Biggs Antique Co., Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1948

80 N.L.R.B. 345 (N.L.R.B. 1948)

In the Matter of BIGGS ANTIQUE COMPANY, INC. and E. M. KNIICKLES,
AN INDIVIDUAL
Case No. 5-CA-19.-Decided November 18, 1948
DECISION
AND
ORDER
On June 14, 1948, Trial Examiner Henry J. Kent issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and Section 8 (a) (3) of
the Act, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate 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 National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-man
panel consisting of the undersigned Board Members.*
The Board has reviewed the rulings of the Trial Examiner at the
healing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief filed by the Respondent, and
the entire record in the case,,- and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Biggs Antique
* Chairman Herzog and Members Houston and Gray.
1 The request of the Respondent for oral argument is denied because the record and the
brief submitted by Respondent , in our opinion , adequately present the issues and positions
of the parties.
80 N. L. R. B., No. 77.
345
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Inc., Richmond, Virginia, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees by discharging or refusing to reinstate any of its employ-
ees, or by discriminating in any other manner in regard to their hire
or tenure of employment or any term or condition of their employment;
(b) Interrogating its employees concerning their union affiliations,
activities, or sympathies, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist C. 1. 0.
Organizing Committee or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer E. M. Knuckles immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to
his seniority and other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of the discrimination
against him, by payment to him of a sum of money equal to that
which he normally would have earned as wages during the period from
the date of the discrimination against him to the date of the Respond-
ent's offer of reinstatement, less his net earnings during such period;
(b) Post at its plant in Richmond, Virginia, copies of the notice
attached to the Intermediate Report, marked "Appendix A." 2 Copies
of said notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by it immediately upon receipt thereof, and maintained
by it for sixty (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 the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
8 This notice , however, shall be and hereby is amended by striking from the first para-
graph thereof the words , "The Recommendations of a Trial Examiner," and substituting
in lieu thereof the words, "A Decision and Order." In the event this Order is enforced by
decree of a United States Court of Appeals, there shall be inserted before the words, "A
Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing."
BIGGS ANTIQUE COMPANY, INC.
INTERMEDIATE REPORT
347
Miles J. McCormick, Esq. and George L. Weasler, Esq., for the General Counsel.
T. Justin Moore, Esq., Norman L. Fiippen, Esq., and Frank P. Lowden, Jr.,
Esq., of Richmond, Va., for the Respondent.
STATEMENT OF THE CASE
Upon a charge filed on October 2, 1947, by E. M. Knuckles, herein at times re-
ferred to as the complainant, the General Counsel of the National Labor Re-
lations Board, herein called the General Counsel' by the Regional Director for
the Fifth Region (Baltimore, Maryland), issued a complaint, dated March 12,
1948, against Biggs Antique Company, Inc., Richmond, Virginia, herein called
the Respondent, alleging that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(a) (1) and (3), and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, as amended by Labor Management Relations Act, 1947,' herein
called the Act. Copies of the complaint, the charge, and notice of hearing were
duly served upon the Respondent and the complainant.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent (1) on September 27, 1947, discriminatorily discharged the
complainant and thereafter failed and refused to reinstate him because he joined
or assisted labor organizations or engaged in concerted activities with other
employees for the purposes of collective bargaining and other mutual aid and
protection, and (2) by the above acts the Respondent did interfere with, restrain
and coerce its employees in the exercise of their rights guaranteed in Section 7
of the Act. The complaint further alleged that by the foregoing and the follow-
ing conduct,' the Respondent engaged in violations of Section 8 (a) (1) and (3)
of the Act as amended.
On or about March 20, 1948, the Respondent filed its answer and thereafter,
on March 31, 1948, a supplement to its answer admitting the allegations in the
complaint regarding its business operations, but denying that it is engaged in
commerce within the meaning of the Act, and also denying the commission of
any unfair labor practices. By way of affirmative defense, the answer as
amended alleged (1) that complainant Knuckles had not been discharged but
was merely laid off for economic reasons, and (2) that Knuckles was a plant
supervisor, and, consequently, not an employee within the meaning of the
Act.
Pursuant to notice, a hearing was held at Richmond, Virginia, on April 1 and
2, 1948, before Henry J. Kent, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner.
The General Counsel and the Respondent were represented by counsel. Full
opportunity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence bearing on the issues was afforded all parties.
1 The designation includes specifically counsel presenting the case on behalf of the
General Counsel at the hearing.
R June 23, 1947, Public Law 10, 80th Congress, Chapter 120, 1st Session
3 (1) Urging, persuading, and warning its employees with threats of reprisal or force or
promise of benefit, to refrain from assisting, becoming or remaining members of labor organi-
zations, or engaging in or continuing their concerted activities; (2) Questioning its em-
ployees concerning their membership in and activities on behalf of labor organizations ;
(3) Threatening its employees with loss of employment should they assist, become or remain
members of a labor organization ; (4) Circulating a petition and letters for the purpose of
inducing its employees to resign from a labor organization and discouraging its employees
from engaging in concerted activities.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the opening of the hearing, counsel for the Respondent moved to dismiss
the complaint, for the reason that the complaint issued was broader than the
charge filed by the complainant Knuckles.4 The motion was denied without prej-
udice to later renewal.
At the conclusion of the General Counsel's case-in-chief, counsel for the Re-
spondent moved to strike all allegations in the complaint not specifically included
in the charge filed by Knuckles and also moved that they be dismissed for the
additional reason that these allegations had not been sustained by the proof.
Ruling was reserved by the undersigned on both motions pending receipt of addi-
tional evidence and a brief from the Respondent. In his brief, thereafter filed,
counsel for the Respondent urges, among other things, that the decision of the
United States Supreme Court in the National Licorice case' supports his con-
tention that a complaint issued under the Act is limited in scope by the aver-
ments contained in the charge filed to initiate the proceeding. The undersigned
does not agree. The National Licorice decision in the opinion of the undersigned,
instead of supporting the Respondent's contention, rather indicates that it should
be overruled, for the Court says on page 369:
Whatever restrictions the requirements of a charge may be thought to
place upon subsequent proceedings by the Board, we can find no warrant in
the language or purposes of the Act for saying that it precludes the Board
from dealing adequately with unfair labor practices which are related to
those alleged in the charge and which grow out of them while the proceeding
is pending before the Board. . . . The Board 's jurisdiction having been
invoked to deal with the first steps, it had authority to deal with those
which followed as a consequence of those already taken. We think the court
below correctly held that "the Board was within its power in treating the
whole sequence as one."
As more particularly discussed below in the body of this report, the evidence
shows : Respondent's plant superintendent, Dorset, sometime prior to Knuckles'
discharge, questioned Knuckles, the complainant herein, regarding organizational
activities at the plant ; and it also shows that within a few days after he dis-
charged Knuckles, Dorset solicited and induced several other employees to sign
letters of resignation from the C. I. O. Since these incidents are related to and
generally concern matters connected with Knuckles' discharge the specific allega-
tions in respect to them were properly included in the complaint in order that
Respondent might be timely apprised that issues would be raised concerning
them? Accordingly, the motions to strike or to dismiss the second and fourth
allegations regarding independent violations of Section 8 (a) (1) in the complaint
are denied for the reasons set forth in the findings and conclusions of the
undersigned below. Insofar as these motions pertain to the so-called first and
4 The charge in substance alleged that the Respondent had violated Section 8 (a) (1)
and (3 ) by discharging Knuckles for attempting, in concert with other employees, to organ-
ize a union . It contained no specific averments alleging independent violations of Section
8 (a) (1), included in the complaint.
5 National Licorice Co. v. N. L. R. B., 309 U. S . 350, 369.
6 See also N. L. R. B. v American Creosoting Company, Inc., 139 F. (2d) 193, 195;
wherein the Court holds, "It is unimportant that allegation respecting this unfair practice
was added by amendment to the original complaint , . . . and was not included in the
charge as filed by the employees. The respondent had ample opportunity to meet the sup-
plemented complaint, . . .
7 These allegations are the second and fourth of these four allegations specifically set
forth above in footnote 3.
BIGGS ANTIQUE COMPANY, INC. 349
third of the allegations set forth in footnote 3, they are hereby granted because
of lack of substantial proof to sustain them.
Also, at the opening of the hearing the respondent moved that all witnesses
except complainant Knuckles and the Respondent's general manager , Farley,
be excluded from the hearing until called to give testimony. The motion was
granted over objection from the General Counsel.
At the close of the General Counsel's case-in-chief, Respondent further moved
to dismiss the allegations of the complaint concerning Knuckles for the asserted
reason that the evidence shows that Knuckles was a supervisory employee. This
motion was denied without prejudice and is herein disposed of by the findings
and conclusions below in this Intermediate Report.
The parties waived oral argument and were granted 15 days to file briefs. The
time in which briefs were to be filed was later extended by the Chief Trial
Examiner to April 26, 1948. Briefs have been duly received from the General
Counsel and the Respondent.
Upon the entire record, and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Biggs Antique Company, Inc., a Virginia corporation, is engaged in the manu-
facture and sale of furniture. Its manufacturing plant is located at Richmond,
Virginia, and retail stores are located and maintained in Atlanta, Georgia ;
Richmond, Virginia ; Baltimore, Maryland ; and Washington, D. C., for the purpose
of distributing and selling the furniture manufactured at the Richmond, Virginia,
plant.
The purchases of raw materials by the Respondent during the year ending
April 1, 1948, were in excess of $500,000, over 80 percent of which came from
points outside the Commonwealth of Virginia.
On the facts, as stipulated above, the Respondent asserts it is not engaged
in commerce within the meaning of the Act. Contra to this contention urged, the
undersigned concludes and finds that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
C. I. O. Organizing Committee, affiliated with the Congress of Industrial Organi-
zations, is a labor organization admitting to membership employees of the
Respondent'
III. THE UNFAIR LABOR PRACTICES
A. General factual setting and labor relations background
The Respondent for many years has been engaged in operating a furniture
factory at Richmond, Virginia. In March 1947, it moved to a larger building
in Richmond and increased its manufacturing facilities by modernizing and
adding to its former equipment. It employs approximately 135 production and
maintenance employees, about 35 of whom work in its machine department.
The manufacturing operations are principally carried on in the machine de-
It is noted, the organization is not named in the complaint, it was served with a copy
of the complaint and notice of hearing but did not formally enter an appearance or seek to
Intervene as a party in the proceedings.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment and cabinet department of the plant. Rough lumber is cut and proc-
essed into semi-finished wood panels or other shaped pieces in the machine room.
From there , the materials are sent to the cabinet department where skilled
cabinet makers fashion them into completed articles of furniture.
After commencing operations in the new plant , the Respondent soon learned
that there was a shortage of skilled cabinet makers in the area. Consequently,
it was unable to hire a sufficient number of cabinet makers to permit the cabinet
department to keep up with the production of the recently enlarged machine
department. By June 1, 1947, a large back log of parts turned out in the
machine department had accumulated and the plant lacked storage facilities to
handle any more. Previous to this time all departments had been working 50
hours a week . It was then decided to reduce the workweek in the machine
department to 45 hours. As might be expected, the loss of 5 hours overtime
pay caused dissatisfaction among the machine room employees . Insofar as
the record shows, no efforts to organize the employees had ever been attempted
previous to this time.
In an effort to remedy the situation , the Respondent inserted advertisements
for cabinet makers in newspapers published in several eastern and southern
cities where the furniture industry was carried on. William Tatum, the cabinet
department foreman , thereafter went to those cities to interview any applicants
who might answer the Respondent's advertisements. As a result , two additional
cabinet makers were hired during the summer of 1947.
In the latter part of August 1947 , the machine department returned to the
former 50 hour per week schedule. But, it was soon ascertained that the
machine department was still out-producing the cabinet room ; two machine
room helpers were laid off and another was transferred to work in the cabinet
room early in September 1947.
On or about September 6, 1947, E. M. Knuckles , the complainant herein and
a machine room employee for many years , went to the office of the C. I. O. Organiz-
ing Committee , herein called the C. I. 0., at Richmond , Virginia , to seek assistance
in organizing the plant . Knuckles , thereafter, became the leader in an organizing
campaign thus initiated . Meetings of employees and C. I. O. representatives
were held at a C . I. O. hall in Richmond on the nights of September 9, 16
and 23, 1947. During the time these organizational activities were going on
B. C. Williams , one of the employees who had signed a C. I. O . card at Knuckles'
request , was asked by his foreman , Wyatt, if he had joined a union , 2 days after
Williams had signed the card . At or about the same time , Plant Superintendent
Dorset went to Knuckles, when the latter was at work in the plant , and asked
Knuckles if the employees were organizing . Knuckles replied that they were
because of dissatisfaction regarding working conditions . Thereafter , on Sep-
tember 27 , 1947 , Knuckles was discharged by Dorset for the asserted reason
that Knuckles was unable to get along peaceably with other employees.
On September 29, 1947 , the Respondent received a letter from the C. I. 0.,
stating that it was the majority representative of the employees and requesting
s bargaining conference. A few days later, Superintendent Dorset handed
letters of resignation from the C . 1. 0. to several employees whose names appeared
on a list of purported C. I. O. members given to Dorset by an employee in the
machine department named Underwood . Although Dorset made no verbal re-
quest to the employees to sign these letters, at the time he handed them out,
several of them did sign them and returned them to Dorset , as might be expected.
Thereafter , all C. I. O. activities at the plant ended.
BIGGS ANTIQUE COMPANY, INC.
B. Interference, restraint, and coercion
351
As noted above, the organizational activities in the plant began on September 6,
when Knuckles went to the C. I. O. office in Richmond, Virginia, to seek assist-
ance in organizing the employees. They continued to be carried on until Knuckles
was discharged on September 27, 1947.
During this period, according to the undenied and credible testimony of
employee B. C. Williams: Knuckles came to Williams' home one Saturday after-
noon before Knuckles had been discharged ; he requested Williams, on this
occasion, to sign a C. I. 0. card after telling Williams, "everybody had signed
up but me," and that it might cost more to join the Union after it was established
as bargaining agent in the plant ; that on the following Monday morning when
Williams was working Wyatt, his foreman, came to Williams and asked Williams
if he had joined a union; that Williams told Wyatt that he had done so ; Williams
then pulled out a receipt stub detached from the C. I. 0. card he had previously
signed from his pocket which bore Knuckles' signature, indicating that Knuckles
was the person who witnessed Williams' signature, to show to Wyatt, but the
latter walked away without looking at the stub, and without making any
comment
Also during this period of organizational activities, Plant Superintendent
Dorset approached Knuckles and admittedly interrogated Knuckles concerning
them. Dorset gave the following testimony regarding the conversation :
Q. Do you recall having a conversation with Mr. Knuckles asking him
if it was a fact that the men were trying to organize a union in the plant?
A. Yes, sir.
Q. When was that?
A. I don't remember exactly the time. I think it was about maybe a
week or two weeks before he was laid off.
Q. Did he tell you that the men were trying to organize a union in the
plant?
A. He said he understood they were.
s s • w s s t
Q. Do you recall asking him why the men felt they should have a union?
A. No, sir.
Q. You don't recall his stating as answer to such a question by you that he
said the men wanted a union because there was some griping about the way
conditions were in the plant.
A. He said the men did not like conditions in the plant, but he did not
say that was the reason they wanted a union.
s s s s s s s
Q. What conditions did he talk about?
A. He seemed to think some of the men were not doing as much work as
they should.
Q. Did he say who the men were?
A. He named only one.
Q. Whom did he name?
A. Underwood.
9 Foreman Wyatt was not called to testify at the hearing.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fleetwood Underwood ( complained about, as above mentioned , in the con-
versation held between Dorset and Knuckles) was called as a witness for the
Respondent . Among other things Underwood testified :
Q. Did you have any discussion with any of the men about union after
Mr. Knuckles left there?
A. Some of the men-Now one night they told us they had a meeting and
they came to me and told me they didn't know how to get out of the union-
Mr. WEASLER. I think this was conversation between this witness and
others of the employees.
Q. (By Mr. Flippen.) Could you tell me some of the persons that you
had this conversation with the next morning?
A. Ralph Swift was the first one came to me.
Q. What was the conversation?
A. They said they were at a meeting and they didn 't see where [ the union]
would do them any good and they would like to get out of it. I said I didn't
know. I asked Mr. Hudson or Hutzler I guess is the name [the plant time
keeper], and he said they should sign a paper stating they wanted to with-
draw.
Q. What did you do about that?
A. They gave me a list of names and I gave them to Mr. Dorset.
Dorset testified : A few days after he received the list of names from Under-
wood, he was leaving the office to go out to the plant; that the timekeeper stopped
him and said , "here are some more of these letters. Do you want me to serve
them, or do you want to take them out?"; Dorset replied "I'll take them,"
and said he thereafter laid one of the letters on the work bench of each of the
men whose names appeared on the list previously given to Dorset by Underwood.
The letters read as follows :
CONGRESS OF INDUSTRIAL ORGANIZATIONS,
Law Building, Richmond 9, Virginia.
GENTLEMEN : This letter will serve as official notification of my resigna-
tion from your organization as of the above date [ October 3 , 1947].
Yours truly.
Several of the employees who were handed such letters signed them and returned
them to Dorset who presumably mailed them to the C. I. O. Thereafter, the
C. I. O. returned all initiation fees paid by Respondent's employees and organi-
zational activities were discontinued.
The Respondent admits that the foregoing incidents happened as reflected above.
It contends , however, in respect to the interrogations concerning organizational
activities by Foreman Wyatt and Superintendent Dorset to Williams and
Knuckles, respectively, that they were merely isolated incidents of friendly con-
versations between employees of the Respondent and therefore were not cal-
culated or intended to coercively interfere with the rights of employees to freely
engage in self-organizational activities . The undersigned does not agree. The
Board has held in many cases that the nature of such questioning by major super-
visors suggest that they were interested in obtaining information concerning the
status of unionization at the plant and that it is coercive per se. Accordingly, the
undersigned finds that the above questioning of employees by Dorset and Wyatt
BIGGS ANTIQUE COMPANY, INC. 353
concerning organizational activity in the plant was an unwarranted , coercive inter-
ference in a concern which was exclusively their own , and that such questioning,
therefore , violated Section 8 ( a) (1) of the Act. 10
In addition , the conduct of Superintendent Dorset in inducing certain employees
to resign from a union also clearly constituted further unwarranted , coercive
interference with their rights of self-organization thus also violating Section 8 (a)
(1) of the Act . The Respondent asserts that , since the said letters of resignation
were drafted by rank-and -file employees upon the request of other similar em-
ployees, absent instigation by the Respondent , Dorset was merely serving as an
intermediary for rank-and -file employees in transmitting the letters and, because
he made no verbal request that the recipients sign the letters Respondent engaged
in no unfair labor practices. Clearly, such a defense is without merit : the mere
handing of such a document to an employee by a management representative, by
itself, is tantamount to a request to sign it . Any employee would so regard it,
as did some of the employees here.
On the basis of all the foregoing , the undersigned concludes and finds by the
above-mentioned conduct of Dorset and Wyatt, the Respondent has interfered
with, restrained and coerced its employees in the exercise of the rights guaran-
teed by Section 7 of the Act , thereby violating Section 8 ( a) (1) thereof.
C. The discriminatory discharge of Knuckles
E. M. Knuckles was first hired by the Respondent in February 1937 ." There-
after, lie was regularly employed as an operator on many of the various machines
used in the machine department until March 1944, when he left to enter the armed
forces of the United States. After his release from military service in October
1945, he returned to work at the plant and operated a cut-off saw in the machine
department for about 8 months, at which time he quit because he believed the work
was injuring his health and no other available job was then open in the plant.
In April 1947 , he applied to Superintendent Dorset for reemployment and
was hired to serve as a planer operator and group leader in the rough end
section of the machine shop.' On this job he laid out the work for the other
employees in the section, instructed them concerning the operational methods
to follow in doing their work, but spent the major portion of his time operating
the two planers . According to the undenied and credible testimony of Titus
Bize, a witness for the General Counsel and operator on the joiner machines
in the rough end section , Knuckles recommended Bize for a wage increase,
which Bize received after Knuckles recommended it. In addition Bize also
credibly testified that the group all looked upon Knuckles as their foreman until
several weeks before the latter was discharged , when the machine shop fore-
man took over the duties of the supervision in the rough end section. There
is no dispute regarding a change in status having been effected in respect to
Knuckles' position before his discharge for Superintendent Dorset testified
that he introduced Knuckles to the employees in the rough end crew when he
10 See Matter of Reeves -Ely Laboratories , et al., 76 N L R . B. 728 ; Matter of Ames Spot
Welder Co., Inc., 75 N L R . B 352, footnote 6 and cases referred to therein.
11 Previously , Knuckles had 15 years ' expeiience as a machine operator in furniture fac-
tories run by other employers.
12 The rough end section contained a rip -saw, two joiners , and two planers . One operator
and a helper worked on the rip-saw , one operator worked on both joiners , and another
operator [ Knuckles ] on the two planers. These machines were used to perform the first
shaping operations on rough lumber.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired Knuckles in April and told them the latter would be in charge of the
rough end operations ; in addition , Dorset also testified :
Q. Did Mr. Knuckles ever come to you and say anything further about his
supervision after that?
A. Yes, he came to me and said he was not going to supervise any more.
Q. How long was that before he left there?
A. About three or four weeks before he left.
Q. Did you relieve him of his job as supervisor at that time?
A. I didn't know hardly what to do, so I didn't do anything. I said
to him "All right," and I went away.
In view of the above testimony it becomes immaterial whether Knuckles' earlier
status was actually that of a supervisor within the meaning of the Act. It is
clear that he was not filling a supervisory position during the period of organi-
zational activities in the plant, and when he was discharged on September 27.
The Respondent admits and the record shows that Knuckles was a highly
experienced and competent workman who had been an employee in the plant
for about 8 years of the last 101A_ years and that approximately 11/2 years of
his absence was due to time spent in the armed forces.
According to the undenied and credible testimony of General Manager Far-
ley and Superintendent Dorset, production in the machine department was
again running ahead of that in the cabinet room during the latter part of
September, and on September 26, 1947, they decided to reduce the force in the
machine shop by laying off one employee. Farley said since Knuckles was the
last employee hired in the department they decided to drop him. Dorset, how-
ever, testified that no strict seniority policy had ever been adopted at the plant,
but experience and seniority were both factors governing lay-offs; he further
said that during his discussion with Farley regarding the matter, he also told
Farley that Knuckles had been having trouble with other employees and for this
reason Dorset recommended that Knuckles be discharged.
On September 27, Foreman Hughes handed Knuckles an envelope about half
an hour before quitting time and said to Knuckles , "here is something Mr. Dorset
gave me for you." On opening it, Knuckles ascertained that it contained his
wages in full . Realizing that he had been discharged , he asked Hughes if Dorset
had stated any reason for the summary action taken . When Hughes replied,
"No," Knuckles then said he was going to Dorset to learn why the latter was
discharging him, whereupon Hughes stated , "I would too , if I were you."
Immediately thereafter, Knuckles went to Dorset and asked the latter why he
had been discharged . According to Knuckles , the only reason given at the time
by Dorset , was that Knuckles had been involved in trouble with other employees ;
Knuckles denied it, and then asked for the names of those whom he allegedly
had trouble with, but Dorset refused to tell him.
Knuckles then returned to the machine shop and told the employees there what
had happened . Several of them expressed surprise at the treatment accorded
him and one of them suggested that Dorset be called in, in order that they
might intercede for Knuckles . An employee named Talley went to the office to
request Dorset to come to the machine shop . When Dorset arrived in the de-
partment , about 25 of the employees , including Foreman Hughes , were gathered
in a group near the washroom . Knuckles stepped forward and stated :
Fellows, Mr. Dorset has fired me and I asked him the reason for it and
he said that I could not get along with the men and was causing a dis-
turbance between you fellows, and I said, if any of you fellows have had
BIGGS ANTIQUE COMPANY, INC. 355
any trouble with me or anything against me in any way, shape or form,
I want you to speak up. So one of the fellows, Mr. Farrer, I believe, spoke
up and said that I was the best man that had ever been there since he had
been with the Company and he had been there a number of years and the
only one that could operate the planer so he could sand [a later operation
performed after the work has left the planer]. Then Mr. Stewart spoke up
and said "It's a dirty deal," and one of the fellows [Foreman Hughes] said
"I think it all started downstairs"-and he was referring to Mr. Cooper and
Mr. Underwood'
Bize, another employee present, credibly testified, and his testimony is unde-
nied, that Foreman Hughes, on this occasion, told Dorset that Underwood and
Cooper were the only employees in the department who had caused any dis-
sension . After listening to the various statements made at this meeting, Dorset,
admittedly, gave no explanation concerning the reasons for the discharge; he
said that he merely inquired whether any other person had anything further
to say and there being no response he then left the department. Dorset's con-
duct on this occasion leads the undersigned to conclude that Knuckles' version
of his prior conversation with Dorset was true and that the only reason given
by Dorset to Knuckles for the latter's discharge was, namely, that Knuckles
had caused trouble among the employees. This conclusion, however, carries
with it no implication that Dorset was under a legal duty to state his reasons
for Knuckles' discharge to the other employees, but under the circumstances an
ordinary prudent employer would logically avail himself of the opportunity
to do so, especially if the reasons were based on a fair and sound foundation.
On Monday, September 29, Robert Turner, a C. I. O. representative, and
Knuckles went to the plant and called upon Edward Farley, Respondent's vice
president and general manager. Turner asserted that Knuckles had been dis-
charged for engaging in C. I. O. activity. Farley denied it ; he said that he
first learned of the C. I. O.'s interest in the matter on that same morning when
he received a letter from the C. I. O. requesting recognition; 14 he then asserted
that Knuckles' lay-off was due to overproduction in the machine department.
When Turner then remarked that Farley's explanation did not coincide with
the one previously given to Knuckles by Dorset, namely, that Knuckles had
caused dissension among the employees. Farley replied that he, Farley, would
support any position taken by Dorset regarding the matter and refused to rein-
state Knuckles.
At the hearing, Farley testified that the Respondent had merely laid off
Knuckles until production in the cabinet room increased. On the other hand
Dorset testified :
Q. When it was decided between you and Mr. Farley to let someone go
and you decided on Knuckles, was it your decision to discharge him or
just lay him off for a temporary period until the machine room caught
up.
A. To discharge him.
11 Hughes is presently III and confined in a hospital , hence was not available to be called
as a witness.
14 Although this letter was dated September 26, there is no substantial evidence in the
record to show that it was mailed on this date. Also there is no direct evidence in the
record indicating that the Respondent had actual knowledge that the C. I. O. was the union
concerned in the organizational activities carried on in the plant, before receiving the
letter.
817319-40-vol. 80-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You were going to discharge him without any thought in mind of call-
ing him back at a later date.
A. We did not discuss that at all.
The conduct of Dorset in connection with Knuckles' discharge as reflected above,
convinces the undersigned that Knuckles was summarily discharged for alleg-
edly creating dissension among the employees and not laid off for economic
reasons as asserted by Farley.
In support of Dorset's contention that Knuckles had caused dissension among
the workmen, employees Underwood and Cooper were called to give testimony
for the Respondent. In substance, each of them testified : Knuckles had voiced
complaints regarding Dorset's ability to run the plant and also concerning work-
ing conditions ; that neither believe most of these complaints were justified ; 1B
that they and Knuckles had never entered into cordial and friendly social rela-
tions : that during the latter period of Knuckles' employment neither they nor
Knuckles greeted one another on passing; and that they had never been asked
to join the Union. A consideration of their testimony, especially coupled with
the conduct of Underwood who turned in a list of names of fellow employees
who purportedly desired to resign from the C. I. O. to a plant superintendent,
tends to indicate that both of these employees were opposed to the organizational
activities at the plant (as was their privilege) and for this reason they were
prejudiced against Knuckles, the leader in such activities.
D. Conclusions in respect to Knuckles' discharge
On the basis of the foregoing facts found above, and the entire record, the
General Counsel contends that Knuckles' discharge was discriminatory. On
the other hand, the Respondent asserts in its brief that the record shows Knuckles
was discharged because economic conditions in its plant forced the Respondent to
reduce the force in the machine department ; that Knuckles was merely the
unfortunate victim affected by such curtailment and thus was legitimately dis-
charged ; that, in the alternative, he was discharged because he had created
dissension among the employees ; and further, in any event, Knuckles was a
supervisor, and, therefore, not an employee within the meaning of the Act.
It is noted that the affirmative defenses raised by the Respondent are to some
extent inconsistent, but this does not preclude the Respondent from raising
them.
It is also noted that Section 10 (c) of the Act, among other things, provides :
No order of the Board shall require the reinstatement of an individual
as an employee who has been suspended or discharged, or the payment to
him of any back pay if such individual was suspended or discharged for
cause.
This section of the amended Act, of course, can only mean that an order for
reinstatement and back pay may not be sustained in cases where a valid cause
for discharge has been shown. It does not preclude the entry of such an order
'b Complaints of this nature voiced by an employee to fellow employees are more or less
related to permissible concerted activities and, therefore, are privileged. According to un-
denied and credible testimony of Knuckles, Cooper was permitted to work 50 hours per
week during part of the period when the rest of the machine department employees were
only working 45 hours, thus indicating that Knuckles, at least, looked upon Cooper as a
favored employee
BIGGS ANTIQUE COMPANY, INC. 357
in cases where the evidence shows that the defense offered was merely a pretext
advanced to cover up the real reason for a discharge.
The undenied and credible evidence in this record reveals : Knuckles was out-
standing as the leader in the organizational activities conducted among the em-
ployees from September 6 to September 27, 1947, the day he was discharged ;
that Underwood, Cooper and presumably some of the other employees were
opposed to organizing the plant , as was their privilege, and for this reason were
unfriendly toward Knuckles ; that the Respondent had knowledge regarding
the organizational activities , because the record shows Superintendent Dorset
admittedly interrogated Knuckles concerning them a week or two before the
latter was discharged; that admittedly, Knuckles was a competent employee,
who for about 8 years of the 101/2 years last past had been employed as a
machine operator on various types of machines used in the machine department ; 38
that when he was reemployed in April 1947, the Respondent appointed him group
leader over a crew engaged in important first step operations in the machine
department ; and that despite his good record for performance and long experi-
ence in the plant, he was the employee picked out for termination when the
Respondent deemed it necessary to reduce the force of some 30 employees in the
department by one person and then summarily discharged for the asserted
reason that he had caused dissension . In addition , the record conclusively
shows anti -union bias by the Respondent , because within a few days after
discharging Knuckles , and, after receiving definite information that the C. I. 0.
was the union involved in the current organizational activities, it solicited
other employees to resign from C. I. O.
It is inconceivable to the undersigned that the Respondent would pick out one
of its most highly skilled and experienced workmen for termination when it
was deemed necessary to curtail a force of 30 employees by cutting off only one
man 17 Moreover , at this time it was making every effort to increase the
cabinet department production at the plant in order that it might benefit by the
enlargement of its plant facilities , which it had undertaken just a few months
earlier. It is further significant that Dorset did not assert that economic condi-
tions in the plant was the reason for Knuckles ' discharge on the day it occurred,
but rather asserted that he was discharging Knuckles because the latter had
caused dissension among the employees. Clearly, this alleged reason was based
upon objections to Knuckles ' conduct voiced by other employees opposed to organ-
ization, and concerned Knuckles ' activities in connection with his attempt to
organize the employees, that in some manner not fully disclosed by the record
came to Dorset's attention . Certainly , the record fails to show that Knuckles
engaged in other conduct that could be regarded as objectionable. Since
Knuckles' activities in this respect were protected by the Act, a discharge for
such a reason would be discriminatory.
In respect to the Respondent 's remaining defense, namely , that Knuckles was
a supervisor and, therefore, not an employee within the meaning of the Act,
Superintendent Dorset admitted that he had accepted Knuckles' resignation as
group leader about 1 month before the latter was discharged ; consequently, this
contention is without merit.
16 About 11/2 years of his absence from the plant is accounted for by Knuckles ' service in
the armed forces of the United States during the war emergency.
11 Respondent had never followed a strict seniority policy, therefore , the fact that
Knuckles ' last term of employment began in April 1947, one of the reasons given for drop-
ping him, was not controlling.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On all of the foregoing and the entire record, the undersigned concludes and
finds that by discharging and refusing to reinstate E. M. Knuckles, because he
engaged in concerted self-organizational activities with other employees, the
Respondent has discriminated with regard to the hire and tenure of his employ-
ment, thereby discouraging membership in a labor organization, and interfering
with, restraining, and coercing the employees in the exercise of the rights guar-
anteed in Section 7 of the Act, in violation of Section 8 (a) (1) and (3) thereof.
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 labor disputes, burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has independently violated Section 8 (a)
(1) and (3) of the Act, the undersigned will recommend that the Respondent
cease and desist therefrom. These violations, as set forth above, clearly indicate
that the Respondent's purpose was to defeat the exercise by employees of their
rights of self-organization. Thus, the Respondent discriminatorily discharged
E. M. Knuckles because of his concerted activities with other employees in con-
nection with the organization of a union. Thereafter, during the organizational
campaign, the Respondent interfered with, restrained, and coerced its employees
by questioning them with respect to union organization among its employees,
and by soliciting employees to resign from a union. Because of the Respondent's
unlawful conduct and its underlying purpose, the undersigned is convinced that
the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed and that danger of their commission in the future
is to be anticipated from the Respondent's conduct in the past's The preventive
purposes of the Act will be thwarted unless the recommendations are coextensive
with the threat. In order, therefore, to make effective the interdependent guar-
antee of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce, and thus effec-
tuate the policies of the Act, the undersigned will recommend that the Respondent
cease and desist from in any manner infringing upon the rights guaranteed in
Section 7 of the Act.
The undersigned has found that the Respondent discriminated in regard to
the hire and tenure of employment of E. M. Knuckles. The undersigned will
therefore recommend that the Respondent offer him immediate and full reinstate-
ment to his former or substantially equivalent position,18 without prejudice to
his seniority or other rights and privileges, and make him whole for any loss
1' See N. L. R. B. v. Express Publishing Company, 312 U. S. 426 ; May Department Stores
Company v. N. L. R. B., 326 U. S. 376.
1b In accordance with the Board's consistent interpretation of the term, the expression,
"former or substantially equivalent position," is intended to mean "former position wherever
possible , but if such position is no longer in existence, then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L. R. B. 827.
BIGGS ANTIQUE COMPANY, INC. 359
of pay he may have suffered by reason of such discrimination, by payment to
him of a sum of money equal to that which he normally would have earned
as wages from the date of his discriminatory discharge to the date of the offer
of reinstatement, less his net earnings 20 during such period.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
C'oNcwsloNs OF LAW
1. C. I. O. Organizing Committee, affiliated with the Congress of Industrial
Organizations, is a labor organization, within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of E. M.
Knuckles, thereby discouraging the formation of and membership in a labor
organization, the Respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent, Biggs Antique Company, Inc.,
Richmond , Virginia, its officers , agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its employees by
discriminating in regard to the hire or tenure of employment of its employees,
or any term or condition of their employment;
(b) Interrogating its employees concerning their union affiliations, activities,
or sympathies, or in any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to join or assist
C. I. O. Organizing Committee, or any other labor organization, to form labor
organizations, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer E. M. Knuckles immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay he may have suffered
by reason of the discrimination against him, by payment to him of a sum of money
equal to that which he normally would have earned as wages from the date of the
discrimination against him to the date of the Respondent's offer of reinstatement,
less his net earnings during such period ;
(b) Post at its plant in Richmond, Virginia, copies of the notice attached hereto,
marked "Appendix A." Copies of the notice, to be furnished by the Regional
10 See Matter of Crossett Lumber Company, 8 N. L. R . B. 440, 492-498.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 sixty ( 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 the Fifth Region in writing , within
ten (10 ) days from the date of the receipt of this Intermediate Report what steps
the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22 , 1947 , any party may,
within twenty ( 20) days from the date of service of the order transferring the
case to the Board , pursuant to Section 203.45 of said Rules and Regulations, file
with the Board , Rochambeau Building , Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceeding ( including rulings
upon all motions or objections ) as he relies upon , together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period , file an original and six copies of a brief in support of the Intermediate
Report. Immediately upon the filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the other
parties. Proof of service on the other parties of all papers filed with the Board
shall be promptly made as required by Section 203.85. As further provided in
said Section 203 .46, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings, conclusions,
and order , and all objections and exceptions thereto shall be deemed waived for
all purposes.
HENRY J. KENT,
Trial Examiner.
Dated June 14, 1948.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union affiliations,
activities , or sympathies , or in any other manner interfere with , restrain,
or coerce our employees in the exercise of their right to self-organization, to
form labor organizations , to join or assist C . I. O. Organizing Committee,
BIGGS ANTIQUE COMPANY, INC . 361
or any other labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection.
WE wnLL oF£ES to the employee named below immediate and full rein-
statement to his former or substantially equivalent position without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
him whole for any loss of pay suffered as a result of the discrimination.
E. M. Knuckles
All our employees are free to become or remain members of any labor or-
ganization . We will not discriminate in regard to hire or tenure of employment
or any term or condition of employment against any employee because of member-
ship in or activity on behalf of any labor organization , or because he has en-
gaged in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
BIGGs ANTIQUE COMPANY, INC.,
Employer.
By -----------------------------------
(Representative ) ( Title)
Dated ----------------- -
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.