Davis Furniture Co.

National Labor Relations Board - Board Decisions

May 3, 1951

94 N.L.R.B. 279 (N.L.R.B. 1951)

DAVIS FURNITURE CO., ET AL. 279
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) and Section 8 (a) (1) of the Act.
3 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged In,
and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4 By discharging Minnie Barbour, the Respondent did not engage in any
unfair labor practices
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume ]
ALBERT LEONARD, ARNOLD DAVIS, SIDNEY DAVIS AND WILLIAM GITZES,
CO-PARTNERS, JOINTLY AND SEVERALLY D/B/A DAVIS FURNITURE CO.;
DOYLE FURNITURE CO., INC., A CORPORATION; LACHMAN BROS, A COR-
PORATION; HARRY FRANK, AN INDIVIDUAL, D/B/A MILWAUKEE FURNI-
TURE COMPANY; A. EUGENE PAGANO AND M. DE CASTRO, CO-PARTNERS,
JOINTLY AND SEVERALLY, D/B3A MISSION CARPET AND FURNITURE CO.;
FRANK. NEWMAN CO., A CORPORATION; REDLICK-NEWMAN CO., A COR-
PORATION; SHAFF'S FURNITURE CO., A CORPORATION; JOSEPH H. SPIE-
GI)LMAN AND LEON SPIEGELMAN, CO-PARTNERS, JOINTLY AND SEVER-
ALLY, D/B/A SAN FRANCISCO FURNITURE CO.; STERLING FURNITURE
COMPANY, A CORPORATION; JAMES F. WILEY AND VERNA M. GARDNER,
CO-PARTNERS, JOINTLY AND SEVERALLY, D/B/A J. H. WILE, Y THE FUR-
NITURE MAN land CARROLL, DAVIS & FREIDENRICH, BY ROLAND C.
DAVIS. Cases Nos. 20-CA-250, 00-CA-064, 00-CA-252, 00-CA-
-49,20-CA--l/f6, 20-CA-.245, 20-CA--24 , 0-CA-253, 20-CA-054,
20-CA-248, and 20-CA-251. May 3,1951
Decision and Order
On February 16, 1951, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that
The Respondents had engaged in and were engaging in unfair labor
practices as alleged in the complaint and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Respondents filed exceptions to the Intermediate Report, and a
supporting brief.' The Respondents also requested oral argument.
I On April 24 , 1951, six employer associations filed a "Petition For Permission to File
Brief Amicus Curiae or, in the alternative, to intervene in opposition to the Intermediate
Report and - Recommended Order of the Trial Examiner" and a "Brief in Opposition to the
Intermediate Report and Recommended Order of the Trial Examiner." The petition
must be denied as untimely , as the Board had already decided the merits of the case
before receipt of the petition Briefs from the parties to the case were due and had been
received by March 12, 1951.
94 NLRB No 52
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The oral argument request is hereby denied, as the record, including
the exceptions and brief, in our opinion, adequately present the issues
and positions of the parties.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions .2
The relevant facts in the instant case are substantially as follows.
The Retail Clerks International Association, Local 1285 (AFL),
herein called the Union, has bargained with the Retail Furniture
Association of California on behalf of a number of its members since
1937. An impasse over a new contract occurred on June 3, 1949. At
that time, the Union told the Association that the Union would prob-
ably strike one of the association members, Union Furniture Coin-
pany, where wages were lower for most employees than for employees
of the other members. The next day the Union placed pickets at the
warehouse and 2 stores of Union Fui niture Company, and none of its
union employees reported for work. The employees of all other asso-
ciation members reported for work as usual. However, 11 of the 19•
employer-members of the Association, Respondents herein, notified
their employees by pamphlets or letters on June 4 that their stores were
closed until further notice in view of the Union's strike action.3
The parties are in agreement that at no time did the Union attempt
to bargain on other than an association-wide basis; in that respect, the
facts in this case are weaker for the Respondents' ultimate contention'
than were those in the Morand case, infra. The Union did not threaten
to strike any other member of the Association. The Union selected
Union Furniture as the target for strike action because the Union be-
lieved that that employer was the obstacle to reaching agreement on an
association-wide basis. In response to a letter from the claimants'
attorney advising that the claimants have at all times been and still
were "ready, willing and able to continue their employment," the
Respondents' attorney replied by letter, dated June 13, 1949, that be-
2 Without giving figures. the Respondents contend that the volume of cmnme, ce activity
of some of the Respondents is so small that the Board would not assert jurisdiction over
them as separate entities, and that the Trial Examiner's action in basing jurisdiction on
the total commerce activities of the Respondents as a group is inconsistent with the
General Counsel's prosecution of a complaint alleging unfair labor practices against each,
Respondent as a separate entity we perceive no such inconsistency. The liability
of each Respondent is an individual liability. The Trial Examiner made his Jurisdictional
finding, and we think properly so, on the basis of the total activities of the Respondents
because they had joined together to act as a single group for the purposes of collective
bargaining, as hereinafter appears
3 Before the strike, the members of the Association agreed that if less than all of therm
were struck, the others would close to protect the competitive position of all of them-
Hoeever, eight of the employer-members of the bargaining unit did not shut down.
DAVIS FURNITURE CO., ET AL. 281
.cause negotiations had been conducted on the basis of a group unit
and no separate demands had been made on Union Furniture, the
Respondents regarded the strike as one against all employers in the
unit. The strike was settled on or about July 9, 1949, when all the
employees, including those of the 11 employers who were not struck,
returned to work and an association-wide contract was concluded.
The complaint alleges that the 11 employers discriminatorily locked
out their employees during the period from June 4 to July 9, 1949,
in violation of Section 8 (a) (1) and 8 (a) (3) of the Act.
The Trial Examiner sustained the allegations of the complaint on
the basis of the Board's decision in Moramd Brothers Beverage Com-
pany, 91 NLRB 409. In that case, the Board held that a, strike against
a single employer of an association-employer unit did not under the
statute justify the discharge of employees by association employers
whose stores were not struck.
We agree with the Trial Examiner that the principles and policy
considerations enunciated in the lllorand decision are equally applica-
ble to the facts in the instant case, where the employees were tempo-
rarily prevented from working by the Respondents' action in laying
Ahem off rather than discharging them. Regardless of how the strike
may be viewed, the fact remains, as found by the Trial Examiner,
that the Respondents laid off their employees because of protected con-
certed activity sponsored by the Union as their statutory bargaining
representative and engaged in by union members of the same bargain-
ing unit. The layoffs thus served notice on all members of the bargain-
ing unit, the laid-off employees as well as the strikers and nonstrikers,
that resort to lawful protected concerted activity by the employees of
any employer-member of the bargaining unit would subject other em-
ployee-members of the bargaining unit to the reprisal of a temporary
loss of employment. The Respondents' conduct thereby directly in-
terfered with, restrained, and coerced all the employees in the bargain-
ing unit in the exercise of their rights guaranteed by Section 7 of the
Act, in violation of Section 8 (a) (1). The layoffs also constituted
discrimination in the hire and tenure of employment of the Respond-
cnts' employees because of the union-sponsored strike against Union
Furniture Company, thereby discouraging membership in the Union
in violation of Section 8 (a) (3) of the Act. Whether the Respond-
'•ents' conduct be viewed as a violation of Section 8 (a) (1) or of 8 (a)
(3), we find that effectuation of the policies of the Act requires that
the Respondents' employees be made whole in the manner set forth in
the Intermediate Report.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that each of the Respondents, Albert Leonard,
Arnold Davis, Sidney Davis and William Gitzes, co-partners, jointly
and severally, d/b/a Davis Furniture Co., Doyle Furniture Co., Inc.,
a corporation, Lachman Bros., a corporation, Harry Frank, an indi-
vidual, d/b/a Milwaukee Furniture Company, A. Eugene Pagano and
M. de Castro, copartners, jointly and severally, d/b/a Mission Carpet
and Furniture Co., Frank Newman Co., a corporation, Redlick-New-
man Co., a corporation, Shaff's Furniture Co., a corporation, Joseph
H. Spiegelman and Leon Spiegelman, co-partners, jointly and sever-
ally, d/b/a San Francisco Furniture Co., Sterling Furniture Company,
a corporation, James F. Wiley and Verna M. Gardner, co-partners,
jointly and severally, d/b/a J. H. Wiley The Furniture Man, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Master Furniture Guild, Local
1285, affiliated with Retail Clerks International Association, AFL, or
in any other labor organization of its employees, by locking them out
.or otherwise discriminating in regard to their tenure of employment
or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Master Furniture Guild, Local
1285, affiliated with Retail Clerks, International Association, AFL, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection;
or to refrain from any or all such activities, except 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 in
Section 8 (a) (3) of the Act, as guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole each of its employees for the discrimination
against him in the manner set forth in the section of the Intermediate
Report entitled "The remedy."
(b) Post at its places of business in the San Francisco area, copies
of the notice attached hereto, marked Appendix .4 Copies of said
notice, to be furnished each Respondent by the Regional Director for
the Twentieth Region (San Francisco, California), shall, after being
signed by an appropriate representative of each Respondent, be posted
by said Respondent immediately thereafter in conspicuous places in-
cluding all places where notices to employees are customarily posted.
4 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words, "A Decision and Order," the words,
"A Decree of the United States Court of Appeals Enforcing "
DAVIS FURNITURE CO., ET AL. 283
Reasonable steps shall be taken by the Respondents to insure that the
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Order.
Appendix
NOTICE To ALL EMPLOYEES.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any.maliner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist MASTER FURNITURE
GUILD, LOCAL 1285, affiliated with RETAIL CLERKS INTERNATIONAL
AssocIATION, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized by Section 8
(a) (3) of the Act.
WE WILL make whole each of our employees for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named union or any
other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act. We will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor
organization.
(Employer)
Dated --------------------- By ------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or cover d by any other material.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
Mr. David Karasick, for the General Counsel.
Carroll, Davis ,& Freidenrich, by Mr. Roland C. Davis, of San Francisco, Calif.,
for the Claimants.
St. Sure cC Moore, by Mr. J. Paul St. Sure and Mr R. B. McDonouglc, of San
Francisco, Calif., for the Respondents.
STAIEMENT OF THE CASF
Upon charges filed by Carroll, Davis & Freidenrich , attorneys , on behalf of
employees of the retail furniture merchants named in the caption herein, a con-
solidated complaint was issued against the said merchants , herein collectively
referred to as the Respondents , alleging that the Respondents engaged in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (3)
and (1 ) and Section 2 (6) and ( 7) of the National Labor Relations Act (61
Stat. 136 ), herein called the Act. Copies of the charges. order for consolidation,
complaint , and notice of hearing were duly served upon each of the Respondents
and upon the attorneys for the charging parties , herein collectively referred to
as the Claimants.
With respect to the unfair labor practices the consolidated complaint alleges
that the Respondents and each of them, from about June 4 to July 9, 1949,
"locked out and refused employment" to their respective employees because
said employees , or some of them, wei e members and active in behalf of Master
Furniture Guild, Local 1285, affiliated with Retail Clerks International Associa-
tion , AFL (herein called the Union), or because of their concerted activities or
the concerted activities of other members of the Union for the purpose of col-
lective bargaining or other mutual aid or protection.
The Respondents .collectively filed an answer denying, the commission of the
unfair labor practices set forth in the complaint and alleging that the "sales"
and "shipments " of "at least eight" of the individual Respondents amounted
to "less than the amounts determined by the National Labor Relations Board
to be the measure of acceptance of jurisdiction by the Board."
The hearing was held at San Francisco , California , on December 18 and 19,
1950 , before J. J . Fitzpatrick , the undersigned , duly designated Trial Examiner.
The General Counsel, the Respondents , and the Claimants were represented
bd counsel .' All participated and uuere granted full opportunity to be heard,
to exainine and cross -examine witnesses , and to adduce evidence bearing on the
issues . Before any testimony was taken , Attorney St. Sure moved that the
complaint be amended so as to allege that the bargaining unit consisted of the
grouped employers and that the group. rather than the individual respondents,
committed the alleged unfair labor practices. This motion was denied as was
the further motion by St. Sure to sever the complaint . At the conclusion of the
hearing the parties waived oral argument but requested and were granted leave
to file briefs after the close of the hearing The San Francisco Employers'
Council also requested and was granted leave to file a brief ainicus curiae.
Briefs have since been received from attorneys for the Respondents , the Claim-
ants, and the San Francisco Employers ' Council.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
' At the opening of the hearing, J. Paul St. Sure, attorney for the Respondents, was
granted leave to intervene on behalf of certain othei San Fiancisio retail establishments
who, togethet with the Respondents named in the complaint, participated in the collective
bargaining negotiations hereafter referred to
DAVIS FURNITURE CO., ET AL.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
285
The Respondents, together with 10 other employers engaged in the business
of buying and selling furniture and household appliances at retail in the San
Francisco, California. area, through authorized joint representatives, negotiated
a collective bargaining contract on January 1, 1948, with the Union. During
the year 1949, the total sales of the Respondents were in excess of. $12,400,000,
of which an amount in excess of $100,000. represented direct shipments of furni-
ture and various household appliances from the places of business of the Re-
spondents located in and about the city of San Francisco, California, to places
outside the State of California. During the same year, the total purchases by
the Respondents of furniture and household appliances which represented direct
shipments from places outside California to places of business of the Respond-
ents in and about San Francisco were in excess of $4,600,000.2
I find, contrary to the contention in the answers, that the Respondents are
engaged in commerce within the meaning of the Act'
II. THE ORGANIZATION INVOLVED
Master Furniture Guild Local 1285, affiliated with Retail Clerks International
Association, AFL, herein called the Union, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A Bac/ ground; sequence of events
All 11 Respondents herein, together with about 54 other retail furniture
dealers in the San Francisco area, belong to a rather loosely formed organization
known as the Retail Furniture Association of California, which has a total mem-
bership of about 400 furniture dealers throughout the State Since 1937 the
Union has bargained, usually annually, on a group basis with a number of the
San Francisco area membership, the number depending on individual authoriza-
tions issued by the dealers to the Association. These authorizations ranged from
14 to 21, but never included all the San Francisco members. When the bar-
gaining was completed, a contract with the Union was executed by the author-
ized agent or agents "for and on behalf of the employers named therein."
Such a contract was negotiated and signed in 1948 on behalf of 21 retailers
in the San Francisco area (herein called the Companies), including the 11 Re-
spondents named herein. The contract was effective for 1 year from January 1,
1948, but automatically renewed unless 60 days' notice was given prior to the
termination date of a desire to change it.
About October 20, 1948, the Union proposed a series of amendments, includ-
ing increased wage rates, and requested negotiations thereon. Pursuant to this
2 Respondents' consolidated answer admitted the truth of allegations in the complaint
as to the Respondents' business operations and Respondents stipulated that findings
could be•hased thereon
i Although the answer suggests that certain of the individual Respondents' operations
are so small that the Board noimally would not assert jurisdiction against such Respond-
ents considered as an entity, the Respondents (lid not press the point or offer evidence
in support thereof The above findings are on the stipulation and the adnntled fact that
all the Respondents weie dealing as a group or unit with the Union The Ri,erett Auto'
motive Jobbers Association, et al , 81 NLRB 304 , Banker Hill & Sullivan Mining & Con-
centrating Company, et al., 89 NLRB 243
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request conferences were held, beginning on December 3 and up to and including
February 27, 1949, between the union negotiating committee, and Ralph H.
Brown, and J. Paul St. Sure, Association representatives duly designated by
the Companies. During these meetings the Companies submitted a counterpro-
posal offering, inter alia, a wage increase of 5 cents an hour. The conferees
agreed to extend the term of the 1948 contract for 45 days to February 15, 1949,'
and make any amendments agreed to retroactive to January 1, 1949. Although
the area of difference appeared to be only on the question of a wage increase the
negotiators adjourned after the February 25 meeting without any agreement
and with no arrangement for a subsequent meeting (as had been the practice
at previous conferences), when the Companies announced there would be no
wage increases beyond their original counterproposal of 5 cents an hour.
In early March the Union requested strike authorization against the Com-
panies. Instead of granting strike sanction, however, the San Francisco Labor
Council caused the conferees to resume negotiations before George W. Johns,
assistant secretary of the Council. Two meetings with Johns resulted on a
general agreement on all matters except wages. The union committee insisted
that 5 cents an hour increase was inadequate for the lower paid employees and
suggested that the Union Furniture Company which had most of its employees
in the lower brackets, was holding up the negotiations, but the Companies
refused to change their position as to wages.
After the conclusion of two meetings before Johns, the Union prepared a job
reclassification of employees which it submitted to the Companies. On May 13,
the latter's representatives turned down the reclassification proposal and stated
that the 5 cents an hour increase would have to be accepted by June 1, 1949, or
it would be withdrawn. The union representatives announced that such an
attitude on the part of the Companies might result in a strike, probably against
the Union Furniture Company St. Sure replied that if such action was taken
against Union Furniture Company the other Companies would close.
Following written confirmation of the Companies' position, another conference,
apparently sponsored by Johns of the Council and also attended by a Mr. Vail,
representing the International Union, was held on May 26. Johns suggested
arbitration of the wage differences. The Union agreed to arbitrate but the
Companies rejected the proposal. Johns made another attempt to get the par-
ties to agree on June 3. At that time St. Sure changed the Companies' offer
from 5 cents an hour increase to $10 a month 6 The Union rejected the offer and
announced that Union Furniture Company would probably be struck the next
day.
About 7: 30 a. in on June 4, the Union placed pickets at the warehouse and
two stores of Union Furniture Company. None of the union employees of that
company reported for work thereafter until the strike was settled on July 7.
No employees of the other companies struck. Nor was there any attempt to
boycott the other companies. However, when the employees of the Respondents
herein reported for work on the morning of June 4, they were notified by their
respective employers, by pamphlets or letters, that the store was closed. The
4 The contract was later further extended first to March 10, then through April 10,
1941. Prior to April 10 it was agreed by the conferees orally that the contract terms
-would remain in effect so long as the "negotiations continued."
c The difference between the 5 cents an hour increase and the $10 a month would have
meant about $1.50 additional each month per employee
DAVIS FURNITURE CO., ET AL. 287
notice handed to the employees of Sterling Furniture Company is identical to
that sent out to most of the companies, excepting Redlick. and reads as follows:
To our employees : - Juan 3, 1949.
Since 1937 the furniture stores listed below have had a master collective
bargaining contract with Retail Clerks Local Union #1285 AFL. Annual
negotiations for modification of the agreement have been in progress for
more than six months. The final offer of -the employers was to increase
contract salaries $1000 per month in all classifications (salespeople and
office employees). The union's final demand was for increases ranging
from $16.00 to $38 00 per month
The union has determined to strike to enforce its demands . Consequently,
the following listed stores will be closed until further notice due to strike
action of Clerks Local #1285:
Davis Furniture Company Shafts Furniture Co.
Doyle Furniture Company San Francisco Furniture Co.
Lachman Brothers Sterling Furniture Co.
Milwaukee Furniture Co.
Union Furniture Co.
Mission Carpet & Furniture
Frank Newman Co Waxman Furniture Co.
Redlick's Furniture J. H. Wylie Furniture
THE MANAGEMENT,
Sterling Furniture Company.
A similar notice was sent to the employees of Redlick,e wherein it was stated
"in our view a strike against any one of the group is a strike against all in
the bargaining group.
Waxman Furniture Company was included in the list of stores that were to
close apparently through error. Actually, Waxman remained open from June 4
through July 9, as (lid also eight other retailers who had participated in the
negotiations as above set forth. On June 4, the Respondents inserted the
following advertisements in local newspapers :
To the residents of the San Francisco Bay Area:
Since 1937 the furniture stores listed below have had a master collective
bargaining contract with Retail Clerks Local Union #1285 AFL Annual
negotiations for modification of the agreement have been in progress for
more than six months.
The final offer of the employers was to increase salaries $10.00 per month
in all classifications (salespeople and office employees). The union's final
demand was for increases ranging from $16 00 to $38 00 per month.
The union has determined to strike to enforce its demands Conse-
quently, the following listed stores will be closed until further notice due
to the strike actions of Clerks Local #1285.
We regret that our customers may be inconvenienced and will give notice
of reopening as soon as a fair and reasonable basis for operation is
achieved. -
On June 9, 1949, the attorneys for the Claimants wrote each Respondent by
registered mail as follows :
6 Apparently , the same concern which appears as Respondent , Redlick-Newman Co., in
the caption of the complaint.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As yon have known since Saturday, June 4. 1949, your employees who,
are members of Master Furniture Guild #1285 and covered by the collec-
tive bargaining contract of January 1, 1948, between your firm and the Guild,
have been ready, willing and able to continue their employment with you
This communication is to advise you officially that these employees remain
continuously available for such employment anti application is hereby made
on their behalf for immediate reinstatement on then jobs
If you do not intend to accept this application, please advise the under-
signed of your reasons
This application for reinstatement should be considered as continuously
on file with you and will be immediately fulfilled by any or all of the em-
ployees for whom it is made upon notification by you directly to the em-
ployees or to the Master Furniture Guild or the undersigned
St. Sure , on behalf of the Respondents, replied to this letter on June 13, 1949,
as follows :
The members of the San Francisco Furmtnie Store group who aie rep-
resented by this office in negotiations for a renewal of the master contract
with Retail Clerks Local No. 1285 have forw:uded to me your letters of
June 9, 1949, requesting reemployment of members of that local
As your letter states, the employees are those covered by the collective
bargaining contract of January 1, 1948, which was executed by Ralph A
Brown as a master contract and by Jack Sparlin on the same basis Since
negotiations for renewal have been carried on, at the special request of
the union, on the basis of the group unit, and since the union made no
separate demands on Union Furniture Company prior to the strike, we re-,
gard the strike as one against all of the employers. We have so notified
the individual employees concerned.
On June 16, the Union, through its Secretary, Jack H Sparlni, 'sent the
Union Furniture Company the following letter :
It has come to our attention through reports fi oin our members and
from a communication from your attorney to our attorney, that you have
taken the position that you were not aware of the proposals of the Union
for settlement of our strike against your company. Apparently some point
is made by you of the fact that you had not been served directly with these
proposals. We had been led to believe that you were made fully aware of
all of the events occurring in the negotiations by youi attorney, but if such
has not been the case and you in fact desire to be served directly with the
proposed agreement, the terms of which were given to your attorney prior
to the strike, we are happy at this time to accommodate you in this respect-
There is herewith enclosed a copy of a proposed agreement between your
firm only and our Union which, if and when executed, will provide the basis
for immediate termination of the strike now in progress against your firm."
Strike bulletins issued by the Union during the period from June 4 to July 9
stated that the strike against Union Furniture Company was due to the failure
of the negotiations with the groups of employers and that the closing of the
stores of each of the Respondents constituted a lockout against its employees.
On July 7, the wage dispute with the Union was settled, the strike against Union
Furniture Company was called off, and the employees engaged therein had re-
turned to work by July 9. The settlement was embodied in a new contract
' The inclosed agreements contained the same terins as the Union had submitted to the
Companies prior to the strike
DAVIS FURNITURE CO., ET AL. 289
which was formally executed in August 1949, effective as of January 1, 1949,
and current at the time of the hearing e On or about July 9 the Respondents
resumed operations and their employees were returned to woik.
The General Counsel contends that the action of the Respondents, and each
of them, in closing their respective places of business from June 4 to July 9,
1949, constituted a discrimmnatoy lockout of their employees It is the Re-
spondents' position as stated in their brief that the Union "declared war" on
the employers' group with which it in as engaged in collective bargaining by strik-
ing one of them and that as a consequence the Respondents merely treated all
employees as strikers until the bargaining was settled by a piaster contract.
B. Conclusion
The General Counsel and the Claimants cite Jloiand Brothels Beverage Coin-
pany. et at , 91 NLRB 409, decided by the Board in September 1950, as decisive of
the issues herein The Respondents, as well as the Employers Council, which as
above found filed a brief as anticiis cm me, also refer to Jlora d., but contend that
the facts her em are not on all fours with that decision In the Morand case the
Board found that the discharge of all salesmen employed by members of a liquor
dealers association because the union called a strike against one member thereof
following an impasse in association-wide bargaining negotiations constituted a
violation of Section 8 (a) (3) of the Act.
It is quite true, as the Respondents point out, that there are factual differences
in the two cases In Jlo•and the Board found that the employees were dis-
charged, whereas here the employees of the Respondent were laid oft. I do
not regard it as conti oiling,, or even significant, on an issue of discriminatory
treatment that the facts disclose a temporary layoff and not an outright dis-
charge. Of course a temporary layoff is not as serious a matter to the employees
involved as an outright discharge would be, but whether the separation from
employment is permanent or temporary is a matter of degree In either event
the employees have been, during the period, deprived of their means of livelihood.
The real question is ki/ were they not working
The Respondents also argue that in Mound the union sought to eliminate
group bargaining by negotiating with individual employers and striking one of
them, thus attempting to coerce the employers in the selection of their bargaining
representative, but in the instant case no separate negotiations were sought
nor Sias any attempt made to interfere with the employers' selection of a rep-
resentative However, in the 171orai,d decision the Board did not find that the
union coei ced the employers in the selection or retention of their bargaining
representative Furthermore, in that case the Board clearly indicated that
it did not regard separate negotiation efforts of the union as materially affecting
the fundamental bargaining position of the parties when it said:
We are unable, on this record, to agree that the Local in this case sought
to, or did, coerce any of the Respondents to resign from their Associations
or to revoke their designations of the Associations as their bargaining agents.
The action of the Local in seeking to bargain on a single-ennployer basis
was not inconsistent with retention by the Respondents of their member-
ship in their Associations nor, indeed, with the resumption of association-
wide bargaining at an appropriate time As we have already pointed out,
the Local was not concerned with the Respondents' membership in the
Associations; it was interested only in executing a satisfactory contract
'All the Respondents, and Union Furniture, through their representatives executed
the contract
958841-52-i of 94-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That no separate negotiations were held or attempted in the instant case
strengthens rather than weakens the applicability of the Morand doctrine.9
Reduced to the bare essentials the Respondents seek immunity for locking out
their employees because Union Furniture, engaged with them in joint bargaining
with the Union, was struck after the negotiations reached an impasse. In other
words, Respondents say that, Union Furniture employees having struck, all other
employers in the bargaining group had the right to close their respective plants
to their employees as constructive strikers. As stated by the Board in Morand,
"To hold that employees in a multiemployer unit who remain at work may be
treated as strikers, solely because of a strike by other employees," would inject
a new and unwarranted "concept in labor relations." The Board's holding,
previous to Morand, that an employer cannot engage in conduct proscribed by the
Act in order to prevent a strike, even though there is economic justification for
such conduct, has met with judicial approval.10 Certainly withholding employ-
ment from employees comes well within the proscription."
I find, therefore, in line with the D2oranid decision above referred to, that the
Respondents, and each of them, by closing their plants to their employees on
June 4 to July 9, 1949, have interfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in Section 7 and in violation of
Section 8 (a) (3) and (1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents , and each of them, set forth in Section III,
above, occurring in connection with the operations of the Respondents set
forth in Section I, above, have a close , intimate , and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, it will be recommended that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondents discriminated in regard to the tenure
of employment of their employees by locking them out from June 4 to July 9,
1949. Although each of these employees has been reinstated, he is entitled to
reimbursement for working time lost as a result of the discriminatory action.
It will therefore be recommended that each of the Respondents make whole
each of its employees for any loss of pay or commission he may have suffered
by reason of the discrimination against him, by payment to him of a sum of
0 The Respondents claim that the extension agreement had not expired on June 4 when
Union Furniture was struck As previously found, the old contract was in effect so long
as negotiations continued May 13 the Companies announced that their wage increase
offer of 5 cents an hour would have to be accepted by June 1 or it would be withdrawn
The Union had reiterated almost from the start of the negotiations that the 5 cents
increase was inadequate and not acceptable . so on May 13 it told the Companies' repre-
sentative that Union Furniture probably would be struck It is true that after the June 1
deadline the Companies renewed their previous wage increase and in fact increased the
offer slightly, but the renewed offer was pi oniptly rejected and the Companies informed
that the Union Furniture strike would start the next day It is found that the nego-
tiations had stalemated by June 3
10 Star Publishing Company, 97 F 2d 463 , Fred P TVeissinan, 170 F 2d 952, cert. den.
336 U S. 972
11 Respondents do not contend that their emploNees were locked out because the Re-
spondents found it unprofitable to operate while Union Furniture was being struck It ii
also noted that all the employers included in the bargaining group (referred to herein
as the Companies) did not withhold employment, or close their plant «hile Union Furniture
was being struck.
ANDERSON-WAGNER, INC. 291
money equal to that which he normally would have earned in such position
from the date of discrimination against him to the date of his reinstatement,
less his net earnings during said period.12 Each Respondent to make available
to the Board, upon request, payroll and other records to facilitate the checking
of the amount of back pay due.'3
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. Master Furniture Guild, Local 1285, affiliated with Retail Clerks Interna-
tional Association, AFL, is a labor organization within the meaning of Section
2 (5) of the Act.
2. The Respondents, and each of them, by discriminating in regard to the
tenure of employment of its employees, thereby discouraging membership in
Master Guild, Local 1285, affiliated with Retail Clerks International Association,
AFL, have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondents, and each
of them, have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
12 Crossett Lumber Co., 8 NLRB 440; Republic Steel Company, 311 U. S. 7.
13 F. W. Woolworth Company, 90 NLRB 289.
ANDERSON-WAGNER, INC. and WALTER STANLEY KACZMAREK, PETI-
TIONER and Los ANGELES BUILDING AND CONSTRUCTION TRADES COUN-
CIL; Los ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS;
MILLMEN AND CABINET MAKERS LOCAL No. 721, UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF AMERICA; BROTHERHOOD OF
PAINTERS, LOCAL UNION No. 792, DECORATORS AND PAPER HANGERS
OF AMERICA ; LOCAL UNION No. 371, SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION ; LOCAL UNION No. 196, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA ; LOCAL UNION No. 108, SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION; LOCAL No. 250, UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFIT-
TING INDUSTRY OF THE U. S. AND CANADA, A. F. L.; AND LOCAL No.
508, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF THE U. S. AND CANADA,
A. F. L. Case No. ,21-RD-123. May 3, 195.1
Decision and Order
Upon a decertification petition duly filed, a hearing was held before
Ben Grodsky, hearing officer. The hearing officer's rulings made at
94 NLRB No. 48.