the Union said it couldn't, that she was
informing them because she wanted their cooperation, but
that, in her words, "If you say no, we are,going to do it
anyway." This constituted a direct admission that West
Coast had no' intention of bargaining with the Union on the
mandatory subject of wages and is in itself a refusal to
bargain by West Coast in violation of Section 8(a)(5) of the
Act. An employer can unilaterally determine wage
increases during an organizational campaign as long as the
granting or denial of wage benefits is not prompted by the
Union's presence. The May Department,Stores Company
d/b/a Famous-Bar Company, 174 NLRB No. 109. In
determining whether the benefits were or were not
prompted by the Union's presence, the question of the
Company's past practices is certainly relevant. However,
once the bargaining duty is established, unilateral determi-
nations as to wages are no longer permissible except in the
case of the impasse . There was no question of impasse here.
Selvin's initial counterproposal as to wages was given in a
context under which it was clear that West Coast was going
to take unilateral action as to wages whether or not the
Union agreed. Cf. Moore of Bedford, Inc., 187 NLRB No.
87.
To meet its duty to bargain in good faith, West Coast was
obligated to negotiate with the Union at reasonable times
and places. With regard to Selvin's refusal to meet with the
Union at any place other than her office-apartment, I find
that her actions were part of her campaign to prevent
meaningful bargaining and were in violation of Section
8(a)(5) and (1) of the Act. In KFXM Broadcasting Company,
183 NLRB No. 121, the Board, under facts very similar to
the ones present here, adopted the Trial Examiner's
conclusion that the company violated, Section 8(a)(5) of the
Act where, its negotiator (who in that case, as well as in the
present one, was Selvin) insisted on bargaining only in her
office-apartment.
With regard to the requirement that an employer meet at
reasonable times with the union, the Board held in
Insulating Fabricators, Inc., 144 NLRB 1325, enfd. 338 F.2d
1002 (C.A. 4,1964):
The record here quite clearly supports a finding that
the Respondent, in arranging meetings with the Union,
failed to display the degree of diligence that proper
performance of its bargaining obligations required. This
is so whether or not the delays were inspired by a
deliberate scheme to engage in dilatory tactics. One
may sympathize with the problems of the Respondent's
638 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
negotiator in fitting the negotiating meetings into the
schedule of his busy , law practice, but this provides the
Respondent -with , no legal , excuse for the consequent
inordinately long delays tending to impair employee
statutory rights . Labor relations are urgent matters too.
If the other activities of Respondent's attorney made it
impossible for him . to devote adequate time to
reasonably prompt . and continuous negotiations, it was
the Respondent's obligation to ,furnish a representative
who could. The duty to-bargain in good faith includes
the duty to be available for negotiations at. reasonable
times as the statute requires . That duty is not discharged
by turning over the conduct of negotiations to one
whose other activities make him not so available.
A. H. Belo Corporation, 170 NLRB No. 175. See KFXM
Broadcasting Company, supra, where it was found that that
company, through Selvin, violated Section 8(a)(1) and (5) of
the Act by unilaterally canceling scheduled meetings and
refusing requests for additional meetings . I find that by
Selvin's refusal to meet at reasonable times with the Union
and by her , cancellation of a meeting, West Coast violated
Section 8(a)(1) and (5)of the Act.
I' also find that West Coast violated Section 8(a)(5) and
(1) of the Act through Selvin's insistence, over the objection
of the Union, to have a reporter present during negotiation
sessions to take a verbatim transcript of the proceeding. In
Reed and Prince Manufacturing Company , 96 NLRB 850,
enforcement granted on other grounds, 205 F .2d 131(C.A.'
1, 1953), where a company insisted upon a stenotypist to
take down a° verbatim transcript of negotiating sessions
over the union's strenuous objection, the Board held:
This is not the approach usually takenby a participant
in collective-bargaining negotiations seeking and ex-
pecting in good faith to reach agreement ;, it is more
consistent with the building of a defense to anticipated
,refusal to bargain charges . The' presence of a stenogra-
pher at such negotiations is not conducive to the
friendly atmosphere so necessary for the successful
termination of negotiations , and it is a practice
condemned by experienced persons in the industrial
relations field . Indeed , the business world itself frowns
upon the practice in any delicate negotiations where it is
so necessary for the parties to express themselves freely.
The insistence'by the Respondent in this case, upon,the
presence of a stenotypist at the bargaining meetings is,
in our opinion, further evidence of its bad faith.
Though the Court of Appeals for the First Circuit enforced
the Board's order requiring the employer to bargain, it
stated that ' it was not inclined to agree with the Board-that
the insistence upon the verbatim transcript was evidence of
bad faith . In subsequent cases, the Board made it clear that
it was not relying,on any per se theory in finding that such
an insistence on a verbatim transcript was a violation of the
Act but that in the context of the entire case, such conduct
could indicate that an employer was not acting in good
faith. Southern Transport, Inc., 150 NLRB 305, enforcement
denied 355 F.2d 978 (C.A. 8, 1966). In Architectural
Fiberglass '- Division of Architectural Pottery, 165' NLRB
238, Selvin was present once again as labor relations
consultant tothe employer. In that case the Board held:
Whether or not Mrs. Selvinospecifically conditioned
bargaining ,on the use of .the tape recorder, the record
clearly establishes that she adamantly insisted on using
it throughout the negotiations, over the vigorous
objections of the Union . We find, in all, the ;,circum-
stances here, that the Respondent by insisting on using
the tape recorder over the Union's objections, was not
acting in good faith . Rather, when the Respondent's
insistence is viewed in the context of theRespondent's
entire course of conduct , as found herein, it is manifest,
and we find, that the Respondent had as its purpose to
avoid, delay , and frustrate . meaningful-bargaining with
the Union. Accordingly, we find thatthe Respondent's
insistence on the ,use of the tape , recorder over, the
objection of the Union , further evidenced its-bad-faith
bargaining as discussed below, and further violated
Section 8(a)(5) and (1) of the Act.
In the instant case, I find that Selvin's insistence on a
reporter to take a verbatim transcript of the negotiating
sessions was part of- her strategy to avoid meaningful
bargaining and therefore was a violation of Section 8(a)(5)
and (1) of the Act.
With regard to Selvin's refusal to allow representatives of
the Union access to the plant to verify the facts contained
in the lists that she - gave them,,West Coast was under an
obligation to furnish the Union with information'-that was
necessary to enable the. Union to intelligently perform its
function and this duty to furnish information included the
granting of permission to conduct in-plant inspections if
necessary . The Board has held that-such in plant inspec-
tions were needed in order to -make timestudies where
certain video tapes given a union by accompany were not
considered reasonable substitutes for in-plant evaluations.
General Electric Company, 186 NLRB-No. 1. An on-sight
inspection will be, required if the information requested is
both relevant and necessary to enable the union to fulfill its
functions as the bargaining agent. Wilson Athletic Goods
and Manufacturing Co., Inc., 169 ' NLRB 621 . If it is
necessary for the union to make a live study so that it can
reliably evaluate the company's data, such a live study is
required. As the ` Court said in General Electric Co. v.
N.L.R.'B., 414 F .2d 918 (C.A. 4, 1969), cert. denied 396 U.S.
1005(1970):
Each case requires a weighing of the union's need to
make the studies balanced against any inconvenience
which might be caused to the Company in the process,
or the violation , of any right of privacy that the
Company possessed . In the case at bar, there is no
serious suggestion that , the studies in question would
interfere with - production, nor can we say ' that the
prerogatives of management to the -private conduct of
its business-should outweigh the union's demonstrated
need to the information and inspections that it
sought. . . .
In the instant case, West Coast furnished job classification
information to the Union and the Union sought to verify it
by observing the operations , at the plant. Selvin's ' refusal
and her threat ' to' call the police if the'union representatives
came to the plant have not been shown to be based-on' any
legitimate business reason . The refusal' was simply part of
Selvin's strategy to isolate the Union from West Coast and
to prevent the reaching of ' an agreement . I find that, such
WEST COAST CASKET CO., INC. 639
conduct was in violation of Section 8(a)(5) and (1) of the
Act.
West Coast succeeded in frustrating the bargaining
process by failing to bargain in good faith with the Union.
West Coast did not approach the bargaining table with the
open mind and sincere desire to reach an agreement that is
required of it by the Act and its conduct showed an
intention to disparage the bargaining process itself. Herman
Sausage, Inc., 122 NLRB 168, enfd. 275 F.2d 229 (C.A.
5,1960). In N.L.R.B. v. Reed and Prince Mfg. Co., 205 F.2d
131 (C.A. 1, 1953), the Court held:
Thus if an employer can find nothing whatever to agree
to in an ordinary current-day contract submitted to
him, or in some of the union 's related minor requests,
and if the employer makes not a single serious proposal
meeting the union at least part way, then certainly the
Board must be able to conclude that this is at least some
evidence of bad faith , that is, of a desire not to reach' an
agreement with the union . In other words, while the
Board cannot force an employer to make a
"concession" on any specific issue or to adopt any
particular position, the employer is obliged to make
some reasonable effort in some direction to compose his
differences with the union , if §,8 (a)(5) is to be read as
imposing any substantial obligation.. t all. -
In Duro Fittings Company, 130 NLRB 653, Selvin was once
again the bargaining agent for a respondent. The Board
adopted the Trial Examiner 's decision which, after tracing
the conduct of Selvin during the negotiations , stated: "I
find, based upon the foregoing, that Respondent uniformly
rejected any changes in working conditions of any
substance, and those matters that it did not reject' it
attempted to relegate to its control by the device of the
management prerogative clause ." In KFXM Broadcasting
Company, supra, the Board `adopted the Trial Examiner's
decision that Selvin had unilaterally canceled ' scheduled
meetings and refused requests for additional meetings,
procrastinated, in the preparation of counterproposals,
come to negotiating meeting ' unprepared to discuss
proposals-previously submitted ,; refused to meet anywhere
but her apartment , and in general failed from the outset of
negotiations to -engage in good-faith bargaining and
thereby violated Section 8(aX5) and (1) of the Act.
I find-that West Coast and Selvin have failed and refused,
from the receipt of the Union's demand to bargainion June
25, 1969, and at all times thereafter, to engage in good-faith
bargaining and thereby violated Section 8(a)(5) and (1) of
the Act.
By September 10, 1969, the date upon which the strike
vote was taken, it was clear that West Coast and Selvin
were unlawfully refusing to bargain. The employees at that
meeting were informed about Selvin's conduct and
authorized a strike . I find that the strike which began on
September 15, 1969, was caused and prolonged by the
unfair labor practices of West Coast and Selvin and it was
therefore an unfair labor practice strike.
E. The Telegram
1. The facts
The complaint, as amended, alleges that West Coast
violated Section 8(a)(l) of the Act by sending an employee
a telegram telling her that if she took part in a strike, the
Company had a right to permanently replace her, in which
event she would lose all interest in her employment. The
telegram which is dated September 15, 1969, reads as
follows:
ESTELLE CUNNINGHAM, REPORT DELIVERY
6727 HOOD AVE HUNTINGTON PARK CALIF
YOU HAVE EXERCISED YOUR LEGAL RIGHT
TO JOIN SOME OF YOUR CO-WORKERS IN A
STRIKE, AND/OR FAILURE TO REPORT FOR
WORK.
THIS IS TO INFORM YOU THAT UNDER
SUCH CIRCUMSTANCES, THE COMPANY HAS
THE LAWFUL RIGHT TO FILL YOUR POSITION
WITH A NEW EMPLOYEE ON A PERMANENT
BASIS. IN SUCH AN EVENT, YOU WILL HAVE
LOST ALL INTEREST IN YOUR FORMER EM-
PLOYMENT.
WHICHEVER COURSE YOU CHOOSE, BE
ASSURED THAT WE WISH YOU WELL WEST
COAST CASKET COMPANY.
Company records show that Estelle Cunningham, a
trimmer, was hired on May 5,1952, and was terminated on
September 15, 1969, the date of the telegram.' Winkler
acknowledged that she was a seamstress employed by the
Company, but when he was asked whether he or someone
under his direction sent the telegram to Cunningham, he
answered that he didn't send it. When questioned further as
to whether it was sent under his direction, he answered, "I
don't know: I didn't send it. If it was sent by someone, it
was sent." Later in his testimony he averred that he didn't
even know that it was sent to her. He, acknowledged that
Cunningham didn't report for work several days before the
strike and she was under a doctor's care. - In her initial
testimony Selvin averred that she was not aware whether or
not the telegram was sent by West Coast to Cunningham.
However, she also testified that when the strike began,
certain employees did, not report for work and she told=
someone, whom she could not identify, over the telephone
that ". . . a telegram of that nature would be reasonable."
She also acknowledged that the portion of the telegram
reading "In such an event you will have lost all interest in
your former employment" was part of the instructions that
she gave over the telephone. Finally, Selvin testified that
she gave the wording of the telegram to someone over the
telephone. The testimony of Selvin and Winkler with regard
to the telegram must be viewed in light of the surrounding
circumstances . Pilar Guerro, a_foreman at the 17th Street
plant, respected the picket line that formed after the strike,
and he did not go in to work. Under cross-examination by
West Coast, he acknowledged, that he received a telegram
from West Coast and -that telegram was admitted to
evidence as a West Coast exhibit The body of the telegram
was identical with the one addressed to Cunningham which
was put in evidence as a,General Counsel exhibit. Only the
name and address of the person to whom they were sent
differed. Apparently, at that point in the trial, West Coast
was less reluctant to acknowledge that it had sent the
telegram than when Winkler and Selvin testified. Selvin
also freely acknowledged the telegrams at a meeting with
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union representatives on September 24, 1969, when she
said:
We have an ad in the paper which reads that we are
employing people in certain classifications as perma-
nent replacements of sinkers, and we have notified the
people that we have this right and also in the same
telegram we, notified them that they were exercising
their lawful right to join with fellow workers and go on
strike.
So I don't believe you could find anything wrong
with the telegram we sent to them....
I find that the telegram was sent to employees who did
not report to work after the picket line was set up. Winkler
acknowledged that Cunningham had been away from work
for several days at that time, and I find that she, too, was
sent the telegram. Winkler.'s testimony that he did not have
knowledge of the, telegram is- discredited. He is the only
responsible official of West Coast concerned with the day-
to-day operation of the plants, and I simply cannot believe
that a matter as important as the telegrams would not have
been brought to his attention on the day of the strike. His
testimony in this regard sheds doubt on his credibility in
general. , Selvin's hesitancy in her initial testimony to
acknowledge responsibility for the, telegrams also sheds
serious ,doubt on her candor.
2. Analysis and conclusions
Section 2(3) of the Act provides that the term employee
shall include any individual "whose work has ceased as a
consequence of,' or in connection with, any current labor
dispute or because of any unfair labor, practice, and who
has not obtained any other- regular and substantially'
equivalent employment . '.. " Clearly the West Coast
strikers were employees within the meaning of the Act. In
The Laidlaw Corporation, 171 NLRB No. 175, enfd. 414
F.2d 99 (C.A.' 7, 1969), cert. denied 397 U.S. 920 (1970), the
Board held that economic strikers "...' are entitled to full
reinstatement upon the departure of replacements unless
they have in the meantime acquired regular, and substan-
tially equivalent employment, or the employer can sustain
his burden of proof that the failure to offer full
reinstatement was for legitimate and substantial business
reasons." In the Laidlaw case, the Board adopted the Trial
Examiner's conclusion that the employee's notification to
employees that if they went out on a strike and were
replaced they would -LOSE 'FOREVER (their) right, to-
employment by this company" was not a correct statement
of the law and was ' a threat that reasonably tended to
interfere with, restrain, and coerce the employees in the
exercise of their rights guaranteed by Section 7 of the Act in
violation of Section 8(a)(1) of the Act. In the instant case,
the strikers were told that West Coast had the right to ' fill
their positions with new, employees on a, permanent basis
and, in such an event, "You will have lost all interest in
your former employment." The thrust of that remark was
the'same as that on which the Board based its decision in
the Laidlaw case. In effect the employees were being
threatened with loss of their employee status and reinstate-
ment rights in such a way as to interfere with their rights
guaranteed by Section 7 of the Act. I find that by so
threatening Estelle Cunningham, West Coast violated
Section 8(a)(l) of the Act. As, I have found that the strikers
were protesting West Coast's unfair labor practices and
therefore were unfair labor practice, strikers who are
entitled to reinstatement upon unconditional, application,
West Coast could not lawfully permanently replace them ,or
threaten to do so. Tommy's Spanish Foods, Inc., 187 NLRB
No. 31. 1 find that the telegram to,Cunningham did contain
such a threat and thereby interfered with Section 7 rights in
violation of Section 8(a)(1) of the Act.,
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of West Coast, and Selvin set forth in
section III, above, occurring in connection with the
operations of West Coast described in section I,, above,
have a close, intimate and, substantial relation to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce. ,
V. THE REMEDY
Having-found that West Coast and Selvin have, engaged
in certain unfair labor practices, I shall recommend that
they be ordered to cease. and desist therefrom and, take
certain affirmative action designed to effectuate the policies
of the Act.
Having found that West Coast discharged Roy Cooper,
Rodolfo Ramirez, and Aurelio Mena, and failed to
reinstate Cooper and Ramirez in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that West
Coast, be.ordered to offer Cooper and Ramirez reinstate-
ment and make all three whole for any loss of pay resulting
from their discharges by payment to them of, a sum of
money equal to the amount they normally would, have
earned as wages from the date of their discharges to the
date on which reinstatement is, or was offered, less net
earnings during that , , period. Such backpay shall be
computed on a quarterly basis in the, manner;prescribed in
F. W. Woolworth Company, 90 NLRB 289, and shall include
interest at 6 percent as provided in Isis Plumbing & Heating
Co., 138 NLRB 716.
Having found that West, Coast and Selvin engaged in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act, I shallsecommend that,they be ordered
to cease and desist therefrom and bargain collectively with
the Union as the exclusive representative of all employees,
in the unit set forth above, and, if an understanding is
reached, embody such understanding in a, signed agree-
ment.
In order to insure that the employees will, be accorded the
statutorily prescribed services of _their selected bargaining
agent for,the period provided by law, I recommend that the
initial year of certification begin on the date that West
Coast commences to bargain in good faith,with the Union
as the recognized bargaining representative in the appropri-
ate unit. LT. V. Electrosystems, Inc., 166 NLRB 938, enfd.
388 F.2d 683 (C.A. 4, 1968).
Having found that West Coast, employees struck to
protest the Company's unlawful refusal to bargain with the
Union, I shall recommend that West Coast he ordered to,
WEST COAST CASKET CO., INC. 641
upon application, offer to said employees reinstatement to
their., former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights-and privileges, dismissing, if
necessary, any, employees hired to replace said unfair labor
practice strikers.
I will also recommend that West Coast be ordered to
preserve and, upon request , make available to the Board or
its agents , for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary to
analyze theamount of backpay due.
West Coast is not a stranger to Board proceedings. In
West Coast Casket Company, Inc., 97 NLRB 820, the Board
found that West Coast, in a case involving the Upholster-
ers' International 'Union of North America, Local 15, AFL,
violated Section 8(a)(1) of -the Act by unlawfully interrogat-
ing and threatening employees , and by granting 'wage
increases to `induce employees to reject the union. In
addition, the Board found that West Coast violated Section
8(aX3) of the Act by unlawfully discharging two employees
and' by unlawfully denying reinstatement to unfair labor
practice strikers who unconditionally applied for reinstate-
ment. In the instant ' case," West Coast has committed
flagrant and widespread violations of the Act. In view of
the past history of West Coast, and the nature of the unfair
labor practices committed in the present case, the
commission of similar or other unfair labor practices
reasonably may be anticipated. I shall therefore recom-
mend that West Coast be ordered to cease and desist from
in any manner interfering with rights guaranteed to its
employees by Section 7 of the Act.
Selvin is named as a respondent in the complaint. She
admittedly is. an agent of West Coast. Section 2(2) of the
Act defines the term employer so as to include any person
acting as the agent of an ; employer. I havefound that Selvin,
as such an employer, unlawfully refused to bargain with the
Union in violation of, Section 8(aX5), and (1) of the Act. A
remedy , is needed that will be -binding on Selvin . She was
not a pawn carrying out the- orders of West Coast but, as is
clear from the findings of fact set forth above and from her
own statement that "employers don't know anything about
this problem," she was , the. guiding force and strategist
behind the violations of Section 8(a)(5) and (1). Her
unlawful tactics in this case were not specifically keyed to
the situation herein but were a, part of her stock and trade
and can be reasonably- be expected to reappear in the
future . The Board has held that a broad order is necessary
where "... the unfair labor, practices committed by the
Respondent are of such a' character as to reflect' a
predisposition on its part to thwart by other means as well,
employees ' efforts to engage in legitimate concerted
activities for the purpose of- `self-organization or other
mutual aid or protection.. .. " John P. Krystyniak d/b/a
Red and White Super Markets, 172 NLRB No. 210, enfd. in
part 415 F.2d 125 (C.A. 3, 1969). See also Singer Company v.
N.L.R.B., 429 F.2d 172 (C.A. 8,1970).
When an employer, designates Selvin as its agent- for
collective bargaining with the union, that union cannot
refuse to negotiate ` with Selvin, even where the union may
have a substantial basis - for believing that Selvin has no
intention of participating in the meaningful bargaining.
When Local 986 of the Teamsters took such , a position in
Miscellaneous Warehousemen, Drivers and Helpers; Local
986, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers ofAmerica (Tak-Tralc,
Inc.) and Mrs. Edwin Selvin, Labor Relations Consultant, 145
NLRB 1511, Selvin filed a charge-alleging that the union
refused to bargain in violation of'8(bx3),of the Act and-the
Board found a violation of that section . The Board adopted
the Trial Examiner's decision which read inpart:
... while her reputation in the vicinity of her
residence and in the field of labor relations is so
notorious that one may well question whether any
employer desirous of establishing a mutually satisfacto-
ry bargaining relationship with his employees, repre-
sentative would designate her as his negotiator, it may
be assuming too much to say, without more evidence
than is, present here, that this-employer hired her not as
his representative for purposes of collective bargaining
but for purposes of obstructing the bargaining process.
In deciding how broad the order, should be to remedy
Selvin's unlawful -conduct in this case, it must be borne in
mind that, under outstanding , Board law unions cannot
decline to bargain with Selvin.
I shall recommend -that Selvin be ordered to cease, and
desist from in any manner interfering with rights guaran-
teed employees by Section 7 of the Act when she is an agent
for West Coast or for any other employer subject to the
jurisdiction of the National Labor Relations Board. More
specifically, I shall recommend4hat she be ordered to cease
and desist from refusing to bargain in good faith with any
labor organization where she is, agent for any employer
subject to the jurisdiction of the Board, that has an
obligation under the Act to bargain with said labor
organization. -
CONCLUSIONS OF LAW
1. West Coast and Selvin are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Carpenters and the Painters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By discharging Roy Cooper, Rodolfo Ramirez, and
Aurelio Mena and by-failing to` reinstate Cooper and
Ramirez because of -their activity on behalf of the lrOnion,
thereby discouraging membership in the Union, West
Coast has violated Section 8(a)(3) of the Act.
4. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act : All production and
maintenance employees , including ° paint department-em-
ployees, and truckdrivers employed by West Coast;
excluding all office clerical employees , professional em-
ployees, guards , and supervisors as defined in the Act.
5. As certified by the National Labor Relations Board
on June 24, 1969, the Union is the exclusive representative
of the - employees in the aforesaid unit - for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
6. By failing and refusing , on June 25, 1969, and
642 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
thereafter, to bargain in good faith with-the Union as the
exclusive representative ^ of, the' employees in the said
appropriate unit, West Coast and Selvin have engaged in,
and are 'engaging in, unfair labor practices within the
meaning of Section 8(a)(5) of'the Act.
7. By the foregoing conduct, and by notifying employ-
ees-who were' striking in protestof its unfair labor practices
that West Coast had a lawful right to fill their positions with
new employees on a permanent basis and thatin such event
said strikers" would' have lost all interest ^in their former
•employment, West-Coast threatened striking employees
with loss of their employee status and reinstatements rights,
and threatened unfair labor practice strikers with perma-
nent replacement, and thereby interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed'to, them by-Section 7 of the Act in violation of
Section=8(axl) of the Act. ti
8.,- By the conduct-described in number 6`above, Selvin
interfered with,, restrained,,and - coerced- employees in the
exercise of the rights guaranteed to `them by Section 7 ,of the
Act and thereby-violated Section 8(a)(1) -of the Act.
- 9. The , strike engaged -inby'West Coast employees' on
September 15, 1969, was an unfair labor practice strike.
10. The aforesaid unfair labor practices are unfair labor
practices,affecting commerce within the meaning o€' Section
2(6) and (7) o€ the Act..
d 1.- The 'General Counsel has not established by a
preponderance of, the'evidence that West Coast unlawfully
discharged Marco Aguirre, Miguel Betancourt, Jesus
Cisheroz,. Migueal Vilegas, Raul Betancourt, George Saiza,
Regino Enciseo , Leopoldina Hajaistron, or Pedro Guarola,
as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 26'
ORDER
A._ West Coast -Casket Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from-,
(a) Discriminating , against employees by a ,discharging
them in order to' discourage employees from joining or
supporting Cabinet Makers ,& MillmenLocal'7211, United
Brotherhood of Carpenters & Joiners of, America,
AFL=CIO and the Painters Local 'Union No. ' ,1798,
Brotherhood 'of Painters, Decorators and' Paperhangers of
America, AFL-CIO,,or any other, labor ' organization.
r.+
(ti) _ Refusing , to bargain in good faith with the above-
nained' labor organizations, as the exclusive representative
of its employees in the followingunit: All production and
maintenance ,,, employees, including paint department em-
ployees ,and,truckdriver`s, employed by West Coast Casket
Company,-Inc.;; excluding ' all office clerical employees,
professional employees, guards and supervisors as defined '
in the Act
-20 In'the'event no exceptions are filed as provided -by Section 102.46 of
the Rules and_ Regulations of the National Labor Relations Board, the
findings, conclusions, and recommends Order herein shall„as provided in
Section 102 .48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(c) Threatening striking employees with loss of their
employee status and reinstatement rights , and threatening
unfair labor practice strikers with permanent replacements.
(d) In any manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the-following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to reinstate Roy Cooper and, Rodolfo Ramirez
to-`their former jobs, or ,if those jobs no longer exist, to
substantially equivalent positions , without prejudice to
their seniority and other rights and privileges.
(b) Make Roy. ,Cooper, Rodolfo Ramirez, and Aurelio
Mena whole for any loss of pay they may have suffered by
reason of their unlawful 'discharges by payment to'them of
a sum of money equal to'the amount they normally would
haveI earned as wages from the date of their lscharges' to
tie 'date that reinstatement ,is or was offered, in the manner
set forth in the section of this decision entitled "The
Remedy."
(c), Notify Roy Cooper and,Rodolfo Ramirez , if presently
serving in the Armed Forces of the. United States , of .their
right to ,full reinstatement, upon application, after discharge
in accordance with the Selective Service Act and Universal
Military Training and Service Act.
(d) Upon request, bargain in good faith with the above-
named Unions, as the exclusive, representative of : ,all
employees in the unit set forth above and, if an
understanding is,reached , embody such understanding in a:
signed agreement . , -. ,
(e) Upon application, offer all unfair labor ^ practice
strikers reinstatement to their former jobs or,, if those jobs
no longer exist , to .substantially equivalent positions,
without prejudice to their , seniority, or, other rights and
privileges,' dismissing, if necessary, any employees hired to
replace said unfair labor practice strikers.
(f) Preserve, and, upon request; snake- available , to the
Board or its agents, for -examination and copying,- all
payroll records, social, security payment records, timecards,
personnel records' and reports, and gall other records
necessary to analyze the amountof backpay due.
'(g) Post at all of its plants - copies of the attached notice
marked "Appendix A."27,Copies of the°`notice, on forms'
provided by the Regional DirectorforRegion 21, after being',
duly signed by West Coast's authorized representative,'
shall be posted by West Coast immediately upon-receipt,
thereof, and be maintained "by it for '60 consecutive days
thereafter , in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps, shall be take},-by West Coast to insure that said
notices are not altered , defaced,, or. covered by any other
material.
(h) ,Nootify the Regional Director for Region,,21, in
writing, within 20 days from, the' date of receipt of ,this
27 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals , the'words in the notice reading-"POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to,read "POSTED PURSUANT TO A JUDGMENT OF
THE 'UNITED STATES COURT OF ,APPEALS ENFORCING AN
ORDER OF' THE NATIONAL LABOR RELATIONS BOARD',
WEST COAST CASKET CO., INC. 643
Decision, what steps West Coast has taken to comply
herewith.28
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it-alleges that Marco Aguirre, Miguel Betancourt,
Jesus Cisheroz, Miguel Vilegas, Raul •Betancourt, George
Saiza, -Regino Encisco, Leopoldina Hajaistron, and Pedro
Guerola were discharged in violation of the Act.
B. Mrs. Gladys Selvin shall:'
1. Cease and desist from:
(a) Refusing to bargain in good faith with the above-
named labor organizations as the exclusive representative
of the employees of West Coast in the abovementioned
unit.
(b) Refusing to bargain in good faith with any labor
organization when she is agent for any employer subject to
the-jurisdiction, of the Board, that has an obligation under
the Act to bargain with said labor organization.
(c) When she is an agent for any employer subject to the
jurisdiction of the Baord, in any manner interfering with,
restraining, or -coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon` request, bargain in good faith with the above-
named labor organizations, as the exclusive representative
of all employees in the unit set forth above, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Bargain in good faith with any labor organization
when she is agent for any employer subject to jurisdiction
of the 'Board,' that has an obligation under the Act to
bargain with said labor organization.
(c) Post at all West Coast's plants, copies of the attached
notice marked "Appendix B."29 Copies of the notice, on
forms provided by the Regional Director for Region 21,
after being duly signed by Gladys Selvin, shall be posted by
West Coast; immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by West Coast to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for, Region 21, in
writing, within 20 days from the date of the receipt of this
Decision, what steps, Gladys Selvin has taken to comply
herewith.s0
28 In the event this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read:
"Notify the Regional-Director for Region 21, in writing, within 20 days
from the date of this Order, what steps West Coast has taken to comply
herewith."
ss See fn. 27.
so See fn. 28.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate,the policies of the National Labor Relations Act,
as amended, we hereby notify you that:
After a trial at which all sides had a chance to give
evidence, a Trial Examiner of the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
The Act gives all employees these rights
To engage in self-organization
To form, join or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain 'from any or- all these things except
to the extent that membership in-a union may be
required pursuant to a lawful union-security
clause.
WE WILL NOT do anything that restrains or coerces
employees with respect to these rights. More specifical-
ly, -
WE WILL NOT discriminate against employees by
discharging them in order to discourage employees
from joining or supporting,the Cabinet Makers and
Millmen Union Local- 721, United Brotherhood of
Carpenters & Joiners of America, AFL- 10, and the
Painters Local Union No.`- 1798,' Brotherhood of
Painters, Decorators and Paperhangers of America,
AFL-CIO, or any other-labor- organization.
WE WILL NOT refuse to bargain in good faith with the
above-named labor organizations as the exclusive
representative of our employees in the following unit:
All production and maintenance employees, including
paint department employees' and truckdrivers, em-
ployed by West Coast Casket Company, Inc.; excluding
all office clerical employees, professional employees,
guards and supervisors as defined in the'Act.
WE WILL NOT threaten Striking employees with loss of
their employee status and reinstatement rights, or
threaten unfair labor practice- strikers with permanent
replacement.
WE WILL offer to reinstate Roy Cooper and Rodolfo
Ramirez to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,-without any
change in seniority or other- privileges` they enjoyed
before we discharge them and we will pay to them and
to Aurelio Mena any money they lost as a result of the
discrimination against them with interest at 6 percent.
WE WILL notify Roy Cooper and Rodolfo Ramirez, if
presently serving in the Armed Forces of the United
States, of their right to full reinstatement, upon
application after discharge, in accordance with the
Selective Service Act and the Universal Military
Training and Service Act.
WE WILL, upon application, offer to all unfair labor
practice strikers reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without any change in seniority or other
privileges, dismissing, if necessary, any employees hired
to replace said unfair labor practice strikers.
WE WILL bargain in good faith with the above-named
Unions on wages, hours, and conditions of employ-
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went, and any agreement we reach will be put in writing This is an official notice' and must not be defaced by
and signed. anyone. r,
This Notice must remain posted for. 60 consecutive days
WEST COAST CASKET from the date of posting-and must not be altered, defaced,
COMPANY,' INC. or covered by any other material.
(Employer) Any questions concerning this Notice-or compliance with
its provisions, may be directed to the Board's Office,
Dated By - Eastern Columbia Building,, 849 South Broadway, Los
(Representative) (Title) Angeles, California 90014, Telephone 688-5200.
12/ The dates , of hire and discharge, and the job classifications-of the alleged
discriminatees were: I -
Name Date of Hire Date of Discharge ''Job Classification
'Marco Aguirre
Miguel , Betancourt
Jesus Cisheroz
Roy Cooper
Miguel Visages
Raul Betancourt
George Saiza
Regino Encisco
Leopoldina Hajaistron
Rodolfo Ramirez
Pedro Guarola
Aurelio Mena
These new hires were:1 3/The,
Name
Jose Acevado
Diego Cardona
Faust Garcia
Joseph Ginn
Earl Kindle
Anthony Plumber, Jr.
James Reardon
Alex Ramero
Victor Vera
14 A twenty-ninth name ,
a supervisor.
3-3-69 4-16-69' Trimmer
7-20-67 .4-16-69 , Trimmer`,
1-9-69 4-16-69 Sander
8-6-56 4-18-69 ' Trimmer
9-10-62 4-23-69 Shipper
9-27-65 6-13-69 "Mill
8-25-69 6-18-69 Driver'
7-5-66 6-20-69 Spray-man
3-8-69 6-23-69 Sewing ,.
1 -10-62 6-23-69 Spray man
12-30-69 6-2-69 Cabinet
3-26-51 7-2-69' Polisher
Date of Hire Job ClassificationDate ofDischarge -
7-22-69
r
Sand"er
9-26-69 1970 Cabinet
10-6-69 10-9-69 Spray man
10-3-69 10-21-69, Trimmer,
9-26-69 1970 Sander
9-23-69 1970 Driver'
10-18-69 12-3-69 Trimmer
10-6-69 10-22-69 Sander,
10-26-69 1-0-9-69, Trimmer,
Pilar -Guerro , is listed as a trimmer , but,Guerro was