Ferguson Bros. Manufactoring Co.

National Labor Relations Board - Board Decisions

Oct 14, 1938

9 N.L.R.B. 189 (N.L.R.B. 1938)

In the Matter of FERGUSON BROS. MANUFACTURING COMPANY and
FEDERAL LOCAL No. 20856, AFFILIATED WITH THE AMERICAN FEDERA-
TION OF LABOR
Case No. C-536.-Decided October 14, 1938
Furniture Manufacturing Industry-Interference, Restraint , and Coercion:
no findings as to, because of compliance with Trial Examiner 's recommenda-
tions ; complaint not dismissed since recommendations contemplate a con-
tinuing course of conduct-Discrimination : discharges ; charges of , not sustained
as to three persons, dismissed without prejudice as to one person-Strike: not
result of unfair labor practice-Reinstatement and Back Pay: pursuant to
compliance with Trial Examiner 's recommendations.
Mr. Richard Hickey, for the Board.
Mr. Julius Lichtenstein, of Hoboken, N. J., for the respondent.
Mr. Joseph Quinn, of Union City, N. J., Mr. Jacob Friedland, of
Jersey City, N. J., and Mr. Nathan Geller, of Newark, N. J., for the
Union.
Mr. Richard Salant, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been duly filed by Federal
Local No. 20856, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by Elinore M. Herrick, Regional
Director for the Second Region (New York City), issued and duly
served its complaint dated January 10, 1938, against Ferguson
Brothers Manufacturing Company, Hoboken, New Jersey, 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.
The complaint alleged in substance (1) that on June 11, 1937, the
respondent discharged George Fitzpatrick for joining and assisting
the Union; (2) that following a strike which was caused by the
respondent's unfair labor practices and which began on or about
9 N. L. R . B., No. 30.
189
190 NATIONAL LABOR RELATIONS BOARD
August 4, 1937, and P.ontinued until on or about September 3, 1937,
the respondent refused to reinstate Edward Ingrassia, William Coan,
Angelo Lobuano, and Michael De Simone, employees who partici-
pated in the strike, because of their union activities; and (3) that
the respondent warned and urged its employees not to become mem-
bers of the Union. On January 18,.1938, the respondent filed its
answer to the complaint denying that it had engaged in the unfair
labor practices alleged therein.
Pursuant to notice, a hearing was held in New York City on
January 20, 21, 24 to 29, 1938, before Harold Stein, the Trial Exam-
iner duly designated by the Board. The Board and the respondent
were represented by counsel. The Union was represented on January
20, by Joseph Quinn, its organizer, and on January 21 by Jacob Fried-
land, its attorney. On January 26, it made no appearance. On all
other dates, it appeared by Nathan Geller. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties.
At the opening of the hearing, for the reason that Lobuano could
not be found, the Union moved to dismiss the complaint in so far as
it charged the respondent with refusing to reinstate him. This mo-
tion was granted without objection. Subsequently, counsel for the
Board moved to amend the foregoing motion by making the dismissal
without prejudice; over objection of the respondent's counsel, this
motion was granted. At the close of the Board's case, and again at
the close of the hearing, the respondent moved to dismiss the com-
plaint with respect to Fitzpatrick, Ingrassia, De Simone, and Coan.
The respondent also made a general motion to dismiss on the ground
of insufficient evidence. The Trial Examiner denied the general mo-
tion and the motion relating to Fitzpatrick; he reserved his ruling on
the motion to dismiss the complaint in so far as it related to the
alleged discriminatory refusal to reinstate Ingrassia, De Simone, and
Coan. At the close of the hearing, counsel for the Board moved to
conform the pleadings to the proof. This motion was subsequently
granted. The above-enumerated rulings are hereby affirmed. Dur-
ing the course of the hearing, the Trial Examiner made other rulings
on motions and objections to the admission of evidence. The Board
has reviewed these rulings of the Trial Examiner and finds that no
prejudicial errors were committed. His rulings are hereby affirmed.
On April 4, 1938, the Trial Examiner filed his Intermediate Report
in which he found that the respondent had engaged in the unfair
labor practices alleged in the complaint by interfering with its em-
ployees in the exercise of their right to self-organization and by
discriminatorily discharging George' Fitzpatrick. He further found
that the respondent had not engaged in unfair labor practices in
DECISIONS AND ORDERS 191
refusing to reinstate Ingrassia, De Simone, and Coan. The Trial
Examiner accordingly recommended that the respondent cease and
desist from engaging in the unfair labor practices and that it make
whole Fitzpatrick for any loss of pay he suffered by reason of his
lay-off from June 15, 1937, to August 3, 1937, and by reason of the
respondent's refusal, to reinstate him from September 14, 1937, to
November 7, 1937.
The respondent has complied fully with the recommendations con-
tained in the Intermediate Report. It has made George Fitzpatrick
whole for the loss of pay he suffered; it has posted notices as re-
quired. On April 22, 1938, the Union filed general exceptions to the
Intermediate Report. The Board has considered these exceptions to
the Intermediate Report and finds 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, a New Jersey corporation with its principal place
of business and office in Hoboken, New Jersey, is engaged in manu-
facturing, selling, and distributing "gift pieces"-coffee tables, end
tables, cellarettes, and, other small pieces of furniture. It maintains
two salesrooms, one in New York City and one in Chicago, Illinois,
and employs about 14 salesmen who solicit orders from customers
throughout the country in all the larger cities of the United States.
In the manufacture of its products, the respondent purchases prin-
cipally lumber, steel, and fabrics. In 1937, the total value of these
purchases was approximately $445,000, 75 per cent of which was
shipped to its Hoboken plant from States other than New Jersey,
and the total value of sales of finished products was about $1,000,000,
of which approximately 85 per cent was shipped to points outside
New Jersey.
The respondent, whose work is highly seasonal , employed approxi-
mately 411 workers prior to the strike of August 4, 1937.
We find that the operations of the respondent, Ferguson Brothers
Manufacturing Company, occur in commerce, within the meaning of
Section 2 (6) and (7) of the Act.
H. THE ORG 1N]ZATION INVOLVED
Federal Local No. 20856 is a labor, organization affiliated with the
American Federation of Labor. The precise limits of its jurisdiction
do not appear, but it is apparent from the record that it admits,
among others, employees of the respondent.
192 NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Trial Examiner's findings of fact
1. The chronology of events
In his Intermediate Report, the Trial Examiner, in substance,
made the following findings of fact relating'to the events in question :
Organizational activities among the respondent's employees began
in May 1937. The first formal meeting of the Union was held on
May 28, 1937, and was attended by 13 men, including George Fitz-
patrick. A second meeting, attended by more than 100 employees of
the respondent, was held on June 10, 1937. At this meeting, almost
all the employees attending signed application cards in the American
Federation of Labor, and officers were elected. Fitzpatrick was chosen
president; Eric Kreite, financial secretary; Al Beck, secretary; and
Michael Urasz, sergeant at arms. The employee who was elected
vice president apparently never served and his place was filled without
formal election by Urasz.
On the next day, June 11, 1937, Fitzpatrick and Urasz were laid
off or discharged. Shortly thereafter, several meetings of the Union
were held to discuss the discharges. After some correspondence be-
tween Nathan Geller, the attorney for the Union, and William Han-
ley, general manager of the respondent, the latter refused to admit
that the Union had a majority and denied that Fitzpatrick and Urasz
had been discharged for union activities. After further discussion,
the parties agreed that a consent election would be held by the Board
on July 19, 1937.
Before the election, the respondent caused to be distributed to its
employees certain leaflets which purported to explain the workers'
rights under the Act., These leaflets, devoted entirely to explaining
that an employee need not join nor deal through a union, and that the
Act does not limit an employer's right to discharge an employee for
failure to perform his duties, were found by the Trial Examiner to
be similar to the circulars discussed by the Board in Matter of Mans-
field Mills, Inc. and Textile Workers Organizing Committee,' where
the Board said that in such circulars
... the emphasis upon what the provisions of the Act do not
purport to do, rather than upon the positive principles and the
rights which the Act establishes, serves. to distort its true signifi-
cance and to mislead readers of the leaflets with respect to em-
ployees' rights under the Act, in contradiction to their avowed
intent "to prevent misunderstanding." The distribution by an
employer of such leaflets among his employees constitutes an at-
1 3 N. L. R . B. 901.
DECISIONS AND ORDERS 193
tempt to circumvent the Act by interfering with his employees'
right, unprejudiced by the employer, to make up their own minds
regarding self-organization.
On July 26, 1937, following the election of July 19, in which the
Union was designated representative by a vote of 311 to 104, a con-
ference between representatives of the Union and of the respondent
was held in the latter's office. Several of the Union's demands were
granted by the respondent, while others were flatly refused.
A second conference was held a few days later, but no substantial
progress was made. The union representatives announced that they
would report back to the members, and the conference was adjourned.
Although no date was fixed for further discussions, it was the expec-
tation of all present that there would be another conference soon.
On August 3, 1937, the union members received the report of their
representatives and voted to call a strike for the following day. The
strike began, as scheduled, on August 4. On August 4 and 5, 112
men continued to work in the plant while the union men picketed.
On August 6, the respondent closed down the plant.
There is undisputed evidence that the course of the strike was
marked by some individual solicitation by the respondent to persuade
the workers to return. During the strike, various employees, both
individually and in groups, requested the respondent to reopen the
plant. On August 18 or 19, post cards announcing that the plant
would begin operation on August 23 were sent to all the employees.
On August 23, the plant reopened with 150 men at work and by Sep-
tember 3, the plant was approximately fully manned. On September
7, Fitzpatrick, as president of the Union, announced that the strike
was over.
In the period between August 23 and September 7, 42 men were
hired who had not been employed in the plant immediately prior
to the strike. Aside from the employees named in the complaint,
there is positive evidence of only one person who was denied rein-
statement after the strike. Fitzpatrick was not reinstated until
November 7, 1937.
2. The Trial Examiner 's conclusions
• The Trial Examiner found that by its circulation of leaflets and
by ether acts, the respondent had engaged in unfair labor practices
within the meaning of Section 8 (1) of the Act. He found, also,
that Fitzpatrick had been discriminatorily laid off and refused rein-
statement within the meaning of Section 8 (3) of the Act. He
found, however, that the strike did not result from any unfair labor
practices on the part of the respondent, and that Coan, Ingrassia,
and De Simone were not discriminatorily refused reinstatement.
194 NATIONAL LABOR RELATIONS BOARD
Since the respondent has complied fully with the Trial Examiner's
recommendations that it award Fitzpatrick back pay and that it
cease and desist from engaging in unfair labor practices within the
meaning of Section 8 (1) and (3) of the Act, it is not necessary
at this time for us to pass upon the findings except in so far as issues
thereon are raised by the Union's general exceptions.
B. The issues raised by the Union's exceptions
1. The strike
Since the Trial Examiner found that the strike was not caused
by any unfair labor practices, and that Coan, Ingrassia, and De
Simone were not discriminatorily discharged, the Union's exceptions
necessitate our reviewing those findings.
At the first conference between the respondent and the Union
following the election of July 19, the respondent took the position
that the Act required it to bargain with the Union only on behalf
of members of the Union. On investigation of the law by its coun-
sel, however, the respondent soon withdrew from this erroneous
position.
In the course of this conference, the demands by the Union for
a 40-hour and 5-day week, with time and a half for overtime, were
granted by the respondent. Although insistent that it had not dis-
charged Fitzpatrick and Urasz for union activities, the respondent
stated that it would reinstate them as soon as positions for them
became available. The chief disagreement between the parties arose
from the Union's demand for a closed shop, for a general wage in-
crease, and for a minimum 45¢ an hour wage. In refusing the
wage demands, the respondent explained that it could not afford
the increases. To support its refusal, the respondent not only offered
its books for examination by the Union, but also volunteered to pay
the fees of auditors to be chosen by the Union for such examination.
Geller, the counsel for the Union throughout the negotiations, tes-
tified that the decision to strike was based primarily on the refusal
of the respondent to grant a wage increase. When asked whether
the strike was caused by the disagreement concerning wages, and
the'closed shop, Geller testified, "Oh, yes. I would never have per-
mitted, and I would never have advised a strike merely because of
these two men. I had 350 men to consider, not two, and I certainly
wouldn't keep 350 men out of work just because two of them couldn't
be reemployed."
The record of the conferences preceding the strike shows that
the respondent at that time bargained in good faith, and was willing
to continue to bargain in good faith. ^Geller's own testimony estab-
DECISIONS AND ORDERS 195,
lishes, moreover, that the strike was not called as a protest against
the respondent's discriminatory lay-off of Fitzpatrick.
We find that the strike resulted from a disagreement between the
parties and was not the result of any unfair labor practice.
2. The refusal to reinstate Coan, Ingrassia, and De Simone
William Coan had been employed by the respondent, except for
temporary lay-offs, since 1920. ' Since 1922, and at the time of the-
strike, he was a variety machine operator. Coan joined the Union
on August 1, 1937, and went on strike with the other union members-
on August 4. During the strike, he picketed about 10 hours a week,
but he was not otherwise prominent in union affairs.
The respondent contended that it failed to reinstate Coan after the
strike because it thought that he had obtained other employment.
Coan received, on or about August 20, 1937, a post card announcing
the reopening of the 'plant on August 23. On September 2, the re-
spondent, after having waited for Coan to apply for reinstatement
since August 23, hired a new operator to replace him. On September
3, Coan returned to apply for work.
There is considerable confusion surrounding the events of Septem-
ber 3. According to Coan's testimony, he approached Boardman,
an assistant superintendent in the plant, who was standing on the
shipping platform dealing with a crowd of applicants. Coan testi-
fied that Boardman first spoke, saying "I can't use you any more,,
Bill. I have got a man in your place." Coan then asked "Shall I
get my things?", and Boardman replied, "Yes, go on and get them."-
Coan, according to his own testimony, then went inside, where he met
Stegner, his foreman. Stegner remarked that Coan was fortunate to-
get his job back, to which Coan replied that he "wasn't back" but
"was after my things."
Boardman, however, testified that when Coan appeared, he told-
Coan to see Stegner. Boardman testified that he knew that the-
machine which Coan had operated was manned at that time, but "I
didn't know but what Mr. Stegner may have some other job for him
on the floor."
Stegner's version of the meeting with Coan was that Stegner, on
seeing Coan, remarked, "You are pretty lucky, to come in like this."-
Coan replied, "Oh, no, I have got a job. I only want my clothes."-
When Boardman later questioned Stegner, Stegner told him that
Coan had said he had another job. Later Boardman saw Coan stand-
ing near the plant, and although Boardman testified that from Coan's
presence "it would naturally seem that the man might be looking for-
a job," since Coan did not ask for a job, no further action was taken.
Coan admitted that he had never actually requested reinstatement.
134068-39-vol. IX-14
196 NATIONAL LABOR RELATIONS BOARD
Coan was not an active member of the Union; many of the officers
of the Union, including Kreite, who was also a leader of the picket-
ing, were immediately reinstated. It seems wholly likely that, in
the confusion of the scenes around the shipping platform and in the
factory following the strike, Boardman and Stegner misunderstood
Coan's position. The Trial Examiner, who had an opportunity to
observe all the witnesses, stated in his Intermediate Report that "All
the testimony about the events of September 3 gave the impression
of being honest." He found that the most natural and reasonable
explanation of the affair was that there was an honest misunder-
standing.
We find that, by failing to rehire William Coan, the respondent
has not discriminated in regard to hire and tenure of employment
and has not thereby discouraged membership in a labor organization.
Michael De Simone a}Id Edward Ingrassia. Michael De Simone
was first employed by the respondent in September or October 1936.
His original wage of 25¢ an hour had risen, by virtue of a general
wage increase, to 271/2¢ an hour by the summer of 1937. De Simone
was originally a floorboy in the cabinetmakers' shop where he cleaned
the floor and ran errands.
It is the custom in the plant to train young men as cabinetmakers,
promoting them from floorboys to assistants to the cabinetmakers.
Accordingly, De Simone was assigned as helper to Ludwig Urasz, a
cabinetmaker, in November 1936. In March 1937, De Simone was
reassigned to the position of floorboy.
De Simone joined the Union at the end of May 1937, and partici-
pated in the strike. He claimed to have picketed 20 to 25 hours a
week, but otherwise he was not prominent in union affairs. He
received a post card announcing the reopening of the plant, and
reported for work after Labor Day. Boardman told him, "I haven't
anything right now." After 2 weeks, De Simone again applied for
reinstatement; Boardman told him that he would be called if he was
needed. The evidence showed that Urasz had already been assigned
an efficient helper, who was working on a piece basis and earning
about 40¢ an hour, in contrast to the 271/2¢ an hour De Simone had
been earning before the strike.
The respondent attributes its refusal to rehire De Simone to his gen-
eral inefficiency in the cabinetmaker's department. The evidence is
overwhelming that De Simone was an incompetent helper. Although
the custom in the cabinet shop was for the cabinetmaker to pay his
helper by the piece, De Simone was paid by the hour, since otherwise
his salary would have been negligible. Urasz, whom De Simone as-
sisted, Kardos, the foreman of the cabinet shop, and Boardman all
testified to De Simone's shortcomings as a helper, and their testimony
remained uncontradicted. Indeed, De Simone himself admitted that
DECISIONS AND ORDERS 197
Urasz scolded him "a couple of time a week," and that "I wasn't so
handy." Tinsley, a superintendent in the respondent's plant, testified
that De Simone was not rehired because he had not progressed, and
stated that "We had just about exhausted our patience with him."
Edward Ingrassia was first employed by the respondent in Sep-
tember 1934. Between 1934 and the date of the strike, Ingrassia was
laid off or discharged three or four times. Originally employed as a
polisher, Ingrassia later became a borer. During the course of his
employment, he received one 10 per cent raise as a part of a general
wage increase.
Ingrassia joined the Union in June 1937. He went out on strike,
and picketed 10 hours a week. He was not otherwise prominent in
union activities. Ingrassia received a card announcing the reopening
of the plant, and he applied for work just after Labor Day. He
testified that Boardman then told him that his job was taken and that
"you ratted on me." Boardman denied having made this statement
and his denial is convincing in view of the fact that the record discloses
nothing which would give rise to a statement of this nature.
The respondent assigned its failure to rehire Ingrassia to his lazi-
ness and inefficiency. That Ingrassia's previous lay-offs had been due
to his laziness abundantly appears from the evidence. Although, at
the time of each lay-off other employees were discharged along with
Ingrassia, Ingrassia was each time the only one subsequently to be
reinstated. Each time he was laid off, Frank Bottone, a foreman in
the plant and Ingrassia's first cousin, interceded on Ingrassia's behalf
and secured his reinstatement. Bottone testified that Ingrassia was a
"little slow" and that "I told him last time, you can't get no job
because you are slow, and the father say try to give him another
chance, please, maybe he not so slow, so I told Mr. Boardman, give
him a chance and that is the last chance I give him. That was 4
times." Thereafter, Bottone refused to intercede again for Ingrassia.
That Ingrassia was slow and undesirable, and had been given all the
chances he deserved was also testified to by Tinsley and Boardman.
The Trial Examiner found that neither De Simone nor Ingrassia
was refused reemployment after the strike because of his union
activities. The evidence is convincing that both men were incompe-
tent and that there was ample cause for their discharge. Neither
man was active in the Union. That both De Simone and Ingrassia
received cards notifying them that they should return to work is
not indicative of the respondent's desire to employ them. These
notices were by error sent not only to all employees on the pay roll
prior to the strike but also to all whose cards were in the Social
Security file. Little significance can be attached to the receipt of
the cards by De Simone and Ingrassia in view of the purely mechan-
ical way in which the mailing list was compiled.
198 NATIONAL LABOR RELATIONS BOARD
We find that the respondent , by refusing to reinstate Michael Do
Simone and Edward Ingrassia on or about September 8, 1937, has
not discriminated in regard to hire and tenure of employment and
has not thereby discouraged membership in a labor organization.
THE REMEDY
As described above, the Trial Examiner found that the respond-
ent had engaged in unfair labor practices within the meaning of
Section 8 (1) and ( 3) of the Act. He recommended that the re-
spondent cease and desist, and he further recommended reinstatement
and back pay for Fitzpatrick . The respondent has fully complied
with these recommendations . It is not, therefore , necessary for
us to make findings of fact and conclusions of law, or an order based
thereon. We shall not, however , dismiss the complaint since the-
recommendations of the Trial Examiner contemplate a continuing
course of conduct on the part of the respondent.
We have found that Coan , Ingrassia , and De Simone were not
discriminatorily refused reinstatement . We have also found that
the complaint in so far as it related to Angelo Lobuano was properly
dismissed without prejudice . In so far as the complaint relates to
these four men, we shall dismiss the complaint . The dismissal in so
far as it relates to Angelo Lobuano shall be without prejudice.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. Federal Local No. 20856 is a labor organization , within the mean-
ing of Section 2 (5) of the Act.
2. The operations of the respondent, Ferguson Brothers Manufac-
turing Company, Hoboken, New Jersey, occur in commerce within
the meaning of Section 2 (6) and ( 7) of the Act.
3. The respondent , by refusing to reinstate William Coan , Michael
De Simone, and Edward Ingrassia , has not discriminated in the hire
and tenure of employment of the said William Coan, Michael Do
Simone, and Edward Ingrassia , and has not thereby discouraged
membership in a labor organization , within the meaning of Section 8
(3) of the Act.
ORDER
Upon the basis of the foregoing 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 the
DECISIONS AND ORDERS 199
complaint against Ferguson Brothers Manufacturing Company,
Hoboken, New Jersey, in so far as it relates to William Coan, Edward
Ingrassia, and Michael De Simone, be, and it hereby is, dismissed, and
that the complaint in so far as it relates to Angelo Lobuano be, and
it hereby is, dismissed without prejudice.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Decision and Order.