Colony Furniture Co.

National Labor Relations Board - Board Decisions

Dec 6, 1967

168 N.L.R.B. 725 (N.L.R.B. 1967)

COLONY FURNITURE COMPANY
Colony Furniture Company and Millmen 's Union
No., 550 , United Brotherhood of Carpenters &
Joiners of America, AFL-CIO. Case
20-CA-4352
December 6, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 8, 1967, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding the Respondent, Colony Furni-
ture Company, had engaged in and was engaging in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, 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 prac-
tices and recommended dismissal of those allega-
tions of the complaint. Thereafter, the Respondent
and General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified
below:
1. Particularly in the light of Davis' later unlaw-
ful discharge, we agree with the Trial Examiner that
supervisor Foster's statement to Davis, that plant
manager McKee was "mad" because Davis went to
the Union instead of going to McKee concerning
vacation pay, was'coercive and thus a violation of
Section 8(a)(1).
2. The Trial Examiner found no independent
violation of Section 8(a)(1) in Supervisor Foster's
statement to Davis that Davis was being retired
"On account of the Conciliator coming over." We
find merit in the General Counsel's exception on
this point. The statement is of course relevant as
showing Respondent's "motive" in Davis' forced
retirement, as found by the Trial Examiner. Beyond
that, we find the statement is also an independent
violation of 8(a)(1) in that it contained implied
threats of reprisals against employees for engaging
in protected activity in filing grievances which
might require the presence of a conciliator.
725
3. We agree with the Trial Examiner's conclu-
sion that, in the circumstances of this case, Respond-
ent's forced retirement of Davis for an unlawful
reason did not constitute the unilateral institution of
a retirement "plan," in violation of Section 8(a)(5).
However, in accordance with the General Coun-
sel's exception, we take note that the General
Counsel's "concession" concerned only the limited
nature of the so-called new working condition, and
not a concession that Respondent did not violate
8(a)(5).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Colony Furniture Company , Richmond, California,
its officers , agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order , as so modified:
1. Substitute the following for paragraph 1(a) of
the Recommended Order:
"(a) Discouraging membership in Millmen's
Union No . 550, United Brotherhood of Carpenters
& Joiners of America , AFL-CIO, or any other
labor organization , or by discouraging members
from exercising their right to go to the Union to
have their grievances handled , or by discharging or
in any other manner unlawfully discriminating
against any of its employees in regard to hire or
tenure of employment , or any term or condition of
employment."
2. Change paragraph 1(b) of the Recommended
Order to 1(c) and add the following as paragraph
I(b):
"(b) Indicating its displeasure to employees
when they go to the Union to have their grievances
handled, and telling employees it has discharged or
retired them for this reason."
3. Delete the third indented paragraph of the
Appendix and replace it with:
WE WILL NOT indicate our displeasure to
employees when they go to the Union to have
their grievances handled and will not tell them
we have discharged or retired them for this
reason.
4. In the fourth indented paragraph of the Ap-
pendix , delete the word "again" from between
"Union" and the period.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: This proceeding
brought under Section 10(b) of the National Labor Rela-
tions Act, as amended, herein called the Act, was heard,
168 NLRB No. 92
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon due notice, before David E. Davis, the duly
designated Trial Examiner, on June 13, 1967.
The original charge, filed on December 30, 1966, by
Millmen's Union No. 550, United Brotherhood of Car-
penters & Joiners of America, AFL-CIO, herein called
the Union, was served on the same date on Colony Furni-
ture Company, herein called Respondent. The Union
filed an amended charge on March 21, 1966, and a copy
thereof was served on Respondent on the same date. The
General Counsel of the National Labor Relations Board,
herein called the Board, issued a complaint on April 3,
1967, and served a copy thereof on Respondent on April
4, 1967, and on Respondent's counsel on April 6, 1967.
The complaint alleged that Respondent violated Section
8(a)(1), (3), and (5) of the Act.
The issues may be summarized as follows:
1. Did Respondent, in violation of Section 8(a)(1) of
the Act, interfere with, coerce, or inhibit protected union
activity or threaten an employee with loss of benefits and
discharge because of his union activities?
2. Did Respondent, on or about November 23, 1966,
discharge Ben Davis because of his union activity in
violation of Section 8(a)(1) and (3)?
3. Did Respondent, without prior notification or con-
sultation with the Union, unilaterally institute a retire-
ment policy in violation of Section 8(a)(5) of the Act?
Respondent in its answer denied the commission of any
unfair labor practices.
Upon the entire record and after consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is engaged in the manufacture, sale, and
distribution of furniture products with its principal office
at Linden, New Jersey, and plants located in Arkansas,
New Jersey, and California. The Richmond, California,
plant is the only plant involved in these proceedings. Dur-
ing the past year, Respondent, in the course and conduct
of its business, received at the Richmond, California,
plant materials valued in excess of $50,000 directly from
points located outside the State of California. During the
same period, Respondent sold and shipped from the
Richmond, California, plant, products valued in excess of
$50,000 directly to plants located outside the State of
California.
The complaint alleges, the answer admits, and I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. I find that it
would effectuate the purposes of the Act to assert ju-
risdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Preliminary Findings
The complaint alleges, the answer admits, and I find
that pursuant to an election on December 7, 1964, the
Union was certified by the Regional Director of Region
20 as the exclusive collective-bargaining representative
in the following appropriate unit:
All production, maintenance, and warehouse em-
ployees of the Employer at its Richmond, California,
plant, excluding office clerical employees,
truckdrivers, guards, and supervisors as defined in
the Act.
The complaint alleges, the answer admits, and I find
that on or about October 28, 1965, Respondent and the
Union executed a collective-bargaining agreement'
effective November 1, 1965, through October 31, 1967,
covering the employees in the above-described unit.
The evidence disclosed, and I find, that, prior to the ex-
ecution of the collective-bargaining agreement, the Union
engaged in a strike at the Richmond, California, plant,
which lasted for 14 weeks.
B. The 8(a)(1) Allegations
The complaint alleges that James L. Foster, Jr., the im-
mediate supervisor of employee Ben Davis , threatened
Davis in October 1966 with loss of benefits unless he
abandoned his union activities and ceased filing
grievances with the Union . The evidence presented con-
cerning this allegation involved testimony by Davis that
Foster told him in October 1966 that Claud E. McKee,
general manager of the Richmond , California , plant, was
mad because Davis went to the Union instead of going to
McKee concerning vacation pay claimed by Davis.
It was also alleged that Foster , about November 1966,
threatened Davis with discharge or forced retirement
because of his union activity. Davis testified , concerning
this incident, that in November 1966, after McKee told
him that he would be "retired" on November 23, 1966,
he asked Foster why they were going to retire him and
Foster replied , "On account of the Conciliator coming
over."
As I fully credit Davis' testimony and do not credit
Foster's denials, I find that both incidents occurred as
Davis described them . However, I find that the second
incident did not constitute a threat of discharge but rather
was an explanation for Davis ' subsequent discharge or
"retirement." As such , it is relevant evidence with regard
to Davis' discharge but does not warrant a finding of an
independent violation of Section 8(a)(1). I find the first in-
cident to constitute a violation of Section 8(a)(1), as
notice to an employee by a supervisor that the top operat-
ing official in a plant is "mad" because the employee filed
a grievance with his union , the lawfully designated
representative , tends to inhibit an employee from exercis-
ing his guaranteed rights in Section 7 of the Act. Ac-
cordingly , I find that Respondent , by reason of Foster's
remark on October 1966, engaged in conduct violative of
Section 8(a)(1) of the Act.
C. 8(a)(3) - The Discharge or "Retirement" of Davis
Ben Davis was employed by Respondent from 1955 to
December 27, 1965, when he was discharged for insubor-
dination. During the 1965 strike, referred to above, Davis
did not respect the picket line and worked as a "scab," a
term applied to him by Respondent's counsel. The
evidence disclosed that Davis strenuously objected to the
Union. When the collective-bargaining agreement of Oc-
I Resp Exh. 1.
COLONY FURNITURE COMPANY 727
tober 28, 1965, was executed, containing a membership
requirement, Davis refused to pay the initiation fee
required for joining the Union. McKee paid the initiation
fee for Davis, apparently because he did not wish to lose
one whom he considered to be a valuable employee.
On December 27, 1965, Davis, under the impression
that some vacation pay was due him, inquired from
McKee, "What happened to our vacation pay." McKee
at the time was in Foster's office discussing a matter with
Foster and replied, "Here's the phone. Call back East."
(Linden, New Jersey, the home office.)
Davis then said, "They weren't the ones that told me.
You did." McKee then said, "If you are going to talk to
me, you come into the office." Davis, whereupon replied,
"I will talk to you wherever and whenever I please." Ac-
cording to Davis, it was at this point that Davis was
discharged. Davis testified that they then went into
McKee's office where further angry words were
exchanged. Davis, in effect, accused McKee not only of
pocketing the vacation money but also a certain sum that
Davis' daughter-in-law had paid for a piece of furniture
earlier that month. Davis testified that the discharge came
before this accusation was made. McKee and the office
clerk, Elizabeth Browne, testified that the discharge came
after Davis, in effect, accused McKee of appropriating
the money paid for the furniture. I need not, for the pur-
pose of this case, resolve the precise question of credibili-
ty involved in this incident. Neither is it necessary that a
determination be made whether the discharge was
justified. It is sufficient to acknowledge the fact, as a
matter of background, that Davis was discharged on
December 27, 1965, as a result of the above altercation
and that the Union, despite Davis' former antagonistic at-
titude toward it, interceded in his behalf.
Clyde Johnson, business representative of the Union
from 1961 to October 1, 1966, was notified by the shop
steward, Armida Ramirez, that Davis had been
discharged. Within the following week, Johnson called on
McKee and was told by McKee that he would not reem-
ploy Davis. Johnson, thereafter, pursuant to the terms of
the collective-bargaining agreement, called the State Con-
ciliation Service, stating that he wished to pursue the con-
tact grievance machinery further by having a conciliator
discuss the matter with Respondent. Commissioner
Marshall of the State Conciliation Service, who was as-
signed to the matter, subsequently called Johnson and
said that Johnson should talk to McKee and that the
matter might be straightened out. Johnson did go to see
McKee the latter part of January 1966, and was informed
by McKee that he would be willing to take Davis back
provided that Davis did not talk to McKee and that the
shop steward and Davis would refrain from discussing his
return to work with other employees. Thereafter, Davis
returned to work on February 4, 1966. Johnson further
testified that the question of backpay for Davis' unem-
ployment period was not raised or made an issue because
Davis was satisfied to have his job back. It was Johnson's
understanding that Davis in other respects was returning
as a regular employee. The evidence showed that Foster
and Davis were very close friends and that Foster, on
several occasions, had spoken to McKee about reemploy-
ing Davis, explaining that Davis was extremely sorry for
his accusations against McKee. Undoubtedly Foster's in-
tercession was a contributing factor in Davis' reemploy-
ment.
McKee testified that he talked with Commissioner
Marshall about Davis and told Marshall that he felt very
badly about the discharge of Davis because of Davis'
long employment by Respondent; that Foster had also in-
terceded for Davis; that if Marshall could find a way for
him to take Davis back, "... without it being used against
me, as far as the Union bringing him back, or I was forced
to bring him back ...." McKee also stated that in his
conversation with Marshall he attached these conditions
to Davis' return: (1) Davis would return as a new em-
ployee without seniority; (2) Davis would retire when he
reached the age of 65; and (3) Davis would suffer no cut
in pay. Subsequently McKee received a call from
Marshall saying that he had discussed the matter with
Johnson and fixed a time for Davis' return.
Following the above, Foster called Davis to come to
the office and was met by McKee, John McCurry, the
plant superintendent, and Foster. McKee acting as
spokesman, according to his testimony, told Davis, "you
are going back to work, Mr. Davis. You will have to go
back to work as a new employee, losing your seniority.
You will be retired at 65 but you will work at the same
rate of pay that you made when you were terminated.
This you have earned." McKee also testified that he told
Davis that, if he had anything to say to McKee, he was to
direct his statements through Foster because he and
Davis seemed to have a personality clash. McKee added
that this was the only time that he had spoken to Davis
since Davis returned. McCurry confirmed McKee's
testimony with regard to the conditions attached to the
reemployment of Davis. Foster, on direct examination,
also confirmed this testimony but on cross-examination
serious doubts were cast on the veracity of his direct
testimony. Davis, on the other hand, testified he was told
he was coming back to work and things would be just the
same as they were before his discharge.
I credit Johnson's and Davis' testimony in this regard.
I view the elaboration by McKee, McCurry, and Foster
of the conditions attached to Davis' reemployment as a
complete fabrication and an afterthought designed to
bolster the defense against the allegations of the General
Counsel's complaint. I arrive at this conclusion not only
from my appraisal of the credibility of the witnesses by
reason of their demeanor and manner of testifying but
also because acceptance of the story taxes credulity.
Surely if the conditions were actually attached to the
reemployment of Davis, as testified to by Respondent's
witnesses, both Davis and the union representatives
would have been reminded of these conditions when
Respondent, on November 23, 1966, insisted that Davis
terminate his employment because Davis had reached the
age of 65. The evidence shows, however, that McKee, at
no time prior to this hearing, though he had many oppor-
tunities, informed any union official, Johnson, Bigby, or
Coelho, that Davis was reemployed as a new employee
or that his reemployment was conditioned on his retire-
ment at age 65. In fact Davis himself was never directly
reminded of these conditions. As will appear below Davis
had further reason to avail himself of the Union's services
and, during the processing of these grievances, numerous
occasions arose when McKee could have mentioned to
the union representative the "conditions" for Davis'
return, but failed to do so. In addition Foster, on several
subsequent occasions, had opportunities to remind Davis
of the "conditions" of his reemployment, but he, like
McKee, failed to do so.
Returning to the sequence of events, Davis returned to
work on February 4, 1967. He received no holiday pay
for Washington's birthday and complained to Johnson
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about it after first discussing the matter with McCurry
who told him to see the people in the office . Johnson told
Davis that he did not know whether he could do anything
about it under the contract because Davis had been out
for more than 30 days before being reemployed . Johnson
apparently did not press this claim.
Several months later , approximately June 15, 1966, the
plant vacation bulletin was posted and Davis , while look-
ing at it , according to Foster 's testimony , ". . . seemed to
be very much surprised that he wasn 't getting a vaca-
tion." Foster then said to Davis, "It is a rough deal, Ben,
but there is nothing I can do about it." Clearly, Davis
would not have expressed surprise or disappointment if
there had been an agreement that he was a new employee,
and more important, Foster would have reminded Davis
that as he was a new employee he was not entitled to a va-
cation . Foster, however, expressed no such sentiments
but sympathized with Davis that it was a "rough deal."
Davis informed Foster he was going to see the union
steward and did so. Subsequently Johnson contacted
McKee and McKee agreed to pay Davis for his vacation.
I credit Johnson 's testimony that during the discussion
over vacation pay with McKee no mention was made by
McKee of any agreement with Davis, Marshall, or John-
son that Davis, when rehired , forfeited his seniority or
agreed to be retired when he reached 65. McKee's
testimony , quite confusing in various aspects, confirms
Johnson 's testimony in this regard . McKee stated that he
was contacted about the vacation pay about 3 or 4
months after Davis was reemployed and about 3 or 4
week prior to Davis' termination on November 23, 1966.
Commissioner Marshall contacted him about it and he
told Marshall that it would be paid when Davis retired.
McKee admitted that he had never discussed Davis'
retirement with any union but relied on his agreement
with Marshall as to the conditions upon which Davis
returned to work . I view the invocation of the "condi-
tions" of Davis' return at this late date as a transparent
subterfuge. To attach any validity to this claim requires
a conclusion that all the persons involved behaved in an
illogical manner. To reiterate , it is rather obvious that, if
Davis was rehired as a new employee , he was not entitled
to a vacation . Davis and Foster, as recited above, did not
behave logically when no mention of this was made in
their conversations. Further, Johnson, by processing the
grievance , behaved logically if he had no knowledge of
such an agreement , while McKee behaved illogically by
not mentioning the agreement to Johnson or to Marshall.
Marshall2 also behaved in a highly illogical manner. If he
were aware of the conditions of Davis' rehire, he would
not have continued to attempt to conciliate the vacation
grievance.
Finally, Arsie Bigby, business agent for the Union
since October 1, 1966, as successor to Johnson , credibly
testified that early in October 1966 he and his assistant,
Edward Coelho, had a conversation in McKee's office
with McKee and McCurry, at which time Bigby told
McKee that Davis had not as yet received "a vacation
that the Company had promised to pay." McKee's reply
was, "It is being taken care of." Again McKee permitted
an opportunity to pass in which he could have reminded
Bigby or made him aware of the conditions upon which
Davis was rehired , if there were such conditions . Having
heard that Davis had not received his vacation pay, Big-
by, on October 13, 1966 , sent the following letter3 to
McKee:
October 13, 1966
Coloney [sic] Furniture Company
200 West Ohio Avenue
Richmond
Calif 94804
ATTENTION: Mr. McKee
Dear Sir:
Representatives of Millmen 's Union 550 have talked
to you several times in reference to Vacation Pay for
Ben Davis in accordance with the Agreement.
Each time we have been informed that it would be
taken care of. To this date this vacation pay has not
been paid.
We believe it is time to bring in the State Conciliator
to see if we can bring about a settlement of this
grievance.
Request your immediate reply.
It is rather astonishing that McKee made no reply to
this letter. In view of his contentions that Davis was
rehired as a new employee and that he informed Marshall
that Davis would be paid his vacation upon retirement, it
would seem logical and imperative that a reply setting
forth these contentions would be dispatched immediately.
Continuing with the sequence of events , the evidence
discloses that early in November 1966 Foster told Davis
he was wanted in the office. When Davis went into the of-
fice McCurry, in the presence of Foster, told Davis,
"They are going to retire you on November 28, pay day
ends on the first day of December and I will let you work
on to then." Again no mention was made of any prior
agreement . As subsequent events reveal, Davis' last day
of work was actually November 23, 1966. Davis credibly
testified that a few days after the McCurry meeting, he
asked Foster why they were going to retire him and
Foster replied, "On account of the Conciliator coming
over." I find this to be the true reason for Davis' so-called
"retirement" or discharge which, in fact, it was and is
conceded by Respondent's counsel in his brief to be a
"forced retirement." As it is established that Respondent
has no retirement plan, the "forced retirement " was a ter-
mination , or more properly a discharge.
From the recital of the chronology of events and the
cogent testimony concerning each of the occurrences, it
seems rather plain that McKee continued to harbor a
deep resentment toward Davis because Davis turned to
the Union in his hour of need . Moreover , McKee's union
animus is displayed throughout the series of events. At
the very outset he made it a condition of Davis' reem-
ployment that Marshall work out a way to reemploy
2 Marshall did not testify and was not requested to do so by any of the
parties.
3 G.C Exh. 2.
COLONY FURNITURE COMPANY 729
Davis without the Union receiving any credit and that the
matter not be discussed with other employees. The other
events demonstrate McKee's great aversion to dealing
with the Union. Despite the requirement of the
collective-bargaining agreement that agreement of both
parties is necessary to settle a grievance, McKee con-
tended and testified that his agreement concerning Davis'
reemployment was with Marshall, not with the Union.
Even if this were the case, and I do not credit McKee on
this score, such an arrangement under the terms of the
collective-bargaining agreement was not,binding on the
Union. McKee, McCurry, and Foster testified that Davis
was called in and told of the "conditions" under which he
was to be reemployed. Assuming arguendo that Davis
did agree to these conditions, such an agreement again is
not binding on the Union and demonstrates McKee's
desire to bypass the Union and deal with Davis as an in-
dividual. However, as I have indicated above, I have not
and do not credit the testimony of McKee, McCurry, and
Foster that the conditions of Davis' rehire included that
(1) he start as a new employee, and (2) that he retire at 65.
I believe this fable was concocted much later and after
the Union pressed for payment of Davis' vacation pay,
wrote the letter of October 13, 1966, and called in a con-
ciliator. McKee, after contradictory testimony that he
had one or two conversations with Bigby concerning the
reasons for Davis' discharge, finally admitted, on cross-
examination, that he had never discussed the question of
Davis' retirement with any union official, as follows:4
TRIAL EXAMINER: Well, just a minute. My
question is, did you have discussions with represent-
atives of Local 550?
THE WITNESS: No.
TRIAL EXAMINER: The answer is no?
THE WITNESS: That is correct.
Q. (By Mr. Wirts) So as of this date you have
never had any discussions with representatives of
Local 550 regarding the question of the retirement of
Ben Davis, is that correct?
A. As a meeting as such, no.
I have discredited Foster on the matter of conditions of
Davis' reemployment and in other respects not only
because of my appraisal of his demeanor but also because
of the affidavit which he gave to the Board's field ex-
aminer who investigated the charge. In that affidavits
Foster makes no mention of the two additional conditions
attached to Davis' reemployment. As this statement was
given on January 24, 1967, and was carefully read and
corrected by Foster, I am of the opinion that Foster
would have detailed the conditions if, in fact, they were
discussed with Davis. Foster's weak excuse that he was
not asked the precise question by the field examiner is not
credited.
I find that Foster, in the affidavit he executed for the
field examiner, did disclose all the significant occurrences
of the meeting with Davis preceding Davis' reemploy-
ment. Foster's attempt to hide behind the field examiner's
alleged failure to ask the precise question is, as a matter
of fact, contradicted by his own testimony. Near the end
of his testimony, on further cross-examination, Foster ad-
mitted that the affidavit did, in fact, contain a fair state-
ment of what occurred at the meeting.6
On December 5, 1966, Bigby sentRespondent the fol-
lowing letter:7
December 5, 1966
Colony Furniture Company
200 West Ohio Avenue
Richmond
Calif 94804
ATTENTION: Mr. McKee.
Dear Sir:
Reference the forced retirement of Mr. Ben Davis.
As the union official stated to you, we have no objec-
tion to Mr. Davis being retired if he is willing to do
so, however Mr. Davis has expressed the desire to
continue working for an indefinite period of time.
The State Conciliator has notified me that he was
unable to change your mind about retiring Mr. Davis.
Mr. Davis has seniority, Section 5 of the Union
Agreement, therefore has the right to continue em-
ployment.
Since there is not an Arbitration Clause in the Agree-
ment, I must advise you, if you persist in your think-
ing, and retire Mr. Davis against his wishes, I must
advise you, you are provoking a strike or other action
to bring about a settlement of this grievance.
This letter, like that of October 13, 1966, was not an-
swered by Respondent. Thereafter on December 30,
1966, the Union filed its initial charge with the Regional
Office.
D. Concluding Findings
The complaint alleged that Respondent refused to bar-
gain concerning the institution of a retirement plan. The
General Counsel in his brief concedes that the evidence
does not support such a finding. Accordingly, I shall
dismiss this aspect of the complaint.
As I regard the use of the words "retirement" or
"forced retirement" in the context of the facts disclosed
by the record as mere euphemisms for discharge, I find
that Davis was discharged on November 23, 1966,
because he filed grievances with the Union and because
the Union, in turn, put into motion the grievance machin-
ery of the collective-bargaining agreement by referring
the matters involved to the State Conciliation Service.
The filing and processing of grievances is a concerted ac-
tivity protected by the Act, and the privilege of filing
grievances an inherent right guaranteed to him under Sec-
tion 7 of the Act. The discharge of Davis, therefore, was
violative of Section 8(a)(3) and (1) of the Act. I so find.8
4 Tr. p 86.
G C. Exh. 4.
6 Tr. p. 155,1.14.
[Question by Mr. Kmtz ] Then it [the affidavit ] does reflect a
correct picture of what happened at the meeting?
A. To the best of my knowledge, yes
7 G.C. Exh. 3.
" Bowman Transportation , Inc., 134 NLRB 1419; Interboro Contrac-
tors, Inc., 157 NLRB 1295.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent's
operations described in section 1, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices, 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 Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Ben Davis on
November 23, 1966, it will be recommended that
Respondent offer Ben Davis immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to seniority or other rights and
privileges, and make him whole for any loss of earnings
he may have suffered as a result 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 November 23, 1966, to the date of Respondent's
offer of reinstatement, less his net earnings during such
period, with backpay and interest thereon in the manner
prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
Having found that Respondent, in violation of Section
8(a)(1) of the Act, coerced and inhibited an employee
from exercising his rights guaranteed in Section 7 of the
Act, it will be recommended that Respondent cease and
desist therefrom.
It is concluded that the above unfair labor practices are
of such a character and scope that they strike at the basic
purposes of the Act, it will therefore be recommended
that Respondent cease and desist from in any manner in-
terfering with, restraining, or coercing employees in their
guaranteed rights.
CONCLUSIONS OF LAW
1. Respondent is, and during all times material herein
was, an employer engaged in commerce and a business af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is, and during all times material was, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining , and coercing an em-
ployee in the exercise of rights guaranteed in Section 7 of
the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discharging Ben Davis on November 23, 1966,
because of his protected concerted activity in filing
grievances with his duly designated collective -bargaining
representative , Respondent has discouraged membership
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
in a labor organization and has discriminated against said
Davis in violation of Section 8(a)(3) and (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, it is
recommended that Colony Furniture Company, the
Respondent herein , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Millmen's Union No.
550, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, or any other labor organization, by
discharging or in any other manner unlawfully dis-
criminating against any of its employees in regard to hire
or tenure of employment, or any term or condition of em-
ployment.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the right to
self-organization , to join or assist Millmen 's Union No.
550, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing , or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, ex-
cept to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized under Section
8(a)(3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Ben Davis immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole in the manner set forth in
the section of this Decision entitled "The Remedy," and,
if said Davis is now serving in the Armed Forces of the
United States, notify him of his right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended , after discharge from the Armed Forces.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Post at its plant at Richmond , California , copies of
the attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
representative , shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for Region 20, in
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
COLONY FURNITURE COMPANY 731
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. to
Except to the extent that unfair labor practices have
been found, I recommend that the complaint be
dismissed.
10 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
After a trial in which both sides had the opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the law
and has ordered us to post this notice and to keep our
word about what we say in this notice.
As it was decided that we violated the law when we
fired Ben Davis because he went to the Union and com-
plained about his vacation pay, we will offer Ben Davis
his old job with all his seniority and give him backpay.
WE WILL NOT tell any of our employees that we
are mad because they complain to the Union about
wages, hours, or working conditions.
WE WILL NOT fire anyone over the Union again.
You are all free to become or remain members of
Millmen's Union No. 550, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, or any
other Union, and we won't punish you in any way if
you do.
WE WILL NOT in any other way interfere with,
restrain, or coerce you from exercising your lawful
right to choose a union for the purposes of bargaining
and representing you.
Dated By
COLONY FURNITURE COM-
PANY
(Employer)
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335.