Home Furniture Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1969

174 N.L.R.B. 788 (N.L.R.B. 1969)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Home Furniture Co., Inc. and Local 3, Allied
Woodworkers Union of America, Inc.
Local 467 , Upholsterers' International Union of
North America, AFL-CIO and Local 3, Allied
Woodworkers Union of America, Inc. Cases
4-CA-4532 and 4-CB-1474
February 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 17, 1968, Trial Examiner Herman
Tocker issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent Home and
Respondent Upholsterers filed exceptions to the
Trial Examiner's Decision and supporting briefs;
and the General Counsel filed cross-exceptions and a
brief in support thereof and in answer to the
Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions, briefs, and the entire record in the
proceedings,' and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, with the modifications noted below.
We agree with the Trial Examiner's conclusions,
for the reasons discussed herein, that Respondent
Home violated Section 8(a)(1), (2), and (5) of the
Act, and that Respondent Upholsterers violated
Section 8(b)(1)(A) and (2) of the Act. We also find
that Respondent Home violated Section 8(a)(3) of
the Act.2
Home has two plants in York, Pennsylvania,
where it is engaged in the manufacture of furniture.
Since 1964, the approximately 300 employees at
these plants have been covered by a
collective-bargaining contract with the Upholsterers.
On September 22, 1967, Home entered into an
agreement with Bethlehem Furniture Manufacturing
Corporation, herein called Bethlehem, of Red Lion,
As the record and briefs adequately present the issues and the positions
of the parties, Respondent Home ' s request for oral argument is hereby
denied
It appears that the Trial Examiner has inadvertently omitted making an
8(a)(3) finding herein.
Pennsylvania (approximately 10 miles from York),
to purchase Bethlehem's land, buildings, and about
two-thirds of the furniture manufacturing
machinery. The sale was not consummated until
December 15, 1967, but Home's representative
addressed all 41 Bethlehem employees in October
1967, at which time he informed them of Home's
intention to take over Bethlehem's plant, assured-
them that there would be no layoffs, and stated that
Home would continue recognition of Local 3, Allied
Woodworkers Union of America, Inc., herein called
Allied, which for many years had represented
Bethlehem's employees. Bethlehem's last contract
with Allied was executed on September 28, 1967. It
contained a 30-day union-security clause and
provided for the checkoff of dues as in previous
contracts. As in the past, Bethlehem continued to
deduct dues on behalf of all its employees. On
December 15, Home notified Allied by letter that it
"adopts the contract in its present form and fully
intends to honor it and you may assure your
members that we plan to retain the Bargaining Unit
personnel."
On December 15, Home assumed full
management of the Red Lion plant. It retained all
Bethlehem employees and assigned them to plant
renovation and maintenance work in preparation for
production. Until Janurary 25, 1968, Home honored
the contract with Allied, including the deduction of
dues for all employees. However, on that date,
Home notified Allied that its prior recognition of
Allied as the bargaining representative for the Red
Lion employees was revoked.
As noted above, the Upholsterers was the
recognized bargaining representative for Home's
employees at the two York plants. During
negotiations between these parties for a new
contract which began on December 21, 1967, the
Upholsterers demanded that the employees at the
Red Lion plant be included in the York bargaining
unit. Home replied that the newly acquired plant
was a separate operation and that it was already
under contractual relations with Allied. Home
suggested that the Upholsterers should, if it
persisted in its claim, file a representation petition
with this Board to avoid the commission of any
unfair labor practices by any of the parties. The
Upholsterers engaged in a 1-day strike at the York
plants on about January 11, 1968, to enforce its
demand for recognition at Red Lion. As previously
noted, on January 25 Home revoked its recognition
of Allied and it notified the Upholsterers of this
fact, advising the latter that it might be entitled to
recognition, but that Home must "abide by
whatever determination is made by the Board and
hope that any question concerning recognition can
be resolved quickly." None of the parties to the
proceeding has filed a representation petition with
the Board.
Negotiations between Home and Upholsterers
reached an impasse by February 1, 1968, the
174 NLRB No. 113
HOME FURNITURE CO., INC.
expiration date of their contract. Between February
2 and 25., the Upholsterers engaged in a strike which
resulted in a work stoppage at all three plants.
Shortly thereafter, Home and the Upholsterers
entered into a new contract, effective February 26,
which accorded the Upholsterers recognition for all
of Home's employees, including those at the Red
Lion plaint. The contract contains a union-security
clause and a dues checkoff provision. It resulted in
loss of seniority status of the former Bethlehem
employees with respect to layoffs and job bidding;
some employees also received a cut in wages.
1. We find that Respondent Home violated
Section 8(a)(5) and (1) of the Act on January 25,
1968, when it revoked its recognition of Allied as
the bargaining representative for the employees at
the Red Lion plant.
In all the circumstances of this case, we find no
merit in the contention of Home and Upholsterers
that the employees of Red Lion were merged into or
accreted to the bargaining unit of York employees
represented by the Upholsterers. The Red Lion
employees constituted a separate appropriate unit
while employed by Bethlehem and continued as such
when Home became their employer. Upon acquiring
the plant, Home retained all the employees,
recognized Allied as their bargaining representative,
adopted the existing contract covering them, and
continued to check off their dues in favor of Allied,
as Bethlehem had done. At all times, it is clear,
Allied was the bargaining agent for the Red Lion
employees. As of January 25, therefore, it was
incumbent upon Home to continue its recognition of
Allied for the employees at Red Lion, whether or
not it was a "successor" to Bethlehem.3 It follows
that, by withdrawing such recognition, Home
violated the Act.4
2. We find that Respondent Home also violated
Section 8(a)(2) and (1) of the Act on about
February 26, 1968, when it granted recognition and
a contract to the Upholsterers as the bargaining
representative of the employees at the Red Lion
plant. Such conduct constituted unlawful assistance
to the Upholsterers which did not represent a
majority of the employees and was thus not entitted
to recognition. Respondent Upholsterers violated
Section 8(b)(1)(A) of the Act by executing and
maintaining the aforesaid contract.s
3. As the aforesaid agreement between the
Respondents contained union-security and
dues-checkoff clauses which pertained to the Red
Lion employees, and in view of Respondent Home's
duty to bargain with Allied as the exclusive
representative of these employees, we find that, by
executing and maintaining such agreement,
Respondent Upholsterers violated Section 8(b)(I)(A)
and 8(b)(2) of the Act, and that Respondent Home
'In our view of the case , we need not decide this question
'DeGeorge Transfer & Storage Co ., 143 NLRB 83, 85
'Bernhard-Altmann Texas Corp, 122 NLRB 1289, enfd -280 F.2d 616
(C.A D.C.), affd. 366 U.S 731 (1961).
789
violated Section 8(a)(1) and (3) of the Act.6
4. Having found that the Respondents have
engaged in unfair labor practices, we shall order
them to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act, in the manner recommended by the Trial
Examiner, as modified herein.
CONCLUSIONS OF LAW
1. Respondent Home is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Respondent Upholsterers and Allied are labor
organizations within the meaning of Section 2(5) of
the Act.
3. Respondent Home's production and
maintenance employees at its Red Lion,
Pennsylvania, plant, excluding executives, - foremen,
office clerical employees, salaried employees,
professional employees, plant protection employees,
guards, and all other supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of
Section 9(b) of the Act.
4. By refusing to recognize and bargain with
Allied on and after January 25, 1968, Respondent
Home has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
5. By recognizing Respondent Upholsterers as the
bargaining representative of the employees at the
Red Lion plant and by entering into and
maintaining the collective-bargaining agreement,
effective February 26, 1968, Respondent Home has
violated Section 8(a)(1), (2), and (3) of the Act.
6. By entering into and maintaining said
agreement, Respondent Upholsterers has violated
Section 8(b)(1)(A) and 8(b)(2) of the Act.
7. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent, Home Furniture Co., Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 3,
Allied Woodworkers Union of America, Inc., as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees
employed by Home Furniture Co., Inc., at its
Red Lion, Pennsylvania, plant, excluding
6)
'Downtown Bakery Corp, 139 NLRB 1352, enfd 330 F 2d 921 (C.A
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
executives, foremen, office clerical employees,
salaried employees, professional employees, plant
protection employees, guards, and all other
supervisors as defined in the Act.
(b) Recognizing or dealing with Local 467,
Upholsterers' International Union of North
America, AFL-CIO, as the bargaining
representative of its employees in the aforesaid unit,
unless and until the Upholsterers shall have been
certified by the Board as the exclusive representative
of such employees.
(c) Giving force or effect to its
collective-bargaining agreement with the
Upholsterers, dated February 26, 1968, or to any
amendment, supplement, or addition thereto, insofar
as it affects its employees in the aforesaid unit.
(d) Assisting the Upholsterers in any other
manner to become the collective-bargaining
representative of its employees at the Red Lion
plant.
(e) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Resume its bargaining relationship with Allied
as the exclusive bargaining representative of its
employees at the Red Lion plant, and honor the
contract, excepting section 4 of article I thereof,
entered into between Bethlehem Furniture
Manufacturing Corporation and Allied on
September 28, 1967, which it adopted on December
15, 1967.
(b) Withdraw and withhold recognition of
Respondent Upholsterers as the bargaining
representative of its employees at the Red Lion
plant, and revoke its collective-bargaining agreement
with said union insofar as it affects the employees at
that plant.
(c) Jointly and severally with Respondent
Upholsterers reimburse employees of the Red Lion
plant who became members of Respondent
Upholsterers in accordance with the aforesaid
agreement of February 26, 1968, for moneys paid by
them or deducted from their earnings for initiation
fees, dues, assessments, or other obligations of
membership in Respondent Upholsterers, together
with interest at the rate of 6 percent per annum.
(d) Restore to its employees at the Red Lion
plant the seniority held by them prior to its unlawful
recognition of Respondent Upholsterers as their
representative, make them whole for any loss of
earnings or benefits which they may have lost or
been denied by reason of its rescission on January
25, 1968, of its agreement with Allied, together with
interest at the rate of 6 percent per annum.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to determine the
moneys or benefits due under the terms of this
Decision.
(f) Post at its plants in Red Lion and York,
Pennsylvania, copies of the attached notices marked
"Appendix A" and "Appendix B."' Copies of said
notices, on forms provided by the Regional Director
for Region 4, shall, after being signed by the
respective representatives, be posted by Respondent
Home immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent
Home to insure that said notices are not altered,
defaced', or covered by any other material.
(g) Mail to the Regional Director signed copies of
"Appendix A" for posting by Respondent
Upholsterers, as hereinafter directed.
(h) Notify the Regional Director, in writing,
within 10 days from the date of this Decision and
Order, what steps Respondent Home has taken to
comply herewith.
B. Respondent, Local 467, Upholsterers'
International Union of North America, AFL-CIO,
its officers, agents, representatives, successors, and
assigns, shall:
1. Cease and desist from:
(a) Acting as the exclusive bargaining
representative of Respondent Home's employees at
its Red Lion plant for purposes of collective
bargaining, unless and until it shall have been
certified by the Board as the exclusive representative
of such employees.
(b) Giving any force or effect to its
collective-bargaining agreement with Home, dated
February 26, 1968, or- to any -amendment,
supplement, or addition thereto, insofar as it affects
the employees at the Red Lion plant.
(c) Causing or attempting to cause Respondent
Home to discriminate against employees at the Red
Lion plant in violation of Section 8(a)(3) of the Act
and in any other manner restraining or coercing
these employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Jointly and severally with Respondent Home
reimburse employees of the Red Lion plant, who
became members of Respondent Upholsterers in
accordance with the aforesaid agreement of
February 26, 1968, for moneys paid by them or
deducted from their earnings for initiation fees,
dues, assessments, or other obligations of
membership, together with interest at the rate of 6
percent per annum.
(b) Post at its business office and meeting hall in
York, Pennsylvania (or, if there are none in York,
'In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
HOME FURNITURE CO., INC.
then in Philadelphia), copies of the attached notices
marked "Appendix A" and "Appendix B."8 Copies
of said notices, on forms provided by the Regional
Director for Region 4, shall after being signed by
the respective representatives, be posted by
Respondent Upholsterers immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to its members are customarily
posted. Reasonable steps shall be taken by
Respondent Upholsterers to insure that said notices
are not altered, defaced, or covered by any other
material.
(c) Mail to the Regional Director signed copies of
"Appendix B" for posting- by Respondent Home, as
heretofore directed.
(d) Notify the Regional Director, in writing,
within 10 days from the date of this Decision and
Order, what steps Respondent Upholsterers has
taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United Slates Court of Appeals
Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL resume recognizing and bargaining
collectively with Local 3, Allied Woodworkers of
America, Inc., as the union- authorized to represent our
employees at the Red Lion, Pennsylvania, plant in the
following unit:
All production and maintenance employees at our
Red Lion, Pennsylvania, plant, excluding
executives, foremen, office clerical employees,
salaried employees, professional employees, plant
protection employees, guards, and all other
supervisors as defined in the Act.
WE WILL NOT recognize or deal with Local 467,
Upholsterers' International Union of North America,
AFL-CIO, as the representative of any of our
employees at the Red Lion plant, unless and until it has
been certified as the exclusive representative of our Red
Lion employees by the National Labor Relations
Board .
WE WILL NOT give any force or effect to the
agreement made with the Upholsterers, insofar as it
applies to the employees at the Red Lion plant
WE WILL NOT assist the Upholsterers in any other
manner to become the representative of the employees
at the Red Lion plant.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL resume honoring the bargaining contract
made between Bethlehem Furniture Manufacturing
Corporation and Local 3, which we cancelled on
January 25, 1968. We will not honor the dues-checkoff
provision of the contract, however, until it is amended
791
to conform with the law. -
WE WILL jointly and severally with the Upholsterers
reimburse our employees at the Red Lion plant for
moneys paid by them or deducted from their earnings
for initiation fees, dues, assessments, or other
obligations of membership in the Upholsterers.
WE WILL restore to our employees at the Red Lion
plant the seniority held by them prior to our wrongful
recognition of the Upholsterers as their representative;
make them whole for any loss of wages and certain
other benefits which they may have lost or been denied
by reason of our cancellation of our bargaining contract
with Local 3 on January 25, 1968.
HOME FURNITURE CO.,
INC.
(Employer)
Dated By
(Representative ) , (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 1700 Bankers
Securities Building, Walnut & Jupiter Streets,
Philadelphia , Pennsylvania 19107, Telephone
215-597-7601.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 467,
UPHOLSTERERS' INTERNATIONAL UNION OF NORTH
AMERICA, AFL-CIO
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify you that:
WE WILL NOT act as the collective-bargaining
representative of the employees at the Red Lion,
Pennsylvania, plant of Home Furniture Co., Inc., unless
and until we have been certified by the Board as the
authorized representative of such employees.
WE WILL NOT give any force or effect to our
collective-bargaining agreement with Home, dated
February 26, 19'68, or to any amendment, supplement,
or addition thereto, insofar as it relates to the
employees at the Red Lion plant.
WE WILL NOT cause or attempt to cause Home to
discriminate against its employees at the Red Lion
plant in violation of Section 8(a)(3) of the Act or in any
other manner restrain or coerce these employees in the
exercise of their rights guaranteed in Section 7 of the
Act.
WE WILL jointly and severally with Home reimburse
the employees at the Red Lion plant, who became
members of our organization in accordance with the
aforesaid agreement of February 26, 1968, for moneys
paid by them or deducted from their earnings for
initiation fees, dues, assessments, or other obligations of
membership in our organization.
LOCAL 467,
UPHOLSTERERS'
INTERNATIONAL UNION
OF NORTH AMERICA,
AFL-CIO
(Labor Organization)
792
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1700 Bankers
Securities Building, Walnut & Jupiter Streets,
Philadelphia, Pennsylvania . 19107, Telephone
215-597-7601.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN TOCKER, Trial Examiner: This cause came on
to be heard before me in York, Pennsylvania, on June 4
and 5, 1968, upon the complaint of the General Counsel
issued April 9 following charges filed February 2 and
March 8 by Local 3, Allied Woodworkers Union of
America, Inc., charging union, against the employer,
Home Furniture Co., Inc., and on March 8, against Local
467, Upholsterers' International Union of North America,
AFL-CIO, respondent union, and upon the answers of the
employer and the respondent union filed April 19.
It was alleged in the complaint that Home had become
a successor employer at a plant in Red - Lion,
Pennsylvania, and had recognized Allied as the bargaining
representative of the employees in that plant in
consequence thereof but, at a later time, had withdrawn
such recognition and had refused to bargain with it
because of the subsequent recognition of Upholsterers
followed by alleged unilateral changes of existing wage
rates and job classifications resulting from the alleged
wrongful recognition of Upholsterers and the withdrawal
of recognition of Allied. It was alleged further that,
following Home's recognition of Upholsterers, Home and
Upholsterers have maintained and enforced a labor
relations agreement extending to and including the
employees of the Red Lion plant, in which agreement
there is included a union-security clause requiring Red
Lion employees to become members of Upholsterers on
the 30th day following execution of the agreement or the
beginning of their employment at Red Lion.
Thus, Home was charged with violations of Sections
8(a)(1), (2), (3), and (5) and 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, and
Upholsterers was charged with violations of Sections
8(b)(1)(A) and 2(6) and (7)
In short, the position of the charging union, Allied, and
of the General Counsel is that Home was a successor
employer at the plant in Red Lion, rightfully became
bound by a contract between Allied and the former
employer there, rightfully adopted that contract and
recognized Allied, wrongfully thereafter rescinded that
contract, and wrongfully recognized the respondent union,
Upholsterers, which had been and was the union
representing Home's employees in two other plants in
York, Pennsylvania, the nearest of which was
approximately ten miles from the Red Lion plant. It is
further their position that Upholsterers violated the Act
when it caused Home to withdraw recognition from Allied
and recognize it as the representative of the employees at
Red Lion, enter into a collective-bargaining agreement
with it, and required by that agreement that employees at
Red Lion become members of Upholsterers.
Home, the employer, and Upholsterers, the respondent
union, take the position that Home was not a successor
employer, that it was not bound by the contract between
Allied and Red Lion's former operator, that when Home
ultimately commenced operating Red Lion its operation
there was an accretion to the operations at its two plants
in York and, because it was an accretion, Upholsterers,
the recognized union at those plants, became the rightful
representative of any employees at Red Lion and Home
was required to and therefore properly did recognize and
contract with Upholsterers as the exclusive bargaining
representative of all its employees, both in York and at
Red Lion.
The Issues
I do not regard the mayor issue at this lime to be
whether Home's acquisition and operation of the factory
in Red Lion was as a successor employer there or whether
the result merely was an accretion to the operations
theretofore conducted and continuing at its two plants in
York.
If that were the real issue, and Home's acquisition of
the factory in Red Lion was as a successor to the former
operator there and that former operator had a valid and
proper contract with Allied, there would be no problem
about the propriety of Home's recognition of Allied. Its
subsequent withdrawal of such recognition and imposition
upon Red Lion employees of the contract terms with
Upholsterers unquestionably would have constituted
interference with the guaranteed rights of the Red Lion
employees under Section 7 of the Act, wrongful support of
Upholsterers and wrongful refusal to bargain, collectively
with Allied. Similarly, under these circumstances, the
demands and enforcement of those demands by
Upholsterers would have been a wrongful interference
with the rights guaranteed to Red Lion's employees under
Section 7 of the Act and a wrongful compulsion of Home
to discriminate unlawfully against such employees.
At the very least, if Home was not truly a successor
employer, the employees at Red Lion might have been
entitled to a self-determination election.
Conversely, and still speculating upon successorship
versus accretion, if Home's operation at Red Lion had
been a true accretion and therefore an extension of its
operations at the neighboring plants and if no other union
had either a valid or reasonably arguable claim to
represent the Red Lion employees, Home's recognition of
Upholsterers as the bargaining representative of its
employees at all three plants would have been proper and
neither it nor Upholsterers would be regarded as having
engaged in the unlawful conduct alleged against them in
the complaint.
Although I shall make findings on the successorship
versus accretion issue, I view the real issue as being the
propriety of the contract between Home and Upholsterers
at a time when there was a genuine dispute and issue
whether Allied or Upholsterers was to represent the
employees at Red Lion which dispute and issue could be
settled only by resort to the established procedures of the
National Labor Relations Board for determining
representation questions.
I have been favored with briefs submitted by counsel
supporting the complaint, counsel for the employer, and
counsel for Upholsterers, the respondent union. These
have been quite helpful and have been given careful
consideration.
HOME FURNITURE CO., INC.
Now, on the basis of the entire record, consisting of
oral and voluminous documentary evidence, and after my
observation of the witnesses during the giving of their
testimony, I hereby make the following
Findings of Fact
A. The Business of the Employer and Jurisdiction
Respondent, Home Furniture Co., Inc., is now, and at
all times material herein has been, a corporation duly
organized and existing under and by virtue. of the laws of
the Commonwealth of Pennsylvania. It is engaged in the
manufacture and sale of wood institutional furniture at
plants in York and Red Lion, Pennsylvania, all in York
County. It has admitted that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Labor Management Relations Act, 1947, as amended.
The National Labor Relations Board has jurisdiction of
this proceeding and of it
B. The Labor Organizations Involved
Local 3, Allied Woodworkers Union of America, Inc.,
the charging union, has represented employees in the
furniture industry in Red Lion, Pennsylvania, for more
than twenty years It has dealt, on their behalf, with
several employers in at least three plants there. It has
reported as a "labor organization" to the Office of
Labor-Managment and Welfare-Pension Reports of the
Labor-Managment Services Administration of the United
States Department of Labor. (See January 1, 1964,
Register of Reporting Labor Organizations.) Respondent
union, Upholsterers, has sought to create an issue as to
Allied's capacity as a labor organization under the Act.
Allied's affirmative testimony and the public records
support the conclusion that it has that capacity.
Upholsterers' arguments in opposition may be regarded
at best as assaults upon the quality of representation
afforded by Allied to its members. That, however, has no
bearing on the question whether Allied is in fact a labor
organization. Upholsterers cites, as additional reason for
finding that Allied is not a labor organization, that
Allied's failure to produce various records suggests there
were none, that no grievances were processed, and that, if
anything, its activities were social. In another case, that
Sacramento Seven Up Employees' Union initially was
established to keep out the Teamsters, had no office, kept
only sporadic records, never processed any grievance, and
its infrequent meetings were primarily social did not deter
the Board from finding that it was a labor organization
within the meaning of Section 2(5) of the Act. Seven Up
Bottling Co. of Sacramento, 147 NLRB 401, 158 NLRB
1223.
I find that Local 3, Allied Woodworkers Union of
America, Inc., is a labor organization within the meaning
of Section 2(5) of the Act.
It is conceded generally and there is no issue that Local
467, Upholsterers' International Union of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
Both said labor organizations are subject to the
jurisdiction of the National Labor Relations Board in this
proceeding.
C. The Alleged Unfair Labor Practices
793
The nature of the business conducted at Red Lion
before Respondent, Home, acquired that property is of
some importance. It is one of the factors resulting in my
conclusion that Home should not be regarded as a
successor of Red Lion's former operator.
For many years prior to September 1967 Bethlehem
Furniture Mfg. Corp. had operated the factory at Red
Lion. This was a custom furniture building business in
which was manufactured what is known in the trade as a
"decorator line." It is quality residence furniture normally
sold directly to home owners by interior decorators either
from pictures or after visits to showrooms at which model
pieces are displayed. It was not a volume business but
appears to have been a special order business whereby
Bethlehem would sell and deliver finished pieces either
directly to the ultimate customer, the homewowner, or
indirectly through an interior decorator. It certainly did
not involve either assembly line or mass production. The
woodworking employees there appear to have been more
or less skilled furniture craftsmen capable of performing
varying functions in the manufacture of a complete living
room or bedroom set or individual pieces to be placed in
homes. Their work had not been placed in different
classifications. Many of them probably had been
long-term employees of Bethlehem and all seem to have
had personalized rates of compensation.
On the other hand, Home Furniture Co., Inc., the
Respondent, maintained at its two plants in York a
completely different sort of operation. This involved mass
production of what is known as "institutional furniture ...
as opposed to household furniture---furniture that goes in
dormitories, hospitals, hotels, motels, nursing homes,
restaurants [and] libraries." It was "specially
constructed and designed to withstand that kind of
[institutional] use." Home concentrated on the production
of furniture for the categories other than libraries but
engaged also in a limited amount of direct manufacture of
tables, chairs, and carrels for libraries It was content,
prior to its intended acquisition of the factory at Red
Lion, to contract out or subcontract its major
requirements for the fulfillment of library contracts.
For many years prior to September 19, 1967, Allied,
the charging union , was the duly recognized and exclusive
bargaining agent of the Red Lion employees both during
its operation by Bethlehem and prior thereto while it was
operated by another company, Ebert. There were, it is
asserted, written labor relations contracts executed by and
between Bethlehem and Allied. These contracts (other
than the last) were not produced on demand of respondent
union , Upholsterers. When Allied's president was asked
about contracts existing before September 1967 he
testified that there had been "such a contract" but
claimed he did not know where it was. It never was
produced. I find it difficult to believe (regardless of the
stipulation during the hearing) that if there had been a
prior written contract between Allied and Bethlehem,
Allied would not have had it at a time only', months after
its alleged expiration. The failure to produce such a
contract or any contract previous to the one in evidence
creates all sorts of questions as to whether in fact there
had been a written contract or contracts and what the
contents of such contracts might have been. Such
questions become unimportant when this case is viewed in
its entirety.
Bethlehem came upon hard times. There were cash and
bank difficulties. It decided to discontinue its operations
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Red Lion and advertised that plant for sale. This came
to Home's attention and, after negotiations between
Home and Bethlehem, a contract was executed September
22, 1967, by those two companies. This contract definitely
was not for the sale of a business. It was not concerned
with good will, customers, furniture manufacturing, lines
of merchandise, accounts receivable, trademarks, business
affiliations, restrictions on competitive operations, or any
of the other usual matters included in contracts for the
purchase and sale of a business.
On the contrary, it was merely a contract for the sale
and purchase of a plot of land containing 4.730 acres,
more or less, together with rights in a railroad siding
serving that land, located in Red Lion, York County,
Pennsylvania. The price for the land was $325,000. In
addition, and in connection with the sale of the land, there
was provision for the sale of some machinery, equipment,
fixtures, apparatus, supplies, parts, 'tools, and other
equipment listed on an exhibit attached. Other items of
machinery, which at the time of the making of the
contract were on the premises, were excluded temporarily
from the sale but were subject to be included upon
payment of prices to be agreed on at time of settlement.
Bethlehem's intended divorcement from the Red Lion
factory was emphasized by the fact that the contract of
sale contained a provision to the effect that fire or other
casualty following its execution was "not in any way [to]
void or impair any or' its contents.
The nature of this transaction, as evidenced by this
contract, is another reason why I conclude that Home is
not to be regarded as Bethlehem's successor. The
settlement date was to be and actually became December
15.
Apparently unbeknownst to Respondent Home, the
vendee under said contract, Bethlehem, on September 28,
6 days after executing the sales agreement whereby it
signified its intention to terminate the business of furniture
manufacturing at Red Lion, entered into a written
agreement with Allied, the charging union, in which it
recognized that union "as the sole collective-bargaining
agency for all its employees at its Red Lion, Pennsylvania
plant." This contract has a valid union-security clause
(Milwaukee Gas Light Company, III NLRB 837,
Paragon Products Corporation, 134 NLRB 662), but its
checkoff clause was illegal in that it went beyond what
was permissible under Title III, Sec. 302 (c)(4) of the
LMRA. This was and is severable from the rest of the
contract and does not render it invalid as a
collective-bargaining agreement.
One of the contract clauses is stressed as being relevant
to the disposition of the issues herein. That clause is,
"This agreement will be assigned to any successor to the
Company." This is preceded by another clause, "This
agreement is not transferable or assignable to any other
bargaining agency." Other than the action of Respondent
Home's vice president when he wrote Allied, as will be
brought out below, there is no suggestion that the
Bethlehem-Allied contract ever became the subject of a
formal assignment to Home under the quoted "assignment
to successor" clause . Such an assignment was not a
prerequisite to Home's becoming bound by it.
On December 15, in accordance with the terms of the
sales contract, Home took title to the land, buildings, and
some of the equipment. Such equipment as it did not
acquire was moved out by Bethlehem, the vendor. As the
change in ownership progressed, leading ultimately to
Bethlehem's final departure, Bethlehem's work was phased
out, it continued to pay employees who continued working
for it and, as any employees became surplus to it, Home
took them on, paid them their previous regular hourly
rates, and made checkoff deductions for Allied from their
pay. Ultimately, and before the beginning of any
production at Red Lion several months later, all Red Lion
employees willing to work for Home were transferred to
its payroll. For months they engaged in no furniture
production of any kind and were assigned only to clean up
and refurbishing work or rearrangement of equipment and
general maintenance.
On the very day that the sales contract went to
settlement (December 15), Home, by Karl J, Reifman, its
vice president and secretary, wrote Allied, the charging
union, as follows:
This is to advise that on Friday, December 15th, at the
close of business hours, Home Furniture Company,
Inc., purchased the land, building and some of the
equipment from Bethlehem Furniture Manufacturing
Corporation, designated as the Red Lion plant.
Our attention has been directed to your current labor
agreement (which became effective September 28, 1967
and runs through September 28, 1969) with the above
company and more particularly, to the Successor
Clause. We wish to advise that Home Furnishing
Company, Inc., adopts the contract in its present form
and fully intends to honor it and you may assure your
members that we plan to retain the Bargaining Unit
personnel.
In order to continue the amicable relationship that your
organization and members have had with the former
management , we would like to meet with you and the
Union Bargaining Committee at your earliest
convenience so that we may make appropriate
introductions to one another and answer any questions
you may have regarding the change in management.
The "successor clause" to which reference was made in
the letter is the same clause quoted above. Although the
time of the writing of this letter suggests that it was
written in haste, I am unwilling to read into this factor
that there was a nefarious motive as charged against
Home by counsel for Upholsterers. I believe that when
Reifman wrote the letter he was under the impression that
the so-called "successor clause" required him to recognize
Allied and that Home had inherited a work force
represented by it. Having observed Reifman on the
witness stand I am firmly of the opinion that there was
nothing guileful about him or his conduct and that he
wrote the letter with all sincerity.
I ascribe no importance to that portion of the sales
contract wherein it was provided, "Upon the execution of
this contract the Seller's list of available employees will be
furnished to the Purchaser, together with job
classifications." There was a tight labor market in the
area at that time. At its existing plants, Home had
difficulty in obtaining adequate labor. It was beleaguered
by large and constant labor turnover problems. Its interest
in procuring such a list of employees and their
classifications is quite understandable. It is to be noted
further that nothing in this clause or elsewhere in the
contract imposed on it the obligation to Hire the
employees named on the list. Home nevertheless expected
to do so and its plant manager personally addressed
Bethlehem's employees and so assured them. This was
repeated in the last sentence of the second paragraph of
the December 15 letter to Allied. Home continued, even
after the complete departure of Bethlehem, to make the
HOME FURNITURE CO., INC. 795
7
dues checkoff for Allied, continued contributions to
Allied's insurance plan, paid the Christmas bonus, and
made no changes in any wage rates payable to the old
employees, all in accordance with the September 28, 1967,
contract between Bethlehem and Allied. (See Shamrock
Dairy, Inc., 119 NLRB 998, 1002.)
Home had made an inchoate decision to :manufacture
library furniture at Red Lion but it never materialized.
This was because a subsequent study of the market
indicated the inadvisability of embarking on full-line
production of library furniture and devoting an entire
plant to such production.
There may be some significance in the question
whether, if Home actually had gone through with its
initial idea of producing a full line of library furniture at
Red Lion, that would have been an accretion within the
meaning of Borg-Warner Corporation, 113 NLRB 152, or
a new venture which would have resulted in a genuine
question whether (absent Allied's status) the Red Lion
employees were or were not entitled to a
self-determination election as opposed to being covered
into Local 467 of the Upholsterers, the union representing
Home's employees at its two existing plants. Home's vice
president, Reifman, in his testimony seems to have
regarded library furniture production as "a totally new
production and sales approach that [his} company was
taking." But he had testified previously, as an adverse
witness called by counsel supporting the complaint, that
Home had made tables, chairs, and carrels for libraries
even though it did not make a complete line and had
"subcontracted out" "everything else." Putting all his
testimony together, he said, aptly, "We did not make a
complete package of library furniture at that time."
'(Emphasis supplied.) Of course, even if the initial idea of
manufacturing library furniture at Red Lion had been
carried out, that operation would not have been as a
successor to Bethlehem's operation. So, for the third time,
I say that there should be no application of the successor
concept here.
The question of law here involved cannot be decided on
the basis of Reifman's thinking. What he thought at the
time or what his view of the law is now or was at that
time is not controlling. In my consideration of what had
been intended to happen (library production) and of what
ultimately did happen (a clear-cut expansion and
continuation of the identical manufacturing which always
had been conducted at Home's plants in York) I find
Borg-Warner (above) most instructive. In Borg-Warner
the employer received an order for the production of
automatic transmissions which it had not manufactured
before. For the purpose of performing that order it
acquired additional acreage in August 1953, hired a work
force, and the employees first went to work in March
1954, with actual production not beginning until May. If,
in Borg-Warner, a company, which never had
manufactured automatic transmissions but merely had
been engaged in manufacturing a variety of automotive,
electrical household appliances, and other products, was
held to have taken on a business qualifying for
classification as an accretion because similar or identical
skills and equipment were necessary and utilized in the
manufacture of the automatic transmissions, then
certainly the extension of the manufacture of library
furniture to a full line by a plant which was engaged in
the manufacture of institutional furniture and, as part of
that activity, had manufactured library tables, chairs, and
carrels, even though it had subcontracted out other library
items, should be similarly regarded. For this reason I do
not rule out the accretion concept merely because of the
initial but subsequently abandoned library furniture idea.
Had it been carried out I believe that such an operation
definitely would have been acceptable as one of the
factors, among others, which could add up to a conclusion
that there was an accretion here, as in Borg-Warner.
While the cleanup and refurbishing activities were being
conducted at Red Lion, Upholsterers' union learned of the
acquisition, its nature, and the conditions involved. In a
letter dated December 26, 1967, its attorney wrote Home
that it had been misled as to the nature of the operation
to be conducted by Home at Red Lion. It stated that for
the first time on December 21, it had become aware that
only the physical plant and some of the machinery had
been purchased and that there was to be no connection or
affiliation of Home with Bethlehem but that on the
contrary, "Products the same as or similar to products
being manufactured at Princess (the Home factory ten
miles away) will be manufactured at Red Lion." It
charged that Red Lion was "merely an expansion of the
production unit at Princess Street. . [and] it is clear that
Red Lion unit is an accretion to the Princess Street unit."
It accordingly demanded that its existing contract with
Home be applied to Red Lion, that Home recognize it as
the bargaining agent for Red Lion's employees, and that
Home cease recognizing and bargaining with Allied.
By letter dated December 30, 1967, Home, by Reifman,
replied to Upholsterers, informing it that it was Home's
intention to operate Red Lion as a separate facility for the
manufacture of a complete line of library furniture, that
Red Lion's supervisory staff would enjoy "local and
autonomous decision making power," that Red Lion had
not been acquired for the mere expansion of the Princess
Street production, that there was a recognized union
which had represented the employees at Red Lion for
approximately twenty-five years and had a contract
running to September 28, 1969, "with a successor clause,"
that Home's Red Lion management had informed Allied's
officers and members of Home's intention to honor that
agreement, that not only had it met with but it had been
required under NLRB rules to meet with and recognize
Allied, that the Allied contract constituted a legal bar to
Upholsterers' claim and, if Home acceded to
Upholsterers' claim, it would be violating the Labor
Management Relations Act, and finally it suggested to
Upholsterers that it apply to the National Labor
Relations Board for certification to the end that neither
the union nor the company would be charged with
violation of law or an unfair labor practice.
In another letter dated January 6, 1968, Home, by
Reifman, again rejected Upholsterers' claim to represent
the employees at Red Lion and reasserted that Allied was
an existing union acting as the bargaining agent for those
employees. It informed Upholsterers that under the law it
could not grant representation status to it for the Red
Lion employees and again suggested that it file a petition
with the Board.
During the time that these letters were being
exchanged, Home and Upholsterers were engaged in
bargaining negotiations for renewal or extension of the
existing contract covering the two old plants, due to expire
at the end of January 1968. Also, in the early part of
January, possibly January 11, Upholsterers' Local had
engaged in a 1-day wildcat strike, without permission of
its International, in support of its position that Red Lion
should be part of the bargaining unit and had filed unfair
labor practice charges against Home, making the same
contention.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The old contract between Home and Upholsterers due
to expire at the end of January 1968 provided for
recognition of Upholsterers by Home "at its York,
Pennsylvania Plant." It had a union-security clause which
required that "new employees covered by this Agreement
and hired on or after its execution date shall, on the
thirtieth day following the beginning of such employment
become and remain members in good standing in the
Union."' During the hearing I questioned whether the
reference in this contract only to Home's "York,
Pennsylvania Plant" limited its effect to a single plant in
York but I understand now that the agreement did cover
the two existing plants in York and also that both Red
Lion and York are in York County. For this reason I now
ascribe no significance to the superficially limiting nature
of the words "at its York, Pennsylvania Plant," and I do
not rely on that in reaching my ultimate conclusions.
Home ultimately was compelled to capitulate to
Upholsterers' 'demands that it be recognized as the
bargaining representative of employees at Red Lion.
This was done in two major steps: First, Home's
rescission of its initial recognition of Allied accompanied
by its simultaneous but tentative recognition of
Upholsterers. Second, its formal recognition of and
agreement with Upholsterers as the collective-bargaining
representative of the Red Lion employees.
By letter dated January 25, 1968, Home wrote Allied:
Please be advised that upon full consideration of all
the circumstances surrounding the acquisition by Home
Furniture Company, Inc., of some of the property and
equipment of Bethlehem Furniture Manufacturing
Corporation in Red Lion, Pennsylvania, this company
is not in a position to recognize your Union as the
bargaining representative for the former employees of
Bethlehem who have elected to become employed by
this company at Red Lion.
You may therefore disregard our letter of December
15, 1967.
(Compare this procedure with the Board's view of the
special nature of a labor relations contract as
distinguished from an ordinary legal contract. While the
latter, if improper for any legal reason, may be rescinded
unilaterally, the former is subject to restrictions imposed
by statute and labor law concepts. Carpenters District
Council of Denver (Rocky Mountain Prestress, Inc.), 172
NLRB No. 87.)
At the same time, Home wrote Upholsterers' attorney:
We have today sent the enclosed letter to the
President of Local No. 3, Allied Woodworkers Union
of America.
As you know, the ultimate determination of the
bargaining rights of Home Furniture Company, Inc.,
employees who will be employed at its Red Lion plant
rests with the National Labor Relations Board. It
would appear under all circumstances that your Union
is entitled to recognition as the bargaining
representative of those employees.
We must, of course, abide by whatever determination
is made by the Board and hope that any question
concerning recognition can be resolved quickly.
I regard this letter as having been only a tentative
recognition and that there was reserved for future
resolution by the Board the issue whether Allied or
Upholsterers was the proper union to act on behalf of the
Red Lion employees.
Following the writing of this letter negotiations
continued for a new contract because the old contract
covering the two plants in York was due to expire
February 1, 1968. A new contract became effective
February 26. In it 'Home formally recognized
Upholsterers, not only as the union, for its two plants in
York but also for the Red Lion plant. It contains a
union-security clause requiring Red Lion employees not
yet members of Upholsterers to become members on the
30th day following its execution and new Red Lion
employees to become members on the 30th day following
the beginning of their employment. It provides also for a
checkoff of union dues. This contract was executed
following a 3-week strike which shut down all plants,
including Red Lion, until February 25, 1968.
In support of the rcontention that Home's ultimate
recognition of and its contract with Upholsterers
extending to and including Red Lion employees were valid
and,proper, both Home and Upholsterers assert that Red
Lion merely was an accretion to Home's activities' in
York and for that reason Home was required to recognize
Upholsterers as the representative of Red Lion employees.
Whether I am correct in concluding that' the
manufacture of library furniture at Red Lion would have
been an accretion or whether, as I also conclude but, do
not find necessary to discuss in detail, the abandonment of
the initial intention to manufacture library furniture there
followed by the ultimate expansion to Red Lion of
Home's prior and continuing activities in York was, an
accretion, is not determinative of the real issue involved in
this proceeding. The real issue was recognized and stated
by Home's vice president, Reifman, in his letter of
January 25, 1968, to Upholsterers' attorney:
(T)he ultimate determination of the bargaining rights of
Home Furniture Company, Inc. employees who will be
employed at its Red Lion plant rests with the National
Labor Relations Board.
We must, of course, abide by whatever determination is
made by the Board and hope that any question
concerning recognition can be resolved quickly.
Home's good intentions were frustrated by
Upholsterers' unwillingness to let the Board decide the
question of representation and its coercion of Home, by
its exercise of the strike weapon, to. capitulate to its
demands and enter into the contract covering the Red
Lion employees into Upholsterers.
The question concerning representation was a very real
question for the determination of which the National
Labor Relations Board has established procedures which
were available to Home, Allied, and the Upholsterers.
Home could have resorted but did not resort to one of
these procedures. Allied had not been faced with the
necessity for so resorting to them because it had been
recognized promptly by Home. It was not dilatory or
chargeable with laches in the protection of its rights
because, immediately upon Home's ^ rescission of its
recognition agreement, it filed an unfair labor practice
charge against Home and followed it up by filing a similar
charge against Upholsterers. Upholsterers' position was
different. It was confronted not only with Allied's prior
and presumptive continued status as representative of Red
Lion employees and Home's recognition of Allied
(Shamrock Dairy (above) and Ref-Chem Company, 169
NLRB No. 45) but also with Home's admonition that the
issue was one for the Board to decide. It chose to ignore
all this and, although it had filed an unfair labor practice
charge against Home, it did not apply to the Board to
resolve the issue. It chose instead to take the law, into its
own hands and enforce its demand on Home by resorting
to the strike weapon. This was the law of the jungle and
HOME FURNITURE CO., INC.
not that of a country with a labor policy such as expressed
in Section 1(b) of the LMRA.
Thus,' this appears to be a typical case within the rule
of Midwest Piping & Supply Co., Inc., 63 NLRB 1060.
The rationale of the rule there was that there had been an
utter disregard of the Board's representation procedure
while there were pending with it at the time of the
happening of the events "conflicting petitions . . alleging
the existence of a question concerning the representation
of the employees covered by the agreement."
While in our case no petitions for determination by the
Board of the issue of representation had been filed, the
issue was very real. Neither Upholsterers, as the
demanding union, nor Home as the employer confronted
with this demand after its prior recognition of Allied,
already the representative of employees at Red Lion, had
the right to take it upon themselves to bypass the Board
and make this determination independently. To do this
was to disregard Allied's superficial but not sham position
and the possible preferences of the employees at Red
Lion. This seems to me to be more a case for invoking the
Midwest Piping rule (63 NLRB 1060) than was
Spartan-Atlantic Dept. Stores, 169 NLRB No. 47. In
Spartan, the employer, after avowing neutrality with
respect to recognition affecting a new store because in
some of its stores Amalgamated was the bargaining agent
and in others Retail Clerks was such agent, recognized
Retail Clerks at the new store while Amalgamated's
representation petition covering the employees there was
pending before the Board. It did so on the stated ground
that it regarded the new store as an accretion to a
two-store unit already represented by Retail Clerks. It did
this after Amalgamated had filed its representation
petition and without notifying Amalgamated of its
abandonment of neutrality. In our case, Home did
precisely the same but not merely by ignoring a petition
pending before the Board. It summarily brushed aside the
contract which it had adopted and the recognition it had
accorded voluntarily to Allied, the presumptive and
continuing representative of its Red Lion employees. This
was done not in May 1968, when Red Lion finally was in
full operation, but in February while it still was being
maintained and refurbished by the same employees who
had been employed by Home's predecessor and had been
represented by Allied. Allied's position was not "a `bare'
claim without substantiation." Its position as the initially
recognized bargaining agent was very real. To quote the
law as stated by the Examiner in Brittany Dyeing and
Printing Corp (where the Board held that a specific
request for recognition was not necessary), 126 NLRB
785, 793:
Where an employer is confronted with rival union
claims for exclusive recognition, one of which is
substantial, reliably supported by reasonable evidence,
and the other no more than a "bare" claim without
substantiation, the employer is free to recognize and
deal with the union which in fact represents the
majority of the employees. Where instead he extends
recognition to a union which ostensibly evidences
majority status, at a time when a rival labor
organization is also claiming exclusive recognition in
circumstances which raise a "real" question of
representation, or a substantial issue as to which union
is the true choice of the employees, the employer
violates the general proscription of the statute which
guarantees to all employees freedom of choice in the
matter when he himself resolves the question by
according exclusive recognition to one of the competing
797
unions.
The issue in our case never reached the question of
freedom of choice because Home and Upholsterers took it
upon themselves to decide the unit issue , which might
have been single plant or multiplant, and to ignore
Allied's previously recognized position and the possible
preference of employees at Red Lion. These were real
issues the determination of which by the Board should
have been awaited under the circumstances of this case.
Bonwit Teller, Inc., 170 NLRB No. 55; The Globe
Machine and Stamping Co., 3 NLRB 294. In coming to
this conclusion I do not overlook Northwest Galvanizing
Co., 168 NLRB No. 6, which involved a true expansion of
Northwest's business, a complete integration of the former
employer's employees into the Northwest operation, and a
consistent refusal to recognize the former owner's union,
all followed by the eventual close-down of the newly
acquired site and transfer to or merger of the entire
activity begun at the acquired site to Northwest's main
plant. Our case differs in many respects - particularly
the survival of the Red Lion plant, the initial and
apparently good-faith recognition by Home of the
resident, established union, Allied, prior to the raising of
any issue as to the possible rights of Upholsterers, and the
fact that the single-plant unit at Red Lion might have
been held appropriate and the employees there might have
preferred to be represented by Allied in a Globe type of
election (3 NLRB 294).
In accordance with the contract which Home, the
employer, had negotiated with Upholsterers, Home
required all its employees to become members of
Upholsterers. Among these were included both old and
new employees at the Red Lion plant. These employees,
also in accordance with the contract, were subjected to the
dues checkoff procedure whereby Home checked off the
dues owing to Upholsterers and forwarded them to
Upholsterers and to reclassification.
The following are my
CONCLUSIONS OF LAW
1. Home Furniture Co., Inc., the employer, is, and at
all times material herein has been, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Labor Managment Relations Act, 1947, as amended.
2. Local 3, Allied Woodworkers Union of America,
Inc., and Local 467, Upholsterers' International Union of
North America, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
3. The National Labor Relations Board has jurisdiction
of the subject matter of this proceeding and also of the
said employer and the said unions.
4. A unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act
could be either all production and maintenance employees
of Home Furniture Co., Inc., employed at its Red Lion,
Pennsylvania, plant, exclusive of all supervisors as defined
in the Act - or all production and maintenance
employees of Respondent, Home Furniture Co., Inc.,
employed at its three plants in York County,
Pennsylvania, the two plants in the city of York and the
third in Red Lion, exclusive of all supervisors as defined
in the Act.
5. By withdrawing its previous recognition from Allied
which had been the authorized collective-bargaining
representative of Red Lion employees, refusing and
continuing to refuse to bargain collectively with Allied as
such exclusive bargaining representative of all employees
798 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
in the Red Lion plant, by changing, without negotiating
and bargaining with Allied, existing wage rates, job
classifications, and other terms and conditions of
employment of the employees in the Red Lion plant, and
by refusing to abide by and to implement the
collective-bargaining contract with Allied previously
adopted by it at the time of its acquisition of the Red
Lion plant, Respondent, Home Furniture Co., Inc., did
interfere with, restrain, and coerce, and is interfering with,
restraining, and coercing employees in the exercise of
rights guaranteed to them in Section 7 of the Act and
thereby did engage in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. By withdrawing recognition from Allied and granting
recognition to Upholsterers as the exclusive bargaining
representative of employees in the Red Lion plant,
entering into a contract with Upholsterers the provisions
of which extended to and included the employees at the
Red Lion plant, by informing the employees at the Red
Lion plant that it had recognized Upholsterers as their
bargaining representative and requiring such employees to
become members of Upholsterers and to submit to a dues
check-off by Home on behalf of Upholsterers at a time
when, -so far as the record shows, Allied was the apparent
and presumptive exclusive bargaining representative for
employees at the Red Lion plant and none of the
employees there had designated Upholsterers as their
bargaining representative, Respondent breached its
obligation of neutrality and unlawfully assisted and
supported Upholsterers within the meaning of Section
8(a)(2) and (1) of the Act.
7. By so requiring its employees at the Red Lion plant
to become members of Upholsterers and so checking off
dues on behalf of Upholsterers from the wages payable to
employees at the Red Lion plant which dues were
thereafter transmitted by Home to Upholsterers, Home
furnished further unlawful assistance and support to
Upholsterers in violation of Section 8(a)(2) and (1) of the
Act.
8. By withdrawing recognition from Allied, by refusing
and continuing to refuse to bargain collectively with Allied
as exclusive bargaining representative of all employees in
the Red Lion plant, and by changing existing wage rates
and job classifications and other terms and conditions of
employment of employees of the Red Lion plant and
otherwise refusing to abide by and to implement the
collective-bargaining agreement in effect at the Red Lion
plant at the time when it acquired that plant, Home did
refuse to bargain collectively and is refusing to bargain
collectively with the representative of the employees at the
Red Lion plant and thereby did engage in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
9. By compelling Home to enter into and perform the
terms and conditions of the contract between it and
Upholsterers whereby the employees of Home at the Red
Lion plant were required to become members of
Upholsterers, to pay dues to Upholsterers and to submit
to a dues-checkoff procedure on its behalf, Respondent
Upholsterers thereby did restrain and coerce and continue
to restrain and coerce employees in the exercise of rights
guaranteed to them by Section 7 of the Act and thereby
did engage in and is engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
10. By compelling Home Furniture Co., Inc., to
recognize Upholsterers and to enter into the contract with
it and thereby require employees at the Red Lion plant to
become members of Upholsterers and to pay dues to it at
a time when Allied had an apparent, not sham, exclusive
right to represent such employees, Respondent
Upholsterers thereby did, engage in and is engaging in
unfair labor practices within the meaning of 8(b)(2) of the
Act.
11. All the acts thus set forth in the Conclusions of
Law hereinabove stated were committed at a time when
there were legitimate issues as to (a) whether, the
employees at the Red Lion plant constituted or would
constitute a separate unit appropriate for collective
bargaining, or were to be part only of a unit composed of
all employees of Home Furniture Co., Inc., at its three
plants, (b) whether Allied had a good and subsisting
contract under which it was the authorized
collective- bargaining representative for employees in the
unit at the Red Lion plant; (c) whether Home, once
having recognized Allied as such collective-bargaining
representative on behalf of the employees at Red Lion and
having adopted the contract which at that time was in
effect, could rescind unilaterally that contract and reject
Allied as the authorized and ' exclusive bargaining
representative of those employees; and (d) whether the
acquisition by Home of the Red Lion plant and the
operation there to be and ultimately actually conducted
was an accretion to the operations theretofore conducted
by it at its two previously owned plants in the city of
York, Pennsylvania, by reason of which it could be
required to cover those employees into one unit consisting
of all the employees in the three furniture plants in York
County, Pennsylvania, and thereby cause them to be
subject to the terms of whatever col)ective-bargaining
agreement might have been or was to be in effect with
Upholsterers as the exclusive bargaining representative of
the employees in the two previously owned plants in the
city of York, Pennsylvania. These were issues which could
have been and should have been decided by the National
Labor Relations Board under its regularly established
procedures for the resolution of such issues. Both Home
Furniture Co., Inc., and Upholsterers, by entering into the
agreement whereby Upholsterers became the exclusive
collective-bargaining representative on behalf of Home's
employees at the Red Lion plant, disregarded the
procedures so available to them for the determination of
the issues hereinabove set forth, did interfere with,
restrain, and coerce and are interfering with, restraining,
and coercing employees of the Red Lion plant in the
exercise of rights guaranteed in Section 7 of the Act and
are engaging in unfair labor practices within the meaning
of Section 8(a)(1) and 8(b)(1), respectively, of the Act.
12. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act. Occurring and having occurred in connection
with the activities in commerce of Home Furniture Co.,
Inc., they 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.
THE REMEDY
Since I have found that Respondent Home Furniture
Co, Inc., and Respondent Local 467, Upholsterers'
International Union of North America, AFL-CIO, have
engaged in unfair labor practices within the meaning of
the Act, I shall recommend that they cease and desist
therefrom and take certain affirmative action in order to
effectuate the purposes of the Act. This will require
special provisions in addition to those conventional in
HOME FURNITURE CO., INC.
routine unfair labor practice proceedings. Among the
routine provisions Home should not be subjected to the
broad form restraining order but Upholsterers should.
Home, though legally culpable, was not willingly so.
Upholsterers was.
The contract made by Home with Upholsterers, to the
extent that it affects employees at the Red Lion plant,
should not be honored. This will require the
reimbursement to Red Lion employees of any dues
collected from them for the purpose of remittance by
Home to Upholsterers. Inasmuch as it appears from the
facts of this case that Home was compelled by
Upholsterers' conduct to enter into the contract, the order
should provide that Home merely cease the checkoff for
Upholsterers of dues from Red Lion employees, refrain
from transmitting any dues already collected but not yet
remitted, and refund such dues to the employees from
whom they were collected. However, Upholsterers, which
has received dues from Red Lion employees by reason of
its conduct in compelling Home to enter into the said
contract with it and to check off dues from Red Lion
employees, should be required to refund all such dues
previously received from or on behalf of Red Lion
employees to those Red Lion employees from whom such
dues were received or collected.
Home should be required to reinstate the recognition
heretofore accorded by it to Local 3, Allied Woodworkers
799
Union of America, Inc., and honor (excepting the
checkoff clause which I hold is not legal) the contract
which it adopted at the time that it acquired the Red Lion
plant. Any benefits or privileges acquired by Red Lion
employees by reason of Home's contract with
Upholsterers excepting such benefits or privileges as are
inconsistent with the Allied contract or are not available
to persons not members of Upholsterers, shall not be
reduced or withdrawn from employees at the Red Lion
plant. (Exceptions such as I have in mind are the UIU
Health and Welfare Fund and National Pension
Program.) On the other hand, any Red Lion employee
who, by reason of the events following Home's rescission
of the Allied contract, has suffered a reduction of wages
shall be restored to the wage rate to which he would have
been entitled under the Allied contract and should be
made whole for any loss suffered by him.
Both the recognition by Respondent Home of Allied
and its withholding of recognition from Upholsterers as
the representative of employees of the Red Lion plant
shall continue unless and until the National Labor
Relations Board determines that Allied is not to be the
exclusive collective-bargaining representative on behalf of
the employees of the Red Lion plant or certifies that
Upholsterers is such a collective-bargaining representative
[Recommended Order omitted from publication ]