D & C Textile Corp., 769 (1971)
D & C TEXTILE CORP. 769
D & C Textile Corp. and District 65, Wholesale, Retail,
Office & Processing Union, National Council Distributive Workers of America. Case 2-CA-12007
April 15, 1971 DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
On November 17, 1970, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief.
The General Counsel filed a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and briefs, and the entire record in the case, and hereby adopts the findings, conclusions and recommendations' of the Trial Examiner, as modified herein.
The Trial Examiner found that Respondent violated Section 8(a)(1) of the Act when, during the course of the March 10, 1970,2 employee meetings,
Dostis, Respondent's president, in the words of the Trial Examiner, 'threaten[ed ] his employees with less favorable working conditions if the Union represented the employees.' For the reasons set forth below, we find that the statements made by Dostis were not coercive.
Dostis' testimony on this point, which the Trial Examiner credited, was that he told the employees:
Our relationship in the place won't be as close as it used to be. I also told them that in the years they worked for me, my door was always open to any of their problems whether it was person[al] or business, anything that came up, my door was always open to them. I always listened to their problems and always tried to help them in any possible manner and I told them that I didn't think the Union could act in that way. [Emphasis supplied.] Taken in its entire context, the thrust of Dostis' testimony establishes that Dostis sought only to convey to the employees his opinion of how he thought the Union's presence, as a third party, would affect Respondent's past relationship with its employees. The fact is that the employees themselves sought to change the nature of this relationship when they expressed their desire-through their signed authorization cards-to have a bargaining representative represent them in matters affecting their terms and conditions of employment. The necessary consequence of selecting such a representative is, of course, that the employees ordinarily deal with their employer through an intermediary, thus making less frequent those occasions when individual employees would find it necessary to present their own problems directly to management. We are unable to read Dostis' statement as a threat to impose less favorable working conditions upon his employees. In our view, it amounts to nothing more than a rehearsal of the past relationship between Respondent and its employees, and a supportable appraisal of the effect on that relationship necessarily entailed by the advent of a union. Accordingly, we find that the statement was not coercive and we shall dismiss this part of the complaint.
Although we are dismissing the aforementioned allegation, we find, for the reasons stated in the Trial Examiner's Decision, that Dostis' remarks in his March 10 speeches regarding the pension plan constituted a promise of benefit, and, therefore, violated Section 8(a)(1) of the Act.
We further find, contrary to the Trial Examiner, that there is insufficient record evidence to establish, as alleged by the General Counsel, that Respondent's April 18 wage increase constituted an independent violation of Section 8(a)(1) of the Act.
The record shows that, in the 3 years prior to 1970,
Respondent had a practice of conducting an annual inventory around early March and giving its employees a pay increase within 2 to 4 weeks thereafter. In 1967 the increases were first received by the employees on April 15; in 1968 on April 6; and in 1969 on April 12. The 1970 inventory was completed on February 28, but as of Friday, April 10, a payday, no raise had been received.
i We find it unnecessary to pass upon the Trial Examiner's recommendation , in The Remedy section of his Decision, that a bargaining order would be appropriate in this case on the bases of the Section 8(a)(1) violations found by him , even if it were not also found that Respondent violated Section 8(a)(5) Since we agree that Respondent unlawfully withdrew recognition from the Union, the applicability of N L R B v Gissel Packing Co, 395 U S 575, is not in issue 2 All dates hereinafter refer to 1970, unless otherwise indicated 189 NLRB No. 113
On or about that date employee Risbrook called the Board's Regional Office and asked a Board attorney how the employees 'could be released from the Union.' According to Risbrook, the Board attorney told him to write a letter to the Union and to Respondent stating that the employees no longer desired the Union; this, the Board attorney told Risbrook, would 'release the company from any obligation to the Union and it would release us from any obligations from [sic] the Union.' Risbrook prepared such a letter, secured the signatures of all seven employees who had signed authorization cards, and, on April 13, mailed copies to the Union,
Respondent, and the Board. At the hearing, Risbrook denied that he had consulted with Dostis about this letter before undertaking to prepare and send it.
Employee Anglero, who had cooperated in the preparation of the letter, testified to the same effect.
On April 14, Dostis, having received his copy of the letter, called Risbrook in and asked him what it 'was all about.' Risbrook told Dostis that the employees had been concerned about their annual raise, and had sent the letters on the advice of the Board attorney.
Dostis testified that he then called his own attorney for advice, was told to do whatever he normally did with regard to pay increases, and 'shortly after that we granted the people the raises that were coming to them.' The employees received substantial wage increases in their paychecks of Friday, April 17.
Dostis testified that the reason for the unusual delay in 1970 between the completion of inventory and the granting of pay increases was the inability of his accountant, during the rush of the tax season, to provide Respondent with a profit-and-loss statement for the preceding year. Dostis also testified that he 'was on a fence as to whether I should or shouldn't do it [give a raise]'; as discussed below, it is not clear from the record precisely what point in time Dostis was referring to in speaking of this dilemma.
The Trial Examiner inferred from this sequence of events, 'contrary to the testimony and denials of Anglero, Risbrook, and Dostis, that before the employees withdrew from the union, they had been told that their usual annual raise would not be given unless they did so.' While the record furnishes a support for a serious suspicion that the Trial Examiner is correct, we think that the General Counsel's case is too laden with inferences to satisfy his burden of proving the violation by a preponderance of the evidence. The Trial Examiner disbelieved Anglero and Risbrook's testimony that, fearful that they would not receive their annual pay raise, they decided on their own to attempt withdrawal from the Union.
The Examiner felt that when Risbrook called the Board's office on Friday, April 10, he would have had no reason to believe the raise would not be forthcoming unless he had been so told by Respondent, since the increase in the preceding year had not been received until April 12. But, since April 10 was the equivalent payday in 1970, it would appear that, having not received a raise on that day, Risbrook may have independently concluded that the raises would be late. Furthermore, the Examiner's argument depends to some extent on precise recall by Risbrook as to the date on which the last raise had been received; it could have as easily been in Risbrook's mind that, in 1968, raises had already been received by April 6.
The Examiner further opines that it 'defies belief' that, if Risbrook was concerned about the delay in the increases, he would not have consulted Dostis as to why they had not been given. We think that such reluctance by an employee is entirely conceivable. It is just as easy to speculate that, in Risbrook's considered opinion, the raises were being deliberately delayed because of the advent of the Union, thus leading to Risbrook's decision to seek employee withdrawal from the Union. Risbrook's own evaluation of the situation, of course, is not probative of the question of whether Respondent, in fact, was deliberately withholding the increases.
The Examiner then refers to Dostis' testimony about being 'on a fence as to whether I should or shouldn't do it,' and infers that this dilemna must have been conveyed to Risbrook before he called the Regional Office, since, as the Trial Examiner puts it,
Risbrook 'assertedly inquired and received advice from the Board attorney, not only on how to withdraw from the Union, his alleged objective, but also that the withdrawal letter `would release the company from any obligation to the Union.'' (Emphasis added.) For one thing, in the context of Dostis' testimony, we do not think it clear that Dostis' allusion to being...
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