Southwest Regional Joint Board, Amalgamated Clothing Workers of America v. National Labor Relations Board

WILKEY, Circuit Judge

(concurring in part and dissenting in part):

I concur in No. 22,081, Southwest Regional Joint Board, Amalgamated Clothing Workers v. NLRB, as the Board’s action was correct, whether judged by its own policy re remedial orders or by the principles recently enunciated in this Circuit.

However, in No. 22,259, Levi Strauss v. NLRB, although I concur in enforcing the Board’s order, I cannot join my colleagues in sustaining the Board’s finding that the Company committed two of the five unfair labor practices found: either (1) in announcing on 1 October 1966 that overtime would be based on daily instead of weekly computations, retroactive to 22 August 1966, or (5) when the assistant plant manager questioned Mrs. Beasley regarding her vote on the day of the election.

I. The Change from Weekly to Daily Overtime

The majority upholds the Board’s finding that the action of the Company in granting the employees of the Tyler plant daily instead of weekly overtime two days before the election was specifically designed to induce the employees against the Union. Since the Board simply adopted the position of the Examiner on this point, it is apparent that the majority finds the conclusion of the Examiner had a rational basis in the record.1 I cannot agree.

Since the Board’s and Examiner’s finding can only rest on disbelieving the testimony of the only witness unquestionably in a position to know the truth of the matter, and a man’s honor and veracity are not to be taken lightly, it is worthwhile to examine all the evidence on this point.

Four form letters, dated August 19, 1966, were sent to the Company’s nonunion plants. According to the Examin*1037er’s opinion, these were “identical form letters, differentiated only by the typed insertion of the respective plant manager’s name and situs of the plant at the top of each letter.” The purpose of the letters was to instruct the plant managers of each of the four non-union plants “to place into effect as of August 22, 1966, various increased benefits set forth therein.” According to the Examiner, “[t]hese benefits related to operator pay, health insurance, overtime pay (but of a different nature than that under discussion), accident pay, and eligibility reduction for holiday pay and life and helth [sic] insurance.”

Selin, the Industrial Relations Manager of the Company, testified that an additional paragraph for Tyler only, instructing Tyler to pay daily instead of weekly overtime, was intended to have been inserted in the form letter sent there, but had been inadvertently omitted. It was claimed that this change was to be made in order to have the system of overtime payment at Tyler conform to the method used in all other Company plants. Concededly, the system used at Tyler was unique in the Company.

The Examiner refused to credit this testimony for a variety of reasons. First, he claimed to be amazed that neither Selin nor other national executives who had been party to the decision to change Tyler’s method of overtime payment caught the omission. But Selin was “tied up” with other matters in Georgia at the time the letter was sent, although its content was his responsibility. True, copies of the letter were sent to Selin and other executives who knew of the situation at Tyler, but, as Selin testified, he was then concerned with other matters. It is not difficult to conceive that a busy national executive, away from his office, would only lightly skim such correspondence and not closely examine it. Selin’s error in not catching the omission was his mistake, but that it was a mistake and only that is entirely believable.

Nor is it so surprising that the other executives who knew of the decision to change the system of overtime computation at Tyler failed to catch the omission when they received copies of the letter. The decision to make the change took place in May, three months before the letter was sent. It is highly unlikely that executives whose functions were not directly affected by the change would keep that change foremost in their minds for such a long period of time. Undoubtedly, they received a copy of each of the four letters, which were, after all, the same except for the caption at the top. Absent an extremely sharp memory, which the Act does not demand all executives to possess, these people would have found nothing specific to direct their close attention to the letter sent to Tyler.

Perhaps with this probability in mind, the Examiner states, “even more peculiar is the fact that some responsible official * * * did examine the August 19 letter closely enough to send a second letter under the date of August 22, 1966, to each of the nonunion plants, this for the specific purpose of making a correction of a different provision concerning overtime pay which was included in the August 19 letter.” But nowhere in the record is it indicated that this “some responsible official” knew that the method of overtime payment unique to Tyler was to be changed. Moreover, this statement ignores the fact that these were form letters. There is no proof that the letter to the Tyler plant was in fact the one the “official” examined when he found the error. What is more likely under the circumstances is that this “official” examined the master of the form letters sent to the four plants, which, of course, would under no circumstances have included the special paragraph applicable only to Tyler.

On brief the Board cited as additional support for its position the fact that Rutter, the Tyler plant manager to whom the 19 August letter was addressed, never caught the error. Rutter never attended the meeting at which the *1038decision to change the method of computing overtime at Tyler was made. Nevertheless, to assume, claims the Board, that in the three months intervening between the decision and the date of the letter Rutter never found out about the change is “dubious.”

But Rutter was unacquainted with Selin, who had joined the Company at the beginning of May 1966, and the record shows that Selin never visited the Tyler plant until the latter part of September, at which time he claimed to have caught the omission. Since Selin was the national executive primarily responsible for the initiation and implementation of the agreed changes, it is quite impossible to infer from a record otherwise silent on the matter that other executives present at the meeting in May took it on themselves to tell Rutter of the decision.

The Examiner dug out considerable minutiae to support his finding, but he never relied on the ground that Rutter, the Tyler plant manager, knew in advance the benefits which were to be listed in the letter. If this could have been said—which it was not—it would have been conclusive that Selin’s discovery was an afterthought. The Examiner’s opinion says that each letter “instructed the plant manager of each plant to place into effect as of August 22, 1966, various increased benefits set forth therein.” Obviously, it was not the position of the Examiner that any of the plant managers knew in advance, even informally, exactly what benefits would be listed in the letter. Thus the Examiner’s position is the only one consistent with the tenor of the letter as shown in the record—the only concrete evidence bearing on this issue—and that position does not support the Board’s contention.2

The Examiner viewed “with suspicion” Selin’s assertions that he discovered the error in a conversation with the Tyler payroll clerk on 29 or 30 September. He thought it “rather curious that a payroll clerk would be the one to bring the matter up out of a clear blue sky, so to speak.” But Selin testified that on his visit to Tyler, the payroll clerk came to see him “and wanted to ask me some questions on computations of pay and that she brought up, in her example, that she was bringing up to me, she brought up this that they were not paying overtime after eight hours in a day.”

The “matter” obviously was not brought up out of a clear blue sky. In the context of an example given him by the clerk, Selin realized that Tyler was still computing overtime on a weekly instead of a daily basis. It was then that he became aware of the possibility of an error in the 19 August letter. Nor would it have been unusual for the payroll clerk at that time to have been concerned about the correctness of her overtime computations. The 19 August letter contained a provision changing the method of payment of overtime at all nonunion plants, including Tyler. Understandably, the payroll clerk would have been anxious to cheek out her interpretation of the effect of the change with the national executive who initiated it. Selin’s visit to the Tyler plant came only one month after institution of the increased benefits set out in the 19 August letter.

In footnoting his reasons for viewing Selin’s story with suspicion, the Examiner noted that the payroll clerk was never called to corroborate the alleged manner in which the error was discovered. But the testimony on this point, *1039insofar as it appears from the Appendix prepared for the appeal, was never challenged on cross nor contradicted by the Union. While it is certainly preferable to have important testimony corroborated wherever possible by an independent source, it should not be ignored for the sole reason that it is ucorroborated, particularly where it is also uchallenged and ucontradicted.

The Examiner found it to be “illogical” to specifically defer the one benefit applicable solely to Tyler, i. e., the change from weekly to daily overtime. The 19 August letter, however, already contained one provision that would have changed the method of overtime computation at Tyler. To my mind, logic would have compelled the deferral of the specific change from weekly to daily overtime to the date of institution of the latter, as the Company claims was done. In that way, the administrative personnel at Tyler responsible for overtime computation would have only one effective date to which to refer, and would avoid the confusion of changing their method of computation twice in the administratively short space of three months.

It is a valid management prerogative to determine when benefits will be instituted; the timing thereof is not unlawful as long as the purpose does not contravene any provision of the Act. Here the decision to change Tyler’s method of overtime computation was made in May, as was the decision to defer institution of the change to August. At that time, no one knew that an election would take place at Tyler in October. The purpose of deferring institution of the change could not have been to affect the outcome of the election; consequently, this action could not have been unlawful.

The record simply provides no basis for concluding that there never was a decision made in May to change Tyler’s method of computing overtime, that there never was an omission from the form letter sent to Tyler, that there never was a discovery of the omission during Selin’s visit to Tyler, and that the notice posted on 1 October never was Selin’s good faith effort to correct this error. In other words, there “never was” a basis for concluding that a substantial portion of Selin’s testimony was a fabrication. On this issue, I therefore dissent.

II. Interrogation of Employee Beasley

The majority sustains the Board in concluding that the election day conversation carried on by the assistant plant manager with Mrs. Beasley was unlawfully coercive, because she “could well have considered the conversation as pressure upon her not to vote or not to vote for the Union.” This subjective impression, supplied Mrs. Beasley gratuitously by the majority, is refuted by her own description of her reaction to the assistant plant manager’s questions: She testified that she took the conversation “as a joke.” Moreover, she further testified that she did vote in the election. Clearly, she did not feel herself intimidated by the conversation and in fact was not intimidated. Measured by both subjective and objective standards, the testimony of record shows that the conversation could not have been coercive. I cannot join in saying that it was.

. Mississippi Valley Barge Line Company v. United States, 292 U.S. 282, 286-287, 54 S.Ct. 692, 694, 78 L.Ed. 1260 (1934). See also International Union, United A., A. & A. Imp. Wkrs. of America UAW-AFL-CIO v. NLRB, 129 U.S.App.D.C. 196, 200, 392 F.2d 801, 805 (1967); International Woodworkers of America, Local Unions 6-7 and 6-122, AFL-CIO v. NLRB, 105 U.S.App.D.C. 37, 39, 263 F.2d 483, 485 (1959).

. The letter begins:

Dear Jim:
We have reviewed your recommendation for increased benefits in the Tyler plant, and in view of the progress made to date, we have approved the following:

In closing, the letter states:

We are pleased to extend these benefits to the Tyler employees. Please cover this with your personnel immediately.

There is nothing within the four corners of the document from which to infer that “Jim” or any other of the plant managers who received the identical letter already knew which benefits were to be thereby approved.