Colony Furniture Co.

National Labor Relations Board - Board Decisions

Jan 11, 1966

156 N.L.R.B. 728 (N.L.R.B. 1966)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I find that Respondent did not breach the settlement agreement by engaging in
subsequent unlawful conduct , I shall recommend that the settlement agreement be
reinstated without passing upon the conduct which occurred prior thereto . Conroe
Creosoting Company, 149 NLRB 1174, and see cases cited in section A, supra.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSION OF LAW
Respondent has not engaged in unfair labor practices as alleged in the complaint.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its entirety and that the settle-
ment agreement in Case No. 14-CA-3470 be reinstated.
Colony Furniture Co. and United Furniture Workers of America,
AFL-CIO. Case No. 26-CA-1937. January 11, 1966
DECISION AND ORDER
On September 17, 1965, Trial Examiner James A. Shaw issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
not engaged in certain other alleged unfair labor practices and recom-
mended dismissal thereof. The General Counsel filed exceptions to
the Decision and a supporting brief, and the Respondent filed cross-
exceptions and a brief in support thereof and in opposition to General
Counsel's exceptions.
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 case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions
and modifications."
1. Although the Trial Examiner credited the testimony of employee
Stenhouse as to the conversation he heard between employee Charles
and Plant Foreman Davis and found Davis' statement to Charles
'Under the established policy not to overrule a Trial Examiner's credibility findings
unless a clear preponderance of all the relevant evidence convinces us that they were in-
correct, we find no basis for disturbing the credibility findings made by the Trial Examiner
in this case . Standard Dry Wall Products, Inc., 91 NLRB 844, enfd. 188 F. 2d 362 (C.A. 3).
156 NLRB No. 71.
COLONY FURNITURE CO. 729
violative of Section 8(a) (1), the Trial Examiner failed to find that
part of Davis' statement constituted a threat of discharge, or to order
a remedy therefor. We find that the statement by Davis, ". . . if they
[the Respondent] ever heard anything about union talk they'd [the
Respondent] have to let us [the employees] go," was a threat of dis-
charge in violation of Section 8 (a) (1) ; and we shall amend the Order
and notice accordingly.
2. The Trial Examiner credited emyployee Mitchell's testimony as
to what Plant Superintendent Dallas Hendrix had stated to him, and
found the statement violative of Section 8(a) (1) as constituting sug-
gested surveillance of the union activities of his coworkers in the plant.
However, the Trial Examiner failed to order a remedy therefore.
Accordingly, we shall amend the Order and notice to proscribe such
unlawful conduct.
The credited testimony as to this conversation between Mitchell
and Hendrix also shows that, immediately after Hendrix asked Mit-
chell how he felt about the Union, Hendrix told Mitchell, You know
we got plans for you in the near future." The Trial Examiner, while
finding that Hendrix' statement at this time violated Section 8 (a) (1)
otherwise, failed to find that such statements also included an unlaw-
ful promise of benefit. We find that, in the context in which stated,
immediately following the unlawful interrogation of Mitchell as to
his feelings about the Union, the quoted statement by Hendrix con-
stituted a promise of benefit if Mitchell would renounce the Union or
refrain from aiding or assisting the Union, in violation of Section
8(a) (1). Accordingly, we shall amend the Order and notice to
proscribe this type of unlawful conduct.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Add the following as new paragraphs 1(c), (d), and (e) and
reletter the present 1(c) as 1(f) :
[" (c) Threatening to discharge its employees for their activity
in behalf of the United Furniture Workers of America, AFL-CIO, or
any other labor organization, in violation of Section 8(a) (1) of the
Act."
[" (d) Suggesting to its employees that they engage in surveillance
of the union activities of their coworkers, in violation of Section
8(a) (1) of the Act."
[" (e) Promising benefits to its employees if they renounce or
refrain from aiding or assisting the United Furniture Workers of
America, AFL-CIO, or any other labor organization, in violation of
Section 8(a) (1)."
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[2. Add the following as the third, fourth, and fifth indented para-
graphs to the notice attached to the Trial Examiner's Decision:
[WE WILL NOT threaten to discharge our employees for their
activity in behalf of United Furniture Workers of America,
AFL-CIO, or any other labor organization.
[117E, WILL NOT suggest that our employees engage in surveil-
lance of union activities of their coworkers.
[WE WILL NOT promise benefits to our employees if they renounce
or refrain from aiding or assisting United Furniture Workers of
America, AFL-CIO, or any other labor organization.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, under Section 10(b) of the National Labor Relations Act, as
amended, was heard before Trial Examiner James A. Shaw in Little Rock, Arkansas,
on January 25 and 26, 1965, pursuant to due notice. The complaint, which issued on
October 30, 1964, on a second amended charge dated October 27, 1964, alleged that
Colony Furniture Co , herein called the Respondent, engaged in unfair labor prac-
tices proscribed by Section 8 (a) (1) and (3) of the National Labor Relations Act, as
amended The Respondent filed an answer to the complaint on November 6, 1964,
in which it admitted certain jurisdictional allegations in the complaint, and specifi-
cally denied the commission of any of the alleged unfair labor practices. The parties
were represented by counsel and participated fully in the hearing. The parties also
filed briefs which were received by me on or about March 8, 1965, and they have been
duly considered in making my findings herein.
On or about March 3, 1965, counsel for the Respondent filed a motion to correct
the record herein, which is hereby granted in the absence of objections by either the
General Counsel or the Charging Party.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following-
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The complaint alleges and the answer admits that "Respondent is now, and has
been at all times material herein, a business enterprise with plants in various States,
including California and New Jersey, and at Little Rock, Arkansas, the only location
involved herein, where it is engaged in the manufacture, sale, and shipment of furni-
ture products"; "During the past twelve months, in the course and conduct of its
business, Respondent received at its Little Rock, Arkansas, plant, goods and materials
valued in excess of $50,000, directly from points located outside the State of Arkan-
sas, and during the same period of time, sold and shipped from its Little Rock, Arkan-
sas, plant, directly to points located outside the State of Arkansas, products valued
in excess of $50,000."
In the circumstances described above, I find that the "Respondent is now, and has
been at all times material herein, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act." 1
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union, United Furniture Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
As indicated above, we are primarily concerned herein with certain alleged conduct
by the following persons, who at all times material herein were agents and supervisory
1 Quotations are from the complaint.
COLONY FURNITURE CO. 731
employees of the Respondent: Plant Foreman J C. Davis; Plant Superintendent Dallas
Hendrix; and Plant Manager Frank Whittle, that was violative of Section 8(a)(1)
and (3) of the Act, as amended.
The alleged violations of the Act stemmed from the efforts of representatives of the
Charging Union to organize the employees of the Respondent during the months of
August and September 1964. As a consequence of its efforts in this regard certain
of the Respondent's employees became active on its behalf among their coworkers,
particularly L. C. Charles, a "truck loader."
Charles was discharged by the Respondent on October 5, 1964, under circum-
stances that will be thoroughly discussed below. Suffice it to say at this stage of the
Decision, that the discharge of Charles was the predicate for the filing of the amended
charge upon which the complaint herein was issued by the General Counsel on Octo-
ber 30, 1964.
As indicated above, the position of the General Counsel in the case-at-hand is that
Charles was discharged by the Respondent on October 5, 1964, because of his activi-
ties for and on behalf of the Charging Union, and consequently was violative of Sec-
tion 8(a)(3) and (1) of the Act; and that his position in this regard is supported
by certain conduct of its supervisory employees that was independently violative of
Section 8(a)(1) of the Act, in that it interfered with, restrained, or coerced its
employees in the exercise of the rights guaranteed them in Section 7 of the Act.
The Respondent's position is that Charles was discharged for causes that were
within its prerogative as an employer and were not violative of Section 8(a)(3) and
(1) of the Act, and that it did not engage in the alleged independent violations of
Section 8(a) (1) of the Act set forth specifically in the complaint herein.
In the final analysis the issues herein may be summed up as follows: Did the
Respondent engage in conduct violative of Section 8 (a) (3) and (1) of the Act? The
General Counsel contends that it did, and the Respondent denies in toto his conten-
tion in this regard. Though the foregoing may well sum up the issues herein legalis-
tically, it does not follow that they constituted the primary problem that I have been
confronted with in disposing of the issues herein, which quite frankly was the credi-
bility of the witnesses who testified before me at the hearing herein. While it is
true that the resolution of this particular issue is, at times, most difficult and annoying
to me, nevertheless, in the case-at-hand it is more so for reasons which should be
obvious to those who have occasion to peruse the transcript of the record herein.2
B. The alleged violations of Section 8(a) (3) and (1)
Some reference should be made at this point to the nature of the Respondent's busi-
ness at its Little Rock, Arkansas, plant, such as its complement of employees and its
departmental setup, for example, its truckloading department where the incidents
that we are primarily concerned with herein occurred.
The Respondent at all times material herein had approximately 100 employees at
its Little Rock plant. They were assigned to various departments such as sanding,
where its products such as dressers, night stands, and the like were sanded by employ-
ees who worked on a "production line" system, and the trucking department, where
a considerable portion of its finished products were loaded on trucks for shipment to
its customers. As indicated above, we are primarily concerned herein with the
employees who worked in this department
The record shows that at all times material herein, the Respondent had around
12 employees in the truck department, which in turn was divided into 2 sections, one
of which was the L.T.L. section which loaded its products in privately owned trucks,
and the regular section which handled the loading of its products on its own trucks
and/or trailers for delivery to its customers The supervisor in charge of the depart-
ment, at all times material, was J. C. Davis. Suffice it to say at this point that his
role in the incidents with which we are concerned herein was of major importance.
The following employees worked under Davis' supervision in the truck department:
L. C Charles, One Stenhouse, and Orville Huddleston, all of whom testified at the
hearing herein in support of the General Counsel's case-in-chief.
The Union started its organizational campaign among the Respondent's employees
sometime in July 1964 by the distribution of handbills outside its plant. Though the
record herein is most vague in this regard, I am convinced that its major efforts to
organize the Respondent's employees were from around the middle of August to the
latter part of September 1964. During this period the Union held several meetings
in North Little Rock and at Charles' home, 1418 Ringo Street, Little Rock, Arkansas.
2 See infra for examples of such worrisome and frustrating incidents in the cease-at-
hand.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During this same period the Union also passed out to Respondent's employees appli-
cation for membership cards, which the record indicates were signed and returned
to its representative One of those who signed a card during this period was Charles.
That the Respondent was well aware of the Union's activities among its employees
is well illustrated in the testimony of Davis, Hendrix, and Whittle, which will likewise
be referred to below in my disposition of the case as to Charles. Suffice it to say at
this point that the original charge against the Respondent was filed on September 18
and served upon it on September 22, 1964.3
It was in the light of the foregoing that L. C. Charles was discharged by the
Respondent on October 5, 1964.
The case as to Charles has perturbed me considerably for reasons that will be
apparent to all concerned hereinafter. Suffice it to say at this point that the credibility
issue that I referred to at the onset of my Decision in the case-at-hand will now be
apparent to all concerned.
The incidents that led up to the discharge of Charles on October 5, 1964, started
on Friday evening, October 2, 1964, at which time J. C. Davis, foreman in charge of
the truckloading division, told several members of his group to report for work at
7 a.m. on Saturday, October 3, 1964. Among those he requested were Charles, Sten-
house, and Huddleston, all of whom reported for work as requested but Charles. At
this point it should be pointed out that the employees are required to check in and out
of the plant on a timeclock that is located near one of the entrances to the plant.
What transpired at the timeclock on October 3, 1964, was, unquestionably, the most
troublesome issue that was litigated at the hearing, and the "consumer" of page after
page of the record herein, primarily because of the testimony regarding the "mechani-
cal operation" of the clock and the carlessness of an unknown employee at checkout
time who neglected to move the "lever" that regulates the "in" and " out" mechanism
inside the clock and transfers the time in print to the timecards.4
On October 3, 1964, around 7:15 a.m., Davis, as was his custom, went by the
timeclock to see if all of the employees under his supervision had reported to work.
He knew their timecard numbers and upon checking the card rack saw that all of
their cards had been pulled out and placed in the "In" rack in their proper slots. He
then went back to the loading dock where they reported each morning and found
that all were present except Charles. Shortly thereafter, he went back to the time-
clock and found that Charles' card had been punched in What transpired thereafter
is best told in the following excerpt from Davis' testimony:
Q. (By Mr. JOHNS.) Did you advise Mr. Whittle of Mr. Charles' absence?
A. I did.
Q. Tell me what happened in respect to that.
A. After I went to the shipping department and found that Charles was not
present and his card had been clocked I taken it to Mr. Whittle's attention at
approximately 8:15 or 8:20 and asked him what should we do about it, that
Charles wasn't there and that his card had been clocked in.
Q. What did Mr. Whittle say?
A. He said, well, had he called in or did anyone know of the reason or had
he sent word by anyone and I said no.
And he said, "Well, put it back in the rack. It might have just been a mistake
by someone," and he would check with me later on in the morning about it.
Q. Did you check the rack again after the employees had checked out on
Saturday?
A. Yes, sir, I did.
Q. Did you find Charles' card checked out?
A. Yes, sir, I did.
Q. What did you do about it?
A. I taken it in to Mr. Whittle's office to his attention.
After the employees under his supervision had checked out at 12 noon , Davis went
back to the timeclock and pulled out Charles' card and found that it had been checked
out at 12, and that there was also an "overpunch" on the "time in" place on his card.5
He pulled the card out of the rack and went back to Whittle's office and showed him
the card. After Whittle saw the card he said to Davis, "Let's go look at the cards."
S See General Counsel's Exhibit No. 1-a.
4 Further reference to the timecards will be made in that section of my Decision that
is concerned with the incident that led up to the discharge of Charles See Respondent's
Exhibits Nos. 1, 2, 3, 4, and 5 for a picture of the timecards and the "in" and "out"
spaces and punches.
5 See Respondent's Exhibit No. 3 for the "overpunch" opposite the "2" on the card.
COLONY FURNITURE CO. 733
When they arrived at the timeclock, Whittle asked him who usually worked with
Charles on the dock, which was their regular working place, and he told him that
there were "two guys," Huddleston and Stenhouse. What transpired thereafter is
best told in the following excerpt from Davis' testimony in this regard: 6
Q. And then what did you or Mr. Whittle do after you mentioned these names?
A. We checked these cards. We pulled them from the rack and checked them
in order to see that they had been punched-I mean, in other words, to check the
cards to see if they had been punched alike, after we found out that Charles had
been over-punched when I brought it in the second time, we checked the cards
of Huddleston and Stenhouse first, because they work in the immediate depart-
ment of his. We found that Huddleston wasn't over-punched and Stenhouse was.
So, then, we checked the whole rack, me and him together. We checked the
rack together and we didn't find no other card at that moment that was over-
punched.
Q. What was then done?
A. I asked Mr. Whittle what should we do about the case, that it looked kind
of suspicious that something was wrong since they had been clocked in and out-
well, clocked out twice, actually, that someone had evidently made a mistake or
not made no mistake, but evidently clocked it intentionally, and he suggested we
put it back in the rack and check and see if L. C. would give any reason for
having-if he would bring it to my attention Monday morning.
What transpired on Monday morning, October 5, 1964, is, in my consideration,
the most controversial issue that we are confronted with, primarily because of the
suspicion that it raises regarding the credibility of Stenhouse and Huddleston, who
testified at.the hearing in support of the General Counsel's case-in-chief.
As indicated above, Whittle and Davis checked the cards of Huddleston and Sten-
house first and found that of the two only Stenhouse's was overpunched. Singularly
enough, his overpunch and the "correct" punchout time on Stenhouse's card and
Charles' were identical, which is clearly evidenced on their cards which were admitted
in evidence at the hearing. An examination thereof shows that both cards are
checked out on the No. 2 line at 12 o'clock.? At the time the above-described check
of the timecards was made all of the employees had checked out and no further inves-
tigation of the incident was made until Monday, October 5, 1964. What transpired
at that time will be thoroughly discussed below. Here again I am convinced that the
evidence in this regard is best portrayed in the language of the witness. Consequently,
the following pertinent testimony from Davis' testimony in this regard follows below:
Q. What happened on Monday in respect to Charles?
A. Monday morning at work time I came in and Charles never reported to
me his card had been clocked in and I reported to Mr. Whittle that his card
had been clocked in and he asked me at that time had Charles reported to me and
said anything about his card being clocked, or give me any excuse for why he
wasn't present Saturday and my answer to him was no, that he hadn't.
Q. What did Mr. Whittle say to that?
A. He said to replace the card in the rack and he would check with me later
on in the morning and see if Charles-maybe he hadn't had time to see me or
hadn't-to give him a little more time to come to me and tell me about his card
or either tell me about his absence.
T Ri