Cleveland Chair Co.

National Labor Relations Board - Board Decisions

Jun 4, 1936

1 N.L.R.B. 892 (N.L.R.B. 1936)

In the Matter of CLEVELAND CHAIR COMPANY and LOCAL No. 1759,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
Case No. C-18-Decided June 4, 1936
Furnitwre Industry-Interference. Restraint of Coercion: expressed opposition
to labor organization, threats of retaliatory action-Discrimiination: discharge-
Strike-Reinstatenicat Ordered, Non-Strikers-Back Pay: awarded-Reinstate-
meat Ordered, Strikers: strike provoked b.1 employer's law violation ; displace-
.inent of employees hired during strike ; preferential list ordered, including.
Mr. Mortimer Kollender for the Board.
Mr. D. Sullins Stuart, of Cleveland, Tenn., for respondent.
Mr. Herbert G. B. King, of Chattanooga, Tenn., for the Union.
Mr. Fred. G. Krivonos, of counsel to the Board.
DECISION
STATEMENT OF CASE
Local No. 1759, United Brotherhood of Carpenters and Joiners of
America, hereinafter termed the union, having duly filed a charge
with the Regional Director for the Tenth Region, the National Labor
Relations Board, by its agent, the said Regional Director, issued and
duly served its complaint dated November 13, 1935, against the Cleve-
land Chair Company, Cleveland, Tennessee, respondent herein, alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section 8,
subdivisions (1), (3) and (5) and Section 2, subdivisions (6) and (7)
of the National Labor Relations Act, approved July 5, 1935, here-
inafter termed the Act.
The complaint, in substance, alleges that the respondent, a Tennes-
see corporation, with its principal office and place of business in
Cleveland, Tennessee, hereinafter termed the plant, is engaged in the
production, sale and distribution of furniture in interstate commerce;
that on September 24, 1935 it discharged and has since refused to rein-
state Wilson Brannan, president of the union; that on September
25th it discharged and has since refused to reinstate a committee of
three union members, employees of the respondent, when they pro-
tested Brannan's discharge; that on the same day it discharged and
has since refused to reinstate 11 named employees who participated
892
DECISIONS AND ORDERS 893
in a strike in protest against the discharges of the committee mem-
hers; that all such discharges were for the reasons that such em-
ployees had either joined and assisted the union or engaged in
concerted activities for mutual aid and protection or both; ' that the
respondent has directly coerced its employees from becoming or
remaining members of the union ; and that the respondent, on Sep-
tember 25, 1935, and at all times thereafter, has refused to bargain
collectively with the authorized agents of the union.
The respondent's answer, in brief, after reserving all constitu-
tional and jurisdictional objections, admits its corporate existence
and the complaint's allegations that it causes raw materials and
finished products to be transported in interstate commerce to and
from the plant, but denies that its operation of the plant constitutes
a continuous flow of trade, traffic and commerce among the several
states; it admits that it discharged Brannan and the three committee
members, but denies that they were discharged for union membership
and activity; it denies knowledge of their membership in the union
and of the existence of the union; and it alleges that they were dis-
charged and refused reinstatement for violation of the respondent's
rules. All other allegations of the complaint are denied.
Pursuant to notice thereof duly served on the respondent, Walter
Wilbur, duly designated by the Board as Trial Examiner, conducted
a hearing commencing on December 5, 1935, at the Federal Building,
Chattanooga, Tennessee. The respondent appeared by counsel, D.
Sullins Stuart, an21 participated in the hearing, announcing, however,
its reservation of its rights to question the constitutionality of the Act
and the jurisdiction of the Board in the manner prescribed by the
Act or in any other manner. The Board was represented by counsel,
as was the union. Full opportunity to be heard, to cross-examine
witnesses and to' produce evidence was afforded to all parties. In
the course of the hearing, the respondent agreed to furnish for the
record a statement of the dollar volume of its purchases and sales in
Tennessee and in states other than Tennessee for some months prior
io November 30, 1935, as .well as a statemenut of the number of em-
ployees hired and dismissed since September 25, 1935. These state-
ments were furnished by the respondent and are exhibits in the rec-
ord. On April 9, 1935, the respondent through its counsel entered
into a stipulation with counsel for the Board, incorporating a statis-
tical statement, certified by the United States Department of Labor,
of strikes in the furniture industry from January 1, 1934, to July 31,
i The charge designates all 11 of these employees as union members ; the complaint,
however, names eight as union members and does not allege union membership for the
other three Testimony by Floyd McMahan, who signed the charge, indicates that counsel
for the union drafted the charge from a list of names furnished by the union, and the
three non -union employees were designated as union members inadvertently The expla-
nation accounts for this immaterial discrepancy between the charge and the complaint.
894 NATIONAL LABOR RELATIONS BOARD
1935, as Exhibit B-11 in the record, subject, however, to the respond-
ent's reservation of exceptions as to the relevancy thereof. We find
this document relevant and material on the issues of unfair labor
practices affecting commerce, and it is hereby admitted into the
record as Exhibit B-11.
At the commencement of the hearing the respondent moved to dis-
miss the complaint on the grounds that the Act is unconstitutional,
and that the Act does not apply to the respondent's business, as set
forth in its "Formal :Exceptions and Jurisdictional Objections"
(Exhibit R-1). The motion was denied by the Trial Examiner, and
his ruling is hereby affirmed. In the course of the hearing the re-
spondent moved to dismiss the complaint, and at the end of the
hearing renewed its motion, on the grounds that the evidence fails
to substantiate the allegations of the complaint as to the interstate
nature of the respondent's business or as to the unfair-labor practices.
These motions, taken under advisement by the Trial Examiner are
hereby denied. The respondent also, in the course of the hearing,
moved and later renewed its motion, to strike out testimony of events
at the plant prior to July 5 or July 17, 1935. Rulings on these
motions were reserved by the Trial Examiner. We rule this testi-
mony to be relevant and material on the subject of labor relations
at the plant and the respondent's attitude toward the union, essen-
tials in an issue of discrimination; and the motion is hereby denied.
The motion of counsel for the union to strike the testimony elicited
on cross-examination as to such evidence is also denied. The Trial
Examiner also took under advisement the admission in evidence over
the respondent's objection of a copy of the minutes of a union meet-
ing on October 1st, which note that the three committee members
were "fired September 25, 1935" (Exhibit B-10). We rule this evi-
dence to be relevant and admissible. We find no prejudicial rulings
by the Trial Examiner in respect to various other objections to the
introduction of evidence, and his rulings are affirmed.
Acting pursuant to Article II, Sections 35 and 36 (a) of National
Labor Relations Board Rules and' Regulations-Series 1, the Board
ordered the proceeding to be transferred and continued before it and
ordered the Trial Examiner to file an intermediate report with the
Board. Upon the record thus made, the stenographic report of the
hearing, and all evidence, including oral testimony, documentary and
other evidence offered and received at the hearing, the Trial Exami-
ner, on March 5, 1936, filed an intermediate report, finding and con-
cluding that the respondent engaged in unfair labor practices affect-
ing commerce, as alleged in the complaint, by discriminatorily dis-
charging and refusing to reinstate the three committee members and
the 11 named employees and by refusing to bargain collectively with
the representatives of its employees. The Trial Examiner recom-
DECISIONS AND ORDERS 895
mended the reinstatement of the three committeemen to their former
positions with back pay; and the reinstatement of the 11 named
employees to their former positions in the order of their seniority,
with displacement of workers hired to fill their places , if any. He
also found the evidence insufficient to support the allegations in the
complaint that Wilson Brannan was discriminatorily discharged and
found that he had been dismissed for cause . The Trial Examiner
also found the evidence insufficient to support the allegations of
direct coercion of employees to refrain from union membership.
On exceptions to the intermediate report, duly filed by the re-
spondent after an extension of time granted therefor by the Board,
an oral argument on the record was held before this Board in Wash-
ington, D. C., on April 9 , 1936 , pursuant to Article II, Section 34
of said Rules and Regulations-Series 1.
We find that , except for his conclusion as to the respondent's
refusal to bargain and his interpretation of Section 9 (b) of the Act
in reference to the function of the committee of three, discussed
under "The Respondent 's Exceptions" below, and his findings in
respect to Ray O . Kelley, the evidence supports the Trial Examiner's
rulings, findings and conclusions . We find nothing in the respond-
ent's exceptions , or in the respondent 's argument at the hearing be-
fore this Board, requiring any other material alteration of his find-
ings and conclusions . Upon the entire record in the proceeding, we
make the following :
FINDINGS OF FACT
A. THE RESPONDENT AND ITS BUSINESS
I. The respondent , Cleveland Chair Company , is and has been
since 1915, a Tennessee corporation , having its principal office and
place of business in Cleveland , Tennessee . It employs 150 workers.
II. The respondent is engaged in the business of production, sale
and distribution of furniture , mainly chairs and rockers, and to
some extent , tables, sofas and living room furniture . About 85 to
90 per cent of its product consists of chairs and rockers.
III. The raw materials used by the respondent in its operations
include lumber, some leather, textile upholstering materials, hard-
ware, glue and the like. The lumber is chiefly gumwood; but mixed
hardwood , sycamore , elm and oak are also used . The textile up-
holsterings include cottons , "cotton bats ," velours, mohairs , tapes-
tries. The respondent also purchases coal.
IV. Lumber received at the plant by the respondent is unloaded
into its lumber yard ; it then goes through the dry kiln into the
factory, where it is ripped and cut into "dimension stock". This
goes through a planer and other machines and is gradually made
into parts ready to be "driven " together . These parts are then
896 NATIONAL LABOR RELATIONS BOARD
"driven" together and sent into the paint shop and "finished". Up-
holstery of the furniture follows and then wrapping and prepara-
tion for shipment.
V. The respondent's sales are made through salesmen, and by direct
advertising and mail orders, principally in the southeastern states,
and in Ohio and Indiana. Fifteen commission salesmen, located in
various states, are employed to solicit business. The respondent also
distributes advertising circulars every 30 days throughout its prin-
cipal territory, south of the Ohio River and East of the Mississippi.
The respondent snakes some sales west of the Mississippi to jobbers.
About 60 per cent of its product is sold and shipped directly to
retail stores; about 40% is sold and shipped to jobbers. The respond-
ent has exhibited at the Chicago, Illinois furniture mart and had an
exhibit there in July, 1935; a few sales were made there.
VI. The respondent's president, A. A. Milne, testified that all of
its raw materials are received f. o. b. Cleveland, Tennessee and that
its products are sold f. o. b. Cleveland, Tennessee. There is a pri-
vate siding at the plant; carriers place cars at this siding. Most of
the respondent's shipments are made by railroad and are loaded on
the cars by its employees. A few shipments are loaded at the Cleve-
land railroad depot. A few truck shipments are made; the trucks,
too, are loaded by the respondent's employees.
VII. Of the raw materials used by the respondent, about 66% 'is
purchased and transported to the plant from other states. From
January 1 to November 30, 1935, the respondent's purchases totalled
$135,597.12, of which $89,279.24 represents purchases in 20 other
states. The respondent's sales from December 1, 1934 to November
30, 1935, totalled $240,648.07. Of this amount, $165,829.28, or about
69%, represents sales of its product sold and transported to states
other than Tennessee. (Statements furnished by the respondent
under stipulations made at the hearing.)2
VIII. In the course of the respondent's operations, as described
above, there is a flow of large quantities of raw materials from many
states other than the State of Tennessee to its plant, and of large
amounts of completed furniture from its plant to many states other
than the State of Tennessee. These quantities and amounts comprise
the greater proportion of the raw materials and finished products
so caused to be transported by the respondent.
IX. The respondent's operations, as set forth above, constitute a
continuous flow of trade, traffic and commerce among the several
States.
2 At the commencement of the hearing , counsel for the respondent stipulated that about
75% of its raw materials is obtained in states other than Tennessee and 77% of its
finished product is distributed in states other than Tennessee, as based on "a reasonably
accurate calculation ." This stipulation was accepted by the Trial Examiner and made
the basis of his findings in that respect.
DECISIONS AND ORDERS
B. THE UNION
897
X. Local No. 1759 , United Brotherhood of Carpenters and Joiners,
affiliated with the American Federation of Labor, is a labor organi-
zation, organized among employees at the plant of the respondent
in June, 1935 . About 75 employees originally signed applications
for membership ; about 25 actually . became members.
C. THE RESPONDENT AND THE UNION-RELATIONS UNTIL JULY 17, 1935.
XI. The respondent 's reaction to the appearance of the union in
the plant was hostile. There is evidence of anti-union statements
by the respondent 's supervisory employees to union members and
officers between the time of its organization and July 17 , 1935. Bill
Johnson, the first president of the union , was discharged . Clifford
Samples, the union's second president , withdrew from the union
shortly after he had been told by Hyder, superintendent at the plant,,
that he could not "work here and belong to the union , that is out
of the question ." He is still employed at the plant and testified
under subpoena. The dismissal of several union members, among
them Floyd McMahan, one of the employees named in the complaint,
caused a strike by 25 or 30 employees in the plant on Jury 10, Up-
holsterers employed by the respondent were out on strike at the time-
Peter A. Carmichael , Commissioner of Conciliation , United States
Department of Labor, effected a settlement, evidenced by a memo-
randum dated July 17, over his signature . Under the settlement,
strikers were to be reinstated , with the exception of Bill Johnson,
the union 's first president . "Now, as to UNIONISM", the mem-
orandum states , "the company agrees or states it as its policy to
abide by the terms of the Wagner Labor Act, where such terms are
mandatory" . . . "It is fully understood and agreed that the
employees of the Cleveland Chair Company have the right to join
any labor union of their own choosing without jeopardy to their
jobs." (Exhibits R-4 and 5). McMahan, whose discharge appar-
ently was due to his union membership , was reinstated with the
others.
D. THE UNFAIR LABOR PRACTICES
XII. Wilson Brannan, the third president of the union and one
of its organizers , was employed by the respondent as a chair driver
until Tuesday , September 24, 1935. He had worked for the respond-
ent, with interruptions , for six or seven years , the last period for
26 months . When he arrived for work on that day he found his time
card had been "pulled" out of the rack by Stonecypher , his foreman,
and Hyder , superintendent of the plant . He was informed he was
discharged for violation of rule 4 of the respondent 's rules, printed
on the back of each time card.
898 NATIONAL LABOR RELATIONS BOARD
Rule 4 provides : "All employees being absent from work must
report promptly to the factory office, stating cause, and when they
will return to work. Any employee failing to comply with the rule
will lose their position ." There is testimony indicating that under
the rule, employees absent from work are required to send word to
the plant before noon of the same day explaining their absence, to
avoid dismissal , excepting unusual circumstances or employees living
out of the City of Cleveland . Brannan lives in town . On Friday,
September 13, he informed Stonecypher that he was ill ; that lie was
required to take medicine for "stomach and liver trouble "; and that
he wanted permission to be off in order to do so. Stonecypher told
him to take his medicine while at work , and told him to come to work
the next day , Saturday . He did so. On Monday , September 16, he
-did not appear at the plant for work, and did not report his excuse.
Stonecypher called at Brannan's house that afternoon . According to
his account , Brannan came out on the porch; he appeared to have
been drinking . Stonecypher testified he smelled liquor on Brannau's
breath. Stonecypher also testified that he warned Brannan that it
was against the rules "to stay out from work and not send in any
excuse . . . if you do it any more, it means your job." Brannan
denied that he had been drinking and testified lie was sick that day.
The following Monday, September 23, Brannan again failed to appear
at the plant for work. Stonecypher called at his house that morning,
and found him away. Brannan testified he was ill that day, too, and
had left the house for a short time when Stonecypher called. There
is evidence that two other employees of the respondent who were
absent from work on that day without notification were not dismissed,
and that several others had so absented themselves at other times
without dismissal . As to this, the respondent 's superintendent testi-
fied that such employees lived out of town, and that the rule was other-
wise enforced by the respondent . Cecil Walker, a fellow employee,
testified that Brannan had told Walker , in a conversation several
days before September 23, that "Stonecypher got on to me about that
(drinking) and said if I didn't quit it he was going to have to let inc
go." Brannan denied that he had such a conversation with Walker.
Although Brannan disclaimed knowledge of rule 4, and denied that
he had ever read the rules on the time card or had been told to do so,
there is testimony that the rules had been called to the attention of the
respondent 's employees.
XIII . On the afternoon of Tuesday , September 24, the day of
Brannan's discharge , a self-appointed committee of three union
members, employees of the respondent , called on Hyder to ask the
reason for Brannan's discharge . They were told he was dismissed
for violation of rule 4. At the regular weekly union meeting held
DECISIONS AND ORDERS 899
that night , a committee of three was appointed to investigate
Brannan's discharge and to bargain with the respondent "to put
him back to work" ( Exhibit B-9). Early the next morning, Sep-
tember 25 , the committee , Floyd McMahan , a car packer, Amos.
Gentry, an upholsterer , and Mit King 3, a chair driver , all employees
of the respondent , spoke to Hyder about reinstating Brannan, argu-
ing that other employees absent from work on the day Brannan
was out were not discharged . Hyder refused and the committee
requested a conference with Milne and returned to work. Milne
granted the interview , and about 8: 30 that morning , the comunittee-
men were summoned to Milne's office. Milne, Hyder, Stonecypher
and another foreman were there . The interview was very short. In
reply to Milne 's inquiry as to their business with him, McMahan
stated they were there to demand or insist that Brannan be put back
to work . Milne replied that they were trying to tell him how to run
his business ; that when they reached the point of contributing to
his payroll they might tell him what to do ; but until then they could
not. He then discharged all three.
XIV. Word of the discharge of the committee circulated while
the committeemen were getting their coats and caps and waiting
for their pay. About 20 employees of the respondent left their work
and followed the committeemen to the paymaster , in protest of their
discharge , and stood there in a group. Milne approached the group
and announced that they could go back to work ; that they were
being misled ; that if they walked out , he would fill their places,
and it would be a long time before they could work again. The
employees walked out on strike in protest of the discharge of the
committee members and picketed the plant.
XV. (a) Of the employees of the respondent who went out on
strike on September 25, as set forth above, Clarence Wamble, Arthur
Stephenson , Lake Pruitt, Earl Ledford, Boyd Herron, Curtis Gentry,
and Charles Gentry , were members of the union ; James Davenport
and Virgil Johnson were applicants for membership . Hubert Foulks,
a member of the union , then employed by the respondent as an up-
holsterer , joined the strikers later that morning when he heard of
the discharge of the committee . Although Roy O . Kelley, an appli-
cant for union membership, testified that he joined the strikers the
next day, his time card and endorsed pay check ( Exhibits R-10+
and 14 ) show that he worked and was paid for the week ending
Friday, September 27. Hyder, the respondent's superintendent, tes-
tified that on that day Kelley refused to remain on the job at the,
rate of 30 cents per hour.
9 King voluntarily replaced Carl Whaley, appointed to the committee at the union meet-
ing, on Whaley ' s plea that "he was afraid- to go, he could not talk . . . and that he
hadn't the nerve."
900 NATIONAL LABOR RELATIONS BOARD
(b) According to a statement furnished by the respondent under
a stipulation entered at the hearing, "since September 25, 1935. . .
we employed 29 people during this period and there were 46 that
we let go." This statement was furnished on December 31, 1935,
more than three weeks after the hearing. The period which the
,statement covers is not clear, and it does not appear whether the
"46 that we let go" includes the three committeemen and the 11
strikers. There is testimony on the record indicating that some of
the new employees have replaced the strikers.
E. CONCLUSIONS
XVI. Wilson, Brannan,. The evidence is insufficient to support
the allegations in the complaint. that Wilson Brannan was, on Sep-
tember 24, 1935, discharged for union membership and activity. He
was discharged for cause-absence from work without reporting as
required by rule 4. In reaching this conclusion we are not unmind-
ful of the respondent's open hostility to the union at its inception;
nor are we convinced that the respondent's earlier anti-union atti-
tude and hostility to the exercise by its employees of their right to self-
organization, collective bargaining and concerted activities for mu-
tual aid and protection was necessarily purged in the strike settle-
ment memorandum of July 17. The absence of evidence of hostile
conduct by the respondent towards the union during the three
months between that date and the day of Brannan's discharge would
not of its own accord be proof that the respondent was not moti-
vated by Brannan's union membership, office and activity in dis-
charging him. We are also mindful of the fact that Brannan was
the third president of the union, that the union's first president was
discharged, that its second president resigned to save his job, and
that it has been our experience that employers hostile to unions and
desirous of disrupting them particularly single out union leaders
and officials for discrimination. However, on the entire testimony,
especially the testimony of Cecil Walker set forth in finding XII
above, we are persuaded that Brannan was discharged for cause.
XVII. (a) Floyd McMahan, Amos Gentry and Mit King were dis-
.charged by the respondent's president, Milne, on September 25, 1935,
while engaged, as a union committee, in concerted activities of the
respondent's employees for mutual aid and protection. The repre-
sentative capacity of the committeemen was obvious. Milne knew
McMahan as a union man ; he had discharged him for union member-
ship and reinstated him in July as a result of the strike settlement in
which Carmichael participated (see finding XI above). Milne also
knew or must have known the existence of the union and the purpose
DECISIONS AND ORDERS 901
of the committee's desire to confer with him. It had been arranged
through Hyder; and be, Stonecypher and another foreman were in
Milne's office apparently by arrangement when the committeemen
were summoned to Milne's office. They came there with Milne's per-
mission. The negotiating technique employed by the committee may
have been crude; McMahan's statement may not have been nicely
diplomatic. The union was new, young, and its members and officers
inexperienced. But Milne, an experienced business man of many
years standing, instead of meeting the situation with a measure of
tact or making any effort to secure an expression from the committee
as to how they came to be demanding or insisting that Brannan be
reinstated, reacted immediately with an employer's heaviest weapon,
severance from employment, and, in his own words, for the reason
that the men were there interfering with his business. It is precisely
such discharges, among others, which Section 8, subdivision (3) of
the Act 4 was designed to preclude. In discharging the committee-
men, Mille was discharging union members, clearly and apparently
engaged in union activities and in concerted conduct for mutual aid
and protection, and was discharging them solely for that cause.
(b) The respondent's conduct in discharging the three committee-
men named in finding XVII (a) above, constitutes interference, re-
straint and coercion of its employees in the exercise of the rights guar-
anteed in Section 7 of the Act; and constitutes discrimination in
regard to hire and tenure of employment to discourage membership
in a labor organization, in this case the union.
XVIII..(a) Clarence Wamble, Arthur Stephenson, Lake Pruitt,
Earl Led ford, Boyd Herron, Curtis Gentry, Charles Gentry, James
Davenport, and Virgil Johnson, who participated in the strike on
September 25, were discharged by the respondent for engaging in
concerted activities for mutual aid and protection. Workers strug-
gling to realize their rights to self-organization, collective bargain-
ing and concerted activity for mutual aid and protection often find,
as they did here, that their only salvation in the face of a denial of
those rights lies in direct and immediate combined action. When
they gathered about the paymaster on that morning in protest of the
discharge of the committeemen, Milne, the respondent's president,
gave them the alternative of going back to work or leaving their jobs.
Again, Milne met concerted activities by these employees with the
employer's most potent weapon, severance of employment. The effect
of this conduct as discouragement of union membership is obvious.
+ Section 8, subdivision (3) of the Act provides, "It shall be an unfair labor practice for
an employer . By disciimiuating in regard to hire or tenure of employment or any
term or condition of employment to encoui age or discourage membership in any labor
organization. . . .
902 NATIONAL LABOR RELATIONS BOARD
(b) Hubert Foulks left his work and joined the strikers late that
morning, when he heard the committeemen were discharged. His
action was spontaneous, an assertion of his right to join in concerted
activities with other employees for mutual aid and protection in pro-
test against the respondent's conduct. There is nothing in the record
to indicate that the respondent does not consider him in the same
category as the nine employees listed in the preceding paragraph.
The severance of his employment and the respondent's subsequent
refusal to reinstate him was caused by his union membership and
activity.
(c) The respondent's conduct in severing the employment of the
strikers named in findings XVIII (a) and (b) above constitutes in-
terference, restraint and coercion of its employees in the exercise of
the rights guaranteed in Section 7 of the Act; and constitutes dis-
crimination in regard to hire and tenure of employment to discourage
membership in a labor organization, in this case the union.
XIX. Roy 0. Kelley. We find the evidence insufficient to support
the allegations in the complaint that Kelley participated in the strike
on September 25, thus taking part in concerted activities with other
employees of the respondent. The evidence indicates, rather, that he
worked until Friday, September 27, was paid for that week, and
refused to return to work at the hourly rate paid him by the re-
spondent.
XX. The evidence is insufficient to support the allegations of the
complaint (paragraph 11 and a portion of paragraph 1'2), that the
respondent has urged and warned its employees from becoming or
remaining members of the union; and there is no evidence to support
the allegations (paragraphs 6 and 14) that the respondent refused to
bargain with the union.
F. THE RESPONDENT'S CONDUCT IN RELATION TO INTERSTATE COMMERCE
XXI. (a) Discrimination by the respondent against its employees
who were members of the union occasioned the July strike in the plant.
The discharge of the three committeemen on September 25 caused the
strike in the respondent's plant on that day. Statistics compiled by
the Bureau of Labor Statistics, United States Department of Labor.
certified under the seal of the Department of Labor and the signa-
ture of the Secretary of Labor and the Commissioner of Labor
Statistics (made Exhibit B-11 by stipulation) show that in 1934,
in the furniture industry, of a total of 58 strikes involving 9,501
workers and 155,670 man-days of idleness, 33 were "organization
strikes" over questions of union recognition and discrimination
and involved 5,134 men and caused 95,040 man-days of idleness.
In 1935, from January through July, 20 out of 36 strikes were over
DECISIONS AND ORDERS 903
the issues of union recognition and discrimination, affected 6068 men
and caused 94,685 man-days of idleness. ,
(b) On the basis of experience in the respondent's plant and in
other plants, the respondent's conduct as set forth above in findings
XIII, XIV and XV, and XVII and XVIII above, has led and tends
to lead to labor disputes burdening and obstructing commerce and the-
free flow of commerce among the several States.
THE REMEDY
In order to repair the injury wrought the union by the respondent's
conduct in the discriminatory discharges of the three committeemen,
we shall order the respondent to offer them reinstatement to their
former positions with back pay. The situation of the strikers differs
only in that, although they were discriminatorily discharged in the
course of the exercise of concerted activities guaranteed them by the
Act, they left their work voluntarily. We shall order the respondent
to offer them reinstatement in the order of their seniority, and to that
end, if necessary, to displace employees hired since September 25,
1935, to take the places of strikers. Since the strike on September 25,
was caused by the respondent's discrimination in regard to hire and
tenure of employment and interference with the exercise by its em-
ployees of the rights guaranteed them in Section 7 of the Act, we
shall order the respondent to offer them reinstatement, as set forth
above, in order to restore the status quo existing in the plant on that
date.'
THE RESPONDENT'S EXCEPTIONS
The respondent's exceptions to the Trial Examiner's intermediate
report, in substance, advance the respondent's apparent theory of the
case, that the respondent, in its business, is not engaged in interstate
commerce, and that its conduct in discharging the three committee-
men and the strikers, was not in violation of the Act because the union
was not chosen to represent employees for the purposes of collective-
bargaining, and for the reason that these employees were not engaged
in concerted activities for mutual aid or protection. The respondent
also excepts to the Trial Examiner's denial of its motion to dismiss
the complaint on the ground that the Act is unconstitutional, and
because of his failure to rule on several of its motions to strike testi-
mony and to dismiss the complaint.
We have found that the evidence establishes that the respondent in
its business is engaged in interstate commerce. See findings I to VIII
6 See Matter of Columbian Enameling and Stamping Company, Case No. C-14; Matter
of Rabhor Company, Inc., Case No. C-29; Matter of Brown Shoe Company, Inc., Case
No. C-20.
97571-36--vol. 1 58
004 NATIONAL LABOR RELATIONS BOARD
above. The respondent's motion to dismiss the complaint on the
ground of the unconstitutionality of the Act does not merit consid-
eration at this stage of the proceeding. We have also, in the state-
ment of the case above, ruled on motions on which the Trial Ex-
aminer reserved decision.
The exceptions stressed by the respondent at the hearing before the
Board concern its theory that since the union was not representing a
majority of its employees, the three committeemen were exercising no
right under the Act in their interview with Milne, and he was under
no duty under the Act not to discharge them. For the same reason,
the exceptions argue, the strikers were exercising no right under the
Act in going out on strike. The respondent, apparently, has confused
the provisions of the Act concerning the majority rule in the choice of
representatives for collective bargaining,6 with the provisions con-
cerning interference, restraint, and coercion and discrimination. It
may have been misled in this respect by the Trial Examiner's state-
ment in the intermediate report that the three committeemen had
runctioned as a "committee appointed by the union to present a
grievance to their employer within the meaning of the proviso clause
of Section 9, subsection (a) of the . . . Act".7 The Trial Examiner
erred in including this interpretation of the committee's function as
an element in the case. The provisions of the Act making interfer-
ence, restraint and coercion of employees and discrimination against
them unfair labor practices are operative wholly irrespective of the
majority rule provisions regarding collective bargaining.
In view of the findings and conclusions in this decision, the re-
spondent's other exceptions to the intermediate report do not warrant
further discussion.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board finds and concludes as a
matter of law :
1. Local No. 1759, United Brotherhood of Carpenters and Joiners
of America, is a labor organization, within the meaning of Section 2,
subdivision (5) of the Act.
6 Section 8, subdivision (5) of the Act provides. "It shall be an unfair labor practice
for an employer . . . to refuse to bargain collectively with the representatives of his
?mployees, subject to the provisions of Section 9(a) "
Section 9 (a) of the Act provides . "Representatives designated or selected for the pur-
poses of collective bargaining by the majority of the employees in a udit appropriate for
such purposes, shall be the exclusive representatives of all the employees in such unit
for the purposes of collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment. Provided, That any individual employee or
a group of employees shall have, the right at any time to present grievances to their
employer."
7 For the text of the proviso clause , see footnote 6.
DECISIONS AND ORDERS 905
2. The respondent, by discharging Floyd McMahan, Amos Gentry,
Mit King, Clarence Wamble, Arthur Stephenson, Lake Pruitt, Earl
Ledford, Boyd Herron, Curtis Gentry, Charles Gentry, James Dav-
enport, Virgil Johnson, and Hubert Foulks, and each of them, thus
discriminating in regard to hire and tenure of employment to dis-
courage membership in a labor organization, has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8,
subdivision (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, has engaged and is engaging in unfair labor practices, within
the meaning of Section 8, subdivision (1), of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions (6)
and (7) of the Act.
ORDER
On the basis of the findings and conclusions of law, and pursuant to
Section 10, subdivision (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Cleveland Chair Company, and its officers and agents, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing or coercing its employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act;
2. Cease and desist from in any manner discouraging membership
in Local No. 1759, United Brotherhood of Carpenters and Joiners of
America, or any other labor organization, by discrimination in regard
to hire or tenure of employment or any term or condition of employ-
ment, or by threats of such discrimination;
3. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Floyd McMahan, Amos Gentry and Mit King, and
each of then, immediate and full reinstatement, respectively, to their
former positions, without prejudice to their seniority or other rights
and privileges previously enjoyed;
(b) Make whole the said Floyd McMahan, Amos Gentry and Mit
Kung, and each of them, for any losses of pay they have suffered by
reason of their discharge by payment to each of them, respectively,
of a sum of money equal to that which each of them would normally
have earned as wages during the period from the date of the severance
906 NATIONAL LABOR RELATIONS BOARD
of his employment to the date of such offer of reinstatement, computed
at the wage rate each was paid at the time of such discharge, less any
amounts, if any, which each earned during such period;
(c) Offer to Clarence Wamble, Arthur Stephenson, Lake Pruitt,
Earl Ledford, Boyd Herron, Curtis Gentry, Charles Gentry, James
Davenport, Virgil Johnson and Hubert Foulks, and each of them,
immediate reinstatement, respectively, to their former positions, in all
cases in which the respondent has since September 25, 1935, employed
others to do the work of these employees, and in all other cases place
such employees on a preferential list to be offered employment in the
order of their seniority, respectively, as and when their services are
needed;
(d) Post notices in conspicuous places in all departments of the
plant and near the time clock, stating (1) that it will cease and desist
as aforesaid; and (2) that such notices will remain posted for a period
of at least thirty (30) consecutive days from the date of posting;
And it is further ordered that,
5. The complaint be, and it hereby is, dismissed with respect to the
discharge of Wilson Brannan and Ray O. Kelley, and with respect
to the allegations in the complaint referred to in finding XX.