Furniture Designs, Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1966

160 N.L.R.B. 1576 (N.L.R.B. 1966)

1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL embody any understanding reached in a signed contract.
You are free to become , remain, or refrain from becoming or remaining, a
member of any labor organization , except to the extent that this right may be
affected by an agreement in conformity with Section 8(a)(3) of the National
Labor Relations Act, as amended.
BRYANT CHUCKING GRINDER COMPANY,
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office , Boston
Five Cents Savings Bank Building, 24 School Street, Boston , Massachusetts 02108,
Telephone 532-8100.
Furniture Designs, Inc. and John W. Charles. Case 09-OA-2159.
October 4, 1966
DECISION AND ORDER
On May 18, 1966, Trial Examiner Alvin Lieberman issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices and recommending that the
Respondent cease and desist from such activities and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions and a brief in sup-
port thereof.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Members
Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The rul-
ings of the Trial Examiner are hereby affirmed. The Board has con-
sidered the Trial Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties, except the Charging Party, represented, was
heard by Trial Examiner Alvin Lieberman in Houston , Texas, on March 14 and
15, 1966 , on complaint 1 of the General Counsel and answer of Respondent.2 The
1 The complaint was issued upon charges filed by John W. Charles
3 Respondent ' s original answer consisted of a letter written by Carl Waldman, Respond-
ent's president, which (lid not comply with section 102 20 of the Rules and Regulations
of the National Labor Relations Board ( herein called the Board) At the hearing Respond-
ent was permitted to amend its answer so as to deny specifically certain allegations of
the complaint.
160 NLRB No. 126.
FURNITURE DESIGNS, INC. 1577
issues litigated were whether Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (herein called the Act). More particu-
larly, the questions for decision are as follows:
1. Did Respondent independently violate Section 8(a)(1) of the Act by cursing
an employee, John W. Charles.
2. Did Respondent violate Section 8(a)(3) and (1) of the Act by discharging
Charles and thereafter refusing to reinstate him .3
Upon the entire record, upon my observation of the witnesses while testifying,
and upon careful consideration of the briefs filed by the General Counsel and
Respondent, I make the following:
FINDINGS OF FACT4
I. RESPONDENT'S BUSINESS
Respondent, a Texas corporation whose principal office and place of business is
located at Houston, Texas, is engaged there in the manufacture and sale of house-
hold furniture. During the past 12 months, a representative period, Respondent
sold and shipped to customers located outside the State of Texas finished products
valued in excess of $50,000. Accordingly, I find that Respondent is engaged in
commerce within the meaning of the Act and that the Board's assertion of juris-
diction herein is warranted.
H. THE LABOR ORGANIZATION INVOLVED
Teamsters Union is a labor organization within the meaning of Section 2(5)
of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's delivery procedures
John W. Charles, the Charging Party and alleged discriminatee, was employed
by Respondent as a truckdriver from July 1964, until his discharge on Septem-
ber 2, 1965. Charles, like other drivers in Respondent's employ, delivered furni-
ture manufactured by Respondent to its customers located at points far removed
from Respondent's plant.
Charles was instructed to comply with the following procedures while away
from Respondent's plant making deliveries: 5
1. Charles was required to make "collect" telephone calls to Respondent during
the morning and afternoon of each day to report his position and receive special
instructions which Respondent might have for him. When placing these calls
Charles would inform the operator that he desired to speak to Eugene Smith,
Respondent's office manager. If there were no special instructions the person
answering the telephone would inform the operator that Smith was not available
and the call would not be accepted .6
2. If Charles encountered any problems, he was to call Respondent and, instead
of asking for Smith, he was to ask for Respondent's president, his secretary, or
an official of Respondent named Stavinoha. In this connection, Charles was fur-
nished with the home telephone numbers of these people.
3. A day before arriving in the area in which a delivery was to be made
Charles was also instructed to call Respondent's salesman, who covered that ter-
ritory, whose name and telephone number were also furnished to Charles, and
3 Respondent contends that Charles was discharged because of his repeated failure to
comply with its established delivery procedures and for the further reason that, without
authorization, he brought back to Respondent's plant furniture which had been rejected
by one of Respondent's customers. The General Counsel maintains, on the other hand, that
the reasons advanced by Respondent for terminating Charles' employment ale pretextual
and that he was actually discharged because of his membership in, and activities on
behalf of, General Drivers, Warehousemen and Helpers Local Union 968, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein called
Teamsters Union).
4 Respondent's motion to dismiss the complaint made at the close of the hearing is
disposed of in accordance with the findings and conclusions set forth in this Decision
5 Presumably these procedures applied also to all other drivers employed by Respondent.
6I assume that the first reason for requiring Charles to call twice a day was satisfied
when the operator told the person who answered the telephone In Respondent's office the
place from which the call was being made.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report that he would be in the salesman's district the next day to deliver furniture.
4. If furniture being delivered by Charles was rejected by the consignee, Charles
was required to report that fact by telephone to either Respondent's president, his
secretary, Respondent's superintendent, its salesman in the territory, or Stavinoha.
In connection with rejected furniture Charles was further required to remain in
the area in which the furniture was to have been delivered' until he received spe-
cific instructions from one of the foregoing persons as to the furniture's disposi-
tion. Carl Waldman, Respondent's president, testified that this rule was adopted
by Respondent because freight charges accounted for 20 percent of Respondent"s
costs.
5. Before departing on a trip Charles was given a list on which was set forth
each item on his truck and the place where it was to be delivered. When unload-
ing the furniture at the customer's premises Charles was to check off on the list
each piece of furniture as it was removed from his truck, have the customer sign
the list and upon his return to Respondent's plant give the list to a clerk in
Respondent's office. Waldman testified that this rule was adopted to minimize
misdeliveries of furniture.
B.- Charles' discharge
On July 5; 1965,7 10 drivers employed by Respondent met in Charles' home
to determine what course to pursue in order to obtain a wage increases The
drivers decided at this meeting to join the Teamsters Union. Charles was dele-
gated to obtain cards from the Teamsters Union, and he did so. Although at this
time Respondent's employees, including its drivers were represented by a local of
the Upholsterers International Union (herein called Upholsterers Union), and
Respondent was party to a collective-bargaining contract with that union, those
facts were unknown to Charles and were not mentioned by any other driver who
attended the meeting.
By July 29, 10 drivers had signed the cards obtained by Charles, and they
were on that day returned to the Teamsters Union. The next day, the Teamsters
Union filed a representation petition (Case 23-RC-2500) on behalf of the driv-
ers. Upon being served with a copy of the petition Waldman turned it over to the
Upholsterers Union. On August 8, a representative of Teamster Union informed
Charles that the petition would have to be withdrawn because the drivers, were
already represented by another union,9 and nothing further was done by Team-
sters Union with respect to obtaining recognition from Respondent as the drivers'
bargaining agent.
On Wednesday, August 25, Charles left Houston on a trip to deliver furniture
to Respondent's customers in Cleveland and Warren, Ohio, and to pick up uphol-
stery fabrics in Concord and Rockingham, North Carolina. The schedule given
Charles upon his departure required him to be in Concord at 8 a.m. on Monday,
August 30.
While en route from Houston to Warren, Ohio, Charles, in the prescribed man-
ner, made calls to Smith, Respondent's office manager, reporting his whereabouts.
Upon his arrival in Cincinnati, Ohio, on Thursday, August 26, Charles also
called Monty Goldberg, Respondent's Ohio salesman , who resided in Cleveland,
to tell him that he would be in Cleveland the next day to make deliveries. No
one, however, answered Goldberg's telephone. Charles also called Goldberg for
this purpose the next day, but, again, no one answered his telephone.
After completing his Cleveland deliveries Charles drove to Warren, Ohio, his
last stop before going to North Carolina. He arrived in Warren on Saturday
morning, August 28. Charles attempted to deliver the furniture consigned to
Respondent's customer there, but it was rejected.
Between 11 a.m. and 1 p.m. on that day Charles repeatedly called Respondent's
president, his secretary, and Respondent's superintendent, both at the plant and
9 All dates mentioned hereinafter refer to 1965.
S Charles testified that this meeting was occasioned by the failure of Respondent's
president, Waldman, to keep a promise he had earlier made to raise the drivers' wages.
Waldman denied making such a promise. Since whether or not Waldman had promised an
increase or whether or not he had kept that promise are immaterial to my ultimate
Decision I make no credibility resolution with respect to this testimonial discrepancy.
U The General Counsel has represented that the petition filed by Teamsters Union was,
in fact, withdrawn.
FURNITURE DESIGNS, INC. 1579
at their homes, to report the rejection of the furniture, but was unable to reach
any of them. Charles also called Goldberg, Respondent's Ohio salesman, twice
during this period with the same result.
Having been unsuccessful in his attempts to report the furniture's rejection to
any of the foregoing people by telephone, Charles drove his truck back to Cleve-
land and personally sought Goldberg out at his house. There was no one home,
however, so Charles remained in Cleveland that night. Charles tried to reach
Goldberg again the next morning, Sunday, August 29, but again was unable to
do so.10 Then, mindful that his schedule required him to be in North Carolina
the next morning to pick up fabrics, Charles left Cleveland at 10 a.m. on Sunday,
August 29.
Charles called -Respondent's office from Concord, North Carolina, early on
Monday, August 30, and insisted on talking to someone about the rejected furniture
which was still on his truck. Smith, Respondent's office manager, accepted the call,
and told Charles to bring the furniture back .to Respondent's plant," which Charles
did.12
Charles returned to Respondent 's plant on September 2. After the upholstery
material had been partially unloaded from the truck Waldman, Respondent's presi-
dent, saw the rejected furniture. Not having been previously informed that the fur-
niture was being brought back, Waldman inquired in the office if anyone there was
aware of that fact. As no one there seemed to know anything about it Waldman
asked Charles why he brought the furniture back and why he hadn't called. Upon
Charles' insistence that he had reported every day Waldman accused him of "telling
a G- d- lie," called him a "stupid s.o.b." and told Charles "you are fired. I
don't want you on my premises. I want you to get off my premises." Charles told
Waldman he would do so.
About a half hour later Charles went to Waldman's office and told Waldman
that he needed to work in order to support his wife and children . Waldman's
response to Charles' plea was, "[You're] the s.o .b. that started this union mess, and
I don't want you on my premises . Now, get off." 13 Charles did so and he has not,
since then, worked for Respondent.
C. Respondent's contentions
In the letter originally submitted as its answer to the complaint Respondent stated
that Charles was discharged because he returned the furniture in question without
authorization and because he "continually ignored instructions" which "resulted in
loss of customers as well as continuous expense to" Respondent.
Evidence was adduced as to Charles' poor performance as a driver. Waldman tes-
tified that Charles was generally in unsatisfactory employee; that he did not comply
with instructions concerning the use of the checklist; that he frequently misdelivered,
or failed to deliver, furniture; and that Respondent had received many complaints
from customers about Charles' delivery mistakes. Charles' immediate supervisor,
Adams, corroborated Waldman's testimony concerning Charles' failure to use
10 The findings as to Charles ' efforts to report the rejection of the furniture are based
on Charles ' credible testimony Waldman, Respondent 's president , appeared as a witness
for Respondent but gave no testimony as to his wheieahouts between 11 a in, and 1 p in
on Saturday , August 28 Goldberg was not called as a witness by Respondent Waldman
testified , however , that in a telephone conversation with Goldberg on September 2, Gold-
berg told Waldman that he was ]ionic during the previous iseekend and that he had no
telephone calls from Charles That this testimony lack,, probative value is obvious
UIt should be remembered , in this connection , that although Smith is Respondent's
office manager , and admittedly a supervisor , he was not among the persons authorized by
Respondent to give instructions concerning rejected furniture See section ITT, (A), above.
12The findings with respect to Charles ' conversation with Smith on August 30, are
based on Charles ' uncontradicted testimony It is noted, in this regard that Smith was
not called as a witness on Respondent ' s behalf.
"'Except for the content of the conversations between Charles and Waldman on Sep-
tember 2 , the findings concerning the events of that day are based on a svnthesis of the
testimony given by Charles and Waldman . As to the conversations , Waldman testified
that he did not recall his exact words I, therefore , believe the account given by Charles
who, because of his demeanor and memory impressed me as a generally credible witness.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checklists when delivering furniture.14 Adams also testified that whenever Charles'
improper use of, or failure to use, the checklist came to his attention he would
speak to Charles about it, tell him the purpose of the checklist, and direct him to
use it.
Upon all the evidence and upon consideration of the entire record I find that
Charles was an inefficient employee. I further find that in bringing back to Respond-
ent's plant the furniture which had been rejected in Warren, Ohio, on August 28,
Charles did not comply with instructions which were issued to cover such situations.
D. Concluding findings
I have found, that Charles was an inefficient employee and did not comply with
outstanding instructions in returning the rejected furniture. The question for decision
on this phase of the case is, therefore, whether Charles was discharged for those
reasons, as Respondent contends, or because of his activities on behalf of the Team-
sters Union, as urged by the General Counsel. The touchstone to this ever present
enigma in matters of this type is found in this case in the conversation between
Charles and Waldman which took place in Waldman's office shortly after Charles'
discharge. There, in response to Charles' plea for work, Waldman stated, as Charles
credibly testified and Waldman' failed to deny, "[You're] the s.o.b. that started this
union mess , and I don't want you on my premises. Now get off." Waldman thus
indicated, quite conclusively that despite Charles' inefficiency and his having improp-
erly brought back the rejected furniture for which reasons, undoubtedly, his employ-
ment could have been terminated, the underlying and real reason for Charles' dis-
charge and Respondent's subsequent refusal to reinstate him, was his activity on
behalf of the Teamsters Union.
It is well settled "that even though a valid ground for discharge exists, there is
nevertheless an unfair labor practice if in fact the reason for the discharge was
Union activities on the part of the employee." N.L.R.B. v. The Howe Scale Com-
pany, 311 F.2d 502, 505 (C.A. 7). Applying the foregoing principle to the facts of
this case I conclude, in agreement with the General Counsel, that by discharging,
and failing to reinstate, Charles Respondent violated Section 8(a)(3) and (1) of
the Act.
The remaining question for consideration is whether, as the compliant alleges,
Respondent independently violated Section 8(a)(1) of the Act when on Septem-
ber 2, its president, Waldman, cursed Charles "because of [Charles'] membership
in and/or activities on behalf of the [Teamsters] Union."
I have found that Waldman did curse Charles on two separate occasions on Sep-
tember 2, first when Charles was discharged and again a short time later when
Charles' plea for reinstatement was denied. On the record of this case, however, I
am unable to find that the cursings were distinct from the acts which they accom
panied; namely, Charles' discharge and Respondent's subsequent refusal to rein-
state him.
As Respondent's discharge of, and failure to reinstate, Charles interfered with,
restrained, and coerced him "in the exercise of the rights guaranteed in Section 7"
of the Act Respondent thereby violated Section 8 (a)(1) 15 as well as Section 8(a)
(3) and I have already so concluded. The cursing, however, being part and parcel
of Respondent's foregoing conduct and, in my opinion, inseparable therefrom, I can-
not conclude that they constituted independent acts of interference, restraint, or
coercion. Accordingly, paragraph 7 and the relating portions of paragraphs 10 and
13 of the complaint will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities as set forth in section III, above, occurring in connection
with its operations as set forth in section I, above, have a close, intimate, and sub-
stantial 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.
"Charles testified that he carried out his instructions as to the checklist. Although
I have found Charles to he a generally credible witness, in view of Waldman's corrobo-
rated testimony I do not believe Charles in this instance
15City Yellow Cab Company, 144 NLRB 994, 1000, enfd. 344 F.2d 575 (C.A 0)
FURNITURE DESIGNS, INC.
V. THE REMEDY
1581
Having found that Respondent engaged in the unfair labor practices set forth
above, the Recommended Order will direct Respondent to cease and desist therefrom
and to take the affirmative action normally required in such cases to effectuate the
policies of the Act. Any backpay found to be due to Charles shall be computed in
accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289,
and shall include interest in the amount and manner provided for in Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act, and
is engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act.
2. The Teamsters Union is a labor organization within the meaning of Section
2(5) of the Act.
3. By discharging and failure to reinstate John W. Charles because of his mem-
bership in and activities on behalf of the Teamstei s Union, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and
(1) of the Act.
4. Respondent did not independently violate Section 8(a)(1) of the Act by curs-
ing John W. Charles on two occasions on September 2, 1965.
Upon the foregoing findings of fact, conclusions of law , and upon the entire rec-
ord in this case I hereby issue the following:
RECOMMENDED ORDER
Furniture Designs, Inc., its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in General Drivers, Warehousemen and Helpers
Local Union No. 968, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , or any other labor organization by discriminat-
ing against employees in regard to hire or tenure of employment or any term or
condition of employment.
(b) In any like or related manner interfering with , restraining , or coercing
employees in the exercise of their right to self-organization , to form , join, or assist
labor organizations , to bargain collectively- through representatives of their own
choosing, or to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any and all such
activities as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which , it is found , will effectuate the pol-
icies of the Act:
(a) Offer to John W. Charles immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his seniority , or other rights
and privileges , and make him whole for any loss of earnings he may have suffered
as a result of the discrimination practiced against him , in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Notify John W . Charles if presently serving in the Armed Forces Of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military and Service Act , as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards , personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due under the terms of this Recommended Order.
(d) Post at its premises copies of the attached notice marked "Appendix." 16
Copies of said notice to be furnished by the Regional Director for Region 23, after
being duly signed by an authorized representative of Respondent , shall be posted
'"In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is 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"
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately upon receipt thereof, and be maintained for 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.i7
17 In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read • "Notify the aforesaid Regional Director, in writing within 10
days from the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the 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, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in any union by laying off, discharg-
ing, or refusing to reinstate any employee or by discriminating against any
employee in any other manner in regard to his hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with, coerce, or
restrain employees in the exercise of their right to self-organization, to join
or assist any union, to bargain collectively through representatives of their
own choosing, or to engage in any other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer to John W. Charles, immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination practiced against him.
FURNITURE DESIGNS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify John W. Charles if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and Universal Military Training and
Service Act, 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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone
228-0611.
District 19, United Mine Workers of America (Seagraves Coal
Company) and Southern Labor Union, Local 207
Local 6074, United Mine Workers of America ( Seagraves Coal
Company) and Southern Labor Union, Local 207. Cases 9-CP-
V-1 and 1. October 4, 1966
DECISION AND ORDER
On May 27, 1966, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respond-
160 NLRB No. 124.