Elmwood Upholstery Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1089 (N.L.R.B. 1964)

ELMWOOD UPHOLSTERY CO., INC. 1089
NoTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, 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.
Employees may communicate directly with the Board 's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue , Houston , Texas, Telephone No. Capitol
8-0611 , Extension 271, if they have any question concerning this notice or com-
pliance with its provisions.
Elmwood Upholstery Co., Inc. and United Furniture Workers of
America, AFL-CIO. Case No. 1-CA-4409. June 29, 1964
DECISION AND ORDER
On March 24, 1964, Trial Examiner Max Rosenberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the Charging Party filed ex-
ceptions to the Decision and supporting briefs, and the General
Counsel filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
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 Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this case, and hereby
adopts the findings,' conclusions, and recommendations 2 of the Trial
Examiner as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
i We find it unnecessary to decide whether Plant Manager Thnl 's testimony as to what
he told groups of employees in the sanding department about 2 weeks before the sched led
election imported a threat of economic reprisal if the Union were successful . As the Trial
Examiner's other findings of Section 8(a)(1) violations are in our opinion clearly estab-
lished, the additional finding is to that extent merely cumulative. We shall therefore
delete from his Recommended Order the paragraph which was based solely on Thal's ad-
mitted statements on the comparative advantage of a nonunionized plant over a unionized
one.
2 Although the violations found occurred only at Respondent 's Branford . Connecticut,
plant , we find merit in the Charging Party's contention that they also had an effect on
the employees at Respondent ' s other plant in nearby New Haven, since the election
scheduled to be held on December 12, 1963, among the employees at both plants was in-
definitely postponed by the filing of the charges herein . We shall therefore broaden the
Recommended Order to require the posting of appropriate notices at both plants.
147 NLRB No. 141.
756-236-C,5-vol . 147--70-
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order, the Order recommended by the Trial Examiner, and orders
that the Respondent, Elmwood Upholstery Co., Inc., its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, with the following modifications :
1. Paragraph 1(d) of the Recommended Order is deleted, and the
paragraph following is renumbered as 1(d) .
2. The first sentence of paragraph 2(a) of the Recommended Order
is modified in part to read as follows : "Post in conspicuous places at
its plants iii Branford and New Haven, Connecticut ...."
3. The language in the notice that corresponds to the deleted para-
graph 1(d) of the Recommended Order is also deleted.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard before Trial Examiner Max Rosenberg at New Haven,
Connecticut, on February 3, 1964, on complaint of the General Counsel of the
National Labor Relations Board and answer of Elmwood Upholstery Co., Inc.,
herein called the Respondent.' At issue is whether the Respondent violated Section
8(a)(1) of the Act in the respects alleged in the complaint. All parties were rep-
resented by counsel who, at the conclusion of the hearing, waived oral argument.
Briefs have been filed by the General Counsel and the Respondent, which have
been duly considered.
Upon the entire record and my observation of the witnesses, including their
demeanor while testifying on the stand, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Connecticut corporation with its principal office and place of
business at 70 Fulton Terrace in New Haven, Connecticut, is engaged in the manu-
facture, sale, and distribution of stuffed and upholstered furniture. It also maintains
a frame fabrication plant in Branford, Connecticut. In the course and conduct of
its business, Respondent annually has caused finished products valued in excess of
$50,000 to be shipped directly from the 'State of Connecticut to points outside that
State. The complaint alleges, the answer admits, and I find that Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The violations charged
The complaint alleges that Respondent , through Plant Manager Harry Thal,
violated Section 8(a)(1) of the Act by the following conduct : (a) in or about the
week commencing December 9, 1963, and on December 16, 1963, Respondent
threatened its employees with discharge because of their union activities and inter-
rogated them concerning said activities ; and (b) in or about the week commencing
December 9, 1963 , Respondent threatened its employees that the Branford plant
would be closed and economic reprisals would be visited upon them if the Union
succeeded in its attempt to organize the employees . Respondent's answer denies
these allegations.
B. The events
The Respondent operates two plants in Connecticut, one in New Haven and the
other in Branford. The Branford plant houses the frame division where the frames
1 The complaint, which issued on January 20, 1964, is based on a charge filed on Decem-
ber 10, 1963, and subsequently amended on December 20, 1963.
ELMWOOD UPHOLSTERY CO., INC. 1091
for Respondent's stuffed and upholstered furniture are manufactured? This plant
has a complement of approximately 40 employees who are under the sole direction
and control of Harry Thal, concededly a supervisor within the meaning of Section
2(11) of the Act. About 17 of these employees are females whose duties consist
of hand-sanding furniture frames and whose work area is located adjacent to Thal's
office. All of the events in question occurred at the Branford installation.
The Union commenced an organization campaign among Respondent's employees
sometime in the fall of 1963 and, on October 8 of that year, filed an election petition
in Case No. 1-RC-7618 seeking to represent the production employees at both the
New Haven and Branford plants. Respondent received a copy of the petition on
October 10. An election was scheduled for December 12, but was postponed in-
definitely on December 10 due to the filing of the charges which give rise to the
instant proceeding.
Decision in this case turns upon the-testimony of four witnesses-employees Rosa
Ortiz, Angela Bernier, and Amelia Rosado who testified on behalf of the General
Counsel, and Harry Thal who testified for Respondent in defense of the charges.
Ortiz was hired by Respondent on October 3, 1963, in the sanding department.
During the first week of November, the Union -attempted to persuade her to join.
Ortiz testified that on or about December 9, Thal came out of his office, entered
the adjacent sanding department, and announced to the girls that the plant would
be closed if they joined the Union. She further testified that on December 16,
while she was working with employee Maria Rivera near the door to Thal's office,
Thal appeared and declared that Ortiz would be laid off if she joined the Union.
Thal then asked Rivera whether she had signed a union authorization card, and,
upon receiving a negative reply, cautioned Rivera that "You'd better not."
Bernier had been employed by Respondent in the sanding department for ap-
proximately 7 months before she quit her job in January 1964. She testified that
she had been solicited by the Union about December 9, but was unsure as to the
exact date. She corroborated Ortiz's testimony that on or about December 9,
Thal entered the sanding department from his office and remarked that the plant
would be closed if .the girls joined the Union, and that on December 16, Thal stood
in the doorway to his office and told her and two. fellow employees that they would
get "layoff papers" and the plant would be closed if they selected the Union as their
bargaining agent.
Rosado had been employed in the sanding department since the spring of 1963
and had been solicited by the Union during the first week in November. She, too,
corroborated the testimony of Ortiz and Bernier that during the week of December
9, while she was working in the company of four or five employees in her depart-
ment, she overheard Thal, in a voice loud enough so that he could be heard by Ortiz
and Bernier, remark that the plant would be closed and the girls laid off if they
joined the Union.
Thal denied that he told Ortiz, Bernier, Rosado, or any other girl in the sanding
department, that they would be laid off or that the Branford plant would be closed
if they joined the Union, and denied that he ever asked Maria Rivera whether she
had joined the Union. However, Thal admitted on direct examination that he had
conversations with groups of employees in the sanding department about 10 days
or 2 weeks prior to the scheduled. election on December 12 in which he expressed
his opinion concerning the effects of unionization of the plant. Thal testified that,
-in response to a question posed by the girls as to his opinion of the Union, he replied
that "I pointed out to them that I don't think-that's my personal opinion-that
they had anything to gain, and they may have a lot to lose." Thal went on to
explain to them that they had year-round employment with 13 hours of overtime
each week and stated, "There's no one can show you that a union shop can do that,
and as far as your gaining anything, you've got more to lose than to gain by
joining the union." Thal further added that he told the girls that Respondent
could not compete with unionized shops, and that if Respondent had to operate
under a union contract their hours of work would be decreased and Respondent
eventually would be out of business. On cross-examination, Thal testified that he
had hired a Spanish-speaking schoolteacher in November 1963 to speak to the girls
,in their native Spanish tongue to "convey the message" which Thal sought to get
-over to them during his December conversation with them.
I credit the mutually corroborative testimony of Ortiz, Bernier, and Rosado that
-they were told by Thal that Respondent would lay off the girls in the sanding depart-
ment, an act which they construed to constitute a discharge, and that Respondent
It appears that the upholstering operations are performed at the New Haven plant.
0
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would close the plant if the employees joined the Union. I also credit Ortiz' testi-
mony that Thal questioned Maria Rivera as to whether she had signed a union card
and warned her not to do so? While their testimony at times reflected a confusion
as to the dates on which certain events occurred, I attribute this to their lack of
facility with the English language rather than to their lack of candor.4
I do not credit Thal's denial of the statements attributed to him by Ortiz, Bernier,
and Rosado because of the manner in which he testified and the content of his testi-
mony. In offering his testimonial denials, Thal displayed a tendency to interpose a
denial before he was fully aware of the purport of the question asked. Further, in
response to a question on cross-examination as to whether Thal opposed the Union's
enlistment of employee support, Thal professed disinterest and neutrality in the
matter. Such profession is hardly consistent with his testimony that, shortly before
the election scheduled for December 12, he informed the sanding department em-
ployees that they had nothing to gain and much to lose if the Union succeeded in
entering the plant because, under a union contract, their hours of work would be
curtailed and the Respondent might go out of business. Nor is it consistent with
his further testimony that he had hired a Spanish-speaking schoolteacher to address
the girls and "convey the message" which Thal had for them, namely, that they had
nothing to gain as far as the Union was concerned. I am persuaded and find that
Thal's testimony concerning the curtailment of working hours and the eventual shut-
down of the plant if the Union succeeded lends corroborative credence to the testi-
mony of Ortiz, Bernier, and Rosado that Thal informed them they would be laid
off and the plant closed if they selected the Union as their bargaining representative.
Moreover, I accept Thal's testimony in this regard as a truthful representation of
what he told the girls in these conversations.
C. Conclusions
I have heretofore credited the testimony of Rosa Ortiz, Angela Bernier, and Amelia
Rosado that Thai threatened them and their fellow employees with layoff or discharge
and with closing the plant if the Union succeeded in its organizational campaign, and
I conclude and find that by this conduct the Respondent violated Section 8(a) (1) of
the Act. I have also credited Ortiz' testimony that Thal interrogated Maria Rivera
as to whether she had signed a union card and warned her not to do so. I conclude
and find that such conduct constituted interference, restraint, and coercion within the
meaning of Section 8(a)(I) and was violative of that section. I have also accepted
Thal's testimony that he informed the girls in the sanding department that they had
nothing to gain and much to lose if they selected the Union because their hours of
work would be reduced and the plant eventually closed. I conclude and find that,
by such conduct, Respondent threatened its employees with economic reprisals in
the event the Union was successful and thereby additionally violated Section 8(a)(1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described 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 disputes obstructing commerce and the free flow
of commerce.
3 In his brief , Respondent 's counsel contends that I should discredit the testimony of
Ortiz. Bernier, and Rnsndo. In support of this contention, he argues that the General
Counsel 's failure to call Maria Rivera as a witness to testify concerning Thal's interroga-
tion of her, as well as the General Counsel 's failure to produce as witnesses other em-
ployees in the sanding department who were present when Thal made the statements
attributed to him by Ortiz, Bernier, and Rosado, indicates that their testimony would not
be corroborative . Such a contention is too speculative to merit serious consideration, and
I find no merit in it. After the General Counsel rested his case - in-chief, Respondent was
full y apnrised that these other employees were involved in the case. Nevertheless, Re-
spondent 's counsel made no request for a continuance of the hearing to prod ce these
witnesses and elicit their testimony . Respondent therefore had ample opportunity to sus-
tain the validity of the contention which it now makes , but did not do so.
• The record shows that Ortiz, Bernier , and Rosado were born in Puerto Rico and have
resided ,in the United States from 3 to 8 years. Although they studied the English
language in Puerto Rican schools, they exhibited an obvious difficulty in understanding
questions propounded to them and in expressing themselves.
ELMWOOD UPHOLSTERY CO., INC. 1093
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in viola-
tion of Section 8(a)(1) of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
It will be recommended that Respondent cease and desist from coercively inter-
rogating its employees concerning their union membership; threatening its employees
with•discharge or layoff because of their union activities; threatening its employees
with'closing the Branford; Connecticut, plant, if the Union succeeded in organizing
that plant; and threatening its employees with economic reprisals if the Union suc-
ceeded in becoming their collective-bargaining representative.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Furniture Workers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)
(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, and pursuant to Section 10(c) of the Act, I hereby recom-
mend that the Respondent, Elmwood Upholstery Co., Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning their union membership.
(b) Threatening its employees with discharge or layoff for engaging in union ac-
tivities.
(c) Threatening its employees with closing the Branford, Connecticut, plant, if
the Union succeeded in organizing said plant.
(d) Threatening its employees with economic reprisals if the Union succeeded in
becoming their collective-bargaining representative.
(e) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the Union or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in any other
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 organiza-
tion as a condition of employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Post at its plant in Branford, Connecticut, copies of the attached notice
marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Di-
rector for the First Region , shall, after being ' duly signed by the Respondent's au-
thorized representative, be posted by it immediately upon receipt thereof, and be
maintained by it for at least 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.
(b) Notify said Regional Director, in writing, within 20 days from receipt of this
Recommended Order, what steps Respondent has taken to comply herewith .6
In the event that this Recommended Order be adopted by the Board, the words "a'
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" In the notice . In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
61n the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela -
tions Act, we hereby notify our employees that:
WE WILL NOT coercively interrogate our employees concerning their mem -
bership in United Furniture Workers of America, AFL-CIO; or threaten them
with discharge or layoff for engaging in union activities ; or threaten them that
our Branford, Connecticut , plant , will be closed in the event the above-mentioned
Union succeeds in organizing that plant ; or threaten them with economic
reprisals if they select that Union as their collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations to join or assist United Furniture Workers of America, AFL-CIO,
or any other labor organization , to bargain collectively through representatives of
their own choosing , and to engage in any other concerted activities for the pur-
pose 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.
ELMWOOD UPHOLSTERY CO., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
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.
Employees may communicate directly with the Board 's Regional Office, 24 School
Street , Boston , Massachusetts , Telephone No. 523-8100, if they have any questions
concerning this notice or compliance with its provisions.
Supreme Dyeing & Finishing Corp . and Valley Maid Co., Inc.
and Amalgamated Lace Operatives of America, Levers Aux-
iliary Section . Case No. 1-CA-4248. June 29, 1964
DECISION AND ORDER
On March 10, 1964, Trial Examiner Reeves R. Hilton issued his
Decision in the above-entitled proceeding, finding that both Com-
panies constituted a single employer (herein called Respondent) and
that 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 attached Trial
Examiner's Decision. Thereafter, Respondent and the General Coun-
sel filed exceptions to the Trial Examiner's Decision and supporting
briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
147 NLRB No. 112.