Arden Furniture Industries of Pennsylvania, Inc.

National Labor Relations Board - Board Decisions

May 29, 1967

164 N.L.R.B. 1163 (N.L.R.B. 1967)

ARDEN FURNITURE INDUSTRIES 1163
Arden Furniture Industries of Pennsylvania,
Inc. and Keystone District Council , United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Local Union No.
15386 , District 50, United Mine Workers of
America. Case 4-CA-3776
May 29,1967
DECISION AND ORDER
On July 12, 1966, Trial Examiner Sidney Sherman
issued his Decision in the above-entitled proceeding,
finding that the 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. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following exceptions,
additions, and modifications.
As described more fully in the Trial Examiner's
Decision, the Respondent commenced operations at
its present location in Pittston, Pennsylvania, about
March 1964. Shortly thereafter, Respondent's Plant
Manager Tittler called the employees together,
urging them to consider joining a union, but stating
he did not want them to select an independent union.
The employees decided, however, that they wanted
an independent union, and delegated a committee to
apprise Tittler of this decision. Tittler insisted that
Respondent wanted only District 50, and refused to
deal with the committee, even though it offered
Respondent the same contract as did District 50.
Bressler, the committee spokesman, reported
Tittler's position to the employees, and Singer, a
representative of District 50, approached the
employees during working time, arranged for the
election of officers for a District 50 local, and
obtained cards authorizing District 50 to represent
them.
On June 2, 1964, a representative of the Charging
Party,' spoke to Tittler about organizing
Respondent's employees. Tittler remarked that
Respondent was "committed" to District 50 by "the
people who brought them into Pittston."
On June 19, 1964, Respondent entered into a 3-
year contract with District 50, on behalf of its newly
formed Local Union No. 15386. During the term of
the contract, the employees became dissatisfied
with District 50, and on July 31, 1965, at a special
meeting called by the employees and attended by 18
employees, a motion to disaffiliate from District 50
passed unanimously. On August 2, 1965, Tittler told
the District 50 shop steward that if a new union was
forced upon him he would have to shut down. A
week later, the president of the District 50 Local
obtained signed cards from the employees
designating the Charging Party as their
representative. Shortly thereafter, Tittler called a
meeting of the officers of the District 50 Local, and,
after discussing with them their objections to
District 50, announced that, if District 50 ceased to
represent the employees, Respondent would have to
move the plant to Baltimore. Tittler then called all
the employees together and repeated the same
warning to them. Later the same day, the motion to
disaffiliate from District 50 was "withdrawn" by
the employees.
The Trial Examiner concluded that in view of the
limitations of Section 10(b), no violation finding may
be based on any of the events which occurred before
March 23, 1965. He found, however, that the events
after that date, specifically, Titt'er's threats to
employees in August 1965 that Respondent would
move the plant if the employees did not abandon
their disaffiliation action, which threats prompted
abandonment of such action, constituted unlawful
assistance to District 50, and by such action,
Respondent violated Section 8(a)(2) and (1) of the
Act.
To remedy this violation, the Trial Examiner
recommended that Respondent be ordered to cease
giving effect to its current contract with District 50
or any renewal thereof. In framing this remedy, the
Trial Examiner gave consideration to Respondent's
prelimitations conduct "in foisting District 50 and its
contract upon the employees, despite their desire for
an independent union." We agree with the Trial
Examiner's 8(a)(2) and (1) findings; we do not,
however, adopt his recommended remedy for the
reasons stated below.
The Board has refused to grant a cease-
recognition remedy where, as here, the unfair labor
practice to be remedied occurred during the term of
an agreement, lawful on its face, the execution and
maintenance of which are not under attack.2 Were
we to rely, as did the Trial Examiner, on conduct
antedating the limitations period as affecting the
execution or maintenance of the agreement, we
would in effect be finding that this conduct was an
unfair labor practice, a finding which is barred by
Section 10(b) of the Act.3 We therefore reject the
' Keystone District Council, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO.
2 M Eskin & Son, 135 NLRB 666 (Member Fanning , dissenting
in part); Lykes Bros Inc of Georgia, 128 NLRB 606
S Local Lodge No 1424, International Association of
Machinists , AFL-CIO (Bryan Manufacturing Co) v. N.L.R B , 362
U S 411
164 NLRB No. 159
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner's recommendation that Respondent
cease giving effect to its contract with District 50.4
However, in the special circumstances of this
case, we believe that more than the routine cease-
assistance remedy is required. Respondent during
the 10(b) period threatened employees with reprisals
if they engaged in activity on behalf of the Charging
Party. When these threats took place, employees did
not have the right, because of the contract, to change
their bargaining representative. But, near the
termination date of the contract, a representation
petition for an election among these employees will
be timely; under Board procedure, however, a
showing of interest consisting of authorization cards
signed by employees will be required to support
such a petition.5 Plainly, Respondent's threats are
such as to have a continuing coercive effect upon
employees at once discouraging their activity on
behalf of a rival union and encouraging their support
of District 50, thus interfering with their right to
replace District 50, violative of Section 8(a)(2) as
well as of Section 8(a)(1) of the Act. To expunge the
effect of these unfair labor practices, we shall order
that Respondent refrain from recognizing or
bargaining with District 50 or its Local Union
No. 15386 as representative of its employees when
the current contract expires on June 18, 1967, unless
and until it is certified by the Board as such
representative.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Arden Furniture Industries of Pennsylvania, Inc.,
Pittston, Pennsylvania, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to shut down or move its plant or
to take other economic reprisals because of its
employees' selection of a union other than Local
Union No. 15386, District 50, United Mine Workers
of America, or of any other union not approved by
Respondent.
(b) Recognizing or bargaining with Local Union
No. 15386, District 50, United Mine Workers of
America, as the representative of its employees
when their current agreement expires on June 18,
1967, unless and until such Union is certified after a
Board election.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) At the expiration of the current contract
between the Respondent and Local Union
No. 15386, District 50, United Mine Workers of
America, withdraw and withhold all recognition from
that Union as the representative of its employees for
the purpose of dealing with Respondent concerning
grievances, wages, rates of pay, hours of
employment, or other terms or conditions of
employment, unless and until such Union is certified
after a Board election.
(b) Post at its plant in Pittston, Pennsylvania,
copies of the attached notice marked "Appendix."7
Copies of said notice, to be furnished by the
Regional Director for Region 4, after being duly
signed by the Respondent's representative, shall, be
posted by the Respondent immediately upon receipt
4 Lundy Manufacturing Corporation, 136 NLRB 1230, enfd
316 F 2d 921 (C.A. 2), cert. denied 375 U S 895, relied on by the
Trial Examiner , is distinguishable There, when the Board issued
its Supplemental Decision ordering the employer to cease
recognizing the assisted union , the contract between the employer
and the assisted union had already expired , here, as noted, the
contract between Respondent and District 50 is still in effect
That the contract has expired in Lundy would appear from the
fact that the remedy required only that Respondent withdraw
recognition , not that it cease giving effect to an existing contract
In any event , if there were any renewal or extension , as suggested
in the dissent , it occurred after the unlawful assistance which was
the subject of the complaint then before the Board , and under
such circumstances a contract could afford a union no right to
maintain its representative status
Nor do we view the other cases cited in the dissenting opinion
as requiring a contrary result In The Post Publishing Company,
136 NLRB 272, 273, the Order set aside an existing contract
which was presumptively valid in its execution but did so on
special considerations that the assisted union was shown on that
record to be unable to maintain its exclusive representative status
and carry out its functions without the respondent' s unlawful
support and assistance which had continued into the 10(b) period
Cf Lykes Bros., supra, 610-611, where a majority of the Board
(including Member Fanning) concluded that it should not order
the parties to suspend their bargaining relationship because the
assistance there found as alleged in that complaint occurred after
execution of a presumptively lawful contract and "[did] not
warrant an inference that the [union 's] ability to represent the
employees in the daily administration of its contract was thereby
adversely affected ." The Board 's statement in Lykes concerning
the absence of background conduct was only dictum; in any
event , the Board did not, contrary to the implication of the
dissenting opinion, indicate that the presence of such background
evidence would necessarily lead to an order setting aside the
contract.
To the extent that New Orleans Laundries , Inc , 114 NLRB
1077, is subject to the interpretation that the Board will rely on
pre-10(b) conduct to set aside a contract lawful on its face, we
shall not adhere to it . We are of the view that a contract,
presumptively lawful when entered into , may be set aside only
upon a finding that the union 's ability to represent the employees
in the daily administration of its contract has been adversely
affected by the respondent's unlawful assistance or domination
within the 10(b) period, and this in turn depends upon the nature
and impact of the respondent 's conduct . We find no substantial
support for such a finding in this case.
5 National Labor Relations Board Rules and Regulations,
Series 8, as amended, Sec . 101.18.
6 The contract between Respondent and District 50 contains an
automatic renewal clause . This order shall be deemed to forestall
any automatic renewal of this contract
In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order " the words "a Decree of the United
States Court of Appeals Enforcing an Order."
ARDEN FURNITURE INDUSTRIES
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.
(c) Notify the Regional Director for Region 4, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
Member Fanning, dissenting as to remedy:
I agree with my colleagues that the Respondent
violated the Act by threatening to move its plant
unless the employees stopped their organizing
efforts on behalf of the Carpenters and ceased their
efforts to disaffiliate from District 50, with which the
Respondent had entered into a 3-year contract. I also
agree that the assistance rendered District 50 by
Respondent at the time the collective-bargaining
agreement was negotiated and executed would have
been held to be unlawful but for the statutory
limitation of Section 10(b).
However, contrary to the majority, I would adopt
the Trial Examiner's recommended cease-
recognition order. The majority decision in this
regard appears to be predicated on the premise that
reliance on the "background" evidence would be the
same I as finding the assistance an unfair labor
practice contrary to the limitation of Section 10(b). I
disagree. In New Orleans Laundries, Inc.,8 a case
indistinguishable from the instant one, the Board
issued a cease-recognition order based essentially on
8(a)(2) conduct subsequent to the execution of a
contract which was otherwise unassailable, and
upon minimal background evidence predating the
contract. Recognizing the identity between New
Orleans and the instant case, the majority finds it
necessary to overrule the former "to the extent that
[it] is subject to the interpretation that the Board
will rely on pre-10(b) conduct to set aside a contract
lawful on its face." In my judgment, laying down a
flat rule which precludes reliance on a certain kind
of background evidence is harmful to the Board's
remedy-framing responsibility. Indeed, subsequent
to New Orleans, we refused to issue a cease-
recognition order in Lykes Bros. for the reason that
there was "no evidence of any background conduct
8 114 NLRB 1077
0 Lykes Bros Inc of Georgia, 128 NLRB 606, 610-611 A
majority of the Board reached the result it did in Lykes precisely
for the reason that the background conduct did not sufficiently
establish that the union 's "ability to represent the employees in
the daily administration of its contract was thereby adversely
affected " The reverse was true in New Orleans, although the
contract there was not unlawful . The reverse should also be true
here, where the contract itself would have been declared unlawful
had a charge been timely filed
10 The Post Publishing Company, 136 NLRB 272, 273,
enforcement denied 311 F 2d 565 (C A 7), on the substantive
ground that the assistance found by the Board was only
"cooperation " Cf M Eskin & Son, 135 NLRB 666, 671, fn. 16
1165
before the execution of the contract which could be
said to have strengthened the [union's]
representative status," distinguishing that situation
from New Orleans where "the unlawful assistance as
found by the Board occurred against a background
of conduct which clearly served to strengthen the
incumbent union 's status before the execution of the
contract.... "9
Moreover, there have been later cases in which we
have followed the New Orleans rationale and which,
in my judgment, require that the sound principle we
have established be adhered to. For example, we
have required an employer to cease recognizing a
union with which it had had contractual relations for
38 years, because the current and valid contract
which bound the parties was framed in a background
where virtually all the financial support necessary to
the union to carry out its functions had been
provided by the employer.10
Finally, the majority seeks to distinguish Lundy
Manufacturing Companytl relied on by the Trial
Examiner in formulating his remedy, on the ground
that the Board's cease-recognition order issued at a
time when the contract between Lundy and the
assisted union had expired.12 While that fact might
explain the omission from the Board's order of a
provision requiring Lundy to cease giving effect to
its contract-although I fail to see any operative
difference between a "cease-recognition" and a
"cease-giving-effect-to" remedy-it does not alter
the plain fact that the Board fashioned its remedy in
reliance on "background" facts showing that Lundy
had coerced its employees into designating the
assisted union as their collective-bargaining
representative. In this controlling respect, Lundy is
indistinguishable from the instant case. As the
Board's reliance on such "background" evidence in
Lundy in fashioning its remedy was affirmed by the
court of appeals, the majority is in error in claiming
that application of the Lundy principle to the facts of
this case would be tantamount to finding that
Respondent's pre-10(b) conduct was an unfair labor
practice. 13
The words of the Second Circuit Court of Appeals
in Lundy are instructive insofar as the Respondent
there had called in question the propriety of the
Board's reliance upon "background" evidence to
i i N L R.B. v Lundy Manufacturing Corp., 316 F.2d 921
(C.A 2)
12 The Board and court decisions in the Lundy case indicate
that a contract was in effect at the time Lundy engaged in
unlawful acts of assistance , they do not disclose whether such
contract had been renewed or extended prior to the date of the
Board's Supplemental Decision and Order.
13 As there is presently a contract in effect , application of the
Lundy principle certainly permits , and, in my opinion , requires
inclusion of provisions requiring Respondent to cease giving
effect to its existing contract with District 50 I can see no point in
waiting for the contract to expire before a cease -recognition
provision takes effect
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shape a remedy, allegedly in transgression of
Bryan.14 Quoting from Bryan that "earlier events
may be utilized to shed light on the true character of
matters occurring within the limitations period" (362
U.S. at 416), the court went on: is
It follows a fortiori that in such a situation the
Board may look to earlier events to determine
the appropriate remedy to be prescribed; there
is no need to cite the many opinions elaborating
on the breadth of the discretion accorded to the
Board in framing remedies.
My colleagues explicitly acknowledge that the
"special circumstances" of this case require
something more than the routine cease-and-desist
remedy and thus they require that at the end of the
contract term the Respondent may not recognize or
bargain with District 50 until it is certified. Clearly,
these "special circumstances" are the events which
immediately preceded the execution of the June 19,
1964, contract and which, though ordinarily
cognizable under Section 8(a)(2), are now time-
barred. Although the majority rejects the cease-
recognition order recommended by the Trial
Examiner on the ground that to do so is tantamount
to finding a violation barred by time limitations, it
nevertheless orders a termination of the bargaining
relationship at the contract's end. Thus, the
difference between the recommended remedy and
the remedy provided by the majority lies not in the
different treatment of background events, but in the
effective date of the withdrawal of recognition both
remedies require.
The majority indicates that its choice of remedy,
to be effective at contract's end, is compelled by the
fact that the unlawful assistance given by
Respondent to District 50 occurred at a time when
the "employees did not have the right, because of
the contract, to change their bargaining
representative." Presumably this means that the
majority believes that the Board would have been
compelled by its contract bar rules to dismiss any
petition resulting from the employees' efforts to
designate a bargaining representative of their own
choice. However, the Board, in the past, has refused
to apply its contract bar rules so rigidly as to
foreclose an election because a petition was filed in
the midterm of a contract, lawful on its face, which
had been executed at a time when the union was not
the duly authorized representative of the employees.
(Foothill Electric Corporation, 120 NLRB 1350.)
The circumstances in Foothill closely resemble the
instant case, for both involved the execution of a
contract by unions not truly designated as bar-
gaining representative; and in both, the events
which surrounded the execution of the contract, fair
on its face, occurred at a time which precluded an
unfair labor practice finding based on those events
because of our statute of limitations. In Foothill, the
Board directed an election notwithstanding the fact
that we normally presume the regularity of
collective-bargaining agreements which are urged as
a bar in representation proceedings. Thus, it is
simply not true that the Respondent's employees did
not have the right to take the necessary steps to
change their collective- bargaining representative at
the time of the events of this case, and there is no
reason in law or in equity why this Board should
honor Respondent's contractual commitment at the
expense of the employees' immediate exercise of the
right guaranteed by Section 7 to freely select a
bargaining representative of their choice.
For the foregoing reasons, I would not delay the
effective date of the withdrawal of recognition
ordered by the majority, but would adopt the remedy
recommended by the Trial Examiner which accords
fully with our past practices.
14 Local Lodge 1424, IAM v. N L.R B , 362 U S 411
15 N L.R B. v Lundy Manufacturing Corporation, supra, 917
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 you that:
WE WILL NOT threaten to shut down or move
our plant or to take other economic reprisals
because of our employees' selection of a union
other than Local Union No. 15386, District 50,
United Mine Workers of America.
WE WILL NOT recognize or bargain with Local
Union No. 15386, District 50, United Mine
Workers of America, as the respresentative of
our employees when our current agreement
expires on June 18, 1967, unless and until such
Union is certified after a Board election.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under the Act.
ARDEN FURNITURE
INDUSTRIES OF
PENNSYLVANIA, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut &
Juniper Streets, Philadelphia, Pennsylvania 19107,
Telephone 597-7617.
ARDEN FURNITURE INDUSTRIES 1167
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY SHERMAN , Trial Examiner : A copy of the charge
herein was served upon Respondent on September 23,
1965. The complaint issued on March 8 , 1966 , and the case
was heard on May 24 . The issues litigated involved alleged
violations of Section 8(a)(2) and (1) of the National Labor
Relations Act, as amended . After the hearing briefs were
filed by Respondent , the Charging Party, and the General
Counsel.
Upon the entire record and my observation of the
witnesses , I adopt the following findings and conclusions:
1. RESPONDENT 'S BUSINESS
Arden Furniture Industries of Pennsylvania, Inc.,
herein called Respondent , is a corporation under
Pennsylvania law, and is engaged in its plant at Pittston,
Pennsylvania , in the manufacture of plastic furniture.
During the past year , Respondent received at its plant
from out-of- State points goods valued in excess of $50,000.
Respondent is engaged in commerce under the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Keystone District Council , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, herein
called the Charging Party, and District 50, United Mine
Workers of America, herein called District 50, and its
Local Union No. 15386 , are labor organizations under the
Act.
III. THE UNFAIR LABOR PRACTICES'
The complaint alleges that Respondent violated Section
8(a)(2) and (1) of the Act by contributing support to
District 50 in the form of threats of reprisal against the
employees if they selected a bargaining agent other than
District 50.
The answer denies this allegation.
Respondent began its operations at its present location
about March 1964. A month or two later, Plant Manager
Tittler called the employees together, and urged them to
consider joining a union, but stated that he did not want
them to select an independent union. The employees,
nevertheless, decided that they wanted an independent
union, and a three-man committee was delegated to
apprise Tittler of this decision. However, insisting that
Respondent wanted only District 50 to represent the
employees, he refused to deal with the committee, even
though its spokesman, Bressler, offered to give
Respondent the same contract as District 50. Bressler
reported Tittler's position to the employees, and at this
juncture Singer, a representative of District 50,
approached the employees, during worktime, arranged the
election of officers for a District 50 local, and obtained
from the employees signed cards authorizing District 50 to
represent them.
On June 2, 1964, when a representative of the Charging
Party spoke to him about organizing Respondent's
employees, Tittler remarked that Respondent was
"committed" to District 50 by "the people who brought
them into Pittston."
On June 19, 1964, Respondent executed a contract, for a
term of 3 years with District 50, and its newly formed
Local Union No. 15386. During the term of this contract
I The findings in this section are based on the uncontradicted
testimony of the General Counsel's witness
the employees became disenchanted with District 50 and
contacted other unions; and on July 31, 1965, at a special
meeting called for that purpose, and attended by 18
employees, a motion to disaffiliate from District 50 was
carried unanimously. On August 2, Tittler told Centrella,
the shop steward, that if a new union was forced upon him
he would have to shut down. About a week later, the
president of Local Union No. 15386 obtained from the
employees signed cards designating the Charging Party as
their representative. A few days later Tittler called a
meeting of the officers of the Local, and, after discussing
with them their objections to District 50, announced, that,
if District 50 ceased to represent the employees,
Respondent would have to move its plant to Baltimore.
Tittler then called all the employees together and, in
effect, repeated the same warning to them. Later the same
day the motion to disaffiliate from District 50 was
"withdrawn" by the employees.
In view of the limitations of Section 10(b) of the Act, no
violation finding may be based on any of the aforecited
events which occurred before March 23, 1965. However,
the events after that date, particularly Tittler's threats to
move the plant if the employees did not abandon their
disaffiliation action, which threats prompted abandonment
of such action, suffice to establish that Respondent
rendered unlawful assistance to District 50, thereby
violating Section 8(a)(2) and (1) of the Act.
THE REMEDY
In framing a remedy, it is proper to consider
Respondent's prelimitations conduct, in foisting
District 50 and its contract upon the employees, despite
their desire for an independent union, and, in view of such
conduct, to recommend that Respondent be required to
cease and desist from recognizing District 50 and its Local
No. 15386, unless certified by the Board, and from giving
effect to its current contract or any renewal thereof.2
(However, Respondent will not be required to vary the
substantive terms and conditions of employment
established pursuant to such contract.)
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. By threatening employees with economic reprisals to
influence their choice of a bargaining agent, Respondent
has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act,
and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
2. By contributing support to District 50's Local Union
No. 15386 in August 1965, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(2) and (1) of the Act.
[Recommended Order omitted from publication.]
2 Lundy Manufacturing Corp, 136 NLRB 1230, enfd 316 F 2d
912 (C A 2)