Winett, Inc., 1305 (1962)

WINETT, INC. 1305 whom no employment is immediately available shall be - placed upon a preferential hiring list with priority determined among them by such system of seniority or other nondiscriminatory practice as heretofore has been applied in the conduct of Respondent's business and thereafter, in accordance with such list , shall be offered reinstatement as positions become available, and before other persons are hired for such work.

Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following:

CONCLUSIONS OF LAW

1. Truck Drivers Union No. 677, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Ind., is a labor organization within the meaning of Section 2(5) of .the Act.

2. Oates Bros., Inc., is an employer within the meaning of Section 2(2) of the Act.

3. All regular and regular part-time over-the-road and local chauffeurs or truckdrivers employed at Respondent's establishment in Shelton, Connecticut, including warehouse and maintenance employees and helpers, but excluding office clerical employees, executives, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.

4. On July 13, 1960, and at all times thereafter the Union has been and now is the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 ( a) of the Act.

5. By refusing on September 23, 1960 , and thereafter to bargain collectively with the Union as the exclusive representative of its employees in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.

6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a) (l) of the Act.

7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

   [Recommendations omitted from publication.] Winett, Inc. and K.C. Joint Board, International Ladies' Garment Workers' Union, AFL-CIO. Case No. 17-C-4-1794. February 27, 1962 DECISION AND ORDER

   On November 14, 1961, Trial Examiner Earl S. Bellman issued his Intermediate Report herein, finding that the Respondent had engaged in unfair labor practices and recommending that it cease and desist therefrom and take affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed.

   Thereafter the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs.

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

   135 NLRB No. 130.

   The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record. The Board affirms the Trial Examiner's rulings and adopts his findings and conclusions.' ORDER

   The Board adopts the Recommended Order of the Trial Examiner.

   The Board further orders that the complaint be dismissed to the extent recommended by the Trial Examiner.

   1 In the absence of exceptions thereto , the Trial Examiner 's finding that the Respondent did not, through Supervisor Kaplanis, threaten to discharge an employee on the day after the election to discourage union activity or membership is adopted pro forma.

   We find merit in the General Counsel 's contention that the Trial Examiner was Incorrect insofar as he relied , in his finding as to Superintendent Hand ' s credibility, on the fact that she was 'more prepossessing' than the two employees and on the observations of another Trial Examiner in a different proceeding Nevertheless, we agree with the Trial Examiner that the General Counsel has failed to establish that Superintendent Hand in fact pinned 'vote no' signs on two employees, and we therefore adopt his recommendation that this allegation be dismissed INTERMEDIATE REPORT

   STATEMENT OF THE CASE

   This proceeding, pursuant to due notice and with all parties represented, was heard before me, Earl S . Bellman, the duly designated Trial Examiner , in Kansas City, Missouri, on August 29 and 30, 1961 , upon a complaint duly issued by the General Counsel on June 23; 1 particulars furnished on August 9 by the General Counsel; and a duly filed answer of the Respondent , denying all allegations as to unfair labor practices. The issues litigated were whether or not Winett, Inc., herein called the Respondent, 'particularly between' May 1 and 10 of this year, engaged in various subsequently enumerated violations of Section 8(a) (1) of the National Labor Relations Act, as amended, herein called the Act. At the conclusion of the hearing, the General Counsel and the Respondent argued orally on the record.

   After the close of the hearing , all parties entered into a 'Stipulation for Correction of Record,' which is dated September 6, has been duly noted, and hereby is made part of the record . In addition, the General Counsel and the Respondent have filed briefs which I have carefully considered.2

   Upon the entire record and my observation of the witnesses , I make the following:

   FINDINGS OF FACT

1. THE BUSINESS OF RESPONDENT Winett, Inc., is a Kansas corporation, having its plant and principal place of business in Kansas City, Kansas, where it is engaged in the manufacture and sale of infants' and children's wear. In the course and conduct of its business the Respondent ships annually, to points outside of the State of Kansas , goods, articles, and commodities, valued in excess of $50,000. The Respondent's answer admits that it is engaged in commerce within the meaning of the Act, and I find that it will effectuate the policies thereof to assert jurisdiction.

   1 When the year Is herein omitted , It will be understood to be 1961. The Union 's charge was filed and served on May 8. An amendment to the complaint was granted , without objection, at the hearing 2 The Respondent' s brief contends essentially that my failure to require at the hearing that the General Counsel permit the Respondent 'to examine the statements of two witnesses' called by the General Counsel 'was error within the meaning of ' decisions cited in said brief. I have painstakingly considered the Respondent 's contentions, In the light of the record in the instant matter with respect to the two witnesses involved , and find them without merit. My rulings with respect to said matters are hereby reaffirmed.

   Cf. Premier Panels, Inc., 126 NLRB 305, 310, footnote S.

   WINETT, INC.

   2. THE LABOR ORGANIZATION INVOLVED 1307

   K.C. Joint Board, International Ladies' Garment Workers' Union, AFL-CIO, the Charging Party which is herein called the Union, is admittedly a labor organization, within the meaning of Section 2(5) of the Act.

   M. THE UNFAIR LABOR PRACTICES A. The setting and the issue The events in issue herein occurred shortly after the Respondent and the Union executed a stipulation for certification upon consent election on Friday, April 28, 1961. During the first part of that week, Trial Examiner Sidney Linder conducted a hearing involving the Respondent's Kansas City plant, herein called the plant, in what the Respondent's brief refers to as 'the April 24 proceeding,' and which will herein be called the prior proceeding .3 On Monday of the following week, May 1, the Regional Director for the Seventeenth Region approved the aforesaid stipulation.

   Pursuant thereto an election was conducted in a unit of the Respondent's employees on Tuesday, May 9, which the Union lost 4 Thus the period 'particularly' in issue herein, May 1 to 10, 1961, began on the Monday upon which the Regional Director approved the election stipulation and concluded with the day following the Union's loss of the election. During this period, a campaign for and against the Union was waged among the employees of the Respondent's plant, literature being distributed by the Union, by a group of employees who were against unionization, and by the Respondent, which also was opposed to the Union.

   There are four individuals named in the General Counsel's pleadings in the instant matter by and through whom it is alleged that the Respondent acted illegally during the above period. They are George Winett, Ethel Winett, Dorothy Hand, and Carolyn Kaplanis. George Winett and Ethel Winett both admittedly are officers and responsible agents of the Respondent. Neither was called as a witness .5

   Dorothy Hand, admittedly a supervisor within the meaning of the Act, is superintendent of the plant. She was a witness in the prior proceeding and was the only witness called by the Respondent in the instant matter. Carolyn Kaplanis, also admittedly a supervisor within the meaning of the Act, is the supervisor of the finishing department.

   Considering the testimony of the seven witnesses called by the General Counsel-two men who are representatives of the Union, but not employees of the Respondent, and five women who are employees or former employees of the Respondent-together with the pleadings and the testimony of Superintendent Hand, eight interrelated 8(a) (1) issues are presented for determination. To assist in orientation, these issues will now be epitomized, using the names of the principal individuals involved, and following the essentially chronological sequence in which I have determined that it will be expeditious to discuss them, rather than the sequence used in the pleadings.

   However, the subparagraphs of the...