Empire Furniture Corporation

National Labor Relations Board - Board Decisions

Jan 7, 1939

10 N.L.R.B. 1026 (N.L.R.B. 1939)

In the Matter of EMPIRE FURNITURE CORPORATION and TEXTILE WORK-
ERS ORGANIZING COMMITTEE ,
Cases Nos. C-305 and R-386.-Decided January 7, 1939
Furniture Manufacturing Industry-Interference, Restraint, or Coercion:
antiunion statements ; threat to close plant if employees joined union ; threat
of loss by union members of their employment ; attempt to obtain union leader's
support by promise of wage increase ; refusal to recognize union without elec-
tion and concurrent refusal to agree to bargain with union if designated as
bargaining agent in election-Discrimination : replacement of laid-off employee,
held a discharge ; alleged quitting and alleged discharge for cause after lay:
offs held immaterial when alleged quitting and alleged cause for discharge
were provoked by discriminatory acts ; knowledge of employee' s union affilia-
tion and activity, although denied by foreman, inferred from same foreman's
general familiarity with union organizational activities and proven knowledge
of another employee's union affiliation, likewise denied ; charges of, sustained
as to four employees, dismissed as to two employees-Reinstatement Ordered:
except as to one employee who did not desire reinstatement-Back Pay:
awarded as to four 'employees ; fact of relatively greater efficiency of employee
replacing employee discriminatorily discharged, held no bar to award-In-
vestigation of Representatives: controversy concerning representation of em-
ployees: refusal by employer to recognize representative-Unit Appropriate for
Collective Bargaining: all employees, except supervisory employees, foremen,
and office and clerical workers-Election Ordered: date of election and eligi-
bility date to be fixed by further order of the Board
Mr. John T. Mahoney, for the Board.
Simrnonds & Bowman, of Johnson City, Tenn., and Mr. C. Lee
Richardson, of Elizabethton, Tenn., for the respondent.
Mr. C. D. Puckett, of Kingsport, Tenn., for the Union.
Mr. David Y. Campbell, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon charges and amended charges duly filed by Textile Work-
ers Organizing Committee, herein called the Union, the National
Labor Relations Board, herein called the Board, by Charles N.
Feidelson, Regional Director for the Tenth Region (Atlanta, Geor-
gia), issued a complaint dated October 20, 1937, against Empire
10 N. L. R. B, No. 92.
1026
DEC[SIONS AND ORDERS 1027
Furniture Corporation,' Johnson City, Tennessee, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. On
June 23, 1937, the Union filed with the Regional Director a petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of the respondent and requesting an
investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the Act. On July 15, 1937, the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation and authorized the Regional Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice. On October 8, 1937, the Board, acting pursuant to
Article II, Section 37 (b), of said Rules and Regulations, ordered
a consolidation of these cases for purposes of hearing. Copies of the
complaint and petition, with accompanying notices of hearing, were
duly served upon the respondent and upon the Union. On Novem-
ber 1, 1937, the respondent filed an answer.
The complaint alleged in substance, so far as here material, (a) that
the respondent, on various dates in May and July 1937, discharged
Robert Arwood, Zeb Barnett, Sam Buchanon, Raymond Hicks, T. E.
Hughes, Bernie Morrison, Carmel Weidner, and Charles Wright,
for the reason that they joined and assisted the Union, thereby dis-
couraging membership in the Union; (b) that by the afore-mentioned
acts, and in various other ways, the respondent has interfered with,
restrained, and coerced its employees, and now is so interfering with,
restraining, and coercing them, in the exercise of the rights guaranteed
in Section 7 of the Act.
The respondent, by its answer, admitted in substance the allega-
tions of the complaint as to' the facts upon which jurisdiction is
alleged to rest, but denied that its operations affect commerce. It
denied, in general, the material averments of the complaint.
Pursuant to notice, a hearing was held on November 4, 5, and 6,
1937, at Johnson City, Tennessee, before J. Raymond Walsh, the
Trial Examiner duly designated by the Board. The Board, the
respondent, and the Union were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to produce evidence beaaring upon the
issues was afforded all'parties. During the course of the hearing,
counsel for the Board moved to dismiss the allegations of the coln-
1 Erroneously designated therein as Empire Furniture Company. At the hearing, upon
motion by counsel for the Board , the pleadings were amended to conform to the correct
designation.
1028 NATIONAL LABOR RELATIONS BOARD
plaint with respect to T. E. Hughes and Carmel Weidner. This
motion was granted by the Trial Examiner. The Trial Examiner
made various rulings on other motions of the parties , and on objec-
tions to the admission of evidence . The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On December 1, 1937, the Board, acting pursuant to Article II,
Section 37 , of said Rules and Regulations , ordered the proceeding
transferred to and continued before it . On April 26 , 1938, the Board
issued its Decision , Order and Direction of Election . On June 8,
the Board , after due notice to the respondent , entered its order setting
aside its Decision , Order and Direction of Election theretofore made.
On June 20 , the Board issued its Proposed Findings of Fact, Proposed
Conclusions of Law and Proposed Order and Direction of Election,
which was duly served upon all the parties.
On July 9, the respondent filed its exceptions to the Proposed Find-
ings of Fact, Proposed Conclusions of Law and Proposed Order and
Direction of Election. On August 9, the respondent filed a brief
and participated in oral argument before the Board, at Washington,
D. C. We have considered the respondent's exceptions and brief,
and in so far as they are inconsistent with the findings, conclusions,
Order, and Direction of Election below, find them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Empire Furniture Corporation, is a Virginia cor-
poration, having its principal place of business at Johnson City,
Tennessee . The respondent manufactures and sells bedroom, dining
room, and novelty furniture. The current annual volume of sales
is estimated at $1,000,000. At least 75 per cent of the respondent's
finished products are sold and shipped outside Tennessee. A sub-
stantial amount of the raw materials and supplies, principally lumber,
glue, varnish and lacquer, used in the course of the respondent's
business are shipped to the respondent's plant from points located
outside Tennessee. The respondent sells its finished products through
salesmen located in New York, Illinois, Massachusetts , Georgia, and
other States, and through mail orders, and maintains permanent
furniture exhibits in New York City and in Chicago, Illinois.
The respondent employs approximately 380 persons.
II. THE ORGANIZATION INVOLVED
Textile Workers Organizing Committee is a labor organization
affiliated with the Committee for Industrial Organization , herein
DECISIONS AND ORDERS 1029
called the C. I. 0., admitting to its membership all employees of the
respondent except supervisory employees, foremen, and office and
clerical workers.
III. THE UNFAIR LABOR PRACTICES
A. The respondent's attitude toward the Union
The Union began its organizational activities with a meeting of
the respondent's employees held on April 26, 1937, at Brinkley's
store, located across the street from the respondent's plant. About
20 employees attended the meeting. The organizing campaign was
actively prosecuted and membership in the Union increased rapidly.
Union literature was distributed at the plant gate; organizers ad-
dressed groups of employees at the, gate and at Brinkley's store;
groups of employees gathered at the store and discussed the Union.
These activities were observed by Leonard and Winebarger, the
respondent's foremen, and by, Hawks, a subforeman under Leonard.
Approximately 90 per cent of the respondent's employees joined
the Union during the 2 weeks following the first meeting.
On April 29, Leonard, as we find below, denounced the C. I. O. to
an employee as a "bunch of Communists ... [only] fit to stir up
trouble." Further, Winebarger, on April 28, told Hicks, an employee
named in the complaint, as we find below, that "all these fellows
that joined the Union can lose their jobs." Winebarger testified
as follows upon cross-examination concerning his attitude toward
unions:
Q. [By Mr. MAHONEY] You don't like [unions] ?
A. I never seen anything they ever done that would be of
help to me.
Q. You don't believe it would be of any, help to the men?
A. I have seen in the paper where they had unions and had
organizers and had strikes and killed somebody. I think the
meq that worked up there are as guilty as anybody. They are
as guilty as if I went out and shot a man.
Q. When did you get this sudden feeling . . . about unions?
A. [When] I saw the C. I. O. cause so much trouble.
Q. You didn't have it until you saw the C. I. O. come into
your plant?
A. I don't know that they are in the plant or have ever been
in there.
Winebarger admitted elsewhere that he had seen a union applica-
tion card in the plant. The cards show on their face the Union's
affiliation with the C. I. O.
1-17S41-39-vol 10-G6
1030 NATIONAL LABOR RELATIONS BOARD
Both Winebarger and Leonard have' authority to hire and dis-
charge employees. Leonard was foreman over Barnett and
Buchanon, employees named in the complaint. Hicks was employed
under Winebarger.
Shumate, the respondent's secretary-treasurer, likewise knew of the
Union's efforts to organize the employees. On April 30, 4 days after
the Union's first meeting, Shumate questioned Morrison, an em-
ployee named in the complaint, concerning Morrison's activity in
soliciting members for the Union. Shumate told Morrison, "We
can't be made to do anything. When it comes to where we can't do
anything, we will lock the gate and leave out of here." We think
that it is clear from the context of the conversation that Shumate's
threat to close the plant referred to the fruition of the,Union's efforts
to organize the respondent's employees.
During May and June, Chastain and other organizers for the Union
had several conferences with the respondent to discuss reinstatement
of employees named in the complaint and to obtain recognition as
the representative of the respondent's employees for the purposes
of collective bargaining. Gordon, the respondent's vice president and
general manager, at first refused to see Chastain on the ground that
the Union's organizers had no business at the plant. Gordon told
Chastain, "That damned C. I. O. has been causing trouble all over
the country." Both Gordon and Shumate accused Chastain of insti-
gating discontent among the respondent's employees. The respond-
ent admits that it refused to recognize the Union, although the Union
offered to produce its application cards to prove its majority.
Efforts subsequently were made by a Field Examiner for the Board
to obtain the respondent's consent to the holding of an election.
Shumate testified that the respondent was willing to consent to
an election, but admitted that it refused to sign an agreement to
bargain with the Union or other labor organization designated by
a majority of the respondent's employees. Shumate testified fur-
ther that the respondent refused to sign the agreement because
"we took that agreement to mean that they could come in from time
to time, keep renewing their efforts to get us to do certain things."
The respondent in substance admits that the agreement purported
to impose no obligation upon it which is not prescribed by Section
8 (5) of the Act.
We are convinced that from the beginning the respondent was
fully apprised of the activity among its employees toward self-
organization, and that the respondent opposed membership of its
employees in the Union. Its foremen denounced the Union and
threatened union members with loss of their jobs. Its officer, Shu-
mate, declared an intention to close the plant if the Union succeeded
DECISIONS AND ORDERS 1031
in organizing its employees. Finally, the respondent declined to
recognize the Union as the representative of its employees without
an election, but refused to agree to bargain collectively with the Union
if it were so designated in an election.
B. Discriminations as to tenure of employment
Sam Buchanon, Zeb Barnett, and Bernie Morrison were laid off on
May 3,2 1 week after the commencement of the Union's activities, for
substantially similar reasons. Barnett and Buchanon were among
the first to join the Union. Morrison joined on April 29. Barnett
was the leader in initiating the movement for self-organization. All
three employees were active in soliciting members for the Union.
Barnett and Buchanon were laid off by Hawks and Young, respec-
tively, subforemen under Leonard. Buchanon was employed as a
handsander in a group of approximately eight, paid as a group on a
piece-work basis. Young called Buchanon aside and told him, "I am
going to have to let you go at 4 o'clock. Mr. Gordon is off on a
furniture show and we got a telegram from him to cut off some."
Buchanon then asked for and received his wages. Buchanon was the
only handsander laid off. Lay-offs are made on the basis of personal
efficiency. Buchanon's competency as a workman is admitted by the
respondent. Buchanon testified that work was not slack. Two em-
ployees were hired as handsanders on the day following Buchanon's
lay-off. On the working day preceding Buchanon's lay-off the hand-
sanders worked overtime.
Young and Leonard denied knowledge of Buchanon's union affilia-
tion. Leonard, however, also denied knowledge that Barnett was a
member of the Union. We find below that Leonard attempted to
influence Barnett to withdraw from the Union. We think that Leon-
ard's denial of knowledge that Buchanon belonged to the Union is en-
titled to no greater weight. Young testified that Leonard told him,
with respect to the handsanders, "to let some off" because work was
slack. Young further testified that he laid off only Buchanon because
he "thought one was all that was necessary at the tune." Young ad-
mitted that he did not tell Buchanon when to return.
Both Young and Leonard testified, and the respondent contends in
its brief, that Buchanon became angry when informed of his lay-off
and demanded his wages; that such demand signified that Buchanon
was quitting. The respondent's contention that Buchanon quit con-
flicts with the testimony of its witness, one Scott, the timekeeper :
"[Buchanon] calve to me one afternoon, the day he quit, asking for
9 A list of employees whose employment was terminated during the period from January
I to October 31, 1937, inclusive, introduced in evidence by the respondent shows that
Buchanon ceased work on May 11. The discrepancy was not raised at the hearing nor
was Buchanon's testimony that he was laid off on May 3 questioned by the respondent.
1032 NATIONAL LABOR RELATIONS BOARD
his money. I didn't ask him why his employment was terminated.
I only asked him how, because it is a company rule that we do not pay
a man who quits until pay day. If he is discharged we pay him in
full on the day he is discharged." [Italics supplied.] The record
does not show that Young and Leonard were unfamiliar with the rule
of the respondent; nor that Buchanon's case was an exception.
Nevertheless, Young instructed Scott to pay the wages to Buchanon.
While not determinative of the issue, the incident casts light upon
the credibility of both Leonard and Young. Leonard's testimony,
we find elsewhere, lacks conviction. The testimony of Young is like-
wise unsatisfactory. In view of Scott's testimony, their admissions,
and the record, we feel that neither Leonard nor Young is a credible
witness. We are convinced that Buchanon did not quit his employ-
ment, as alleged by the respondent.
Laying off Buchanon allegedly because of lack of work, and then
replacing him on the following day with a new handsander, consti-
tuted a discharge.3
On April 29 Leonard approached Barnett during working hours
and said, "I am going to give you a raise." Barnett answered that
he had received a raise only the week before. Leonard then said, "Well,
I will give you another one if you will stick with us." Leonard fur-
ther asserted that the C: I. O. was a "bunch of Communists ... [only]
fit to stir up trouble" ; and quest coned Barnett concerning the number
of employees who had joined the Union. Leonard's version of the
conversation is not convincing. Leonard testified that Barnett re-
quested a raise, which Leonard promised to grant the following Fri-
day. However, Leonard do& not deny that Barnett had received an
increase the preceding week. Leonard testified that he was careful not
to discuss matters concerning unions with employees, but admitted
discussing with Barnett a current steel strike in Ohio. Leonard's testi-
mony does not explain his motive in singling out Barnett for such
discussion, but it may be inferred from the fact that Barnett, as a
leader of the Union, was prominent in its affairs. From Leonard's
admission, the context of the conversation, and the record, we are of
the opinion, and we find, that Leonard knew of Barnett's activity in
the Union and sought to influence Barnett to withdraw his
membership.
Barnett testified that Hawks approached him shortly before quit-
ting time on May 3 and said, "I have orders we are caught up with the
work and have to lay you off indefinitely." According to Barnett,
who was employed making table bases on a "horse clamp," lie replied
s Cf Matter of Harlan Fuel Company and United Mine Workers of America, District
19, 8 N. L R B 25; Matter of Clover Fork Coal Company and District 19, United Mine
Workers of America, 4 N L R B 202, Order enforced in Clover Fork Coal Company V.
National Labor Relations Board, 97 F (2d) 331 (C. C A 6th).
DECISION'S AND ORDERS 1033
that he had 150 or 200 tables to build, and Hawks answered that he,
Hawks, had to do what he was told. Hawks, on the other hand, testi-
fied that Leonard instructed him to lay off Barnett "for a few days"
while the respondent manufactured some tables of a type not requir-
ing a base since there was no place to put the bases in the interim;
that he, Hawks, so informed Barnett; that Barnett thereupon threat-
ened to report the matter to the Board. The two versions of the con-
versation do not differ substantially, and either may be considered
correct.
The following morning Barnett came to the plant for his tools and
to collect his wages. Two employees, neither of whom belonged to
the Union, had been transferred to making table bases. Barnett had
never been laid off previously during his employment by the
respondent.
In attempted explanation for the failure to reinstate Barnett fol-
lowing the alleged temporary lay-off, Hawks and Leonard testified,
first, that Barnett requested payment of his wages on the morning
following the alleged lay-off, and thereby quit his employment; and
second, that the method of making table bases has been changed, and
the equipment on which Barnett worked is no longer used, and there-
fore, that Barnett's former position has been abolished.
We already have pointed out, in connection with Buchanon's dis-
charge, that under the respondent's rule regarding payment of wages
a request by an employee for wages at the time of his lay-off does not
signify that the employee is quitting. Barnett's request for his wages
was in substance not different. The record does not support the re-
spondent's assertion that Barnett's former position has been abolished.
The respondent has not discontinued the manufacture of table bases.
The present method of manufacture is not shown to differ materially
from that followed by Barnett; nor can it be presumed that the equip-
ment now employed requires skill or training not consonant with
experience on the "horse clamp," on which Barnett worked.
Furthermore, if the lay-off was, in fact, discriminatory, the respond-
ent's contention that Barnett quit is immaterial. Hawks' testimony
establishes the fact that Barnett regarded his lay-off as an act of dis-
crimination by the respondent aimed at his membership in the Union.
Leonard's testimony that Barnett, when he asked for his wages, again
threatened proceedings before the Board, clearly shows that Barnett's
request for wages was the result of his conclusion that the lay-off was
in retaliation for his union activity. The alleged quitting was only
provoked by the respondent's unfair labor practice and cannot miti-
gate the respondent's duty to comply with the Act.
Hawks knew at the time of Barnett's lay-off that the respondent
already had determined to abandon the equipment on which Barnett
1034 NATIONAL LABOR RELATIONS BOARD
worked. Barnett was immediately replaced by two other employees
who had not previously made table bases.4 Manufacture of the bases
continued, apparently without pause, although both Hawks and
Leonard testified that Barnett was laid off because there was no im-
mediate need for the bases and no place in which to store them until
needed. Because of this inconsistency we feel compelled to reject
the reason assigned by the respondent for terminating Barnett's
employment.
On April 30 Shumate called Morrison aside. Shumate accused
Morrison of taking an active part in the Union and calling some
employees "yellow" for not signing. Morrison admitted his activity.
Shumate then referred to certain things which he understood the
Union proposed to accomplish. Shumate told Morrison, "We can't
be made to do anything. When it comes to where we can't do any-
thing, we will lock the gate and leave out of here." We are unable
to accept Shumate's denial of this version of the conversation. Al-
though Shumate denied absolutely that he knew the identity of any
members of the Union, he testified that he, Shumate, warned Morri-
son not to solicit members for the Union during working hours and
to stay at his work. We believe that Shumate made the statements
testified to by Morrison.
Morrison was employed as an upholsterer, making slip seats by
hand. On the day of the Shumate conversation one Franklin was
assigned to assist Morrison. Franklin did not belong to the Union.
On that and the following day, Morrison worked overtime. Shortly
before quitting time on the next succeeding workday, Hankla, the
foreman, came to where Morrison and Franklin; were ;working.
Hankla told Franklin to return to his former job in the sand room.
Hankla said to Morrison, "Bernie, you will be off. We are caught
up." Morrison protested that there were a number of special orders
to be filled. Morrison nevertheless was laid off. On the following
day, Franklin was assigned to do Morrison's work.
Hankla testified that Franklin was assigned to help Morrison sev-
eral days before the lay-off; that the work became "caught up";
that thereupon Hankla sent Franklin back to his regular work and
laid off Morrison "for a few days"; that Morrison then began cursing.
Hankla further testified that he had not intended to discharge Mor-
rison, but that Morrison's employment was terminated "because of his
cussing [when laid off] and his slowness," and because of Morrison's
inattention to duties. It does not appear that Hankla made objection
to Morrison's cursing, or indicated that Morrison's conduct had trans-
formed the allegedly temporary lay-off into a discharge. Hankla
admitted that Morrison's alleged inefficiency was insufficent to war-
4 we have pointed out above that such action constitutes a discharge. See footnote 3,
supra.
DECISIONS AND ORDERS 1035
rant a discharge. Morrison had received two increases in wages from
the respondent. The only evidence adduced to show Morrison's fail-
ure to attend to his work related to Morrison's union activity alleg-
edly during working hours in the week preceding the lay-off. Hankla
denied knowledge of such activity. Morrison's claimed inefficiency
and neglect have not been fully established. We do not believe that
Morrison's cursing was the cause of his discharge.
Even if Hankla's explanation is accepted, it appears that the curs-
ing-the occasion for the discharge-was provoked by the lay-off,
itself, as we find below, a discriminatory act. The requirements of
the Act cannot be defeated by the simple assertion that a circum-
stance brought about by the respondent's unfair labor practice may
enable the respondent to absolve itself from liability. The respond-
ent's offense against the statute does not thus achieve immunity for
itself. It is, therefore, unnecessary to decide whether Morrison was
discharged on the spot or only when his place was filled next day.
We have found above that the respondent was thoroughly aware
of the Union's activities, that the respondent opposed membership of
its employees in the Union. Its foremen disparaged the Union;
attempted to obtain renunciation of the Union by its leader, Barnett,
through promise of financial reward; and threatened members of the
Union with loss of employment. We find that the respondent like-
wise knew that Buchanon, Barnett, and Morrison were active in sup-
port of the Union; that the motive of the respondent for the dis-
charges was to rid itself of active union members and thus discourage
self-organization and collective bargaining among its employees.
We find that the respondent discharged Buchanon, Barnett, and Mor-
rison on May 3, because they joined and assisted the Union.
At the time of their discharge, Buchanon was paid an average of
$15.50 per week on piece work; Barnett, 221/2 cents per hour, or $12.38
per week; Morrison, 30 cents per hour, or $16.50 per week. Between
that date and the date of the hearing, Buchanon had earned $221.43;
Barnett, not more than $90. Morrison obtained substantially equiva-
lent employment on May 17 and stated at the hearing that he did not
desire reinstatement.
Raymond Hicks was employed as a variety saw operator. On
April 27 he joined the Union. Hicks, also, was active in the Union's
organizational campaign.
On April 28 Winebarger asked Hicks whether he had been to
Brinkley's store. Hicks admitted that he had been to the store.
Winebarger said, "I understand they are organizing the union here."
Hicks affirmed the statement, and told Winebarger, "I believe in
organized labor." Winebarger replied, "Well, it won't do them any
good . . . We can't operate this factory and pay union wages."
Winebarger further asserted, "All these fellows that joined the Union
1036 NATIONAL LABOR RELATIONS BOARD
can lose their jobs." Brinkley's store was a scene of the Union's
organizing activities. Winebarger admitted at the hearing that he
knew the Union was being formed because organizers made speeches
at the plant and at the store, "and the men were going to the store."
On May 19, shortly after commencing work, Hicks was discharged
by Winebarger on the ground that Hicks had run to the time clock at
quitting time the day before. A rule of the respondent prohibits
running to the clock under penalty of discharge. Hicks denied, both
at the time of his discharge and at the hearing, that he had violated
the rule.
Winebarger testified that he did not know of Hicks' membership
in the Union, and denied the April 28 conversation. Winebarger
further testified that an employee was injured on November 18, 1936,
by another employee running to the clock; that about a week later the
respondent posted the rule, at the instance of its workmen's com-
pensation carrier; that Winebarger warned each of his subordinates
against running; that for approximately a month thereafter Wine-
barger and Shew, another foreman, watched for violations of the
rule, but saw none, and then relaxed their vigilance; that on May 18
Shew reported to Winebarger that he had seen Hicks run; that Wine-
barger watched the same day and saw Hicks run to the clock. Wine-
barger also testified that rather than embarrass Hicks by calling him
out of line, he waited until the following morning to discharge Hicks.
Shew, a witness for the respondent, testified that he had not seen
Hicks violate the rule. Other witnesses for the respondent, fellow
employees of Hicks, did not corroborate Winebarger's testimony that
Hicks ran to the clock on May 18. One Blevins testified that he had
seen Hicks run after the rule was posted. Blevins' testimony is
vague and evasive. We think that Blevins is not a credible witness.
Winebarger's testimony regarding the incident fails of corroboration
and is in part contradicted by the testimony of Shew. Winebarger's
testimony generally upon cross-examination is evasive, self-contra-
dictory, and reflects bias. We believe that Winebarger, too, is not
a credible witness; that his testimony regarding Hicks' discharge and
the April 28 conversation is entitled to no weight.
We find that Hicks did not violate the rule as alleged by the re-
spondent ; and further, that Winebarger made the remarks on April
28 attributed to him, and knew of Hicks' union affiliation; that by
such statements Winebarger intended to warn against Hicks' con-
tinued membership in and active support of the Union. Vigilance in
the observation of the rule prohibiting running had been relaxed*
for more than 5 months before the discharge. Its penalty had never
been invoked. Suddenly and without further warning the rule was
falsely invoked as ground for the discharge of an active union mem-
ber, during a period of union activity, and following a series of dis-
DECISIONS AND ORDERS 1037
criniinations by the respondent against other active members of the
Union. The true cause of Hicks' discharge is no different from that
in the other cases we have considered . We find that the respondent
discharged Hicks on May 19 because of his membership in and active
support of the Union.
On May 18, the last day he worked, Hicks earned 35 cents per hour,
or $19.25 per week. Between that date and the date of the hearing
he had earned not more than $75.
Robert Arwood and Charles Wright were not discriminated against
by the respondent in regard to hire or tenure of employment . Wright
was laid off on July 27 because of his absence from work without
permission. There is no evidence connecting the lay-off with Wright's
membership in the Union. Arwood was discharged on May 17 after
refusing to obey the orders of his foreman . He was an active union
member. However, the evidence does not show that he was discharged
because of his union activity.
We find that the respondent has not discriminated in regard to the
hire or tenure of employment of Robert Arwood and Charles Wright.
We find that the respondent has discriminated in regard to the
tenure of employment of Sam Buchanon , Zeb Barnett , Bernie Morri-
son, and Raymond Hicks, thereby discouraging membership in the
Union. We further find that, (1) by such discriminations; (2) by
disparaging the Union; (3) by refusing to recognize the Union as
the representative of its employees , and concurrent l y refusing to agree
to bargain collectively with the Union if so designated in an election;
(4) by attempting to influence employees to withdraw membership
and support from the Union, by threat of loss of employment, promise
of financial reward and otherwise; (5) by threatening to close its
plant if the Union succeeded in organizing its employees; and by
otherwise opposing membership of its employees in the Union, the
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the 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 burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
In addition to an order to cease and desist from its unfair labor
practices, in order to effectuate the policies of the Act , we will require
the respondent to offer immediate and full reinstatement to Sam
1038 NATIONAL LABOR RELATIONS BOARD
Buchanon, Zeb Barnett, and Raymond Hicks without prejudice to
their seniority and other rights and privileges, and further, to make
them whole for any loss of pay they have suffered by reason of their
respective discharges by payment to each of them of a sum equal to
that which he normally would have earned as wages from the date of
his discharge to the date of the offer of reinstatement, less his net
earnings 5 during said period.
Bernie Morrison does not desire reinstatement but does claim back
pay. The respondent introduced evidence to show that on the day
after Morrison's discharge, certain patterns, valued at approximately
$75, were discovered to be missing. The respondent seeks to establish
that Morrison hid or took the patterns out of malice, and asserts that
because of such conduct Morrison is not entitled to compensation for
losses in pay resulting from his discriminatory discharge. Morrison
testified that he placed the patterns in a vault in the upholstering
room for safekeeping. So far as the record shows, the patterns are in
the vault in the respondent's plant, where Morrison placed them, and
are in as good condition as ever. The record fails to establish the
alleged offense with which Morrison is charged. We note, further,
that the respondent did not investigate the absence of the patterns;
nor, apparently, did it question Morrison concerning their where-
abouts. No assertion that Morrison took or hid the patterns mali-
ciously was made prior to the hearing, although the respondent and
the Union's representatives discussed reinstatement of Morrison
shortly after the absence of the patterns was discovered. The conten-
tion is obviously an afterthought.
Evidence offered by the respondent that after Morrison's discharge
a quantity of cloth was found to have been spoiled in the cutting and
hidden is not material. Morrison is not shown to have cut the cloth.
Other employees worked with Morrison from time to time.
The respondent further contends that slip seats are now made by
machine; and that Franklin produces a substantially larger number
by machine than did Morrison by hand. Franklin, however, replaced
Morrison on May 4. It does not appear, and the record yields a con-
trary inference, that the method of making the slip seats.had then
been changed. Since the lay-off and discharge of Morrison was dis-
criminatory, the fact of Franklin's relatively greater efficiency cannot
s By net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Hatter
of Crossett Lumber Company and United Brotherhood of Caipenters and Joiners of Ainer-
iea, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B. 440 Monies received
for work performed upon Federal, State, county, municipal, or other work-relief proects
are not considered as earnings , but, as provided below in the Order , shall be deducted from
the sum due the employee, and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county , municipal , or other government or governments
which supplied the funds for said work-relief projects
DECISIONS AND ORDERS 1039
operate to relieve the respondent of the responsibility which attached
to its unfair labor practice.
Therefore, in order further to effectuate the, policies of the Act, we
will require the respondent to make Morrison whole for any loss in
pay he may have suffered by reason of the respondent's discrimination
by payment to him of a sum equal to the amount he normally would
have earned as wages from the date of said discrimination until May
17, 1937, the date on which he found substantially equivalent employ-
ment, less his net earnings 6 during said period.
VI. THE QUESTION CONCERNING REPRESENTATION
It is admitted by the respondent that prior to the filing of the
petition the Union requested recognition by the respondent as repre-
sentative of the employees for purposes of collective bargaining. The
respondent refused to recognize the Union on the ground that no
satisfactory proof of the Union's majority had been presented. There-
after, on or about June 20, the respondent refused to enter into
negotiations for a contract with the Union.
We find that a question has arisen concerning representation of
employees of the respondent.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
The Union contends that an appropriate unit consists of all em-
ployees of the respondent, except supervisory employees, foremen,
and office and clerical workers. The respondents employs about
350 persons in this group. At the hearing, the respondent raised no
objections to the unit claimed by the Union as appropriate, nor was
there any testimony indicating any other unit as the appropriate one.
We find that all employees of the respondent, except supervisory
employees, foremen, and office and clerical workers, constitute a unit
appropriate for the, purposes of collective bargaining and that said
unit will insure to employees of the respondent the full benefit of
their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
0 See footnote 5, supra.
1040 NATIONAL LABOR RELATIONS BOARD
IX. THE DETERMINATION OF REPRESENTATIVES
The Union claims to have been designated as their representative
by a substantial majority of the respondent 's employees . No signed
application cards, however, were introduced in evidence. At the
hearing, the respondent agreed to the holding of an election among
its employees.
We believe that, under these circumstances , the question concerning
representation can best be resolved by the holding of an election by
secret ballot . We will not at this time fix the date for holding the
election since we are of the opinion that an election should not be
held until sufficient time has elapsed to permit a free choice of rep-
resentatives unaffected by the respondent 's unfair labor practices.
We will, at the time we specify the date on which the election is to
be held, also specify the date on the basis of which eligibility to vote
in the election shall be determined.
Upon the basis of the above findings of fact and upon the entire
record in the case, the. Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Organizing Committee is a labor organization,
within the meaning of Section 2 ( 5) of theAct.
2. The respondent , by discriminating in regard to the tenure of
employment of Sam Buchanon , Zeb Barnett , Bernie Morrison, and
Raymond Hicks, and thereby discouraging membership in the Union,
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. The respondent , by interfering with, restraining , and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (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.
5. The respondent has not discriminated and is not discriminating
in regard to the hire or tenure of employment of Robert Arwood
and Charles Wright, within the meaning of Section 8 (3) of the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent , within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
7. All employees of the respondent, except supervisory employees,
foremen , and office and clerical workers, constitute a unit appropriate
for the purposes of collective bargaining , within the meaning of
Section 9 (b) of the Act.
DECISIONS AND ORDERS 1041
ORDER
On the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that Empire
Furniture Corporation, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Organizing
Committee, or any other labor organization of its employees, by
laying off or discharging any of its employees because of membership
in Textile Workers Organizing Committee, or any other labor or-
ganization, or by discriminating in any other manner in regard to
their hire or tenure of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer immediate and full reinstatement to Sam Buchanon,
Zeb Barnett, and Raymond Hicks, and each of them, to their former
positions without prejudice to their seniority and other rights and
privileges ;
(b) Make whole Sam Buchanon, Zeb Barnett, and Raymond Hicks
for any losses of pay they may have suffered by reason of the re-
spondent's discrimination in regard to their tenure of employment,
by payment to each of them, respectively, of a sum of money equal to
that which he normally would have earned as wages during the
period from the date of such discrimination to the date of the offer
of reinstatement, less his net earnings during such period; deducting,
however, from the amount otherwise due to each of the said em-
ployees, monies received by said employee during said period for
work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount, so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(c) Make whole Bernie Morrison for any loss of pay he may
have suffered by reason of the respondent's discrimination in regard
to his tenure of employment, by payment to him of a sum of money
equal to that which he normally would have earned as wages during
1042 NATIONAL LABOR RELATIONS BOARD
the period from the date of such discrimination to May 17, 1937, the
date on which he obtained substantially equivalent employment, less
his net earnings during such period; deducting, however, from the
amount otherwise due him, monies received by him during said period
for work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount, so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(d) Post immediately notices to its employees in conspicuous places
throughout its plant, stating that the respondent will cease and desist
in the manner aforesaid, and maintain such notices for a period of
at least sixty (60) days from the date of said posting;
(e) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent has discriminated
in regard to the hire or tenure of employment of Robert Arwood
and Charles Wright.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it
is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Empire
Furniture Corporation, an election by secret ballot shall be con-
ducted at such time as the Board shall hereafter direct, under the
direction and supervision of the Regional Director for the Tenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among the employees of Empire Furniture Corpora-
tion, employed in the pay-roll period to be specified by the Board
as stated in Section IX above, except supervisory employees, fore-
men, and office and clerical workers, and those who have since quit
or been discharged for cause, to determine whether or not they desire
t o be represented by Textile Workers Organizing Committee for the
purposes of collective bargaining.