Longview Furniture Co.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1734 (N.L.R.B. 1954)

1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Retail Clerks International Associa-
tion, AFL, or in any other labor organization of our employees, by discrimi-
nating in any manner in regard to hire, tenure, or any other term or condition
of employment, except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL make whole Betty Null for any loss of pay suffered as a result of
the discrimination against her.
WE WILL bargain collectively, upon request, with Retail Clerks International
Association, AFL, as the exclusive representative of all employees at our Dem-
ing, New Mexico, store, excluding supervisors, with respect to wages, rates of
pay, hours of employment, or other terms or conditions of employment, and,
if an understanding is reached, embody such understanding in a signed
agreement.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, 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 in con-
formity with Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent above stated.
SAFEWAY STORES, INCORPORATED,
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.
LONGVIEW FURNITURE COMPANY and UNITED FURNITURE WORKERS OF
AMERICA, CIO. Case No. 11-CA-246. December 16, 1954
Supplemental Decision and Determination
On July 22, 1952, the Board issued a Decision and Order in this
case,' in which it found that Longview Furniture Company, herein
called the Respondent, had violated Section 8 (a) (1) and (3) of the
National Labor Relations Act, as amended, and ordered the Respond-
ent to cease and desist and to take certain affirmative remedial action.
Thereafter, the case was considered by the United States Court of
Appeals for the Fourth Circuit upon the Board's petition for en-
forcement of its Order. The Respondent did not contest the validity
of the Order, except insofar as it required reinstatement with back
pay of certain strikers who had engaged in name calling and certain
other strikers who were present when yet another striker assaulted
1 100 NLRB 301.
110 NLRB No. 246.
LONGVIEW FURNITURE COMPANY 1735.
a nonstriking employee. On July 27, 1953, the court handed down
its opinion? The court held that the four strikers who were present
when the assault upon the nonstrikers occurred had cooperated with
the persons who committed the assault, and, as particeps criminis,
forfeited any right they might have had to reinstatement. With,
respect to the former conduct, the court remanded the case to the Board
to determine, on the basis of the court's opinion, which of the em-
ployees involved should be denied reinstatement. In so doing, the
court stated :
We agree with the Board that reinstatement is not to be denied
striking employees because of ordinary incidents of the main-
tenance of a picket line or for the use of rude language arising out
of the feelings thereby aroused. We do not think, however, that
anything in the act requires or contemplates the reinstatement
of employees who have banded together in hurling profane, ob-
scene and insulting epithets at employees who are attempting to,
work, in an effort to degrade and humiliate them publicly and
prevent their working. To get into a quarrel in the course of an
argument on the picket line and use unseemly language is not
ordinarily a matter which would justify discharge or the denial
of reinstatement; but to combine with others to use profane and
indecent language in an attempt to humiliate those who are at-
tempting to work and thus to prevent their working is a very
different thing and falls, we think, within the principle laid down
by this court in N. L. R. B. v. Kelco Corporation, 4 Cir. 178 F. 2d
578 and by the Supreme Court in N. L. R. B. v. Fansteel Metal-
lurgical Corp., 306 U. S. 240 . . . and Southern Steamship Co.
v. N. L. R. B., 316 U. S 31.... The employment of persons who
have been guilty of such conduct toward their fellow employees
has a disruptive effect on the employer's business as the result of
the feelings and antagonisms thereby engendered. As we said in
N. L. R. B. v. Kelso, supra, . . . "It is not the fact that employees
have been convicted of crime that renders them ineligible for re-
instatement, but the fact that they have been guilty of unlawful
conduct which would make their presence undesirable because
of the disruptive effect which it would have upon the employer's
business. To order the reinstatement of employees who have
been guilty of such serious acts of violence, whether followed by
criminal convictions or not, cannot reasonably be said to be proper
action to `effectuate the policies of this act' within the meaning
of sec. 10 (c), 29 U. S. C. A. § 160 (c)." From the standpoint of
discharge or reinstatement there is no difference in principle
between engaging in acts of violence and using profane and in-
2 206 F. 2d 274 (C. A. 4).
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suiting language towards fellow employees in an effort to drive
them from work.
Striking employees have the right to establish a picket line,
to use arguments in support of their position and to attempt by
proper means to induce other persons not to work at the jobs that
they have vacated by striking. It has been held, however, that
the act does not protect them in engaging in a sit down strike and
thus preventing the employer from making a proper use of his
property, N. L. R. B. v. Fansteel Metallurgical Corp., supra, in
unlawfully interfering with the employer's property, N. L. R. B.
v. Clinch, field Coal Corp., 4 Cir. 145 F. 2d 66, 155 A. L. R. 874, in
obstructing a plant manager's entrance to the plant, N. L. R. B. v.
Perfect Circle Co., 7 Cir. 162 F. 2d 566, or in engaging in acts of
violence against those who are attempting to work. N. L. R. B. v.
Kelso Corp., supra. We think it equally clear that the act does
not protect them in using insulting and profane language calcu-
lated and intended to publicly humiliate and degrade employees
who are attempting to work in an effort to prevent them from
working. They are no more privileged to infringe upon the
rights of fellow employees than upon the rights of the employer.
Pursuant to the court's direction, the Board has reviewed anew the
pertinent portions of the record regarding the conduct of the nine
strikers charged with name calling in an effort to deal with the evi-
dence in the light of the principles set forth by the court. The testi-
mony on this point, which we credit, with respect to the nature and
extent of the name calling by each of the nine strikers is as follows :
Charles Ball: One employee testified that while standing in the
picket line, Ball called nonstrikers "scabs," "damn scabs," and
,'crummy scabs." The plant superintendent testified that another
employee reported to him that Ball had cursed that employee's wife
at the employee's home. A third employee testified that she heard
Ball curse "quite a lot" on the picket line; that she heard him say
more than "damn scab"; and that on one occasion as she walked to
her car Ball said, "You are a god damn bitch."
Christine Beane : One employee testified that as she started to get
into a car, Beane, who was standing "up the road" with a group of
women, "looked real mean" and said, "You son of a bitch." The su-
perintendent testified that he did not know what Beane's misconduct
was. Another employee testified that she did not see Beane do any-
thing on the picket line, but that she did not want to work with her
because of "something she probably had said about me in the shop
before the strike." A third employee testified that Beane never said
anything to her.
Harold Clampitt : One employee testified that Clampitt called non-
strikers "damn scabs," "yellow scabs," "the damn women that took
LONGVIEW FURNITURE COMPANY 1737
their jobs," in a rough and loud voice while on the picket line. An-
other employee testified that she told the superintendent that she
would not work with Clampitt because he stood on the picket line and
called them "damn scabs." A third employee testified that Clampitt,
while on the picket line, cursed him "for a damn son of a bitch."
Eugene Collins: One employee testified that Collins was out on the
picket line one morning and said, "there goes them damn scabs." The
superintendent testified that he had no specific knowledge of any
misconduct engaged in by Collins.
Leroy Giles: One employee testified that Giles stood on the picket
line and cursed nonstrikers; called them "damn scabs," "yellow
scabs," and "crummy scabs." The superintendent testified that he
was told that Giles had "cursed" everybody in general while on the
picket line; that an employee told him that while Giles was on the
picket line he had cursed the women entering the plant; that two
other employees told him Giles had cursed on the picket line but had
not told him precisely what Giles had said. Still another employee
testified that she heard Giles curse, heard him say out on the picket
line, "you damn scabs and trash and things like that."
James Martin: One employee testified that Martin had said, "there
goes that damn scab, scab where are your crutches and patches." The
superintendent testified that another employee told him that Martin
had cursed the employee and his wife during the strike, but did not
say where Martin had done so. The employee who had thus reported
to the superintendent testified himself that Martin threw tacks on
the road in front of his car as he was going home and called him a
``scabby son of a bitch." A third employee testified that Martin called
him a "damn liar" at an Esso station in town.
Frank Miller: One employee testified that Miller stood on the picket
line and called nonstrikers "damn scabs," "yellow scabs," and
"crummy scabs."
Ben Roberts : One employee testified that Roberts stood out on the
picket line and called nonstrikers "damn scabs" and "yellow scabs."'
The superintendent testified that another employee told him that
during the strike Roberts cursed her husband as he drove to pick her
up one afternoon. A third employee testified that Roberts called
nonstrikers "damn scabs" and "low down trash."
Floyd Shook : One employee testified that she could not recall that
Shook had said anything to her at the shop but that, as she passed his
car one afternoon near the hospital, Shook said, "There goes one of
them damn scabs." The superintendent testified that this same em-
ployee told him that Shook had yelled from his car to her as she was
walking on the street in downtown Hickory that she was a "damn
scab." Another employee testified that Shook never said anything
against him, but stood with the upholsterers' group.
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the method and effect of the name-calling, the rec-
ord is as follows : One employee testified that the name calling was
riot intermittent but occurred each time nonstrikers went into the
plant; that it "got on her nerves" and affected her during the day and
night. The grandmother of an employee, who drove the employee to
work each morning, testified that the "cursing" occurred almost every
morning when she went to the plant. A third employee testified that
the pickets jeered every morning.
Apart from its disagreement with the ultimate findings of the
Board's original order here, the court's remand decision shows un-
mistakably that this court adheres to the long-established principle
that a striker's use of unseemly language on the picket line "in a mo-
ment of animal exuberance" does not deprive him of the right of rein-
statement.' Unlike the Board's Order, however, the court would an-
nounce a new principle which it deemed applicable to at least some of
the striking pickets here involved. The rule of this court is that strik-
ers who have "banded together" or "combine[d]" with others in hurl-
ing a barrage of profane, obscene, and insulting epithets at nonstrikers
in an effort to prevent them from working are not entitled to
reinstatement.
We have decided not to seek Supreme Court review of the court's
remand for reasons which are not pertinent to the ultimate decision
in this case. Having accepted the remand, we shall, of course, apply
the principle laid down by the court in its decision as the rule of law
for this case only.
Applying this test to the facts as set forth above, we find that
Charles Ball, Harold Clampitt, Leroy Giles, James Martin, Frank
Miller, and Ben Roberts acted in concert in hurling a continuous and
repetitious barrage of profane and insulting jibes at the nonstrikers
and thereby "combine[d]" or "banded together" in an effort publicly
to so degrade and humiliate the nonstrikers as to prevent them from
going to work. We conclude, therefore, that they chose to exercise
their privilege to engage in union activity in such a manner as to re-
move themselves from the protection of the Act and the Respondent
was, therefore, justified in refusing to reinstate them. However, with
respect to Eugene Collins, Christine Beane, and Floyd Shook we find
-that they engaged in only isolated instances of name calling and did
not join in the repetitive insults of the other six strikers. These iso-
lated incidents, falling in the area of individual "animal exuberance,"
afford insufficient basis for denial of reinstatement to Collins , Beane,
and Shook. We find, therefore, that these three strikers should be re-
instated by the Respondent with back pay in accordance with the
terms of our original Order.
3 Milk Wagon Drivers' Union v. Meadowmoor Dairies, Inc, 312 U. S. 287, 293.
LONGVIEW FURNITURE COMPANY 1739
MEMBER MURDOCK, dissenting :
I am in serious disagreement with my colleagues' decision not to
seek Supreme Court review of the decision of the court of appeals;
also with their interpretation of the court opinion remanding this
case to the Board. Accordingly, I take this opportunity to state my
views as to why the Board should have filed a petition for certiorari in
this case, as well as on the issue involved in the remand. I consider the
matter of considerable imporance because the national labor policy as
reflected in the Taft-Hartley Act is not developed only by the Board's
affirmative decisions and orders. It may be as significantly affected by
the Board's failure to seek Supreme Court review of decisions reject-
ing Board interpretations of the Act or the failure to seek interven-
tion in cases before the Supreme Court bearing upon the Board's
authority and determinations.
The original Board decision in this case-a unanimous one, in
which I participated-set forth clearly the view (which with all due
respect for the court of appeals I believe was consistent with not only
established Board but court decisions) that the name calling in this
case did not exceed the limits of protected concerted activity and did
not make the strikers who engaged in it unsuited for reemployment.
The Court of Appeals for the Fourth Circuit did not agree with this
view and remanded the case to the Board to determine which strikers
should be denied reinstatement under the court's view of the applica-
ble legal principles. I agree wholeheartedly with the majority's
statement that in remanding the case the court announced a new
principle of law. I disagree, however, with the majority's statement
of what that principle is, based on their interpretation of that decision,
as well as their refusal to litigate this new principle in the Supreme
Court.
According to the majority, the rule of the court is that "strikers
who have `banded together' or 'combine [d]' with others in hurling a
barrage of profane, obscene, and insulting epithets at nonstrikers in
an effort to prevent them from working are not entitled to reinstate-
ment." It seems to me, however, that the court's view is clearly and
finally summed up in the following portions of the decision :
From the standpoint of discharge or reinstatement there is no
difference in principle between engaging in acts of violence and
using profane and insulting language towards fellow employees
in an effort to drive them from work.
We think it is equally clear that the Act does not protect them
in using insulting and profane language calculated and intended
to publicly humiliate and degrade employees who are attempting
to work in an effort to prevent them from working.
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These statements of the court and the cases the court relies upon
clearly indicate to me that the court considers the use of nonthreaten-
ing but insulting language such as was used herein against persons
desirous of going to work during a strike, equivalent to acts of vio-
lence. Strikers who engage in violence forfeit their right to rein-
statement without regard to whether they act individually or in con-
cert. If there is no difference in principle between acts of violence
and using profane and insulting language, according to the court,
the question of concert is not a material element in forfeiting rights
of strikers to reinstatement. With all due respect for the court's
judgment, I believe the principle laid down in its decision (even if
it be the one distilled by the majority) is inconsistent with other ju-
dicial authorities as well as Board decisions. Certainly the court's
decision raises an issue of sufficient legal significance and importance
in the administration of the Act, particularly in view of the conflict
of authority between circuits, to have warranted the Board's seeking
a Supreme Court determination of the issue. So far as I am aware,
the only justification for not petitioning for certiorari would be be-
cause my colleagues agree with the principle laid down by the court
of appeals. I do not believe this Board should willingly accept such
a principle.
A rule equating name calling by strikers to violence or unlawful
seizure of property is, as I have noted, without support in other court
decisions concerning the reinstatement rights of strikers. It imposes
upon striking employees niceties of language not always observed in
less emotional and more formal situations than strikes. Name calling
is conduct which may be expected in the course of a labor dispute and
specifically during a strike and picketing. Courts have recognized
that the "nomenclature of the strike is not the language of the parlor.
Men become earnest and excited. . . . They forget etiquette and
grammar . They employ strong language. Sometimes they go beyond
the borders of decorum." 4 Judicial opinions refer to the "loose lan-
guage or undefined slogans that are part of the conventional give-
and-take in our economic and political controversies-like `unfair'
or `fascist"'; 5 to the "hot words" 6 which accompany strikes; to "the
rough and tumble of strikes, in the course of which loose and even reck-
less language is properly discounted."' Acknowledging the realities
of every day industrial speech and behavior, courts have held that
the use of nonthreatening though opprobrious language does not bar
•Wood Mowing & Reaping Machine Co v Toohey, 186 NYS 95, 98, Frankfurter and
Greene, The Labor Injunction ( 1930) p. 35.
6 Cafeteria Employees Union v Angelos , 320 U. S 293, 295.
e Republic Steel Corp . v. N. L R. B , 107 F 2d 472, 479 (C A. 3), cert denied 309
U S 684.
'iN L R B. v . Local Union No. 1229 , International Brotherhood of Electrical Workers,
346 U S . 464, dissenting opinion at 480
LONGVIEW FURNITURE COMPANY 1741
strikers from reinstatement .8 Courts have even held that participa-
tion in physical disorders of a minor nature does not deprive strikers
,of eligibility for reinstatement.' The Fansteel case,10 relied upon by
the court of appeals in the instant case in support of its view that
there is no difference in principle between engaging in violence and
using abusive language in an effort to keep employees from work,
has been interpreted by other courts as not applicable to bar the re-
instatement of employees who engage in minor offenses on the picket
line.11 The Court of Appeals for the Third Circuit has pointed out
that "some disorder is unfortunately quite usual" during strikes and
that minor disorders "must have been in the contemplation of Con-
gress, when it provided in Sec. 13 of the Act, 29 U. S. C. A. Sec. 163,
that nothing therein should be construed so as to interfere with or im-
pede or diminish in any way the right to strike. If this were not so the
rights afforded to employees by the Act would be indeed illusory." 12
For the foregoing reasons it seemed to me of the greatest importance
that the Board petition the Supreme Court to review the decision of
the court of appeals in the instant case. A majority of the Board has
decided, however, to accept the court's remand. Having accepted the
remand, I believe the Board should accept the clear implications of the
court's decision. In my judgment, it has not done so. The court deci-
sion, in my opinion, requires that the Board deny reinstatement to
any striker who used profane and insulting language in an effort to
prevent other employees from going to work. Applied to the facts
of this case, this principle requires denial of reinstatement to each of
the nine strikers involved.
8 N. L. R B v Deena Artware, Inc, 198 F 2d 645, 652 ( C A. 6), cert . denied 345 U. S.
906; N. L. R B v . Reed & Prince Mfg. Co. , 118 F 2d 874 , 887-8 ( C. A 1), cert. denied
313 U. S 595 ( where, similar to the instant case , certain strikers-apparently not as part
of an "incident" on the picket line-yelled "scab" and "rat" at employees in the plant).
In analogous instances the Board has found offensive remarks part of protected organ-
izational and bargaining activity See Blue Bell, Inc., 107 NLRB 514 , and The Bettcher
-Manufacturing Corporation 76 NLRB 526.
Of interesting comparison , too, are Board decisions finding that disparaging remarks
attributable to employers and lalior organizations do not constitute restraint or coercion
within the meaning of Section 8 ( a) (1) or 8 ( b) (1) (a). See, for example, Dankner
Motor Sales , 107 NLRB 277 ( comparing union organizers to "gangsters ") ; Blue Bell, Inc,
107 NLRB 514 ( characterizing the union as "bunch of Communists stool pigeons ") ; Staf-
ford Operating Co, 96 NLRB 1217, 1221 , 1240 ( calling employee a "no good son of a
bitch") Sunset Line & Twine Company, 79 NLRB 1487 , 1505 ( calling employees who had
chosen to abandon strike and return to work "scabs " and "deserters").
A N. L. R B v Cambiza Clay Pioducts Co, 215 F. 2d 48, 54 (C. A. 6) ; N. L R B v.
Wallick, et al., 198 F. 2d 477 , 485 (C A 3 ) ; Kansas Milling Co. v. N. L. R . B., 185 F. 2d
413, 420 ( C A 10) , N L. R B. v. Elkland Leather Co ., 114 F 2d 221 , 225 (C. A. 3 ), cert.
denied 311 U S. 705 , Republic Steel Corp . v. N. L R. B., 107 F. 2d 472, 479 (C. A. 3),
cert. denied 309 U. S 684, N L. R. B. v. Stackpole Carbon Co ., 105 F. 2d 167 , 176 (C. A.
3), cert denied 308 U S. 605
ii N. L. R . B. v Fansteel Metallurgical Corp ., 306 U . S. 240.
11 See, for example, N . L R. B v. Reed & Prince Mfg . Co., 118 F 2d 874 (C. A. 1 ), cert.
denied 313 U. S 595; Republic Steel Corp . v. N L R. B., 107 F 2d 472 ( C. A. 3), cert.
denied 309 U. S 684; N L . R B v. Stackpole Carbon Co ., 105 F. 2d 167 ( C. A. 3), cert.
denied 308 U. S 605
u Republic Steel Corp v N L R B , 107 F. 2d 472, 479 (C. A. 3), cert. denied 309
U. 8 684