Johnston-Tomigbee Furniture Co.

National Labor Relations Board - Board Decisions

Jun 27, 1979

243 N.L.R.B. 116 (N.L.R.B. 1979)

DI('ISiONS ()OF N IO()NAI I. LABOR RI.A IONS BOARI)
Johnston-Tombigbee Furniture Company and South-
ern Council of Industrial Workers, United Brother-
hood of Carpenters and Joiners of America, jointly
with Local Union No. 2462, United Brotherhood of
Carpenters and Joiners of America, AFI,-CIO.
Case 26 C'A 7126
June 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBIRS JENKINS
ANI) PENI .0
On January 10, 1979, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, both Respondent and counsel
for the General Counsel filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brieft
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The record reveals that Respondent and the Union
were parties to a collective-bargaining agreement
which was scheduled to expire on June 3, 1978. Just
prior to contract renewal negotiations, the Union
opened a campaign to increase membership. Parks, a
union steward, as well as Glenn and Silvers, were
among the principal employee participants in this
campaign. Parks and Glenn solicited employees and,
after an employee agreed to join the Union, Parks or
Glenn would request use of the employee's identifica-
tion badge. Parks or Glenn would then take the
badge to Silvers who would use the information on
the badge to fill out both a membership application
and checkoff authorization. Silvers would also sign
the employee's name on each document. Parks or
Glenn later would sign as a witness in the appropriate
section on the authorization card. It was Silvers' con-
duct in signing and Parks' and Glenn's conduct in
witnessing the authorization cards that prompted Re-
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings,
The respondent has requested oral argument. This request is hereby de-
nied as the record, the exceptions, and briefs adequately present the issues
and the positions of the parties.
spondent's decision to discharge them for the stated
reason that they violated the plant prohibiting 'falsi-
fication" of production records. payroll records, or
timecards.
The Administrative L.aw Judge found that Respon-
dent's stated reason for the discharge was pretextual
and that the real motive for the discharge was Re-
spondent's hostility toward the Union in general and
toward the discriminatees' efforts to increase union
membership in particular. In support of this finding,
the Administrative l.aw Judge pointed out that the
application of the "falsification" rule was unprece-
dented: that the employees' conduct did not involve
any fraudulent intent or result in injury to any party:
and that Respondent's "investigation" of the matter,
particularly Personnel Director Otis Garrard's admis-
sion that he set out to prove that a "forgery" took
place, evidenced animus toward the Union's support-
ers.
Additionally, the Administrative law Judge found
that Parks', Glenn's, and Silvers' actions were consis-
tent with the general understanding of employees in
the plant that joining the Union meant paying dues
by checkoff. However, the Administrative Law Judge
declined to find that Parks, Glenn, and Silvers were
authorized to sign the checkoff cards for other em-
ployees. In reaching that conclusion, the Adininistra-
tive Law Judge reasoned that because dues-checkoff
cards under Section 302(c)(4) of the Act require the
written authorization of the employee, the general un-
derstanding of the solicited employees here that join-
ing the Union meant that they would pay dues
through checkoff was insufficient to create a princi-
pal-agent relationship. In this connection the Admin-
istrative Law Judge stated, "I]t is only rational that
where in the law commands the principal be deemed
bound only by conduct of a certain form, that the
delegation of authority to the agent be of no lesser
form."
Contrary to the Administrative Law Judge we find
the record evidence sufficient to establish an agency
relationship. As mentioned previously, the Adminis-
trative Law Judge found, and we agree, that Parks',
Glenn's, and Silvers' actions were consistent with the
understanding of employees in the plant that joining
the Union meant paying dues by checkoff. As evi-
dence for that finding, the Administrative Law Judge
pointed to testimony showing that no employees paid
dues directly to the Union, that employees were un-
aware that dues could be paid in any way other than
by checkoff, and that even Personnel Director Gar-
rard was unaware of any other method by which dues
could be paid. And, as additional evidence of that
understanding, the Administrative Law Judge found
that all 18 employees who joined the Union by ten-
dering their identification badges told Garrard during
243 NLRB No. 21
116
JOIHNSIO()N-I()Mt3BI(iBIL FtIRNI RI (()
his "investigation" that the5' understood at the tilme
they were solicited that their dues would be checked
off. Moreover, all 18 subsequently signed valid check-
off authorizations.
The Board has long recognized a statutory man-
date to apply the "ordinary law of agency." 2 In deter-
mining whether an agent is authorized to act on he-
half of a principal, the Board has pointed out that the
principal's consent is necessary, hut consent "ma bhe
manifested by conduct, sometimes even passive ac-
quiescence, as well as by words. Authority to act as
agent in a given manner will be implied whenever the
conduct of the principal is such as to show that he
actually intended to confer that authority."' We con-
clude that when the employees here tendered their
identification badges, knowing that joining the union
meant paying dues by checkoff, they at least impli-
citly authorized Parks, Glenn, and Silvers to act as
their agents to sign the dues-checkoff cards for themI. 4
Hence a "forgery" or a "falsification" never took
place and Respondent's charge of "falsification" is
contrary to the facts. Thus, even if the Respondent
had acted in a good-faith. albeit mistaken, belief that
the dischargees had been engaged in "falsification,"
Respondent would have violated Section 8(a)(1 of
the Act because the dischargees were engaged in pro-
tected organizing activities. As the Supreme Court
found in N. L.R.B. v. Burnup & Sims, Inc.. 379 U.S. 21
(1964), in such circumstances employees are entitled
to reinstatement; "otherwise, the protected activity
would lose some of its immunity, since the example of
employees who are discharged on false charges would
or might have a deterrent effect on other employees."
Finally, contrary to the Administrative Law Judge,
we conclude that Respondent's interrogation of dis-
criminatee Silvers during the investigation of the al-
leged "forgeries" was coercive and violated Section
8(a)(l) of the Act. According to the credited testi-
mony, Silvers was called to Personnel Director Gar-
rard's office where she was questioned by Plant Su-
perintendent George Edwards. Among other things,
Edwards asked Silvers if she knew who gave her the
job, the Union or the Company. Edwards also asked
Silvers what she was "getting out of signing people up
for the union." Although the Administrative Law
Judge concluded otherwise, we find that this ex-
change exceeded the type of "rhetorical argumenta-
tion" privileged by Section 8(c) of the Act. In this
2 International Longshoremen's Warehousemen's Union, C(10. o1al
(Sunset Line & Twine Co.), 79 NLRB 1487, 1507 (1948). The quoted phrase
is from Senator Taft's analysis of the 1947 amendments. 93 Cong. Rec 7001
(daily ed., June 12, 1947).
Ibid. See also Restatement (Second) Agenci, . IS. and 27 (19581. See also
130.
4 In this connection, we note that at least some of the solicited employees
were actual) present when their names were signed to the checkoff authorl-
zations by Silvers.
connection we Inote that Edw .ards' remarks not on)ll\
revealed Respondent's ni mlus toward Silvers fr the
latter's union organizational activity. hut specificall,
attempted to draw the employee into a defense of'
those activities. We have found similar comments vio-
lative of Section 8(a)(1 ). L And we colnclude that this
incident, along with the other matters relied on bx the
Administrative La\; Judge, further supports the infer-
ence that Respondent's stated recason ftr the dlis-
charge of Silvers and the other to union activists
was pretextual and that the real reason Ifor the dis-
charges was discriminlatoryv.
ORDIER
Pursuant to Section l()(c) of thile National Iahor
Relations Act, as amended, the National I ahor Rela-
tions Board adopts as its Order the recomIllended Or-
der of the Administratie L.a Judge, as rnloditied he-
low. and hereby orders that the Respotndent.
Johnston-Tonmbighee Furniture (omlpaniN, ( oluil-
bus. Mississippi, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order. as so modified:
1. Add the fol lowilng paragraph as pragraph (h)
and reletter the subsequent paragraphs accordinglN
'(b) Interrogating emplo ees as to their unilon ac-
tivity."
2. Substitute the attached notice for that of the
Administrative l.aw Judgc.
MI MBE R PI \l .(), dissenting:
I cannot agree with the majorit that Respondent
violated Section 8(a)( I and (3) b discharging three
employees who admittedl, participated in what the
Administrative Law Judge termed the "misconduct"
of entering the signatures of 18 other employees on
dues-checkoff authorization cards. Contlary to, mn
colleagues. I would dismiss the complaint in its en-
tirety.
My colleagues apparently rel on two rationales.
First, they find that a principal-agency relationship
existed whereby the dischargees were authorized to
make the entries on the checkoff cards. However, the
Administrative Law Judge explicitly rejected this
contention and I find his analysis to be far more per-
suasive than that of my colleagues.7
Second. my colleagues adopt the Administrative
Law Judge's conclusion that the reason asserted bh
Respondent for discharging the emploees. i.e.. falsi-
' (Cf Jeffer..n National Brank. 240 NLRB 1057 19791: l kmain, l
4
t Illnt
& (onpanc, Detroit Pr'erinmg Di ion. 240 NlRB 81 (1979) (eon Foodds.
Inc- , i &1 rl,n' 1(;4 r,oodliner. 217 NlRB 667 11978)
' In the abhsence exceptions. we need not pass in he dninlr.atlve
Law Judge's dismissal of the allegation of the complaint that the Respondent
had engaged in conduct iwolatie lt Sec 8(a.15) il the ct
' See sec 111, C, 2. par I. of the a(ttahed l)ecin..
I 1 7
I)< ['ISIONS Of1 NAIIONAL LABOR REI.ATIONS BOARI)
fying and forging dues-checkofflcards, was pretextual.
In this regard, the Administrative Law Judge found,
inter alia, that Respondent's investigation of the inci-
dent "radiated an overall design to discriminate." and
that the employees' misconduct was "inconsequen-
tial." This aspect of' the Administrative Law Judge's
Decision I cannot affirm. In my opinion, evidence of
union animus is lacking, as the Administrative Law
Judge himself properly found that Respondent com-
mitted no other violations of the Act. And the mis-
conduct in issue here can hardly be dismissed as triv-
ial since it placed Respondent in a position where it
could have been subject to legal sanctions had it hon-
ored the invalid cards and checked off dues.'
For these reasons, I have not signed my name to
the majority opinion.
8 As the Administrative aw Judge recognized in the conclusions section
of his Decision. Sec 302(c)(4) imposes criminal penalties upon an employer
that remits dues to a lahor organization unless "the employer has receised
from each employee, on whose account such deductions are made, a written
assignment." In addition, "the unauthorized deduction of dues is clear
violation of Section 8(a}2) and (I) of the Act." Jo-Jo Management (orp.
d/b/a GloriaiS Manor lomei /or Adults 225 NI.RB 1133, 1143 (1976), enfd.
556 F.2d 558 (2d ('ir 1977).
APPENDIX
No'IrIcr TO EMPI.OYEES
POSIED BY ORDER OF TIIt
NAriONAI LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represented
by their attorneys and were afforded the opportunity
to present evidence in support of their respective posi-
tions, it has been found that we have violated the
National Labor Relations Act, as amended, in certain
respects and we have been ordered to post this notice
and to carry out its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a represent-
ative of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
Accordingly, we give you these assurances:
WE WILL NOT discourage activity on behalf of
a labor organization by discharging, or in any
manner discriminating against our employees
with respect to their wages, hours, or terms and
conditions of employment.
WE WILL NOT interrogate employees about
their union activity.
WE WI1.l.L NOI in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of rights guaranteed them under Section 7
of' the National Labor Relations Act. as
amended.
WE WlI., reinstate Earl Glenn, Robert Parks,
and Lucille Silvers to their former jobs or, if
those jobs no longer exists, to substantially
equivalent positions, without prejudice to their
rights and privileges previously enjoyed, and wi!
wI.L. make them whole for any and all moneys
lost by reason of our having discharged them be-
cause of their union activity, with interest.
JOIINS'O()N-T()NMIII(;11 Fi RNI I RI CO ()M-
PANY
DEC('ISION
SIAILMINI ()I IiIt CASI
Jonl. A. HARMArz., Administrative L.aw Judge: This pro-
ceeding' was heard in Columbus. Mississippi. on August 17,
1978. upon an unfair labor practice charge filed on March
30, 1978, and a complaint issued on May 12. 1978. alleging
that Respondent, Johnston-Tombigbee Furniture Com-
pany, independently violated Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended, by interrogating
employees concerning union activity and by coercive state-
ments made in connection therewith. The complaint further
alleges that Respondent violated Section 8(a)(3) and (1) of
the Act by discharging employees Earl Glenn. Robert
Parks, and Lucille Silvers. Finally, the complaint alleges
that Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to check off union dues on behalf of certain
named employees and to remit same to the Union. In its
duly filed answer. Respondent denied that any unfair labor
practices were committed. After close of the hearing, briefs
were filed on behalf of the General Counsel and Respon-
dent.
Upon the entire record in this proceeding, including per-
sonal observation of the witnesses while testifying and their
demeanor, and after due consideration of the post-hearing
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENI
Respondent is a Mississippi corporation with a place of
business in Columbus, Mississippi, from which it is engaged
in the manufacture and sale of furniture. During the 12-
month period preceding issuance of the complaint, a repre-
sentative period, Respondent in the course and conduct of'
said operation purchased and received at said facility prod-
' The caption was amended at the hearing to reflect the status of the
Charging Party. Southern Council of Industrial Workers, United Brother-
hood of Carpenters and Joiners of America, jointly with Local Union No.
2462, United Brotherhood of Carpenters and Joiners of America, AFL-(CIO.
as a joint employee representative.
118
JOHNSTON-TOMBIGBEE FURNITUIRE CO.
ucts valued in excess of $50.000 shipped directly from
points located outside the State of Mississippi and. during
said period, sold and shipped from said location products
valued in excess of $50,000 directly to points located out-
side the State of Mississippi.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. rtW I.ABOR ()R(;ANI.AII()N IN()I \EI)
The complaint alleges, the answer admits, and I find that
Southern Council of Industrial Workers. United Brother-
hood of Carpenters and Joiners of America, and Local
Union No. 2462, United Brotherhood of Carpenters and
Joiners of America, AFL CIO, collectively called the
Union, are now. and have been at all times material herein,
labor organizations within the meaning of Section 2(5) of
the Act.
Ill. Ht Al.l.t.(;ED) UNFAIR l.AB()R PRA( Il(FS
A. The Issues
The question of fundamental concern in this proceeding
relates to the discharges on February 3, 1978. or Earl
Glenn. Robert Parks, and Lucille Silvers. All three were
terminated on grounds arising in the course of their effort to
solicit new union members from among Respondent's work
force during the period preceding contract renewal negotia-
tions.
Respondent claims that in the course thereof the dis-
chargees engaged in conduct both unprotected and viola-
tive of established company rules and that said conduct
constituted the sole ground for their termination. Thus, it is
undisputed that dischargee Silvers herself signed the names
of some 18 employees to otherwise valid checkoff authori-
zations, and that Glenn and Parks entered their signatures
to cards as witnesses to those placed on the authorizations
by Silvers.
The General Counsel asserts dual theories in support of
the view that Respondent. in effecting the discharges, acted
without legitimate cause. First, it is alleged that all three of
the discriminatees were agents acting on authority afforded
by employees to sign the checkoff authorizations in their
behalf. Hence, the General Counsel argues that their con-
duct was protected, and citing N.L.R.B. v. Burnup & Sims,
Inc., 379 U.S. 21 (1964) argues that it is irrelevant that
Respondent "may have" acted upon a good-faith belief that
the dischargees had engaged in unprotected activity. Sec-
ondly, counsel for the General Counsel argues that the rea-
sons assigned for the discharges were pretextual and that
the real motive for the discharge "was to chill the upsurge
of unionism among its employees ... ."
B. Background
I. The membership drive
Respondent and the Union were party to a collective-
bargaining relationship prior to the events here in issue.
Although the initial date on which recognition was con-
ferred is not defined by the record, the production and
maintenance employees were covered b a collecive-hbar-
gaining agreement having a 3-year term, which bras sched-
uled to expire on June 3. 1978.
Apparently. in consequence of a decline in union mem-
bership. in late 1977, a campaign was opened seeking to
broaden the Union's membership rolls in anticipation of the
1978 contract renewal negotiations. Parks, a union steward,
and Glenn and Silvers were among the principal emplosee
participants in this effort.
The drive was conducted with Parks and Glenn soliciling
employees. When infoirmed of an employee's desire to join,
it was their practice to request use of the emplo ee's identi-
fication badge. That identification badge. which had been
issued by Respondent, was then taken to Lucille Silvers.
Silvers, using the information on the badge. would make all
entries on a perforated document which included both a
membership application and check-off authorization.2 Sil-
vers would herself enter the employee's signature on each
card, including the check-off authorization. copbing the
name as it appeared on the employee's identification badge.
Later, either Parks or Glenn would sign as a witness in the
section provided therefor on the checkoff form.
Subsequently. probably on February 1. 1978.' the check-
off authorizations were delivered to Anita Caldwell. Re-
spondent's personnel clerk.
2. The investigation
Caldwell. upon receipt of the checkoff cards. examined
them, noting two discrepancies on a card purporting to be
that of employee Lois Atkins. First, Caldwell was aware
that Atkins no longer went by that name., In addition. her
signature was placed on the authorization backwards i.e..
"Atkins, Lois B."' Also arousing suspicion was another
card, which included interlineations. suggesting that the sig-
nature was entered by one uncertain as to the proper se-
quence of her name.'
Caldwell called these discrepancies to the attention of
Otis Garrard. Respondent's personnel director. Garrard
then instructed ('aldwell to check the balance of the signa-
tures appearing against those contained on employment ap-
plications. Caldwell did so, finding that the signatures did
not match.' At this point Caldwell turned oer all the
checkoff authorizations to Garrard. Garrard then urged Bill
Miller, Respondent's security agent. to check with em-
ployee Lois B. Johnson to determine whether she had
signed her checkoff authorization. Miller reported that
Johnson had not signed the card. Garrard himself then
checked the signatures on the cards, concluding that thex
did not appear to be authentic.
2See G.C. Exh 4
] All dates refer to 1978, unless otherwise indicated
I4 appears that Atkins had been married 3 months earlher nd. consistent
therewith. her persannel records were changed to reflect the name ol I is B
Johnson.
see Resp. Exh 2
'See Resp Fxh 4(G)
'The official stenographic transcript is herehb amended to reflect the 1l1-
lowing: "The signatures on the applicallons did not malch with the one oI
the checkoff cards."
119
DI:(ISIONS OFt NATIONAL LABOR RELATIONS BOAR[)
Garrard then conducted interviews with the employees
whose names appeared on the checkoff authorizations. In
advance thereof, a form had been prepared which was read
to the employees during the interviews. It contained the
following:
I have been advised by Otis (iarrard that the com-
pany has recently been made aware of several in-
stances of employees' names having been forged on
Dues Check Off Cards. Because of this, Mr. (Garrard
advised that the company is concerned as to whether
other employees may have had their names forged.
Mr. Garrard further infirmed me that the company
did not oppose my signing a Dues Check Off'Card and
that I had a right to sign such a Check Off C'ard. Mr.
Garrard further informed me that the only reason he
was talking with me was to find out whether or not my
name has been forged.
I did not sign the Authorization for Deduction of
Initiation Fees, Dues, Etc. dated - that was wit-
nessed by - and attached to this paper.
I do not know who signed it, and I did not authorize
anyone to sign my name.
During those interviews, 18 of the employees reported that
they did not place their signatures on checkoff authoriza-
tions. However, Garrard received information that all had
indicated to union representatives their intention tojoin the
Union, and that it was the understanding of' some, if not all.
of those interviewed that joining the Union meant that dues
would be taken out of their paychecks.8
Garrard then contacted the cheif union steward and in-
formed him that, if the new members wished to have their
dues deducted, it would be necessary for the individuals
themselves to sign their names to authorization cards.9
Following this, Garrard separately questioned Parks and
Glenn concerning the checkoff authorizations. According to
Garrard, both initially asserted that they observed the sig-
natures when entered by the employees, but then admitted
that they did not witness the signatures. Both informed
Garrard that Lucille Silvers delivered cards to them which
they signed as witnesses.
Garrard then talked with Silvers, who admitted she had
signed the names to the cards.
Published company rules include the following:
Plant Rules
Violation of Rules I through 14 below will result in
immediate discharge.
{8) Falsif'ying production records, payroll records,
or time cards.
s ee testimony of Lois Bell Johnson and a stipulation entered in behalf of
counsel for the Respondent dispensing with the need to call additional em-
ployees as witnesses. Although Garrard denied questioning employees as to
whether they wished to join the Union, he testified that a few did say they
wanted to get in the Uinion. Although there is no serious discrepancy be-
tween his testimony and that covered by the stipulation, to the extent that his
testimony is inconsistent therewith. it is rejected.
9 Art. XXII of the governing collective-bargaining agreement provided for
the checkoff of dues and initiation ees, "of employees who have executed
and furnished to the (Company a signed authorization so to do .. "
Although Garrard initially testified that he had no alterna-
tive under the above rule but to effect the discharges, he
later conceded that the matter was discretionary. Giarrard
also conceded that in the course of his investigation not a
single employee questioned advised that he or she did not
wish to join the Union, nor did any complain concerning
dues being deducted from their pay. G(arrard also testified
that to his knowledge there had been no prior discharges
under the rule in question. By way of stipulation it was
established that all cards bearing signatures inscribed by
Silvers involved employees who in February and March
1978 executed new checkoff cards and that pursuant thereto
their dues were in fact checked off by Respondent.
Nonetheless. Parks. Glenn. and Silvers were discharged
on February 3, and as of the date of' the hearing had not
been offered reinstatement.
C. ('oncluding F'inlings.
I. Interference, restraint, and coercion
The independent 8(a)( I1 ) allegations relate in the main to
Garrard's investigation. First, it is claimed that the proce-
dure utilized by Garrard in questioning the employees
whose names appeared on the cards constituted coercive
interrogation proscribed by the Act. I find no merit in this
contention. The discrepancies apparent on the face of the
authorizations presented a justification fir an investigation
within an area of legitimate employer concern. Article 22 of
the subsisting collective-hargaining agreement provided
that the Company would checkoff and remit to the Union
"monthly dues and initiation fees of employees who have
executed and furnished to the Company a signed authoriza-
tion so to do." Furthermore, Section 302(C)(4) of the Na-
tional Labor Relations Act' 0 imposes criminal sanctions
upon employers who remit dues to a labor organization
unless "the Employer has received from each employee, on
whose account such deductions are made, a written assign-
ment which shall not be irrevocable for a period of' more
than one year. or beyond the termination date of the appli-
cable collective bargaining agreement. whichever occurs
sooner .... " The legitimate purpose of the interviews was
carried out with all employees involved specifically assured
against reprisal and informed in writing that the sole pur-
pose for their interview was to determine whether or not
their name "has been forged." In the circumstances, I find
that the questioning of individual employees was in full
compliance with the standards set forth in Blue Flash Ex-
press. nc., 109 NLRB 591 (1954). for noncoercive interro-
gation. Accordingly, it is concluded that Respondent did
not.violate Section 8(a)(1) in this respect.
The General Counsel also contends that Respondent vio-
lated Section 8(a)( ) through comments made to employees
in the course of the investigatory interviews by Garrard and
Plant Superintendent George Edwards. With respect to
Garrard, incumbent employees Grace Ann Ervin and Lula
Cunningham afforded mutually corroborative testimony
that Garrard advised them during their interview that while
he would not try to prevent them from joining the Union,
the $8 that the Union would take from their checks each
1029 t.S.C. Sec. 186(')(4).
120
JOHNSFO()N-10MBIGI1(;B1 I RNll RI (O.()
month could he saved in the credit union.'' It is claimed
that the foregoing was coercive and violative h Section
8(a)(1). I disagree. Garrard's comments, while hetraing a
stance of neutrality on his part with respect to the union
membership drive, merely represented an argument or ex-
pression of' opinion protected by Section 8(c) of' the Act.
A further allegation is derived trom Lucille Silvers' testi-
mony as to statements imputed to George Eldwards. In this
respect, she testified that on February 2. when Edwards first
questioned her concerning her involvement, he asked her it
she knew who gave her her job. the Union or the Compan.
and then went on to question her as to what she .was getting
out of signing people up for the lUnion. Edwards afforded a
different version of the conversation in question. but testi-
mony of Silvers seemed more probable, and I credit her
over Edwards.'2 Here again, the expressions communicated
to Silvers by a management representative reflected a less
than hospitable receptiveness to her eflbrts on behalf of' the
Union, but, on balance, did not exceed the type of rhetori-
cal argumentation privileged by Section 8(c) of' the Act. I
find that Respondent did not thereby violate Section 8(a( I
of the Act.
2. The discharges
Dealing first with the General Counsel's claim that the
entry of other employees' signatures on the checkoff autho-
rizations by Silvers, and their attestation by Glenn and
Parks, was protected. I find no merit in the argument that a
principal-agency relationship existed wherehby the three dis-
chargees were authorized to make such entries. In this re-
gard the General Counsel correctly observes that "an
agency arises when one person, the principal, manifests
consent to another, the agent, that the latter should act on
the former's behalf .... " It is also true that while the
agency relationship need not be evidenced through a formal
contract, the existence of authority must be manifested by
written or spoken words, or conduct which. reasonably in-
terpreted. would lead the agent to believe that the principal
has designated the agent to so act on the principal's behalf.
There is no such evidence in this case. The subject of check-
off, insofar as this record discloses. was not discussed be-
tween the new membership applicants and the solicitors.
and the former engaged in no conduct from which a delega-
tion of authority might be inferred. Indeed. it is only ra-
tional that where the law commands that the principal be
deemed bound only by conduct of a certain form, that the
delegation of authority to the agent be of no lesser form.
With respect to checkoff authorizations. Section 302(C)(4)
of the Act affords all union members of those who wish to
join a labor organization protection against union represen-
tatives or employers or a combination thereof diverting
their earnings through union dues remittances. The protec-
tion afforded requires that a written assignment authorizing
such remittances be made by each employee. and the fact
I believed that testimony of Cunningham and Ervin. and credit them
over Garrard's denial. In many respects, Garrard did not impress me its a
trustworthy witness.
i Garrard was present during the conversation in question. but was not
examined as to this aspect thereof
that employees have expressed their clear intent to join a
unlionl does not carry with it an implied waiver of this con-
gressionally coniferred option. Satislaction o the taitutor\
requirement , as not met by the undisclo sed intentii!n or
understanding of the solicited eploees tht Oingin the
Union meant pli ing dues land that this wuould hbe accllm-
plished through the medium of check)off. lhe c idelnce doues
not substantiate that Parks. (ilein. and Sil rs acted upon a
grant f prior authority from the membership applicants.
While rejecting the contention hased upon agency. I am
nonetheless convinced that Respondent wvas not privileged
lawfully to effect the discharges on the ground assigned. It
knew. or should have known, that Silvers. Glenn, and Parks
were unsophisticated employees who acted with little com-
prehension for the technical strictures hearing upon em-
ployee solicitation, and that they held no intention what-
ever to prejudice the E:mployer as to material matters.
impair the interests of employees. or to extort funids or the
benefit of the L llion.
G(arrard appears to have brushed aside these mitigating
considerations through his testimon that he was uncoln-
cerned with any question ats to hether the dischargees
were engaged in a scheme to defraud hut that his sole inter-
est was whether the were engaged in falsif'ing the rec-
ords."
In my view, the foregoing narrows to a legal issue as to
the circumstances under which emplo ers may discharge
employees for misconduct interlaced with that %which is in
other respects protected b Section 7 of the Act. Thus. en-
joymerint of statutorily guaranteed employeec rights might
well, as practical matter. depend on the willingness of
employees to volunteer to be among the vanguard of or-
ganizational activity. Those who elect to do so might \well
become vulnerable to legitimate discipline of a most severe
nature should their conduct impinge upon historically rec-
ognized rights of management or other employees. This
does not mean, however. that the protective mantle of the
Act is lightly removed. Where the conduct on which the
employer acts is trivial and inconsequential and presents no
real threat to the employer's ability to maintain production
and efficiency, the adverse impact of such discipline entails
a disproportionate intrusion upon Section 7 rights. In rec-
ognition thereof. the Board, with court approval, has de-
vised policies calculated to prevent any such imbalance.
Thus. in the case of economic strikers it is now settled pol-
icy that "serious acts of misconduct which occur in the
course of a strike may disqualify a striker from protection
of the Act while minor acts of misconduct may not."" Simi-
lar limitations upon employer disciplinary prerogatives
exist where the protected activity does not involve strike
action. Thus, in N.L.R.B. v. Illinois Tool 4orA.s, 153 F.2d
811 (7th Cir. 1946). a layoff of a union official because he
refused to correct a misrepresentation concerning swage
scales was deemed violative of Section 8(a)(3) of the Act
under such a formulation. The governing test in such cir-
cumstances was reiterated by the Circuit Court of Appeals
" See Ohio, Ps,,lr ('o,,paen . 216 N LRB 348. 354 ( 1975), and cases cited i
fn 7 thereof See Nf I. R. Thaicr (l,npam and II N Thaiter (mrpar.
213 2d 748 (Ist (r 1954). Ifor the more stringent standards applied to
employers in disciplining unfair laNr practice strikers
121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Seventh Circuit in N.L.R.B. v. Thor Power 7iol
Company., 351 F.2d 584. 587 (1965) as follows:
As other cases have made clear, flagrant conduct of
an employees, even though occurring in the course of
section 7 activity, may justify disciplinary action by the
employer. On the other hand, not every impropriety
committed during such activity places the employee
beyond the protective shield of the Act. The employ-
ee's right to engage in concerted activity may permit
some leeway for impulsive behavior, which must be
balanced against the employer's right to maintain or-
der and respect.... Initially, the responsibility to draw
the line between these conflicting rights rests with the
Board, and its determination, unless illogical or arbi-
trary, ought not be disturbed. In the instant case we
cannot say that the Board's conclusion that Tinsley's
remarks was within the protection of section 7 was ei-
ther unreasonable or capricious.
Reproduction of another's signature may, as an abstrac-
tion, carry grievous overtones, and ordinarily no quarrel
could be made that such indiscretions furnish valid cause
for termination. Serious reservation is held, however, as to
whether employees engaged in the statutorily protected
conduct of obtaining union designations from among their
fellow employees may be discharged for an incidental devi-
ation which operates to the prejudice of no one. The accu-
sation that Parks, Glenn and Silvers perpetrated "forgery"
is utterly without foundation. On the contrary. their con-
duct neither involved fraudulent intent nor resulted in in-
jury; it was consistent with general understanding in the
plant that union membership included the payment of dues
by checkoff, and indeed was subsequently ratified by all in
the class on whose behalf Parks, Glenn, and Silvers pur-
ported to act. To conclude that the placement of the signa-
tures on the checkoff authorizations involved a departure
from activity protected by the Act would, in the circum-
stances of this case, condone employer action which, while
serving no cognizable management interest under this Act,
would foreseeably create a serious impediment to employee
involvement in union activity. Accordingly, without neces-
sity for in other respects considering Respondent's motive.
the discharges on the ground assigned by Respondent vio-
lated Section 8(a)(3) and (I) of the Act.
It also appears that the allegations of discrimination are
substantiated on other grounds as well. For the entire rec-
ord warrants the inference that the cause specifically as-
signed for the discharges was pretext, and that Garrard
acted out of a proscribed intent to discriminate on the basis
of the union considerations. Thus, although Garrard re-
peatedly disclaimed any opposition to the renewed effort to
increase union membership rolls, Respondent's pretended
lack of concern was refuted by credible testimony of incum-
bent employees Ervin and Cunningham and discharges Sil-
vers. The investigation conducted by Garrard. though ac-
companied by the formality of assurances against coercion,
like the slip made in the Ervin-Cunningham interview, radi-
ated an overall design to discriminate. The interviews were
conducted with the aid of a statement which accused Parks.
Glenn, and Silvers of "forgery." I)espite the gravity of this
charge, Garrard admittedly conducted the interviews for
the limited objective of determining whether or not the em-
ployees whose names appeared on the checkoff authoriza-
tions actually signed them; he disclaimed any interest in
developing the existence of mitigating circumstances. None-
theless, the decision to effect the discharges was made on
information which, despite Garrard's effort to narrow the
scope of' the investigation, revealed that it was the general
understanding among employees that the desire to join the
Union included their will to have dues paid through check-
off, and that the placement of their signatures on the autho-
rizations by the dischargees might well have been attribut-
able to misunderstanding. Thus, of the 18 employees whose
signatures were placed on the checkoff cards not one com-
plained or expressed any offense at the action taken by the
dischargees. All 18 told Garrard that they desired union
membership. Garrard also was informed that said employ-
ees understood that, having joined the Union. dues would
be deducted from their pay. Garrard himself testified that
he was unaware that employees could remit dues through
any means other than checkoff. These facts went unheeded,
and Parks, an employee with 27 years of service, Glenn. an
employee with 10-1/2 years of service, and Silvers, an em-
ployee of I -1 /2 years, who expressed the need for her job at
her discharge interview, were all terminated. Indeed, in the
weeks that followed, all 18 new members executed valid
checkoff authorizations.
The brief filed on Respondent's behalf accurately notes
that it is not the function of' the Board to substitute its
judgment for business decisions. This limitation, however.
does not hamstring the inference-drawing process to the
point of requiring the finder of fact to deny that employer
conduct is in actuality what, on its face, it appears to be.
Here, through Garrard, Respondent, without full knowl-
edge of' the facts, made the overreaching charge of "forg-
ery," and then embarked upon a finely tailored investiga-
tion which neither attempted to develop the truth of that
accusation, nor to uncover evidence which might reveal the
inconsequential nature of the misconduct under scrutiny.
On the very next day, what appears to have been a biased
predetermination to effect discharges was implemented, but
only after Garrard had learned, through information volun-
teered during the investigation, that the dischargees had
simply acted upon the unspoken understanding of the new
applicants for union membership. that none of' the latter
had complained, and that though the dischargees had uti-
lized the wrong procedure, their impropriety was not at
odds with the objective of those on whose behalf they acted.
Considering the foregoing against the total record. I re-
ject as unbelievable the claim that Parks, Glenn, and Silvers
were discharged for violation of a company rule.' Instead,
taking full account of Respondent's opposition to union
membership, and the harsh discipline meted out under an
unprecedented application of a company rule against three
i As heretofore indicated. Garrard could not recall that Rule 8 had been
enforced previously. Therefore. the scope of the conduct under interdict pur-
suant to that rule is left to self-serving testimony hby an unreliable witness. In
passing. however. it is noted that the imagination need not he taxed to appre-
ciate the probable trequenc with which emplo :ees knowingly hut mis-
takenl.. submit false information to emplo3.ers on "production records. pas-
roll records or time cards." Although it is possible, douhbt exists that
Respondent would react as dramalicall against other mployees. in a non-
union-related context. upon discovery that they ito had furnished misinfir-
mation having no detrimental impact hateser
122
1JOINSION-TOMBBI(;l. t rRNIIIRIR (CO.
employees highly active in the membership drive, the con-
clusion is inescapable that Respondent's lack of concern for
their innocence of any indiscretion was horn of resentment
toward their involvement in the renewed effort to
strengthen the Union's hand. I find that this resentment
furnished the true motivating cause fr their discharge, andl
that Respondent thereby violated Section 8(a1)(3) and ( I of
the Act."
3. The refusal to bargain
The complaint alleges that Respondent violated Section
8(a)(5) and (I) of the Act by refusing since November .
1977, and other unknown dates to remit union monthly
dues on behalf of the 18 employees whose nallies ere
placed on checkoff authorizations by Silvers. Although all
of these employees subsequently condoned and ratified that
conduct of Silvers. Glenn. and Parks, the latter acted with-
out express or implied authority in signing the checkoff a u-
thorizations. These cards did not meet the requirements of
Section 302(C(')(4) and did not comply with contractual pro-
cedures. Accordingly. they were invalid and imposed no
obligation on Respondent's part. There being no eidence
whatever that Respondent failed to remit dues or any other
appropriate fees to the Union upon presentation of legiti-
mately authorized assignments on the part of the named
employees. I find that this allegation is not substantiated.
CO)N('I :SIONS () L.AN.
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in commerce and a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (I) of the Act
on February 3, 1978, by discharging employees Robert
Parks, Earl Glenn, and Lucille Silvers, to discourage union
activity.
4. Except as found above, Respondent did not engage in
any unfair labor practices.
5. The foresaid unfair labor practices have an effect
upon commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action to effectuate the policies of the Act. As the unfair
labor practices found herein include discrimination which
strikes at the heart of the Act, a broad cease-and-desist
provision shall be recommended requiring the Respondent
to cease and desist from "in any other manner" interfering
1 I have not overlooked the fact that Respondent and the Union subse-
quently reached agreement on a new 1978 contract. That fact furnishes no
ground for discounting the discrimination evident on the entire record
herein.
with, restraining. or coercing employees in the exercise of
their Section 7 rights.
laving found that Respondent discrimi natoril dis-
charged Parks, I)unn, and Silvers in violation of Section
8(a)(3) and (I) of the Act, I will recomnmend that Respon-
dent offer them immediate and full reinstatement to their
fIrmer or substantially equivalent positions. without preju-
dice to their seniority or other rights and pri ileges alnd
make them whole for any loss of earnings suffered b rea-
son of their unlawful termination. hb payment of a sum of
money equal 1o lhat Mhiclh the normall Vwould have
earned fronl the date of Respondent's discrilinaltion to the
date of' a bona ide offer of' reinstatemennl. ess net interim
earnings during such period. with hackpa l and interest
thereon to he computed in the manner prescribed in F 1: '
$tool)v)/rII ( 1pImni. 90 NRB 289 ( 95(). lind 17. rda
Slcl (oruraliol. 231 N .R B 651 i 1977).
[Upon the foregoing findings of lact and coTnclutsio.ns (il
law, nd upon the entire record in this case. and pursutiani
to Section IO(c) of the Act. I hereb issue the tollovwine
reconinlenlLed:
()RI)IR
The Respondent. Johnston- lomnbigbee Iurniture ('onm-
pany. Coluimbus, Mississippi. its offticers. agents, successors.
and assigns, shall:
I. Cease and desist from:
(at) Discouraging employees from engaging in union ac-
tivity by discharging. or in any other manner discriminating
against, them with respect to their wages. hours, or tenure
of employment.
(b) In any other manner intreriring with. restraining, or
coercing employees in the exercise of their right to sell-
organization, to ftrm or assist labor organizations, to bar-
gain collectively through representatives of their own
choosing. to engage in concerted acti'iti es for the purpose
of mutual aid or protection, or to retrain from an s and all
such activit,.
2. Take the following atfirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer immediate reinstatement to Robert Parks. Earl
Glenn, and l.ucille Silvers to their former positions, or if
not available, to substantially equivalent positions. without
loss of seniority or other benefits, and make them whole for
all earnings lost by reason of the discrimination against
them in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying. all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rel-
evant and necessary to a determination of the amount of
backpay due under the term of this Order.
16See. generally. lis Plumbing & Heating (,,, 138 NLRB 716 (19621
' In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations or the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall as pro ded in Sec 102.48
of the Rules and Regulations he adopted b the Board and become its find-
ings, conclusions. and Order. and ll objections thereto shall be deemed
waived for all purposes.
1 23
I)I ('ISIONS ()01 NIIl)NAI IAB()R RIlAl'Io()NS BOARI)
(c) Post at its (Columbus Mississippi, facility copies of
the attached notice nmarked "Appendlix. " l (opies of' said
notice. on fbrms provided by tihe Regionial I)irector ior Re-
gion 26. after heing dull signed hby Respondent's represent-
ative, shall he posted by Respondenlt iimediatelI upon re-
ceipt thereof; and maintai ed hby ii fr (6) consecutive dlys
thereafter. in conspicuous places including all pl;ces where
notices to employees are custom;arily posted. Reasonable
steps shall he taken bh Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(LI) Notify the Regional [irector lotr Region 2(6, III rt-
ing, within 20 days from the date of this Order, what steps
Respondent hs taken to comply herewith.
I I R IIR Rl(()MMINI)I I) that all unfair labor prac-
tice allegaltions not fiound herein he dismissed.
in 1ie eeni at th i order s cilorced hN Judgreni ol t nited Strte-
('ourl o1 Appeal., the ords in Ihe notice readilng lo,ated h Order l the
N.ioni.ial I a;hr Relatmin Board" shall read "lsled P'Lrsuant I ia Judgment
ot Ile t nlled St;tes (ourl ot AppealrI tnlrfrcing n Order ol the National
l ah, l Relatlrim, Board"
124