Thiele Tanning Co., 19 (1960)

DECISION AND ORDER

On January 29, 1960, Trial Examiner Leo F. Lightner issued his Intermediate Report, and on February 4, 1960, an erratum, in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter'The Respondent also requested oral argument . The request is hereby denied as the record, exceptions , and brief fully present the issues and the positions of the parties.

2Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel ( Members Rodgers, Bean, and Fanning].

8 The Respondent excepts to the Trial Examiner's ruling admitting In evidence General Counsel's Exhibit No. 7, a copy of a letter dated March 17, 1959. This letter was 128 NLRB No. 5.

mediate Report, the erratum,4 the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner.

ORDER

Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Thiele Tanning Company, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall:

1. Cease and desist from :

   (a) Discouraging membership in Leather Workers Union, Local No. 47, or in any other labor organization of its employees, by discharging or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment.

   (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right of self-organization, to form labor organizations, to join or assist Leather Workers Union, Local No. 47, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of addressed to the Respondent by the Union's business representative, Churka, and requested the Charging Party's, Armstead 's, presence at a Board representation hearing.

   The Trial Examiner admitted the copy and relied on it, inter alia, in finding that the Respondent knew of Armstead 's union activities, including his proposed attendance at a Board hearing. The Respondent argues that the admission of the exhibit was contrary to the best evidence rule and the rule against hearsay Union Representative Churka testified to writing and signing the letter , and his secretary, Anderson , identified the letter as a copy of the one she typed The record shows that, in the usual course of business , Anderson mails the office letters at the end of the day although Churka has done so infrequently. Anderson testified that the letter to the Respondent was mailed in the usual course. The Respondent ' s president, Thiele, testified that he had not seen the original letter and that a search of his office files did not disclose it.

   The Union' s mailing of the March 17 letter was apparent from the testimony respecting the usual course of business practice Dunlop v United States , 165 U.S. 486, 495;

   Wigmore, Evidence, 3d ed., vol. I, sec. 95, pp. 525-528 . The Trial Examiner found that the Union mailed the letter and did not credit Thiele ' s denial of its receipt There is no warrant in the record for overturning the Trial Examiner 's credibility resolution.

   We find that the evidence adduced by the Respondent was insufficient to overcome the presumption that it was received by the Respondent . See Wigmore, supra, vol IX, sec.

   2519, pp. 430-431 . Ahonen Lumber Company, 77 NLRB 706, 707

   4 We note that the Intermediate Report sets out transcript testimony largely as a continuous quotation rather than as excerpts The lack of appropriate markings to indicate omitted parts does not affect the tenor of the testimony and no exceptions have been filed with regard to it. Accordingly, we find it unnecessary to restate the quotations in full 5 The Trial Examiner found that it was unnecessary to pass on the 8 ( a) (4) allegation of the complaint. In the absence of exceptions thereto , we adopt pro forma the finding We will therefore dismiss the 8(a) (4) allegation.

   employment as authorized in Section 8(a) (3) of the Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959.

2. Take the following affirmative action which the Board finds will effectuate the policies of the Act :

   (a) Offer to Joseph Armstead immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of the Intermediate Report entitled 'The Remedy,' for any loss of pay he may have suffered by reason of the discrimination against him.

   (b) 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 the amount of backpay due in accordance with this Order.

   (c) Post at its plant at Milwaukee, Wisconsin, copies of the notice attached hereto marked 'Appendix.' 6 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, upon being duly signed by the Respondent's representative, be posted by the Respondent 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material.

   (d) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith.

   IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges a violation of Section 8(a) (4).

   0In the event that this Order is enforced by a decree of a United 'States Court of Appeals, there shall be substituted Tor the words 'Pursuant to a Decision and Order' the words 'Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order.' APPENDIX

   NOTICE TO ALL EMPLOYEES

   Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that :

   WE WILL NOT discourage membership in Leather Workers Union, Local No. 47, or any other labor organization of our employees, by discharging them or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment.

   577684-61-vol. 128 3

   WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to selforganization, to form, join, or assist Leather Workers Union,

   Local No. 47, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.

   WE WILL offer to Joseph Armstead immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and we will make him whole for any loss of pay suffered by reason of the discrimination against him.

   All our employees are free to become or remain, or to refrain from becoming or remaining, members of Leather Workers Union, Local No. 47, or any other labor organization.

   TIIIELE TANNING COMPANY,

   Employer.

   Dated---------------- By------------------------------------(Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.

   INTERMEDIATE REPORT AND RECOMMENDED ORDER

   STATEMENT OF THE CASE

   This proceeding was heard before the duly designated Trial Examiner in Milwaukee, Wisconsin, on September 30 and October 1 and 2, 1959, on the complaint and amendment to complaint of the General Counsel and answer of Thiele Tanning Company, herein called the Respondent. The issues litigated were whether Respondent violated Section 8(a)(1), (3 ), and (4) and Section 2(6) and (7) of the Labor Management Relations Act, 1947. The parties waived oral argument, and briefs filed by General Counsel and Respondent have been carefully considered.

   Upon the entire record 1 in the case, and from my observation of the witnesses, I make the following:

   FINDINGS AND CONCLUSIONS

1. THE BUSINESS OF THE RESPONDENT Respondent is a Wisconsin corporation , maintaining its office and factory at Milwaukee, Wisconsin, and engaging in the business of tanning of leather. During the calendar year 1958 Respondent shipped and sold products valued in excess of $50,000 which were for delivery to points outside of...