Bassett Furniture Industries of Georgia, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1971

188 N.L.R.B. 895 (N.L.R.B. 1971)

BASSETT FURNITURE INDUSTRIES
Bassett Furniture Industries of Georgia , Inc., and Con-
struction , Production & Maintenance Workers Lo-
cal Union No. 1210, Affiliated with laborers
International Union of North America, AFL-CIO
and Macon Building Trades Council . Cases 10-CA-
8280, 10-CA-8424, and 10-RC-8198
March 8, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 9, 1970, Trial Examiner Ivar H. Pe-
terson issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain other
unfair labor practices. The Trial Examiner also found
that certain objections to conduct affecting the results
of the election held in Case 10-RC-8198 at the
Respondent's plant on June 17, 1970, have merit and
recommended that the election be set aside and a new
election be directed. The General Counsel filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief. The Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial 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, except as modified herein.
AMENDED CONCLUSIONS OF LAW
Delete the words "Section 8(a)(4) and" from the
Trial Examiner's second conclusion of law.
Delete the word "discharge" from the Trial
Examiner's third conclusion of law and substitute
therefor the word "reprisals."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner as modified below and
895
hereby orders that the Respondent , Bassett Furniture
Industries of Georgia , Inc., Macon , Georgia , its offi-
cers , agents , successors , and assigns , shall take the
action set forth in the Trial Examiner's Recommend-
ed Order, as so modified:
1. Delete the last Recommendation of the Trial
Examiner.
2. In footnote 11 of the Trial Examiner's Decision
substitute "20" for "10" days.
3. Substitute the attached Appendix for the Trial
Examiner 's Appendix.
It is further ordered that the election conducted on
July 17, 1970, among employees in the designated unit
of Bassett Furniture Industries of Georgia, Inc., at its
Macon , Georgia , plant be, and it hereby is, set aside,
and that said case be , and it hereby is, remanded to
the Regional Director for Region 10 to conduct a new
election when he deems that circumstances permit the
free choice of bargaining representative.
[Direction of second election 2 omitted from pub-
lication.]
1 We do not adopt the Trial Examiner 's conclusion that Respondent termi-
nated William Lyons on June 18 , 1970, in violation of Section 8(ax4). Such
matter was not alleged in the complaint nor was it fully litigated.
2 In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory tight to vote, all parties
to the election should have access to a list of voters and their addresses which
may be used to communicate with them . Excelsior Underwear Inc., 156
NLRB 1236; N L R B. v. Wyman-Gordon Co, 394 U.S. 759. Accordingly, it
is hereby directed that an election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer with the
Regional Director for Region 10 within 7 days after the date of issuance of
the Notice of Second Election by the Regional Director. The Regional Direc-
tor shall make the list available to all parties to the election . No extension
of time to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are filed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with reprisals
because they engage in union activities, or prom-
ise benefits it they refrain therefrom, or spy upon
their union activities.
WE WILL NOT discourage membership in or ac-
tivity on behalf of Construction, Production &
Maintenance Workers Local Union No. 1210,
affiliated with Laborers International Union of
North America, AFL-CIO and Macon Building
Trades Council, or any other labor organization,
by discriminatorily discharging or refusing to
188 NLRB No. 133
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate any of our employees or by discriminat-
ing in any other manner in regard to hire or
tenure of employment or any term or condition
of employment, except as authorized in Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
WE WILL offer William Lyons immediate and
full reinstatement to his former job, or, if his job
no longer exists, to a substantially equivalent
position, without prejudice to seniority and other
rights and privileges.
WE WILL make the said Lyons whole for any
loss of pay suffered as a result of his discharge
and our refusal to reinstate him.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named Union or any other labor organization.
Dated By
BASSETT FURNITURE INDUSTRIES
OF GEORGIA, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street, N.E., Atlanta, Georgia 30308, Tel-
ephone 404-526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IvAR H. PETERSON, Trial Examiner: I heard this case in
Macon, Georgia, beginning August 4, and ending August 6,
1970.1 The original charge was filed on April 7, and thereaft-
er, on April 17, May 25, and June 9, amended charges were
filed and served upon the Respondent. Regional Director
Walter C. Phillips, of Region 10, on June 26 issued his
complaint in Case 10-CA-8280 against the Respondent.
Thereafter, on July 15, the Regional Director issued his
order consolidating Case 10-CA-8280 and Case 10-CA-
8424 with Case M-RC-8198 (in the latter, the Regional
Director had issued a Decision and Direction of Election on
May 18, resulting in an election on June 17, which the
Union lost and it in consequence filed objections in timely
fashion).
1 Unless otherwise indicated all dates are in 1970.
Brieflyat the consolidated complaint alleged, in sub-
stance, that the Respondent, Bassett Furniture Industries of
Georgia, Inc., had violated the National Labor Relations
Act (herein called the Act), at its Macon, Georgia, plant, by
unlawfully interrogating employees and otherwise interfer-
ing with their rights as guaranteed in Section 7 of the Act,
between March 31 and April 13. More particularly, the
General Counsel alleged that the Respondent had made
threats to its employees with respect to their union activities
and promised them that it would make certain moderniza-
tion improvements in the plant to their benefit. Aside from
these independent violations of Section 8(axl) of the Act,
the complaint also alleged that on April 6 the Respondent
terminated the employment of some 100 of its employees
"including but not limited to" some 56 named individuals
(see paragraph 12 of the complaint). Paragraph 13 of the
complaint alleged that Respondent "laid off, discharged,
and thereafter failed and refused to reinstate" the employ-
ees named in or referred to in paragraph 12, for the reason
that they had been members and had engaged in activities
on behalf of the Union, Laborers International Union of
North America, AFL-CIO, and Macon Building Trades
Council, herein called the Union.
In Case 10-RC-8198, the Regional Director on July 15
issued a Supplemental Decision and Order directing a hear-
ing on timely objections filed by the Union to an election,
as previously stated, conducted on June 17.2
By agreement of the parties, the time for filing briefs with
the Trial Examiner was fixed as September 10
Upon the entire record in the case, and from my observa-
tion of the witnesses as they testified, and a consideration
of the only brief filed, by counsel for the General Counsel,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Georgia corporation, has its principal
office and place of business in Macon, Georgia, where it is
engaged in the manufacture and sale of wooden furniture.
It is a subsidiary of Bassett Furniture Industries, Bassett,
Virginia; the latter, herein called the parent corporation, has
several subsidiaries, including the Respondent.
During the calendar year preceding the issuance of the
complaint, the Respondent sold and shipped finished prod-
ucts valued in excess of $50,000 directly to customers locat-
ed outside the State of Georgia. The Respondent admits,
and I find, that it is en aged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, I find, is a labor organization within the
meaning of Section 2(5) of the Act.
2 The results of the election were : 83 for the Union , 117 against , 35 chal-
lenged ballots and one void ballot , out of an eligibility list of approximately
262 employees The Regional Director found that three objections (of five
filed) were meritorious and contained the same allegations as those in Case
10-CA-8280. In consequence , he ordered the two cases consolidated for
hearing, deferring ruling on the 35 challenged ballots pending findings of fact
by a Trial Examiner.
BASSETT FURNITURE INDUSTRIES 897
III. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of
Events
In his opening statement , counsel for the General Coun-
sel stated that he intended to show that during the latter part
of March, 1970, the Union instituted an organizing cam-
paign among the employees of the Respondent . Further, he
indicated that when the Respondent "got wind" of this
campaign, it began a systematic interrogation of its employ-
ees, made various threats during the course of individual
conversations supervisory personnel had with employees,
and requested that certain employees attend meetings of the
Union and report back to the Respondent as to what had
transpired at those meetings . According to counsel for the
General Counsel, the Respondent laid off a group of some
100 employees, over a period of about 3 weeks , in retaliation
for its employees ' activities in support of the Union.
Counsel for the Respondent , by way of rejoinder, stated:
"The best thing I can say, Mr. Examiner, at this point is to
say it tain 't so." Elaborating, counsel for the Respondent
stated that his client , and the industry in which it was en-
gaged , generally, had "suffered catastrophic losses"; that
the Respondent 's business was "plummeting ... into the
depths of financial disaster ." In consequence , he stated, the
layoffs or terminations of the individuals mentioned previ-
ously were necessarily of an economic nature.
B. Interference, Restraint and Coercion
As noted above, the Union commenced its organizational
efforts among the Respondent 's employees during the
month of March 1970 . Employees had numerous conversa-
tions with one another during the following period, and to
some extent, as found below , supervisors were apprised of
and became acquainted with most of these events. Plant
Manager George notified the Respondent 's president, Le-
onard Kaplan, on that Friday, April 3, of tie Union's cam-
paign . Three days later , on Monday , April 6, the
Respondent made the initial layoff of employees . During
the ensuing ten days, according to the assertions of counsel
for the General Counsel , the Respondent engaged in "a
vicious campaign against the Union," which included
"threats to its employees" and solicitation of at least two
employees to spy on union activities and, more importantly,
"the termination of nearly 100 of its employees.
On April 2, employee Hill mentioned to his supervisor,
Ed Flanders, that a union was attempting to organize the
employees of the Respondent . Hill signed a union card the
following day and was named in the April 8 telegram as a
member of the in-plant committee . On April 3 Plant Man-
agger George sent for Hill who came to George 's office.
George questioned Hill as to which employees had signed
cards, and asked Hill to obtain a union card for him and
ordered Hill to sign a card and attend all union meetings
and report back to the Respondent concerning union activi-
ties. Although George admitted that he had such a conver-
sation with Hill and that he told Hill he appreciated what
Hill was doing for the Company , he testified that he did not
request Hill to obtain any information "at that time." In-
deed, George testified that he did not request Hill to attend
union meetings and spy on union activities , or make any
arrangement with him with respect to any money or change
in his Job status . On or about April 7, following a union
meeting, Hill next met with George in the latter 's office,
accompanied by Joe Wilder , a supervisor . Immediately af-
ter the union meeting, Hill telephoned Wilder at his home
and suggested that they meet . Wilder in turn called George
and the three men met in George 's office at midnight.
George and Wilder questioned Hill as to what had occurred
at the union meetin . George admitted that he asked Hill
to identify the employees who had attended the meeting,
but that Hill told him that he could not recognize them and
did not know their names . On cross-examination , George
altered his testimony and stated that he had never requested
any information from Hill , including the identity of the
employees attending the union meeting . On April 13,
George met with Hill during the lunch hour at a golf course.
On this occasion George asked Hill if he thought the Union
"had enough cards to get a union in out there ," and Hill
informed him that he thought the Union did have enough
cards and employees were still signing cards .3 George, in his
testimony, admitted that he did meet with Hill at the golf
course , but stated that he did so in order to inform Hill of
Respondent 's "official stand" with respect to the Union,
namely, that the Respondent was opposed to it.
On April 8 Kaplan, the Respondent 's president, received
a telegram from the Union which listed the names of em-
ployees who were , as the telegram stated , members of its
in-plant organizing committee . Kaplan convened a meeting
of employees within the plant and spoke to them. In the
course of his speech he told the employees that while he
continued as president of the Respondent there would be no
union in the plant , and that, in this connection , he intended
to be president for quite some time . According to the testi-
mony of a number of witnesses , Kaplan stated that the
Respondent would undertake to make some improvements
in the plant, including providing benches for employees to
use and constructing walkways to the parking lot. Further,
according to witnesses presented by the General Counsel,
Kaplan on this occasion stated that while the Union might
indicate to employees that the names of those who had
signed union cards would be held in confidence, the fact
was that he (Kaplan) could go to the courthouse and ascer-
tain the names of the signers of union cards . In this regard,
Kaplan testified that the burden of his statement was that
in the event of a public hearing he would be able to obtain
the names of employees .4 With respect to Kaplan's speech
to the employees , it is worth noting that although a number
of employees testified concerning this, and counsel for the
Respondent, from my observation , appeared to have a copy
of it while interrogating witnesses , no copy of it was intro-
duced in evidence . In this connection, counsel for the Gen-
eral Counsel contends (br., p. 3) that the "withholding of
this document can only lead to the inference that had it been
submitted, it would have proven that the General Counsel's
witnesses were correct and truthful in their testimony con-
cerning the speech."
Employee Hill was terminated on April 14. Following his
termination, Hill told George that he had not been paid the
money that he had been promised for the time he spent at
union meetings gathering information for the Respondent.
George advised Hill that he would check on the matter and,
a week later, Hill's former supervisor, Emmet Massingale,
met Hill and paid him $30 for his spying activities . Massin-
gale was not called as a witness nor was the failure to
produce him explained.
Employee Bobby Smith , who was still employed by the
Respondent on the day that he testified , related that Super-
visor Wilder told him to make reports to Wilder regarding
union activities . Indeed, as early as March 31 Wilder in-
3 On the afternoon of April 13, some 50 additional employees were ternu-
nated.
4 1 am not inclined , and therefore I do not , credit Kaplan in this regard.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired of Smith what the latter could tell him about the
Union, and told Smith to attend union meetings and imme-
diately thereafter report to Wilder . During the following 2
weeks , while employees were being terminated, Smith did in
fact report to Wilder concerning union meetings. On one
occasion he gave Wilder the names of four employees who
had attended the meetings . Wilder admitted that he had
these conversations with Smith but claimed that he at no
time asked Smith questions, but that he remained silent
while Smith "volunteered" information to him and that he
personally "never thought the union matter was important."
On another occasion , according to Smith , he and Wilder
were together in the finishing department , and Wilder asked
him if he saw any union employees there and requested that
Smith point them out to him. Wilder acknowledged that he
had this conversation with Smith and that he asked Smith
who in the finishing department would vote for the Union.
Ulysses Davis, who had worked for the Respondent from
1964 or 1965 and was laid off on April 13, testified that
following his layoff he was told by the chief inspector, Dick
Snow , that he had been laid off on account of the Union and
that Foreman Robert Krebs told Snow that he (Krebs) had
found out that Davis had signed a union card during his
lunch hour on April 11 . Krebs denied that he knew Davis
was in any way involved with the Union , and he further
denied that he had any conversations with Snow regarding
the termination of Davis . Snow was not called as a witness.
Margaret Smith , an employee, testified that on or about
April TSupervisor Willie Harvell asked her if she was in the
Union and told her if she were, she ought to quit or "she'd
be gone." Harvell admitted that Smith rode to work with
him for about 4 weeks and that they had conversations
during the time they were riding to work , but denied that
he ever told Smith that employees were being terminated at
the plant because they were in the Union.
Raymond Wood , an employee , testified that Foreman
Krebs told him that the reason he was terminated was be-
cause his name was on the telegram the Union sent the
Respondent on April 8 , informing the Respondent of the
members of its committee, which the Respondent posted on
the bulletin board . Krebs was not questioned about this
matter.
C. The Layoffs
General Counsel's complaint alleges that between April
6 and 16 the Respondent laid off , discharged , and thereafter
failed and refused to reinstate approximately 100 employees
"including but not limited" to 56 persons namedin the
complaint in Case 10-CA-8280 . During the hearing, coun-
sel for the General Counsel , in answer to my inquiry , stated
that regarding the terminations he was proceeding upon the
theory that they were of a mass character , in retaliation for
the employees concerted activities . In defending against
this allegation, the Respondent asserted and adduced evi-
dence in support that the layoffs were occasioned by ineffi-
cient labor utilization andya declining furniture market.
Indeed, Respondent's vice resident and president of the
parent corporation , Robert Spilman, in substance testified
that the Respopdent sustained heavy losses and that the
labor costs in the Macon plant were excessive, necessitating
drastic efforts to obtain greater labor efficiency.
Under date of February 6, B. M. Brammer , vice president
and controller , notified Spilman that January operations at
the Macon plant had developed a loss of $ 176,000 on the
basis of a production of $380 ,000, and that the labor per-
centage was 5 r percent , "which is terrible ." In another
memorandum dated March 6 Brammer informed Spilman
that the loss for February operations had increased to ap-
proximately $254,000, and that the labor percentage was 46
percent for that month , "indicating gross labor inefficiency.
On March 23 Brammer advised S ppilman that production
"continues to drag" and that sales had dropped "with no
basic prospects" of increasing production at the Macon
operation . He added that first quarter losses would continue
unless production were increased and labor efficiency im-
proved . In a further memorandum dated April 3 Brammer
noted that figures then available indicated a large loss for
March operations and that the total employment was 369,
as compared with 365 at the end of February . On April 7
Brammer sent a memorandum to Spilman summarizing
March operations , in which he noted that March was "prob-
ably worse than February with respect to losses" and fur-
ther stated that he had been advised that 12 or 15 employees
had been terminated the preceding , day. He further noted
that as of the , end of March the backlog of orders was
$4,126,000 , whereas the backlog should be "at least $10,
000,000 ." On June 10 Brammer reported on operations for
May,, advising Spilman that there had been a small increase
in production and that a profit of approximate ly $6,,000 had
been realized , which he attributed to "greater efficiency" in
the "labor area ." He noted that the work force at this time
stood at 261 compared to 273 in May.5
Spilman testified that beginning earlier in the year he
devoted considerably more time to the Macon plant 's oper-
ation rather to the other operations of the parent company.
Spilman further testified that the Respondent and its associ-
ated companies "were experiencing a general sales decline."
On or about April 3 Spilman telephoned President Kaplan
that he had met with sales representatives of the companies
he headed, who had gathered at High Point , North Caroli-
na, prior to the opening of the spring merchandising display
on April 7. Splman testified that the reports he had re-
ceived, and alr other available indications, were to the effect
that "the tremendous loss" that the Macon operations was
experiencing "had to stop," and that this loss was "brout
about by an exorbitant , unreasonable and unrealistic labor
percentage ." Spilman stated that he told Kaplan to start
cutting employment immediately, and to come to Bassett,
Virginia, the following week. Spilman did not tell Kaplan
how much to cut the labor force but left that to Kapran's
discretion and later told Kaplan that he wanted the labor
percentage reduced to 18 percent.
Spilman stated that he had heard nothing about any un-
ion activity at the Macon plant at the time he called Kaplan
to come to Bassett , Virginia . Indeed, he testified that the
first he heard of any union activity was when he was advised
that the Company had received a telegram from the Union
stating than an organizing committeehad been established
in the plant . Spilman testified that about 95 percent of the
alerts that he receives regarding impending or actual union
activities in any of the various concerns with which he is
associated, "turn out to be nothing of an y consequence."
Spilman stayed at the High Point market from April 7
until April 15 or 16 . He testified that, within the first 3 or
4 days of his stay, he formed the impression that the atmos-
phere of general retail sales "was the slowest I've ever seen"
in his experience in the home-furnishing industry, and that
he realized that the Respondent was going to have a sub-
stantial problem in all divisions in maintaining produc-
tion.6
S In July it was slightly below 200
6 In support of his statement that, the industry generally was in serious
condition, Spilman mentioned the situation of Stanley Furniture Company,
a competitor, and an organization capitalized at about $900 million . Accord-
BASSETT FURNITURE INDUSTRIES
On the morning of April 13, so Spilman testified, he called
President Kaplan after having been informed of the very
serious financial difficulties of several other concerns in his
industry. Spilman told Kaplan that what he had done in
terms of employment reduction "was not enough" Indeed,
Spilman related that his advice to Kaplan was that the
reduction in employment was "no way near enough" to
establish the proper relationship between labor costs and
other costs at the Macon plant. As detailed above, the Re-
spondent, on the basis of-memoranda reports Spilman re-
ceived from Brammer during the months of February,
March and April, a number of em,ployees at the Macon
plant were terminated. It is Spilman s testimony that at the
end of July the Respondent had 194 production employees,
and that the curtailment was not confined to the production
department but extended to employees in administrative
capacities, such as the office and the purchasing and traffic
departments. Indeed, Spilman testified that the cut in per-
sonnel, percentage-wise, was a bit deeper in the office than
in other areas of the plant.
D. The Termination of William Lyons
In Case 10-CA-8424, the General Counsel alleged that
William Lyons had been unlawfully terminated by the Re-
spondent . Lyons , an individual 51 years old , had worked for
the Respondent from the latter part of February 1967. He
was discharged on June 18 , 1970. Lyons , during his employ-
ment , had done a number of jobs in the Respondent's plant,
and classified himself as a "utility man " for the reason that
he was never given a job classification . On April 6 Lyons
injured his hand and was absent from work for 2 days. On
April 7 he signed a union authorization card , and went to
a union meeting . Thereafter , Lyons attended some seven or
eight meetings of the Union , prior to his discharge . He acted
as the Union 's observer at the election held on June 17.
After the election , held between the hours of 8 a .m. and 10
a.m., Lyons went back to his job.
On the day of the election , Lyons reported for work at
approximately 7 o'clock in the morning . Upon arrangement
with officials of the Respondent , Lyons was notified that he
was excused from work in order that he might act as the
Union 's observer at the election . Thereafter, Lyons went to
his Job assignments.
The following day, Lyons was told by Foreman Irby that
he should go out into the lumber yard , but did not do so;
he told Irby, who had given him the initial assignment, that
he was ill and that he did not wish to accept the assignment
in the lumber yard . According to Lyons , whose testimony
I credit, Foreman Irby told him to go back out into the yard,
and, when they met there , Lyons told Irby that he was "still
sick ." Irby then told him that he ought not to have come to
work that day; Lyons responded that he had to see Robert
George , plant manager . Lyons worked all that day. The
following day, after he had performed his customary duties,
he was told shortly after 7 a.m. that he was to be assigned
to the tennoning machine . He had not previously worked on
that machine , but Coffee , the "feeder" on the machine,
undertook to instruct him in the operation of that machine.
Lyons for some hours continued to attempt to work on
the machine, which involved the job of "catching some
ing to Spilman, the Stanley Company had "curtailed approximately 300
employees" and had worked employees on 4-day workweeks and had had its
employees take staggered and extended vacations. Spilman continued to
relate that other concerns in the industry had sustained substantial, if not
catastrophic, losses during this period.
899
short rails." Some 40 minutes later, according to the cred-
ited testimony of Lyons, Lyons was assigned to resume his
normal operation on the "peggiiig machine." Shortly there-
after, so Lyons credibly testtiiffied, he was approached by a
fellow employee and was advised that he (Lyons) was want-
ed at another job location, for the reason that an employee
had had to go see a physician. The machine to which Lyons
came was a tennonmg machine . Shortly thereafter, Lyons
cleaned up around the machine , which had stopped operat-
ing apparently because of mechanical trouble, and was told
that he should report to another machine of the same char-
acter. He was assisted in setting that machine up for opera-
tions.
Lyons, quite obviously, was unable to keep up with the
demands of the tennoning machine. Indeed, he testified that
he could not "keep up with that machine for all the money
in the world," and could not remove the panels that were
coming through the machine and place them in the next
operation, with the result that the wood panels were falling
on the floor.
Admittedly, Lyons was unable properly to perform his
work, and, in attempting to do so, allowed pieces of material
coming through the machine to drop on the floor in quite
some disarray. While so engaged, Lyons was closely ob-
served by Supervisors Irby an d Moore, in company with
Assistant Plant Superintendent Carl Johnson; they appar-
ently found Lyons predicament amusing.
I have carefully considered but, regrettably, am unable to
accept the Respondent's contention with respect to the
treatment accorded Lyons . I am, therefore , constrained to
find, on the basis of the evidence, that Lyons was terminat-
ed because of his activities on behalf of and his associations
with the Union.'
D. Concluding Findings
.
As related above, President Kaplan, during his speech on
April 8, clearly indicated his knowledge of the Union cam-
paign and revealed the Respondent's animus toward the
Union. Moreover, during this speech he threatened em loy-
ees with reprisals and promised benefits if they would re-
frain from engaging in union activity. I credit the testimony
of the witnesses presented by the General Counsel with
respect to the antiunion activities and statements of Plant
Manager George and Supervisors Krebs, Harvell, and Wil-
der. By such threats and promises, and by engaging in sur-
veillance of union activity, the Respondent violated Section
8(a)(1) of the Act. I so find.
With respect to the termipation of Lyons, I am con-
strained to credit his testimony where it differs from that of
Respondent's witnesses . I observed Lyons very carefully,
and formed the opinion that, in my experience as a Trial
Examiner, I would assess him as one of the most credible
witnesses I have heard. Indeed, it appeared to me that
Lyons was "leaning over backwards' in his testimony. I
think it plain that the Respondent' s supervisors were intent
upon harrassing Lyons and giving him work assignments
with which he was unfamiliar and not capable of perform-
ing, considering his physical handicaps. F do not credit the
testimony to the effect that he refused to perform work
7 In this regard , I would note that Lyons, age 51 , obviously is a man of
limited physical agility; however, he credibly testified that he energetically
attempted to perform his job duties
9 Indeed , it seems plain, as stated in the brief of counsel for General
Counsel, that Lyons was depicted by the Respondent as "an evil employee"
because he had lighted a ciagrette in the polling area while the election count
was in process In this respect , I note that Personnel Manager Panzarella did
not observe Lyons smoking, Lyons testified others in the area were smoking.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignments ; to the contrary , I am satisfied and find that he
energetically and to the best of his ability attempted to do
the jobs assigned to him . Accordingly , r find that his dis-
charge was violative of Section 8(a (3), (4) and ( 1) of the
Act.
The allegations concerning the layoff of "approximately
one hundred" employees "including but not limited to" 56
named employees , presents a difficult question . Uncontrad-
icted evidence presented by the Respondent , as summarized
in Respondents Exhibit 9, discloses that a total of 77 em-
ployees were terminated in the cutback between April 6 and
16. However , only 45 of the 56 persons named in paragraph
12 of the complaint are listed on this exhibit , and of these
the undenied testimony of Plant Manager George is that 6
were terminated for cause .9 Counsel for the General Coun-
sel adduced no evidence to contradict the testimony of
Plant Manager George that these 6 employees were dis-
charged for cause on the dates indicated. With respect to
them, therefore , I conclude there is a total failure of proof
to establish that their termination was in any way occa-
sioned by their union activity or the union activity of em-
ployees in general . Accordingly , the complaint will
necessarily be dismissed with respect to them.
As stated above , the names of r l persons named in para-
graph 12 of the complaint are not listed as terminated em-
ployees in Respondent 's Exhibit 9. Plant Manager George
testified that this exhibit accurately reflected the separations
from service in the Macon plant beginning April 6 and that
since April 6 the Respondent had not hired any new em-
ployees . Named in the complaint is a Juanity Mock . George
testified that the Respondent did have a Juanita Mock; she
had not been terminated but was on leave of absence due
to illness . Also named in the complaint was a Willie Prima,
Jr. George testified that he had searched his records and had
found no such employee and that he had no employee
whose name was similar to that . The complaint also listed
a Charlie Irwin , and George testified that the Company had
never had an employee by that name or a similar name. It
seems evident, therefore , that the names of Mock (Juanity
or Juanita), Prima , and Irwin must be dismissed from the
complaint.
Considering the merits of the General Counsel's conten-
tion that the layoffs in early April were discnminatorily
motivated , and made in retaliation for the employees' union
activity , it should be observed that the most significant fac-
tor supportive of General Counsel's theory is that the lay-
offs began promptly after the employees became interested
in the Union. The evidence adduced by the Respondent,
however , persuades me that the layoffs were attributable to
the declining furniture market, high inventory, and a desire
to improve the efficiency of the la bor force by cutting labor
costs . It is uncontradicted that in January operations result-
ed in a loss of $170,000, and that the labor percentage, i.e.,
the relationship of labor cost to selling price of goods prod-
uced , was 51 percent , whereas the acceptable ratio was
about 18 percent . In the succeeding months of February
and March losses increased and the labor ratio improved
only slightly. The figures supplied to Spilman by Brammer
early in April showed that operations for March were
"probably worse" than February , and noted that as of the
end of March the backlog of orders was slightly more than
$4 million , whereas an acceptable backlog should be about
$10 million . When Spilman met early in April with his sales
representatives , he concluded that the situation necessitated
9 These are- Herman Mitchell, discharged on March 31; Willie Meredith,
discharged on April 3, and Willie B. Ashley, Donald W. Boone, Betty Jane
Rouse, and Larry C Turner, all discharged for cause on April 6
a cutback in employees at the Macon plant and issued
orders to that effect to Kaplan. According to Spilman's
uncontradicted testimony, the slump was not confined to
the Macon plant but extended industrywide, as he had
found out from contacts with executives of other furniture
plants and also in his capacity as president of the Southern
Furniture Manufacturers Association. This evidence was
not questioned by counsel for the General Counsel, al-
though in his brief he states that the Respondent knew in
October 1969 that it was losing money at the Macon plant
and had lost nearly $400,000 before January 1, 1970. He
argues that, considering the fact that Kaplan did not know
of any union activity until April 3, it is "inconceivable then
that the fact that he began to cut" the labor cost on April
6 "when he knew of this problem for maybe 6 months, was
motivated by anything other than retaliation against the
Union, the knowledge of which he'd had for only 3 days."
(Br. p. 6). While I have no doubt, as Kaplan expressed it in
his April 8 speech, that the Respondent was opposed to the
Union, this fact alone does not serve to explain or negate
the force of the evidence adduced by the Respondent dem-
onstrating that economic factors necessitated and justified
the reduction in force. Moreover, the evidence is that in
selecting employees for termination the Respondent fol-
lowed job seniority except in the case of Ulysses Davis.
Davis was terminated while a junior employee engaged in
the same job was retained. However, George satisfactorily
explained' this by pointing out that Davis had been tardy 12
times in 9 weeks. To conclude, with respect to the layoffs,
I am satisfied and find that they were not motivated by
hostility on the part of the Respondent toward the union
activities of its employees. Accordingly, this allegation of
the complaint will be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Bassett Furniture Industries of Geor-
gia, Inc., Macon, Georgia, is an employer within the
meaning of Section 2(2) of the Act; the Union is a labor
organization within the meaning of Section 2(5) of the Act.
2. By terminating William Lyons on June 18, 1970, the
Respondent violated Section 8(a)(3) and Section 8(aX4)
and, derivatively, Section 8(a)(1) of the Act.
3. By threatening employees with discharge because of
their union adherence, questioning employees about atten-
dance at union meetings, indicating that wage increases and
other benefits would be given if they rejected the Union,
and engaging in surveillance of union activity, the Respon-
dent violated Section 8(axl) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce, within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. By terminating employees between April 6 and 16,
1970, the Respondent did not violate the Act.
THE REMEDY
Having found that by terminating William Lyons on June
18, 1970, the Respondent violated Section 8(a)(3) and (4),
respectively, as well as Section 8(a)(1) of the Act, it will
therefore be recommended that the Respondent offer reins-
tatement to his former job or, if that is no longer available,
to a substantially equivalent position, and make him whole
for any losses sustained by reason of his termination, with
interest at the rate of 6 percent per annum. Additionally, it
will be recommended that the Respondent cease and desist
from engaging in any other conduct violative of Section
8(a)(1) of the Act, and post appropriate notices to its em-
BASSETT FURNITURE INDUSTRIES
ployees.
I shall further recommend that the election conducted on
June 17 be set aside inasmuch as I find the objections on
which hearing was directed have merit, and that a new
election be held when the Regional Director determines that
the time is appropriate.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in the case, it is
recommended that the National Labor Relations Board,
pursuant to Section 10(c) of the Act, issue the following:
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in the case, it is
recommended that the Respondent, Bassett Furniture In-
dustries of Georgia , Inc., Macon, Georgia , its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with loss of employment or
other benefits if they engage in union activities , or discrim-
inatorily discharging any employees to discourage member-
ship or activity in support of the Union or any other labor
or anization.
(b) Promising wage increases or improvements in other
conditions of employment if emp loyees reject the Union.
(c) In any other manner interfering with restraining or
coercing employees in the exercise of the rights guaranteed
to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer to William Lyons immediate and full reinstate-
ment to his former job, or if the job no longer exists, to a
substantially equivalent position , without prejudice to his
seniority or other rights and privileges, and make him whole
in the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Notify the said employee if presently serving in the
Armed Forces of the United States of his not to full reins-
tatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request make available to the
Board or its agents, for examination and copying , all payroll
901
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
determine the amount of backpay due and to analyze rein-
statement rights under the terms of this Recommended Or-
der.
(d) Post at its premises in Macon, Georgia, copies of the
attached notice marked "Appendix."10 Copies of said no-
tice, to be furnished by the Regional Director for Region 10,
after being duly signed a representative of the Respondent,
shall be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained 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.
(e) Notify the Regional Director for Region 10, in writing,
within 20 days from the date of receipt of this Decision,
what steps the Respondent has taken to comply here-
with.1I
It is further recommended that the election held on June
17, 1970, in Case 10-RC-8198 be set aside and that the
Regional Director conduct a new election when the time is
appropriate.
It is further recommended that the names of Herman
Mitchell, Willie Meredith, Willie B. Ashely, Donald W.
Boone, Betty Jane Rouse, Larry C. Turner, Juanity (Juani-
ta) Mock, Willie Prima, Jr., and Charlie Irwin be removed
from the list of eligible voters and that the unopened chal-
lenged ballots cast by any of them be destroyed.
10 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and Recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and order , and all objections
thereto shall be deemed waived for all purposes In the event that the Board's
Order is enforced by a judgment of a United States Court of Appeals, the
words in the notice reading "Posted by Order of the National Labor Rela-
tions Board" shall be changed to read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
11 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for Re-
gion 10, in writing within 10 days of this Order , what steps Respondent has
taken to comply herewith "