Leonetti Furniture Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 15, 1961

134 N.L.R.B. 233 (N.L.R.B. 1961)

LEONETTI FURNITURE MANUFACTURING CO. 233
to require , as urged by the Charging Party, reimbursement of employee dues and
other payments made to Manchester Union by them.
Upon the basis of the foregoing findings of fact and upon the entire record in this
proceeding , I make the following:
CONCLUSIONS OF LAw
1. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW) AFL-CIO, and Manchester Union are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. The operations of Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By interfering with the administration of and rendering unlawful assistance
and support to the Manchester Union and by maintaining and enforcing an unlawful
agreement with it, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (2) of the Act.
4. By discriminating against its employees by maintaining and enforcing an
unlawful agreement with the Manchester Union, Respondent has engaged in and is
engaging in an unfair labor practice within the meaning of Section 8(a)'(3) of the
Act.
5. By the foregoing conduct only Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed them by Section 7
of the Act and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not violate Section 8 (a) (3) or, (1) of the Act by the discharge
of Rudolph Vacek or the layoff of Kenneth Waters.
[Recommendations omitted from publication.]
Fred Leonetti and Benjamin Sussman , Partners doing business.
as Leonetti Furniture Manufacturing Co. and Warehouse-
men's Union Local 206, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of, America.
Case No. 36-CA-1001. November 15, 1961
DECISION AND ORDER
On June 29, 1961, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. He also found that the Respondents had not
engaged in other unfair labor practices alleged in the complaint and
recommended that these allegations be dismissed. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report and a brief in
support thereof.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
i No exceptions were filed to the Trial Examiner 's recommended dismissal of allegations
in the complaint.
134 NLRB No. 28.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this-case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
ORDER - -
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2 (d) read : "Notify the Regional
Director for the Nineteenth Region, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith." 3
2 Respondent filed a request for permission to argue orally before the Board . This re-
quest is hereby denied since the record in this proceeding , including the exceptions and
brief, adequately present the issues and positions of the parties. -
Respondent also filed a motion to remand this proceeding to the Trial Examiner for the
purpose of taking additional testimony showing that the employees found to have been
unlawfully terminated were offered reinstatement , following the issuance of the Inter-
mediate Report , which they refused . The motion is hereby denied, as the matters now
sought to be included in the record are relevant only to the issue of compliance and may
properly be considered at the compliance stage of this proceeding See Crosby Chemicals,
inc., 121 NLRB 412, 418 , enforcement denied on other grounds, 274 F. 2d 72 (C.A. 5).
. 3In the notice attached to the Intermediate Report marked "Appendix A ," the words
"A Decision and Order " are hereby substituted for the words "The Recommendations of
a Trial Examiner." In the event that this Order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed and served , the General Counsel
of the National Labor Relations Board caused a complaint and notice of hearing
to be issued and served upon Fred Leonetti and Benjamin Sussman , Partners doing
business as Leonetti Furniture Manufacturing Co., designated as Respondent in
this report . Therein , the General Counsel alleged that the Respondent had engaged
in unfair labor practices affecting commerce within the meaning of Section 8(a)
(1) and (3) of the National Labor Relations Act, as amended , 61 Stat. 136, 73
Stat. 519. By its answer, duly filed , Respondent admitted the complaint's jurisdic-
tional allegations and certain factual allegations ; however, the commission of any
unfair labor practice was denied.
Pursuant to notice , a hearing with respect to the issues was held at Portland,
Oregon , before the duly designated Trial Examiner . The General Counsel and
Respondent were represented by counsel ; Warehousemen 's Union Local 206, Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America, designated as the Union in this report , also had legal representation.
Each of the parties was afforded a full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence pertinent to the issues. At the
close of the testimony , oral argument was heard. Subsequently , briefs prepared
in behalf of the General Counsel and Respondent were received . They have been
duly considered.
Upon the entire testimonial record in the case, the documentary evidence received,
and my observation of the witnesses , I make the following:
LEONETTI.'FURNITURE MANUFACTURING CO. 235
,FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a partnership , composed of Fred Leonetti and Benjamin Suss-
man; throughout the period through which this case is concerned these men were
doing business under the trade name and style of Leonetti Furniture Manufacturing
Company, with their principal office and manufacturing establishment located in
Portland, Oregon . There the Respondent enterprise has been engaged in the manu-
facture and sale of upholstered furniture . During the year prior to the complaint's
issuance, Respondent-in the course and conduct of its business operations-manu-
factured and sold at its Portland, Oregon, factory, finished products valued in excess
of $3,000 ,000; products valued in excess of $2,000,000 were shipped directly to
States of the United States other than the State of Oregon.
Upon the jurisdictional allegations embodied in the General Counsel's complaint,
,conceded to be accurate in the answer which Respondent filed, I find that the part-
nership is now, and at all times material has been , an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of the Act, as amended.
With due regard to the jurisdictional standards which the Board presently applies-
see Siemons Mailing Service 122 NLRB 81, and related cases-I find assertion of
the Board's jurisdiction in this case warranted and necessary to effectuate the statutory
objectives.
II. THE LABOR ORGANIZATION INVOLVED
Warehousemen's Union Local 206, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America , is a labor organization within
the meaning of Section 2(5) of the Act, as amended, which admits employees of
Respondent to membership.
III. UNFAIR LABOR PRACTICES
A. Issues
Pursuant to the General Counsel 's complaint , agency consideration must be di-
rected to certain developments at Respondent 's plant, subsequent to a display of
union interest by six packing and shipping department employees. Upon the record,
several issues have been posed . They may be summarized as follows:
(1) Did Respondent interfere with , restrain, and coerce its employees in the
exercise of rights statutorily guaranteed : '(a) by some interrogation of the packing
and shipping department employees with regard to their union membership , activi-
ties, and desires ; ( b) by some promises of economic benefit for employees who would
accept transfer from the designated department to the firm 's upholstery department;
'(c) by threats of economic reprisal against employees who become or remained
union members, or provided that organization with assistance or support; (d) by
relocation of the firm's packing operations , whereby the presumptively separate
identity of the packing and shipping department was destroyed ; ( e) by the layoff
of approximately 45 production employees , purportedly as part of a campaign to
thwart the efforts of packing and shipping department employees to seek union
representation?
(2) Did Respondent discriminate against employees in regard to their hire or
tenure of employment , or the terms or conditions of their employment : ( a) by the
purported layoff of three packing and shipping department employees for an indefi-
nite period; (b) by the partial layoff and constructive discharge of the firm's
truckdriver?
Respondent concedes the terminations noted, but denies their effectuation dis-
criminatorily for objectives statutorily proscribed. Conduct properly subject to
characterization as forbidden interference , restraint or coercion , addressed to part-
nership employees , was likewise denied,
B. Facts
1. Background
The Respondent enterprise was organized in August 1953, originally as a pro-
prietorship . Throughout the period with which this case is concerned , however, it
has functioned as a partnership composed of Fred Leonetti and Benjamin Sussman,
with the former designated as the firm's general manager. (Sussman, professionally
a certified public accountant , takes no active part in the daily conduct of the firm's
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business. Leonetti , I find , functions as the partnership 's final authority with respect
to general business policy matters and labor relations policy ; his routine duties,
particularly, encompass the management of partnership finances , sales, and some
purchases.) Since 1955 , Carl Pagnano has been the partnership 's general factory
manager ; regular production activity, together with most of the purchasing activity,
has been conducted subject to his supervision.
Within the general upholstered furniture field, Respondent manufactures sectional
sofas, davenports , davenos, sleepers , rockers, and several chair types. Before the
development of the situation presently cited for agency review, the firm employed
approximately 155 employees . These functioned within a two-story plant. Most
of the first floor appears to have been preempted by a woodworking department,
while an upholstery department filled the second floor. When the plant began op-
eration , finished furniture was routinely produced on second floor assembly lines;
such furniture was then packed for shipment at the end of each production line
whence it was delivered to a first-floor shipping department , via chute or conveyor
belt, for storage and final shipment . During the calendar years 1955 or 1956, new
warehouse facilities were constructed . Packing operations were then moved down-
stairs; normally, they were performed within a designated floor area , adjacent to
the lower end of the firm's conveyor belt. Within this area , padding would be affixed
to various furniture items whenever necessary, paper bag covers would be put in
place, and furniture would be crated or boxed in precut cartons of heavy cardboard.
Thus enclosed , various items produced would be moved to designated first-floor
storage areas pending their ultimate shipment by partnership truck, customer 's truck,
or rail . Loading areas for such truck and rail shipments were located nearby the
warehouse area . (Under the new arrangement , sectional sofas, davenports, and
chairs were packed on the first floor; davenos, however , were still packed on the
second floor , at the end of the daveno production line. When boxed , davenos were
dispatched to the first floor via the conveyor belt for storage and shipment.) With
plant facilities thus rearranged , the cushion stuffing department-devoted to the
preparation of cushions for sectionals and davenports-also became a first floor
department.
Throughout the period with which this case is concerned , the partnership's packing
and shipping department , together with its cushion stuffing room , functioned under
the supervision of Glenn Holem , designated officially as Respondent 's shipping clerk
(Questioned by the General Counsel, Holem first characterized himself as the firm's
"shipping clerk and shipping supervisor ," then repented the latter designation.
Respondent contends that he was nothing more than a "straw" boss. Issues thus
posed with respect to-his status-together with the partnership 's responsibility for
his conduct-will be discussed elsewhere in this report. ) During March 1960, there
were seven employees , approximately , subject to Holem 's direction . Requested to
designate them, Holem ticked off the names of Victor Lazaroff, Nick Shubin, Paul
Wauer , Gilbert Watson . Theodore Ballis, and Robert Bryan ; subsequently , he added
John McKay 's name. Partnership records establish that McKay resigned March 11,
1960, under circumstances not presented for review in this case.
2. Union activity -
For some time-during a period not specified for the record-various packing
and shipping department employees appear to have resented the manner displayed
by Shipping Clerk Holem in the discharge of his departmental responsibilities.
Testimony proffered for the present record , which Holem has not clearly denied,
establishes his reliance upon frequent abjurations directed to department employees,
calling upon them to work faster; these were generally rough in tone, peremptory,
and liberally spiced with profanity . Various employees appear to have been ag-
grieved , besides, over wage rates which they considered low, and wintry chills which
permeated the warehouse area when some loading dock doors were open.
Late in the afternoon of March 7 , 1960, six of the packing and shipping depart-
ment employees called upon Business Representative Lund of the Union, at the
Teamsters hall. (Evidence establishes that the group included Shubin , Ballis, and
Wauer ; while the record will not permit any precise designation of every employee
present , enumeration of their complete roster does not appear to be necessary.)
Questioned as to the reason for their appearance , they said that they had been
referred to the Union by Homer Johnson , Respondent 's truckdriver . Lund 's credible
testimony establishes that they discussed wages, hours , and working conditions at
Respondent 's plant, and requested union representation . They were advised to
consider their request further, and to return within a few days if they still felt the
same way. Late on the afternoon of March 9, six of Respondent 's employees re-
LEONETTI FURNITURE MANUFACTURING CO. 237
turned to advise Lund they desired union affiliation . ( One of the six appears to
have been an employee not previously present; the group again included Shubin,
Ballis, and Wauer , however.) Each of the men executed a union membership
application, together with a card designating the Union as his exclusive representa-
tive for bargaining purposes . Pursuant to Lund's suggestion-since the cards were
executed after regular business hours-they were dated March 10, 1960; the business
representative promised to file a petition with the Board for the Union's certification
as the representative of the employees on the following day.
Early on March 10, 1960, Lund filed a petition for the Union's certification as the
representative of Respondent's shipping and receiving department employees. The
petition was docketed as Case No. 36-RC-1540 (not published in NLRB volumes);
notice with respect to its filing was dispatched to Respondent later that day.
3. Layoffs -
During the late afternoon of March 10, Holem called his department's employees
into conference. Primarily, he was apparently concerned over their failure to per-
form assigned tasks expeditiously, pursuant to his direction. With reference to
frequent accumulations of furniture awaiting packing, both within the packing area
and stacked up the conveyor belt, Holem questioned the employees about their
presumptive lack of desire to keep up with their work. While the discussion was
in progress, Plant Manager Pagnano joined the group . He pursued the shipping
clerk's query. One or more employees made some reference to Holem's brusque
and profane manners; another, I find, mentioned dissatisfaction with the Respondent's
wage scale . Pagnano, however, dismissed the last-noted complaint ; he advised the
employees, essentially, that rates would not be raised, and that dissatisfied workers
should consider themselves free to resign. Upon this note, the gathering disbanded.
Later that afternoon-about 2:30 or 3 p.m., specifically-Holem was advised that
employees within his department had sought union affiliation. The shipping clerk
transmitted this intelligence to Leonetti and his plant manager-then in conference-
immediately. Shortly thereafter, credible testimony reveals, he accosted Shubin
with a query as to what the latter expected to gain by union membership. Shubin
first pretended ignorance with respect to the matter, then advised Holem that no
one had joined any labor organization; the shipping clerk observed that Shubin had
already told him, then ended the conversation. Later that afternoon, I find, Holem
commented to Shubin that "You're smiling now; just wait for three weeks, you won't
be smiling then." Testimony to this effect, given by Shubin after Holem's testimony
as the General Counsel's witness was complete, was never contradicted; Respondent
made no effort to recall Holem during the presentation of the defense for rebuttal
purposes.
When the day's work ended, Pagnano invited Bryan, Watson, and Ballis to confer
in his office. The men offered to punch out before accepting this invitation, but
Pagnano instructed them to refrain, saying that the time spent would be "on" him.
The conference lasted approximately 2 hours. Questioned with respect to Pagnano's
opening remarks, Watson and Ballis testified credibly that the plant manager had
asked why Holem was disliked by department employees, promising that if anything
could be done to improve matters he would do it. Pagnano was advised that the
men did not dislike Holem personally, but that his behavior as a supervisor was
resented. The plant manager reported his awareness of a rumor that the men had
sought union affiliation; credible testimony establishes that he asked the "fellows"
how far they were "in" with respect to union representation. He was advised that
the men had already signed union membership applications. When Pagnano asked
why the men had taken such action, the following conversation, I find, ensued:
We told him that we had been pushed and that we figured the union could
help us. . . . Well, he said that we should have come to him, that he didn't
think it was the thing to do, that we was hurting the company, not getting even
with Mr. Holem. . . . I don't believe he said how we were hurting the
company.
When pressed to explain how Respondent would be hurt by the men's action, Pagnano
actually demurred; credible evidence establishes that he replied with a reference to
his own previous experience as a union -member and officer, asserting that it would
not be appropriate for him to explain his comment. ,
Further detail with respect to the conference, despite its length, is scanty. When
it concluded, everyone left the plant together. Pagnano's final remarks appear to
have been made while the men were assembled outside, near his car; concurrently
with some reference to the Union herein, Pagnano repeated his comment that he
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not advise employees to refrain from union affiliation , but that they would be
"s s of bs" if they did join . When taxed with the observation that such
a comment "wouldn't be too good" for him to make, Pagnano replied that he was
outside Respondent 's plant and could say whatever he wanted to say.
On the morning of March 11-the date on which Respondent received notice of
the Union 's representation petition-Pagnano asked Bryan, then engaged in the
preparation of a boxcar to load furniture , whether the men were "going to go,
through" with union affiliation , or whether they had decided to drop the idea. He
was advised that the men were "going to stick" with the labor organization . Credible
testimony establishes that Pagnano spent quite a bit of time in the packing and
shipping department that morning. Sometime during these hours, he approached
Watson and Ballis with a suggestion . Watson 's testimony with respect to the incident,
which I credit , reads as follows:
. Mr. Ballis and I was working with some paper by a table, and he walked
by and he stopped , and he came back and he says, "I just had a brainstorm,"
is the way he put it , "If you fellows weren't satisfied with the money ," he says,
"I can put you upstairs packing davenos that pays a few cents an hour more
and your insurance is paid . If you'd like to go up, I'd like to know ." We told
him we'd like to think it over, and he says, "Well , I have to know now." So,
I told him, "No , I'd just as soon stay right here."
Ballis, who corroborated Watson 's testimony, expressed the same view . Pagnano
made no further comment.
When the men came to work on Monday , March 14, they were confronted with,
a substantial accumulation of furniture to be packed. Very early that morning,
Holem instructed all of the departmental employees to pack; this represented a
departure from normal practice , pursuant to which the crew members usually
performed diversified tasks. Pagnano came to visit the department shortly after
the day's work began , and remained there for the entire morning observing the
employees work. Credible evidence establishes that he provided them with frequent
verbal encouragement . For the record , Shubin described the situation as follows:
He just stood there, and he'd spit in his hands and he'd say, "I'm helping you."
He says, "Come on" and we caught up.
When noon time arrived , Pagnano informed Shubin , Ballis, and Wauer that the-
department had caught up with its work, and that they would be laid off until more
work became available. ( The plant manager appears to have given this layoff
notice to Shubin and Ballis, initially ; Holem appears to have been instructed to give
a similar notice to Wauer, temporarily absent from the department . Credible evi-
dence establishes , however, that Holem merely requested Wauer to report to
Pagnano, and that his layoff notice was actually received from the plant manager.
Wauer did testify that Holem accosted him when he returned to the department after
a trip to another part of the plant with word that he, Shubin , and Ballis would be
"sent home until further notice" subject to recall whenever Respondent wanted him•
back. Pagnano and Holem testified with equal certainty , however , that Wauer had
been notified of his layoff by Respondent 's plant manager . My observations with,
respect to the demeanor of the witnesses provide no clear basis for resolving this.
conflict . Upon the entire record, however, I consider a conclusion justifiable that
Holem would probably have sought to avoid responsibility for these layoffs. His.
testimony that he referred Wauer to Pagnano, therefore , has been accepted.)
Shortly thereafter-specifically on the 16th of the month-unfair labor practice
charges were filed against Respondent in the Union's behalf. Pursuant to established,
agency practice , notice with respect to the charges filed was dispatched to Respondent,
dated the next day . On that date, March 17, 1960 , Shubin, Ballis, and Wauer were
recalled for one-half day's work. Upon its completion , however, they were laid off
indefinitely.
Respondent received notice of the Union 's unfair labor practice charge-dealing
specifically with layoffs within the packing and shipping department , allegedly calcu-
lated to defeat employee efforts to organize-on the 18th of the month.
4. The mass layoff
During this period-between March 10 and 14 , specifically-Respondent initiated
a plan to relocate its second -floor upholstery department production lines. Ostensi-
bly, the firm's decision to redesign these production facilities was motivated by man-
agement's desire to provide second -floor space within which all furniture produced
could be packed, before its transmission to the first floor storage and shipment area
LEONETTI FURNITURE MANUFACTURING CO. 239
by the conveyor belt. (Before the partnership decided to initiate such a plan, there
were four upholstery department production lines. Substantially , each of these lines
comprised a series of work tables , linked by roller conveyor track and flanked by piles
of material and supplies required in furniture production . Each line ended near the
upper end of the conveyor belt utilized to carry finished furniture below for packing,
storage, and shipment . There was a separate daveno production line, somewhat
apart, whereon davenos were produced and packed; when packed , these had to be
moved some distance , not specified in the record , to the conveyor belt's upper end.
Respondent 's plan for remodeling the department envisaged relocation of the four
production lines to make available some 20 feet of second-floor space immediately
next to the conveyor belt's upper terminus , for use as a packing area. Simultaneous-
ly, plans were made to relocate the daveno line, also, in order to channel its products
directly to the conveyor belt noted . The plans, likewise, envisaged relocation of some
compressors and fixed overhead air lines, designed to provide compressed air for the
operation of staple guns used in the productive process. Finally , Respondent planned
to install additional roller conveyor track wherever it might be needed. ) The part-
nership 's regular maintenance man was instructed to begin preliminary work on the
relocation program. Available evidence , however, will not support any factual
conclusions with respect to his precise work program or its progress.
Meanwhile , Respondent initiated a layoff program for its production staff. On
Wednesday , March 16, one employee was laid off. The next day there were 21
terminations ; records of the Respondent enterprise establish that 20 of these termina-
tions involved layoff, while 1 involved resignation . On Friday , March 18, 12 addi-
tional employees were laid off; elsewhere in this report reference has been made to
this date as the date on which Respondent was notified of the present unfair labor
practice charges.
On the same date, I find, Respondent prepared , for mail distribution , a document
designated as an "Employees ' Information Circular" mimeographed on partnership
letterhead stationery . (Testimony proffered for the Respondent enterprise reflects
its contention that the document was both dictated and transcribed prior to March
18; that date was designated merely as the date on which it was mailed. Upon the
entire record-some of it specifically noted below-considered with due regard to
customary business practices , such testimony cannot really be considered worthy of
acceptance ; taken as a whole, the record evidence has led me to conclude that the
circular's March 18 date reflects the date of its composition and preparation.) The
document opened with a general reference to managerial problems, coupled with a
declaration that the firm felt itself obligated to inform employees from "time to time"
with respect thereto . Recipients of the circular were reminded that Respondent's
plant was not modern; crowded conditions therein were characterized as sufficient
to reduce plant efficiency . Reference was made to competitors of the Respondent
enterprise with modern plants and more efficient machinery ; these competitors were
described as "continually making it more difficult " for the partnership to compete.
The circular, then, continued as follows:
Some of you have occasionally given management ideas as to the improvement
of our operation , and we of management are continually studying the production
methods in order to improve efficiency and 'make your work as pleasant as
possible. For sometime , the congestion in our shipping and receiving depart-
ment has been increasing , and several months ago we began working on a re-
organization that might improve this situation . In many plants , the packing of
furniture is done at the end of the assembly line, and we have been making
plans to move the packers from the receiving and delivery room (which is also
the store room ) to the second floor, so that the packing might be done at the
end of the assembly line. When the manufactured articles leave the assembly
line, they will be fully ready for shipment , and the present store room can be
used exclusively for storage , receiving and shipping.
This reorganization requires some changes in our assembly line from the
second floor, and these changes will be made without delay . The packers will
then be moved to the second floor, and most of the work of packing will be
completed there.
Respondent conceded that the changes described would find all of its employees "in-
convenienced" to some extent ; however, confidence was expressed that the employees
would cooperate as they had in the past, to facilitate accomplishment of the change-
over without production loss. In behalf of the firm, an opinion was expressed that
the new setup would improve efficiency without being "burdensome" for employees;
representations were also made that Respondent considered it imperative to explore
every idea for the improvement of plant efficiency . With a reference to the pendency
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of further plans for the construction of a modern plant , calculated to make everyone's
work more pleasant , the circular 's message was closed.
Available evidence establishes , beyond question, that these circulars were com-
pleted for March 18 dispatch by metered mail. However , the postmarked envelope
proffered for the record shows that a circular copy-addressed to Theodore Ballis
despite his prior separation from Respondent 's employ-cleared through the Portland
Post Office at 11 : 30 a.m . on the 19th of the month . Inference would certainly seem
to be warranted that the circular , despite its preparation for March 18 dispatch, was
deposited in the mails so late that its collection from the depository by post office
employees on that date was precluded. I so find.
On Thursday, March 24, pursuant to Respondent's layoff program , eight employees
were terminated ; one of these resigned.
Altogether, within the 9-day period from March 16 to 24, 41 employees were sepa-
rated . Respondent 's employee complement was thereby reduced by approximately
27 percent. (During the month which followed, seven additional employees were
terminated; three were laid off and four resigned. For present purposes, however,
these terminations may be disregarded . The General Counsel has raised an issue
with respect to the propriety of the March 17, 18, and 24 layoffs only.) By March
24, 1960, one of Respondent's four upholstery department production lines, newly
relocated pursuant to the planned program previously noted, was substantially-
perhaps completely-closed down. Testimony to this effect, proffered in Respond-
ent's behalf , stands in the record without contradiction.
On March 24, Respondent's packing operation was finally transferred to the
plant's second floor. Credible testimony establishes that one low table, suitable
for use by packers, was constructed within the 20-foot square area newly cleared for
this purpose, while additional roller conveyor trackage was installed to facilitate the
movement of packaged furniture from the table to the head of the conveyor belt.
Most of this work, I find, was done during the night prior to the transfer; completion
appears to have been effectuated early on the transfer morning. During the first
hours of March 24, Holem was instructed to complete the packing operation trans-
fer. Effectuation of this order, however, appears to have involved nothing more
than the transfer of some hand tools and necessary packing supplies; no more than
one-half hour was required to complete the move. Employees Bryan and Watson
were instructed to report to Foreman Cook of the upholstery department for assign-
ment as packers. (With respect to Bryan, such a transfer apparently involved sub-
stantial physical inconvenience . Previously , second-floor employment had sub-
jected him to some sort of asthmatic reaction , presumably caused by the lint and
dust normally airborne there . However , despite a reference to Bryan's subsequent
complaint with respect to the transfer-which ultimately led to his resignation-the
General Counsel has made no contention that Respondent 's action constituted a
constructive discharge .) Since the transfers noted , shipping department functions -
have been handled by Holem , with the assistant of one additional full-time employee,
and part-time help provided by the partnership's truckdriver, under circumstances to
be noted elsewhere in this report. ,
5. Johnson 's layoff
Prior to March 24, the firm employed one truckdriver primarily for local furni-
ture delivery. After his employment by Respondent in June 1956, Homer Johnson
had functioned in that capacity. (Johnson-the Respondent partnership's only
unionized employee-had been referred by the business agent of Local Union No.
162, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America; presumably some representative of the firm had requested that
a man be referred for driver employment . Johnson 's testimony establishes that his
terms of employment were governed by an agreement between the Respondent
enterprise and Local Union No. 162, General Teamsters, Auto Truck Drivers and
Helpers; record evidence reveals the existence of such an agreement with an Octo-
ber, 1958, execution date. Pursuant to the agreement noted, Respondent was com-
mitted to recognize the local union designated as the sole collective-bargaining agent
of workers employed by the firm in job classifications covered; these classifications
included wholesale furniture drivers, retail furniture drivers, helpers and extra men.
Johnson's classification, while in Respondent's employ, has not been reported for
the record; presumably, he would have merited classification as a wholesale furniture
driver.)
Routinely, however-throughout the first portion of his period of employment-
Johnson frequently performed miscellaneous work within the packing and shipping
department, mostly as a packer, whenever Respondent's regular truck delivery re-
quirements were not numerous enough to keep him busy. So far as the record shows,
LEONETTI FURNITURE MANUFACTURING CO. 241
he did not protest such packing and shipping department assignments. (Nothing in
the currently effective trade agreement between the Respondent partnership and
Local Union No. 162, General Teamsters, Auto Truck Drivers and Chauffeurs, ap-
pears to proscribe work assignments for wholesale furniture drivers extrinsic to their
regular functions within the job classification. One contractual provision clearly
permits temporary employee reassignments to some different class of work, subject
to their employer's option; by implication, the partnership's right to assign Johnson to
packing and shipping department tasks would seem to be clear.) Some time before
March 1960, however, Johnson was advised by some union representative that he was
under no contractual obligation to accept work assignments from Respondent as a
packer. Thereafter, Johnson reported, under cross-examination, that:
I told Carl I had talked to the Union and I didn't have to make those conces-
sions to do other work, and I told him that, if he didn't have truck driving work
there for me, that he could lay me off . . . I only told him that twice since
I've been there.
Consistently, Johnson subsequently refused to work as a packer; record evidence sug-
gests, rather, that he limited himself to truckloading and the effectuation of deliveries.
During the period with which we are concerned-presumably on Monday,
March 21, specifically-Pagnano finally advised Johnson that Respondent had no
further work for him, and that he would have to accept layoff. Respondent's plant
manager declared, however, that the truckdriver would be recalled when work be-
came available. Johnson, I find, accepted his layoff without comment. On Thurs-
day, March 24, however, he resigned. Testimonially, Johnson explained his action
as follows:
Yes, I went back and got my check and quit . I told [Mr. Pagnano] that I
hadn't been home for many years and I come back and get my money and I
was going to go back East there, and then I didn't go back East later, for I
figured being out of a job right then I couldn't afford it, so I did not go back,
but I hold him that I was, figureg on at that time going back. . No, there
was no reason [for terminating myself] that I could think of right now. I was
laid off, and I thought that I couldn't work for-if work would go down to three
or-two or three days a week, I couldn't live on two or three days a week
working, you know, or a couple days, and when you started paying a man off,
you always think the job is going down, it will go down and you won't have
enough work to make you a living.
Within a short time after Johnson's resignation, nevertheless, Respondent employed
Arnold Taylor as a wholesale furniture driver, pursuant to union contract. He was
thus employed when this case was heard. Available evidence establishes, without
contradiction, that Taylor presently makes local wholesale furniture deliveries with-
in the Portland area, plus occasional long-haul deliveries in Puget Sound territory.
When requested, also, he works in Respondent's warehouse; his performance of
warehouse tasks has not stimulated any protests from his union representatives.
C. Analysis and Conclusions
1. Terminations within the packing and shipping department
Court-approved decisional doctrine establishes, clearly, that the curtailment or
discontinuance of some portion of a business enterprise, coupled with the layoff or
dismissal of some or all of the persons therein employed, constitutes no less an un-
fair labor practice than the peremptory discharge of particular workers, whenever
such action by a respondent employer is found to have been prompted by antiunion
motives. See, e.g., Williams Motor Company v. N L.R.B., 128 F. 2d 960, 964 (C.A.
8); N.L.R.B. v. Bank of America, etc., 130 F. 2d 624, 629 (C.A. 9), cert. denied
318 U.S. 791; N.L.R.B. v. Brown-Dunkin Company, Inc., 287 F. 2d 17 (C.A. 10).
With respect to the layoffs of Shubin, Ballis, and Wauer, therefore, the bedrock
question presented for determination would seem to be whether preponderant evi-
dence has been produced to support the General Counsel's contention that Pag-
nano's conduct represented a reprisal for the reported Teamster affiliation of the
firm's packing and shipping department employees.
Our consideration of this question must necessarily begin with recognition that a
purely factual question is involved; that, in connection with its resolution, this
Agency may give consideration to circumstantial evidence as well as to evidence
which is direct; and that direct evidence of an employer's purpose to violate the
statute is rarely obtainable Hartsell Mills Company v. N.L.R.B., 111 F. 2d 291,
630849-62-vol. 134-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
293 (C.A. 4). Whenever motivation becomes decisive, therefore, permissible in-
ferences from established facts will normally provide prime justification for the
Board's ultimate determination.
Considered in their chronological sequence , events precedent to the final layoff of
Shubin, Ballis, and Wauer, together with the developments subsequent to their termi-
nation, provide substantial support for the General Counsel's contention that the
workers designated were laid off and terminated to forestall possible union repre-
sentation of the packing and shipping department employees. Essentially, the record
establishes that:
(1) Late on March 9, 1960, six out of seven employees subject to Shipping Clerk
Holem's supervision sought union representation.
(2) During the afternoon of the next day, Holem was apprised of this develop-
ment, and forthwith transmitted the information received to his superiors. There-
after, he queried Shubin with respect to the advantages departmental employees
believed they would gain by union membership; finally, despite his protestations of
ignorance with respect to the matter, Shubin was confronted with the threat that
he would not be "smiling" with respect to the situation within 3 weeks.
(3) When work ended March 10, Respondent's plant manager-despite his pre-
vious participation in some departmental discussion reflective of employee gnev-
ances-mvited three packing and shipping department employees to a further confer-
ence on the subject, for which they received compensation. Reporting his awareness
of a rumor that the men had sought union affiliation, Pagnano queried the em-
ployees with respect to the extent of their commitment; when apprised that the
departmental staff had already signed union membership applications, the plant
manager pursued the subject with a question as to their reason for such conduct.
Their decision was deprecated, despite Pagnano's comment that any further observa-
tions by him would not be appropriate. When the conference ended, Respondent's
plant manager clearly indicated his personal resentment of the decision by the
departmental workers to seek union representation.
(4) On March 11-when notice of the Union's representation petition, previously
dispatched by the Board's Regional Office, was received by the Respondent part-
nership-Pagnano queried one departmental employee with respect to the men's
intention to retain their union affiliation. Apprised of their intention to "stick"
with the labor organization, he suggested that two employees might be willing to
accept a transfer to work as daveno packers, within another department, with 'a
higher rate of pay and free insurance; this, despite his clear-cut declaration, previ-
ously, that wage rates within the packing and shipping department proper would not
be raised, and that dissatisfied workers were free to resign.
(5) During the noon hour on Monday, March 14, 1960, Shubin, Ballis, and
Wauer were notified of their temporary layoff; this, without prior notice and without
regard to the fact that such layoff action was being taken in the midst of Respondent's
regular pay period.
(6) Three days later, each of the employees designated was recalled for one-half
day's work. Upon its completion they were terminated, simultaneously with the
termination of 17 production department employees.
(7) During this period, Respondent completed plans for the relocation of its
production facilities, and began preliminary work directed to that end, supposedly
because of a desire to provide more second-floor space within which all of the furni-
ture produced by the firm could be packed; this, without any prior indication to
packing and shipping department employees that such action was contemplated,
and without any suggestion that changes of work station effectuated pursuant to the
relocation might dispose of their known grievances.
(8) On March 18-when notified of the Union's charge that the layoffs previ-
ously made within the packing and shipping department reflected unfair labor
practices-Respondent forthwith prepared a notice to its employees which apprised
them, for the first time, regarding their employer's intention to effectuate a relocation
of productive facilities, and to transfer furniture packing operations from the first-
floor receiving and delivery room to the end of the second-floor assembly lines.
Obviously, mere proof that the disputed layoffs-whether considered temporary
or final-followed closely upon Respondent's acquisition of knowledge with respect
to the demonstrated union interest of the firm's packing and shipping department em-
ployees, considered in isolation , will not support a determination that such knowledge
motivated conduct which the partnership management has acknowledged. When
some employer's motivation is crucial, mere sophistry-post hoc ergo propter hoc-
will rarely justify necessary inferences. Here, however, evidence has been proffered
which clearly warrents characterization as sufficient prima facie to support a determi-
nation with respect to the presence of proscribed motives. Specifically, note should
LEONETTI FURNITURE MANUFACTURING CO. 243
be taken of Holem 's promptly revealed concern over the reported union member-
ship of his packing and shipping department subordinates, coupled with his subse-
quent provocative declaration-after a report to Leonetti and Pagnano about their
action-that the men would find themselves less pleasantly situated within 3 weeks.
Concurrently, Pagnano demonstrated parallel concern, coupled with a resentful per-
sonal reaction to the possible unionization of departmental employees. With the
record in this posture, substantial justification exists for the General Counsel's con-
tention that Pagnano's primary willingness to transfer some of the packing and
shipping department workers to similar work elsewhere, together with his final
decision to make departmental layoffs, derived from a desire to counteract
unionization.
Once the General Counsel has established, through circumstantial evidence, that
discharges or layoffs prima facia reflect a statutory violation, respondents must-
should they wish to prevail-assume the burden of producing evidence sufficient
to explain the discharges as legitimately motivated. J. M. Lassing, et. al., d/b/a
Consumers Gasoline Stations, 126 NLRB 1041, 1042, footnote 6; Idaho Concrete
Products Co., 123 NLRB 1649, 1663; cf. National Van Lines, 123 NLRB 1272,
1274. Consideration must turn, therefore, to the merits of the presentation made in
the Respondent partnership's behalf.
Respondent contends that Shubin, Ballis, and Wauer were terminated for economic
reasons. Record evidence shows that these employees , laid off temporarily, were
told that the partnership's packing and shipping department had caught up with its
work, and that they were being laid off until more work became available. Partner-
ship counsel, however, presently declares that:
The reason for the layoffs was that these employees were not needed in view
of the projected reduction of the work force by approximately one-third. Two
of these men, Shubin and Ballis, prior to the layoff were offered employment as
packers on the second floor, and they rejected the transfer.
Essentially, Respondent partnership argues that the disputed layoff of Shubin, Ballis,
and Wauer derived from lack of work, whether that lack was demonstrable on their
layoff date or projected on the basis of a sales recession and planned staff reduction.
Neither suggestion, however, will stand up under scrutiny. With respect to
Pagnano's proffered explanation for the March 14 layoffs, note should be taken of
record evidence which shows that the firm's packing and shipping department had
merely caught up with its backlog of work-prior to the noon hour-transitorally;
nothing in the record, however, will warrant a determination that total furniture pro-
duction had already declined sufficiently to permit some reduced employee comple-
ment to handle projected future packing operations.
(Proper analysis of the record evidence with respect to this aspect of the case,
would seem to require some preliminary observations. Elsewhere in this report,
reference has been made to Respondent 's varied furniture line; consistently, data
with respect to the firm's daily production of sectional sofas, davenports, davenos,
sleepers, rockers, and chairs-throughout the period with which this case is con-
cerned-has been produced. Without some standard of measure, however, calcu-
lated to facilitate day-to-day judgments regarding the total burden which variable
daily production places on the firm's physical plant and workers, such raw records
provide nothing more than rough bases for some estimation of the paitnership's
daily production load. Respondent enterprise-for the dual purpose of production
backlog estimation and employee bonus computation-routmely translates both sales-
men's orders for future delivery and daily production figures for each item manu-
factured into standard units of production. The standard unit measures the time,
effort, and materials required to produce one particular furniture item in Respond-
ent's line, saleable for some designated sum. Other items produced for the partner-
ship's furniture line-requiring lesser amounts of time, effort , and material, and
saleable for lesser sums-are routinely assigned some fractional or percentile unit
value. Furniture pieces which would require greater amounts of time, effort, and
material, and sell at higher prices, are routinely given unit values in multiples of the
standard unit measure. Pagnano estimated that Respondent's production crew, before
the mass layoff, completed 170 units daily, within a 40-hour week Records of the
partnership, however, establish that, between January 4 and March 18, Respondent's
average rate of furniture production approximated 160 standard units daily, with a
complement of 150 production employees. More recently, between March 21 and
May 24, when this case was heard, daily production within the plant's 40-hour week.
with a reduced crew, averaged 117 standard units. During the first 21/2 months of
1960, before the first mass layoff, daily production equaled or exceeded 170 standard
units on 17 of 54 regular workdays; after the first mass layoff, daily production
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equaled or exceeded the plant 's reduced average , previously noted , merely on 8 of
47 workdays.)
The partnership records show, particularly, that the plant's March 14 production in-
cluded 118 sectionals, 16 davenports, 1 rocker, 36 davenos, and 11 chairs; except
for the rocker, production in every category exceeded totals for the last day of the
previous workweek. Records establish that it equaled 162 standard units. Since an
assumption would clearly be warranted that Pagnano knew the amount of March 14
work in process, inference would certainly be justified that he knew, when the noon
hour arrived, that plant production for the day would equal or closely approximate the
workload which the established 6 or 7 man crew within the packing and shipping
department had normally been required to handle. While Pagnano's presence in the
department , conceivably , may have stimulated more rapid , consistent performance,
partnership records establish that the crew had merely caught up with their average
workload. Production at a normal level for the balance of the day-which Pagnano
could reasonably have anticipated-would clearly have provided enough work to keep
the established crew busy. Respondent's presumptive contention to the contrary de-
serves rejection.
Further, Respondent's record reveals that daily production climbed to 182 standard
units the next day, then fell to 162 and 161 standard units on March 16 and 17, re-
spectively. The firm attempts to justify the recall of Shubin, Rallis, and Wauer for
-one-half day's work on March 17 by testimony suggestive of a contention that their
services were briefly needed on the date indicated. Its production records, however,
provide no support for this suggestion. Since March 17 production approximated that
of March 14, inference would be warranted that Respondent's need was no greater on
the latter date than the former. If Shubin, Rallis, and Wauer were needed on the 17th,
the partnership's contention that their March 14 layoff was warranted by lack of work
becomes even less persuasive.
Further, note should be taken of Respondent 's reassignment of one upholstery
department man, Norvell Hunt, to serve as a packing and shipping department em-
ployee-substantially full time-practically immediately after Shubin , Rallis, and
Wauer were released . Two more workers-Larry Gibson and Ralph White-were
also given regular part-time departmental assignments after the 17th of the month.
This, despite the decline in daily production which followed the March 17, 18, and
24 mass layoffs. Considered in context, these personnel adjustments clearly justify
skepticism with respect to Respondent 's contention that contemporaneous declines in
the amount of furniture ready to be packed dictated packing and shipping department
layoffs on March 14 and 17, specifically. Cf. Kelly & Picerne, Inc., 131 NLRB 543.
Personnel expedients of the sort noted clearly reveal the layoffs to have been
precipitate.
Respondent 's further contention that Shubin , Rallis, and Wauer were terminated be-
cause of projected curtailment of the firm 's work force , likewise merits rejection.
Record evidence will warrant a conclusion that March sales did show a sharp decline.
Presumably such a notable sales decline might reasonably justify production crew
retrenchment . Detailed review , however, suggests that Respondent's need to re-
trench-within the packing and shipping department specifically-had not really
become apparent when the challenged layoffs were made . The relevant figures follow:
Description January February March Total
1960
Gross orders -------------------------------------------- $423,786 $270,749 $129,291 $823,826
Cancellations (net) ------------------------------------- 6,984 6,760 70,679 84, 513
Net orders--------------------------------------- 416,802 263,989 58, 612 739,403
1959
Gross orders -------------------------------------------- 379 025 208,331 182, 114 769,470
Cancellations (net) ------------------------------------- 2,986 9,392 10,688 23,066
Net orders--------------------------------------- 376, 039 198,939 175,686 750,664
Due note should be taken of the fact that these figures establish a substantial sales
increase for 1960 's first quarter , presumably the result of Respondent's successful
sales promotion during the quarter 's first month, at two west coast furniture shows.
Respondent, however, points to the sharp sales decline during March , coupled with
LEONETTI FURNITURE MANUFACTURING CO . 245
the cancellation, during that month, of a substantial order previously, received.
Taken at face value, such reduced sales, particularly when linked with a substantial
cancellation, might seem to provide support for Respondent's contention that known
circumstances dictated curtailed production, and packing crew reductions, prior to
the time when Shubin, Ballis, and Wauer were terminated. Such a conclusion, how-
ever, would not be warranted.
First, sufficient evidence has been produced to warrant a conclusion that Respond-
ent's significant March cancellation-which involved an order previously placed for
future delivery-came to the attention of partnership management on the month's
very last day; Respondent's relevant record reveals March 31, 1960, as its date of
entry. Clearly, such a cancellation, whatever significance it might have for future
production planning, could not have been a factor in Respondent's decision to ef-
fectuate packing and shipping department layoffs on the 14th and 17th of the month.
(Testimony was proffered suggestive of a partnership contention that notice of the
cancellation was actually received during the middle of the month, and that notation
of the cancellation for the record had been postponed until the month' s last workday
merely for the bookkeeper's convenience. Such a proffered explanation for the
March 31 date of the cancellation entry, however, fails to persuade. With its daily
sales record, Respondent enterprise maintains a notation set reflective of the current
state of its production backlog. These notations-which mark changes in the daily
backlog, measured in standard production units-reveal that standard units affected
by the cancellation were not deducted from the firm's backlog total until March 31;
Respondent's suggestion that the March 31 entry represents a failure by its book-
keeper to record, contemporaneously with its receipt, cancellation data crucially
significant for future production planning carries no conviction.) Reduced March
sales generally, therefore, represent the only factor which Respondent might con-
ceivably have relied upon to justify retrenchment plans.
Curtailed gross sales , however, cannot logically explain Respondent's purported
decision to begin retrenchment with a March 14 reduction of packing and shipping
department personnel. Current backlog-though down from a February 1, 1960,
high-was still relatively heavy. Average production was being maintained; indeed,
no significant production decline manifested itself until March 21, the first workday
of the next week. Logically, somewhat reduced production would necessarily have
to precede any curtailment of packing and shipping operations; before any planned
plant retrenchment, indeed, firm management would presumably be most anxious
to pack and ship furniture newly produced, forthwith, thereby forestalling possible
cancellations . (Partnership records establish that production backlog rose sharply
during the first month of the year-presumably reflective of sales orders received at
furniture shows-thereafter fluctuating throughout February within a relatively high
range close to $5,000 standard units. Pagnano's testimony, which I credit in this
connection , shows that Respondent considered a production backlog equivalent to 1
month's average production desirable. With daily average production equal to 160
units, backlog totals close to 3,520 standard units-sufficient to require 22 work-
days for completion, out of the average 30-day month-would presumably have been
considered desirable for Respondent's 150 production employees and its established
packing and shipping department crew. Respondent , however, began March with
a backlog of 5,189 standard units. Despite a gradual backlog decline throughout
the month, there were 4,366 standard units therein when March 14 operations
began . And-although production appears to have been maintained at normal
levels-Respondent's production backlog rose to 4,417 standard units that day.
Backlog levels do not appear to have fallen below Respondent 's benchmark-for its
previously established employment complement-before the end of the month; by
the 30th, backlog had fallen to 3,492 standard units. Records produced by the
Respondent enterprise do establish a sharp backlog decline on the 31st of the month;
elsewhere in this report, however, reference has been made to the significant order
cancellation which plant management presumably received on that date.) Regard-
less of the partnership's business prospect, therefore, determination would seem
clearly warranted that its March 14 situation could not persuasively justify staff
reductions in the packing and shipping department before others.
No contention has been made that Respondent's project with respect to relocation
of the plant's second-floor production lines-though coupled with plans to move
the firm's packing operation to the plant's upper floor-dictated packing and shipping
department layoffs. Such a contention, if made, would clearly lack merit; certainly
March 14 layoffs within the department designated could not be considered required
by some change in plant operations necessarily dependent upon physical modifica-
tions then merely initiated. See N.L.R.B. v. Bank of America, 130 F. 2d 624, 629
(C.A. 9), in this connection.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Note should be taken of Respondent 's assertion that Shubin and Ballis were
offered transfer to work as daveno packers but rejected the offer. Firstly, record
,evidence will show that Pagnano suggested such transfers to Watson and Ballis;
Shubin was not involved . Secondarily , Pagnano clearly appears to have presented
his transfer offer coupled with a comment that Watson and Ballis would become
.eligible-through transfer-for improved compensation and greater fringe benefits;
no effort was made by the plant manager to relate the transfer suggestion to any
projected reduction of the firm 's complement of packers . Pagnano's failure to refer
to the projected relocation of packing work and its possible impact upon manning
schedules clearly justifies an inference that Respondent 's presumptive plans in that
:regard did not influence his transfer offer. See Kelly and Picerne, supra. The firm's
presumptive contention , therefore , that Ballis-alone among those laid off-lost
an opportunity to forestall termination by his refusal of the proffered transfer war-
rants rejection.)
While Respondent , subsequent to the March 24 reorganization , may have been
able to maintain packing and shipping operations , for a reduced production volume,
with two second-floor packers and two first-floor shippers, such postlayoff experience
cannot, retroactively, justify prior layoff action. Inference would clearly be war-
ranted, rather, that Respondent's management had really accelerated possible layoff
dates for the men terminated, because of their union membership, rather than be-
cause of business considerations. See Consumers Gasoline Stations, supra, in this
connection.
Determination that Respondent's proffered explanations do not stand up, when
subjected to scrutiny, provides strengthened support for the General Counsel's con-
tention. N.L.R.B. v. Thomas W. Dant, Robert E. Dant, et al., d/b/a Dant &
Russell, Ltd., 207 F. 2d 165, 167 (C.A. 9); N.L.R.B. v. Bird Machine Company,
161 F. 2d 589, 592 (C.A. 1). Considered as a whole, therefore, record evidence
in this case will fully warrant a conclusion that Shubin, Ballis, and Wauer were
given temporary layoffs on March 14 and terminated thereafter to discourage union
affiliation by the Respondent partnership's packing and shipping department em-
ployees. Cf. N.L.R.B. v. Lively Service Company, 48 LRRM (C.A. 10), in this
connection.
2. Interference , restraint , and coercion
Determination that the conduct of some respondent employer deserves inter-
diction as forbidden interference , restraint , or coercion-within the meaning of
the statute-must be based, not upon conclusions with respect to the employer's
motive, but upon a subsidiary determination that the conduct in question would
be reasonably calculated to interfere with the free exercise of rights statutorily
guaranteed. N.L.R.B. v. Illinois Tool Works, 153 F. 2d 811, 814 (C.A. 7). In
this connection , various aspects of the respondent employer's conduct should not
be considered separately ; consideration must be given , rather, to the entire course
of action attributable to the firm's responsible representatives . N.L.R.B . v. Popeil
Bros. Inc., 216 F. 2d 66, 68 (C.A. 7). If particular statements, considered in their
total context , can legitimately be appraised as statements reasonably calculated to
interfere with, restrain, or coerce employees in the exercise of rights statutorily
guaranteed, they must be considered violative of the statute. N.L.R.B. v. Protein
Blenders, Inc., 215 F. 2d 749, 750 (C.A. 8). Evidence which might warrant a de-
termination that employees were not really intimidated cannot be considered suffi-
cient to vitiate conclusions with respect to the statutory violation.
Tested by these decisional principles , the reactions of Pagnano and Holem-when
apprised of the possibility that packing and shipping department employees might
seek union representation-clearly deserves characterization as violative of the
statute.
(Reference has been made to Respondent 's contention that Holem was nothing
more than a "straw" boss, whose conduct should not be found attributable to his
superiors. This contention must be rejected. Testimony by the shipping clerk,
which stands in the record without contradiction , establishes his responsibility for
the effective prosecution of Respondent's packing and shipping operations through-
out the period with which this case is concerned ; record evidence also establishes
his authority to discharge, or, minimally, to make effective recommendation with
respect to terminations or transfers . Upon such a record , Respondent cannot escape
responsibility for his questions or remarks.)
Elsewhere in this report , reference has been made to certain specific queries di-
rected to packing and shipping department employees, concerning their union mem-
bership and desires. Such interrogation, generally, has been considered beyond
proscription , (a) when the questions posed were not accompanied by particularized
threats, (b) when , with due regard for all the circumstances, interference , restraint,
LEONETTI FURNITURE MANUFACTURING CO. 247
or coercion cannot be found implicit therein. Cf. Blue Flash Express, Inc., 109
NLRB 591, 592-595. Taken as a whole, however, record evidence in the present
case cannot be considered sufficient to exculpate Respondent 's management . Ameri-
can Furniture Company, Inc., 118 NLRB 1139, 1140; Union News Company, 112
NLRB 420, 424; Emma Gilbert, et al., individually and as Co-Partners d/bla A. L.
Gilbert Company, 110 NLRB 2067, 2071-2072. While Holem's first query-di-
rected to Shubin particularly-preceded any concrete action of a coercive character,
his subsequent comment that departmental employees would find their situation less
pleasant within 3 weeks clearly carried a restraining or coercive impact. Considered
in isolation, the shipping clerk's question as to what employees sought to gain by
unionization might readily be characterized as innocuous; when followed by a veiled
threat, however, even mere expressions of simple curiosity can be invested with a
coercive implication statutorily proscribed. Subsequent instances of interrogation by
the plant manager, calculated to bring out the extent to which packing shipping
department employees were committed to union representation, considered in their
context, likewise deserve characterization as reflective of Respondent's hostility to
employee unionization. (Bryan, Watson, and Ballis, certainly, could reasonably
construe their interrogation by Pagnano as coercive, particularly because of his ob-
servation that their conduct would be hurtful to the Respondent enterprise and his
profane description of departmental workers who sought and retained union mem-
bership. Considered alone, Pagnano's designation of such employees as "s-s of
s" might be considered merely an expression of opinion; clearly, however,
such comments would be reasonably calculated to invest his questions respecting
unionization with statutory significance) Alternatively-should the interrogation
noted be considered insufficient to merit characterization as a practice statutorily
proscribed-the Board may properly infer, in light of the unfair labor practices
committed after the interrogation, that future interrogation might be coercive, thus
warranting a remedial order that Respondent refrain from questioning its employees
in a coercive manner. N.L.R.B. v. Fuedoor Corporation of America, 291 F. 2d
328 (C.A. 2). This Agency has power to enjoin conduct other than the specific
violations proved, so long as there is a reasonable relation between the unfair
labor practice committed and the forbidden conduct.
Pagnano's attempt to subvert the interest of Watson and Ballis in union member-
ship-or, alternatively, to remove them from the group designated as covered by
the Union's representation petition-by promises of increased compensation and
supplementary fringe benefits contingent upon their acceptance of a proffered trans-
fer, also, clearly merits proscription.
3. Mass layoff
With respect to the production personnel layoffs of March 17, 18, and 24, the
General Counsel concedes reality of a precedent decline in the business of the
Respondent enterprise; his representative argues, however, that Respondent's re-
duced sales, which might conceivably justify staff reductions, provides no defense
if such a development did not, really, trigger Respondent's layoff decisions. Wells,
Incorporated v. N.L.R.B., 162 F. 2d 457, 460 (C.A. 9); N.L.R.B. v. L. Ronney &
Sons Furniture Manufacturing Co., 206 F. 2d 730, 737 (C.A. 9). In his brief, the
General Counsel's representative'has put the matter thus:
.. . the question to -be decided is not whether there existed some justifiable
ground for the layoff but whether the reason advanced by the Employer was
actually that which led to the curtailment and was not rooted in any ground
condemned by the Act. . With this thought in mind, the General Counsel
submits that notwithstanding the state of Respondent 's business , there [are]
a substantial number of factors which establish that the "moving cause" of
the layoffs was a decision by the Employer to discourage organizational activity
by its employees
Consideration has been given to the factors cited in support of the General Counsel's
contention; when reviewed in perspective, however, they cannot realistically be con-
sidered significant enough to dictate a conclusion that the mass layoffs derived
from proscribed motives.
Within the General Counsel 's brief, reference is made to various manifestations
of concern and hostility, when Respondent's management was confronted by employee
organizational activity; presumably argument would run that such manifestations by
Holem and the plant manager-when they became aware that union affiliation had
been sought by packing and shipping department employees-reflected concern
and hostility, likewise, regarding the possibility of similar activity by production
workers. Reference is further made to Respondent's citation of, the same reason-
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lack of work-for the mass layoffs of production employees and packing and shipping
department layoffs; the General Counsel would presumably argue that his demon-
stration with respect to the speciousness of "lack of work " reasons given for the
Shubin , Ballis, and Wauer layoffs warrants a conclusion that any similar reason given
for the mass layoffs lacks prima facie validity. Finally, reference is made to Re-
spondent's plantwide distribution of a worker's incentive bonus for the first 1960
quarter which is said to have equaled or exceeded bonuses paid for previous 1959
quarters ; presumably argument would run that Respondent 's favorable business
experience during the first 1960 quarter, considered as a whole, suffices to impugn
the validity of any contention that layoffs at the quarter's conclusion were dictated
by a sales and production backlog decline.
Such a submission however, provides something less than "clear and conclusive"
proof that production worker layoffs can only be related to some March 10 threat
by Plant Manager Pagnano that there might be no regular work or any work at
Respondent 's plant if packing and shipping department employees persisted in their
union activity.
Manifest concern and hostility-attributable to the firm's management-respecting
the known unionization of packing and shipping department employees would not
necessarily be reflective of parallel concern and hostility regarding the purely specu-
lative possibility that plant production employees might subsequently seek some sort
of union representation. Nor can Respondent's purported justification for layoffs
within the production crew be dismissed as without substance merely because a
similar justification proffered for three packing and shipping department layoffs
stands revealed as deficient in merit. With respect to bonus payments, further, record
evidence reveals the General Counsel's argument to be based upon misconceptions.
Clearly, Respondent's bonus payments for the first 1960 quarter did not really equal
or exceed bonus payments for the previous year; rather, the sums available for
bonus distribution following the first 1960 quarter were substantially lower than the
amounts available for distribution after the first, third, and fourth quarters of
the previous year, while slightly less than the sums available after the second quarter
of the year designated. Secondarily, note should be taken that Respondent's pro-
duction incentive bonus computations merely reflect improvement or regression
in the productive efficiency of Respondent's plant tree, within particular calendar
quarters. Contrary to the General Counsel's contention, such bonus payments do
not reflect variation' in sales; nor do they reflect variations in gross production dis-
associated from other factors relevant to the determination of plant efficiency.
Further, record evidence establishes that Respondent's total gain in sales for the
first 1960 quarter masked a real March decline. Nothing in the General Counsel's
presentation would warrant a determination that Respondent's layoff decisions were
dictated by considerations exclusive of this development.
(Counsel for the Respondent enterprise proffered for the record a newspaper
report with respect to developments within the Oregon furniture industry since the
first of the year; representations were made that this report would reveal develop-
ment of "full-sale recession" within the furniture trade. This submission was re-
jected , primarily because of its hearsay character . Plant Manager Pagnano testified,
however, that trade reports which he had received with respect to the state of the in-
dustry during 1960 's first quarter reflected substantial production curtailments by
competitive firms, prompted by reduced sales. Whatever the facts in this regard
may have been Pagnano's testimony with respect to reports received warrants credit.
With such reports at hand, Leonetti and Pagnano certainly could conclude, reason-
ably, that reduced March sales of the partnership reflected the general market pattern
and warranted production curtailment.)
Previously in this report, also, note has been taken that reduced March sales
of the Respondent enterprise caused progressive declines in the plant's production
backlog from 5.189 standard units on March 1 to 3,492 units on the 30th of the
month. With due regard for these developments, Respondent's decision to lay off
some substantial number of production workers cannot be characterized, legitimately,
as a decision without economic justification.
Clearly, Board determination that Respondent 's course of conduct violated the
statute need not depend upon demonstration that opposition to union representation
provided the firm's sole motivation, while reduced sales played no part in the
management's decision to curtail production. Statutory violations may be found
upon proof that proscribed motivation contributed to some action taken. N.L.R.B.
v. Jack Lewis and Joe Levitan. d/b/a California Footwear Company & Trina Shoe
Company, a Corporation, 246 F. 2d 886, 890 (C.A. 9); N.L R.B. v. Whitin Machine
Works, 204 F. 2d 883, 885 (C.A. 1). Regarding Respondent's mass layoff, however,
no submission has been made sufficient to warrant such a conclusion.
LEONETTI FURNITURE MANUFACTURING CO. 249
Any contention that partnership management effectuated mass layoffs of pro-
duction workers wholly or partially to justify the termination of some few packing
and shipping department employees would strain credulity; essentially, such argu-
ments would call for Board acceptance of the theory that Respondent's official-
dom-like the Chinese farmer whom Charles Lamb immortalized-willingly burned
down its house to roast a pig. Reason must dictate rejection of any such concept.
Respecting a possible contention, however, that the firm's management effectuated
such layoffs to persuade production workers, themselves to eschew organizational
activity little more need be said. Record evidence clearly will not warrant any factual
conclusion that the firm's production employees sought union representation. Nor
can it justify a determination that such employees sought membership with any other
labor organization-specifically the Woodworkers or Upholsterers alternatively-
before or during the period with which this case is concerned. Argument based
upon the premise that Respondent went so far as to reduce its productive crew and
curtail production deliberately, wholly or partially because of a desire to forestall
possibly incipient organizational activity, would clearly merit rejection; while the
termination of Shubin, Ballis, and Wauer may have reflected Respondent's reaction
to the known unionization of these workers and their departmental colleagues,
record evidence will not support a final determination that Respondent would,
further, lay off more than one-fourth of the plant's production crew merely to block
a bogey.
When direct evidence of some Respondent employer's purpose to violate the
statute cannot be obtained, inferences with respect to his purpose may be warranted.
Such inferences, however, must rest upon reliable, probative, and substantial evi-
dence; they must be valid inferences, too, within logical limits. Reliable, probative,
and substantial evidence preponderantly sufficient to sustain the inference that statu-
torily proscribed motives played some part in the mass layoffs cannot, however,
be found; the conclusion that management's conduct was thus motivated would
have to be derived, rather, from a congeries of inferences so tenuous as to require
rejection. Even when viewed most favorably for the General Counsel's representa-
tive, also, circumstances relevant to this aspect of the present case-managerial
declarations found generally indicative of opposition to unionization and discrimi-
natory intent, coincidental with solid manifestations of a business decline-would at
best warrant characterization as closely balanced. When record evidence thus closely
balanced is presented for evaluation, the General Counsel cannot be found to have
sustained his fundamental burden of proof that the layoffs in question were not
legitimately motivated. Cf. Glen Raven Silk Mills, Inc., 101 NLRB 239, in this
connection.
4. Homer Johnson
Throughout the period with which this case is concerned, Homer Johnson was
employed subject to the terms and conditions of a trade agreement . Clearly, man-
agerial representatives of the partnership enterprise could not plead ignorance of his
Teamster membership. No contention is made, however, that Johnson was deprived
of regular full-time employment and constructively discharged, discriminatorily, to
discourage his personal membership in a labor organization. Reliance is placed,
rather, upon testimony that the truckdriver-when queried by various packers and
shippers with respect to the possibility of their representation by a labor organiza-
tion-referred them to another Teamster affiliate; Respondent's resentment of such
action by Johnson is said to have caused his loss of regular full-time work and
constructive discharge.
No reliable, probative, or substantial evidence has been produced, however, sup-
portive of a factual conclusion that partnership management knew of Johnson's
referral advice. (Pagnano may have instructed Shipping Clerk Holem not to permit
Bryan and Johnson to work together; credible testimony to this effect was proffered.
Taken as a whole, however, the record evidence will not support a conclusion that
Pagnano's determination to keep these employees apart derived from any knowledge,
suspicion, or belief regarding the truckdriver's possible sponsorship of union repre-
sentation for fellow employees.) Absent such evidence, no justification can be found
for the General Counsel's contention that Pagnano's limitation of Johnson to
part-time work rested upon some desire, manifested by the plant manager, to
discourage union membership.
Respondent's proffered explanation for Johnson's temporary layoff and reduction
to part-time work-followed by his resignation-derives principally from the truck-
driver's testimony. Summarized in Respondent's brief, his recitals establish that:
When he was employed. he agreed to do other work assigned to him when he
was not engaged in truckdriving. Without obtaining respondent's agreement to
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change in this arrangement, Johnson refused to perform any work outside of
his truckdriver's duties. Johnson and all of the witnesses agreed that there was
not full-time work for him. He was given a temporary layoff and informed that
he would be recalled whenever there was work for a truck driver. He was not
replaced until he advised respondent that he did not want part-time work and
that he was planning a trip.
Despite the General Counsel's contention, Respondent's decision to hire a full-time
truckdriver within 2 days after Johnson's resignation cannot really be construed to
establish that he was deprived of full-time work discriminatorily. Concededly,
Arnold Taylor did replace Johnson forthwith. Considered in context, however, Re-
spondent's designation of the former as a full-time driver cannot vitiate the conten-
tion that reduced business had previously dictated Johnson's relegation to part-time
employment. Record evidence establishes that:
Taylor agreed to and since his employment has performed all work assigned
to him whether as a truckdriver, packer, or warehouseman.
Respondent contends, plausibly, that regular full-time work for Johnson's replace-
ment was possible only because of the latter's willingness to accept work supplemen-
tary to his regular truckdriving assignments; nothing in the General Counsel's pres-
entation provides warrant for the rejection of such a claim. While the partnership
management-forced to meet competition-did initiate free truck delivery service
for some nearby out-of-town customers after Taylor had been employed, no record
showing has been made that such assignments-supplementary to local delivery
duty-would alone have provided Johnson with full-time work.
Considered as a whole, therefore, the record evidence establishes that Johnson
could have retained full-time work absent his determination to effect changes, single-
handed, in the terms of his employment. Confronted with Johnson's decision to limit
his performance, I find, Respondent's management reacted reasonably. Cf. The Rex
Corporation, 130 NLRB 1607. While Pagnano's decision to effectuate Johnson's
temporary layoff may have followed closely upon certain layoffs characterized as
discriminatory elsewhere in this report, temporal coincidence, without more, cannot
sustain the General Counsel's contention with respect to the driver's termination.
Cf. California Textile Mills, 120 NLRB 1245, 1270-1271, in this connection.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, since they occurred
in connection with the operations described in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and, absent correction, would tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent engaged and continues to engage in certain
unfair labor practices, it will be recommended that the firm cease and desist there-
from and take certain affirmative action, including the posting of appropriate notices,
designed to effectuate the policies of the Act, as amended.
Specifically, it has been found that Respondent discriminated with respect to the
hire and employment tenure of three employees-Nick Shubin, Paul Wauer, and
Theodore Ballis-by their temporary layoff on March 14, 1960, and by the conversion
of these layoffs into layoffs of indefinite duration on the 17th of the month, for
statutorily proscribed reasons. Thereby, employees of the Respondent enterprise
generally were interfered with, restrained, and coerced in the exercise of rights statu-
torily guaranteed. To effectuate the statutory objective, therefore, recommendation
will be that Respondent offer each of the designated employees immediate and full
reinstatement to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges. See The Chase National Bank of
the City of New York, San Juan, Puerto, Rico, Branch, 64 NLRB 827, for a definition
of the phrase "former or substantially equivalent position" used herein.
Available evidence suggests the probability that Respondent's business suffered
economic decline shortly after the layoffs found herein to have been made discrimi-
natorily and without legitimate motivation. Conceivably, some of the employees
discriminatorily terminated might have been affected by the later reduction of opera-
tions, even absent Respondent's unfair labor practices. Under such circumstances,
my reinstatement recommendation for Shubin, Ballis, and Wauer may be subject to
qualification. If subsequent to their reinstatement, work sufficient for all three of
them cannot be found, Respondent should dismiss all persons newly hired or trans-
LEONETTI FURNITURE MANUFACTURING CO. 251
ferred to work as packers and shippers, after their discriminatory layoff and termi-
nation . Should sufficient work not be available, then, for the firm's remaining em-
ployees inclusive of those offered reinstatement, all available positions should be
distributed among such employees without discrimination because of union member-
ship or activity, pursuant to any seniority system or other nondiscriminatory practice
previously applied by the Respondent enterprise in the conduct of its business. Re-
spondent should place those employees, if any, for whom no employment is available
after such distribution, on a preferential list, with priority set pursuant to any senior-
ity system or other nondiscriminatory practice followed previously by the Respondent
enterprise in the conduct of its business, and thereafter offer them reinstatement as
such employment becomes available and before other persons are hired for such
work. See E. V. Prentice Machine Works, Inc., 120 NLRB 417, 418; American
Steel Building Company, Inc., 123 NLRB 1363, 1370, enfd. 278 F. 2d 480 (C.A. 5),
in this connection.
Additionally, it will be recommended that Respondent make each of the designated
employees whole for any loss of pay, or other incidents of the employment relation-
ship , which they may have suffered by reason of the discrimination practiced against
them, by the payment to each of a sum of money equal to the amount which he
normally would have earned in Respondent's employ, except for his layoff or the
termination of his employment, between the date on which his discriminatory layoff
or termination was effectuated and the date of any proper reinstatement offer which
Respondent may make, hereafter, pursuant to the recommendations made elsewhere
in this report, less his net earnings during the period indicated. Crossett Lumber
Company, 8 NLRB 440, 497-498; Republic Steel Corporation v. N.L.R.B., 311 U.S.
7. The pay losses for which it is recommended that each of these employees be made
whole should be computed on a quarterly basis, pursuant to the formula which the
Board now utilizes. F. W. Woolworth Company, 90 NLRB 289, 291-294; N.L.R.B.
v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Respondent should
preserve and, upon request, make available to the National Labor Relations Board
or its agents, for examination and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports, and all other records neces-
sary to permit analysis of the backpay amounts due the discriminatees , and their
reemployment rights, consistently with these recommendations. The possibility that
one or more of the three employees discriminatorily terminated might have been
laid off nondiscriminatorily in some subsequent work force reduction, even absent
Respondent's unfair labor practices, should be taken into consideration in de-
termining the amounts of backpay due these employees consistent with these
recommendations.
Respondent's course of conduct, found improper herein, goes to the very heart of
the statute, and indicates a purpose, generally, to limit the lawful rights of employees.
N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). I am persuaded that the
unfair labor practices found are closely related to similar unfair labor practices, the
future commission of which may be reasonably anticipated, in view of the course of
conduct found attributable to the Respondent enterprise in this report. The preven-
tive purposes of the statute will be frustrated unless the remedial action recommended
in this case, and any order which may prove to be necessary, can be made coextensive
with the threat. In order, therefore, to make the interdependent guarantees of Sec-
tion 7 effective, prevent any recurrence of the unfair labor practices found, minimize
industrial strife which burdens and obstructs commerce and thus effectuate the
policies of the statute, it will be recommended that Respondent cease and desist from
infringement, in any other manner, upon the rights guaranteed by the aforesaid
statutory provisions.
In view of the foregoing findings of fact , and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Fred Leonetti and Benjamin Sussman, Partners doing business as Leonetti
Furniture Manufacturing Co., constitute an employer within the meaning of Section
2(2) of the Act, and have engaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of the Act, as amended.
2. Warehousemen's Union Local 206, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act, as amended, which admits employees of
Leonetti Furniture Manufacturing Co. to membership.
3. By interference with, restraint, and coercion of its employees in the exercise of
rights guaranteed in Section 7 of the Act, Leonetti Furniture Manufacturing Co.
has engaged in and continues to engage in unfair labor practices within the meaning
of Section 8(a) (1) of the Act, as amended.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By the layoff or discharge of three employees previously designated , followed'
by a failure or refusal to reinstate them , Leonetti Furniture Manufacturing Co. has
engaged in and continues to engage in unfair labor practices within the meaning of
Section 8 (a)(1) and ( 3) of the Act, as amended.
5. The unfair labor practices found are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act, as amended.
RECOMMENDATIONS
Upon these findings of fact and conclusions of law, and upon the entire record in
the case, I recommend that Fred Leonetti and Benjamin Sussman, Partners doing
business as Leonetti Furniture Manufacturing Co., their officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouragement of membership in Warehousemen's Union Local 206, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by the layoff or discharge of any of their
Employees, or by discrimination in any other manner with respect to their hire and
tenure of employment, or any term or condition of their employment, except as
authorized under Section 8(a) (3) of the Act, as amended.
(b) Interrogation of any employees concerning their union membership, activities,
or desires, in a manner constituting interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act, as amended.
(c) Interfeience with, restraint, or coercion of their employees, in any other
manner, in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist Warehousemen's Union Local 206, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor
organization, to bargain collectively through representatives of their own free choice,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as amended.
2. Take the following affirmative action which I find will effectuate the policies of
the Act, as amended.
(a) Offer Nick Shubin, Paul Wauer, and Theodore Ballis immediate and full re-
instatement to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and make each of them whole in the
manner set forth in "The Remedy" section of this report.
(b) Preserve and, upon request, make available to the Board or its agents , for ex-
amination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropiate to
permit an analysis of the backpay amounts due, and reinstatement rights, con-
sistently with these recommendations.
(c) Post at their place of business at Portland, Oregon , copies of the notice attached
to this report marked "Appendix." Copies of said notice, to be furnished by the
Regional Director of the Nineteenth Region , shall, after being duly signed by a repre-
sentative of the Respondent enterprise, be posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that these notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director of the Nineteenth Region , in writing , within 20
days of the date of service of this Intermediate Report and Recommended Order,
what steps the Respondent has taken to comply herewith.
RECOMMENDED ORDER
If, within 20 days after the date of service of this Intermediate Report and Recom-
mended Order, Respondent satisfies the Regional Director as the Board's agent, that it
has complied or will comply with the recommendations herein made, it is recom-
mended that the National Labor Relations Board issue an order or take other appro-
priate action to close the case on compliance. Unless Respondent satisfies the
Regional Director within 20 days after the date of service of this Intermediate Report
and Recommended Order that it has complied or will comply with the foregoing
recommendations, it is recommended that the National Labor Relations Board issue
an order requiring Respondent to take such action.
TEX-TAN, INC. 253
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees in Warehouse-
men's Union Local 206, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor organization, by the
layoff or discharge of any employee, or by discrimination against them in any
other manner in regard to their hire and tenure of employment, or any term or
condition of their employment, except as authorized in Section 8(a)(3) of
the Act, as amended.
WE WILL NOT interrogate any of our employees with respect to their union
membership, activities, or desires, in a manner constituting interference, re-
straint, or coercion within the meaning of Section 8(a) (1) of the National Labor
Relations Act, as amended.
WE WILL NOT interfere with, restrain, or coerce our employees, in any other
manner, in the exercise of their right to self-organization, to form, join, or assist
Warehousemen's Union Local 206, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other labor organi-
zation, to bargain collectively through representatives of their own free choice,
and to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as amended.
WE WILL offer Nick Shubin, Paul Wauer, and Theodore Ballis immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, and make them whole
for any loss of pay or other incidents of the employment relationship which they
may have suffered by reason of the discrimination practiced against them.
All our employees are free to become , remain , or refrain from becoming or re-
maining, members of any labor organization, except as that right may be affected by
an agreement requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act, as amended. We will not
discriminate in regard to hire or tenure of employment, or any term or condition of
employment, against any employee because of membership in or activity on behalf
of any labor organization.
FRED LEONETTI AND BENJAMIN SUSSMAN, PARTNERS,
DOING BUSINESS AS LEONETTI FURNITURE MANU-
FACTURING Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
Tex-Tan, , Inc. and Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO. Case No. 923-CA-920.
November 15, 1961
DECISION AND ORDER
On April 13, 1961, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
134 NLRB No. 23.