Atlantic Furniture Products Co., Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1962

136 N.L.R.B. 163 (N.L.R.B. 1962)

ATLANTIC FURNITURE PRODUCTS CO., INC . 163
Atlantic Furniture Products Co., Inc. and Local 75, United Fur-
niture Workers of America, AFL-CIO. Case No. 5-CA-1935.
March 8, 1962
DECISION AND ORDER
On December 15, 1961, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the shove-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 Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions
to the Intermediate Report and a supporting brief.'
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 Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The Board has considered the Intermediate Report and the entire
record in this case, including the exceptions and brief, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.2
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
'The Respondent 's request for oral argument is hereby denied as in our opinion the
record , exceptions , and brief adequately present the positions of the parties.
2In the absence of exceptions thereto, we adopt pro forma the finding of the Trial
Examiner that Richard O. Martin was not a supervisor within the meaning of the Act.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before W. Gerard Ryan,
the duly designated Trial Examiner, at a hearing in Baltimore , Maryland, on
October 10, 11, and 12 , 1961. The issues presented by the pleadings were whether
Atlantic Furniture Products Co., Inc., herein referred to as the Respondent, had
violated Section 8(a)(1) and (3) of the Act.' The Respondent 's motion to dismiss
the complaint is disposed of in accordance with the findings and conclusions , infra.
The General Counsel and Respondent filed briefs which have been considered.
Upon the entire record and from my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
At all times hereinafter mentioned, Atlantic Furniture Products Co., Inc., is, and
has been at all times material herein, a Maryland corporation, operating a place of
1 During the hearing, James N. Phillips, general counsel for Maryland State Department
of Employment Security, moved in writing to revoke a subpoena duces tecum served by
Respondent on the Maryland Department of Employment Security on the grounds that
disclosure of such information would be contrary to State and Federal regulations and
declined for such reasons to furnish such information. I denied the petition to revoke
but during the hearing the subpena was not complied with.
136 NLRB No. 18.
641795-63-vol. 136--12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business in Baltimore , Maryland, where it is engaged in the business of manufactur-
ing furniture . During a representative period, Respondent , in the course and con-
duct of its business operations , received shipments at its place of business in Balti-
more, Maryland, valued in excess of $50,000, directly from points located outside
the State of Maryland. During the same period , Respondent shipped goods valued
in excess of $50,000 from its place of business in Baltimore , Maryland, directly to
points located outside the State of Maryland. The complaint alleged , the answer
admitted, and I find that Respondent is, and has been at all time 's material herein,
engaged in . commerce within the meaning of Section 2(6) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer admitted , and I find that Local 75, United
Furniture Workers of America, AFL-CIO, is a labor organization within the mean-
ing of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleged, the answer denied, and I find that in violation of Section
8(a)(1) the Respondent interrogated its employees concerning union activities,
threatened its employees with reprisals for union activity , and kept under surveillance
its employees going to attend a union meeting ; and in violation of Section 8(a)(3)
of the Act , discriminatorily discharged Richard O . Martin and Charles Williams
and thereafter refused to reinstate Martin to his former or substantially equivalent
position . My reasons follow.
The Respondent interrogated its employees when Vice President Stanley Stein
questioned employee Richard O . Martin as to the employees who had signed union
cards when , according to the testimony of Richard Martin which I credit, Stein
said the only way Martin could hold his job was to tell Stein who signed cards besides
Martin.
The Respondent threatened its employees when Stein threatened to discharge
Martin as set forth above if Martin did not disclose the other employees who had
signed cards ; and when Foreman Donald Walsh told Martin on May 24, 1961, the
day after Martin was discriminatorily discharged , according to Martin 's testimony.
which I credit, that ". . . a lot more other people will be away from here like you."
[Emphasis supplied.]
Respondent kept its employees under surveillance when Foreman Donald Walsh,
according to Walsh's own testimony, parked his automobile in front of the union hall
on May 24 , 1961, since he had heard there was to be a union meeting and his
purpose was to see who the employees were who were attending and why they were
attending the meeting.
Respondent discriminatorily discharged Richard O. Martin on May 23, 1961,
when , according to Martin 's testimony which I credit, Vice President Stanley Stein
discharged him for refusing to reveal the names of other employees who had
signed union cards; and when, according to the testimony of Charles Williams
which I credit, Foreman Donald Walsh discharged Williams on May 25 , 1961, be-
cause Williams had attended the union meeting held on the previous evening.
In arriving at the above findings and conclusion I have entirely disregarded the
testimony of employee Raymond K. Emerson called by General Counsel as I
consider him to be wholly unreliable and unworthy of belief; any one of which
characteristics would be sufficient to discredit him. I do not credit any part of his
testimony.
The Respondent contended that Richard Martin was a supervisor and was dis-
charged for cause and that Charles Williams was laid off with others for lack of work.
Richard O . Martin was an employee within the meaning of the Act. The only
testimony to the contrary was that by Stanley Stein who testified that Martin recom-
mended hiring and firing. Martin testified that the hiring and firing related to one
individual under the following circumstances . The janitor of the plant was absent
because of illness. A man named Baker who lived near Martin happened to ask Mar-
tin one evening if he knew of any vacancy at the plant Martin replied if he wanted to
apply early in the morning for the temporary job of janitor he might be hired.
Baker applied to Stein who hired him. Sometime later Martin complained to Stein
that Baker was not doing his work well. Martin did not recommend his discharge
but on the basis of Martin 's statement , Stein discharged Baker. The fact that on
occasion extra help was needed to unload trucks and Stein or Foreman Kobernick
directed Martin to go out on the street to find men ("floaters") for such casual labor
and then directed them how to unload does not in my opinion constitute Martin, a
supervisor within the meaning of the Act. Martin did not attend meetings of
ATLANTIC FURNITURE PRODUCTS CO., INC. 165
supervisors, did not have annual sick leave as the supervisors did, and did not
receive bonuses as did the acknowledged supervisors. I accordingly find that Martin
was an employee and not a supervisor.
The record contains testimonial and documentary evidence introduced by the
Respondent to show that Martin was discharged for excessive lateness; and testi-
monial evidence that Williams was laid off for lack of work.
However, where as here "where an unlawful reason is a motivating cause, the
coexistence of separate lawful reasons do not eliminate the unlawful aspect of the
conduct." 2 I have found that the unlawful motive in discharging Martin and
Williams was disclosed by the statements above set forth to them by Stein and
Walsh when they were discharged according to Martin and Williams whom I credit.
In my opinion the Respondent violated Section 8(a) (3) of the Act by discrimina-
torily discharging Martin and Williams.
IV. 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 operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation 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.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action which is necessary to effectuate the purposes of the Act.
I shall recommend that the Respondent offer Richard 0. Martin immediate and
full reinstatement to his former or substantially equivalent position (The Chase
National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB
827), without prejudice to his seniority or other rights or privileges, and that the
Respondent make him and Charles Williams whole for any loss of pay they may
have suffered as a result of the discrimination against them, by payment to each
of a sum of money equal to that which he normally would have earned from the
date of the discrimination against him to the date of the offer of reinstatement, less
his net earnings (Crossett Lumber Company, 8 NLRB 440, 497-498) during said
periods, the payment to be computed on a quarterly basis in the manner established
in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. I shall
recommend also that the Respondent preserve and make available to the Board or its
agents, upon request, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of backpay due and the right to reinstatement under
the terms of these recommendations.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend further that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed in said section. N.L.R B. v. Express Pub-
lishing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532
(C.A.4).
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Richard 0. Martin on or about May 23, 1961, and Charles
Williams on May 25, 1961, the Respondent discriminated in regard to hire and
tenure of employment of employees, thereby discouraging membership in labor
organizations , and engaged in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By the foregoing conduct, by interrogating its employees concerning their
union activities, by threatening to discharge any employee who had joined the
Union, and by surveillance of employees going to a union meeting, Respondent
interfered with, restrained , and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a)(1) of the Act.
2 See, for example , N L R.B . v. Whitin Machine Works, 204 F . 2d.883, 885 , (C.A. 1).
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Atlantic Furniture Products Co., Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in said Local 75, or in any other labor organization
of its employees, by discriminating in regard to hire or tenure of employment or
any term or condition of employment, except to the extent permitted under Section
8(a)(3) of the Act.
i(b) Interrogating employees concerning their membership in the above-named
Union, or any other labor organization, in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a)(1) of the Act.
(c) Threatening employees with discharge or reprisals for engaging in union
activities.
(d) Engaging in surveillance of union activities.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to Richard O. Martin immediate and full reinstatement to his former
or to a substantially equivalent position, without prejudice to his seniority or other
rights or privileges, and make him and Charles Williams whole for any loss of earn-
ings they may have suffered as the result of discrimination against them in the man-
ner set forth in the section entitled "The Remedy" of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its agents all
payroll and other records, as set forth in the section entitled "The Remedy" of the
Intermediate Report.
(c) Post in conspicuous places at its place of business in Baltimore, Maryland,
including all places where notices to employees customarily are posted, copies of
the notice attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Fifth Region, shall, after being duly
signed by the Respondent's representative, be posted by it immediately upon receipt
thereof, and maintained by it for a period of 60 consecutive days thereafter. Rea-
sonable steps shall be taken by the Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply herewith-4
0In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
4 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activity in behalf of, Local 75,
United Furniture Workers of America , AFL-CIO, or any other labor organiza-
tion of our employees , by discriminating in any manner in regard to hire or
tenure of employment , or any term or condition thereof , except to the extent
permitted under Section 8(a) (3) of the Act.
WE WILL offer Richard O . Martin immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to seniority or
AL TATTI , INCORPORATED 167
other rights and privileges , and make him whole for any loss of pay suffered
as a result of our discrimination against him.
WE WILL make whole Charles Williams for any loss of pay suffered as a
result of our discrimination against him.
WE WILL NOT interrogate our employees concerning their union activities.
WE WILL NOT threaten employees with discharge or reprisals for engaging
in union activity.
WE WILL NOT engage in surveillance of union activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self -organization , to form, join, or
assist any labor organization , to join or assist the above -named Union, to
bargain collectively through representatives of their own choosing , to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities , except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment , as authorized in Section
8(a) (3) of the National Labor Relations Act.
All our employees are free to become or remain , or refrain from becoming or
remaining, members of the above-named or any other labor organization.
ATLANTIC FURNITURE PRODUCTS Co., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
This notice must remain posited for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office (707 North
Calvert Street, Baltimore 2, Maryland; Telephone Number, Plaza 2-8460) if they
have any question concerning this notice or compliance with its provisions.
Al Tatti , Incorporated and International Association of Ma-
chinists, AFL-CIO. Case No. 21-CA-4472. March 9, 1962
DECISION AND ORDER
On December 29, 1961, Trial Examiner Eugene K. Kennedy is-
sued his Intermediate Report herein, finding that the Respondent en-
gaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a support-
ing brief, and the General Counsel filed a brief in support of the
Intermediate Report.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record. The Board affirms the Trial Ex-
aminer's rulings and adopts his findings, conclusions, and recom-
mendations, as modified herein.
The complaint alleged that Respondent violated Section 8(a) (1),
(3), and (5) by unlawfully interrogating and threatening its em-
ployees over their interest in the Union, by discriminatorily discharg-
ing employees Werner Berg and George Filbig, and by refusing to
recognize the Union as exclusive representative of its shop employees
136 NLRB No. 17.