Jasper Chair Co.

National Labor Relations Board - Board Decisions

Dec 31, 1942

46 N.L.R.B. 528 (N.L.R.B. 1942)

In the Matter of JASPER CHAIR COMPANY, A CORPORATION, and UNITED
FURNITURE WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O.
Case No. C-2352.-Decided December 31, 194.9
Jurisdiction : furniture manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercrori: interrogating employees regarding union
affiliation; making derogatory remarks concerning union; intimidating and
attempting to intimidate employees and other persons participating in union
activities; interfering with union organization and activities and keeping under
surveillance union meetings and activities.
Disc) urination: discharge of an employee, for union activity; charges as to
discrimination against union members in the distribution of overtime work,
dismissed.
Remedial Orders : cease and desist unfair-labor practices; reinstatement and
back pay awarded.
DECISION
AND
ORDER
On September 28, 1942, the Trial Examiner issued his Interme-
diate Report_ in the above-entitled proceeding, finding that the re-
spondent 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 out in the copy of the Inter-
mediate' Report -attached hereto. Thereafter the respondent filed
exceptions to the Intermediate Report and a brief in support of the
exceptions. The Board has considered the rulings of the Trial
Examiner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board'has con-
sidered the Intermediate Report, the exceptions and the brief, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.'
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, 'Jasper Chair Company,
Jasper, Indiana, its officers, agents, successors, and assigns, shall :
46 N. L. R. B., No. 65.
528
• JASPER CHAIR COMPANY 529
1. Cease and desist from :
(a) Discouraging membership in the United Furniture Workers
of America, Local No. 331, affiliated with the Congress of Industrial
Organizations, or any other labor organization of its employees, by,
discharging any of its employees or in any other manner discrim-
inating, in regard to the hire or tenure of employment, or any term
or condition of employment of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the pu1•poses of collective bargaining and
other mutual aid or protection, as 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) Offer to Leo Lannan immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
`seniority and other rights and privileges;
(b) Make whole Leo Lannan for any loss of pay he may have
suffered by reason of the respondent's discrimination against, him,
by payment to him of a sum of money equal to that which he nor-
mally would have earned as wages from February 17, 1942, to the
date of the respondent`s offer of reinstatement, less his net earnings,
if any, during said period ;
(c) Post immediately in conspicuous places throughout its Jasper,
Indiana, plant and maintain for a period of at least sixty (60)
'consecutive days from the date of posting, notices to its employees
stating (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a) and (b) of this Order; and (3)
that the respondent's employees are free to become or remain mem-
bers of United Furniture Workers of America, Local-No. 331, affil-
iated with the Congress' of Industrial Organizations, and that the
respondent will not discriminate against any employee because of
membership in or activity on behalf of that organization;
(d) Notify the Regional Director for the Eleventh Region iii writ-
ing, within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith. .
AND IT IS FURTHER ORDERED that the complaint be dismissed insofar
as, it alleges that the respondent has discriminated against union
members in the distribution of over'tinie work.
J
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. GERAI;D D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. Allen Sinsheimer, Jr., for'the Board.
Mr. Isudor Kahn, of Evansville, Ind, and Mr. Arthur C. Nordhoff, ,of Jasper,
Ind., for the respondent. ,
STATEMENT OF THE CASE
Upon a charge duly filed on July 24, 1942, by United Furniture Workers of
America, affiliated with the C ,I. 0., herein called the Union, the National Labor,
Relations Board, herein called the 'Board, by the Regional Director for the
Eleventh Region (Indianapolis, Indiana),' issued its complaint, dated August 8,
1942, against the Jasper Chair Company, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, together with notice of hearing thereon, were
duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint as amended alleged •'
(1) that from about August 1, 1941, the respondent engaged in a course of action
for the purpose of interfering with the self-organization of its employees which
course of action included (a) interrogating employees regarding union affilia-
tions, (b) making 'derogatory remarks concerning the Union, (c) intimidating
or attempting to intimidate employees and other persons participating in union
activities, (d) discriminating against union members in the distribution of over
time work, (e) keeping under surveillance union meetings and activities, and
(f) interfering with union organization and activities; (2) that on or about
February 17, 1942, the respondent terminated the employment of Leo Lannan
and thereafter refused to reinstate him because of his membership in and activi-
ties on behalf of the Union; and (3) that by such acts and conduct the respond-
ent interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. In its answer filed on August 24, the
respondent denied that it had engaged in any unfair labor practices and further
denied that any complaint had been issued, because the "purported complaint"
bore the signature of the Regional Director without evidence that the Board had
duly caused the "purported complaint" to be so signed.
Pursuant to notice, ^a hearing was held at Jasper, Indiana, from August 24 to
August 27, 1942, before the undersigned, Earl S Bellman, the Trial Examiner
duly designated by the Acting Chief Trial Examiner. The Board and the re-
spondent were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses and to introduce
evidence bearing upon the issues was afforded all parties. At the close of - the
Board's case the, respondent moved severally to dismiss the, allegations of the
complaint. - The motions were denied. At the close of the hearing, the re-
spondent renewed its motions to dismiss, and ruling was reserved thereon. The
respondent's motions, except as otherwise appears herein, are hereby denied.
' The complaint . was amended without objection at the opening of the hearing on August
24, 1942, at which time the respondent filed its answer , the time for filing having been duly
extended
JASPER CHAIR COMPANY 531
The parties were afforded, but waived, opportunity to argue orally before the
'undersigned.` The Board and the respondent have filed briefs with the under-
signed.
Upon the entire record 'in the case, and from his observation of the witnesses,
,the undersigned makes the following:
FINDINGS OF FACT
,I. THE BUSINESS OF THE RESPONDENT
The respondent, Jasper Chair Company, is an,Indiana corporation organized
in February 1922. At itsaplant in Jasper, Indiana, it is.engaged in the manu-
facture of office and school chairs. The value of the raw materials purchased
annually is in excess of $100,000 of which approximately 75 percent come, from
outside the State of'Indiana.' The respondent's annual sales are in excess of
$150,000, approximately 75 percent being shipped throughout the United States
to points outside the State of Indiana.
II THE ORGANIZATIONS INVOLVID
The United Construction Workers Organizing Committee, Local No. 331, was
a labor organization affiliated with the Congress of Industrial Organizations It
admitted to membership employees in the furniture factories of Jasper, Indiana.
The United Furniture Workers of America, Local No. 331, is a labor orgauiza-
•tion affiliated with the Congress of Industrial Organizations. It admits to mem-
bership employees in the furniture factories in Jasper, Indiana. It is the suc-
cessor of the Construction Workers!
III. THE UNFAIR LABOR PRACTICES
A. Chronological statement of the facts
On•August 22, 1941, the Uiiion was organized in Jasper, a city of about 5000
population in which there are 13 furniture factories. Shortly thereafter, in
September,, the Utiion' held its first and' only mass meeting in the court house in
Jasper. A day or two after that meeting, William Schwinghamer, the re-
spondent's superintendent, went to employee Edward Braun near his machine
and said, "I heard you was at the meeting too, last night." Braun did not reply.
Schwinghamer then said, "If you fellows ain't satisfied with what you are getting
around here, you can go somewhere else and work." Braun said nothing!
During the latter part of September, Schwinghamer asked employee Elmer
Huebner if he had gone to, the union dance. Huebner replied that he had; that
9 The Construction Workers organized Local 331 in Jasper in August 1941. At that time
the officers and members of a'labor organization affiliated with the American Federation of
Labor, which had functioned for several years in Jasper, "switched over" to the C I. 0.
Thereafter, in May 1942, the Furniture Workers succeeded 'the Construction Woikers, and
issued a,charter to Local 331. The membership and officers of'Local 331 were not changed
by the successorship in May 1942. Hence the term, Union, is used herein to,designate both
the Construction Workers and the Furniture Workers. Y
3 The above finding is made upon the testimony of Braun, a credible witness At the time
of the hearing Braun was living on a farm some 20 miles fiom Jasper, having voluntarily
ceased his employment with the respondent in April 1942. Schwinghamer denied having ever
made any comment about the Union to Braun or having made the statements above set
forth On the whole, Schwinghamer was not a credible witness As appears more fully
below , his testimony on a number of matters was contradicted by that of scveial credible
witnesses called by the Board ; his testimony was in part at variance with that of other wit-
nesses called by the respondent; and in certain respects his testimony was inconsistent
i
532 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had had a good time ; and that Schwinghamer should have been along'
Schwinghamer replied that he was not that "damned crazy yet ." About five
minutes later , Schwinghamer returned and told Huebner that he had heard that
he was "an awfully strong union member" and asked his reasons for being such
a,strong union member. Huebner replied that he did not know whether he was
stronger than anybody else but that he aid think "a good union in the right
place was all right."'
Some time during the fall of 1941 , Schwinghamer asked an employee , Joseph
Herzog,.whether he' was going to "that meeting ."' Herzog said that he was and
Schwingliamer walked away shaking his head . The foregoing conversation took
place in the plant and while Schwinghamer did not use the word "Union,"
Herzog understood that Schwinghamer was referring to a meeting of the
Union which 'was to be held, and the undersigned so finds. About the same
time, also during the fall of 1941 , Bernard J . Winkler, the foreman of the
finishing room in which Herzog was working, had at least one conversation with
Herzog in which Winkler ' told Herzog that the C . I. 0 was linked up with
Communism'
On one Thursday night during November , 1941, Superintendent Schwinghamer
was seen standing upon the north steps of the court house in Jasper about
9 o'clock while the members of the Union were leaving a meeting of the Union.
The only exit from the union hall was at street level on the public square which
surrounds the court house. ' That exit-was in plain view diagonally about 100
feet across the street from where Schwinghamer was standing alone on the
court house steps . The public square was well lighted , and while Schwinghamer
was not seen making notes , he was in a position to see clearly all persons
leaving the Union's meeting hall . The place of the union meetings was well
known in the community and was known to Schwinghamer . The Union was
then holding meetings every Thursday night. One of those who observed
Schwinghamer standing on the court house steps as above described was Leo.
Lannan , whose subsequent discharge is discussed below.'
During November , some time after Superintendent Schwinghamer had been
observed upon the court house steps , he went to Lannan one morning at his
place of work and told him that he had heard that he was trying to get
4 Huebner and Schwinghamer had previously attended a number of dances together
6 The above finding is based upon testimony of Huebner which the undersigned believes.
Schwinghamer admitted asking Huebner upon one occasion if lie had been to a dance the
night before but denied knowing that it was a dance given by the Union He also denied
that he had ever said anything to any employee about the Union.
O The findings concerning Schwinghamer 's and Winkler 's conversations with Herzog are
based upon testimony of Herzog which the undersigned accepts . Schwinghamer denied
making any 'comuent to Herzog about the'Union. Winkler testified that lie did not remem-
her having any such conversation with Hen zog and that if lie had had such it convci s.ition lie
would have remembered it.
7 The count house is'the dominant building in downtown Jasper , being located at the place
where the two main streets forum it public square surrounding it Many of the principal
business buildings are upon this public square facing the court house
8The above findings are made upon testimony of Leo Klein , Andy Bettag, and Leo Lannan,
whose testimony was substantially in accord concerning the incident while Klein was a
nnefnber of the Union , lie had never worked for the respondent and was working for the
WPA at the time of the hearing. The undersigned believes his testimony . Bettag,was
president of the Union and was a fottliight and credible witness Although Lannan was
upon occasions confused and resentful during his testiniony , the undersigned is convinced
that Lannan was, on the whole, a truthful witness Schwinghamer testified that he had
never in his life stood upon the court house steps in the evening and had never seen,men
leaving the Union 's place of meeting. He also testified that lie had not been in downtown
Jasper on Thursday night for a year and it half and that he went downtown only on Wednes-
day nights for band concont^ , because his son played in the band.
IJASPER CHAIR COMPANY 533
members for the C. I 0 Lannan replied that he did not know that he was
trying so bard to get members but that he thought a good union "would be
a nice thing" and would help them all. Schwinghamer stated that the C. I. 0.
was no good and was "nothing but damn Communism." Lannan asked Schwing-,
hamer what Communism was. Schwinghamer did not answer Lannan's question,
but said that no union was needed and walked away. About 15 minutes later
Schwinghamer returned and told Lannan that he had been watching him.
Lannan replied that he knew it. Schwinghamer said to Lannan that he had
a notion to fire him; told him to get to work and "by God" work hard; and
stated that he could make it ""damn hard" on.Lannan.9
About 9 o'clock on Tuesday morning, February 17, 1043, Schwinghamer went
to Lannan at his place of work on the double sander and asked hum to go out
to the lumber yard to work. Such work was heavy work and involved lifting
large boards in unloading lumber from a box car Duman, who was 50 years
old and had worked for the respondent for almost 17 years, could operate a
number of different machines, all of which involved light work. -He had not
been asked to help unload lumber for over 5 years. It was cold that day and
Lannan was dressed in light clothing as his machine was near a heater. Also
he had had,a tooth extracted on the preceding Saturday. Lannan told Schwing-
hamer that he was not able to go out to work in the yard ; that he had had a
tooth pulled the preceding Saturday ; that a stitch had had to be taken which
had left his jaw pretty sore; that he had on thin clothes and was not dressed
to go outside ; and that he had not worked outside for over 5 years. Thereupon
Schwinghamer said, "You ain't going then, are you?" and Lannan replied, "I
:can't go." Schwinghamer then left and went to the office where he told Louis
Koerner, the respondent's president and general manager, •that Lannan had
refused to work in the yard and that he was going to discharge him. Koerner
agreed and told the bookkeeper to make out Lannan's check. Schwinghamer
then returned to the plant ; handed Lannau his check ; said, "Now, by God, you
are fired;" and added, "Go up and let Andy Bettag get you a job." Lannan
asked Schwinghamer to go to the office with him but Schwinghamer refused.
Lannan then went to the office and saw Koerner. He told him that it was cold
and disagreeable outside; that he had just had a tooth pulled; and that he was
not able to go out in the yard Lannan showed Koerner the place from which
the tooth had been pulled. Koerner looked at it and told Lannan that Schwing-
hamer was the boss. That, afternoon, Lannan went to the home of Andy Bettag,
9 The findings as to the conversation between Schwinghamer and Lannan are based upon
testimony of Lannan, and corroborating testimony of Edward Braun, the former employee
of the respondent who had voluntarily quit work Braun. who was working about 10 feet
from Lannan that morning, testified that he heard Schwinghiiner tell Lannan,•"Lee, I can
make it damn hard on you " Schwinghamer denied that the ab•ive conversation occurred as
testified by Lannan, but testified that upon one occasion lie had told Lannan that he had
heard be was trying to sign men for the Union during working hours and that he was to
stop it. Schwinghamer testified that he talked to Lannan because an employee had reported
that Lannan had been interfering with his work That employee, Robert Schroeder, testi-
fied that in the fall of 1041 he had complained to Seiminghainer that Lannan had bothered
'him about six times at his work by soliciting him for union membership Lannan, who was
active in soliciting union membership. testified that while he lied' asked Schroeder to join
the Union two or three tines outside the plant, he lied never approached Schroeder at has
work Lannan's denial of solicitation during woikiig hours is believable in view of the
testimony of an employee called by the respondent, Ralph Schneider, who worked with Lan-
nan on the double sanding machine for several months hetore Lamma's discharge Schneider
testified, that he had worked with Lann.in for about 6 months and that Lannan bad never
talked to him about the Union or tried to get him to join
534 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
the union president whom Schwinghamer had mentioned that morning, and told
Bettag of the circumstances surrounding his discharge.10
During May 1942, Local 331 of the Furniture Workers succeeded Local 331
of the Construction Workers, and Fred Fulford took up his work as Interna-
tional representative of the Union in Jasper. Thereafter, shortly before 1
o'clock one day during June, while representatives of the Union were adver-
tising a union meeting through a loud speaker on a car_outside of the plant,
Schwinghamer said in the presence of a number of employees, "Let them go
ahead. It won't do them a damn bit of good." 11 About this time, Superintend-
ent Schwinghamer was twice again' seen on the public square within approxi-
mately 100 feet of the meeting place of the Union on Thursday evenings at the
time men were leaving the Union meetings. On the first occasion, he was
seen standing on a street, corner sometime in June. On the second occasion,
sometime in July, Schwinghamer was standing on the north steps of the court
house where he had been seen the previous November.
About July 23, shortly before 7 o'clock in the morning when Fulford and
another organizer, Frank Douthitt, were distributing hand bills in'front of the
plant, Schwinghamer remarked in the presence of some 15 or 20 employees,
"I wonder where those union organizers are getting all that paper. I thought
there was a paper shortage.", Shortly thereafter Schwinghamer also said,
"I wonder who is paying those guys for being around here causing all this
trouble." n
ill The above findings as to the events of February 17 are based largely on testimony of
Lannan. His testimony was corroborated in ceitain respects by that of Bettag and Koerner
Bettag testified that, on the afternoon of February 17, Lannan came, to his home and told
him that Schwinghamer had asked him to work in the yard; that he had told Schwinghamer
that he was not able to do so ; and that thereafter Schwinghamer had handed him his check
with the remark. "You are fired You go up to Andy Bettag. Let him give you a Job "
Bettag also testifled,that it had been cold on February 17 and had snowed a little at noon,
Koerner testified that Lannan came to the office ; returned his check, indicating that he did
not want it;' and said that he had done the company lots of favors and that he had had a
tooth pulled and could not work outside. . Koerner further testified that Lannan had showed
him the place where the tooth had been pulled, that the gum had appeared to be normal, and
that lie had then told Lannan that he-was through The fact that unloading lumber was
heavy work, while machine work was light work, is clearly established by the record and was
obvious when the undersigned visited the plant in the company of all counsel Schwing
hamer testified that Lannan had been walking around all morning without much to do, that,
when he had asked Lannan to work in the yard, Lannan refused without offering any
explanation of his refusal ; that he had asked Lannan for no explanation although Lannan
had never refused to do as requested previously during his long period of employment; that
he had asked Lannan why he did not quit if be did not want to work; and that Lannan had
replied that he would not quit, that Schwinghamer could not fire him, and that some day
he was going to tell Schwinghamer what to do in the plant The only person who was in a
position to overhear any part of,either of the conversations on February 17 between Lannan
and Schwinghamer was Ralph Schneider, who was working on the double sander with Lui-
nan. Schneider testified, when called by the respondent, that he heard Schwinghamer ask
Lannan to go to the yard and that Lannan "shook his head and says no, he wouidn t go "
Schneider also testified that he heard nothing, further because be left his machine at that
time
11 The finding is based upon testimony of Huebner which the undersigned credits.
Schwinghamer denied making the statement.
"The above finding is made upon testimony of Fulford and Huebner which the under-
signed credits Schwinghamer testified that he heard the remark conceining the paper
shortage made by an employee, Louis Kuper. `Schroeder and Kuper both testified that
Kuper made the statement concerning the paper shortage Kuper was not a creditable
witness His testimony that be had not seen Fulford before the heating was contradicted
by the testimony of four credible witnesses, Fulfoid. Bettag, Anrbs, and Morton, all of whom
testified that about August 7, some three weeks before Kuper testified, he had been visited
at his home by Fulford It was Schroeder who testified-that he reported Lannan to Schwing-
hamer in the fall of 1941. - ' '
1
JASPER CHAIR COMPANY 535
On July 30, shortly before 5 o'clock in the afternoon, organizers Fulford and
Douthitt went to the plant to distribute union leaflets. While they were sitting
in their car across the street from the plant,•Schwinghamer calve to an entrance
and said, "I see you slackers are back again. If you come over here,'I will
knock your damned heads off." Some 15 minutes later Schwinghamer walked
along behind the approximately 12 automobiles parked on the side of the street
next to the plant."
As testified by Bettag and Schwinghamer , a conversation took place between
them on July 30 when Bettag gave Schwinghamer a union leaflet. The con-
versation concerned whether or not the Union could win an election in another
furniture factory in Jasper. Bettag contended that the Union could and
Schwinghamer that it could not. The discussion finally reached ' the point
where Schwinghamer , according to his own testimony , said that he was willing
to bet "any amount" that the Union could not win the election.
About 7:15 on the morning of July 31 , Schwinghamer went to employee
Albert Braun at his machine in the plant and said, "I heard you was out with
them Union guys last night." Schwinghamer then asked, "Did you get enough
beer?" Braun did not answer and Schwinghamer left. He returned about 10
minutes later and said , "Albert, all I am asking of you is not to start any
trouble in here." Braun said that he would not.'
B. Conclusions concern ing the unfair labor practices
1. Interference, restraint, and coercion
From the facts found above concerning the activities of the respondent's
superintendent , William Schwinghamer , and one of the respondent 's foremen,
Bernard Winkler , during the period from the fall of 1941 to the summer of
1942, it is clear that the respondent has engaged in a course of action for the
purpose of interfering with the self-organization of its employees by interro-
gating employees regarding union affiliations ; by making derogatory remarks
concerning the Union ; by intimidating and attempting to intimidate employees
and other persons participating in union activities ; by interfering with union
organization and activities ; and by keeping under surveillance union meetings
and activities , 1i as alleged in paragraph 5 of the amended complaint.
The undersigned does not believe that the evidence warrants a finding that
the respondent discriminated against union members in the distribution of
overtime work Lannan testified that be was not given extra overtime work
13 The above findings are based upon testimony of Fulford which the undersigned accepts.
Schwinghamer testified that he found Fulfoid standing outside the building handing leaflets
to employees in the plant ; that Fulford then went across the street and asked him to come
across the street ; that he said he would not ; and that he just asked Fulford to stay away
from the plant and not interfere with the men.
14 The above finding is made upon the credible testimony of Albert Braun . Schwinghamer
denied making the statements
13 Although the respondent 's president, Louis Koerner , was seen frequently at night on a
drug store corner on the public square, near the entrance to the union hall , no finding is made
herein that his presence there was for the purpose of surveillance of union meetings. He
was seen there on nights other than those of union meetings The corner was one upon
which several of Koerner ' s friends met and Koerner sometimes played caids in the drug
store, which was owned by'a friend. Koerner had frequented that corner with his friends
approximately tbice evenings a week for some years Fiom all of the evidence , the under-
signed does not believe that Koerner ' s presence on that corner was for the purpose of ob-
serving who attended union meetings . However, the undersigned is convinced that Sch«ing-
bamei 's presence on the public square as set out above was for the purpose of suiveillance
of union meetings.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during some 2 months in the winter of 1941, but such discrimination was denied
by Schwinghamer and Robert Kieffner, machine room foreman. The plant
as a whole worked regularly 15 hours overtime. The work week was 55 hours,
40 hours of which was paid for at straight time, and 15 hours.at time and a
half. Launan admitted that he worked whenever the entire plant worked,
but stated that he was not'called back in the evening upon occasions when his
machine operated on extra overtime. He was not able to identify such eve-
nings ' or indicate who operated his machine on extra evening overtime Ac-
cordingly, it will be recommended below that the complaint be dismissed inso-
far as it alleges that the respondent has discriminated against union members
in the distribution of overtime work. '
The undersigned finds that the respondent, by interrogating employees re-
garding union affiliation, by` making derogatory remarks concerning the Union,
by intimidating and attempting to intimidate employees and other persons
participating in union activities, by interfering with union organization and
activities, and by keeping under surveillance union meetings and activities, has
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. The discharge of Leo Lannan
The respondent contends that Launan was discharged on February 17, 1942,
because of his insubordination, his refusal to obey orders, and his challenging
of Superintendent Schwinghamer's authority, such misbehavior coming as a
culmination of several years of unsatisfactory work, concerning which no action
had been taken because of Lannan's long period of employment and his large
family.
Lannan had worked for the respondent for almost 17 years, and had operated
several types of machines. He had a large family, but the respondent 's witnesses
were in disagreement as to whether he had been retained because of his family
responsibilities.'" There is contradictory testimony as to Layman's efficiency.
Some of the respondent's evidence was obviously exaggerated For instance, at
one point Schwinghamer testified that he had had to speak to Lannan almost
every day. It is not reasonable that any man would have been retained almost
17 years if he had been damaging as much material and woiking as inefficiently
as some of the respondent's witnesses testified Launan had On the whole, the
respondent's evidence concerning Lannan's inefficiency was inconsistent and
unconvincing. Launan admitted that he made some mistakes but insisted that
his work had never been considered unsatisfactory. The undersigned believes
and finds that Lannan was a satisfactory employee and that the evidence
produced by the respondent to the contrary does not fairly portray Lannan's
long service to the respondent. In any' event, Koerner, Schwinghamer, and
Kieffner all testified that Lannan would not have been discharged had it not
been for the events of February 17.
The undersigned is convinced and finds that Schwinghamer's request that
Launan go into the yard to help unload lumber on February 17 was not a reason-
able request made in good faith. There were tww o regular employees in the lumber
yard. Upon occasions, other employees were sent to the yard to assist them.
It took four employees, to unload a car ; at such times two' extra, men were
sent to the yard. When at the same time a car was being unloaded, a dry
18 While Schwinghamer and' Kieffner testified that they had considered Lannan's family
responsibilities in refraining from discharging him, President Koerner testified only that he
had hoped that Lannan's work would improve. '
. JASPER CHAIR COMPANY 537
kiln was also being filled, it took four extra men since it took two men to load
lumber for the kiln. On February 17, a car was being unloaded at the same
time a kiln was being filled ; hence four extra men were needed to assist the
two regular yard men On the whole, the newer employees were used, for the
heavy work in the yard, and almost all of those so used were younger than
Lannan. New employees were paid a somewhat lower rate. than experienced
machine operators, and employees who were temporarily assigned to work in
the yard continued to receive their regular rates of pay. In addition to the
two regular yard employees, three men were customarily assigned to yard work'
According to Schwinghamer, there were over 40 employees whom he had used
in the yard during the previous few years. Lannan had not been so used for
over 5 years.' It was the practice to take employees whose work was not needed
at the time they were sent to the yard That Lannan had work to do at the
time Schwinghamer asked him to go to the yard is shown not only by Lannan's
testimony as corroborated by that of the other witnesses, but also by the fact that
a younger and less experienced employee, Hugo Poe, was put on Lannan's
machine immediately after Lannan was discharged. Poe had previously worked
in the yard upon several occasions,18 and Leo Rohhmin, one of the three
employees usually sent to the yard, was not asked to go until after Lannan
was discharged.
Even if it be conceded that Schwinghamer's instruction to Lannan on Febru-
ary 17 was a reasonable one, clearly Lannan's explanation of why he did not
feel able to work in the yard was appropriate when all of the circumstances
are taken into consideration. The undersigned' is convinced and finds that
the respondent's conduct' on February 17 in discharging Lannan because lie
said lie could not work in the yard constituted a culmination of the respondent's
resentment against Lannan The undersigned does not believe that the accumu-
lated resentment had been caused by Lannan's poor work or had been held
in check because ofihis long service and family responsibilities. Consideration
for Lannan's long service and family responsibilities would have indicated
procedure different from that, followed by the respondent on February 17. The
undersigned believes and finds that the key to the respondent's motivation in
discharging Lannan is to be found in the statement made by Schwinghamer
to Lannan when lie handed him his check, namely: "Now, by God, you are fired.
Go up and let Andy Bettag get you a job " For some months the respondent
had known that Lannan was active in soliciting membership for the Union.
The record clearly establishes Schwinghamer's strong feeling against the Union.
The undersigned believes and finds that both Schwinghamer's request on Febru-
ary 17 that Lannan go into the yard and his subsequent discharge of Lannan
because' he tried to explain that he could not, stemmed from Schwmghamer's
resentment against Lannan because of Lannan's activities on behalf of the
Union 35
17 Rohhnan, Scherman, and Urban Schwinghamer
11 Schwinglianier at fist testified that Poe, a relatively new employee about 30 years of
age, had nevei yet worked in the yard but that he was "liable to take him tomoi row " He
later admitted that Poe had worked in the yard Kieffner testified that Poe had woiked in
the Yard several tunes during his previous year of employment.' Poe was not called to
testify
19 Iii reaching the above conclusion the undersigned has given due consideration to the
fact that at a heai nig before a referee concerning his unemployment compensation, which
heaiing was held about a month after Latvian's discharge, Lannan was asked if he was con-
tending that he was discharged for union activities and replied, "No, they never mentioned
anything about the union that day at all " At the hearing in the instant matter, Lannan
admitted that he had given the foiegomg testimony, but stated that lie had understood the
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that the respondent, by its discharge of Leo Lannan on
,February 17, 1942, and its subsequent refusal to reemploy him, discriminated in
regard to the hire'and tenure of employment of Lannan and thereby discouraged
membership in the Union, and'that the respondent thereby interfered with,
restrained, and'coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent de-
scribed 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.
' s -
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom, and take certain
affirmative action which the undersigned finds necessary to ; effectuate' the
policies of the Act. / -
Having found that the respondent discriminated in regard to the hire and
tenure of employment of Leo Lannan by discharging him on February 17, 1942,
the undersigned will recommend that the respondent offer immediate and full
reinstatement to Leo Lannan to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges, making him
whole for any loss of pay he may have suffered by reason of the respondent's
discrimination against him by payment to him of a sum of money equal to the
amount which he normally would have earned as wages from the' date of such
discrimination to the date of the offer of reinstatement, less his net earnings R0
during said period.
Upon the foregoing findings,of fact, and upon the entire record in the case, the
undersigned makes the following:
- CONCLUSIONS OF LAW
1. The United Furniture Workers of America, Local No. 331, affiliated with the
Congress of Industrial Organizations , is, and the United Construction Workers
Organizing Committee , Local No 331, affiliated with the Congress of Industrial
Organizations , was a labor organization within the meaning of Section 2 (5) of
the Act.
question to be whether or not Schwinghamer had asked him anything about the Union or
talked about the Union that day. From the findings set forth above, it is evident that
Schwinghamer did not discuss the Union witb'Lannan on February 17, nor did Lannan so
testify at any point during the leaiing herein. It is reasonable to believe, in view of his
fourth grade education and his confusion at certain questions during the i-earmg herein,
that Lamina misunderstood the question addressed to him during the unemployment com-
pensation hearing.
m By net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
,of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440. Monies received for work
performed upon Federal, State, county, municipal, or other work-relief projects shall be i
considered as earnings . See Republic Steel Corporation v N. L R. B., 311 U S 7 '
JASPER CHAIR COMPANY 539
2. By discriminating in regard to the hire and tenure of employment"of Leo
Lannan and thereby discouraging membership in United Construction Workers
Organizing Committee , Local No. 331 , affiliated with the Congress of Industrial
Organizations , and United Furniture Workers of America, Local No 331 , affiliated
with the Congress of Industrial Organizations , the respondent has engaged in
and is engaging in unfair labor practices ,, within the meaning of Section 8 (3)
of the Act
3. By interfering with, restraining , and coercing its employees in the exercise
of the 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 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 ( 6) and ( 7) of the Act.
5 The respondent has not engaged in unfair labor practices by discriminating
against union members in the distribution of overtime work.
RECOM1IENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Jasper Chair Company, its officers,
agents, successors, and assigns shall:
1. Cease and desist from.
(a) Discouraging membership in the United Furniture Workers of America,
Local No 331, affiliated with the Congress of Industrial Organizations, or any
other labor organization of its employees, by discharging any of its employees or
in any other manner discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of their employment ;
(b) In any other manner interfering with, restraining, or coercing -its em-
ployees in the exercise of their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2 Take then following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Leo Lannan immediate and full reinstatement to his former or
substantially equivalent position,, without prejudice to his seniority and other
rights and privileges ;
(b) Make whole Leo Lannan for any loss of pay he may have suffered by reason
of the respondent's discrunination against him, by payment to him of a sum of
money equal to that which-he would normally have earned as wages from Feb-
) may 17, 1942, to the date of the respondent's offer of reinstatement, less his net
earnings 2' during said period;
(c) Post immediately in conspicuous places throughout its Jasper, Indiana,
punt and maintain for a period of at least sixty (00) consecutive days from the
date of posting, notices to its employees stating (1) that the respondent will not
engage in the conduct from which it has been recommended that it will cease and
desist in paragraph 1 (a) and (b) of these recommendations; (2) that the re-
spondent will take the affirmative action set forth in paragraph 2 (a) and (b) of
these recommendations; and (3) that the respondent's employees ' are free to
become or remain members of United Furniture Workers of America, Local No.
331, affiliated with the Congress of- Industrial Organizations, and that the re-
"See footnote 20
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent will not in any manner discriminate ag,nnst any employee because of
membership in or activity on behalf of that organization ;
(d) Notify the Regional Director for the Eleventh Region in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
It is further recommended that, unless on or before twenty (20) days from the
(late of the receipt of this Intermediate Report, the respondent notifies said Re-
gional Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
It is further recommended that the complaint be dismissed insofar-as it alleges,
that the respondent has discriminated against union members in the distribution
of overtime work.
As provided in Section 33 of Article II of the Rules. and. Regulations of the Na-
tional Labor Relations Board, Series 2-as amended-any party may within thirty
(30) days from the date of the entry of the order transferring the case. to the
Board, pursuant to Section 32 of Article II of said Rules and Regulations. file
with the Board, Shoreham Building, Washington, D. C., an original and four '
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within' twenty'(20) days after„the
(late of the order transferring the case,to the Board.
E_1RL S. BL'LLMAN
Trial Examaner.
Dated September 28, 1942.