H & H Manufacturing Company, Inc. And Amalgamated Clothing Workers Or America, Cio, 1373 (1949)

In the Matter of H & H MANUFACTURING COMPANY, INC. and AMALGAMATED CLOTHING WORKERS or AMERICA, CIO Case No. 10-C-2259.-Decided December 30, 1949 DECISION AND ORDER On June 20, 1949, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices 1 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended dismissal of those allegations of the complaint.

Thereafter, both the Resopndent and the Union filed exceptions to the Intermediate Report and supporting briefs. The Respondent's request for oral argument is hereby denied, inasmuch as the record and briefs, in our opinion, adequately present the issues and the positions of the parties.

Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [Members Houston, Reynolds, and Murdock].

The Board has reviewed the rulings of the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Intermediate ' The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner herein found were violated, are continued in Section 8 (a) (1) and 8 (a) (3) of the Act, as amended by the Labor Management Relations Act, 1947.

2 The Respondent contends that the complaint should be dismissed because the Union was not in compliance with Section 9 (f), (g), and (h) of the Act at the time the original and amended charges were filed. We find no merit in the Respoodent's contention as this section of the Act requires compliance when the complaint is issued and we are administratively advised that the Union was in compliance at that time. See Southern Fruit Distributors, Inc., 80 NLRB 1283. The Respondent apparently further contends that the complaint should be dismissed on the ground that it was based upon alleged unfair labor practices which occurred more than 6 months prior to the date upon 87 NLRB No. 148.

1373 Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions,3 and recommendations of the Trial Examiner, insofar as they are consistent with this Decision and Order.4 1. In its exceptions, the Respondent contends that the Trial Examiner was biased and prejudiced in his conduct of the proceeding.

It asserts that he made arbitrary rulings unfavorable to the Respondent, acted as a prosecutor instead of as a presiding judicial officer, and prevented the Respondent from making a full record. We have carefully scrutinized the record and find that it does not sustain these charges. In our opinion the Trial Examiner conducted the hearing in this case with fairness and impartiality and there is no basis for any finding of bias or prejudice on his part against the Respondent.

2. We agree with the Trial Examiner that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and thus violated Section 8 (1) of the National Labor Relations Act and Section 8 (a) (1) of the Act,5 as amended, by the following acts and conduct:

   which the charges *ere filed. The Board has heretofore ruled that Section 10 (b) of the amended Act imposes no limitation upon the issuance of complaints in any case in which the charges were filed and served within 6 months after August 22, 1947, the effective date of the amendments to the Act. Itasca Cotton Manufacturing Company, 79 NLRB 1442. The charges in the instant case were timely filed and served.

   3 The Intermediate Report contains certain misstatements of fact and inadvertences, none of which affects the Trial Examiner's ultimate conclusions, or our concurrence therein. Accordingly, we note the following corrections: (1) The Trial Examiner states that of 34 employees originally laid off, 11 were nonunion. The record and exhibits reveal that 36 employees were laid off and 13 were nonunion; (2) After indicating that 4 of 11 nonunion employees returned to work for Patat, the Trial Examiner states that of 7 remaining nonunion employees 6 were reinstated. However, in setting forth the names of the 6 reinstated employees, he lists 7 people. The name of Lillian Davis was inadvertently included by the Trial Examiner, as she did not return to work for the Respondent after May 21. Moreover, the records and exhibits disclose that there were 9 remaining nonunion employees, when 4 returned to Patat, and 7 of these 9 were reinstated. In addition to the 6 correctly listed by the Trial Examiner the seventh was Mrs. K. F. McGee;

   (3) The Trial Examiner states that Respondent's counsel admitted during oral argument that Respondent's activities in connection with the petition and letters to withdraw from the Union were violative of Section 8 (1) and 8 (a) (1) of the Act. An examination of the record, however, reveals that in his argument Respondent's counsel merely admitted a technical violation by Respondent of this section with regard to th9 letters and he did not refer to the petition.

   4 The Respondent alleges that a present Board employee, one William V. George, who is on the staff of the Regional Director for the Region in which this case was heard and who was on leave of absence without pay at the time, appeared at the hearing as representative of the Union. No objection was made at the hearing by the Respondent's attorney to George's appearance on the Union's behalf, or to the fact that he was permitted to question the Respondent's president. George did not examine any other witnesses during the course of the hearing. The record does not indicate that the Respondent was prejudiced in any manner by George's appearance in this case or that the testimony elicited by George affects in any way a determination of the issues involved. While we disapprove of George's conduct, we believe that it is a matter for administrative remedy, because the Respondent has not been prejudiced in any way by this breach of the Board's Regulations concerning practice by its employees.

   I References hereinafter made to sections of the amended Act refer also, where appropriate, to equivalent sections of the Act prior to amendment, unless the context clearly indicates otherwise.

   1375 a) Surveillance of two union meetings by Assistant Superintendent Roberts; 6 (b) Superintendent Waitsman's attempt about June 29, 1947, as employees were reporting to work at the plant, to prevent Union Organizer Zubal from distributing union leaflets in front of the plant; 7 (c) Superintendent Waitsman's statements in June 1947 to prospective employee Meeler in the presence of employees Watson and Ruth Gordon 'that there was not going to be any union in the plant' and 'before they would have one the plant would not run';

   (d) The drafting in the Respondent's office by the office manager 8 of a petition signed by 38 of Respondent's employees stating they did not want a union in the plant, which petition was circulated openly in the plant during working hours in the presence and with the knowledge of Respondent's supervisors and was received in the Regional Office on June 30, 1947;

   (e) The dictation and preparation of a form letter dated June 23, 1947, by Respondent's president stating that the particular employee wished to withdraw from the Union, carbon copies of which Respondent's president kept in his desk, and which letters as they were signed in his office by employees were left with him for forwarding to the Regional Office.

3. We find, as did the Trial Examiner, that the Respondent did not discriminatorily lay off the employees involved herein in violation of Section 8 (a) (3) of the Act, but that the lay-offs during the period from May 2 to June 11, 1947, were due to the economic reasons asserted by the Respondent.9 6 With respect to this conduct, we rely on the Trial Examiner's finding of Intentional surveillance by the Respondent's Assistant Superintendent Roberts and not on his opinion as to what effect Roberts' acts of driving past the house where union meetings were being held may have had on the employees who were present at the time.

   7 Member Reynolds would not find this incident to be violative of Section 8 (a) (1) of the Act. While the employees were entering the plant, Waitsman told Zubal to get away because he was causing trouble. Member Reynolds believes that this statement does not constitute interference or discouragement of union activity within the meaning of the Act, because it was not coupled with any threat of reprisal or promise of benefit.

   8 While Margaret Kreider denied that she was the office manager, in view of the fact that the production records are kept under her supervision and control and she is in charge of Respondent's general invoices and purchases and the keeping of its books, in our opinion she is in effect an office manager, although she may not have that specific title.

   9 The Union contends that, despite the Respondent's economic difficulties, its lay-off of nine union members was discriminatory as the Respondent failed to show any basis for selecting them. The Union cites Chicago Steel Foundry Company, 49 NLRB 100, 142 F. 2d 306, and Press Co., Inc. v. N. L. R. B., 118 F. 2d 937. These cases are clearly distinguishable because the lay-offs in the instant case were made on the basis of the superintendent's study of the plant's operations and he selected employees on those operations which he considered surplus. Furthermore as the Respondent did not maintain any seniority standards, efficiency or production records of its employees and there...