Kane's Masterbuilt Furniture Co.

National Labor Relations Board - Board Decisions

Aug 2, 1963

143 N.L.R.B. 1152 (N.L.R.B. 1963)

1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(10) Freeman said he had not "contacted anyone from the company to verify"
his interpretation of the letter to the effect that had he met he would be "agreeing"
to the company 's position.
C. Conclusions concerning this issue
The foregoing findings, in the opinion of the Trial Examiner , do not warrant
the conclusions sought by General Counsel . While the evidence does show that
Banowetz , as negotiator for the Respondent , was something less than quick to
respond to the overtures of Edgmon , it is equally clear that the union representatives
exercised small promptitude in following up their requests . It is noted that the Union
itself delayed filing its charge more than 6 weeks after receiving Banowetz ' letter
of November 2. Both parties appear to have been equally dilatory in action.
The testimony of both Edgmon and Freeman establishes the fact that they are
.the parties who actually declined to meet, as Banowetz offered in his November 2
letter. Neither union representative apparently took the trouble to call Banowetz
-to see whether their interpretation of his letter was justified. -
The letter of November 2 and the testimony of the union representatives estab-
lishes, it seems to the Trial Examiner , that the parties occupy precisely the same
positions in impasse as they did in 1961 and that each party is aware of that fact.
The law does not empower the Board to order either party to recede or make con-
tession, as the Supreme Court pointed out in the American National Insurance Co.
case, 343 U.S. 395.
In his letter of November 2 Banowetz stated "Of course, we will meet with you
on demand ." The Union chose not to make that demand , a choice it was free to
make.
In short , the Trial Examiner believes and finds that the evidence in the record
fails to sustain the 8 ( a) (5) allegations of the complaint.
D. Alleged promise of benefits
The complaint alleges and the answer denies that in January 1963, Plant Manager
Taylor promised employees a pay raise if they "would get the Union decertified."
The Trial Examiner finds no testimony in the record to support the allegation.
Three witnesses were called by General Counsel on this point. None of them
testified that Taylor conditioned a raise upon decertification.
E. Conclusions in general
The Trial Examiner concludes and finds that the evidence fails to sustain the
allegations of unfair labor practices within the meaning of Section 8 ( a)(1) and (5)
of the Act.
RECOMMENDATION
Upon the foregoing findings and conclusions the Trial Examiner recommends that
the complaint be dismissed in its entirety.
Kane's Masterbuilt Furniture Co. and Upholsterers' Interna-
tional Union of North America , AFL-CIO, Local 300. Cases
Nos. 12-CA-2504 and 12-RC-1588. August 2, 1963
DECISION AND ORDER
On May 17, 1963, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceedings, finding that the
Respondent had not engaged in certain unfair labor practices as al-
leged in the complaint, and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Intermediate Report.
He also recommended that various objections to conduct affecting the
results of election, which were filed by the Union in Case No. 12-RC-
143 NLRB No. 112.
KANE'S MASTERBUILT FURNITURE CO. 1153
1588, be overruled. Thereafter, the General Counsel filed exceptions
to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in these cases,
and hereby adopts the findings,' conclusions, and recommendations of
the Trial Examiner.2
[The Board dismissed the complaint and overruled the objections
to the conduct of and result of the election.]
1In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's recom-
mendations that the objections to conduct affecting results of election in Case No. 12-RC-
1588 be overruled.
2In finding that the Respondent did not violate Section 8(a) (1) and (3) of the Act by
discharging Kennedy, Echeverria, and Hernandez , we rely upon the Trial Examiner's
resolutions of credibility issues.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended, 29 U.S.C., Section 151, et seq., herein called the Act.
Upholsterers' International Union of North America, AFL-CIO, Local 300, herein
sometimes called the Union or Local 300, on November 8, 1962, filed a charge
against Kane's Masterbuilt Furniture Co., herein sometimes called the Company or
the Respondent, and on November 13, filed a first amended charge followed by the
filing of a second amended charge on December 5, 1962. On December 31, 1962,
the General Counsel of the National Labor Relations Board, on behalf of the Board,
by the Regional Director for the Twelfth Region, issued a complaint and notice of
hearing, the complaint alleging that the Respondent during stated times has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act. The Respondent thereafter filed timely answer to the allegations
of the complaint, effectively denying the violations, as alleged. Case No.
12-CA-2504.
Prior to the issuance of the complaint herein, the Acting Regional Director for
the Twelfth Region, on November 29, 1962, entered a Decision and Direction of
Election in Case No. 12-RC-1588, after which an election was held on January 4,
1963. A secret ballot was conducted under the supervision and direction of the
Regional Director among certain employees of the Respondent in the bargaining
unit as set forth in the Decision and Direction of Election, to determine whether
these employees desired to be represented for collective-bargaining purposes by
Local 300. Out of an approximate number of 27 eligible voters, 7 valid votes were
cast in favor of the Union as such representative, and 15 valid votes were cast against
the "participating labor organization." Twenty-two valid votes were counted while
four challenged ballots were not counted since to count them would not affect the
results of the election.
On January 10, 1963, Local 300 filed objections to conduct of the election and to
conduct affecting results of the election. On February 11, 1963, the Regional Di-
rector issued his Supplemental Decision and Order consolidating cases for hearing
on objections Case No. 12-RC-1588. In his Decision and Order consolidating
these cases, the Regional Director ordered that certain of petitioner's objections
should be and were overruled and consolidated other objections as contained in
paragraphs 3, 4, 6, 7, 10, 11, and 12 for hearing with the complaint issued in Case No.
12-CA-2504. The Regional Director directed further that-
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the conclusion of such hearing, the Trial Examiner shall prepare his
report thereon, including resolution of credibility of witnesses, findings of fact,
with recommendations, as part of his Intermediate Report, a copy of which will
be served upon the parties.
On February 15, 1963, the Respondent, by counsel, filed its motion to strike
and/or clarify certain of the findings and conclusions set forth by the Regional
Director in his Supplemental Decision and Order of February 11. This motion
came on before Trial Examiner Arthur E. Reyman at the hearing, was renewed at
the outset thereof, and decision reserved until after the taking of testimony. This
motion is resolved by the findings and conclusions set forth below. The motion
included reference to motions theretofore made to produce and to strike the order
referring the motion to strike and to clarify, etc.'
Pursuant to notice, and on the issues as framed by the complaint and the answer
thereto in Case No. 12-CA-2504 and on the Supplemental Decision and Order con-
solidating cases for hearing on objections issued by the Regional Director on Febru-
ary 11, 1963, in Cases Nos. 12-RC-1588 and 12-CA-2504, these consolidated mat-
ters came on to be heard before me at Miami, Florida, on February 25, 1963. The
hearing was closed on March 5, 1963. At the hearing, the General Counsel and
the Respondent each was represented by counsel, and Local 300 by a designated
representative, and afforded opportunity to call, examine, and cross-examine witnesses
and to participate fully, to argue orally upon the record, and to submit proposed
findings or conclusions or both. A brief has been submitted on behalf of the Re-
spondent and proposed findings and conclusions submitted on behalf of the General
Counsel.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF KANE'S MASTERBUILT FURNITURE CO., THE RESPONDENT HEREIN
The Respondent is now, and has been at all times material herein, a Florida
corporation duly organized under and existing by virtue of the laws of the State
of Florida. During these times it has maintained its office and place of business
at 3275 NW. 65th Street, Miami, Florida, where it is engaged in the business of
furniture manufacturing. During the 12 months immediately preceding the issuance
of the complaint herein, Respondent, in the course and conduct of its business
operations , purchased goods and materials valued in excess of $50 ,000, which goods
and materials were transported to the Respondent directly from points located outside
the State of Florida.
The Respondent is, and has been at all material times hereto, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upholsterers' International Union of North America, Local 300, AFL-CIO, is
a labor organization within the meaning of Section 2 ( 5) of the Act.
III THE (ALLEGED) UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharges (Case No. 12-CA-2504)
1. The discharge of Francisco Hernandez on November 7, 1962
Hernandez first was employed by the Company through its foreman, Nathan
Konigsberg, whose primary duties were to supervise and run the production opera-
tion. Hernandez was employed in the spring department and was put to work
without much more than verbal instructions from Konigsberg concerning his
duties. Although Hernandez testified that as of November 6, 1962, he was the
'Under date of December 5, 1962, Local 300, by its duly designated representative,
Murray Gerstein , In Case No. 12-RC-1588, filed a formal request for waiver as follows:
The undersigned hereby requests the Regional Director to proceed with the above-
captioned representation case, notwithstanding the charges of unfair labor practices
filed in Case No. 12-CA-2504.
The undersigned waives any right or privilege to urge as a basis for objections to
any election , or to the results thereof , which may hereinafter be held in said repre-
sentation case, any interference or any of the acts alleged as unfair labor practices
In the said complaint ease which may have occurred prior to the filing of the petition.
KANE'S MASTERBUILT FURNITURE CO. 1155
most senior employee in the spring department , it appears that at the time of his
hire there were at least two other men employed in that department 2
Again, referring to the testimony of Hernandez, he said that on the afternoon
of November 5, 1962, in the presence of Enrique Benitez, he told Konigsberg that
he would not report for work the following day because he was required to report
for registration under what I assume to be selective service for military service.
Hernandez said further that Konigsberg said "O.K." and he did not work on the
following day because Konigsberg had given him the day off to register; that he
reported to work on November 7, punched in his timecard, and subsequently was
told by Konigsberg to "Take your tools and come in Friday to pick up your check."
He said he picked up his tools, did not punch the timecard when he left the
plant and subsequently a friend of his picked up the check for him.
Hernandez signed a card for application for union membership in October 1962,
and also passed out cards to other employees in the spring department and in the
carpenter shop. He said that among the employees, solicited by him for union card
signatures, was Francisco Echeverria, shortly after 12 o'clock noon on October 24,
1962. He said that the place where Echeverria signed the card was in a section set
apart in front of the sheeting department near a Coca-Cola machine and that while
Echeverria was signing the card Konigsberg entered the area, observed Echeverria
filling out the card, smiled, took a Coca-Cola from the machine and left the area.
Echeverria testified to the same effect. Hernandez and Echeverria both agreed that
Konigsberg observed Echeverria signing the card in the presence of Hernandez, and
that Konigsberg was in the area for a matter of 2 or 3 seconds while Echeverria
was signing the card. There is some little confusion in regard to the location of
the Coca-Cola machine and the boxes stacked near it which were utilized by Echever-
ria upon which to place the card as he affixed his signature to it.
Hernandez was, as were the other employees, an hourly rated employee on a 40-
hour week. As noted above he did not report for work on November 6 and was
discharged on November 7 for failure to report to work on the previous day.
According to Hernandez, Konigsberg, on November 7, called him over and
He said, why didn't you come to work the day before when you stayed
off from work, and I told him that the reason was that I went to register in
the Army.
According to the testimony of Nathan Konigsberg, the foreman, he was in the area
near the Coca-Cola machine almost every day during the lunch period, could have
seen the two men on the day mentioned , but had no knowledge of the signing of a
union card by Echeverria.3
Each side here seems to agree that there are certain periods of the year considered
to be seasonal, and that from about the Christmas season (from September to
December) there is a demand for experienced upholsterers or persons who properly
can perform the duties to which they are assigned in a furniture factory. According
to Konigsberg, the Company usually is short of experienced help and it is now and
has been company policy to grant increases from time to time, particularly during
these seasons, in order to keep available help from leaving to accept other em-
ployment from competitors in the same industry. Increases in wages were granted
from time to time, under company policy, during the busy seasons on an individual
basis without regard to seniority but only with respect to the ability or reliability
of the employee who requested or who was under consideration for an increase in
pay. These facts are remarked upon here because of their application, not only to
the case of Hernandez but also to the cases of Charles Kennedy and Francisco
2 There is no question in this case with respect to rights of employees under a depart-
mental or plantwide seniority system
'It should be noted here that Konigsberg has been employed in the furniture industry
for some 35 years, about 20 years in Germany and 15 years in the United States He is
an upholsterer and I have no doubt in my mind is an expert in that branch of the furni-
ture industry He is not acquainted with the Spanish language and in his supervision of
employees is frequently called upon to invoke the services of a Spanish -speaking-English-
speaking employee to make his orders or instructions known. There is a considerable dis-
cussion contained within the record during the course of the hearing concerning the
language barrier between the Spanish -speaking employees and Konigsberg, who generally
issued his instructions , hired or fired employees , and conducted his duties in the way of
communication in the English language . It should be noted too, that the record shows
that although most of the witnesses invoked the use of an interpreter , that some of them
understood enough English to absorb the orders or instructions given by Konigsberg in
connection with their duties.
717-672-64-vol. 143-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Echeverria, other alleged discriminatees under Section 8(a)(3) of the Act, discussed
below.
Konigsberg testified that Hernandez frequently was late for work and was ac-
customed to take days off without informing Konigsberg of his proposed absence
so that on September 25, 1962, Konigsberg warned Hernandez that if he was ever
out for a day "without a vacation" he would be discharged. Hernandez had been
absent from work on the preceding day. Konigsberg said that Hernandez was away
from work on November 6 and when he came in on November 7, Konigsberg asked
him where he had been and had he not remembered the warning previously given
to him to the effect that if he was going to be out without permission he would be
fired. Further, according to Konigsberg, Hernandez answered that he had some-
thing to do and that he had not understood the warning given to him before,
although Konigsberg had conveyed his message to Hernandez on September 25
through another Spanish-speaking employee. Konigsberg testified Wither that
Enrique Benitez, who worked with Hernandez in the spring department, was fired
for the same reason. Konigsberg dewed absolutely that Hernandez had told him
on November 5 that he intended to take November 6 off in order to register.
Louis Kane, the president of the Respondent, devotes little if any time to produc-
tion operations, leaving that side of the business to Konigsberg. His name does not
enter into the facts in these proceedings except that a letter was directed to him,
dated November 2, 1962, signed by Murray Gerstein, business representative of
Local 300, in which Gerstein advised Kane that Local 300 "represents the majority
of your workers for the purpose of collective bargaining on signed authorization
cards," and requested that Kane communicate with his office to arrange for a meeting
to discuss the question. Gerstein's letter was referred to counsel for the Respond-
ent who, on the date of November 7, 1962, advised Gerstein that
The Company doubts that your union represents a majority of employees in
an appropriate unit. Had you not filed a petition in Case No. 12-RC-1588,
the Company would have suggested that this matter be determined by a
secret ballot election conducted by the National Labor Relations Board, as
it feels this is the best procedure for determining your union , or any union's
majority status.
Hence, company knowledge of union activities may be inferred and taken as proven
on a showing contained within the record that Gerstein's letter of November 2, sent
by registered mail, was received by a representative of the Company on Novem-
ber 6, 1962.
In deciding whether or not Hernandez was fired because of his union activities,
I have carefully considered the question of company motive, if any, and most
carefully considered the testimony of Konigsberg and that of Hernandez. Two
things stand out. First, Hernandez professes to have told Konigsberg that he would
be absent for work on November 6 for a valid reason, which Konigsberg denies.
Second, it is alleged that Konigsberg was cognizant of the fact that Hernandez
was soliciting union membership, particularly in the instance when it is said Konigs-
berg saw Echeverria signing a union card near the Cola-Cola machine on the date
above mentioned. Therefore, on the question of credibility, there is the question as
to whether to believe Hernandez or Konigsberg. I shall resolve this question of
credibility below.
2. The discharge of Charles Kennedy on November 7, 1962
Kennedy, according to his uncontradicted testimony, was an experienced uphol-
sterer, having had some 15 to 20 years' experience before being engaged by Konigs-
berg to start to work on November 1, 1962. On that day after he had started
to work, he said he inquired about some of the work "being wrinkled at the top"
to which Konigsberg replied that was the way the cheap stiff covers were made.
He worked on the following day, a Friday, and also worked on Monday, Novem-
ber 5, on which day, he said, he recommended to Konigsberg three or four other
men, and that they had come over and talked to him about work; that Konigsberg
asked him which one he would recommend and he recommended one Bob Yates as
the best of the several men Konigsberg had talked to. As I interpret the testimony
of Kennedy, Konigsberg told him he did not want to have any trouble, to which
he replied he would not give him any trouble, "especially union trouble and that he
was a good upholsterer." Kennedy said further that he told Konigsberg that if
there was going to be any union trouble, that he had been the shop steward "at the
other shop" and that it would be coming from him. Kennedy had been employed
by the Floridian Furniture Company for some 15 years before a fire at that plant in
late October. He applied for work at the Respondent's plant in answer to an ad-
KANE'S MASTERBUILT FURNITURE CO . 1157
vertisement in a Miami newspaper . A following conversation ensued, according
to Kennedy, initiated by Konigsberg who, he said, told him that he wanted three
or four upholsterers and a springer boy. Kennedy testified he worked for 8 hours
on Monday, 3 hours on Tuesday, November 6, and one-half day on November 7.
He said that on the morning of November 7, he told Konigsberg that he was
going to take a half day off, that he had some business to take care of and would
take that evening and probably two days the following week to which he said
Konigsberg agreed. At noon, he said:
Well, as I started to leave Mr. Nathan [Konigsberg] told me that he wanted
to talk to me and so I went into the showroom and he told me that they were
going to have to let me go, that they had my check ready for me, that they
had a standard set, and he told me that I hadn't come up to it, so they were
going to pay me off and so he gave me the check and so I shook his hand,
thanked him and just walked out.
He said that Konigsberg displayed certain work not up to standard which had
been returned to the Company from Sears, Roebuck, a customer of the Respondent.
With respect to the testimony of Kennedy, and that of Konigsberg, there is little
variance. Konigsberg recalled that Kennedy reported to work after being inter-
viewed and was accepted as an experienced upholsterer. Konigsberg said that he
had told Kennedy that he was in need of experienced help and suggested to. Kennedy
that if the latter had any friends, they might file their applications for employment
with the Company. Konigsberg testified that after the few days that Kennedy had
worked, defects appeared in his performance and a number of pieces of furniture, in-
cluding sofas and chairs, had been returned by Sears, Roebuck and other customers
because of imperfections apparent upon the upholstery work. He said that on
November 7, he had a conversation with Kennedy on the subject and told him that
although he was supposed to be a "high-class man" he did not meet the standards of
the Company; that Kennedy then told him that he had to take the afternoon off
But if I pay him off, that is just fine and I said, O.K and I went into
the office and the bookkeeper made him out a check and he said goodby, shook
my hand and that's all there was.
Konigsberg categorically denied that he had spoken to Kennedy about not wanting
any union men and said that he never discussed such matters with employees.
So here, as in the case of Hernandez, it must be decided whether, on the basis of
facts as testified to by Kennedy, he was discharged because of his interest in the
Union. After listening to the testimony of Kennedy and Konigsberg, and observ-
ing their demeanor on the witness stand, I can find no basis in fact (other than the
coincidental demand of the Union for recognition) to find that Konigsberg had any
knowledge of Kennedy's interest in the Union. As in the case of Hernandez, I shall
resolve these questions as stated below. Except for the comment testified to by
Kennedy, there is nothing in the record to show that he was interested in the Union,
had signed an application card for membership in the Union, or that Konigsberg had
any knowledge of any union activity on Kennedy's part.
3 The discharge of Francisco Echeverria on November 9, 1962
Echeverria first was employed by the Respondent at its Miami plant in about the
middle of the month of October 1962, after an interview the previous day with
Konigsberg, the foreman. He was employed in the spring department. At the
time of his employment, Francisco Hernandez, Enrique Benitez, and Juan Rivas
were employed in the spring department.
He testified that on October 26, 1962, he signed a card for application for mem-
bership in Local 300, the card being furnished to him by Hernandez, the card being
signed during the lunch period. Here, the testimony of Echeverria coincides almost
completely with the testimony of Hernandez, related above: that it was lunch time,
he and Hernandez were in front of the Coca-Cola machine, that Echeverria was sign-
ing the card when Konigsberg approached, took a Coca-Cola from the machine
and continued on and entered into the showroom. Like Hernandez, Echeverria
said that Konigsberg was in the vicinity for maybe two or three seconds. There was
considerable testimony taken concerning the location of the machine, all going to
show whether or not it would have been possible for Konigsberg to read and ob-
serve the matter Echeverria was engaged in writing upon. There is no affirmative
testimony to the effect that Konigsberg knew or inquired as to what the two men
were doing; negatively, Konigsberg denies that he had any interest in what the
two men were doing. The record is silent as to whether Konigsberg had ever seen
a union application card.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Echeverria testified, rather vaguely, as to his experience, the implication intended
being to show that on the day he was discharged he was ready, able, willing, and
competent to do the work assigned to him; that he had helped train two other
employees in the spring department, and had never been reprimanded for poor work.
He said that in the afternoon at quitting time Konigsberg instructed him to follow
him into the showroom where Konigsberg told him to wait; that he did wait, that
Konigsberg came back with three checks, two for him and the other for Francisco
Hernandez and informed him that he needed experienced men. The testimony,
through the interpreter, was this:
Mr. Nathan [Konigsberg] told me that he needed men with experience . . .
that was the only reason.
In summary, then, Echeverria worked for the Respondent for about 3 weeks, in
the spring department. On cross-examination it appears that he did some work
on making buttons for upholstery. He conceded that he had made some mistakes
while working in the spring department, displayed to him by Konigsberg; and had
made only one mistake while working in the button department?
In regard to the employment and discharge of Echeverria, the testimony of
Konigsberg is succinct. He testified that Echeverria was hired as an apprentice.
The first step of an apprentice is a simple operation amounting to putting a nail into
a clip; but Echeverria did not perform this operation satisfactorily; that in the
spring department he made many mistakes which Konigsberg tried to explain to
him; that he put Echeverria to work in the packing department and later put him
on the making of buttons. According to Konigsberg:
Well, a button is a simpler or simplest operation. You take a piece of fabric
and you put it into the machine you press a pattern and it comes out a button.
You have to know to put the pattern facing the right side up and he always
used to turn them around one way or the other .... Yes, I told him and he
said I'll try again and I put him on buttons once before and made a mistake and
I took him off later, I didn't have any place for him, so I put him there again
and I said to him, I'll give you another chance and try and work the button
machine right . . . I recall, the last day I let him go and I put him on the
button machine that day and he spoiled a whole box of shells and I showed
them to him and then I said, I can't use you .. . That was on a Friday.
I recall I came over to him and gave him his check and I said, look, you're a
nice fellow but I can't use you here because I don't want to throw away the
company's money.
Konigsberg testified to the discharge of at least two other persons for the same
reason.
In regard to the episode testified to by Hernandez and Echeverria concerning the
signing of the union application card by the latter, Konigsberg said that customarily
during the lunch hour it was his custom to get a Coca-Cola, and that he did not
recall seeing the two men together or, if he did, it made no impression upon him.
In summary, on the preponderance of the evidence with respect to Hernandez,
Kennedy, and Echeverria, I cannot find that the General Counsel has sustained by
a preponderance of the evidence the allegations of the complaint in Case No.
12-CA-2504. The furthest I could go is to find that the Company had knowledge
of union activity, and there I must stop. There is not sufficient evidence, except
surmise and conjecture, to show that either one of these three men was discharged
because of union activity.
Were I called upon to decide questions of credibility of the testimony of Konigs-
berg, Hernandez, Kennedy, and Echeverria, I should say that Konigsberg was the
most reliable, in the sense that he was certain and positive in his statements of fact,
which to me indicates that the fumbling testimony of the other three witnesses did
not amount so much as to misstatements, but a failure to testify on the whole of
each instance discussed. In so saying, I am fully cognizant of the fact that they
were not able to express themselves fluently; at the same time, they were accorded
full opportunity to testify fully.
B. Objections to conduct of, and conduct affecting results of, the election of
January 4, 1963. Case No. 12-RC-1588
In his Supplemental Decision and Order consolidating cases for hearing, issued
February 11, 1962 (above mentioned in the part of this report entitled "Statement
'The records of the Company show that Echeverria was hired October 18, 1962, and
was discharged on November 9, 1962.
BANE' S 1IASTERBUILT FURNITURE CO. 1159
of the Case"), the Regional Director ordered that the objections set forth in para-
graphs 1, 2, 5, 8, 9, 13, 14, and 15 be overruled, and further ordered that testimony
be taken in respect to those paragraphs of the objections numbered 3, 4, 6, 7, 10,
11, and 12. Over objection of counsel for the Respondent, testimony was taken at
the hearing in respect of those objections contained in the paragraphs ordered by
the Regional Director to be passed upon by the Trial Examiner designated to hear
the case.
For convenience, those numbered objections to be decided herein are set forth,
as follows:
3. On November 7, 1962, the Employer discharged Francisco Hernandez
and Charles Kennedy and on November 9, 1962, the Employer discharged
Francisco Echeverria. All of these discharges occurred because of the Union
activities engaged in by these employees, and these acts were taken in an effort
to weaken the Union and to interfere with the free and untrammeled choice
of a bargaining agent by the other employees in the unit. These discharges
precipitated an air and aura of fear and coercion, in which climate it was
impossible to conduct an election free from the coercive effects of the Employer's
actions.
4. Charges were filed for these three discharges on December 5, 1962, with
the Regional Director of the Twelfth Region of the National Labor Relations
Board at its Miami Office.
6. Immediately after the filing of the Petition, the Employer granted pay raises
to all or many of the employees in the group. The granting of such pay raises
was not normal at this time of the year and was accomplished solely for the
purpose of inducing the employees to vote against the Union and was done
solely for the purpose of convincing the employees that they could receive no
further benefits from the Union and these pay raises would not have been
granted save and except for the filing of the Petition by the Union. The raises
were given to thwart the organizational efforts of the Union and did affect
the results of the election. The pay raises interfered with and coerced the
employees in the unit so that they could not exercise their free and untrammeled
choice in determining whether or not they wanted this Petitioner to represent
them as the collective bargaining agent.
7. On December 29, 1962, the supervisor, Nathan, approached an employee
in the unit and revealed that the Employer had requested his discharge because
of his Union activities. Further, the said Nathan informed this employee that
the Employer had authorized Nathan to grant him a 5¢ an hour increase to
satisfy him and said Nathan told the employee not to vote for the Union;
that it could not do any good for him.
* * * * * * *
10. On the day of the election, at about 2 o'clock, the said Nathan approached
employees in individual interviews with them and told them not to vote for
the Union; that those who voted for the Union would be fired. On the same day
the said Nathan conducted individual interviews at their stations and that such
interviews were coercive and restrained these employees in the exercise of their
rights. That such interviews were coercive and carried with them the threats
of discrimination and therefore the exercise of free choice in the election was
prevented.
11. On January 4, 1963, the Employer permitted two employees, who were
in the unit, and who were to vote that day, to go during working hours, from
person to person, visiting employees at their work stations and to exhort these
employees not to vote for the Union. That these two employees engaged in
these activities in full view and therefore with the implied consent and per-
mission of the supervisor Nathan and the said Nathan took no action to ques-
tion these employees as to what they were doing nor to prevent their acting
in this manner These actions taken with the apparent blessing and consent
of the Employer, during working hours, on the Employer's premises, coupled
with the fact that they took place on the day of the election and so close to
the election restrained the employees and were coercive and caused an aura
of fear and apprehension among these employees so that the election could not
be conducted in the climate of freedom required under the Act.
12. On the day of the election, Nathan approached employees at their work
benches and printed the word "no" on a piece of paper, for the purpose of
intimidating and coercing and restraining these employees.
The facts in connection with objections Nos. 3 and 4 have been discussed above.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The testimony of Dolores Jiminez
Dolores Jiminez testified that she was working for the Respondent on January 4,
1963; that she recalled an election being held on that date at 4 p.m., and that on
that day at about 11 o'clock or noon Konigsberg approached her, said something
to her she could not understand, took a piece of paper or a piece of cardboard
ordinarily used in the making of lunchboxes, made out a square on the paper, then a
cross, and then under that cross he put "no union." She said that Konigsberg then
left and she continued with her lunch. The witness testified further (on cross-
examination) that she started to work in about the month of April 1961; that her
starting rate of pay was $1.30 an hour; that during October of that year she received
a pay increase giving her $1.35 or $1.40 an hour, but whatever it was she received
one increase up to $1 . 35 and the following year a 5 -cent increase bringing her up
to $1.40 an hour.
2. The testimony of Abelardo Vazquez
Vazquez began working for the Respondent in December 1960 at a starting rate
of pay $1.10 per hour. He testified that in July 1961, he received a 5-cent-an-hour
increase, that in October 1961, he received a 10-cent-an-hour increase, and that in
October 1962, he received a 20-cent-an-hour increase, so that his rate of pay, as
of the time of this hearing was $1.35 an hour, he having received another 5-
cent-per-hour increase in December 1962. In connection with the 5-cent-an-hour
raise in December 1962, he testified as follows:
Nathan he came to my table and he said that he had been talking with
the lawyer of the company and Mr. Kane and taking a vote to see who was
for the union or not and that when he came to my name that he said that
Nathan said that I was for the union and Mr. Kane said how come he's been
here a long time, so Nathan said, he told Mr. Kane, that I wasn't happy with
my rate of pay with what I was making then and he said, well, why didn't you
fire him after the last election if you know he was for the union? Well, he
said, he was a good worker, that is what Nathan told him, what he told to
Mr. Kane, and then he said to Mr. Kane we will give him another nickel and
we will see what he will do this time with the election.
Vazquez said that this conversation was between him and Konigsberg only, that
it occurred 2 or 3 weeks before the election, and that he received the 5-cent-per-hour
increase the week after the election.
Vazquez testified to a conversation which he said occurred between him and
Konigsberg on January 3, 1963, wherein he said that Konigsberg had told him that
the Union could do nothing for them because
Mr. Kane had to agree first and that the Union was good 20 years ago
when we didn't have no overtime, no holiday pay, but now they can do nothing
for us, and maybe a raise once in a while, and that the union said there
would be only a $4 fee but that they will keep track of what I pay in assessments
and it will amount to a lot more than that. And again he said he could keep
his promise of making me an upholsterer and I could make more money at
that than I am now stuffing cushions and that the only thing I could get was
another nickel more in stuffing the cushion and no more and then he stated
that Chico and all the workers and I mean this was one of the upholsterers,
they were making about from $2.50 up .5
According to Vazquez, Konigsberg approached him at his worktable on Janu-
ary 4, 1963, and said:
Well, he came to me and he said that he had all the votes he needed and he
told me that he could keep his promise and make me an upholsterer just like
Milian Querietta and Louis Perez, that they came there not knowing anything
and in 1 year more would be an upholsterer, that he would keep his promise,
which the union couldn't because Mr. Kane had agreed to it before the union
could give me what it promised and Mr. Kane hated the union and all those
things and I don't recall anything any more.
Vazquez said he made no reply to Nathan's comment which, he said, took a half hour
or 20 minutes.6 Vazquez admittedly asked for the raise given him in October.
5 The employee referred to as Chico is named Raphael Gonzalez.
6It appears that on the basis of cross-examination of this witness, the alleged statement
of Konigsberg of January 4 actually occurred about December 14, although the witness in
KANE'S MASTERBUILT FURNITURE CO. 1161
It seems that in a written pretrial statement furnished to the investigator for the
Regional Office on January 18, 1963, the testimony of Vazquez, quoted above, in
respect to the January 3 and January 4 statements is at variance with his direct
testimony, quoted above. For example:
Q. (By Mr. SCHENERLEIN.) Isn't it true that you got a raise once in a while?
A. Yes I have had a few raises.
Q. Didn't he tell you that the union was good 20 years ago when there was
no overtime pay or no holidays and he said he was a member of the union in
New York and the union asked for only $4 a month dues but if you keep track
of what you pay in assessments it becomes a lot more than that?
A. Yes.
Q. And he said he could keep his promise but the union could not? He said
that Mr. Gerstein was riding around in a brand new car while we were working
in the factory?
A. Yes.
Q. Isn't that all he told you on January 3?
A. That is all I recall.
With further respect to the testimony of Vazquez as to the meeting of January 4,
his testimony on cross-examination is as follows:
Q. (By Mr. SCHENERLEIN.) Alright. Now, referring to January 4, the date
of the election, somewhere between 8 and 10 a.m. when Nathan came to you-
A. Yes.
Q. Did he tell you about Louis Perez and Millan Querietta, saying that they
came there not knowing nothing and in one more year they could say they
were upholsterers and that he could do the same for me but with the union
there, he couldn't because he would be dealing with the union and not us?
Is that what he told you?
A. That is exactly what he told me, yes.
Q. And that is all he told you on January 4, isn't it?
A. That is all I recall, yes.
3. The testimony of Karl Walters
Walters was employed on March 19, 1962, as an upholsterer-trimmer, at a start-
ing rate of pay of $1.50 an hour. At the time of this hearing, he said his pay was
$1.60 an hour. He had received, he said, one increase during the first week of
December 1962, that the raise was given to him without his asking for it on Decem-
ber 3. He said that Konigsberg told him at that time that he would speak to Mr.
Kane about raising his salary to $1.60 an hour, although his work was slow, but
that he showed promise and had done good work and was considered to be a good
worker.
He testified further to a conversation with Konigsberg held at his workbench on
January 4, 1963, the date of the election, in which he said:
He [Konigsberg] came to me at my place of work, at my work bench, and
said that he had been speaking to the rest of the fellows and that I was the only
one that he hadn't spoken to, and that he wasn't trying to influence my will, but
he considered that the Union had nothing to offer me and that was that they
were only trying to get into the shop to collect our dues and that Mr. Kane
would close the doors of the plant before he would sign a contract with the
Union.
He said the conversation or the statement of Konigsberg took about 10 minutes
and that he made no reply-"that is all that I can recall."
On cross-examination, on the basis of a pretrial statement given by the witness
to a Regional Office investigator it appeared that Walters stated ". . . that when
Mr. Nathan talked to me about a raise he did not mention anything about the Union
or about the election. He did not ask me if I had signed a union card. He did not
mention the union in any way."
4. The testimony of Miguel Cortizo
Counsel for the General Counsel called Miguel Cortizo to testify with respect
to a conversation between him and Raphael Gonzalez, an upholsterer and not a
a written statement to a Government representative during the course of the investigation
in this case had said the conversation took place on December 27.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of management, called Chico, on the premise that Konigsberg, allegedly
having spoken to Chico, had asked him to speak to other Spanish-speaking employ-
ees, and was conveying a message from Konigsberg to Cortizo. His testimony is
rejected, as was the following offer of proof made by counsel for the General
Counsel :
Mr. CALDWELL: If this man were premitted to testify, he would testify as
follows: Chico came to his work station while at work and said to him in
Spanish, I am here because Nathan told me to tell you that the owner had
been talking that morning with the lawyer and they had decided that if the
union won, that he had decided not to sign a contract with the union, and
that we would have to go on strike and he was not going to close the factory
but he would put new employees to work. He said that if the union lost every-
body would stay put. That this conversation occurred at approximately 11:30
on the day of the election, or 11:30 a.m. and that Chico was with him about
5 minutes and during the time Chico was in the carpentry department he was
speaking to other Spanish-speaking witnesses and Spanish-speaking employees
outside of his presence. However, that would be the testimony of this employee
with respect to this conversation and we make that offer.
Later (as shown immediately below) Gonzalez was called as a witness and I under-
took to reverse my rejection of his offer of proof until I had had an opportunity to
review the record in whole. I now affirm the rejection of that offer of proof.?
5. The testimony of Raphael Gonzalez
Raphael Gonzalez, called Chico, testified that on the day before, or thereabouts,
he requested Konigsberg to allow him to talk to the employees-"He said he didn't
care anyway what I was going to say or he didn't ask me what I was going to talk
about, you know." Konigsberg gave him his permission to speak to employees but
did not, according to Gonzalez, ask him what he wanted to talk about. There is
some confusion in the record as to whether or not Konigsberg knew that Gonzalez
intended to speak to employees on the question of the union situation as it existed
at the time, but certainly it is clear enough that Konigsberg did not inquire as to
what Chico intended to talk to the employees about or what he would say. General
-Counsel asserts that the mere fact that, assuming Konigsberg later came back and
asked whether Chico had talked to the employees, establishes a presumption that
the discussion alone created fear or coercion in the minds of the employees based
on what Gonzalez may or may not have told the employees he talked to 8
7 Miguel Cortizo testified, after Gonzalez had been on the witness stand, only that
Konigsberg had told him to tell all the Spanish-speaking people working there that Kane
and his attorney had decided that they would not sign a contract with the Union . that
if the Union won ". . then we will have to go on strike with the picket letter signs, and
that the factory was not going to close, and that if the Union lost everyone would stay in
their own place I don't remember anything more at this time " In this connection, I
should remark that the sum and substance of the testimony of Gonzalez and Cortizo
amounts only to the fact that Gonzalez spoke to Cortizo and other employees, not more
than three or four in number, concerning the desire of Konigsberg to have the employees
know what Mr. Kane had intended by his talk to the employees on the day before the
election
8 The General Counsel offered in evidence, and there has been received, a pretrial state-
ment made by Raphael Gonzalez dated January 28, 1963, given to a field examiner of the
National Labor Relations Board, which I quote:
My name is Rafael Gonzales. I live at 3031 Northwest 157 Terrace, Opa Locka,
Florida I am employed at Kane's Masterbuilt Furniture Company for about 3 years.
I am an upholsterer My supervisor is Mr Nathan, the foreman
I did see a Notice of Election printed in English posted by the check-in clock at
the Kane factory. This notice was posted several days before the election I do not
remember seeing the "Aviso de Election" posted there-it could have been there but
I did not pay any attention to it because I have been through election experience
before.
I received a raise in pay about two (2) months before Xmas. I had received a
raise every year since I'd been there. The raise happened every time I asked for
it-the first raise was quite voluntarily but I had to ask for the last two raises I re-
ceived. The last raise I received was 15 cents an hour. I asked Mr. Nathan for the
raise and he waited a few days-I guess he had to see the boss-I got the raise the
KANE'S MASTERBUILT FURNITURE CO. 1163
6. The testimony of Orlando Perez
The same infirmity exists in connection with the testimony of Perez as for that
of Cortizo in that it refers mostly to what Gonzalez ("Chico") told him in regard
to what Konigsberg is supposed to have told Gonzalez. This witness, through an
interpreter , testified:
He [Gonzalez ] came over to my bench and he told ine that according to
what the supervisor told him he came over to tell me that if the Union wins
possibly the owner , Mr. Kane, wouldn 't sign the contract with the Union, then
that the Company will stop working , that we will go on strike and that if
the Union wins the elections then we will have our jobs secure.
He said further that Konigsberg subsequently came over, talked to him in English,
of which he understood a little, and asked if Chico had talked to him-"he talked
to me both in Spanish and English and then the other part of the conversation I
could not understand."
7. Testimony of Nathan Konigsberg
Nathan Konigsberg, a credible witness, denied generally and in many particulars
the testimony that he engaged in an effort to convey to the employees of the Re-
spondent his interest in the result of the election. I consider myself bound by the
objections passed upon by the Regional Director in his Supplemental Decision and
Order of February 11, 1963. The letter dated December 28, 1962, signed by Louis
Kane, president, and directed to the employees, marked "Exhibit (B)" of the Sup-
plemental Decision and Order of the Regional Director, referred to in the testimony
of several of the witnesses mentioned above, has been passed upon by the Regional
Director and therefore, such letter having been found to be proper, it is beyond
the province of this Trial Examiner to overturn the decision of the Regional Di-
rector. In any event, I would not attempt to do so because I think the facts con-
tained within the whole record are strictly in accord with the finding of the Regional
Director. I believe that Konigsberg in a good-faith effort to attempt to explain
what Kane meant in his letter was within the bounds of propriety and had no in-
tention to interfere with the right or the feeling of any employee to vote as he
or she pleased in the election conducted on January 4, 1963.
In regard to alleged unlawful and unilateral wage increases granted by the Re-
spondent to its employees, I find that such increases, including those specifically
mentioned above, were in accordance with company policy, were individual merit
same week I asked for it. Nathan did not say anything to me about the Union when
I received the raise.
Mr Kane made a talk to all the employees in the showroom on the day before the
election. This began at break time at 2:30 p.m and we were there until some time
around 4 o'clock.
He explained that we had hospitalization , holidays, vacation and we did not have
to pay dues for that. In other words he was defending himself from the Union.
The next day after Mr. Kane's talk, Mr. Nathan asked me to tell some of the em-
ployees in Spanish what he wanted to say to them , he said to talk to the Cuban
employees and explain to them what they were going to get from the Union and'
what the Company had already given them and they didn't have to pay any money
to the Union for these things-he meant the holidays, vacations and hospitalization
Just Mr. Nathan told me to do this. I talked to about three employees I told them
that Nathan said if the Union won, the factory would continue working even if the
Union went on strike I did not tell them that the Company would hire new em-
ployees. Nathan told me to tell them that this was a free country and they could
vote for the Union if they wanted to and I told the employees that
I did not tell any employee that Mr Kane had talked with the lawyer and he had
decided not to sign a union contract and I did not tell any of them that if the Union
lost everyone would stay put
I believe I talked to the boy in the springer and two employees in the woodshop
The boy told me he was not interested-that he just wanted the work The other
two men told me they didn't care either
I did not tell anyone that the Company would fire anyone if the Union won the
election when Mr. Nathan needs someone to translate for him, such as when some-
one who speaks Spanish comes looking for a job, he asked me to translate for him
when he asked me to talk to the men about the election, he told me to talk to him,
because he could not make him understood to them as he does [not] speak Spanish.
very well. I did this as favor to Nathan because he asked me to do so
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increases or increases made for the sole purpose of keeping employees on the pay-
roll during crucial times, and had no connection whatsoever with the efforts of cer-
tain employees together with the Union to organize the employees into a bargain-
ing unit to be represented by Local 300 9
Concluding Findings
1. Without regard to the waiver filed in Case No. 12-RC-1588, I find that the
General Counsel has failed to show, by the preponderance of the evidence herein,
that Hernandez, Kennedy, and Echeverria, or anyone of them, was discharged in
violation of Section 8(a)(3) of the Act, and that there exists no resulting violation
of Section 8(a)(1). I find they were discharged for cause.
2. In Case No. 12-RC-1588, as noted above, I have taken testimony in respect
to those paragraphs of the objections of the conduct of and conduct affecting results
of the election of January 4, 1963, in regard to those paragraphs of the objections
numbered 3, 4, 6, 7, 10, 11, and 12. I have carefully noted the decision of the
Regional Director regarding paragraphs 1, 2, 5, 8, 9, 13, 14, and 15 with which, of
course, I can have no objection. My findings here in regard to the numbered ob-
jections upon which I have been called to take testimony and file my recommended
report are not inconsistent with the findings of the Regional Director. These objec-
tions, I find, are not well taken.
In whole part, the objections I have been called upon to consider are not sus-
tained by the evidence. I shall, therefore, recommend that the objections be over-
ruled. I do not believe that the burden of proof required to be submitted in sup-
port of such objections has been carried to the extent where I can sustain any part
or any one of them.
By this, I do not mean that Local 300 is precluded in the future from invoking,
at appropriate time and upon appropriate showing, the provisions of Section 9(c) of
the Act.
I find that the Respondent has not violated the provisions of Section 8(a)(3)
and 8 ( a)(1) of the Act as set forth in the complaint in Case 12-CA-2504,
and therefore the complaint should be dismissed in its entirety.
I find that the objections interposed to the conduct of and the result of the elec-
tion in Case No. 12-RC-1588, have not been sustained by the preponderance of
evidence herein, and said objections should be overruled in their entirety.
Upon the whole record of the case herein and upon the findings of fact set forth
above, I make the following:
CONCLUSIONS OF LAW
1. Kane's Masterbuilt Furniture Co., the Respondent in Case No. 12-CA-2504,
now, and has at all times material herein , been engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Upholsterers' International Union of North America, Local 300, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent above named has not and is not now engaged in unfair labor
practices in violation of Section 8(a) (1) and (3) of the Act, as alleged in the
complaint.
4. The objections concerning the conduct of and the result of the election con-
ducted by the Regional Director for the Twelfth Region in Case No. 12-RC-1588
are not supported by the evidence adduced, as set forth in section III, hereof, and
should be, and hereby are, overruled.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is recom-
mended that the complaint herein be dismissed in its entirety and that the objections
to conduct of and result of election in Case No. 12-RC-1588 be overruled and
dismissed
9 There is in evidence a detailed statement furnished by counsel for the Respondent
showing wage increases granted to employees of the Respondent at times during the
period or periods of time material hereto. I do not believe , and therefore cannot find,
that individual increases were offered to or paid to particular employees for the purpose
of discouraging their interest in the Union during the months of October , November, and
December 1962. I find that any raises in pay granted by the Employer , either at the
request of an employee, or voluntarily on the part of the Employer , were in accordance
with past established policy of the Company in regard to reward for merit , or with the
hope of holding a particular employee on the payroll of the Company.