Dixie Furniture Co., Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1952

101 N.L.R.B. 1295 (N.L.R.B. 1952)

DIXIE FURNITURE COMPANY, INC . 1295
Carriers ' premises , and (b) to prevent or otherwise interrupt employees of the
Suppliers in servicing and performing other operations on the Carriers ' equip-
ment at the Carriers' premises. The Union has thereby violated Section 8
(b) (4) (A) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
III. THE REMEDY
Having found that the Respondent. Union has violated Section 8 (b) (4) (A)
of the Act, I shall recommend that it cease and desist therefrom and that it
also take certain affirmative actiotf' aâ–ºiW 1 I find necessary to effectuate the
policies of the Act.
[Recommendations omitted from publication in this volume.]
DIIE FURNITURE COMPANY, INC., and UNITED FURNITURE WORKERS
or AMERICA , CIO. Case No. 11-CA-292 (Formerly 34-CA-Z92).
December 02,1952
Decision and Order
On April 14, 1952, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent and the General Counsel filed ex-
ceptions to the Intermediate Report, and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner and
.finds that no prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Intermediate Report, the
:exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
•Examiner.2
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
.amended, the Board has delegated its powers in connection with this case to a three -member
panel [Members Houston, Murdock , and Styles].
P Like the Trial Examiner , we find that Markland 's alleged violation of the Respondent's
no-solicitation rule was not the real reason for his discharge , but rather that this incident
was seized upon by the Respondent as a pretext for discharging Markland because of his
,union leadership . An employer may lawfully enforce a no-solicitation rule that applies
to working time, such as the rule involved here. But the Act is violated where, as here,
the record shows that the enforcement of the rule is used as a subterfuge to cloak an
unlawful motive. We find , therefore, as the Trial Examiner did, that the Respondent's
discharge of Markland was a violation of Section 8 (a) (3) of the Act . See Piedmont
.Shirt Co. v..3V. L. I1..B., 138 F. 2d 738 (C. A. 4), enforcing 49 NLRB 313.
101 NLRB No. 184.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, the National Labor -Relations-
Board hereby orders that Dixie Furniture Company, Inc., Lexington,
North Carolina, its officers, agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the United Furniture Workers of
America, CIO, or in any other labor organization of its employees, by
discriminatorily refusing to hire, or discharging, or refusing to re-
instate any of them, or by discriminating in any other manner in regard
to their hire, tenure of employment, or any term or condition of
employment.
(b) Uttering threats of reprisal, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist
United Furniture Workers of America, CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in collective bargaining or other mutual
inid or protection, or to refrain from any or all such activities except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization, as a condition of employment,
as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7
thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Richard J. Markland and Jewell O. Peck immediate
and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and
privileges.
(b) Make whole the above-named individuals in the manner set
forth in the section of the Intermediate Report entitled "The Remedy."
(c) Upon request make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due.
(d) Post at its plant in Lexington, North Carolina, copies of
the notice attached hereto and marked "Appendix A." 8 Copies of
,On the basis of Line Foreman Lanier 's admission that he has the authority to discharge
employees , we find that he is a supervisor within the meaning of the Act.
The Trial Examiner recommended that the Respondent be ordered to cease and desist
from enforcing any rule prohibiting its employees from engaging in reasonable union
activities on company property on their own time There is no evidence or finding that
the Respondent has engaged in such conduct, and we therefore do not adopt this
recommendation.
$ In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
DIXIE FURNITURE COMPANY, INC. 1297
such notice, to be furnished by the Regional Director for the Eleventh
Region,'shall , after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,,
or covered by any other material.
(e) Notify the Regional Director for the Eleventh Region, in writ-
ing, within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint as to
Joseph Mason, Wade Johnson, and Shearlie Myers be, and they hereby
are, dismissed.
Appendix A
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 discourage membership in UNITED FURNITURE
WORKERS OF AMERICA, CIO, or in any other labor organization of
our employees, by refusing to hire, by discharging any of our
employees, or in any other manner discriminating in regard to
their hire or tenure of employment, or any term or condition of
their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization , to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, 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 in
Section 7 thereof.
WE WILL make whole Richard J. Markland and Jewell O. Peck
for any loss of pay they may have suffered as a result of the
discrimination against them and offer them immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges.
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminate in regard to the hire or tenure of employment or any
term or condition of employment because of membership in or activity
on behalf of any such labor organization.
DIXIE FURNITURE COMPANY, INC.,
Employer.
By -------------------------------------
(Representative ) ( Title)
Dated -------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint, amended complaint,
and notices of hearing thereon having been issued and served by the General
Counsel of the National Labor Relations Board, and an answer having been filed
by the above-named Company, herein called the Respondent, a hearing involving
allegations of unfair labor practices in violation of Section 8 (a) (1) and (3)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act, was held in Lexington, North Carolina, on February 11, 12 and 13, 1952,
before the undersigned Trial Examiner.
In substance the complaint alleges and the answer denies that the Respondent :
(1) On certain dates between April and November 1951 discriminatorily dis-
charged five employees because of their union activity;' and (2) by such
discharges and by other specified conduct interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed by the Act.
At the hearing all parties were represented, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, to argue orally upon the record, and to file briefs and
proposed findings and conclusions. Argument was waived ; a brief has been
received from the General Counsel.
A motion by the Respondent to dismiss the complaint, upon which ruling was
reserved, is disposed of by the findings, conclusions, and recommendations below.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a North Carolina corporation, having its office and plant
at Lexington, North Carolina, where it is engaged in the manufacture and sale
of bedroom furniture. During the year preceding the hearing it purchased raw
materials, equipment, and supplies for use at its plant valued at more than
$1,000,000, 70 percent of which was purchased outside the State of North
Carolina. During the same period it sold finished products valued at more than
$1,000,000, 90 percent of which was shipped to points outside the State of North
Carolina.
Richard J. Markland on April 13, Joseph Mason on October 5, Jewell O. Peek on
October 22, wade Johnson on October 23, and Shearlie Myers on November 16.
DIXIE FURNITURE COMPANY, INC. 1299
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, CIO, herein called the Union, is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Events before the drat discharge
The Union began efforts to organize the Respondent's employees in mid-
January 1951. Leaflets were distributed ; organizers solicited members near the
plant. Management became aware of the union activity as the campaign began'
A few days after the campaign started the Respondent put into effect a general
wage increase. The complaint alleges that granting this increase, "while . . .
employees were engaged in self-organization," was an unfair labor practice.
The Trial Examiner is of the opinion that evidence is insufficient to establish
this conclusion. At the time the increase was granted the Union had made no
claim to be the bargaining representative of any employees. There is no evi-
dence that any management representative urged the increase, before or after
its granting, as an inducement to employees to remain out of the Union. Nor
is there any convincing testimony to refute that of Personnel Manager Wilkinson
to the effect that "we went along with two or three other plants in town and
granted a general wage increase all at the same time." The circumstances
arouse suspicion, particularly in view of Wilkinson's own lack of candor, noted
in a footnote below, in claiming that "the Company" did not know of union activity
until long after wages had been increased ; mere suspicion, however, does not
support the finding sought by General Counsel on this point.
Soon after organizing began Line Foreman Ed Lanier' asked employee Harry
Massey what he thought about the Union, said he knew Massey had joined, and
told the employee that Wilkinson had said he "would not do anything else" for
him. Lanier's quoting of Wilkinson, whether accurate or not, to the employee
under the circumstances described, was a thinly veiled threat, and constituted
interference and restraint of a nature proscribed by the Act.'
Working on the same line with Massey was Richard J. Markland who, early
in the campaign, became an active leader on the organizing committee. In
March, noting that John Ray, supervisor of the cabinet room, and Foreman
Lanier were watching him more closely than ever before, Markland reported the
fact to union officials . A union representative thereupon sent to the Respondent,
on April 2, the following telegram :
This is to notify you that Willie Mae Sidden and R. J. Markland are on the
active organizing committee representing the United Furniture Workers of
Although Personnel Manager Howard S. Wilkinson denied that "the Company" had
any knowledge of the campaign until "the last of February or around the first of March,"
more credible testimony , Including portions of his own, establishes that his denial falls
short of accuracy. Wilkinson himself said that he saw one of the organizers, while
handing out leaflets , stop and talk to an employee , and saw the employee sign a card.
This occasion , according to the uncontradicted testimony of the employee , was in January,
"just as they started to get the Union up." Furthermore, there is no refutation of
employee Zona Sarratt's testimony to the effect that In the middle of January, when
Wilkinson reemployed her, he asked her if she knew "there was a Union trying to get into
the Furniture Company, " and told her he didn 't think it was necessary
S For some unrevealed reason Lanier testified that he was a "leader ." His superior,
John Ray, however , said he was "line foreman," and Lanier admitted having the authority
to discharge employees.
4 This is so despite Massey's own opinion that he "would not say that was a threat."
Massey was still employed, and testifying before management representatives.
242305-53-83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, CIO, in your plant. They have been informed of their legal rights
and they will comply with the labor laws and we request that you and your
agents also comply with the said law.
Shortly after receipt of the wire Markland and Sidden (a female employee
not involved in these proceedings) were called to the office where Wilkinson, in
the presence of Ray, read to them the following statement :
The company has seen fit to call you two employees into the office as
representatives of your Union for a short conference. The company is
familiar with the law which gives you the right to join a Union and to show
your interest in the Union in such manner as is allowed by the laws of our
country. The company, however, desires to call to your attention this very
important fact, that your membership in a Union does not relieve or lessen
your responsibility to the company, and that it does not relieve or lessen
your duties to perform the work required of you during working hours, and
that your membership in a Union does not allow you to neglect your work and
to discuss Union matters or solicit Union memberships during working hours.
The company desires to inform you that it has no desire to deprive you of
any of your rights but that it expects you and will continue to expect you to
do your work in a proper manner and that if you fail to do so or if either
of you engage in Union activities to the neglect of your responsibility as an
employee of the company, that the company will find it necessary to termi-
nate your employment.
Soon after this event the Respondent posted in the plant copies of the following
notice :
Notice to All Employees
Some of you have recently been asking questions in regard to the following
matters and we have decided to state the Company's position on these
matters as clearly and as definitely as we can for everybody alike :
It is not necessary, and it is not ever going to be necessary, for any-
body to belong to the CIO Union, or any other Union, in order to work
for this Company.
No person will be allowed to carry on Union organizing activities in
the Plant during working hours. Anybody who undertakes to do so
and who thereby interferes with his own work or the work of others
will be discharged.
We will not tolerate any act by the Union or Union members which
is done with the purpose of causing any trouble in the Plant for
employees who are opposed to the Union. Those who undertake to put
such pressure on other employees will be discharged. Anybody who
tells you anything contrary to the foregoing is not telling you the truth.
Dixis FURNITURE COMPANY, INC.
General Counsel alleges in the complaint that the Respondent violated the Act
by "promulgating and enforcing a discriminatory rule prohibiting all discussion
in favor of or solicitation for the Union on its property. . . ." It appears that
the complaint refers to the above-quoted notice as well as the statement read to
Markland. Only by straining at grammatical frailties may either the notice or
the statement be construed as "prohibiting all discussion in favor of or solicita-
tion for the Union on its property." In their respective contexts, it is reasonably
clear that "to discuss Union matters," in the statement, and "to carry on Union
organizing activities in the plant," in the notice, were not to be allowed to the
DIXIE FURNITURE COMPANY, INC. 1301
extent that work might be neglected or interfered with during working hours.
Thus the Trial Examiner is unable to find that promulgation of the rule consti-
tuted illegal interference, restraint, and coercion. The single instance revealed
in the record in which the Respondent claims it invoked this rule is described
in the section immediately below. -
B. The discharge of Markland
Richard J. Markland was summarily discharged on April 13, a few days after
being called before Wilkinson and Ray and warned that he would be fired if he
engaged in "union activities to the neglect of" his "responsibility as an employee
of the company." The warning given Markland was precipitated, not by any
dereliction of duty called then to his attention, by either superior, but simply
because the Union had notified the Respondent of his union leadership.' And
the Union had notified the Respondent because Ray had been watching the
employee more closely than usual.
The circumstances of the discharge itself, as described credibly by Markland,
are not specifically refuted by either Wilkinson or Ray. According to the
employee, Ray took him to Wilkinson's office during the afternoon of April
13, where Wilkinson told him he had been warned a few days before about
the "rules and regulations," that they had a witness who said his signature
on a union card had been taken by him during working hours, and that there-
fore he was being paid in full and discharged. Markland asked, "When is
this supposed to have happened?" Wilkinson replied, "That will be for us to
prove." Markland was not permitted even to return to his work room for
his coat.
The foregoing facts plainly point to the conclusion of an illegal, discriminatory
discharge, as contended by General Counsel.
The Respondent claims, however, that Markland was actually discharged for
other reasons. A number were advanced. Counsel for the Respondent said
at the opening of the hearing that he was fired "because he neglected his work,
interfered with his own work and the work of others by getting around over
the plant away from his job too much." According to company records he was
discharged for "unsatisfactory work and conduct." As to the claim of the em-
ployee's "unsatisfactory work," the testimony of both Lanier and Ray falls
far short of lending credible support. Ray at first said he instructed Lanier
to tell Markland, "a couple of tunes a week for quite a time," that his work
was unsatisfactory. When pressed for actual occasions, however, Ray admitted
that Markland's work was not "too much worse than a lot of others," that
he did not talk to Lanier about Markland's "bad" work specifically but about
that of all the men on the line, and finally that Markland's work was actually
no worse than that of anyone else. There were six workers on Markland's
production line; no other was fired at the time. Lanier's testimony on the
subject was confused and couched in vague generalities, obviously cut to fit
what he considered to be the Respondent's wish. At first he said "ain't none
" Wilkinson claimed that he gave Markland this formal warning because he previously
had been neglecting his work by soliciting membership , and that it had been so reported
by the foreman and the supervisor as well as several employees . This claim was gratuitous
and without credible support in testimony of other witnesses for the Respondent. Lanier
was Markland 's foreman . Be said that he was not familiar with the facts leading up to
the discharge , and was not consulted about it. There is nothing in his testimony to
indicate that he ever complained , either to Ray or to Wilkinson , about Markland . Nor does
the testimony of Ray reveal any instance of his "reporting" anything to Wilkinson about
Markland until April 12, the day before the discharge . No employee testified as to any
instance of reporting to Wilkinson before the warning.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his case fitting been perfect," although he admitted that he had transferred
Markland to the line in 1949, and had given him a raise because "he was good
enough." He cited no example or illustration of bad work, and finally claimed
that it started to get bad in February, "right after the union started." Fur-
thermore, as noted in a footnote above, Lanier, who was Markland's immediate
superior, admitted that he was not consulted about the discharge and knew
nothing about the facts leading up to it. Had "unsatisfactory work" been a
factor in the dismissal, it is reasonable to believe that Lanier would have at
least been consulted.
As to the claim that Markland interfered with the work of others, only a
single possible instance was cited as having come to management's attention
before the discharge. According to employee Jess Leonard, a polisher on
another production line, a number of times when Markland passed by his machine
he would briefly stop and talk with him. Sometimes they talked about swapping
dogs. Sometimes Markland urged him to sign a union card. He always
refused. His own testimony makes it plain that he stopped work voluntarily,
for as he said, "He stood there and talked and I talked to him." According to
both Leonard and his superior, Eugene Smith, the latter made no issue or com-
plaint about these conversations until April 12, the day before the discharge.
Until then he had never complained that Leonard's work was being interfered
with. On that occasion, Smith came over to Leonard's place of work after
Markland had left and, according to Leonard, asked "what we were talking
about." Leonard told him that Markland had been talking "about that Union."
Smith told him to go to work and "don't pay any attention to the Union." Smith
promptly reported the event to Ray. Ray immediately went to Wilkinson
because, he said, he "was there when the telegram [was received] that the
Union sent them notifying them that they were leaders in the Union." Wilkinson
sent for Leonard, and the next day told Ray it would be all right to fire
Markland. Markland was not questioned by Wilkinson or Ray, nor was he
informed as to what employee he was accused of soliciting.
In summary, the record reveals no credible, substantial evidence to support
the claim that Markland's work was unsatisfactory or that he unduly interfered
with the work of others. Credible evidence establishes that it was common
practice for employees to leave their line to go to the toilet, or for drinks, and
to talk among themselves. Solicitations, too, in the plant are not uncommon.
Wilkinson admitted that solicitation for the "March of Dimes" was permitted,
as well as the taking of collections for employees who died or were ill.
The Trial Examiner is convinced and finds that the real reason for the dis-
charge was that Ray was told Markland had asked Leonard to sign a union card,
and that this incident was seized upon as a pretext for the purpose of discouraging
union membership. By the discriminatory discharge the Respondent interfered
with, restrained, and coerced employees in the exercise of rights guaranteed
by the Act.
C. The discharge of Joseph Mason
Employee Joseph Mason, one of a two-man crew running a rip saw, was dis-
charged on October 5, 1951, when he "took off" that afternoon. Mason claimed,
as a witness, that he had permission to be absent. Supervisors testifying for the
Respondent claimed that not only was permission refused, but the employee
was specifically warned that if he did "take off" he need not come back.
The complaint alleges that Mason was fired for his union activities. Whether
or not this was so is the major issue. He joined the Union in March and
thereafter obtained signatures to many union cards. According to his own
DIXIE FURNITURE COMPANY, INC . 1303
testimony, however , he "signed up" most of the new members away from the
plant and there is no evidence that such activities were observed by any super-
visor. Furthermore , according to his own testimony , he knew of no way by
which management might have become aware that he was a "Union man." Both
of Mason's supervisors and the other employee member of his rip-saw crew denied
knowledge of Mason's union activity.
In the absence of substantial evidence that the Respondent knew or had reason
to believe that Mason was active in the Union, it follows that the allegation
of the complaint as to this employee must be dismissed.'
D. The discharge of Jewell O. Peck
Jewell Peck was an experienced employee in the Respondent's cabinet room
at the time of his discharge on October 22; it is undisputed that he received
"top money" on the "case line" and that before his dismissal by Ray, who also
discharged Markland, Peck's immediate foreman, James Kirkus, had obtained
for him a wage increase in order to keep him from leaving the plant for a better
paying job. It is likewise undisputed that Peck's work was complimented by
at least two foremen. The Respondent claims, nevertheless, that the employee
was discharged for "unsatisfactory work."
Union organization activity apparently revived during the summer and fall
of 1951, and Peck took a leading and open part in it. In mid-August a petition
for certification was filed with the Board.' Peck solicited members. In early
October he wore a union button in the plant. One day he gave the button to
another employee, Billie Short. Foreman Kirkus saw Short wearing it and
told him to take it off because, according to the foreman's own testimony,
wearing it "might cause him more trouble," and might do "him more harm
than . . . good." Short promptly returned the button to Peck.
On October 18, just before his discharge, Peck distributed union leaflets near
the plant entrance, offering them openly to Wilkinson, Ray, and Kirkus, among
others.
During the afternoon of October 22, a fellow-employee of Peck, working on the
line ahead of him stumbled and fell. Peck laughed aloud. Supervisor Ray
stepped up, took Peck by the arm, led him to Wilkinson's office, and fired him
for "laughing and joking on the job." Ray went out. Peck asked Wilkinson,
"Are you going to sign my card to that effect?" Wilkinson answered that when
a man got tired of another he could fire him.
These circumstances point plainly to an illegal, discriminatory discharge.
At the opening of the hearing the Respondent claimed that Peck was dismissed
for "unsatisfactory work." The claim lacks any credible support. Kirkus, his
immediate supervisor, was not questioned on the point ; It does not appear that
he was even consulted about the discharge. As in the case of Markland, Ray
alone was responsible for the dismissal . And Ray testified that Peck was an
"average worker."
The trivial incident of Peck laughing at an accident of a fellow-worker in the
line ahead of him, even as depicted by unraveling Ray's confused testimony
about it , was plainly but a pretext , and not the real reason for the dismissal.
The Trial Examiner concludes and finds that Jewell Peck was discriminatorily
discharged on October 22 because of his union activity. By this discharge, and
by Kirkus' instruction to employee Short to remove the union button, accom-
"In view of this conclusion , it appears to be unnecessary to resolve the conflict In testi-
mony as to whether or not Mason actually bad, or believed he had, permission to be
absent on October 5.
Case No. 34-RC-338.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
panied by the plain threat of reprisal , the Respondent has interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed by the
Act.
E. The discharge of Wade Johnson
Wade Johnson had been working for the Respondent about a year when he
was let go on October 23, 1951. For the most of that period, except the last
3 days of his employment, he polished cases with steel wool. He complained
frequently that use of the steel wool injured his hands, asked often for transfer
to other work, but actually was not removed to another job until just before his
services were terminated.
He solicited union memberships near the plant and wore a union button for a
couple of weeks before his discharge ; the latter fact was acknowledged by his
foreman, Roy Lanning. It is found that Lanning was aware of his union ad-
herence. Absent credible and substantial evidence that he was discharged for
a legal cause, it would reasonably be inferred from the Respondent's established
pattern of antiunion conduct that Johnson , like Markland and Peck, was dis-
charged to discourage union membership.
Credible testimony of Lanning, however, is to the effect that he became super-
visor over Johnson only a few weeks before the dismissal, and that Johnson's
work was unsatisfactory in that he would not "wool . . . hard enough" the
"fronts" assigned to him. The claim is not inconsistent with Johnson's testi-
mony that over a much longer period he had been complaining because the use
of the wool hurt his hands. Finally, according to Lanning, he decided to
move the employee to another job, crating cases. But on this job, also, Lanning
said Johnson "didn't do," for "he would be standing there and the other fellow
standing there waiting for him to do his job." On October 23, seeing Johnson
"standing there," he took him to Wilkinson's office, told the personnel manager
he could not use him , and walked out of the office. The testimony of both Wil-
kinson and Johnson is in general agreement that Wilkinson tried to ascertain
from the employee what the trouble was, and that Johnson finally ended the dis-
cussion by demanding that Wilkinson " sign my card and let me go." While it is
clear that Lanning did not want him in his department, the record does not show
that he was actually discharged other than at his own demand, despite Wilkin-
son's entry on company records to the effect that the employee was dismissed for
"unsatisfactory work and conduct."
The present state of the record permits only the reasonable conclusion that the
evidence is insufficient to support allegations of the complaint as to Johnson. It
will be recommended that such allegations be dismissed.
F. The discharge of Shearlie Myers
Myers also had been working for the Respondent about a year when he was
discharged in November 1951. He joined the Union early in its organizational
period, said he solicited many employees to sign cards, but admitted that he
could not say that any supervisor knew he was in the Union. There is scant
evidence in the record to support a finding that management was aware of his
union adherence or activity.
The circumstances of the discharge, moreover, and his many admitted ab-
sences during the year of his employment, indicate that Myers was dismissed for
legal cause. Early in November he stayed away from work to kill hogs, was in
an automobile accident and remained at home and elsewhere for about 2 weeks.
When he finally reported to pick up his check he was told he was "through" for
being out so much. At least two of a number of employees, by whom Myers
DIXIE FURNITURE COMPANY, INC. 1305
claimed he sent in word to the Company that he would be out, flatly denied his
testimony, one of them being no longer an, employee of the Respondent.
The Trial Examiner concludes and finds that there is not sufficient credible
evidence to support the alegations of the complaint as to Myers . It will be rec-
ommended that they be dismissed.
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 its operations described in section I, above, have a Close, in-
timate, and substantial relation 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 the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the
hire and tenure of employment of Richard Markland and Jewell Peck. It will
be recommended that the Respondent offer to them immediate and full rein-
statement to their former or substantially equivalent positions, without prej-
udice to their seniority or other rights and privileges, and that they be made
whole for any loss of pay they may have suffered by reason of the discrimina-
tion against them, by payment to each of them of a sum of money equal to that
which he normally would have earned as wages from the date of discrimination
to the date of offer of reinstatement, less his net earnings' during such period.
The back pay shall be computed in the manner established by the Board, and
the Respondent shall make available to the Board payroll and other records to
facilitate the checking of the amounts due.'
The character and scope of the unfair labor practices engaged in indicate an
intent to defeat self-organization of employees. It will therefore be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees in the exercise of rights guaranteed
by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in reg«rd to the hire and tenure of employment of
Richard J. Markland and Jewell O. Peck, thereby discouraging membership in
the Union, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of 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.
Cro88ett Lumber Company, 8 NLRB 440
F. W. Woolworth Company, 90 NLRB 289.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
5. By discharging Joseph Mason , Wade Johnson , and Shearlie Myers the
Respondent has not engaged in unfair labor practices within the meaning of
the Act.
[Recommendations omitted from publication in this volume.]
THE AMERICAN THREAD COMPANY and ThxTILE WORKERS UNION or
AMERICA, CIO. Cases Nos. 10-RM-55, 10-RC-1020, and 10-CA-
1132. December 22, 1952
Decision and Order
On June 12, 1952, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and a supporting brief.
The Board 1 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.
Order
Upon the entire record in the case, the National Labor Relations
Board hereby orders that The American Thread Company, Talla-
poosa, Georgia, its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of
America, CIO, or any other labor organization, by discriminating
in regard to the hire or tenure of employment of its employees, or
any term or condition of employment whatsoever.
(b) Interrogating employees concerning their union activities,
reprimanding and threatening employees for engaging in concerted
activities, disparately enforcing plant rules to discourage concerted
activities and membership in a labor organization, and sponsoring and
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its power in connection with this case to a three -member
panel [Chairman Herzog and Members Houston and Styles].
101 NLRB No. 212.