Louisville Chair Co., Inc.

National Labor Relations Board - Board Decisions

May 5, 1964

146 N.L.R.B. 1380 (N.L.R.B. 1964)

1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The weaver is responsible for the operation of his looms . It is his duty to patrol
them so as to start up those that stop and to correct that operation of those
making defective cloth. The Respondent has no set rules governing the time a
weaver spends away from his job for personal reasons , such as smoking , eating, or
going to the restroom . If he plans to be away for any extended length of time, such.
as 15 or 20 minutes, then the Respondent expects him to arrange with another weaver
to watch his job. Snipes testified that it is up to the second hand to judge if a weaver
is leaving his job "to long, too often , without it being necessary."
As found above , on a number of occasions Allen had been warned about leaving
his job and making seconds . The evidence conclusively. shows and I find that he
again neglected his job on May 29 . Accordingly, I find that Allen 's discharge was
for cause and was not violative of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
Louisville Chair Company, Inc. and Louisville Chair & Furni-
ture Company, Inc. and United Furniture Workers of America,
AFL-CIO . Cases Nos. 9-CA-2819 and 9-RC-5152. May 5, 1964
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION
On October 15, 1963, Trial Examiner William Seagle issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. He also found that the Respondent had interfered with the
election of April 5,1963, and recommended that it be set aside. There-
after, the Respondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and the Union filed a statement in sup,
port of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the .Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, brief, and statement in support,.
and the entire record in these cases.' and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations insofar as is,
consistent with this Decision and Order.
I The Respondent 's request for oral argument is hereby denied as 'the record in this pro=
ceeding, including the exceptions, brief, and statement in support , adequately presents
the issues and positions of the parties.
a We find no merit in the Respondent's claim of alleged bias and prejudice respecting. the
Trial Examiner.
146 NLRB No. 151.
LOUISVILLE CHAIR COMPANY, INC., ETC.
A. Case No. 9-CA-2819
4381-
1. The Trial Examiner found that the Respondent violated Sec-
tion 8 (a) (1) of the Act by reprimanding and threatening to discharge
employee Wimsatt on two occasions. Wimsatt was a member of the
Union, was one of 23 employees whose names appeared on a leaflet
urging employees to vote for the Union, and served as a union observer-
at a Board election which was held on December 14, 1962.3 As to the
first occasion, Wimsatt testified that "shortly after" this election,
Plant Superintendent Wedding, accompanied by Foreman Pry, came
to his work station, that Wedding asked Wimsatt how his "friends%
uptown" (referring to the Union) were, and remarked that he sup-
posed that "they'll be signing the payroll checks." As to the second
occasion, Wimsatt testified that, about 2 weeks later, Wedding and_
Pry again came to his place on the assembly line, and Wedding said
Wimsatt would "have to walk the chalk line" or he "was going out,9"
and told Pry to watch Wimsatt. While there is an apparent sarcasm
in the remark about the "friends uptown," we perceive no antiunion
threat therein. Similarly, the latter remarks about walking "the
chalk line" could just as readily have related to Wimsatt's work per-
formance, as the Respondent's witnesses testified, as to Wimsatt's.
union membership or activity. In these circumstances, we are unable
to find that the record as to either occurrence preponderates in favor of
a finding that by Wedding's remarks the Respondent violated the Act.-
2. Wimsatt was transferred from his job as a sander to a job as
it packer late in March 1963. According to his testimony, he was not
told why he was being transferred, did not ask why he was being
transferred, and did not complain about the transfer. Wimsatt was:
again an observer at the second election on April 5, which the Union
lost. After the election, Wimsatt never returned to work, although he
had not told the Respondent that he was going to quit or that he had
quit.
The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by transferring Wimsatt, that the transfer forced
Wimsatt to quit, and that "lie was in fact constructively discharged."
The Trial Examiner accordingly recommended that the Respondent
be required to reinstate Wimsatt to his sanding job, and to make him
whole. However, the complaint, which was issued 5 days after Wim-
satt quit, does not allege that Wimsatt was discharged, constructively
or otherwise; the issue of constructive discharge was not litigated;
and the Trial Examiner stated to. the Respondent, during the hearing,,
that "Mr. Wimsatthasn't been discharged . . . you're not accused of^
having discharged him . . . the charge is not. he was discharged, but
3 The Union won this election , but it was set aside by the Regional Director and a•.
second election was directed. '
1382• DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
the complaint says transfer." It is clear, therefore, that there is no
issue of a constructive discharge properly before us, and we reject
the Trial Examiner's findings in this respect. Further, while there
is evidence that might lead to an inference that Wimsatt was trans-
ferred because of union activities, there is countervailing evidence that
the transfer was made in an attempt to improve production on the
assembly line where Wimsatt worked. In these circumstances, we
find that the evidence does not preponderate in favor of a finding
that Wimsatt's transfer was violative of the Act.
3. The Trial Examiner found that the Respondent violated Section
8 (a) (1) by threatening employee Pottinger. Pottinger was one of the
23 employees who signed the leaflet urging employees to vote for the
Union, served as a union observer at the second election on April 5, and
was the packer on the assembly line next to the one on which Wimsatt
had worked. According to Pottinger, on April 9 or 10, Foreman Pry
approached him while he was working. shook his fist at him, and said
angrily that "you helped Wimsatt and you can help him" (referring
to the packer who had replaced Wimsatt), and that "the least mistake
you make . . . you're going out the door." In appraising this evidence
the Trial Examiner relied on his further finding that Pry did not deny
making the remarks attributed to him by Pottinger. However, Pry's
account of the incident differed materially from that of Pottinger 4
As Pry described it, "Pottinger's line wasn't moving so fast, and he
was standing there doing nothing and the man on the other line . . .
got behind. And I asked John [Pottinger] why he didn't go over and
help this man, since he had found time to help several of the other men
before . . . ." Pry admitted that he may have been talking in a loud
voice because of the noise of the machinery, but denied that he shook
his fist or spoke angrily. As we view Pry's different version to be
tantamount to a denial of Pottinger's version, and as the meaning
of Pry's remarks, as related by Pottinger, is equivocal, we find that
the record fails to establish that Pry's remarks violated the Act.
Accordingly, since we have reversed each of the Trial Examiner's
substantive findings of violation of the Act, we shall dismiss the com-
plaint in its entirety..
B. Case No. 9-RC-5152
. The Union won an election among the Respondent's employees
in December 1962, but it was set aside by the Regional Director on the
ground of the Union's misrepresentations concerning the Respondent's
Profit-Sharing Retirement Plan.,' Prior to the second election directed
* Pry was present when Pottinger testified but became ill during the hearing . His testi-
mony was taken by deposition about a month after the close of the hearing, and was
filed with the Trial Examiner on August 23, 1963.
r )We do not adopt the Trial Examiner 's remarks indicating disagreement with the Re-
gional Director ' s decision setting aside the December election as that decision is not in
issue in the present proceeding.
LOUISVILLE CHAIR COMPANY, INC., ETC. 1383
by the Regional Director, the respondent sent a booklet to its em-
ployees explaining its Profit-Sharing Retirement Plan, with a letter
stating that the booklet was in answer to the Union's misrepresenta-
tions which had caused the first election to be set aside. The booklet
and letter were in terms of "employee" benefits, and indicated that
money paid into the Plan could never come back to the Respondent.
Two days before the election, Stanley Conrad, vice president and one
of three brothers who owned all the stock in the Respondent, presented
the advantages of the Plan at two employee meetings, at which he
stated that money paid into the Plan could not go to the. Conrad
brothers or to Superintendent Wedding.
The Union lost the second election, and filed objections. The
Regional Director rejected all the objections except the one concerning
Conrad's speeches.' As to the latter, the Regional Director found
that substantial issues of fact were raised.
The Trial Examiner recommended that the second election be set
aside. While the basis for this recommendation is not clear from
the Trial Examiner's Decision, it appears that he relied on his findings
that the Respondent materially misrepresented the terms of the Profit-
Sharing Plan in its descriptive booklet, covering letter, sand Conrad's
speeches, by referring to the Plan as a, benefit for "employees" and fail-
ing to state that the three Conrad brothers and Wedding were
participants in the Plan. However, we do not find these remarks to
constitute material misrepresentations. Thus, there is evidence that
employees knew that the Conrad brothers and Wedding were par-
ticipants in the Plan; that the Union had a copy of the Plan for over
9 months, had had an insurance expert study it, and had made com-
ments in its own election literature about the Plan; that there was a
reasonable time in which the Union could reply to the remarks in ques-
tion; and that these remarks were expressly made to answer union
misrepresentations as to the Plan.
Under all the circumstances, therefore, we find that the freedom
of choice of the employees was not sufficiently impaired by these re-
marks to warrant setting aside the election,' and there is no showing
that the employees were otherwise prevented from exercising their
free choice in the April election. Accordingly, we shall certify the
results of the election of April 5, 1963.
[The Board dismissed the complaint.]
6In addition, the Regional Director found , on his own motion , that Wedding' s threat
to discharge Wimsatt would , if true, constitute sufficient ground to set aside the election,
and added this as an objection. While the Trial Examiner found this threat to be a vio-
lation of Section 8 ( a) (1), he did not comment on its effect on the election , but did rely
on-his finding of an unlawful transfer of Wimsatt as a ground for setting the election
aside, although not alleged as an objection . In view of our findings above dismissing the
allegations that Wimsatt was unlawfully threatened or transferred , we find no basis on
either ground for setting aside the election.
7 See Decorated Products , Inc., 140 NLRB 1383.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board certified that a majority of the valid votes in the elec-
tion in Case No. 9-RC-5152 has not been cast for United Furniture
Workers of America, AFL-CIO, and that said labor organization is
not the exclusive representative of the employees in the unit found
appropriate.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed March 21, 1963, by United Furniture Workers of America,
AFL-CIO ( hereinafter referred to as the Union ), a complaint was issued on May
10, 1963, against the Respondents charging them with various violations of Section
8(a)( I) of the Act, which were alleged to consist of reprimanding and threatening
several employees with discharge because of their union activities , and of the trans-
fer of one employee from his regular job to a more onerous and less desirable job
because of his union activities.'
Under date of December 14, 1962 , a vote was conducted among the eligible em-
ployees of the Respondents 2 to determine their choice of a bargaining agent , and the
Union won the election by a vote of 163 to 107 . Upon objection of the Respondents,
the result of the election was set aside by the Regional Director , however, on the
ground that on the day preceding the election the Union had distributed among the
employees a handbill containing substantial misrepresentations concerning a Profit-
Sharing Retirement Plan set up by the Respondents . A second election was ordered to
be held on April 5, 1963 , and this time the Union lost the election by a vote of 134
to 131. Now the Union filed objections to the conduct of the election on various
grounds, among which was the charge that on April 3, 1963, or 2 days before the
election the vice president of the Respondents had made false and misleading state-
ments with respect to the same Profit -Sharing Plan at a meeting of employees held
during working hours on company premises . The Acting Regional Director held
on May 23, 1963, that the evidence submitted by the Union tended to support the
charge of misrepresentation of the retirement plan but that in view of the Respond-
ents' denials issues of fact were raised which could best be resolved by the conduct
of a hearing . Thereupon , he consolidated . the complaint case with the representa-
tion proceeding and set both down for hearing. By way of an addendum, he
also included the Section 8(a)(1) charges against the Respondents as a basis for
setting aside the second election if the charges should be found valid.
On July 9, 10, 15 , and 16, 1963, Trial Examiner William Seagle held a hearing
with respect to the issues in the consolidated case at Louisville , Kentucky. Upon
the conclusion of the taking of testimony , counsel for the various parties waived
oral argument but subsequently filed briefs which have been duly considered.
Upon the record so made , and based on my observations , of the witnesses,3 I
hereby make the following findings of fact:
1. THE RESPONDENTS
The Respondents , Louisville Chair Company, Inc. and Louisville Chair & Furniture
Company, Inc., are both Kentucky corporations which have their principal offices
and plant at 1367 S . 11th Street , Louisville , Kentucky , where they are engaged in
1 This employee was identified at the hearing as Charles Leonard Wimsatt.
2 The bargaining unit consisted of all the production and maintenance employees of the
Respondents, including plant clerical employees and the local truckdriver, but excluding
all over-the-road drivers, garage mechanics, office clerical employees, and all guards, pro-
fessional employees, and supervisors as defined in the Act.
, The testimony of one of the Respondents' witnesses, Richard E. Pry, their finish mill
foreman, who became ill while the hearing was still in progress, was taken by deposition
on August 14, 1963, after which the record was closed. When the deposition of Pry was
taken, counsel objected to various questions put to the witness and made various motions
to strike. All these objections are overruled and the motions to strike are all denied with
a single exception. On page 26, lines 2 to 17, of the transcript of the deposition, there
appears a question put by counsel for the Respondents to the witness relating to whether
Leonard Wimsatt's transfer from the job of sanding to the job of packer was in any way
'brought about by his union activity. Counsel for the General Counsel objected to this
question, and the objection is sustained and the answer of the witness which was "Abso-
-lutely not" is stricken from the record. -
LOUISVILLE CHAIR COMPANY, INC., ETC. 1385
the manufacture and sale of dining furniture. The premises on which both corpo-
rations operate are owned by Louisville Chair & Furniture Company, which is pri-
marily the manufacturing -agency, while the Louisville Chair Company acts as the
sales agency. Both corporations are owned and controlled by three brothers, -namely,
Stanley Conrad, Milton P. Conrad, and Raymond M. Conrad, who hold all the
stock of each of the corporations. Stanley Conrad is vice president of each of the
,corporations; Milton P. Conrad is president of the Louisville Chair Company and
secretary, as well as treasurer, of the Louisville Chair & Furniture Company; Ray-
mond M. Conrad is president of the Louisville Chair & Furniture Company and sec-
'retary, as well as treasurer, of the Louisville Chair Company. I find that the Re-
spondents constitute a single integrated enterprise, and a single employer for the
purposes of the Act.
During the past 12 months, which is a representative period, the direct outflow
-of the products of the Respondents into the channels of interstate commerce had
a value in excess of $50,000. I find that the Respondents are engaged in "commerce"
and in operations "affecting commerce" within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, AFL-CIO, is a labor organization which
has been attempting since March 1962 to organize the employees of the Respond-
ents. I find that the Union is a labor organization within the meaning of Section
.2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
There is no doubt that the Conrad brothers who own and control both of the
Respondents are determined antiunion employers, and that from the moment that
the Union launched its organizing campaign in March 1962 they attempted to
frustrate its efforts by every means in their power. When, on cross-examination,
Stanley Conrad was asked the question: "This organizing campaign was of some
.concern to the Company, was it not?" his reply was: "Oh, yes."
The campaign of the Respondents against the Union was conducted, for the most
part, however, by means of propaganda. There were no mass layoffs, indis-
criminate discharges, overt threats or promises of benefit, or any of the other gross
means by which some antiunion employers seek to defeat a union organizing cam-
paign. The propaganda itself, however, represented on occasion a gross perversion
,of truth, and an example of this sort of propaganda is included in the record. It
consists of a cartoon showing a union boss with a pocket full of money, a diamond
stickpin in his tie, and a cigar in his mouth leering at a worker, and exclaiming:
"YOUR UNION DUES COME FIRST! YOUR WIFE, YOUR KIDS, YOUR
RENT, DOCTOR BILLS ARE YOUR TROUBLES-NOT MINE!
The owners and executives of the Respondents did not confine themselves entirely
to general propaganda, however, but in the case of several employees made plain
their displeasure with their prounion activities in various ways. This was done
primarily through Joseph ("Joe") H. Wedding, the plant superintendent, who ap-
pears to be a man of a rather irascible temper, but who on occasion resorted to
touches of -not-too-subtle sarcasm.
After the Union appeared on the scene , Wedding, in his monthly meetings with
his foremen, would caution them on occasion to be careful in what they said to
employees about the Union and to refrain from making threats, and he also told
them that if there were any questions which' they could not answer to refer the
questioner to him. But, assuming that these instructions were adequate, it is
plain that they were no more than lipservice to.the ideal of neutrality .4 Actually,
all the instruction ever meant to Wedding was that, if there were to be any antiunion
actions taken, they were to be taken exclusively by him .5 The employees themselves
do not appear to have been informed, moreover, that the management was neutral.
'On the contrary, the employees themselves were subjected to a continuing barrage
of antiunion propaganda.
. 4 Such lipservice has been held to be Insufficient when contradicted by deeds of an un-
lawful character. See, for Instance , N.L.R.B. v. Cleveland Cliffs Iron Company, 133 F. 2d
295, 301 ( C.A. 8) : Birmingham Post Company v. N.L.R .B., 140 F. 2d 638; 639-640
(C.A. 5) : N.L.R.B. v. Laister -Kauffman Aircraft Corporation . 144 F. 2d 9. 13 (C.A. 8),
and N .L.R.B. v. Fulton Bag & Cotton Mills, 175 F. 2d 675, 676-677 (C.A. 5).
G The leaflet hitherto referred to, "YOUR UNION DUES COME FIRST!" was not
,only posted on the plant bulletin board but on one.oceasion Wedding paraded around the
-sewing room with the leaflet on his back. ' '
1386 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wedding displayed the irascibility of his temper in an incident that occurred on
March 15, 1963. This incident involved a Mrs. Hermia Harper , one of the sewing
machine operators, who had been working for the Respondents since August 17,
1956,6 and who had been an observer for the Union in the first election.
Ever since this election Mrs. Harper had felt, apparently, that the work was not
being fairly distributed, but in the week preceding March .15 she had been put on
sewing nothing but repairs of upholstery, which- hardly enabled her to make her rate.
On March 14, she had headed a delegation of seven or eight of the sewing machine
operators who went to'see Wedding about the distribution of the sewing of the re-
pairs. Wedding was very courteous on this occasion, and agreed to a scheme of
having each of the operators,take turns gat sewing'repairs for a day at a time. After
the other members of the delegation had left, Mrs. Harper had stayed behind to talk
to Wedding alone. She told the superintendent that if it were shown that the Union
had misrepresented the Profit-Sharing Plan, and there was another election, she would
not come in to vote in that election. Wedding replied, however, that it was her
privilege to vote, and that he wanted her to come in and vote. The Respondents
make much of this reply, contending that it demonstrates Wedding's scrupulous
regard for the rights of the employees. All it demonstrated, however, is that Wedding,
sensing that Mrs. Harper was wavering in her support of the Union, wanted very
much to have her vote.
In any event , there was nothing very courteous , calm, or considerate of the rights
of employees in Wedding's behavior the following day, March 15. He then knew
there would be another election, and that the campaign against the Union would
have to be renewed. In the " morning of March 15, he came into the sewing room
visibly angry and bawled out the sewing machine operators for forgetting to put
their numbers on their work, a procedure that was necessary to make it possible to
trace defective work. Wedding declared that he would not put up with it any longer,
and that he would "fire every God damn one of . them." Mrs. Harper tried to speak
up for the other women, and also pointed out that she was not at fault. Wedding
turned on Mrs. Harper and told her: "Don't argue with me. Don't argue with me,"
and drew his fist back as if to strike her. Mrs. Harper was accustomed to playing a
radio while she was working, and Wedding added: "Furthermore, turn your damn
radio off." To this Mrs. Harper replied: "I will, and I'll get out of here," and she did.
In fact, she then and there quit her job, and swore out a warrant against Wedding
for threatening to assault her. This warrant was subsequently withdrawn, however,
pending the determination of unfair labor practice charges that Mrs. Harper also
proposed to file.
The incident involving Mrs. Harper on March 15 is not alleged in the complaint
as an unfair labor practice, and it may even be that Wedding was no more than angry
on this occasion and turned on Mrs. Harper simply because she had dared to con-
tradict him. I make no finding, therefore, that in reprimanding the sewing machine
operators on this occasion, Wedding was actuated by union animus. I consider
the incident only for the light it sheds on Wedding's character, which was manifested
in other incidents which ar" alleged in the complaint to be violations of the Act.
It was in his treatment of Charles Leonard Wimsatt that Wedding revealed his true
character and his unmistakable union animus. Wimsatt, who had been working
for a long time 7 as the edge sander on the main table assembly line in the finish
mill; had acted as an observer for the Union in the first election. Hardly was the
election over when Wimsatt became the object of the special attention of Wedding
and Richard E. Pry, the finish mill -foreman, both of whom knew that he was a
union supporter and that he had acted as a union observer in the election.
Shortly after the first election, Wedding, accompanied by Pry, came to Wimsatt's
work station on the assembly line. Pry did not say anything but Wedding ap-
proached Wimsatt and remarked: "I suppose they'll be signing the payroll checks"-
this referred, of course, to the Union. which had just triumphed in the election.
Wimsatt made no reply, whereupon Wedding repeated his remark, and this time
Wismatt concurred. "They might at that," he told Wedding as the latter walked off
with Pry. About 2 weeks later, Wedding and Pry returned to the fray. Wedding
e The sewing machine operators were all women.
9 Wimsatt, who had previously been employed by the Respondents for a brief period but
had quit, was again employed by the Respondents in September of 1958. He had, thus,
been working for the Respondents fo'r over 4 years at the time of the first election.
Wimsatt worked successively as a boring machine operator, on matching tables, and in
applying brackets on the assembly line but he asked to be put on the edge sander, and his
request was granted . At the time of the first election, Wimsatt had been running the
edge sander for approximately 3 years.
LOUISVILLE CHAIR COMPANY, INC., ETC. 1387
again approached Wimsatt, and told the latter that he would "have to walk the
chalk line," or he would go out. He added: "I mean walk it. I mean every damn
word of it." At the same time, Wedding turned to Pry, and said to the latter:
"You watch him." Pry told Wedding: "I'm watching him but he knows it." There-
after Pry kept Wismatt under close surveillance. As Wismatt put it: "Well, he
watched me all right." Even if Wimsatt left his-machine to go to the restroom or
to get a drink of water, Pry would follow him.
There were other developments of an ominous nature that were not confined to
reprimands. After the election, the edge sanding machine on which Wimsatt worked
was moved from the fifth to the second position on the main table assembly line,
and Wimsatt was required to operate not only the edge sander but the trim saw.
In other words, he had to perform two jobs instead of one.8
Wimsatt was expecting all along that he would be fired but what actually happened
was that he was removed from operating the trim.saw and the edge sander in the
second and third positions on the assembly line and transferred to a job which
occupied the last position on the assembly line, namely, that of packer. On what day
precisely this transfer was made is not established but it occurred sometime in the.
last week in March, probably between March 25 and 27,.1963.
Wedding attempted to make it appear that Wimsatt was positively receiving favored
treatment in being transferred from operating the trim saw and edge sander to pack-
ing. According to Wedding, the packing job was easier, cleaner, and less arduous.
It is true that when a table came off the assembly line to the packer it was already
in a carton and he merely had to complete the packing by taping the carton. But the
cartons with the tables already in them weighed-depending on the size of the
table-from 40 to over 60 pounds and possibly as much as 80 pounds, and after
the packer slid a carton off the roller conveyor, fie had to lift it a few feet to set it
on a metal top table on which the carton-was taped. Lifting the heavy cartons all day
could be quite exhausting. Ideally, moreover, the packer had to be a tall man whose
arms were long enough to go around the carton when he lifted it. Wimsatt did not
possess these advantages, however, for, while he seemed stocky and vigorous, he
was not very tall. It is also true that as a sander Wimsatt worked in a cloud of
sawdust but to this he was accustomed and it did not bother him. In any event, as
a sander Wimsatt was working on a machine, and doing work which required some
skill, while as. a packer he was simply doing common physical labor, which was
monotonous.and could have afforded him no pride of workmanship. 'The packing
jobs were, actually, so unpopular that nobody wanted them, and the Respondents
themselves had previously recognized the physical strain involved in packing, for until
about a year before the first election they had employed three packers rather than
two to service the two table assembly lines. Furthermore, the packer's job was less
desirable than the sander's in another respect, since packers were paid $1.25 an hour
while sanders were paid $1.50 an hour. To be sure, when Wimsatt was transferred
from the edge sander to packing, his hourly rate of pay was not reduced-itself an
odd circumstance-but this was a special dispensation which could be revoked at any
time.
If there could really be said to be any doubt whether the packer's job was per se
more onerous and less desirable than the sander's job, this doubt may be said to have
been removed by Wedding and Pry in their actual treatment of Wimsatt after he
became a packer. There were two table assembly lines in the finish mill, and there
was, of course, a packer. on each of these lines. Wimsatt was required to pack tables
not only from his own line but from the other lines. As he testified: "And they
taken tables off the other fellow after they put me down there and put tables on
that line." It is not surprising, therefore, that Wimsatt was unable to stand the pack-
ing for very long. On Friday, April 5, he walked out of the plant, and failed to
report for work on the following Monday, April 8. The next day Wedding who,
evidently, had not expected this development, somewhat ruefully asked Wimsatt's
8 This accounts for the discrepancy between the testimony of Pry and Wimsatt with
respect to the number of the letter's position on the assembly line.' Pry testified that
Wimsatt worked in the second position but Wimsatt himself testified that he worked In
the third position. The first position was the nailer, the second the trim saw, and the
third the edge sander. But, since after the election Wimsatt operated both the trim saw
and the edge sander, he was actually working in both the second and third positions.
Wedding testified first that Wimsatt worked in the third position on the line, and then
that be worked in the fourth position on the line but he was, obviously, mistaken about
this. It seems that 22 men worked on the main table assembly line but neither Wedding
nor Pry were able to explain clearly what the various positions were and how many men
worked In each position.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brother, Irving, who was also employed in the plant, why Leonard had not shown-.
up for work, and he was,informed that Leonard had quit.
There are plain indications that Wimsatt, prior to the appearance of the Uniom
on the scene, was considered not only a satisfactory but a particularly valuable em-
ployee. From time to time the -Respondents displayed samples of their furniture
at various furniture marts and, although it is now their practice to manufacture
these samples on the ordinary production lines, they were made formerly after ordi-
nary working hours or on Saturdays and Sundays, and only a few of the more skilled
employees would be selected for this sort of special overtime work. Among these.
employees was Wimsatt. Indeed, although Wimsatt was not anxious to perform
overtime work, it was constantly pressed upon him prior to the first election. After
the election, he was given so little overtime work that he could hardly remember any
of it. It was indeed very little.
Wimsatt was also in a specially favored position as an employee because he was,.
so to speak, a protege of Pry. Before entering the employ of the Respondents, Pry
had been a foreman at the Castlewood Manufacturing Company, which was engaged
in woodworking, and he had hired Wimsatt to work for him there as a drum sander
operator. Wimsatt worked under Pry there for at least 10 years, and while he was
there the two men became well acquainted. Pry visited Wimsatt at his home once
or twice, .and when Wimsatt's wife died, Pry attended her funeral. Pry conceded
that he still had a liking for Wimsatt even after he had transferred him to packing.
It is very much in order to ask why Pry took Wimsatt off the edge sanding
machine and put him on a job that drove him to quit. Actually, however, it was
not Pry but Wedding who took the initiative in the steps that led to his transfer.
In the tale that Wedding told in his attempt to explain and to justify Wimsatt's
transfer, Wedding cast himself in the role of the well-disposed, patient, and long-
suffering supervisor who.had to deal with an errant and fractious employee who
was given every chance to mend his ways but who proved so incorrigible that finally
he was left with no other alternative but to take disciplinary action against him.
According to Wedding, it seems that shortly before he left on his winter vacation
in Florida on January 28, he noticed that several employees on the assembly line
on which Wimsatt worked were standing around idle and he immediately contacted'
Pry and asked the latter to ascertain what was wrong. On the basis of his observa-
tion of the assembly line, Pry informed him that the reason why so many men were
standing around idle was that Wimsatt was slowing down on his job. So he in-
structed Pry to see if he could not get Leonard straightened out but also warned
him to be careful because Wimsatt had been an observer for the Union in the elec-
tion. Upon his return from Florida on February 18, Pry reported to him that
Wimsatt had improved for a while but that now "he was back in the same old rut,"
and he told Pry that they would have a chat with Wimsatt later that morning. When
he and Pry walked over to the assembly line to talk to Wimsatt, the latter was per-
forming his work in an entirely satisfactory manner which Wedding attributed to the
fact that Wimsatt knew that he was under observation. After watching Wimsatt
for a few minutes, Wedding walked up to the latter and asked: "Have you heard
from the boys uptown?" (this referred of course, to the Union), but, receiving
no answer, he remarked that he would imagine that by now "they would be signing
our payroll checks," whereupon Wimsatt finally observed "I reckon so," or "maybe
so." He then told Wimsatt to "get on the ball" and do his work right, or he would
be forced to make some other arrangement. However, about a week or 10 days
later, Pry again came to him and told him that they would have to do something
about Wimsatt because on some days he would work well but not on other days,
and that he then remarked to Pry that he was tired of hearing about Wimsatt and
told Pry "for goodness sake, transfer him to another job as soon as you can." Pry
did so a couple of weeks later, and a few days later, observing that Wimsatt was doing
a good job at packing, he told Pry "for goodness sake leave him there."
So far as the sequence of events related by Wedding is concerned, the testimony
of Pry agrees, in general outline, with the superintendent's. Pry, too, assigned the
initiative to Wedding, and his testimony deals primarily with the way he carried
out Wedding's instruction to keep Wimsatt under observation. From this observa-
tion, Pry testified, he deduced that the source of the trouble must be Wimsatt be-
cause he was the second man on the assembly line, and the men who were idle were
all in positions below him. So he asked Wimsatt-he always referred to him as
"Leonard"-"What's the matter, Leonard, aren't you feeling well?" but Wimsatt
remained silent giving him no answer. He, thereupon, reported to Wedding that he
thought "Leonard was dragging his feet," and received instructions from Wedding to
see if he could not "straighten him out." During the period that Wedding was
taking his vacation in Florida, Pry testified during his direct examination , he spoke
LOUISVILLE CHAIR COMPANY, INC., ETC. 1389
to Wimsatt twice-once about scratches on the tables and once because "the line
was slowing down again" [ emphasis supplied]. Pry confirmed , that when Wedding
and he talked to Wimsatt after the superintendent 's return from Florida, the latter
did ask how "the boys uptown were doing" but when pressed on cross-examination
to state what he thought Wedding meant by that, Pry replied : "I'm-going to take the
Fifth Amendment on that one." In testifying concerning what Wedding said to
Wimsatt on this same occasion , Pry did not mention that Wedding had threatened
to make other . arrangements if Wimsatt did not get on the ball. Pry merely testi-
fied that Wedding said to Wimsatt : "Well, Leonard , I know you can do this work, and
all you have to do to hold your job around here is to get on the ball and do it like
you formerly did." In fact Pry conceded that he never warned Wimsatt that he might
be transferred if his work did not . improve, and also that he never threatened to
discharge him. Pry also testified that when , after his continuous backsliding, he
decided to transfer Wimsatt to packing, he put one Bratcher , his repairman, who
could work in any position , in Wimsatt 's place as sander . But neither Pry nor
Wedding ever explained what had happened to the packer whom Wimsatt replaced.
According to Pry, he chose the packing job for Wimsatt because it was "a slower-
pace job." On his direct examination , Pry testified that he thought that the cause
of Wimsatt 's trouble was that he was not equal to the physical requirements of the
job. "You're in wood and metal dust continuously ," he explained , "and you have to
go at a much - greater speed physically than the -packing job. And I thought probably
that was Leonard 's trouble. He is rather large and maybe the speed was too much
for him , or getting too much for him." Indeed, Pry pictured Wimsatt as "a big
man" who weighed from 265 to 270 pounds.9
I do not credit any of the testimony of Wedding and Pry, where it is inconsistent
with that of witnesses for the General Counsel, and I reject entirely the testimony
given by them in their effort to explain and justify Wimsatt 's transfer . In his own
testimony, Wimsatt explicitly denied all the basic ingredients of their story, and I
credit his denials. Thus, Wimsatt denied that he was either slowing down in his
job, or that he was deliberately working at a slower pace; or that the men working
below him on the assembly line were standing around idle, waiting for tables to come
from him ; or that Pry ever came to him in the month of January and asked him why
he was dragging his feet, or complained that the men below him were idle. Wimsatt
did testify that on one occasion , which he fixed , however, as occurring after the mid-
dle of March , and would , therefore , have occurred shortly before his transfer to
packing, Pry did bawl him out about scratches on tables which were in no way his
fault-indeed , even Pry admitted that he could not trace the scratches to Wimsatt-
and it is apparent from Wimsatt 's testimony that Pry administered the wholly un-
justified rebuke with every indication of anger.
Wedding destroyed his credit as ^a witness by virtue of the testimony that he gave
concerning the date when Wimsatt was transferred to the packing job . During his
direct examination , he did not assign any precise date to Wimsatt 's transfer but
from his timing of the sequence of the alleged events leading to the transfer, be
left the impression that the -transfer occurred shortly after March 15. Asked on
cross-examination when Wimsatt was transferred , he replied : "About-oh, sometime
around March 20th , 22nd along in there ." At this point I -asked Wedding whether
he could not ascertain the exact date of Wimsatt 's transfer from the company records,
and he replied positively and without any qualification that there were no records
of transfers in the department where Wimsatt worked because transfers were so
frequent . I then asked Wedding to state what his best recollection was as to the date,
of Wimsatt 's transfer , and he then introduced a step which he had not previously
mentioned at all, and testified that Wimsatt had been permanently transferred to
packing "approximately March 26th or 27th" after he had been provisionally trans-
ferred to packing about a week or 10 days prior thereto . Subsequently , he attributed
to the provisional nature of the transfer his failure to reduce immediately Wimsatt's
rate of pay from $ 1.50 to $1.25 an hour. In the morning of the next day's session
of the hearing, however, counsel for the Respondents announced that he had been
informed by-Wedding that he had checked the records , and found that Wimsatt had
been permanently transferred to packing "on or about March 11 , 1963." Wedding
now resumed the stand, and produced a record initialed by him indicating that
Wimsatt had been transferred to packing on March 11 , and he added his own
recollection that Wimsatt had been provisionally transferred to packing several days
prior thereto. He now also sought to make it appear that in testifying the previous
day he merely could not "recall definitely" whether the Company kept records.
9 Pry gave his own weight as 256 pounds before his illness.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel contends that Wedding changed his testimony
as soon as he realized that if Wimsatt's transfer occurred on March 26 or 27, it
would have been made with knowledge that the Regional Director had set aside the
first election on March 14, 1963, and hence that another election was impending.
Possibly this theory is correct. A more likely theory would be that just before
Wedding retracted his testimony of the previous day counsel for the Respondents had
complied with a request to produce bonus percentage figures 10 which showed that
if Wimsatt was transferred provisionally to packing during the week ending March 19,
as Wedding first testified, the highest bonus-percentage for any week in the months of
February and March was achieved on the assembly lines in the finish mill during that
very week, i.e., the week ending March 19. In the months of February and March
1963, the bonus percentage figures were as follows:
Bonus
For week ending: percentage
February 5---------------------------------------------------33
February 12--------------------------------------------------25
February 19--------------------------------------------------30
February 26--------------------------------------------------23
March 5-----------------------------------------------------24
March 12----------------------------------------------------32
March 19----------------------------------------------------37
March 26----------------------------------------------------30
However,. I do not deem it necessary to determine what Wedding's motive was
for changing his testimony. It is sufficient that he gave false testimony either on
the first or the second occasion that he testified concerning the date of Wimsatt's
transfer.
As for Pry, he, too, gave testimony in at least one respect that also discredits
him as a witness. In testifying that Wimsatt was a big man who was heavier than he
himself was and weighed from 265 -to 270 pounds, he exaggerated Wimsatt's weight
by at least 75 pounds. As Pry's deposition was taken before another officer," I did
not, of course, have the opportunity of observing Pry's demeanor while he was testify-
ing but I did observe him at the hearing, for he was present during its first 2 days."
And, of course, I also had the opportunity to observe Wimsatt who was not only
present but testified at the hearing.
Apart from these considerations, I also discredit both Wedding's and Pry's testimony
because of "the numerous other respects in which they contradicted themselves and
each other, and also because of the inherently absurd nature of the story unfolded. by
them in attempting to explain Wimsatt's transfer.
Thus, as already indicated, neither Wedding nor Pry could ever quite make up
their minds as to when they transferred Wimsatt to packing. They would give one
date on- direct examination, and another on cross-examination. The contradiction
in the testimony of Pry in this respect is particularly significant. On direct ex-
amination, he followed a time sequence which was roughly consistent with the
March 11 date, on which Wedding had finally fixed. But on cross-examination,
he testified that Wimsatt had been transferred about March 25, which was indeed
the approximate date of his transfer.
Even more basic contradictions are to be found in the attempts of Pry to explain
the reasons for Wimsatt's transfer. The fact that Pry first attributed the idleness
on Wimsatt's line to possible illness certainly would imply a friendly attitude and
even concern on Pry's part, and would also indicate that he was not ready to
impute blame to Wimsatt. Yet, a few days later, he was supposedly telling Wedding
that he thought Wimsatt was "dragging his feet." This clearly implies that he now
thought that Wimsatt was not performing his work in a proper manner and that
the fault was his. But the reason Pry now gave for Wimsatt's supposed inadequacy
was his deteriorating physical condition. If Wimsatt's physical condition was caus-
ing him to slow down, this, too, would be a factor beyond his control, and no such
fault would be imputable to him as is implicit in the accusation that he was dragging
his feet. Moreover, if he had really slowed down because of a decline in his physi-
cal capacities how could he be performing satisfactorily one week but not the next?
10 In addition to their basic hourly rate of pay. the employees on the two assembly lines
in the finish mill worked on a bonus, and Wedding made much of the fact that Wimsat•t's
supposed slowdown had disastrous effects on production, and the earnings of the other
employees.
11 Counsel for the Respondents called attention to Pry's presence at the hearing in re-
porting that he had been taken 111.
LOUISVILLE CHAIR COMPANY, INC., ETC. 1391
An even more pointed question is why, if Wimsatt was slowing down, due either to
decrepitude or advancing age, was he put on operating two machines, the trim saw
and the edge sander, when previously he • had been operating the latter alone.
This would imply that Wedding and Pry either thought that he was capable of assum-
ing this dual burden, or that they deliberately chose to burden him with the opera-
tion of the two machines. If the first supposition is true, they could not have be-
lieved that Wimsatt was slowing down, and if the second supposition is true, they
deliberately put Wimsatt in a vulnerable position. Wimsatt himself, although not
too articulate, sensed these contradictions, for at one point in. his testimony he
exclaimed:. "Then they said I slowed down on my work, and they gave me two
more jobs to do, but yet I slowed down in my work." In the end, Pry was forced
to advance reasons for Wimsatt's failure to give satisfaction that had nothing to do
whatsoever with his physical condition. Upon cross-examination by counsel for the
General Counsel he testified:
Q. And the reason you say for the transfer was what, Mr. Pry?
A. His disregard for our previous instructions about his work.
And, upon cross-examination by counsel, for the. Charging Party, he testified:
Q. Did you ever determine.the reason (for Wimsatt slowing down the line),
if any?• .
A. Just a mental attitude, is all I could ever lay it to. [Emphasis supplied.]
There are improbabilities as well as contradictions in the attempts of Wedding
and Pry to explain how they determined. that:it was none . other than Wimsatt who
was holding up the line. To be certain that the culprit was Wimsatt, Wedding
would at least have had to assume' that he was at the. head: of the line.. But the
mere fact that at two different points in his testimony Wedding put Wimsatt in
different positions on the line-in the third and then in the fourth position on the
line-is in itself sufficient to demonstrate Wedding's uncertainty.. Although Wed-
ding was of the opinion, moreover, that Wimsatt had been a good, employee, he
manifested, apparently, no surprise whatsoever when Pry informed him that Wimsatt
was holding up the line, and failed to subject Pry to anything that could even re-
motely be said to constitute cross-examination. He was, obviously, all too willing
to take Pry's word for it that Wimsatt was to blame. As for Pry, who, supposedly,
actually observed Wimsatt, he was satisfied that it was all Wimsatt's fault simply
because he was in the second place on the line, although he conceded that it was
not always the sander's fault that the line slowed down and that it might be due
to other causes. Moreover, it could also have been the fault of the employee in the
first, position on the line, namely, the nailer. When confronted with this possibility,
Pry countered with the assertion that Wimsatt was the only one who worked a posi-
tion by himself, although he had himself already testified that there was only one
nailer, and this could mean only that the nailer was also one who worked a position
by himself. Furthermore, both Wedding and Pry agreed in their testimony that
the employees on the two assembly lines in the finish mill did not work as individuals
but as a group, and that it was expected of all of them that they would help each
other to prevent anyone from falling behind and causing others to stand idle.
Clearly, therefore, responsibility could not be fixed on Wimsatt alone , especially
since he was operating two machines rather than one, and would more likely be in
need, of help. I do not credit Wedding's explanation of the reason why Wimsatt
was operating two machines, which he ascribed to the fact that the production lines
had-been: undergoing general adjustment. If this were true, however, it would only
furnish another basis for concluding that the difficulties experienced by particular
employees on the lines might be due to the general adjustment.
Even more extraordinary is the rather casual and leisurely manner in which
Wedding and Pry handled the case of Wimsatt•who, according to them, was an
employee who was dragging his feet, and who was affecting production on both of the
assembly lines in his department. Never in the period of more than 2 months
that they say they were debating, supposedly, what to do about Wimsatt did Wedding
summon Pry to his office for anything like a serious discussion of the supposed prob-
lem presented by Wimsatt. It seems that Wimsatt was discussed only when Wedding
happened to encounter Pry accidentaly somewhere-by the elevator or at the head of
a stairway. Even when Wedding returned from his vacation in Florida, he' did
not summon Pry to inquire whether he had managed to straighten Wimsatt out.
Again they just happened to run into each other. Moreover, although these chance
encounters extended over a period of more than 2 months after Pry had discovered,
apparently, that Wimsatt was dragging his feet, they actually did nothing about
744-6 70-6 5-vol. 146--89
1392 DECISIONS OF NATIONAL LABOR RELATIONS,BOARD
discharging him or transferring him to other work where his regrettable conduct
would have a less calamitous effect. This inaction becomes all the harder to under-
stand in the light of the facts that Pry had a general utility man who could replace
Wimsatt at any time; the packing job required no particular skill; and the packer
on the job, whose name was Whitworth, could be shifted. to other work, as indeed
he was when Wimsatt was put on packing. It is also rather strange that during this
whole period of more than 2 months, no entry was made in Wimsatt's work record
to indicate his poor performance although, admittedly, such records were kept and
it was customary to make such entries.
Finally, there is the curious anomaly that even after Wedding and Pry had made up
their minds to transfer Wimsatt to packing, and had actually effected the transfer, they
did not reduce his rate of pay, although packers were paid less than sanders. When
confronted with this anomaly, Wedding attempted to explain it as something which he
had not yet gotten around to eliminating in view of the provisional nature of the
transfer and of Wimsatt's brief tenure in the packer's job. "Well," he testified,
"that-Wimsatt's rate of pay-would probably have been changed later on. We
just hadn't gotten around to changing it. He hadn't been down there so long. But
that would probably have been changed later on. Sometime I would change some-
one to a job and not change their hourly rate of pay." When Pry was confronted with
the same anomaly, however, he did not seem to agree with Wedding. He ascribed
the failure to reduce Wimsatt's pay after the latter was transferred to the fact that
be was seeking to rehabilitate him and, therefore, did not wish to antagonize him.
Thus, Pry testified:
Q. Why did you give this man the same rate of pay that he had as a sander
operator?
A. That's customary. We often transfer men from different . positions.
Q. When you transfer, is it your testimony, sir, that when you transfer a
man from a job that he cannot perform satisfactorily to a lower rated jobs it is
usual and customary for the Louisville Chair Company to maintain its higher
rate at the lower paid job?
A. No, you misunderstand me.
Q. I sure did. You explain it to me.
A. Leonard has been working for the Company for a long time, longer than
the average.
Q. Yes, sir. Three and a half years, you said.
A. And he has been a good worker. We were trying to get him back to his
former productive efforts. And you can't do that by antagonizing them.
By quitting Wimsatt defeated Pry's rehabilitation project. But the rehabilitation
that Pry had in mind had nothing to do with the improvement of the quality of
Wimsatt's work. It is a fair inference that Wimsatt's rehabilitation would have
been accomplished only if, in Pry's estimation, Wimsatt had learned the danger of
being a union supporter. I find that Wimsatt was transferred from the sander' s to the
packer's job shortly before the second election in order to discourage him and his
fellow employees from supporting the Union in that election.
This is further confirmed by a little incident that occurred, a few days after
Wimsatt's departure on April 5, which was also the date of the second election.
When he did not appear for work, Virgil Whitworth, the packer whom he had re-
placed,12 seems to have returned to his packing job. The packer on the other assembly
line was an employee by the name of John Alvin Pottinger. On April 9 or 10, the
tables were coming so fast that Pottinger, who was two tables behind on his line and
who was swinging one of the large cartons around , noticed Pry standing there
(ordinarily, Pottinger testified , if the place burned down, be would not notice it).
When Pottinger observed Pry, the latter's face was rather red; he was shaking his fist
at him , and hollering at him something to the effect: "You helped 13 Leonard Wimsatt
(Pottinger, apparently liked to refer to him as "Weinsett") and you can help him"
(referring to Whitworth, the packer on the other line). Then Pry added a threat to
discharge Pottinger. As the latter testified : "'The least mistake you make,' or, 'The
least slip you make,' something of that nature, he said, 'you're going out the door,'
or,'you'will go out the door'-I can't recall the exact wording of it."
12 Virgil Whitworth was apparently known among the employees as "George."
13 At page 284, line '8, of the transcript. the word "helped" is erroneously given as
"help," and it is corrected accordingly. \Vlmsatt was no longer there, of course, to be
helped. On cross-examination, Pottinger himself corrected the error. Thus, he then testi-
fied: "As I was saying, he did not bawl me out . . . he started out because I had helped
Leonard Wimsatt, and then apparently he was bawling me out after that for not helping
Virgil Whitworth." [Emphasis supplied.]
. LOUISVILLE CHAIR COMPANY , INC., ETC . 1393
There is no doubt whatsoever that the incident occurred substantially as Pottinger
testified . Pottinger is, to be sure , something of a "character ." For a while he seemed
to be unable to recall any "conversation" with Pry but it turned out that this was
because he did not regard a bawling out as. a "conversation ." "In my understanding,"
he explained , "a conversation is a two-way topic . I talk to . you and you talk to me.
And if I 'd come up and start bawling you out, that is not a conversation . That's a
one-way dialogue ." But there is not the slightest reason to doubt the accuracy of
Pottinger 's recollection about the incident for the simple reason that Pry did not deny
anything that Pottinger attributed to him on this occasion except that he had shaken
his fist at him . He did not even deny that he may have been shouting at Pottinger,
although he claimed that this was necessary because the machinery made so much
noise.
Pry also insisted that he had bawled Pottinger out many times before and,
while this may be true , the bawling out on'April 9 or 10 seems to have been
wholly uncalled for, and can only be attributed to some special animus. It so
happens that Pottinger had been an observer for the Union in the second election
of April 5, even as Wimsatt had been an observer for the Union in the first election
of December 14. The mere fact that Pry shouted at Pottinger : "You helped Wimsatt,"
thus linking their names , reveals the nature of Pry's animus . The latter must have
been still smarting , like Wedding , because Wimsatt had surprised them by quitting,
and he was simply giving expression to his anger by threatening another union
adherent.
IV. THE ISSUE IN THE REPRESENTATION PROCEEDING
As the Profit-Sharing Retirement Plan set up by the Respondents has been involved
in both elections, and as the grounds on which the first election had been set aside
constitute the necessary background of the Union's attack upon the second election, I
shall proceed to summarize the principal features of the plan, and to review the find-
ings made,by the Regional Director with respect to the first election.
The Profit-Sharing Retirement Plan-it will be referred to hereinafter simply as the
Plan-was created by the Respondents in 1955. The Plan, with subsequent amend-
ments, has been approved by the Internal. Revenue Service of the U.S. Treasury
Department which has found that it meets the requirements of Section 401(a) of the
Internal Revenue Code. The Plan provides for contributions by the Respondents in
each fiscal year of a percentage of their net profits before income taxes but these
contributions are entirely voluntary, and the Respondents may change or terminate the
Plan at any time, subject to such rights as are vested under the terms of the Plan.
Up to the end of 1962, the Respondents had contributed $327,351.29 to the fund
created by the Plan, which is administered by a trustee and an advisory committee
of three members elected by the board of directors of the Respondents. The invest-
ments made by the trustee up to the end of 1962 had increased the value of the trust
fund created by the Plan to $356,848.61.
The beneficiaries of the Plan-denominated "participants" in the Plan-are its full-
time employees who are not less than 25 years of age and who have completed at
least 5 years of continuous employment with the Respondents. Under the terms
of the Plan, an accumulation account, the amount of which is determined on points
based on his earnings and length of service, is set up for each participating employee
and after 2 years' participation in the Plan the trustee may purchase life insurance
for him from the accumulation account to his credit. But, except for his interest
in such insurance, the accumulation account of a participating employee does not
become vested until he has been a participant in the Plan for 5 years, for if he quits
or is discharged before then be forfeits his account. After this initial 5-year period,
the amount vested in a participant's account is increased by an additional 5 percent
each year until completion of 15 full years of participation in the Plan at which
time 100 percent of the participant's account becomes vested. However, an em-
ployee who is discharged because he has been guilty of fraud, theft, or destruction
of property forfeits all his interest in his account and the amount to which he would
otherwise have been entitled is allocated to the other participants in the Plan in the
same manner as the contributions of the Respondents. On the other hand, a
participant's interest in his accumulation account also becomes fully vested when he
dies; becomes totally and permanently disabled; or if the Respondents discontinue
or suspend contributions to the Plan. In the event of the death of a participant,.
during the first 2 years that he is covered by the Plan, his beneficiary becomes entitled
to be paid all the money to his credit but, if he dies thereafter, his beneficiary is en-
titled to receive, in addition, the full amount of the insurance on his life. An em-
ployee who is totally and permanently disabled is entitled to 100 percent of the
amount credited to his account plus the proceeds of any insurance obtained for him.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon retirement, which normally occurs at the age of 65, a participating employee
obtains a retirement income based on the full amount credited to his accumulation
account, plus the amount of the cash surrender value of his insurance.
The handbill distributed'by the Union on the eve of the first election consisted of a
single mimeographed sheet of paper headed:
LOUISVILLE CHAIR COMPANY EMPLOYEES
WHAT ARE YOUR CHANCES OF SHARING
IN THE
COMPANY'S' PROFIT-SHARING PLAN
The handbill itself had three main subdivisions entitled, respectively, (1) "Do you
know?" (2) "Whose accumulation account is it?" and (3) "A Life Insurance Policy?"
It was, obviously, the basic purpose of the writer of the handbill to convey a mes-
sage to the employees of the Respondents that it took many years of employment
to become participants in the Plan, and to obtain substantial benefits thereunder, but
some of the illustrations employed in developing this theme contained inaccuracies.
In their attack upon the union handbill, the Respondents contended that it was
either false or misleading in 12 different respects. In his findings, however, the
Regional Director commented on only two of them. Thus, he held that the Union had
misrepresented the Plan (1) in stating that if a participating employee left after he
had been in the Plan for a total of 15 years, he would be eligible to receive only 50
percent of his accumulation account, and that the other 50 percent would be forfeited;
and (2) in stating that: "So you must have worked at least 8 years before you get
any benefits from the plan." As the Regional Director correctly pointed out, the
first statement was a misrepresentation of the Plan because after 15 years' participa=
tion in the Plan the accumulation account would be vested to the extent of 100
percent, and the second statement overlooked the benefits in the event of permanent
and total disability or death.
So far as general comment is concerned, the Regional Director in his decision
began by quoting a passage from Hollywood Ceramic Company, Inc., 140 NLRB
221, in which the Board laid down the standards which it would follow in deter-
mining whether an election should be set aside. Under these standards, a mis-
representation need not be shown to be deliberate but it must represent "a substantial
departure from the truth," and must be of such a character as "to have had a real
impact on the election." Holding that he was satisfied that the Union had violated
these standards, the Regional Director declared:
It is clear that the Petitioner (the union) from its efforts to secure the informa-
tion concerning the profit sharing plan, its transmission of the plan to its in-
surance consultant and the publication of the handbill on the day preceding the
election, believed that it had a telling point in the campaign and that any sub-
stantial misrepresentation could consequently affect the result of the election.
The undersigned concludes further that the leaflet did convey a substantially
erroneous picture of the Employer's Profit Sharing Retirement Plan.
It is not my intention-and it is, of course, not within my province-to express
disagreement with the Regional Director's decision, which, in any event, has become
final. But, as it has often been observed, hindsight is usually better than foresight,
and the evidence in the present case suggests doubt that the inaccuracies in the
union handbill had "a real impact on the election" which the Union won by a
majority of 56 among the 270 valid votes counted. The basis for this doubt is that
the overwhelming majority-of the eligible voters in the election had no present
interest in the Plan whatsoever. In the first place, it is established by the testimony
of Pry that 31/2 years of employment is longer than the average period of employ-
ment. Since continuous employment for a period of at least 5 years is necessary
before an employee can qualify under the Plan, the average employee would cer-
tainly not obtain its benefits. In the second place, it is established by the testimony
of Stanley Conrad that only 82 to 85 employees were participants in the Plan, and
that 21 of the participants were not eligible to vote (indeed 9 or 10 of these 21 were
supervisory employees). Thus only 61 to 64 of the eligible voters had any present
interest in the Plan. Since the Union won the election by a majority of 56, its
majority was almost equal to the total number of employees who had a present in-
terest in the Plan, and the majority may well have been larger if the challenged bal-
lots, which numbered 30, had been examined, and the challenges determined. More-
over, the evidence in the present case also suggests that the essential message of the
Union's handbill which was that the average employee did not stand to benefit much
from the Plan was also true, for .not only were the three Conrad brothers and
Wedding participants in the Plan but they were undoubtedly its principal beneficiaries,
since each of the three Conrad brothers draws a combined salary of $19,200 from
LOUISVILLE CHAIR COMPANY INC. ETC. 1395
the Respondents, which is at least six times,the normal. pay of its average produc-
tion employees. In addition, they possessed the inestimable' advantage of being in
no danger of discharge, since as owners of .the corporation they would not be likely
to discharge themselves. Thus their interests in the Plan would be singularly secure.
In any event, even in the decision setting aside the first election, there is no finding
that the misrepresentations embodied in the union handbill were deliberate. They
would have to be deliberate to justify such epithets as "lies" and "trickery," and the
like. As a matter of fact, the Plan is a complex document which is difficult for an
outsider, even an expert, to describe with entire accuracy.14 Nevertheless, the Re-
spondents proceeded to apply such epithets to the conduct of the Union.
Under date of March 25, 1963, the Respondents issued under the signature of'
Wedding a circular letter addressed "To Our Employees," -in which they sought to
capitalize upon the decision setting aside the first election by repeatedly accusing the
Union of lying and 'trickery in issuing the handbill about the Plan on the eve of the
first election. "This election was set aside," Wedding stated in the very first paragraph
of the circular letter, "because of false and misleading statements which the union
made in a handbill put out late in the afternoon the day before the election, to trick
and deceive you into voting for them." After calling attention in the second para-
graph of the circular letter to the impending election on April 5, Wedding continued
in similar vein: "Now that these outsiders have shown you themselves that they
are irresponsible and that they will not hesitate to misrepresent the facts to you and
lie to you if it is to their interest to do so, I would certainly think that those of you
who voted for this union before would want to think very seriously about the mat-
ter.before you do so again." Opening the very next paragraph, Wedding repeated
the.same thought again. "Even if you felt that you needed a union to handle your
affairs for you," he declared,,"I don't see how any of you could vote in favor of a
union who has shown you that they • have no reluctance in lying to you or trying
to trick and deceive you." Having thus accused the Union repeatedly of lying,
trickery, and deception, Wedding went on in the next paragraph, which was the
fifth paragraph, to cover himself with a veil of piety by actually quoting what the
Regional Director had said in reaching his decision. He -then proceeded to inform
the employees to whom the circular letter was addressed that he was enclosing a
printed booklet which would give them "a good many facts about the Profit Sharing.
Retirement Plan. .
The printed booklet to which Wedding referred in his circular letter, and which
was distributed with it, is indeed a handsome production. Entitled "A PLANNED
RETIREMENT FOR YOU," it not only runs to 10 pages but it also has highly
attractive illustrations depicting some of the benefits or the joys of security and
longevity One illustration shows a broadly smiling employee standing by veritable
skyscrapers of coins and bills; others exhibit a fisherman in the act of landing a big
fish; a happy employee. being interviewed . by. an insurance company representative;
and a couple in their golden years lying in deck chairs at their ease while the sun
shines overhead.
'As for the text of the booklet, no inaccuracies are to be found in the actual exam-
ples given of the highlights of what is called Your Retirement Plan. But the book-
let as a whole creates the false impression that the Plan is exclusively for the benefit
of the average rank-and-file employee. On the very first page of the booklet, the
employees are told by white lettering in capitals on a red banner "this is YOUR
RETIREMENT PLAN." "You" and "your" are used almost four dozen times in
the booklet. At least a dozen times the booklet makes references to the "employees"
as "eligible employees" or "participating employees." The booklet undertakes to
answer such questions as: "WHEN WILL AN EMPLOYEE RETIRE? MAY AN
EMPLOYEE RETIRE BEFORE AGE 65? HOW MUCH WILL AN EMPLOYEE
GET. WHEN HE RETIRES? WHAT IF AN EMPLOYEE DIES ,BEFORE RE-,
TIREMENT? WHAT IF AN EMPLOYEE BECOMES DISABLED BEFORE. RE-:,
TIREMENT?" All these questions are printed, moreover, in boldface, type.
. There are also in the booklet, to be sure , a few references to "members, of the,
plan" on pages 6 and 8, and one of these references is even to be found in boldface
type in a question: "WHAT HAPPENS TO THOSE WHO ARE MEMBERS OF'
THE PLAN IF IT IS DISCONTINUED?". The term "members,of the plan" is
nowhere to be found in the text of the Plan itself which uses only such terms as,
"employee" and "participant." 15 It is important to realize that in fact it is im-'
14 The Plan runs to'28 pages of legal cap size, and amendments cover another 7 pages.
15 In Article 2.7 of the Plan, the term "employee" is defined as "a person regularly em-'
ployed full time by the Company, and does not include part time or temporary employees,"
and in Article 2.10 of the Plan the term "participant" is defined as "any employee who
becomes a participant in the Plan as required by Article 3."
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible to tell from any of the provisions of the Plan itself that the three Conrad
brothers and Wedding are beneficiaries under the Plan. Apparently, they made
themselves beneficiaries by voting themselves salaries as "employees" of the corpo-
rations. It was, obviously, to avoid revealing that they, too, enjoyed the benefits of
the Plan that the term "members of the Plan" was invented. Thus, in the booklet
they appear in false face.
But in the law of corporations officers of a corporation are not its "employees."
It is only in the lush jungles of statutory English that corporate officers have come
to masquerade as "employees," 16 and it would be too much to expect the untutored
and unsophisticated manual workers employed by the Respondents to regard as
"employees" the three Conrad brothers who owned the corporations and who were
in fact their employers.
The Respondents make much of the fact that the Plan has been approved by the
Internal Revenue Service because, apparently, this would indicate that the Conrad
brothers could be, with entire propriety, participants in the Plan. But the fact that
their participation in the Plan might be permissible under the technical requirements
.of the Internal Revenue Code would not in itself justify the failure to explain in
the booklet the extent of their participation in the Plan. In any event, the approval
of the Plan by the Internal Revenue Service is less significant than it seems, in view
of the failure of the Plan itself to reveal that the three Conrad brothers were intended
to be participants, and the failure of the record in the present proceeding to show
affirmatively that the extent of their participation was revealed when the Plan was
submitted to the Internal Revenue Service for approval. If it had been, there is
reason to think that it might have failed to win approval, for, while under Section
401 of the Internal Revenue Code, of which I have been asked to take official notice,
an officer may apparently be a participant in a Profit-Sharing Plan, there is a lim-
itation with respect to such participation. Under Section 401(a) (4), a plan can
quality only "if the contributions or benefits provided under the plan do not dis-
criminate in favor of employees who are officers, shareholders, persons whose
principal duties consist in supervising the work of other employees, or highly com-
pensated employees." Furthermore, Section 401 of the Internal Revenue Code was
amended in a considerable number of respects by acts of October 10, 1962 (76
Stat. 809), and October 23, 1962 (76 Stat. 1141), which were enacted, of course, at
least 5 months prior to the issuance of the booklet, and at least one of these amend-
ments would seem to have invalidated the provisions of the Plan under which a
terminated participant's account inures to the benefit of the other participants of
the Plan, for Section 401(a)(8) now provides: "A trust forming part of a pension
plan shall not constitute a qualified trust under this section unless the plan provides
that forfeitures must not be applied to increase the benefits any employee would
otherwise receive under the plan."
Finally, apart from explaining the provisions of the Plan itself, the booklet illus-
trates the unremitting nature of the propaganda campaign conducted by the Re-
spondents against the Union. At the top of page 8 of the booklet, there appears the
following:
I CHANGES IN THE RETIREMENT PLAN
Will This Profit Sharing Plan Always BE CONTINUED?
The company hopes and expects to be able to continue the plan indefinitely.
However, according to the Trust Agreement, the Company can change or
terminate the plan at any time. The company's ability to continue the plan de-
pends on profits, and profits depend on the success of all of us working together
as a team.
If it had been stated in the booklet merely that the Plan was subject to change or
termination at any time, the statement would have been wholly unobjectionable. for it
would simply have stated an undoubted fact. But to couple this statement with the
warning that the continuation of the Plan depended on profits, and that profits in turn
depended on "the success of all of us working together as a team" was, in the context
16 In this luxuriant growth all is not what it doth seem . Modern statutes define words
in senses that would make Webster turn in his grave . The term "street" has been de-
fined, for instance, so as to include waters, rivers, bridges, viaducts , parkways . highways,
and public places , and the term "street railway" has been defined in such a way as to in-
clude subways . The field of modern social -legislation is particularly rich in exotic blooms,
and the term "employee" has particularly attracted the defining powers of legislatures..
Thus, an officer of a corporation may be an employee for the purposes of. social security
legislation , or for taxing purposes.
LOUISVILLE CHAIR COMPANY, INC., ETC . 1397
of the pending election , also a 'plain warning against entanglement with the Union,
and a not too veiled threat that the success of the Union would imperil the continua-
tion of the Plan. It must be also considered, moreover, that at the bottom of the very
same page of the booklet, in explaining what happens to an employee's share in the
trust fund when he quits or is terminated, the further statement is made: "Any money
forfeited by termination of employment is divided up among all the other members of
the plan and credited to their accounts. In this way loyal employees who remain
with the company are rewarded. The Company can never get back any of this
money" [emphasis supplied]. This emphasis upon the loyalty of the employees
renders the statement both inaccurate and propagandistic. No question of loyalty
is involved when an employee voluntarily quits or resigns, for he may be compelled
to do so by circumstances beyond his control. By stressing the requirement of loyalty
further point is given to the warning against entanglement with the Union.
With the booklet as a background, we approach now the climatic events of April 3
which constitute the gravamen of the Union's complaint against the Respondents
in the representation proceeding. In the letter accompanying the booklet itself,
Wedding had declared the intention of the Respondents to have a meeting with the
employees to explain the Plan further, and this intention was now carried out.
Actually, two such meetings were held-one in the morning and one in the afternoon
of April 3-because the showroom of the plant where the meetings were-held was too
small to accommodate all of the employees at the same time.
Stanley Conrad, the vice president of both-of the Respondents, was the lecturer
to the captive audiences at each of the meetings. He began by calling the attention
of the employees present to the handbill that had been passed out, and he referred
to rumors that were current in the plant to the effect that the money in the Plan
would never go to the employees but to the companies, or Wedding or the Conrad
brothers. He then proceeded to explain the highlight of the Plan with the aid of a
set of 11 large flip cards that were approximately 28 inches high and 44 inches wide.
On each of the flip cards except the first one, which was simply headed "INTRODUC-
TION," appeared a question or-questions in red ink, and the answer or answers in
black ink.17 The lettering on the flip cards was approximately 15/% inches high, except
for capital letters, which were approximately 21/2 inches high. The question or
questions on each of the flip cards were left open but the answer or answers were
covered with kraft tape. As Conrad began his talk, he proceeded to turn over each
of the flip cards, remove the tape, and read the answer or answers. The whole
set of questions and answers on the flip cards presented the highlights of the Plan
in pretty much the same manner as the booklet except that the language was somewhat
more terse and the form of presentation was of course more dramatic.
The flip cards undertook to answer a series of 12 questions-2 of the flip cards
contained 2 questions each. The 12 questions were as follows:
(1) How does the plan operate?
(2) Who is eligible?
(3) When will an employee retire?
(4) May an employee retire before age 65?
(5) How much will an employee get when he retires?
(6) Who pays cost of this plan?
(7) Has this plan been approved by the Gov't?
(8) What if an employee dies before retirement?
(9) Suppose an employee quits after being in the plan a few years?
(10) What if an employee becomes disabled before retirement?
(11) What happens to the money in the trust fund when an employee quits
or is terminated and forfeits part of his account?
(12) Will this profit sharing plan always be continued?
It is hardly necessary to supply the answers to these questions since they were
given substantially as in the booklet (in fact the booklet was the basis for the flip
cards). But the questions are far more significant than the answers, for not only did
they appear in red and often in boldface type 21/2 inches high, but most of them-in
fact all of. them where the use of the term was apposite-were addressed to "em-
plovees" (the word for this reason has been italicized). The third question, "Who is
eligible?" is answered with "All full time EMPLOYEES," and the word "employees"
appears in boldface black letters 21/2 inches high. It is only in the answers to the
10th and 11th questions that the term "member of the plan" makes its appearance.
17 Photographs of the flip cards on a reduced scale-approximately 10" x 8"-are in
evidence . as Respondents ' Exhibits Nos. 7 a-k. In the exhibits the red ink lettering on
the originals appears as gray.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The answer to the 10th question is that in the event of disablement, the "member of
the plan" would be entitled to 100 percent of his portion, plus all insurance policies,
and the answer to the 11th question is that in the event of forfeiture all such money
would be divided up among all the other "members of the plan." By giving the
answers in response to questions relating to "employees," the term "member of the
plan" was plainly equated, even more so than in the booklet, with the term "em-
ployee." It is not surprising , too, that the very last of the flip cards should deal with
the dependence of the Plan on profits, and that the answers should be the same as in
the booklet, namely: "The Co.'s ability to continue the plan depends on PROFITS.18
and profits depend on the success of all of us working -together as a team."
In short, all the objections, and more, that can be urged against the booklet can be
urged against the set of flip cards.
Moreover, Conrad did not confine himself to pointing to the flip cards with his
yardstick, and to allowing the cards to speak for themselves. While he passed over a
number of the cards without comment, he supplied glosses or interpolations with
respect to most of them. After all, each of the morning and afternoon sessions in
the showroom lasted from one-half to three-quarters of an hour, and all this time
was not taken up simply in running through the flip cards. Conrad also invited
the employees in each audience to ask any additional questions that they might
have, but they had few questions indeed to ask. Not more than "a couple of ques-
tions" were asked, even according to Conrad, in the morning session, -and no questions
.at all were asked in the afternoon session.
None of the questions asked could have been very important, moreover, since none of
the witnesses could remember them. However, what Conrad said by way of gloss
or interpolation is important, and three witnesses for the General Counsel-Wimsatt,
Pottinger, and a third production employee by the name of Cary A. Robbins-
testified that Conrad said in substance that the Profit-Sharing Plan was for the benefit
of the employees, and that neither he, nor his brothers, nor Wedding, would get,any-
•Rhing out of the Plan, and that these statements were made by Conrad either in
,connection with his discussion of forfeitures, or the possibility of the termination of
the Plan if there were no profits. If Conrad made the statements attributed to him,
he grossly misrepresented the truth.
Although I regard Wimsatt, Pottinger, and Robbins as entirely credible witnesses,19
it is conceivable that since they were reporting only what Conrad said to a sizable
audience, and not to them personally, that they may have obtained. an inaccurate
impression of what he said. But, actually, no acute problem of accuracy or credi-
bility is presented, by the testimony concerning what Conrad said at the April 3
meetings. Conrad himself testified that on no less than three different occasions he
told the employees, in commenting on various features of the Plan, that none of the
money could go back to him, his brothers, or Wedding. In commenting on how
the Plan operated in general , Conrad testified that he stated: "Nor can this money
go to Milton Conrad, Raymond Conrad, Stanley Conrad or Joe Wedding." In
commenting on the possible termination of the Plan, Conrad testified that he did
say that- "if the plan were discontinued that the money in that plan couldn't go
back to us (namely, the Conrad brothers), 'it was split up according to all the
members in the plan, all the employees in the plan according to their shares"
[emphasis supplied]. Finally, in commenting on the forfeiture of a share in the
Plan, Conrad testified that he explained that "that money is divided up among all
the other members of the plan, in accordance to their proportionate share, and it
cannot be returned to the Company, or it cannot go to Milton, Raymond, Stanley
or Joe Wedding." At this point Conrad was asked: "But as a member of the plan
you are going to get some of that money, aren't you?" and he replied: "I didn't say
some of it; I said all of it. Or the money. The money to me is all the money?"
This was patently disingenuous. What was in Stanley Conrad's mind could not be
.known to his listeners, who could only judge what be meant by what he said, and
what he said was that a forfeited share could not go to him, his brothers, or Wedding.
Is In addition to appearing in boldfaced capital letters, the word "PROFITS" was
underlined with red ink.
"Counsel for the Respondents attacks their credibility because Wimsatt' s demeanor
was that of a "surly, sullen and actively hostile witness" ; because Pottinger was "ludi-
.crous, Inane and equivocal to a highly unreasonable degree"; and because Robbins gave
his testimony "as if he had learned it by rote." Wimsatt was neither surly nor hostile.
He was sullen but this was because he still smarted under the treatment be had received
from Wedding and Pry. Pottinger was;, as I have already indicated, something of a
'character but, although his memory for .dates was not too good, he remembered what
had been said to him very well indeed. The attack on Robbins has no basis whatsoever.
LOUISVILLE- CHAIR COMPANY, INC., ETC. 1399
While what he said with respect to,,the Plan in general, or its discontinuance in
particular, might be ambiguous, so far as his own interest and that of his brothers
and Wedding were concerned, there could no ambiguity in his statement concerning
what happened to a forfeited share. , This was not, obviously, "all the money," but
only "'some of it," and this went directly to swelling the shares of himself, his
brothers, and Wedding, which were already larger than those of anybody else.
What he said concerning this was clearly a misrepresentation to those of his listeners
who were ignorant of the participation of himself, his brothers, and Wedding in the
Plan, and the extent of their interest in it . Furthermore, testimony of the very
witnesses called by the Respondents to testify with respect to Conrad's comments
at the April 3 meetings, shows that Conrad made references to the interests of the
employees in the Plan, and'that at no point in his comments did he ever state that
neither he, -nor his brothers, nor Wedding, had no interest in the Plan, and that
they were not members of the Plan. Indeed, one of these witnesses, Madge Mexie
Evans, who worked in the upholstery department, testified that Conrad in one of his
comments "named his two brothers and himself and Joe Wedding, and said any money
that was forfeited would not come back to them but to the profit sharing members"
[emphasis supplied]. It was only to be expected that at meetings called to explain
the benefits of the Plan to the employees that Conrad would dwell on the benefits
which the employees would obtain but this did not excuse him from explaining that
he and his brothers were three of these "employees." I find no valid reason for
doubting the testimony of Wimsatt, Pottinger, and Robbins with respect to Conrad's
comments at the April 3 meetings.
It is only fair that the conduct of the Respondents in the period immediately
preceding the- second election should be judged by the same standards that were
applied in judging the Union's conduct in the period immediately preceding the first.
election. It is clear that if. the Union violated those standards on the eve of the
first election, so did the Respondents on the eve of the second election. In fact, the
misconduct of the Respondents was- worse than the Union's. The Union did not have
the intimate knowledge of the Profit-Sharing Plan that was possessed by Stanley
Conrad who was one of the three members of the advisory committee that helped
to administer the Plan. The Union's comments on the Plan were those of an out-
sider, and hence they were more liable to be inaccurate. The Respondents mis-
represented, moreover, not only their own Profit-Sharing Plan but the basis of the
decision setting aside the first election. In addition, the Respondents committed a
serious unfair labor practice when they transferred Wimsatt to a more onerous and
less desirable job, on the eve of the second election, and this transfer is in itself a
sufficient basis for setting aside the second election. There is no merit in the con-
tention of the Respondents that the Regional Director could not add this issue, for
it is well settled that a Regional Director's postelection investigation is not limited
to the specific issues raised by the parties.20
V. THE REMEDY
While the unfair labor practices of the Respondent were not extensive, they were
far from being isolated acts; 21 they call indeed for a broad form of cease-and-desist
•order, which I recommend.
. So far as affirmative action of a remedial nature is concerned, it is required in
order to undo the unlawful conduct of the Respondents in transferring Charles Leon-
ard Wimsatt from his job of sander to the packing job. It was this transfer that
forced Wimsatt to quit; he was in fact constructively discharged. While a violation of
Section 8(a)(3), in addition to a violation of Section 8(a) (1), is not alleged'in the
complaint, the omission does not in itself affect the remedy. I recommend' therefore
that the Respondents be required to offer to Wimsatt reinstatement to his position
as edge sander, or a substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole in accordance with the Board's
established remedial policies, which include the calculation of backpay in accord-
ance with the formula established in F. W. Woolworth, 90 NLRB 289, and the al-
lowance of interest in accordance with Isis Plumbing & Heating Co., Inc., 138 NLRB.
716. Backpay shall be allowed from April 5, 1963, the date of Wimsatt's con-
o structive'discharge to'the date of the Respondents' offer of reinstatement.
90 See J. I. Case Company, 86 NLRB .12; Hobart Manufacturing Company, 92 NLRB
203, 205; Radiant Lamp Corporation , 116 NLRB 40, 41 ; City Tire Company, 117 NLRB
753, 755; Carter-Lee Lumber Company, 119 NLRB 1374, 1376; International Ladies'
Garment Workers ' Union, AFL-CIO, 142 NLRB 353.
21 See Stotler Hilton Hotel, 138 NLRB 135, 136; Playskool Manufacturing Company,
140 NLRB 1417.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also recommend that the results of the second election held on April 5, 1963,
be set aside , and that a third election be ordered.
CONCLUSIONS OF LAW
1. The Respondents , Louisville Chair Company, Inc. and Louisville Chair &
Furniture Company, Inc., are employers who are engaged in commerce and whose
activities affect commerce within the meaning of Section 2(6) and (7) of the Act.
2. United Furniture Workers of America , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By reprimanding and threatening to discharge Charles L. Wimsatt and John
Alvin Pottinger , two of its employees, because they had been active in support of
the Union, the Respondents violated Section 8(a)(1) of the Act.
4. By transferring Charles L. Wimsatt from his job as edge sander to the more
onerous and less desirable job of packer as a reprisal for his union activities, the
Respondents also violated Section 8 (a) (1) of the Act.
[Recommended Order omitted from publication.]
Claymore Manufacturing Company of Arkansas , Inc. and Amal-
gamated Clothing Workers of America , AFL-CIO, Petitioner.
Case No. 26-RC-1902. May 5, 1964
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on March 28, 1963, under the
direction and supervision of the Regional Director for the Twenty-
sixth Region in the stipulated unit described below. At the conclu-
sion of the election, the Regional Director served upon the parties a
tally of ballots, which showed that of approximately 100 eligible
voters, 104 ballots were cast, of which 47 were for, and 49 were against,
the Petitioner. Eight ballots were challenged. The Petitioner filed
timely objections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation, and on May 10, 1963, issued and
duly served upon the parties his report on objections and challenged
ballots, in which he recommended that : the challenges to 6 ballots be
sustained; the challenges to 2 ballots be overruled; objections 3, 4, and
6 be sustained, and the election set aside and a new election directed;
and the remaining objections be overruled. On June 3, 1963, the
Petitioner and the Employer filed timely exceptions to the Regional Di-
rector's report. On June 19, 1963, the Regional Director issued his sup-
plemental report on objections and challenged ballots, in which he
revised his findings but reiterated his recommendation that objections
3, 4, and 6 be sustained. The Employer, by a letter dated June 24,
1963, requested that its exceptions of June 3, 1963, be treated as equally
applicable to the supplemental report.
146 NLRB No. 153.