International Furniture Co.

National Labor Relations Board - Board Decisions

Mar 17, 1952

98 N.L.R.B. 674 (N.L.R.B. 1952)

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reason of the discrimination against him during the period from his dis-
charge to 5 days after the date Respondent notifies the Company as specified in
the preceding sentence . Said loss of pay shall otherwise be determined in the
manner prescribed by the Board in F. W. Woolworth Company, 19 NLRB 289.
The record indicates that Respondent took the illegal action because it
in good faith believed it had a valid union-security agreement . In view of
that fact, and because Respondent 's, past conduct does not suggest the danger
that other unfair labor practices will be committed in the future, I am of
the opinion that the issuance of a broad cease and desist order against Respond-
Ent is unwarranted . Therefore, in accordance with Board practice in cases
of this type,9 it will be recommended that Respondent cease and desist from
the unfair labor practices found , and any like or related conduct.,
Upon the basis of the foregoing finding of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent United Electrical , Radio and Machine Workers of America,
Local 622 ( UE), is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By entering into, maintaining , and extending the illegal union •security
provisions of its bargaining contract with the Company , Respondent violated
Section 8 ( b) (2) and 8 (b) (1) (A) of the Act.
3. By causing the Company to discriminate in regard to the hire and tenure
of employment of George A. Gozdick in violation of Section 8 (a) (3) of the
Act, Respondent has engaged , and is engaging , in unfair labor practices within
the meaning of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.],
9 Carlyle Rubber Co , Inc., 92 NLRB 385, and cases cited in footnote 14 therein.
INTERNATIONAL FURNITURE COMPANY and UPHOLSTERERS' INTERNA-
TIONAL UNION OF NORTH AMERICA, AFL. Case No. 10-CA-1p216.
March, l7,1959
Decision and Order
On September 6, 1951, Trial Examiner Charles W. Whittemore
issued his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as, set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a support-_'
ing brief.'
The Respondent 's request for oral argument is denied because the record and brief, in
our opinion , adequately present the issues and the positions - of the parties.
98 NLRB No. 100.
INTERNATIONAL FURNITURE COMPANY 675
Pursuant to the provisions of Section 3 (b) of the Act, the National
'Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and
Members Murdock and Styles].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed 2 The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the additions and
modifications below.
1. We find, in agreement with the Trial Examiner , that the Re-
spondent, by surveillance, interrogation, and threats of reprisal, inde-
pendently violated Section 8 (a) (1) of the Act. In reaching this
conclusion, however, we rely solely on the following :
_ (a) Witnesses Malone and Almond testified that on Friday eve-
ning, January 12, 1951, while they, in the company of others, were
attending a union meeting on a parking lot adjacent to Sidwell 's store,
about 8 miles from the plant, Superintendent Oberholtzer drove by
the scene of the meeting. They testified further that he stopped his
automobile at a nearby intersection, turned around and came back-
this time at a reduced rate of speed-and that shortly thereafter he
stopped again, turned back, and slowly passed the store a third time.
Oberholtzer admitted that he had driven by Sidwell's store that night
and that he had passed it again on his way back, but denied that he
had slowed down or that he drove by there a third time. He ex-
plained that he was driving his automobile on that highway for the
purpose of purchasing beer in an adjoining county, and not to spy on
the union meeting. The Trial Examiner, in finding that the Respond-
ent had engaged in unlawful surveillance, relied, among other things,
on an alleged admission by Oberholtzer at the hearing that as he drove
past Sidwell's store he had seen Union Organizer Malone. Although
the record does not show that Oberholtzer made such an admission,
the testimony of Malone and Almond, which we, like the Trial Ex-
aminer, credit, amply supports the finding, which we make, that the
Respondent, by the conduct in question, had engaged in surveillance
of the union meeting in violation of Section 8 (a) (1).
(b) William R. Nelms, one of the employees, testified that about
the end of January 1951, approximately 3 weeks before the Board
2 Contrary to the Respondent 's contention , we find nothing in the record or in the
Intermediate Report reflecting bias or prejudice by the Trial Examiner . Although we
do not agree with some of the Trial Examiner 's subsidiary findings of fact, as will appear
more fully below, the record does not, in our opinion, sustain any allegations of prejudicial
conduct which might in any way affect the validity of the Trial Examiner 's ultimate
conclusions.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election of February 15, 1951, his immediate foreman, Anderson,
questioned him as to whether he had attended a meeting of the Union.
We find such interrogation concerning aspects of union activity viola-
tive of Section 8 (a) (1).3
(c) William R. Nelms also'testified that during the same conversa-
tion, Anderson stated to him that if the Union went in "we would all
soon probably be out of a job." 4 James G. Nelms, another employee,
testified that about a week or two before the February 15, election,
his immediate supervisor, Whitmire, said to him that "if the Union
was voted in we would all be out of a job." We find that both state-
ments constitute threats of economic reprisal in violation of Section
8 (a) (1).5
2. We find, in agreement with the Trial Examiner, that the Re-
spondent discriminated with regard to the hire and tenure of employ-
ment of Harold Almond in violation of Section 8 (a) (3) and (1) of
the Act. In reaching this conclusion we rely on the following circum-
stances disclosed by the record.
In the latter part of October 1950, the Union began an organiza-
tional campaign among the Respondent's employees. Shortly there-
after, early in November 1950, Almond joined the Union and began
assisting the union organizer, Malone, by distributing leaflets and
engaging in house-to-house contact work.
On Monday, November 20, 1950, at about noon, Almond, after first
speaking to his foreman, Anderson, asked Superintendent Oberholtzer
for permission to take the rest of the day off to attend to a personal
matter. Oberholtzer thereupon informed Almond that he had in-
tended to lay him off at the end of the week but in view of his request.
he "might as well not come back." Almond then saw Malone and
related to him what had occurred. Shortly after 2 p. m. of the same
day, Almond returned to the plant accompanied by Malone. Malone
advised Oberholtzer that he (Malone) was an organizer for the
Union, that he had just had a conversation with Almond, and that
his visit was prompted by such conversation. Malone also informed
Oberholtzer that Almond was a member of the Union. Oberholtzer
said that he had not known this., And Malone said, "Well, you know
9 See Standard Cossa Thatches Company , 85 NLRB 1358
4 That Anderson may have made the statement "in a joking way" does not deprive it of
its coercive quality. See Fairmont Creamery Company, 73 NLRB 1380
5 The Trial Examiner also found t hat the Respondent ' s superintendent , Oberholtzer, had
unlawfully promised benefits to the employees in return for their rejection of the Union.
In considering the evidence bearing upon this issue, however. the Trial Examiner failed
to give proper effect to a stipulation concerning the testimony of certain employees who
were alleged to have been present when the statement was made In these circumstances,
we do not rely on the alleged promise of benefit in concluding that the Respondent violated.
Section 8 ( a) (1) of the Act
The Trial Examiner did not resolve the question whether the Respondent had adopted,
by failing to repudiate , an editorial in a local newspaper on January 19. 1951. We like-
wise do not pass on that issue , noting that our findings herein , and the order herein issued,
do not turn , in any respect, on the editorial in question.
INTERNATIONAL FURNITURE COMPANY 677
it now." Oberholtzer then explained to Malone that Almond had
been laid off for lack of work, and that two other employees would
also be laid off by the end of the week. Oberholtzer added that work
should pick up about the first of the year and that Almond would be
recalled around that time. Oberholtzer did not, during this con-
versation, or during the earlier conversation with Almond, give any
other reason for Almond's layoff.
In December 1950, Malone saw Oberholtzer again at the plant office.
Malone called Oberholtzer's attention to the fact that a laid-off em-
ployee had been recalled and a new employee hired, and he asked
Oberholtzer why Almond had not been recalled. Oberholtzer said
that there had been "a number of rejects that Almond had done,"
but stated that as soon as there was work that Almond could do, he
would recall him. At no time during this discuision did Oberholtzer
tell Malone that Almond had been discharged.
On February 15, 1951, a consent election was conducted by the
Board at the plant. During a preelection conference, Malone met
with Oberholtzer, the Respondent's attorney, Cody, and a Board agent.
When Malone told Cody at this meeting that Almond was to be an
observer for the Union at the election, Cody said that this could not
be done because Almond "has been discharged." Malone then stated
to Cody and the Board agent that he had understood Almond had
been laid off for lack of work and was therefore eligible to serve as
observer for the Union. Malone also asked that the Respondent tell
Almond-who had been waiting in the plant lobby-what they had
told him (Malone). Malone thereupon brought Almond into,the Re-
spondent's office and requested Cody and Oberholtzer to repeat their
earlier statement. Neither Cody nor Oberholtzer said anything.
It appears that following the Board election on February 15, 1951,
the Union filed with the Regional Director a protest based on the Re-
spondent's conduct in connection with,the election, and that on March
12,1951, Cody, as counsel for the Respondent, replied at length thereto.
In that reply, which was received in evidence in the instant proceeding,
and which Oberholtzer at the hearing admitted working on together
with Cody, Cody stated, among other things, that Almond had been
discharged, not temporarily laid off, on November 20, 1950; that the
reason for his discharge was "absenteeism"; and that although "he
was known to have been drinking . . . this had no connection with
his discharge."
On February 23, 1951, the Union filed the charge in this pro-
ceeding alleging that the Respondent had discriminatorily discharged
Almond. -
Oberholtzer testified that on March 21, 1951, he told a Board rep-
resentative who was investigating the charges that Almond was dis-
998666-vol . 98-53--44
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged for absenteeism. However, the Respondent's answer to the
complaint in the instant case alleged that Almond had been discharged
on November 20, 1950, because Almond had on one occasion come "to
work in a drunken condition," and at the hearing Oberholtzer testi-
fied that absenteeism played no part in Almond's discharge, but that
Almond was discharged "for coming in drunk." In addition, Ober-
holtzer-also at the hearing-admitted stating to the Board represent-
ative investigating the charges that he decided to discharge Almond
after he had talked to Malone the second time because Malone had
said to him that he was going to tell him whom he could hire and Pure s
From the foregoing recital of the facts, including the Respondent's
frequent shifting of position regarding its reasons for terminating
Almond's employment, none of which reasons the Respondent stated
at the time it advised Almond of his layoff on November 20, 1950, and
the Respondent's antiunion bias, demonstrated in the unlawful con-
duct which we have already found, we are persuaded that the reasons
thus advanced are not those which actuated Almond's discharge, and
that the real reasons were discriminatory.
The record established without contradiction that Almond was the
most active union adherent among the Respondent's employees. In-
deed, he not only was openly sympathetic to the advent of the Union
but actually served as Union Organizer Malone's chief assistant in
the organizational campaign. It is difficult to believe that in a
plant with only 50 employees and in a community as small as this, the
Respondent was not aware, as it asserts, of Almond's leadership in the
union drive. In any event, even if this were so, on the very date
of his layoff and within a few hours after he was advised of that fact,
Superintendent Oberholtzer learned from his conversation with
Malone that Almond was a union member and that his interests, spe-
cifically concerning his employment status, were being represented by
the Union. Thus it becomes clear that even if the Respondent laid
him off initially with the intention of recalling him at a later date,
it thereafter decided to discharge him, and that such decision was
prompted by his union activities and, as Oberholtzer admitted to a
Board agent investigating the charges-a statement which he con-
firmed at the hearing-because "Malone was going to tell me who I
could hire and fire."
Under all of the foregoing circumstances, and for the reasons ex-
pressed above, we find, as did the Trial Examiner, that Almond was
discriminatorily discharged in violation of Section 8 (a) (3) and (1)
of the Act .7
6 Malone , in his testimony , stated that the second time he discussed Almond with
Oberholtzer was in December 1950.
T The Trial Examiner found that Almond had never been drunk on the job , as alleged
by the Respondent at the hearing. In making this finding he relied solely on Almond's
denial and discredited Foreman Anderson 's testimony . However, the Trial Examiner
INTERNATIONAL FURNITURE COMPANY 679
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, International Furniture
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Upholsters' International Union
of North America, AFL, or in any other labor organization of its
employees by discriminatorily discharging any of them, or by dis-
criminating in any other manner in regard to their hire, or tenure
of employment, or any term or condition of employment.
(b) Interrogating its employees concerning their union activities
or views, threatening reprisal if the Union is selected by the employees,
engaging directly or indirectly in surveillance of union meetings, and
in any manner interfering with, restraining, or coercing its employees
in the right of self-organization, to form labor organizations, to join
or assist the above-named labor organization or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act, as guaranteed in Section
7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Harold Almond immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges, and make him whole in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Upon request, snake 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 rec-
ords necessary to analyze the amount of back pay due..
failed to consider the testimony of witness Henson in this regard, and refused to receive
evidence offered by the Respondent that Almond had been discharged for drinking by a
prior employer . In this posture of the record , we are unable to conclude that Almond had
never been drunk on the job. This, however, does not affect our conclusion that Almond
was discriminatorily discharged . As we have already stated, our finding is based upon
the evidence in the record that the Respondent' s decision to discharge Almond was
actuated by antiunion motivation . Thus , even if it had been established that Almond
had been drinking, as alleged by the Respondent , we would still be satisfied for the reasons
stated in the text that this was not the real reason for his discharge.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant in Madison, Georgia, copies of the notice at-
tached to the Intermediate Report marked "Appendix A." a Copies
of such notice to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply therewith.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Upholsterers International Union of North Amer-
ica, AFL, herein called the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Tenth Region (Atlanta,
Georgia), issued his complaint dated July 3, 1951, against International Furni-
ture Company, Madison, Georgia, herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. A copy of the charge was duly served upon the Respondent.
Copies of the complaint and notice of hearing thereon were duly served upon the
Respondent and the Union.
With respect to the alleged unfair labor practices, the complaint alleges in
substance that the Respondent (1) in January 1951, spied upon a union meet-
ing, threatened reprisals against employees if they joined the Union, interrogated
employees as to their union membership, and adopted as its own an editorial in
it local newspaper threatened employees with economic reprisals; (2) on Novem-
ber 20, 1950, laid off, and on December 1, 1950, discharged employee Harold
Almond because of his Union activity; and (3) by such conduct interfered with,
restrained,, and coerced its employees in the exercise of rights. guaranteed by
Section 7 of the Act.
On July 11, 1951, the Respondent filed its answer, in which it denied having
engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held on July 17 and 18, at Madison, Georgia,
before the undersigned duly designated Trial Examiner. The General Counsel
8 This notice, however, shall be, and it hereby is, amended by striking from line 3 thereof
the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof
the words "A Decisioh and Order," and by striking from the second paragraph thereof,
the words, "promise benefits to our employees if they discontinue their support of a
union." In the event that this Order is enforced by a decree of the United States Court
of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court,of Appeals, Enforcing an
Order."
INTERNATIONAL FURNITURE COMPANY 681
.and the Respondent were represented by counsel and the Union by an official.
All participated in the hearing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence pertinent to
the issues. During the hearing a motion by the Respondent was granted to dis-
miss an allegation in the complaint that the Respondent had granted piecework
rates to its employees to discourage membership in the Union.
Counsel waived the opportunity to argue orally ; counsel for General Counsel
and for the Respondent have filed briefs with the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses,
The Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
International Furniture Company is an Illinois corporation, with its principal
office and place of business in the State of Illinois. It is engaged in the manu-
facture, sale, and distribution of various types of furniture. It owns and
operates plantslin Texas, Indiana, Pennsylvania, and Georgia, including a plant
at Madison, Georgia, the last mentioned being the plant herein involved. The
Madison plant is engaged in the manufacture, sale, and distribution of up=
holstered home furniture. During the year immediately preceding the hearing
the Respondent purchased materials for its Madison plant valued at more than
$100,000, about 10 percent of which, in value, was purchased outside the State
of Georgia and shipped in interstate commerce to that plant. During the same
period the Respondent at its Madison plant manufactured and sold finished
products valued at more than $100,000, more than 50 percent of which was sold
and shipped to customers outside the State of Georgia
The Trial Examiner finds that the Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upholsterers ' International Union of North America, AFL, is a labor organiza-
tion admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Events and issues
Organizer John H. Malone initated efforts to gain membership for the Union
among the Respondent's 60 or 70 employees during the latter part of October
or early November 1950. Employee Harold Almond shortly became his chief
assistant in the campaign of distributing leaflets at and near the plant, and of
soliciting employees near the plant and at their homes.
The major issue raised by the complaint is the termination of Almond's em-
ployment on November 20, 1950. Other events at issue, stemming from the
organizing campaign, include the presence of Plant Superintendent C. H. Ober-
holtzer near a union meeting, alleged coercive remarks or promises made by
Oberholtzer and Foremen Whitmire and Anderson, and the appearance of an anti-
union editorial in a local newspaper, claimed by General Counsel to have been
adopted by the Respondent.
B. The discharge
At about noon November 20, 1950, Harold Almond asked his foreman, C. H. A.
Anderson, if he could "get off" that afternoon. Anderson said that it was all
682 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD
right with him, but to see Oberholtzer. Oberholtzer told the employee that
he might as well go and not come back, since he was going to have to lay him
,off anyway at the end of the week. Almond reported this to Malone, who
promptly went to see Oberholtzer, introduced himself, and asked about Almond's
layoff. Oberholtzer said he had not known Almond had been active in the
Union. Malone replied, "Well, you know it now." Oberholtzer then told
Malone that Almond's layoff was only temporary, due to lack of work, and that
the employee would be called back if work picked up before the first of the
next year. Sometime in mid-December, having heard that one employee laid
off had been recalled and a new employee hired, Malone again visited Ober-
holtzer. Oberholtzer assured Malone that as soon as there was work available
which Almond could perform he would keep his word and recall him.
Shortly before the holding of a Board election at the plant on February 15.
a meeting of Union and management officials together with a Board representa-
tive was held. When Malone announced that Almond would be the Union's
watcher at the impending election, counsel for the Respondent declared that
Almond could not be a watcher, because he had been discharged. Malone pro-
tested that so far as he knew, from information given him by Oberholtzer,
Almond was still only in a temporary layoff status. Company counsel insisted
that he had been discharged. Malone then brought Almond, who had been out-
side, into the meeting and asked the company representatives to inform the
employee directly of his discharge. It is undisputed that the company repre-
sentatives sat mute.
On February 23, 1951, the Union filed its charge involving Almond. At about
the same time, apparently, it filed a protest against company conduct at the
election held on February 15. As a witness, Oberholtzer admitted that through
his counsel he informed the Board, in a statement signed by his counsel on
March 12, that Almond had not been "temporarily laid off" but had been dis-
charged on November 20, 1950. The statement continues : "The reason for his
discharge was absenteeism," and adds, "The company has never advised him
that he was temporarily laid off and has never had any idea of reemploying
him." The same statement declares that "Prior to his discharge he appeared
for work on one occasion when apparently he had been drinking heavily . . .
on other occasions he was known to have been drinking, but this had no connec-
tion with his discharge. . . . He was discharged for absenteeism "
A few days thereafter, on March 21, according to Oberholtzer's own testi-
mony, he told a Board agent investigating the charges of unfair labor practices
that he had told both Malone and Almond that the latter would be recalled
about January 1, and that after his second interview with Malone (according
to Malone, in mid-December) he had decided that Almond was discharged be-
cause "Malone said to me that he was going to tell me who I could hire and fire."
The Respondent's answer, sworn to by Oberholtzer, claims that Almond was
discharged on November 20 because on one occasion he had come "to work in
a drunken condition."
As a witness, Oberholtzer flatly stated that "absenteeism" had nothing to do
with the discharge.
The mere narration of the conflicting and contradictory statements made by
Oberholtzer to the organizer, Almond, the Board, and as a witness, reveals the
untrustworthiness of his entire testimony. Credible evidence and the proba-
bilities inherent in the situation convince the Trial Examiner, and it is con-
eluded and found, that Oberholtzer decided to, and effectively did, discharge
Almond during the afternoon of November 20, 1950, upon learning that the
employee was actively assisting Malone in organizing the Union.
INTERNATIONAL FURNITURE COMPANY 683
As to reinstatement and adding further confusion to the welter of his pre-
viously made contradictory statements, oral and written, informal and under
oath, on the second day of the hearing Oberholtzer said that on November 20
he intended to "rehire" Almond if he "had straightened out." Even if this claim
be accepted at face value, the Respondent failed to offer any evidence that the
employee had not, after November 20, "straightened out."
Finally, the superintendent candidly testified' "I would have never listed him
as drinking, if the Labor Relations Board hadn't filed charge against me."
No credible evidence' establishes that Almond had ever been drunk on the
job, or that he had been unduly absent from work. The Trial Examiner spe-
cifically finds that Almond was on no occasion drunk on the job, and that he was
neither discharged nor refused reinstatement for such reason.
C. Surveillance and coercion
On January 12 the Union held an evening meeting at a parking lot some 9
miles from the plant. It is undisputed that Oberholtzer, in his car, drove three
times by this spot, once at a normal speed and twice slowly. The superintendent
as a witness admitted that he saw the organizer there on this occasion. Also as
a witness Oberholtzer claimed that he drove by the parking lot on his way to
another county to buy beer. Even had beer been his original errand, credible
evidence establishes that after once passing the place, he twice thereafter drove
more slowly by it.
In the latter part of January or early February the superintendent told em-
ployee Archie Peck, while other employees were nearby, that if the Union was
"voted out," "the Chicago office" would do something for them 2
In view of Oberlioltzer's discriminatory conduct toward Almond before the
union meeting, and his promise of benefit made thereafter, the Trial Examiner
is convinced and finds that the superintendent twice drove by the union meeting
place on January 12 for the purpose of spying upon it and discouraging union
activity and membership.
It is undisputed and the Trial Examiner finds that early in February, Fore-
man Billy Whitmire told employee James G. Nelms that if the Union was voted
in they "would all be out of a job." Counsel for the Respondent claims that this
was but an expression of opinion, and therefore privileged under provisions of
the Act. In view of the discriminatory treatment of the chief employee or-
ganizer, and of the superintendent's surveillance and promises of benefit, the
Trial Examiner finds no merit in counsel's contention. It is found that Whit-
mire's statement was coercive and designed to discourage union adherence.
1 Having observed him testify, the Trial Examiner does not accept, as true, the testimony
of Foreman Anderson that "nearly every Monday morning" Almond "come in drinking."
Had the employee regularly "come in drinking" on Mondays during his 3 months' employ-
inent, it is reasonable to believe that the foreman would have so informed the superin-
tendent long before "a week before we let him go," which was, also quoting Anderson, "the
only time I discussed it with Mr. 0."
2 The testimony of Peck on this point was contradicted by Oberholtzer. As heretofore
found the Trial Examiner can place no reliance upon the superintendent's testimony.
Another employee, said by Peck to have been nearby, testified : "I didn't hear him say that"
and General Counsel stipulated that two other employees would likewise have testified.
The Trial Examiner does not consider that agreement as to what a witness would testify
to ; thereby establishes other than the fact that they would so testify and does not con-
stitute appreciable weight as refutation of testimony given under oath , on the stand, and
subject to cross-examination. And that one employee or more did not hear Oberholtzer's
statement is not, in the Trial Examiner's opinion, conclusive that the statement was not
made.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Credible testimony of employee William R. Nelms establishes, and the Trial
Examiner finds, that before the election Foreman Anderson asked him if he
had attended a union meeting and told him that "if the Union went in we would
all soon probably be out of job." That the employee thereafter said Anderson
made the statement "in a joking way" does not, as counsel for the Respondent
contends, deprive it of its coercive quality, particularly since the remark does
not stand alone, but was of a ddsign and pattern of discrimination and coercion
fabricated by the superintendent himself.
D. The newspaper article
An editorial in a Madison newspaper, on January 19, 1951, stated in part :
We also know that one and possible both of our factories pay extra
bonuses now and they certainly would not if the workers joined some union.
We hope that the management of our two factories will close their plants
down if our local people are foolish enough to join up with these trouble-
makers and disturb the peace of our community.
Oberholtzer admitted, as a witness, - that he took no steps to repudiate the
article, although one employee gave him a copy of the newspaper. General Coun-
sel contends that by failing to repudiate it, the Respondent thereby adopted it
as its own . In view of direct statements of a like nature, which have been
found to be coercive, made to employees by two foremen, the Trial Examiner
finds it unnecessary here to resolve the question'raised by General Counsel as to
adoption of the editorial.
E. Conclusions in summary
The Trial Examiner concludes and finds that by the discriminatory discharge
of Almond on November 20, by Oberholtzer's surveillance of a union meeting
and his promises of benefit if the Union were defeated, and by the coercive and
interrogatory remarks of Foremen Whitmire and Anderson, the Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action which will effectuate the policies of the Act.
Having found that the Respondent has-discriminated in regard to the hire
and tenure of employment of Harold Almond and has refused to reinstate him,
it will be recommended that the Respondent offer him immediate and full
reinstatement to his former or substantially equivalent position,' and make
him whole for any loss of pay he may have suffered as a result of the discrimi-
e The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
INTERNATIONAL FURNITURE COMPANY 685
nation against him by payment to him of a sum of money equal to that which
he would have earned as wages from the date of the discrimination to the date
of offer of reinstatement. Loss of pay will be computed on the basis of each
separate calendar quarter or portion thereof during the period from the first
day of January, April, July, and October. Loss of pay shall be determined by
deducting from a sum equal to that which he normally would have earned for
each quarter or portion thereof, his net earnings,` if any, in other employment
during that period. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other quarter' In accordance with the
Woolworth decision, it will be recommended that the Respondent, upon reason-
able request, make available to the Board and its agents all records pertinent to
an analysis of the amount due as back pay.
The unfair labor practices found reveal on the part of the Respondent such
a fundamental antipathy to the objectives of the Act as to justify an inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless the Respondent is
required to take some affirmative action to dispel the threat. It will be rec-
ommended, therefore, that the Respondent cease and desist from in any manner
interfering with, restraining, or coercing its employees in the exercise of rights
guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. Upholsterers International Union of North America, AFL, is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Harold
Almond, thereby discouraging membership in a labor organization, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
'4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in UPHOLSTERERS INTERNATIONAL
UNION, AFL , or in any other labor organization by discriminatorily dis-
* Crossett Lumber Company , 8 NLRB 440.
5 F. W. Woolworth Company, 90 NLRB 289.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging employees or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their union activities
or views, threaten reprisal if a union is selected by our employees, promise
benefits to our employees if they discontinue their support of a union, engage,
directly or indirectly, in the surveillance of union meetings, or in any
manner interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organizations, to join or
assist the above-named union, or any labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collecive bargaining or other mutual
aid or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
WE WILL offer Harold Almond immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his senior-
ity and other rights and privileges, and make him whole for any loss of
pay suffered as a result of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named union or any other labor organization
except as that right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act. We will not discriminate in regard to the hire or tenure
of employment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor organization.
INTERNATIONAL FURNITURE COMPANY
Emploper.
By ----------------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
BOSTON AND LOCEPORT BLOCK COMPANY and LowE 264 OF DISTRICT 38
OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS , A. F. L. Case
Yo. 1-CA-894. March 17, 1952
Decision and Order
On September 28, 1951, Trial Examiner George Bokat issued his
Intermediate Report attached hereto, in the above-entitled proceed-
ing, finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommending that the com-
plaint be dismissed in its entirety. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
98 NLRB No. 114.