Louisville Chair Company, Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1966

161 N.L.R.B. 358 (N.L.R.B. 1966)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
are labor organizations within the meaning of the Act.
2. Leonard R. Lanham and Larry E. Lanham are , and have been at all times
material herein, partners doing business under the trade name and style of Lanham
Brothers , General Contractors , and constitute an employer engaged in commerce
within the meaning of the Act.
3. The evidence does not establish that the Respondents have violated Section
8(b)(1)(A ) and (2 ) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint in this matter be dismissed in its entirety.
Louisville Chair Company , Inc. and Local 236, United Furniture
Workers of America, AFL-CIO. Cases 9-CA-3627 and 3692.
October 25, 1966
DECISION AND ORDER
On April 8, 1966, Trial Examiner David S. Davidson issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that Respondent had not
engaged in other unfair labor practices alleged in the complaint, and
recommended that such allegations be dismissed. Thereafter, Respond-
ent filed exceptions to the Trial Examiner's Decision and a support-
ing brief.
Pursuant to Section 3(b) of the Act, the National Labor Relations
Board has delegated its powers in connection with these cases to a
three-member panel [Chairman McCulloch and Members Fanning
and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as modified herein.'
I The Trial Examiner found that Hale ' s discharge constituted a violation of Section
8(a) (1) of the Act. In so concluding , he found that the remark made by Hale to bars.
Napier which precipitated Hale ' s discharge "was itself inextricable from his union ac-
tivities " According to the credited evidence , Hale's "union activity" consisted of his
wearing a union button for 1 hour before the election and the objectionable remark to a
female employee , for which he was discharged . On this state of the record in this proceed-
ing, we do not believe that the General Counsel has sustained his burden of proving that
Hale was discharged for union activity . Accordingly , we shall dismiss the complaint in this
respect.
161 NLRB No. 31.
LOUISVILLE CHAIR COMPANY, INC. 359
The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraph 1(b) and reletter the present paragraphs
consecutively.
[2. Add the following to the paragraph relettered 1(d) and to the
last paragraph of the Appendix : ". . . , except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959."
[3. Substitute the following as paragraph 2(b) :
["(b) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to all those employ-
ees who went on strike on August 17, 1965, or thereafter, and, upon
application, offer to Joseph E. Sweet immediate employment at the
same position as, or a position substantially equivalent to, that at
which he would have been employed had he not been discriminated
against, without prejudice to any seniority or other rights and priv-
ileges he might have acquired, dismissing if necessary any persons
hired on or after August 17, 1965."
[4. Substitute the following for the third and fourth indented
paragraphs of the Appendix attached to the Trial Examiner's
Decision :
[WE WILL, upon application, offer all employees who went on
strike on August 17, 1965, or thereafter, immediate and full rein-
statement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges, and WE WILL offer to Joseph E. Sweet immediate employ-
ment at the same position as, or a position substantially equiva-
lent to, that at which he would have been employed had he not
been discriminated against, without prejudice to any seniority
or other rights and privileges he might have acquired, dismiss-
ing if necessary any persons hired on or after August 17, 1965.
[WE WILL make the above-mentioned employees whole for any
loss of pay they may suffer as a result of our refusal to reinstate
or employ them, upon application, and WE WILL make Joseph E.
Sweet whole additionally for any loss of pay he may have suf-
fered as a result of our refusal to employ him from the date of
such refusal until August 25, 1965, when he rejected an oiler of
employment because of the strike.]
[The Board dismissed the complaint insofar as it alleges violations
not found herein.]
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
On the basis of charges filed June 29 , July 26, and September 13, 1965, by
Local 236, United Furniture Workers of America, AFL-CIO, referred to herein
as the Union, the General Counsel issued a consolidated complaint against Respond-
ent, Louisville Chair Company , Inc The complaint alleges that Respondent violated
Section 8 ( a)(1), (3), and ( 5) of the Act. Respondent 's answer denies the com-
mission of any unfair labor practices.
This proceeding , with all parties represented , was heard before Trial Examiner
David S. Davidson in Louisville, Kentucky , on November 16 through 19, and
December 14 and 15, 1965 . At the close of the hearing the parties waived oral
argument and were given leave to file briefs. Briefs were received from the Union
and the Respondent.
Upon the entire record in this case , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Kentucky corporation with its principal office and plant located
in Louisville, Kentucky, where it is engaged in the manufacture and sale of dinette
sets. It also operates a fleet of over-the-road trucks for delivery of its products.
During the 12 months prior to issuance of the complaint, a representative period,
Respondent had a direct outflow of its products in interstate commerce valued in
excess of $50,000, which it sold and shipped from its plant in Louisville, Kentucky,
directly to points outside the State of Kentucky. At all times material herein,
Respondent is, and has been, an employer engaged in commerce and operations
affecting commerce within the meaning of the Act, and assertion of jurisdiction is
warranted.
II. THE LABOR ORGANIZATION INVOLVED
Local 236, United Furniture Workers of America , AFL-CIO, is an organization
in which employees participate and which exists for the purpose in whole or in part
of dealing with employers concerning grievances , labor disputes, wages, rates of
pay, hours of employment , and conditions of work. I find that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and the issues
During the winter and spring of 1965, the Union engaged in an organizational
campaign among Respondent's approximately 300 production and maintenance
employees.' Upon a petition filed by the Union in Case 9-RC-6223, an election
was conducted on May 27, 1965, which resulted in a vote of a majority of the
employees in the unit in favor of the Union. As set forth in greater detail below,
Respondent filed objections to the election, and thereafter the Regional Director for
Region 9 issued a Supplemental Decision overruling the objections and certifying
the Union as representative of the employees on July 16, 1965. Respondent filed
with the Board a request for review of the Regional Director's decision, which was
denied
The issues raised by the complaint are:
(1) Whether between January and July 1965, Respondent violated Section
8(a)(1) of the Act by interrogation of employees concerning union activities,
threats of reprisal, and solicitation of an employee to create trouble with prounion
employees so as to make possible their discharges.
(2) Whether on or about May 27, 1965, the day of the election, Respondent
discharged Wayne G. Hale because of his activities on behalf of and sympathy
for the Union.
'A prior effort by the Union to organize Respondent's production and maintenance em-
ployees in 1962 and 1963 ultimately resulted In a vote against representation, after an
initial election In which the employees voted for representation was set aside. A complaint
against Respondent alleging certain labor practices in connection with the earlier orga-
nizational campaign was dismissed , and the Union 's objections to the second election held
in 1963 were overruled. Louisville Chair Company, Inc., 146 NLRB 1380.
LOUISVILLE CHAIR COMPANY, INC. 361
(3) Whether on or about July 12, 1965, Respondent refused to employ Joseph E
Sweet because of past union affiliation and suspected sympathy for the Union
(4) Whether on or about July 16, 1965, and thereafter, Respondent refused to
bargain with the Union in violation of Section 8(a)(5) of the Act
(5) Whether a strike of Respondent's production and maintenance employees
which commenced on August 17 is an unfair labor practice strike.
B The alleged violations of Section 8(a) (1)
1 Supcuntendent Wedding
a. Joseph H. Wedding is the general superintendent of Respondent's manufac-
turing and trucking operations Through foremen who report directly to him,
Wedding supervises Respondent's day-to-day operations. Wedding also participates
in collective-bargaining negotiations with representatives of Respondent's employees
and other matters concerning the representation of employees.
Sometime in January 1965, Wedding received a copy of a letter from the Union
to the Regional Office for Region 9 of the Board with a list of signatures of 25
employees attached. The letter stated that the named employees had joined an
organizing committee for Respondent's employees and indicated that its purpose
was to leave no doubt of the participation of the named employees in union activi-
ties. Among the signatures on the list was that of Kenneth Y. Skaggs. Within a
few days atter receiving this letter, Wedding called Skaggs into his office In the
course of a conversation with Skaggs, Wedding told hun he was amazed that
Skaggs was engaged in union activities in view of the length of time he had been
employed by Respondent. Wedding asked Skaggs what was wrong in the welding
department where Skaggs was employed. Wedding commented that he had the
feeling that the department foreman was not treating the employees right and asked
Skaggs if he liked the foreman. Skaggs ieplied that he liked the foreman well
enough but that some of the others did not. Wedding asked the reasons, and Skaggs
replied that the employees thought they, rather than the foreman, should turn in
their own count on piecework. Wedding explained that the count had to be checked
by the foreman Wedding then called Skaggs' attention to the letter and list of names
he had received from the Union. Wedding told Skaggs that he could pass out all
the union authorization cards lie wanted to and get then signed before the start
of work and at break and lunch time, but that if Wedding saw him sign up any
employees on company time, Wedding would fire him, adding that he would not
pay Skaggs to sign up union cards on company time. Wedding told Skaggs to con-
vey this message to the others whose names were on the list. Skaggs said he would
comply and the conversation ended. Wedding testified, without contradiction. that
before talking to Skaggs he had reports that Skaggs was trying to get cards signed
on company time Although Skaggs denied that he had done so, Skaggs testified
that Wedding so charged in his conversation with him 2
The complaint alleges that Wedding's remarks to Skaggs constitute unlawful
interrogation about Skaggs' union activities and those of other employees. Inter-
rogation violates the Act "if the questioning takes place under circumstances which
impart to it a tendency to interfere with the free exercise of rights under the Act." 3
No single set of factors is determinative, but more is required than a mere showing
that an employer repiesentative has questioned an employee concerning matters
relating to union activity. It appears that Wedding's conversation with Skaggs was
prompted by the report that Skaggs was soliciting signatures on union authorization
cards during working hours, and that at least one of its purposes was to inform
Skaggs, and through him the other employees whose names weie on the list sent
to Wedding, that they were not permitted to solicit signatures on company time.
It is tine that Wedding in this interview expressed surpiise at Skaggs' participation
2 There is only one material conflict between the testimony of Wedding and Skaggs
with respect to this incident . According to Skaggs, Wedding threatened that employees
would be discharged for having caids signed on company time or property. Wedding
testified that his warning applied only to company time and that lie specifically affirmed
the right of employees to solicit signatures on their own time In the light of Skaggs'
failure to mention in statements previously given to the General Counsel that he was
warned not to obtain signatures of company property, his unconvincing explanation
therefor, and Skaggs' admission that following this conversation he openly continued to
solicit signatures on his own time on company property, I do not credit Skaggs where his
testimony is in conflict with that of Wedding
3 Murray Ohio Manufacturing Company, 155 NLRB 239.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the organizing campaign and briefly explored possible sources of dissatisfaction
in Skaggs' department. However, Skaggs' identity as a union adherent had been
brought to Wedding's attention by the Union, and Wedding made no effort in this
conversation to dissuade Skaggs from supporting the Union. Wedding did not
threaten Skaggs with any adverse consequences for continued activity, other than
his permissible warning against solicitation on company time which was accom-
panied by a statement that Skaggs was free to continue solicitation on his own time.
Except for the incident involving Foreman Pry discussed below, which does not
appear to have been part of any systematic plan of interrogation, there is no other
evidence of interrogation involving any of Respondent's 300 employees during the
5 months which followed between Wedding's conversation with Skaggs and the
representation election . I am not persuaded that the circumstances surrounding
Wedding's questions to Skaggs concerning possible sources of dissatisfaction in the
welding department impacted to this conversation a tendency to interfere With
protected rights.4 I conclude therefore that the allegation of the complaint based
on this conversation should be dismissed.
b. On May 24, 3 days before the representation election, James Keeling, a fore-
man, reported to Superintendent Wedding that he had observed Saul Spencer, an
employee in his department, showing some union buttons to other employees during
working hours. Keeling asked what he should do about it. Wedding replied that he
would take care of the matter. The following day Wedding went to Spencer's
department and stood for about 10 minutes on a landing 10 feet behind Spencer's
work station where he could observe Spencer, apparently without being seen. While
there, he observed Spencer showing a union button, which Spencer was wearing,
to Green, a deaf-mute employee who worked beside, him.5 Wedding heard Spencer
say something to Green which sounded like, "You should be wearing one of these."
Wedding estimated that the incident did not take more than 15 or 20 seconds. The
incident occurred during working time. Green continued to work. Spencer, whose
job was to turn sewn chair back covers inside out and to sort them, paused in his
work while showing the button to Green and talking to him.6 Wedding approached
Spencer . Wedding told Spencer if he would spend more time on his work and less
on union activity, they would get along a lot better and warned Spencer that if
he were caught passing out union buttons or literature on company time, Wedding
would discharge him.7 Wedding then went to Keeling and in Spencer's presence told
Keeling to let him know if Spencer engaged in any union activity whatsoever-on
company times
In connection with this incident. Wedding testified on cross-examination as
follows:
Q. Was it unusual for an employee regardless of what he does now to take
a five second interval between turning backs occasionally?
A. It would be very unusual for an employee to take five seconds out to
engage in Union activity.
Q. That's not my question, Mr. Wedding.
A. If an employee took five seconds out just to stop for five seconds I
wouldn't say anything to him, but if he's engaged in Union activity he's going
to get it.
Q. What if he took ten seconds out just to stop?
A. I wouldn't say anything about that.
Q. How about twenty, how about a minute?
A. No. If he's engaged in Union activity he would.
Q. But if he was engaging in Union activity you would toss him right out
of the joint?
A. I might, it all depends. I have warned them, I warn them usually my
procedure would be to warn them as in the case with Saul Spencer.
4 See Bernel Foam Products Co., Inc., 146 NLRB 1277 , 1278, 1294.
6 According to Wedding, Green reads lips fairly well.
6 The above findings are based on the testimony of Wedding. Spencer testified that the
pin on the button became unfastened and that he paused only to refasten it without say-
ing anything to Green. For reasons set forth below , I have credited Wedding with respect
to this incident.
7 Spencer conceded that Wedding warned him not to pass out buttons on company time.
8 Spencer testified that Wedding told Keeling that he wanted Spencer's "ass out of here
for the least little thing" and that before talking to Keeling, Wedding made a similar
remark directly to Spencer . Keeling testified that Wedding told Keeling to notify Wedding
if Keeling caught Spencer showing union buttons any time during working hours.
LOUISVILLE CHAIR COMPANY, INC. 363
Wedding testified further that Spencer could talk all day on his job and do it
efficiently and that Wedding would have no objection to an employee talking all
day if he did his woik, but that he would not permit talking about the Union during
working hours and so instructed his foremen
Although Wedding in his initial responses to questions about the distinction he
drew between union activity on the job and other work interruptions displayed a
tendency to spar with counsel, his answers quoted above were basically candid.
Spencer s demeanor on the other hand did not inspire confidence in his testimony,
and his limited ability to express himself, like that of other of the employee wit-
nesses, though not a matter for which Spencer is to be censured, nonetheless raises
a question as to the accuracy of statements attributed by Spencer to Wedding.
I have concluded that Wedding is to be credited as to this incident.
Based on this incident , the complaint alleges that Wedding threatened Spencer
with discharge for union activity in violation of Section 8(a)(1) of the Act. In
Walton Manufactuniig Company, 126 NLRB 697, 698, enfd. 289 F.2d 177 (C.A. 5),
the Board attached a presumption of validity to the enforcement of a rule barring
union activity during working time "m the absence of evidence that the rule was
unfairly applied." As the Board's subsequent decision in Wm. H. Block Company
makes clear,9 the test of unfairness is whether the rule is enforced to prohibit union
related activities during working time comparable to other work disrupting activities
which are permitted during working time. In Block, the Board found that a
no-solicitation rule was unfairly enforced when employees, with knowledge and
participation of supervisory personnel, were permitted during working time to
solicit for gambling pools, to sell tickets to various events, and to collect money
for gifts. Here, the only evidence with respect to the rule communicated to employ-
ees is in Wedding's statement to Skaggs in connection with the incident set forth
in paragraph a above. The complaint does not allege that Respondent 's no-solicita-
tion rule was itself invalid. However, as Wedding's testimony quoted above makes
clear, Respondent tolerated short pauses by employees in the course of their work,'°
unless for the purpose of engaging in union activity. Likewise, Wedding considered
employees free generally to talk while they worked, as long as they worked effi-
ciently, but would not permit talking about the Union during working hours and
so informed his foiemen . Thus the vice in Spencer's conduct which prompted
Wedding to warn him was not that he briefly interrupted his work or talked while
on the job, but that the interruption and his talking were utilized for union activity.
Wedding's warning to Spencer in the context of the conduct of Spencer which
prompted it, and particularly in the context of his instruction to Keeling to report
to Wedding if Spencer engaged in any union activity whatsoever on company time,
threatened Spencer with discharge for repetition of the incident Wedding had just
observed or any union activity on company time. As Wedding's threat unfairly
enforced Respondent's no-solicitation rule, it constituted unlawful interference with
employee rights and violated Section 8(a)(1) of the Act.
c. According to employee Spencer, on July 21, the morning after a well-
advertised union meeting attended by a large number of employees, Wedding came
through the department "hollering that these people got their union suits" last
night and that he had news that they would be made out of the best satin."
Spencer testified that Wedding then went to Foreman Keeling, asked Keeling with
reference to Spencer, "that boy there is a Union man, isn't he ?", Keeling replied
that he believed so, and Wedding then approached Spencer and asked "did you get
your union suit last night?" According to Spencer, he replied that he did not and
Wedding asked why not. Spencer testified that when Spencer replied that he didn't
know, Wedding said, "[Wlell I am giving you one of the best sets made and I
said yes sir. He said does the Union know how to make dinette sets and I replied
I do not know. He said well they sure and hell and damn better know how to make
them."
Wedding denied that he talked to Spencer at all about union suits or union
activity on or about July 21, but testified that around that time he stopped to talk
to a group of sewing machine operators and asked them if they had gotten their
0 150 NLRB 341.
10 There is no evidence that Spencer had paused excessively in performance of his work
in relation to standards generally applicable to other employees.
11 The transcript at p. 108, 1. 6 , in connection with this remark should be corrected to
replace the word "Saturday" with "of satin." Spencer testified on cross-examination that
this remark was directed at one of the girls in the department , that some of them laughed
when he said it, and that Wedding sometimes joked with others in the department.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union suits yet, adding that he understood they were making them with two buttons
on the flap instead of one like they used to. According to Wedding everyone
laughed, and he left the department without talking to Keeling or Spencer.
Wedding also testified that on a different occasion prior to the election he had
asked Stone, an elevator operator, in the presence of several other employees, but
not Spencer, if Stone thought the union organizers knew anything about making
dinette sets. When Stone said he did not know, Wedding added that they had better
start learning something about it.12
With respect to this incident, I was again favorably impressed by the candor of
Wedding and credit his testimony. For reasons similar to those set forth above in
connection with the May 25 incident, I do not credit Spencer. Accordingly, I con-
clude that the allegation of the complaint based on this incident, that Wedding
unlawfully interrogated Spencer on or about July 21, 1965, should be dismissed.
2. Floorlady Whitham
a. Floorlady Nora Catheiine Whitham supervises 75 to 80 employees in the
second floor upholstering department of Respondent's plant. On May 25, 1965,
2 days before the election, employee Roy Lee Gray went to Superintendent
Wedding's office to complain that Joseph Paul Wright, a fellow employee had used
vulgar language in front of Gray's wife, who was also an employee and at the time
worked beside Gray. Wedding told Whitham, who was present in Wedding's
office, that he wanted Wright's use of vulgar language stopped.
Later in the day, as Gray was returning from lunch, he passed Whitham's desk.
She stopped Gray and told him she knew that Joseph Paul Wright and his brother,
Thomas Wright, used bad language in front of his wife and that she had warned
them about it. She also told Gray that it was bad for man and wife to work
together and that something would have to be done about that. According to Gray,
Whitham continued to talk to him, bringing up the matter of a handbill that the
Union had put out which reproduced the check stubs of some employees of another
employer. Gray testified that after stating that the checks were those of the highest
paid employees at the plant mentioned, Whitham told him that if the Union were
voted in at Respondent's plant and took the employees out on strike, they could
be replaced "and also if the Union is voted in our profit-sharing plan will probably
be cut out." On cross-examination Gray testified that Whitham said "If the Union
is voted in it will probably cut our profit-sharing plan out." Gray testified that he
did not take her statement to mean that the Union would probably cut it out and
further restated what she had said as "If the Union was voted in our profit-sharing
plan could be cut out." Gray restated the remark a final time in much the same
words as his initial testimony.
Whitham testified that she recalled speaking to Gray about Wright's use of vulgar
language in front of Gray's wife, but denied discussing the union handbill with
Gray. Although Whitham's testimony was not persuasive,13 it is impossible to
conclude from Gray's testimony which of his differing versions of the statement
concerning the profit-sharing plan is correct, or indeed whether any one of these
versions should be found to have occurred rather than a mere statement of the
effects a strike would have on profits and the profit-sharing plan in view of the
context in which Gray testified that the remark was made. In these circumstances,
the evidence is insufficient to establish that Whitham threatened elimination of the
profit-sharing plan if the employees voted for the Union, and I conclude that the
allegations of the complaint based on this incident should be dismissed.
b. Employee Paul Tobergta testified that about 2 weeks before the election, while
at work, Whitham called him over to her desk and asked him "just how Harold and
David Marion and two other employees had ever gone to a union meeting and I
told her I don't know." Tobergta further testified that the question which Whitham
asked was "if Harold and David Marion and two other employees had ever gone
Keeling testified that he did not hear Wedding make any remarks about union suits
in his department and denied the occurrence of the portion of the incident which Spencer
described as involving Keeling.
is Whitham's testimony was at times guarded and defensive, her memory in many re-
spects appeared uncertain, and at times it appeared that Whitham was distracted in her
efforts to recall events of the critical period, perhaps understandably because of the re-
cent loss of her husband.
LOUISVILLE CHAIR COMPANY, INC. 365
to the union meeting." He testified that Whitham did not name the two other
employees, although Tobergta indicated that he knew who they were. Tobergta has
a hearing defect and had difficulty hearing the questions asked him at the hearing.
It is difficult to make sense of his testimony that he was asked about the Marions
and two unnamed employees but knew who the unnamed employees were without
their names having been mentioned. Tobeigta's affidavit given to the General
Counsel during the investigation of the case states, "She asked me if Harold and
David Marion, two other employees, had ever gone to any union meeting." 14
However, Tobergta in his testimony at the hearing did not state at any time that the
question concerned only the Marions, who were two other employees, as the state-
ment suggests. Efforts to obtain clarification of Tobergta's testimony were unpro-
ductive. In view of the nature of his testimony, the conflict between his testimony
and his written statement, and bearing in mind that his hearing impairment may
have effected his understanding of what Whitham said to him as well as his
difficulty in grasping questions put to him at the hearing, I cannot accept his testi-
mony as establishing that Whitham questioned him about the attendance at union
meetings of other employees.15 Accordingly, I conclude that the allegation of the
complaint based on this incident should be dismissed.
c. Employee Thomas Wright testified that about a week before the election,
Whitham called him to her desk and asked if he knew who was for the Union.
According to Wright, when he replied that he did not know, Whitham told him
to go around and find out "Who was for the Union and then to start a fight with
them and get the Union sons-of-bitches out of there before the election." According
to Wright, at the very end of the conversation, during its last few seconds, Super-
intendent Wedding walked up and "said it would be a good idea .... What we
was talking about." 15
Wright testified also that 2 days before the election, Whitham told him that
employee Roy Lee Gray had called his brother, Joseph Paul Wright, "a son of a
bitch and so she was telling me about it and she said if she was me to go back and
poke him in the head for calling my brother a son of a bitch." According to
Wright, she added, "If it was her brother [and] somebody called him a son of a
bitch she would whip him," and Wright replied , "it wasn't my fight and I didn't
want any trouble with anyone."
A few days before the election Wright wore a paper badge identifying him as
against the Union. About a week after the election Wright attended a union meet-
ing. According to Wright, the next morning, in the presence of his helper,17
Whitham told Wright, "I knew you was at a Union meeting last night and you
ain't no good, you or any of the rest of you Union son of a bitches and if I catch
you buying saltines or candy during work hours , you are automatically fired." 18
On June 30 , approximately a month later , Wright was discharged for smoking
in the restroom. The amended charge in Case 9-CA-3627 alleged that Wright was
discharged because of his union activities. On August 2, 1965, the Union requested
withdrawal of the portion of the charge based on Wright's discharge, and on
August 9 the Regional Director approved the withdrawal.
Apart from the above, Wright testified that he knew the Union was handing out
handbills for some time before the election but he knew nothing about the Union
getting cards signed until a week before the election. Wright testified that before
that there weren't any cards being passed around, there wasn't anybody talking
about the Union, and he didn't know anything about it. Despite Wright's inability
to read, he testified that his wife read to him letters passed out by the Company
which mentioned the union activities and efforts to get cards signed.
' In this connection the transcript at p. 133, 1. 22 was corrected by stipulation at p. 816.
15 Whithain denied questioning Tobergta about the attendance at union meetings of
Harold and David Marion or any other employees.
19 According to Wright this conversation lasted about 4 minutes, during it Whitham
named no particular people or department where she wanted him to start trouble, and he
understood that he was to pick a fight with anyone who was for the Union.
14 Wright ' s helper was not called as a witness at the hearing
1s According to Wright's testimony there was no rule against employees buying soft
drinks during working hours except when the union drives were going on. In his statement
given to the General Counsel, Wright stated that there was a standing rule to the effect
and the Company got strict about it when union drives=were in progress
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whitham denied that either of the preelection incidents occurred. According to
Whitham during the month before the election Wright did not talk to anyone other
than to say good morning and ask for work. As she put it, after the union activities
began, he took kind of a "spell" and had done so before. Wedding also denied the
participation in the first incident which Wright attributed to him.
As for the postelection incident, Whitham testified that she did not speak sepa-
rately to Wright about buying soft dunks during working hours, but that she
called all employees in hei department on one occasion approximately 3 months
before the election and told them that the breaktimes were provided so that
employees could get something to eat or drink. She testified she then told them
that during working time employees were not supposed to go to the soft drink
machines and that there were signs posted in the plant to that effect.
I do not credit Wright as to any of these incidents. Wright was admittedly a
disgruntled ex-employee. His denials of knowledge of union activity in the plant
were not convincing While the incidents he described are not so implausible that
one can say with assurance that they could not have happened under any circum-
stances, the suggestion that a supervisor of some years experience on two
occasions urged a tall, strong employee to start fights at random in the plant is
certainly such as to engender skepticism. The absence of other witnesses to these
incidents could understandably make direct corroboration impossible, but the
absence of any surrounding circumstances to supply indirect corroboration to
Wright's testimony is a more serious matter. Despite Whitham's asserted statement
of desire to get rid of union adherents before the election, the record before me
shows no evidence that any union adherents were removed before the election by
the means allegedly suggested to Wright or any other. While Wright's illiteracy
does not detract from his credibility, his limited ability to express himself, which
the cold record does not fully reflect, raises considerable doubt as to his accuracy
as a reporter of what others said to him. Wright was unable to give a convincing
description of the circumstances surrounding the first incident, supplying at most
30 seconds worth of conversation to describe a conversation which he estimated
as lasting several minutes. If his version were accepted, it would be difficult to
understand how Wedding had an opportunity to hear what Whitham proposed let
alone to endorse it. With respect to the third incident, Wright's credibility depends
heavily on his testimony, not entirely clear, that the rule against drinking soft
drinks during working time only existed during union drives. His testimony is in
conflict with his statement and Skaggs as well as Wedding and Whitham.
Accordingly, I conclude that Wright is not to be credited, and none of the
allegations of the complaint based on Whitham's conduct involving Wright have
been sustained.
3. Foreman Pry
A single incident is attributed to Foreman Pry, based on testimony of employees
Joseph Vittitow and Wayne G. Hale.19 Until Vittitow left Respondent's employ
in March 1965, he and Hale worked together in the receiving department. They
transported materials from the receiving dock throughout the plant. Their duties
frequently brought them into Pry's department, where they frequently spoke to
Pry and laughed and joked with them.
On one occasion, during February or March,20 after Pry had been talking with
Vittitow and Hale for several minutes, Pry asked Vittitow how the union meeting
had gone the night before.21 Vittitow replied that it had gone all right but that he
didn't see anything of Pry or his spies there. Pry retorted that "his spies were
smart for staying out of the union and he said anybody involved in the union
29 Pry was not called as a witness.
2OVittitow placed the conversation during the last week in February. Hale in a state-
ment given to the Board in July placed the conversation in March or April. In his testi-
mony he first placed the incident in February, and after confronted with his statement
testified that he was not sure of the month.
2'Vittitow testified initially that Pry walked up and asked how the union meeting went.
On cross -examination he testified that they had been talking for several minutes when
Pry asked about the union meeting.
LOUISVILLE CHAIR COMPANY, INC. 367
would definitely be fired." 22 According to Vittitow, he was joking when he
mentioned Pry's spies, but Pry was serious in his reply. Vittitow had told Pry
he was for the Union, but Hale had not at that time openly indicated support
for the Union.
The complaint alleges that Pry interrogated and threatened Vittitow in the
presence of Hale in violation of Section 8(a)( I) of the Act. It appears that the
conversation between Pry and Vittitow, at least at the outset, was carried on in a
bantering tone and was similar to other conversations which regularly occurred
between them. Insofar as the record shows, the matter of the Union was first
raised by Pry, when he asked Vittitow, a known union supporter, how the union
meeting had gone the night before. Vittitow's reply was flippant and sarcastic.
Had the conversation terminated at this point, I would be inclined to agree with
Respondent that Pry's isolated inquiry might be dismissed as harmless. However,
whether provoked by the implied accusation in Vittitow's reply, moved by the
desire to best Vittitow in their verbal exchange, or otherwise motivated, Pry did
not let the matter rest, but retorted with a threat that those who were involved
with the Union would be fired. There is no evidence that Pry tempered his remark
either by additional comment or manner of delivery to make clear that the threat
was not seriously intended, and the credible evidence establishes that Vittitow
viewed Pry's reply as serious. The test is not whether Pry's statements had coercive
intent or effect but whether his conduct may be reasonably said to tend to inter-
fere with the free exercise of employee rights under the Act. Time-O-Matic, Inc.
v. N.L.R.B., 264 F.2d 96, 99 (C.A. 7). A threat that employees will be discharged
for involvement in union activities is the most obvious form of interference with
the exercise of protected rights. Accordingly, I conclude that Pry's threat to
Vittitow, in the presence of Hale, violated Section 8 (a)(1) of the Act.
C. The alleged violations of Section 8(a) (3)
1. The discharge of Hale
Mrs. Jeanette Napier, also known to Respondent's employees as "Tootsie," was
employed as a checker in Respondent's upholstery department under the super-
vision of Whitham. On the day before the election, Napier and a number of
other girls in her department wore homemade circular cardboard insignia identify-
ing them as opposed to the Union. On the day of the election, May 27, Napier
and a number of other girls in the department wore white headbands on which
hand inscribed legends appeared. Most of the hats had pictures of donkeys on
them. The hat worn by Napier at the time of the critical events had a picture of
a horse drawn on it and bore the legend "Don't be a horse's blank. Vote No." The
bands also had feathers sticking up from them in the rear. On the day of the
election at all times material Napier also displayed a piece of white paper about
6 by 8 inches which had a picture of a piano drawn on it and bore the legend
"Play for Joe" (referring to Superintendent Wedding) or words to that effect.
The paper was pinned to the bottom of the back of Napier's blouse which she wore
hanging loose and the paper hung down from that point.
About 1 p.m. Napier and the other girls in her department, which was located
on the second floor of the plant, went to vote at the polls which were located on
the first floor of the plant. On her way back to work after voting, Napier, follow-
ing several other girls from her department, passed the door to the receiving
-The above version is that of Vittitow. Hale testified that Pry asked Vittitow "how
the union had been going last night," and that Vittitow replied "Okay" and "he didn't
see any of your spies there." According to Hale, Pry then said that "His spies were too
smart to get caught" and that "we would be fired if we kept on screwing around with
the union." In his written statement Hale stated that before Pry mentioned discharge,
there had been a lot of conversation between Vittitow and Pry about the Union, but that
he did not recall what was said Hale's explanation as to the omission of the statements
which preceded the alleged threat from his signed statement was not convincing. Stand-
ing alone, I would be reluctant to credit Male's version of this incident, in view of the
obvious weaknes of his memory. However, with respect to what I regard the critical por-
tion of Vittitow's testimony , the threat that those involved in the Union would be dis-
charged, Hale's testimony supplies some corroboration, and in the absence of any denial,
I credit Vittitow with respect to this incident.
368 DECISIONS OF. NATIONAL: LABOR 'RELATIONS BOARD
department where Wayne Hale' worked . - Hale was standing 2 or 3 feet inside
the door leaning against a small table . Mr. Clark, a customer since deceased,
was standing in the hall as Napier approached . Clark looked at Napier and laughed,
asking her "What way did you really vote?" Napier laughed in response . At that
point Hale called out to Napier , "I would like to- kick you in your God -damned
big fat ass." Napier turned toward Hale and said, "If you have the guts, go
ahead ." Hale took a step or two toward the door and invited her to ' come into the
receiving department . Napier replied that she would meet Hale halfway . Napier
then turned and left to go upstairs to her work station .23 Clark remained at the
scene until Napier left and followed her up the stairs until she turned down the
aisle ,to her work station . Clark continued on to another portion of the second
floor where he had business 24 '
When Napier reached her work station , she saw Wedding standing outside his
office with Whitham and two of the. girls who had been walking in front - of her,
on the ,way- back, from the polls: The girls, at least one of whom was wearing a
headband similar to Napier 's, had reported to Wedding immediately on their
return that there was a disturbance between Napier and Hale downstairs. When,
Napier walked into the department , Wedding motioned her to come to him, and
she did . Wedding asked her what the trouble was downstairs . Napier told Wedding
that Hale, whom she identified as the red-headed boy in the receiving department-
downstairs, had told her "he would like to kick me in my God -damned big fat
ass." 25 Wedding stated that he could not put up with -that and left, proceeding
to- the receiving department.
Wedding approached Hale and asked him if he said "that" to "Tootsie" without
repeating the remark . Hale replied that he had said it and meant it.26 Wedding told
Hale he would give him his money , took him ' to have his check made out, gave
it to him, and told him to leave and not return.
No statement setting forth the reasons for Hale's discharge Was given to Hale
at the time of the discharge . However, Wedding testified at the hearing that Hale
was discharged for using vulgar language to a female employee and in front of a
customer.27 Hale was disqualified for unemployment compensation on the basis
of findings that he was discharged "for making vulgar and insulting remarks to
women employees " and "for misconduct connected with work ." Hale did not
appeal this determination.
As I view the issues raised by Hale 's discharge, the salient feature is that Hale's
remark, which caused his discharge , was itself inextricable from his union activi-
ties. Napier forcefully and provocatively displayed her antiunion sympathies
wherever she appeared on the day of the election, as is clear from the nature of
her insignia , the location of the sheet of paper pinned to the back of her blouse,
and the laughter and, remark they evoked from Clark, a customer without direct
personal interest . It 'should have been evident that employees supporting the
Union , Napier's insignia would be more likely to provoke anger than mirth, as
she herself , realized when she testified , "I don't know what they [referring to Hale]
seen , the sign or what made them say,it, or not."
23 Napier testified that the ihcident lasted only as long as required to say the words
which passed between her and Hale. '
2A The above version of the incident is based on Napier's testimony, Hale's version
differed only slightly in its essential respects . Because Hale 's testimony concerning the
circumstances which led to the incident raises substantial doubt as to the accuracy, of
Hale's recollection , I' have credited Napier where their testimony is in conflict. -
23 Wedding testified initially that Napier told Wedding that Hale threatened to' kick her.
However , Wedding subsequently testified as found, consistent with the testimony of Napier.
Napier testified at one point that she also told Wedding at this time the remaining words
which passed between her and Hale . However, she twice testified that''tlie above state-
ment was all that she "said to Wedding, consistent with Wedding 's testimony. I' so'find.
'28 Hale initially testified that he told Wedding that he had said it but was ' only kidding.
However, 'when'asked specifically whethei • he had told - Wedding ' he meant it , Hale replied
that he' didn ' t kiiow, that he didn't think ' so, and ' did not d'enS say he meant it. I
credit Wedding.'
a It may be questioned whether the second ground existed at•fli'e time of the ; disclarge;
in view of ' the rapidity of the events , the"fact that Napier did nof'mentiou Clark's ' pies-'
ence to Wedding , and Wedding did not talk ' to'Clerk abbut the '' incident until after"the
discharge.
LOUISVILLE CHAIR COMPANY, INC. 369
Indeed absent any other evidence of cause for Hale's outburst, the direct cor-
respondence between the anatomical analogy suggested by the legend on Napier's
hat, and Hale's remark made it obvious that Hale's remark, however crude, was a
response to Napier derisive solicitation of votes against the Union.
Although I have generally found Wedding to be credible and candid in testifying
as to the events concerning this and other incidents, he displayed a significant
lack of candor in testifying as to his awareness of the insignia worn by Napier.
Wedding testified that he did not see what was written on Napier's hat because
the insignia was on the back end. However, he conceded that he had seen
others wearing similar headbands around her department and had noticed a horse
or something drawn on the back of one. He also testified,
There was a lot of people wearing hats and buttons around there and I have
no idea how they voted over there in that election and apparently I was
fooled by a lot of them that I thought might be for the Company when they
really weren't.
Wedding, after initially testifying that he had no idea whether Napier was for
the Union or the Company, conceded that he believed her to be for the Company
but did not know it for a fact. When asked if the only people wearing similar
headbands were against the Union, Wedding replied, " I never gave it any
consideration."
In view of the remark which Napier's appearance invoked from Clark, the
fact that Wedding's office was located within beckoning distance from Napier's
work station, the fact that the headbands and other antiunion insignia were worn
in the upholstery department on the day of the election and the previous day, the
impression Wedding generally created as a quick, observant, and not aloof plant
superintendent with a strong interest in the outcome of the election, and the
defensive and at times evasive nature of his testimony in this regard, I do not
credit Wedding's disclaimer of knowledge of the slogan on Napier's headband.
Moreover, in the light of group leader Stevenson's testimony that only 1 hour
before the election, Hale put on a union button,28 and my findings above which
cast discredit upon Wedding's testimony insofar as it pertains to the state of his
knowledge, as well as the nature of the incident which caused Hale's discharge
and its timing in relation to the election, I do not credit Wedding's testimony that
he had no knowledge or belief as to Hale's support of the Union at the time of
the discharge.
In these circumstances, the question to be decided is whether Hale's remark
was such as to deny him the protection the Act would otherwise afford 'him in
responding to Napier's campaign insignia.
The test applicable to a case such as this is whether an employee in the course
of concerted activity "engaged in such flagrant, violent, serious, or extreme
misconduct as to render [him] unfit for further service." 29 In judging verbal
misconduct, the Board there held with reference to offensive cartoons:
However, assuming, arguendo, that the cartoon was offensive in character,
we do not approve of vulgarity, but do not consider this to be of such a
grievious nature as to make Packard unfit for further service. Such mode of
expression must be viewed in the context in which it occurs. Thus, its use
is not at all unusual in work-a-day associations among industrial workers.
Factory and foundry employees do not always employ the language used
in polite formal society while at work. It is also a fact that tempers are
aggravated and attitudes harden in the stress and strain of sensitive situations
such as the one involved herein. Absolute restraint might be more desirable,
but cannot be expected realistically.30
Here the context leaves no doubt that Hale's remark was not of such a
character as to render him unfit for further service It did not occur in isolation
and without provocation . It came at the climax of a long union organizing cam-
paign when the stresses and strains inherent in such campaigns are at their peak.
Of the witnesses who testified as to Hale's wearing of union buttons in the plant,
Stevenson had the least personal and emotional involvement, and I credit Stevenson.
29 Indiana Gear Works , a Division of the Buehler Corporation, 156 NLRB 397, 400, and
cases cited therein.
80 Indiana Gear Works, a Division of the Buehler Corporation, supra, 401.
264-188-67-vol. 161-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The conduct of Napier which provoked Hale's remark was apparently deemed
by no one. as sufficient to raise any question of her fitness for further service.
She and others in her department were permitted-to wear the provocative hat-
band on the day of the election in Whitham 's department without , any, restraint-
The use of vulgar language was admittedly tolerated in the plant,31 and
although Wedding distinguished between the use of such language in telling jokes
or addressing machines and its use between employees , such a distinction is more
easily stated than observed . 32 One does not use language in isolation but in
communication with others. Hale's conduct was not violent nor did he threaten
violence. In the remark reported to Wedding on which the discharge was based
Hale told Napier what he "would like" to do and not what he was going
to do. It was Napier who carried the matter forward in a portion of the incident
not reported to Wedding before the discharge when she challenged Hale to follow
through if. he had the "guts." Hale even then put it to Napier to make a further
move if she wanted his wish translated into action. If any threat emerged in the
incident , it was evoked by Napier 's response , was not reported to Wedding, and
was not a reason for the discharge.
I conclude- that Hale's choice of terms in which to voice his response to
Napier's insignia , while not to be condoned, was not so flagrant, violent , serious,
or extreme as to deprive him of protection of the Act, and accordingly that his
discharge violated Section 8(a)(1) of the Act. I find it unnecessary to decide'
whether Hale's discharge also violated Section 8(a)(3) of the Act, as the remedy
in any event would be the same 33
2. The refusal to hire Sweet
On July 22, 1965, Joseph E. Sweet applied for employment at Louisville
Chair, having been referred by the State Employment Office as an applicant for
an opening on Respondent's table line. Sweet had previously been employed
by Huttig Sash & Door Company, Inc., and had been discharged by Huttig.
Huttig's employees were represented by the Charging Party in this case, and Sweet
had been the Union's chief steward at Huttig. Following his discharge, the Union,
filed charges against Huttig, and a complaint issued, alleging that Sweet had been
unlawfully discharged for performance of his chief's steward's duties. Several
weeks before Sweet applied for employment at Louisville Chair, the Trial Exam-
iner in the Huttig case issued his Decision finding that Sweet's discharge violated
the Act and recommending his reinstatement with backpay. On September 24, 1965,
the Board adopted the Trial Examiner's Decision and Recommended Order with
respect to Sweet 34
When Sweet arrived at Respondent's plant on July 12, he was directed to Jean
Ohmann, the personnel director and plant nurse. Miss Ohmann interviews and
hires all applicants for employment for unskilled jobs at Respondent' s base rate 36
Ohmann gave Sweet an application for which Sweet filled out and returned to her.
ffi Whitham's testimony that she never beard such language used is not credited in view
of Wedding's testimony as to its use, my impression generally with respect to her testi-
mony described above, and her own earlier testimony that she told Gray a few days before
the election , "You talk bad in front of [ your wife ] and the rest of the guys are standing
right around and they can hear it too."
32 In the incident a few days earlier when Wedding Instructed Whitham to tell Joseph
Paul Wright to stop using bad language after Gray complained that Wright used vulgar
language in addressing Gray in front of Mrs. Gray , it appears that Wedding 's instruction,
at least as reported by Whitham who relayed it, covered all use of vulgar language, and
did not draw such a distinction.
33 In reaching this conclusion, I do not rely I on an incident which ' occurred thek day
after the election in the welding department , with respect to which Skaggs and Wedding
testified and which the General Counsel contended related to Hale's discharge . Although
the relationship of this incident to the discharge is no more clear to me now than at the
hearing, I would in any event credit Wedding and not Skaggs with respect to this incident.
84 Huttig Sash cf Door Company, Inc., 154 NLRB 1567.
35 Included among those Ohmann hires are employees who work on an individual or
group incentive basis. Their actual earnings with bonuses may run considerably higher
than the $1.25 base rate at which they are employed . The table line for which Sweet was
referred receives group incentive pay.
LOUISVILLE CHAIR COMPANY, INC. 371
Sweet's application listed Huttig as his last employer, and $1 .89 per hour as his
earnings at the time he left Huttig. Under the heading on the form, "Why did you
leave? Give Details." Sweet wrote the single word "Discharge." In response to
the question "What experience or training have you had which would help you
in the position for which you are applying?" Sweet wrote, "None."
According to Sweet, after returning the application to Ohmann, she looked
it over and asked Sweet why he was discharged by Huttig, and Sweet replied that
"we had Union problems, and I was fired." Sweet testified that Ohmann asked him
for further detail, and he replied that he was chief steward, was fulfilling his duties,
and was fired. Sweet testified further:
She put her hand to the side of her face, shook it back and forth and said
she couldn't hire me because we are having Union problems here too. And
she said if I was to hire you now I would be looking for a lob myself in the
morning. And therefore she said I have to look out for me and I said I can't
blame you for that.
According to Sweet when he mentioned the reason he was fired, Ohmann asked
the identity of the union involved. He replied "AFL-CIO Local 236, and she
said isn't that Local 236 and 1 said, Yes ma'm-it was the same one that-cor-
rection. And she said that was the same one that was theirs, that we are having
Union problems here too." Sweet testified that he did not discuss with Ohmann
either his previous wage rate or the rates paid by Respondent 36
In the blank on Sweet's application which called for a statement of the reasons
Sweet left Huttig, in addition to the word "Discharge" in Sweet's hand, there
also appears the notation, "Union steward lost election got fired" in the hand
of Ohmann.37 Sweet denied that he mentioned an election to Ohmann or that he
attributed his discharge to loss of an election.
Ohmann testified that she had no recollection of her interview with Sweet or
any other specific applicant mentioned during the hearing, and her recollection was
not refreshed at the hearing. Ohmann interviews fiom 5 to 30 or 40 applicants
a day, practically everyday, all of whom are referred by the State Employment
Service. Her usual practice in conducting employment interviews is to ask appli-
cants to fill out an application form. After the form is completed, she checks it
over to make certain that all questions have been answered . If not, she asks the
applicant to complete it or makes a notation herself on the basis of the informa-
tion elicited in her interview. One of the items she checks is the reason given for a
discharge or a quit, and if none appears on the application, she inquires as to the
reason . She denied positively that she had ever told any applicant that she could
not hire him because of union sympathy, affiliation , or activity. According to
Ohmann , her usual practice , from which she was careful not to deviate, was not
to question applicants about their union activities ,38 and both before and after
the May 27 election, she had hired applicants whom she knew or believed to have
been union members in previous employment.39
Ohmann testified initially that her general instructions were to hire applicants
who had previously earned $1.25 an hour or less. When first asked if she ever
deviated from those instructions , she replied that there might be deviation in the
event that the applicant had earned more money in earlier employment , but not in
88 According to Sweet, he had been told at the employment office that the hiring rate
at Respondent 's plant was $1 25 an hour
87 The record does not establish when this notation was made although it is likely that
it was made during the interview.
88 She testified that she was not instructed by Wedding or any one else with respect to
questioning applicants about their union sympathies or activities.
89 Ohmann 's testimony with respect to a list of 10 such employees, hired between Janu-
ary and August 1965, described by her as representative, indicates that her belief as to
employee membership was based on her knowledge, understanding, or belief that the em-
ployees of employers for whom they previously had worked were represented by unions,
but that she had no knowledge as to what unions represented the employees, what em-
ployees of these employers were represented, or whether or not they were subject to union-
security agreements requiring union membership as a condition of employment. Ohmann
testified that in one instance in June 1965, she lured in applicant whose application in-
dicated "was on strike" as the reason she left her prior employment in 1959 Ohmann
had no recollection of what she or the applicant said during the employment interview.
372 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
his most recent employment. She added than to the best of her recollection she had
never deviated from the practice where an applicant had made as much as $1.89
an hour in his immediately previous job. -
Later, on, cross-examination, Ohmann testified that she was instructed not to
hire employees who were making appreciably more than $1.25 an hour, and then
added that if she were hiring employees for piece or bonus work she might
hire employees who had previously earned $1.35 or $1.40 an hour, or possibly
higher, giving as an example an older worker who had been making $1.50 an
hour who applied for a bonus work job.
When recalled for further cross-examination following the adjournment in
the hearing, Ohmann denied that she had testified that she was instructed
to hire employees who were previously paid less than $1.25 an hour, and again
stated that she was instructed not to hire employees who made appreciably
more than $1.25 an hour. As then explained further by Ohmann, the determina-
tion as to what constituted earnings appreciably higher than $1.25 an hour
depended upon the length of time since the applicant had received higher earnings,
his age, the number and age of dependents, and whether, under the circumstances
disclosed by the application, it appeared that he was so accustomed to receiving
or in need of higher wages that he would not be a likely prospect to remain as a
permanent employee. .
Examination of the employment applications of those employees who Ohmann
identified as having previously worked for employers whose employees were rep-
resented by unions indicated that the exceptions were more substantial than
,Ohmann's initial testimony would have indicated. Thus one employee whose prior
earnings had been $525 a month and who had been unemployed for about the same
length of time as Sweet was hired because her potential earnings at piecework
with Respondent would be as much as $525 a month 40 Two employees with prior
earnings of $1.50 an hour were hired as assemblers on the table line where group
bonuses gave them potential earnings of $1.50 an hour 41 Another employee whose
earnings in his last job were $60 a week and in his next to last job had been
$296 a month; or the equivalent of $1.70 an hour for a 40-hour week, was hired
at $1.25 an hour because probable overtime gave him a potential of $60 a week.
One employee whose prior earnings had been $2.22 an hour was hired as a sewing
machine operator at the specific direction of Wedding because of special
circumstances. -
The table line for which Sweet was referred was a group bonus job for which
earnings with bonus averaged about $1.50 an hour.
The question presented with respect to Sweet is whether Respondent con-
sidered.,his application "in a lawful, nondiscriminatory manner" or failed to
consider his application for employment "for reasons proscribed by the Act." 42
The General Counsel' s case rests upon the testimony of Sweet, summarized
above, which, if credited, would support the inference that Ohmann in considering
Sweet's application did not go beyond consideration of Sweet's union activity at
his previous place of employment and rejected him for that reason.
The credibility issue posed is complicated by the fact that Respondent's attack on
Sweet's credibility is more circumstantial than direct. Ohmann, having no recollec-
tion of her interview with Sweet, could only rely on her own assessment of her
practices and method of operation in stating that she was positive she did not
make the statements which Sweet attributed to her. She based her certainty on the
asserted fact that union considerations never entered into her determinations with
respect to employment, that she never questioned applicants about union affiliation,
that she hired applicants despite her belief that they had prior union affiliation,
that she would have remembered the incident if she had made the statement
attributed to her by Sweet as it would have been unusual, and that Sweet's appli-
cation would have been denied as a matter of policy because of his rate of pay at
Huttig.,
In one respect at least, it would appear that the Sweet interview was unusual by
Ohmann's standards. For while Sweet did not testify that Ohmann asked him about
a Ohmann testified that, the piecework earnings of some operators ran as high as $30
to $35 a day.
41 One of these employees had previously earned $250 a month , which is approximately
the same as $1.50 an hour.
42 Shawnee Induetrie8, Inc., 140 NLRB 1451 , 1452-53, enfd . In part 333 F.2d 221
(C.A. 10).
LOUISVILLE CHAIR COMPANY, INC. 373
his prior union activity , Sweet's union activities were nonetheless discussed in
response to her routine question as to the reason for his discharge from Huttig.
Moreover , Ohmann's reliance on the fact that she never asked employees about
union activity , despite the absence of any instructions to that effect , is beside the
mark as no one contends that Ohmann questioned Sweet about his union activities
as such. The evidence with respect to the hiring of other employees who Ohmann
believed had union background is at best inconclusive. Ohmann's beliefs were for
the most part sketchily founded, went to the organization of the plants of appli-
cants' previous employers rather than to applicant 's individual activities, and
concerned unidentified unions rather than the Charging Union . Ohmann 's lack of
recollection as to the details of her interviews with any of the applicants , including
Mrs. Cslank whose application indicated that she left another employer 6 years
earlier because she "was on strike" again unfortunately makes it impossible to
know whether inquiry into Cslank's reason for leaving during the interview disclosed
further details as to Cslank's union activity and participation in the strike. The
extent of Ohmann 's knowledge in each of the cases cited rather clearly separates
them from the case of Sweet who at the very least disclosed that he had been a
chief steward and that his discharge was related to that fact and at most dis-
closed considerably more.
Of greater significance, however, Ohmann's testimony as to her hiring practices,
which ended on a weaker note than it began, does not persuade me that Sweet's
rejection as an applicant was as certainly based on policy reasons as Ohmann testi-
fied. As set forth above, in her initial testimony, Ohinann drew a firm line and tes-
tified that she was instructed to hire only those applicants who had previously
earned $1 25 an hour or less. After retreating from and then denying that she had
taken this initial position, her testimony finally indicated that out of the relatively
small number of applications examined in this proceeding, she had hired two
employees who had made substantially more than $1.25 or even $1.89 an hour,
one because potential incentive earnings with Respondent were high and one
because Wedding asked her to do so for special reasons. The progression in
Ohmann's testimony casts substantial doubt upon the rigidity of the policy which
she initially testified, without specific recollection, would have caused her to reject
Sweet. More important, the sequence of her testimony in this regard also casts
doubt upon the general reliability of Ohmann's assessment of what she may have
said in the application of standard procedures in an employment interview of which
she has no specific recollection, for her testimony in this respect pertained to a
function which she regularly performed, and one would expect her to recall her
practices in employing applicants more clearly than what may have been said in a
particular interview. For all these reasons, I find that absent recollection of her
interview with Sweet, the foundation for Ohmann's positive denial of Sweet's tes-
timony is weak.
On the other hand, Sweet's testimony contains little on its face to suggest that it
was untruthful. To be sure, Sweet, as a former officer of Respondent and as the
alleged discriminatee , has an interest in this proceeding as does Ohmann by virtue
of her position.43 However, at least one detail in Sweet's testimony, that Ohmann
put her hand to her face and shook her head upon hearing the reason for Sweet's
discharge from Huttig, indicates recollection of a total scene and not mere recita-
tion of disembodied statements. Sweet did not impress me as one likely to have
invented a detail of this kind While Sweet testified that he identified his union only
as Local 236, AFL-CIO, he also testified that Ohmann indicated recognition that
this was the same union which sought to represent Respondent's employees. Despite
Ohmann's denial that she knew what Local 236, AFL-CIO, was, I am inclined to
believe that one in her position would have at least attached sufficient significance
to the number 236 to have associated it with the Charging Party and to have made
the statement to that effect which Sweet attributed to her and which he did not
deny or correct at the time.
In sum, on the evidence before me, I conclude that Sweet credibly testified with
respect to his interview with Ohmann. Whether Ohmann genuinely does not recall
the incident or resorted to a failure of memory as a convenient means to avoid
"There is no evidence to support Respondent 's contention that Sweet was a "plant."
Sweet had not been reinstated by Huttig when he applied for employment, and there is no
evidence that he had expectation of reinstatement in the near future He had a family
to support and was - referred to Respondent by the State Employment Service . There is
no evidence before me to indicate that he was not seeking employment in good faith.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facing up to herself or to her employer for her lapse , I find it unnecessary to decide,
for after considerable reflection , I am convinced that her testimony is not sufficiently
reliable to credit her denials of the incident absent specific recollection.
Under these circumstances , I conclude that Ohmann failed to consider Sweet's
application because of reasons proscribed by the Act and that Respondent therefore
violated Section 8(a) (1) and (3) of the Act.
D. The alleged refusal to bargain
Pursuant to the Decision and Direction of Election of the Regional Director in
Case 9-RC-6223, an election was conducted in the following unit, found therein
and herein to be appropriate:
All production and maintenance employees employed by Respondent at its
Louisville, Kentucky, plant, including all plant clerical employees , garage
mechanics and their helpers, but excluding all truck drivers and spotters, all
office clerical employees, guards, professional employees, and supervisors as
defined in the Act.
The election resulted in a vote of 187 for and 112 against the Union, with 3 void
ballots. Following the election Respondent filed timely objections to conduct affect-
ing the results of the election and objections to the conduct of the election. Its
objections to conduct affecting the results of the election were based on similar
statements in two handbills distributed by the Union which Respondent alleged were
grossly and materially misleading and calculated by the Union to deceive and mis-
lead Respondent's employees in order to induce them to vote for the Union. Its
objections to the conduct of the election were based on the fact that upon counting
the ballots after the election it was determined that 302 ballots were cast while
only 300 names on the eligibility list were checked off by the observers to the elec-
tion as having voted. Respondent contended that the integrity and secrecy of the
ballot was not preserved and charged "that `chain balloting' or `chain voting' may
have occurred in said election "
On July 16. 1965, the Regional Director for Region 9 issued his Supplemental
Decision and Certification of Representative in Case 9-RC-6223 pursuant to Section
3(b) of the Act and Section 102.69 of the Board's Rules and Regulations. In it
the Regional Director concluded that neither of Respondent's objections raised a
substantial or material issue affecting the results of the election and that they should
be overruled. Accordingly, pursuant to the authority delegated to him by the Act
and the Board's Rules and Regulations, he certified the Union as representative of
employees in the appropriate unit.
On July 19, 1965, on behalf of the Union, Charles McCormick, United Furniture
Workers' regional director, wrote Respondent requesting Respondent to meet with
the Union to negotiate a collective -bargaining agreement and suggesting a meeting
date. On July 21, 1965, Respondent's attorney responded that he had been instructed
by Respondent to appeal the Regional Director's decision to the Board and that
the Union's request was accordingly premature and declined.
Thereafter Respondent filed with the Board a timely Request for Review of the
Regional Director's Supplemental Decision and Certification of Representative in
which it urged that the Regional Director 's Supplemental Decision be overruled in
its entirety and the election set aside or in the alternative that a hearing be held.
Respondent subsequently filed with the Board a Supplemental Statement in support
of its Request for Review.
On September 1, 1965, the Board by telegraphic order denied Respondent's
Request for Review "as it raises no substantial issues warranting review."
On September 2, 1965 , the Union by telegram to Respondent repeated its request
for bargaining , and on September 4, Respondent 's attorney replied on its behalf by
letter that Respondent did not agree with the Board 's action and that he had been
instructed to seek reconsideration and to carry the matter to the courts if the request
for reconsideration were unsuccessful . The letter concluded that the request for a
meeting was declined as the only means to obtain judicial review afforded by the
Act was through an unfair labor practice proceeding . On September 10, Respondent
filed its motion for reconsideration of the Board 's denial of its Request for Review
reiterating its request for a • hearing with , patticular reference to its objections to the
conduct of the election. On October 19, by telegraphic order the Board denied the
motion for reconsideration as raising no matter not previously considered , stating
"The Board concluded that no substantial issues were raised warranting a hearing "
LOUISVILLE CHAIR COMPANY, INC. 375
Respondent seeks in the instant proceeding to reraise one issue which it sought
to litigate before the Regional Director and the Board prior to the election 44 and
the two issues which it raised by its objections to the election At the hearing
Respondent sought to introduce evidence relating to these issues , but on objection
by the General Counsel the evidence was excluded , and Respondent was permitted
to make offers of proof. I have carefully considered the offers of proof made by
Respondent and find, as conceded by Respondent at the hearing , that the evidence
thereby proffered is substantially the same as the matter set forth in Respondent's
pleadings and affidavits submitted to the Board and the Regional Director in the
representation proceeding . Moreover, the facts which Respondent has offered to
prove do not conflict with any findings of the Board or the Regional Director in
the representation proceeding, and when confronted with pleadings averring the
same facts which Respondent offered to prove before me, the Board concluded that
no substantial or material issues of fact had been raised warranting a hearing.
As the Board has repeatedly held,45 its policy is not to allow relitigation in a
complaint proceeding of the legal effect of matters which have been previously
litigated and decided in a representation pioceeding , even though a formal hearing
on objections has not been provided. All three issues which Respondent seeks to
litigate were aired in the representation case , and it is clear that the Regional Direc-
tor and the Board , when confronted with allegations identical to those made by
Respondent herein , concluded that the proffered matter, even if accepted as true,
would not warrant vacating or setting aside the election . Moreover , with reference
to the second objection to the election , it may be further observed , that Respondent
has offered no evidence that there was "chain balloting ," "chain voting," or other
impairment of the secrecy or integrity of the ballots in the election held in the
representation case. Rather Respondent seeks a hearing at which it may conduct
an investigation of the discrepancy between the number of ballots cast and the
number of names checked off by the observers to the election on the eligibility list.
The investigation of objections is not subject to the Administrative Procedure Act,
and Respondent is not entitled to a hearing on its objections as a matter of right.
"The burden is not on the Board to show that the election was fairly conducted but
on respondent to show that it was not " N L R B . v 0 K. Van Storage Co, Inc., 297
F.2d 74, 75 (C.A. 5), enfg. 127 NLRB 1537; N.L.R.B. v. Douglas Electric Mein-
bership Corporation , 358 F.2d 125 (C.A. 5); N.L.R.B. v Mattison Machine Works,
365 U .S. 123. I conclude that Respondent has not supplied "specific evidence which
prima facie would warrant setting aside the election" in connection with this objec-
tion such as is required to entitle Respondent to a hearing at any stage of these
proceedings . N.L R B. v. OK Van Storage, supia, 297 F .2d 75 Accordingly,
Respondent's attack on the validity of the certification must be rejected.
A question remains as to when Respondent 's obligation to bargain arose and its
refusal to bargain commenced. Section 3 ( b) of the Act provides:
The Board is . . . authorized to delegate to its regional directors its powers
under section 9 to determine the unit appropriate for the purpose of collective
bargaining , to investigate and provide for hearings , and determine whether a
question of representation exists. and to direct an election or take a secret bal-
lot under subsection ( c) or (e ) of section 9 and certify the results thereof,
except that upon the filing of a request therefor with the Board by any inter-
ested person , the Board may review any action of a regional director delegated
to him under this paragraph , but such a review shall not, unless specifically
ordered by the Board , operate as a stay of any action taken by the regional
director . [ Emphasis supplied.]
Sections 102.67 and 102 .69(c) delegate authority to the Regional Director to
issue a decision on objections disposing of the issues in any case in which he has
initially exercised his authority to issue a decision and direction of election . Section
102.67 (b) like the statute, specifically provides that the filing of a request for
review shall not operate as a stay of the action taken by the Regional Director
unless otherwise ordered by the Board . No stay of the Regional Director 's certifi-
cation was ordered or sought in this case . Under these circumstances , I conclude
that Respondent 's obligation to bargain arose on July 16, 1965, when the Regional
Director issued his certification of representative and that when Respondent on
"This issue concerned the adequacy of the Union's showing of interest furnished In
support of Its petition.
46 E g., Carolina Natural Gas Corporation , 157 NLRB 674.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 21 and thereafter refused to bargain at the Union's request, it did so at the
risk off.being found to have refused to bargain in -violation of Section 8(a)(5)
of the Act in the event that its appeals from the Regional Director's action were
denied. Staub Cleaners, Inc., 148 NLRB 278, 296, set aside on other grounds
357 F.2d I (C.A. 2). See also Ken Lee, Inc., 137 NLRB 1642, enfd. 325 F.2d 435
(C.A. 5); Phaostron Instrument and Electronic Company, 152 NLRB 352. Accord-
ingly, I conclude that on July 21, 1965, and thereafter Respondent refused and has
continued to refuse to bargain in violation of Section 8(a)(5) of the Act.
E. The strike
The complaint alleges that on or about ,August 17, 1965, certain of Respondent's
employees ceased work and went on strike, that the strike continued since that date,
and that it was caused and/or prolonged by Respondent's unfair labor practices.
Respondent contends that these allegations are not proper for consideration in
this case because Respondent has not been charged with discriminatorily refusing
to reinstate any striker or any other violation of the Act to which the nature of the
strike has any relevance. This contention was rejected by Trial Examiner Kessel in
ruling on Respondent's pretrial motion to strike herein. Although Respondent cor-
rectly states that the Board's Order in Buffalo Arms, Inc., etc., 110 NLRB 816,
cited in the Order denying Respondent's motion, was set aside at 224 F.2d 105
(C.A. 2), the court's decision therein did not reach the issue for which it was
cited. 4 am satisfied that the allegations pertaining to the strike are properly con-
sidered herein and may be the basis of an appropriate order as part of the remedy
for the unfair labor practices, if the strike was an unfair labor practice strike.
J. H. Rutter-Rex Manufacturing Company, Inc., 115 NLRB 388, enfd. 245 F.2d
594, 597-598 (C.A. 5).
Respondent contends further that the facts adduced at the hearing, which are
largely undisputed, fail to establish that the strike was caused by its unfair labor
practices. The facts relating to the strike are as follows:
On December 23, 1964, Teamsters Local Union No. 89 was certified as the
representative of Respondent's truckdrivers. Around February 1, 1965, Respondent
and Local 89 commenced negotiations. As of August 1, no agreement had been
reached between them.
,On August 4, 1965, Local 236 held a meeting of its members employed by
Respondent. The notice for this meeting stated:
A SHOWDOWN IS COMING . Already plans are being made for
JOINT ACTION between Furniture Workers Local 236 and Teamsters Local
89. The negotiating committees of Local 236 and Local 89 will meet prior to
the general membership meeting on Wednesday, at 5:30 P.M.
Approximately 175 employees attended and voted unanimously to give authority
to the Union's negotiating committee to call a strike at their discretion. McCormick,
regional director of the parent International of Local 236 chaired the meeting and
told the employees that he recommended adoption of the resolution in the face of
Respondent's continued harassment to union people and the Company's continuing
refusal to bargain with Local 236. Saul Silverman, national organizational coordi-
nator of the United Furniture Workers and Atterbury, a representative of Team-
sters Local' 89, were also present at the Local 236 meeting. Silverman mentioned
the Teamsters' negotiations and the fact that no agreement had been reached with
the Teamsters after 6 months of negotiations.
On August 5, 1965, McCormick sent Respondent a telegram charging that
Respondent's letter of July 21, "1965, in which it declined the Union's request to
bargain as,premature,' constituted an unfair labor practice. The telegram continued:
';At, a meeting called of the production and maintenance employees of your Com-
panyion August,4 '1965 a unanimous vote to .strike against the- continuing'unfair
labor, practices of the Company took'-place." The letter then repeated the Union's
demand for -immediate' bargaining.
'On August 9, under ^ the auspices of the Federal Mediation and Conciliation
Service, 'representative's, of Respondent and the Union met,` after McCormick and
Respondent's Attorney Smith signed the'-following memorandum:
It is understood by both,parties that this is an off-the-record meeting held,at
the invitation of F.M.C.S. and will not be ' used ' in' any 'way' by either party
in any pending or future proceeding., The sole purpose,ofthe. rheeting is an
attempt to improve the atmosphere.
LOUISVILLE CHAIR COMPANY, INC. 377
During the course of this meeting, Silverman, who was present, pressed for
immediate negotiations, and Smith, who spoke for Respondent, took the position
that Respondent would not decide on its course of action until after the Board had
decided its appeal. During the course of the meeting, Smith told Silverman
Respondent would inform the Union whether or not it would bargain within 24
hours after the Board's decision was received, and Silverman stated that he would
take no action until after hearing from Smith following the Board's Decision46
The discussion then turned to measures which might be taken to ease tensions in
the plant in the interim.
On August 16, Respondent and Teamsters Local 89 met all day and again in the
evening in an effort to resolve their remaining differences. Early in the morning on
August 17, the negotiations terminated with the parties deadlocked. During the
course of the meeting, Teamsters Representative Atterbury told Respondent that
if no agreement was reached, a strike would start the next day.
The next morning, August 17, Silverman called Smith and informed him that if
the Teamsters went on a legitimate strike, the Furniture Workers would help them
in every way they could. Silverman also stated that the Furniture Workers would
not only respect the Teamsters' picket lines but that their "official position" would
be that their patience had run out and that they were striking because of Respond-
ent's unfair labor practices and refusal to bargain.47
During this conversation Smith reminded Silverman of the agreement reached
at the August 9 meeting that the Furniture Workers would not go out on strike or
take any action until the Board had decided the representation case. Silverman
replied that he expected to be dealing with Smith for a long itme, that he did not
want to be underhanded or accused of doing things behind the backs of others, and
that he had called for the purpose of letting Smith know what the situation was.
During the conversation, Silverman also reminded-Smith that he had told Smith
on August 9 that the employees had voted that if the Teamsters struck, they would
also strike.
On the morning of August 17, the Teamsters struck and" began to picket
Respondent's plant shortly before noon. During the morning the Union' s negotiating
committee met and called a membership meeting at. noon . At the noon meeting,
again attended by approximately 175 employees of Respondent, McCormick told
the employees that there was no indication that Respondent intended' to bargain
and recommended that they strike immediately for a contract. They voted to do so,
and, the strike began around, 1 p.m. Pickets were posted at that time with signs
bearing the following legends: "UFWA-AFL-CIO, United Furniture Workers
on strike, Louisville Chair Company refuses to bargain with Local 236" and
"AFL-UFWA-CIO On strike against the unfair labor practices of the Louisville
Chair Company. Local 236." Signs bearing these legends continued in use through-
out the course of the strike. The Union did not communicate further with Respond-
ent from August 17 until it sent its telegram of September 2, reiterating its bar-
gaining demand.
On September 17, Respondent and Teamsters Local 89 reached an agreement, and
the drivers returned to work shortly thereafter. However, the production and
"These findings are based on the, testimony of Wedding and Milton P. Conrad III:
Respondent characterizes this eicliange as an agreement not to strike and relies upon it as
evidence that Respondent's refusal to bargain was not the cause of the strike, which
commenced before the Board decided its appeal '. In view of the nature ,of the meeting, the
memo'ranilum executed preceding the meeting at Respondent 's insistence ,' and nature of the
discussion described by Wedding and Conrad , I view the statements of Smith and Silver-
man as statements of their "present intention rather than' offer and acceptance , constitut-
ing a verbal agreement . In any event, I would not find; and it does not appear to be urged,
that' this exchange constituted ' an unequivocal waiver of the employees ' right to strike
until after the Board 's Decision ' on Respondent's appeal had issued . Even' ' absent the
memorandum , as Respondent refused to recognize the Union as representative'Wits em-
ployees, it would be difficult to conclude that Respondent entered into any agreement with
the Union in its representative capacity.'
" Silverman also stated "I hope' you'understand 'what I' am 'saying'or rather 'what I am
not saying." Smith replied that he did not', and Silverman explained "Well; if the Team-
sters go out then'the'Furnitdre Wo'rker's will ' feel morally' obligated to do something more
than simply stand by." ' ' j
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance workers remained on strike and were still on strike at the time of the
hearing herein.48
It is evident from the above that the timing of the strike was influenced and
probably determined by the breakdown in the negotiations between Respondent
and the Teamsters. It may well have been that but for the Teamsters' strike, the
Union would not have struck at least until after the Board had acted upon Respond-
ent's appeal from the certification. To that extent the Teamsters' strike was cer-
tainly a cause of the Union's strike. But it does not follow that the Teamsters'
strike was the sole cause of the strike, and there is substantial evidence that the
Union would not have struck Respondent but for its separate dispute over Respond-
ent's refusal to honor the certification and bargain. Thus, even before the Team-
sters struck, the members from Respondent's plant voted to authorize a strike
against Respondent, and in determining to take strike action , the membership had
before it Respondent's refusal to bargain with the Union as well as the Teamsters'
dispute. The signs carried by the strikers protested the refusal to bargain, and no
action taken by the Union was inconsistent with its contention that the strike was
in protest of that refusal. To the contrary, when the Teamsters' strike ended, the
Union's strike continued, indicating a substantial independent cause of the strike.
I find nothing in the statements of union representatives to indicate the contrary.
The statements of Silverman, who was present on August 9, to Smith on August 17
undoubtedly reveal that the timing of the strike by Local 236 was determined by
the Teamsters' decision to strike. But they do not concede the lack of any separate
cause for the strike.49 Rather they indicate a determination to act contrary to his
indicated intention on August 7 so that Local 236 would do more than merely
support the Teamsters' strike.
On the facts thus presented I conclude that the strike had at worst dual causes
and was an unfair labor practice strike from its start59
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade , traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that Respondent engaged in certain violations of Section 8(a) (1),
(3), and (5) of the Act, I shall recommend that it cease and desist therefrom, and
take certain affirmative action designed to effectuate the policies of the Act.
As Respondent on or about July 21, 1965, and at all times thereafter refused
and still refuses to bargain with the Union as the representative of its employees
in an appropriate unit, it will be recommended that Respondent , upon request,
bargain collectively with the Union , and in the event that an understanding is
reached, embody such understanding in a signed agreement.
It has been found that at the time of the hearing Respondent's employees were
engaged in a strike caused and prolonged by Respondent 's unlawful refusal to
bargain. The striking employees were therefore entitled to reinstatement upon
application, whether or not their positions had been filled by the hire of replace-
ments. Accordingly, in order to effectuate the policies of the Act, it will be recom-
48 On November 11, shortly before the hearing commenced herein , Sloan, a vice presi-
dent of the United Furniture Workers of America, telephoned Smith to inquire whether
they could meet to attempt to settle the dispute. During the course of the conversation,
Smith quoted Silverman as stating that the Union's official position was that the patience
of Local 236 had run out at the same time as the Teamsters . Sloan stated that he did not
understand that this was the cause of the strike but understood that the Teamsters struck
first and the Furniture Workers recognized, their picket line.
49 The statement on November 11 of Sloan, who as far as the record shows had no first
hand knowledge of the facts, can be given no greater significance , particularly in view of
the fact that at the time of his conversation with Smith the Teamsters ' strike had been
over for nearly 2 months and the Local 236 strike continued.
50 The Little Rock Downtowner, Inc, 145 NLRB 1286, 1311-12, enfd. as modified 341
F.2d 1020 (C.A. 8). See Wooster Division of Borg-Warner Corporation, 121 NLRB 1492,
following 236 F.2d 898 (C.A. 6).
LOUISVILLE CHAIR COMPANY, INC. 379
mended that Respondent shall, upon application, offer reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or other
rights or privileges, to all employees who went on strike on August 17, or there-
after, dismissing, if necessary, any persons hired on or after that date 61 It is also
recommended that Respondent make whole those employees who went on strike
on August 17, 1965, or thereafter, for any loss of pay they may have suffered or
may suffer by reason of Respondent's refusal, if any, to reinstate them, by payment
to each of them of a sum of money equal to that which he normally would have
earned as wages during the period from 5 days after the date on which he applies
for reinstatement, to the date of Respondent's offer of reinstatement, less his net
earnings, to which shall be added interest at the rate of 6 percent per annum, in
accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
With respect to Wayne G. Hale, who was discharged in violation of Section
8(a)(1), and Joseph E. Sweet, who was discriminatorily denied employment,
effectuation of the policies of the Act would ordinarily require that they be offered
reinstatement and employment, respectively, with backpay. However, it appears
that on August 23, 1965, after the strike had started, Respondent mailed letters
to Hale and Sweet in which Respondent offered Hale employment substantially
equivalent to the job he held before his discharge and offered Sweet employment.
On or about August 25, Sweet and Hale separately visited the plant in response
to the letters and told Superintendent Wedding they would like to work but would
not cross the picket line to do so. I find that thereby both Hale and Sweet became
unfair labor practice strikers on August 25, 1965, who thereafter voluntarily with-
held their services in support of the strike.
Accordingly, it will be recommended that as in the case of the other unfair labor
practice strikers, Respondent shall, upon application, offer Hale reinstatement to
his former or a substantially equivalent position, without prejudice to his seniority
or other rights or privileges, and shall, upon application, offer Sweet immediate
employment at the same position as, or a position substantially equivalent to, that
at which he would have been employed if he had not been discriminated against,
without prejudice to any seniority or other rights and privileges he might have
acquired. It is further recommended that Respondent make Hale and Sweet whole
for any loss of earnings suffered by them as a result of the discharge and refusal
to hire, respectively, by payment to each of them of a sum of money equal to that
which they normally would have earned as wages during the period from May 27,
1965, in the case of Hale, and July 12, 1965, in the case of Sweet, until August 25,
1965, when they became unfair labor practice strikers. Further, it will be recom-
mended that Respondent make them whole for any loss of pay they may have
suffered or may suffer by reason of Respondent's refusal, if any, to reinstate Hale
or employ Sweet by payment to each of them of a sum of money equal to that
which he normally would have earned as wages during the period from 5 days
after the date on which he applies for reinstatement or employment, respectively,
to the date of Respondent's offer of reinstatement or employment 62 From these
sums of money -net, earnings shall be deducted and interest' added at the rate of
6 percent per annum, in accordance with the formula set forth in F. W. Woolworth
Company, supra, and Isis Plumbing & Heating Co., supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2 ( 2), (6), and (7) of the Act.
2. Local 236 ,` United Furniture Workers of America , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed by Respondent at its
Louisville , Kentucky , plant , including all plant clerical employees , garage mechanics
and their helpers, but excluding all truckdrivers , and spotters , all office clerical
employees , guards, professional employees , and supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining within the meaning of Section
9(b) of the Act.
61 Buffalo Arms , Inc., supra ; J. H. Rutter-Rem Manufacturing Co., supra.
52 Northern Virginia .Sun Publishing Company, 134 NLRB 1007 , 1008-10 , vacated and
remanded on other grounds , 314 F.2d 260 (C.A.D C.).
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. At all times since July 16, 1965, the Union has been, and now is, the exclusive
representative of the employees in the said unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By threatening employees with discharge for union activity, by discharging
Wayne G. Hale for his conduct while engaged in protected union activity, by refus-
ing to consider Joseph E. Sweet's application for employment for discriminatory
reasons, and by refusing on and since July 21, 1965, to bargain collectively with the
Union as the representative of the employees in the above unit, the Respondent has
engaged in and is engaged in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of the law, and
pursuant to Section 10(c) of the Act, I hereby recommend that Respondent, Louis-
ville Chair Company, Inc., Louisville, Kentucky, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge or other reprisal for engaging in pro-
tected union activities under color of enforcement of a discriminatorily applied rule
against solicitation during working hours or otherwise.
(b) Discharging employees because of conduct which constitutes concerted activ-
ity protected by Section 7 of the Act.
(c) Discouraging membership in Local 236, United Furniture Workers of
America, AFL-CIO, or any other labor organization, by refusing to consider appli-
cations for employment or otherwise discriminating in regard to the hire and tenure
of employees or any term or condition of their employment, except as authorized
in Section 8(a)(3) of the Act, as amended.
(d) Refusing to bargain collectively in good faith concerning rates of pay, hours
of employment, and other terms and conditions of employment with Local 236,
United Furniture Workers of America, AFL-CIO, as the exclusive representative
of the employees in the appropriate unit described in paragraph 3 of the section
of the Decision entitled, "Conclusions of Law."
(e) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist the above-named or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage in
any other activity for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action which it is found will effectuate the
.policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all employees in the appropriate unit, and embody in
a signed agreement any understanding reached.
(b) Upon application, offer immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or other
rights and privileges, to Wayne G. Hale and all those employees who went on
strike on August 17, 1965, or thereafter, and upon application, offer to Joseph E.
Sweet immediate employment at the same position as, or a position substantially
equivalent to, that at which he would have been employed had he not been dis-
criminated against, without prejudice to any seniority or other rights and privileges
he might have acquired, dismissing if necessary any persons hired on or after
August 17, 1965.
(c) Make whole all the employees referred to in paragraph (b) above in the
manner set forth in the section of the above Decision entitled, "The Remedy."
(d) Notify the above-mentioned employees, if presently serving in the Armed
Forces of the United States of their right to full reinstatement, or in the case of
Joseph E. Sweet, employment, upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(e) Preserve, and, upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant and neces-
sary to a determination of compliance with paragraphs (b), (c), and (d) above.
LOUISVILLE CHAIR COMPANY, INC. 381
(f) Post in conspicuous places at its Louisville, Kentucky, place of business,
including all places where notices to employees are customarily posted, copies of
the attached notice marked "Appendix." 5S Copies of said notice to be furnished
by the Regional Director for Region 9 after being duly signed by the Respondent's
representative, shall be posted by it immediately upon receipt thereof, and be
maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered , defaced,
or covered by any other material.
(g) Notify said Regional Director, in writing, within 20 days from the receipt
of this Decision, what steps Respondent has taken to comply herewith.54
IT IS FURTHER RECOMMENDED that the complaint otherwise be dismissed.
53 Ithe event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
64 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director, in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively upon request with Local 236, United Furniture
Workers of America, AFL-CIO, as the exclusive representative of all the
employees in the bargaining unit described below with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment,
and if an understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees at our Louisville, Kentucky
plant, including all plant clerical employees, garage mechanics and their
helpers, but excluding all truck drivers and spotters, all office clerical em-
ployees, guards, professional employees, and supervisors as defined in
the Act.
WE WILL, upon application, offer Wayne G. Hale and all employees who
went on strike on August 17, 1965, or thereafter, immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and WE WILL offer to Joseph
Sweet immediate employment at the same position as, or a position substan-
tially equivalent to, that at which he would have been employed had he not
been discriminated against, without prejudice to any seniority or other rights
and privileges he might have acquired, dismissing if necessary any persons
hired on or after August 17, 1965.
WE WILL make the above-mentioned employees whole for any loss of pay
they may suffer as a result of our refusal to reinstate or employ them upon
application, and WE WILL make Wayne G. Hale and Joseph Sweet whole addi-
tionally for any loss of pay they may have suffered as a result of the discharge
of Hale and the refusal to employ Sweet from the respective dates thereof until
August 25, 1965, when they rejected offers of employment because of the strike.
WE WILL NOT discharge employees because of conduct which constitute
concerted activity protected by Section 7 of the Act.
WE WILL NOT discourage membership in Local 236, United Furniture
workers of America, AFL-CIO, or any other labor organization, by discrimi-
natorily refusing to employ any applicant for employment or by discriminat-
ing in any other manner in regard to the hire or tenure of employment of
employees, or any term or condition of employment.
382 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees with discharge or other reprisal for
engaging in protected union activities under color of enforcement of a dis-
criminatorily applied rule against solicitation during working hours or
otherwise.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the rights to self-organization, to form labor
organizations, to join or assist Local 236, United Furniture Workers of Amer-
ica,'AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activi-
ties for the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
LOUISVILLE CHAIR COMPANY, INC.,
Employer.
Dated------------------- By------------------------ -------------------
(Representative) (Title)
NOTE.-We will notify the above-mentioned employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement or employ-
ment , as the case may be, upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as amended, after dis-
charge from the Armed Forces.
This notice must remain posted for 60 consecutive. days from the date of posting,
and must not be altered, defaced, or covered by any" other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone
684-3627.
Serv-Air , Inc. and International Association of Machinists, AFL-
CIO and Smoke-Eaters Lodge No. 898, International Associa-
tion of Machinists , AFL-CIO. Cases 16-CA-2122, 2131, 2163,
2176, and 2187. October 25,1966
DECISION AND ORDER
On November 18, 1965, Trial Examiner Thomas F. Maher issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner also found that Respondent had
not engaged in certain other unfair labor practices alleged in. the
complaint and recommended dismissal of the complaint with respect
thereto. Thereafter, the Respondent and General Counsel filed excep-
tions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
161 NLRB No. 17.