Memphis Furniture Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 15, 1937

3 N.L.R.B. 26 (N.L.R.B. 1937)

In the Matter Of MEMPHIS FURNITURE MANUFACTURING COMPANY and
FURNITURE WORIcERS LOCAL UNION No. 1174, UNITED BROTHERHOOD
OF CARPENTERS &, JOINERS OF AMERICA
Cases Nos. C-118 and R-35-Decided July 15, 1937
Furniture Industry-Interference, Restraint or Coctcton. expressed opposition
to labor organization, threats of retaliatory action; surveillance of union meet-
ings; questioning employees regarding union affiliation; attempts to persuade
employees not to join or to resign from union; refusal to recognize or negotiate
with union representatives--Strike: averted by filing of charges with Board-
Discrinunat2on: discharge-Rcinsta lenient Ordered-Rac,7r, Pay: awarded.
Mr. Walter G. Cooper, Jr., for the Board.
Canale, Glanlcler, Loch cC Little, by Cllr. Phil H. Canale, of
Memphis, Tenn., for the respondent.
Mr. N. Fowler, of Memphis, Tenn., for the Union.
Hilda Droshnicop and Mr. Hyman A. Schulson, of counsel to the
Board.
DECISION
STATEMENT OF CASE
Upon charges duly filed by the Furniture Workers Local Union
No. 1174, United Brotherhood of Carpenters and Joiners of America,
herein called the Union, the National Labor Relations Board, herein
called the Board, by Charles N. Feidelson, Regional Director for the
Tenth Region (Atlanta, Georgia), issued its complaint dated May 9,
1936, against the Memphis Furniture Manufacturing Company,
Memphis, Tennessee, herein called the respondent. The complaint
and notice of hearing thereon were duly served upon the respondent
and the Union.
The complaint alleged that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, in violation
of Section 8, subdivisions (1) and (3), and Section 2, subdivisions
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. In reference to the unfair labor practices the com-
plaint alleged in substance that the respondent discharged the fol-
lowing 13 employees upon the dates set forth : W. O. Sullivan, A. U.
Barmer, B. A. Mauldin, and Troy Pugh, on April 7, 1936; C. B.
Forester, W. E. Jordan, J. E. Choate, H. F. Hoppes, and M. Kay on
April 8, 1936; R. R. Jordan on April 10, 1936; James Western on
April 11, 1936; Alonzo Dabney on April 13, 1936, and N. W. Bowers
26
DECISIONS AND ORDERS 27
on April 16, 1936, for joining and assisting the Union and for en-
gaging in concerted activities for the purpose of collective bargaining
and other mutual aid and protection, and that the respondent dis-
charged Mrs. Barmer on April 8, 1936, because of the union activities
of her husband.
The respondent filed an answer to the complaint alleging that it
had not discharged the employees named in the complaint, other than
Mrs. Barmer, or refused to reinstate them, but that they were tem-
porarily laid off in due course of business and would be reinstated
when their employment was needed. As to Mrs. Barmer, the
respondent admitted that she was discharged but denied the reasons
therefor alleged in the complaint.
At the same time that the charge was filed, the Union also peti-
tioned the Board for, an investigation and certification of representa-
tives pursuant to Section 9 (c) of the Act. On May 9, 1936, the
Board directed the Regional Director to conduct an investigation
and provide for an appropriate hearing upon clue notice, pursuant to
Section 9 (c) of the Act and Article III, Section 3 of National Labor
Relations Board Rules and Regulations-Series 1, as amended. Pur-
suant to notice, a joint hearing on the complaint and petition was
held in Memphis, Tennessee, on May 21, 22, 25, 26, and 27, 1936,
before Walter Wilbur, the Trial Examiner duly designated by the
Board. The Board, the Union, and the.responclent were represented
by counsel.
At the hearing, the respondent, appearing specially, interposed a
motion to dismiss on the ground (1) that the Act is unconstitutional
in that it violates the Fifth and Tenth Amendments to the Consti-
tution, and (2) that the authority granted by the Act, even if consti-
tutional, does not extend to jurisdiction over the respondent. The
respondent further moved to.dismiss the complaint for insufficiency.
The Trial Examiner denied the motion. The respondent's motion to
make the complaint more specific in respect to the allegations of
paragraph 12 thereof was granted and paragraph 12 was thereupon
stricken from the complaint on motion of the regional attorney. A
similar motion with respect to the general allegations, respecting the
interstate commerce character of the respondent's business was de-
nied. At the hearing the motion of counsel for the Board to con-
solidate the hearings in both the complaint and representation cases
was granted.
Full opportunity to be heard, to cross-examine witnesses, and to
produce evidence bearing upon the issues was afforded to all parties.
Counsel for the Board and counsel for the respondent filed briefs to
which we have given clue consideration.
Subsequently, the Trial Examiner filed his Intermediate Report,
finding that the discharge of all those named in the complaint, with
28 NATIONAL LABOR RELATIONS BOARD
the exception of Troy Pugh, was in violation of the Act, and rec-
ommending their reinstatement with back pay. Exceptions to the
Intermediate Report were thereafter filed by the respondent.
On July 9, 1937, counsel for the respondent, pursuant to his
request, orally argued the cause upon the record before the Board in
Washington, D. C.
On July 13, 1937, the Board granted the Union permission to with-
draw its petition.
The Board has reviewed all the rulings made by the Trial Exam-
iner on motions and objections and other matters and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
We have fully considered the exceptions to the Intermediate Report
and find no merit in them. They are hereby overruled.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE RESPONDENT AND ITS BUSINESS
The respondent is a corporation organized under the laws of the
State of Tennessee and is engaged in the production, sale, and dis-
tribution of furniture. Its sole plant and place of business is located
in Memphis, Tennessee.
For the year ending April 30, 1936, the respondent employed an
average of 446 employees with a pay roll for the year of $347,697.77.
The value of its manufactured product during the same period
amounted to $1,231,784.61. The respondent maintains an average
stock of manufactured products in its plant warehouse of the value
of $100,000 to $200,000.1 '
The respondent purchases its raw materials, consisting of lumber,
glass, varnish, hardware, and other materials both within and without
the State of Tennessee ; purchases from other states amount to
approximately 50 to 60 per cent. Machinery and manufactured parts
are purchased in about equal proportions within and without the
State.
Somewhat more than half of the respondent's products are sold
outside of Tennessee, principally within the States of Arkansas,
Texas, Mississippi, Missouri, Kentucky, Georgia, Alabama, and
Louisiana.
II. THE UNION
Furniture Workers Local Union No. 1174, United Brotherhood
of Carpenters and Joiners of America, affiliated with the American
Federation of Labor, is a labor organization which was chartered in
1934.
' Board'e Exhibit No. 3i.
DECISIONS AND ORDERS
III. THE UNFAIR LABOR PRACTICES
29
The Union remained small and inactive until February, 1936, when
it began a membership drive. Negroes, formerly excluded by the
Union, were urged to join, and tentative overtures were made to the
management for a collective agreement. By the end of March, inter-
est in the Union had greatly increased. At about this time the man-
agement, which had been passive in its attitude toward union labor,
initiated its own campaign. On April 4, a Saturday, C. A. Robbins,
Jr., the respondent's superintendent, cautiously felt out N. W.
Bowers, a union employee, on the subject. He closed the conversation
with the statement : "I like you and believe you have reason. You
have worked here a good while. I advise you not to have anything
to do with the Union-it would be best for you not to." On Monday,
April 6, the superintendent called in H. F. Hoppes, the recording
secretary of the Union. Although again no overt threats were made
the respondent's anxiety concerning the organization of the shop was
revealed in the statement that should "labor trouble" arise the plant
would shut down. On Tuesday, April 7, a foreman made a similar
attempt to persuade Forester, the Union president, to abandon the
Union: "Don't you think your job is worth more to you than that
union, * * * it is interfering with your job. * * * I am
sorry, but I thought you would be the last man to join the union."
Within a few minutes after the last conversation on April 7, three
union men were discharged : Barmer, Sullivan, and Mauldin. Bar-
mer 2 was a; trustee of the Union and an aggressive solicitor of new
members. Sullivan,' too, was an active union man. Mauldin 4 had
joined the Union the night before. When informing Mauldin of his
discharge, his foreman remonstrated with him : "What in the name
of God do you mean by getting mixed up with that Union * *
I hate to see my men get fired, but I am afraid they will * * *.
Well, if you go down and talk right to him you won't get fired." In
the office Mauldin requested an explanation, but none was given, and
his discharge was allowed to stand. To Barmer, the foreman said
that he did not know the reason for the "lay-off." "Not dull busi-
ness * * * your work is perfect * * * can't tell why. Have
orders from the superintendent to lay you off." Sullivan likewise
asked for and was refused an explanation.
That night Barmer, Hoppes, Kay, Choate, and W. E. Jordan gath-
ered at the Labor Temple in Memphis. Hoppes, who was ordinarily
the spokesman, telephoned Robbins and requested a conference on the
2 Barmer earned $13.20 a week as a cabinet maker.
Sullivan earned $13 20 as a top -out man in the cabinet room.
Mauldin had been employed by the respondent as its patch man and repairer since
1920, except at intervals spent at farming , amounting to about two years. He had been
earning $15 .00 a week.
30 NATIONAL LABOR RELATIONS BOARD
subject of the dismissals. Robbins refused to see or to speak to the
men.
This point-blank refusal was followed the next morning by the
summary discharge of Hoppes, Kay, Choate, and W. E. Jordan.
Hoppes,° charter member of the Union, recording secretary and mem-
ber of the Executive Committee, who in his three years' service for the
respondent had never been laid off before while the shop was in
operation except during the usual semi-annual inventory shut-downs,
found his time card removed when he reported for work. This meant
discharge. Kay, conductor and an active union mail, also found his
card out of the rack and was given his money by Robbins without
explanation.° Choate, first president of the Union and its present
financial secretary, was also given no explanation, but was told that
there was nothing wrong with his work.7 He was given a written
recommendation. When W. E. Jordan, vice-president of the Union,
reported for work his time card was also out of the rack.8
During the same morning, Forester, the president of the Union,
was told by Robbins that he was being laid off. A few minutes later
his foreman said to him: "If you pull out of the Union, I will put
you back to work. If you don't do it, I can't put you back. The
Union won't get you anything * * *. If you will pull out of the
Union, you can get back." a
During the day, Mrs. Barmer, whose husband had been discharged
on the preceding clay, was discharged. She had been employed at
$15.00 to $16.50 a week as a cutter in the upholstery department for
14 years and had never been laid off. She was not a union lnember.
Her foreman replied in an to her inquiries : "They want you
fired * * *. I am not firing you myself * * *. I have nothing
to fire you for. As far as I know, your work is satisfactory, but at
the office they want you fired * * *. Is your husband a member
of the Union? * ; " Is he president? * * *. The reason
you are being fired is because your husband is."
G At the time of his discharge Hoppes was earning $11) 80 a week in the respondent's
machine room.
flay had worked steadily for the iespondent for nine years. For eight and one half
years he was hand-saw operator; at the time of his discharge he was eaimng $2200 a
week hay had been a union member for Iwo yeas s ; lie had been vice-president.
7 At the time of his discharge Choate was earning $15 40 a week as it skilled-route
operator. Since his ouginal employment by the respondent three years before, lie had
been laid off only during inventory periods At the time of his discharge , Choates had
enough work on hand to keep him busy fot six weeks
8W. E Jordan, described by his' foreman as one of the best mechanics lie had ever
known, was eatmng $22 00 a week as a set-up man on a lathe, a skilled job At the
time of his discharge lie had sufficient work on hand to last two weeks
9 h otester was a highly skilled cabinet repairman receiving $25 00 a week, the top scale
of wages He had worked steadily whenever the cabinet room was in operation , on
occasion lie had been the only man in his department to be kept at work. Twice within
the previous 18 months he had been offered higher pay by a rival concern, but each time
the respondent met the competition by raising Forester's wages. In April, 1936 Forester's
department was running piactically full time with its normal complement of 30 men.
DECISIONS AND O]IDEI{S 31
On the same day, R. R. Jordan, a brother of W. E. Jordan, was
questioned by Robbins : "Where do you stand? * * * I advise
you not to attend the meeting tonight. If you do, why, I will know
it * * I have no personal grudge against your brother. I like
hini and think he is a nice man, but he just got mired too deep and
got caught like the rest."
That night, R. R. Jordan joined the Union. As good as his word,
the superintendent took steps to discover what transpired at the union
meeting. In a dark alley across the street from Carpenter's Hall,
Memphis, in an automobile parked without lights, the respondent's
time-keeper kept watch. Accosted by W. E. Jordan, the time-keeper
admitted that he had been directed to spy on the meeting and re-
marked that Janes, president of the respondent, had suggested that
he go into the meeting himself.
More discharges followed : R. R. Jordan 1o and James Western,11
who had joined the Union on March 30 and who immediately became
very active, were dismissed on April 10. Alonzo Dabney,12 who
made a speech on April 11 urging other Negroes to join, was told to
leave on April 13, the next working day. N. B. Bowers,13 who disre-
garded two warnings to desert the Union, was discharged on April 16.
Jack Denton had been employed by the respondent for two weeks
on February 28; 1936.' On April 1 he reapplied for work and was
told there was nothing for him. On April 7, the day on which the
first of the above discharges were made, Robbins sent for him and
hired him with the warning : "I will give you your job back provided
you play ball with me. I don't want you in here if you are going
to play ball with them and I want that understood." On April 18
Denton joined the Union. On the 22nd he was discharged.
In the meantime, on Tuesday, April 14, a committee from the Union
called upon Janes, president of the respondent. Janes summed up
his position in the following terms : "I have no intention of recog-
nizing any union. I am firing whom I please and hiring whom I
please. I have always done it and will continue to do it as long as
I operate the business. 'And as for your being fired, you were not
fired, you just quit. The minute you joined the Union you were
automatically fired." A second conference on Tuesday, April 21, at-
tended by C. L. Richardson, Commissioner of Conciliation of the
United States Department of Labor, was similarly unproductive of
results. On Friday, April 24, the union committee submitted a draft
11 R R Jot dan was an expert drum sander when lie was discharged he had two or
three weeks' work on hand
"Western worked on lathe work at a wage of $8 80 a week Thete had been no com-
plaints about his work
12 Dabney was an unskilled laborer earning $7.90 a week He joined the Union On
April 4
13 Bowers, an employee of approximately eight years' standing, had worked steadily for
three years except during the semi-annual inventory period He operated the Dedo saw
and a chucking machine at $15 40 a week
32 NATIONAL LABOR RELATIONS BOARD
of a contract. Janes categorically refused to consider any agreement
proposed by the Union.
After the three conferences had brought no results, the Union
prepared for a strike. It was prevailed upon, however, to withhold
the contemplated strike and instead filed the charges with the Board.
At the hearing the respondent offered no witnesses. The only
materials submitted by it were the work histories of the discharged
employees in an effort to show by their occasional lapses in employ-
ment that the lay-offs which frequently occurred in the plant did
not necessarily connote discharge. It further put in evidence a list
of lay-offs for the period from April 1 to May 15, 1936, indicating
that 152 employees out of approximately 450 had lost some time
during this period. The respondent pointed out that some of the
discharged employees had been with the respondent only a short
time and would normally have been selected for lay-offs when any
reduction of force was necessary.
Standing alone, this defense would deserve consideration. In the
light of the total situation as revealed by the record its persuasive-
ness is quickly dissipated. The employment records of the dis-
charged employees show that when they were laid off it was usually
during the semi-annual inventory in June and December. The list
of lay-offs submitted by the respondent points to no general lay-offs
for any cause in the early part of April; it was not the time for
inventory. Passing this point, the usual method of lay-off was to
post a notice upon the bulletin board. The foremen then explained
the reason for suspension and the probable time of resumption of
work. In this case no forewarning was given. Instead, the pro-
cedure ordinarily used for discharge was followed ; the time cards
were summarily removed from the rack. Explanation was denied
some of the men named in the complaint; others were plainly told
that their membership in the Union was the reason. No estimate
was offered when they might expect to return to work. There is no
evidence of unsatisfactory work records as against the employees
here involved. The record is affirmatively to the contrary. Some
of them had been in the employ of the respondent for years. Many
were' in key positions with plenty of work ahead. New men, non-
union, replaced those discharged during this period. The failure to
reinstate the men here involved contrasts suggestively with the fact
that several weeks later when, on April 24, the respondent laid off
some 92 men for ten days it took back practically all of them upon
the resumption of operations on May 4. Particularly difficult to
reconcile with the respondent's contention that these were routine
temporary lay-offs is the evidence that 13 new employees were hired
between April 8 and May 11.
Uncontradicted testimony in the record thus establishes that, at a
period when few or none of the non-union force was being laid off,
DECISIONS AND ORDERS 33
one after another of the Union's officials and most active members
were told to go. Janes, president of the respondent, and C. A.
Robbins, Jr., superintendent, were at no pains to obscure their
opinion that union activity was incompatible with loyalty to the
respondent. Failing in its attempt, to persuade its workers that this
conflict of loyalties required their abandonment of the Union, the
respondent resorted to discharge. Its determination to eliminate
the influence of the union leaders from the plant led to the discharge
of Mrs. A. U. Barmer, who was herself not a member of the Union.
The evidence indicates that the sole reason for her dismissal was that
she was the wife of A. U. Barmer, who had been discharged. It is
arguable that Mrs. Barmer would have suffered the same fate what-
ever might have been the reason for the discharge of her husband.
However, in this case the cause of the husband's discharge was his
connection with the Union. The respondent thus made union mem-
bership and activities a bar to the employment not only of the union
member himself but of members of his family as well. A more
effective mode of discouragement of union affiliation could hardly
be found than the knowledge that such activities put not merely the
union member's employment but that of those closely related to him
in jeopardy. The direct cause of Mrs. Barmer's discharge was the
fact that her husband had been discharged, but the indirect and ante-
cedent cause was discrimination against union members in regard to
hire and tenure of employment with intent to discourage membership
in the Union.
No testimony was offered as to Troy Pugh who was alleged in the
complaint to have been in the group discharged on April 7. The
allegation as to him will therefore be dismissed without prejudice.
We find that the respondent discharged from employment between
April 7 and April 16, 1936, and thereafter refused to reinstate, W. 0.
Sullivan, A. U. Barmer, B. A. Mauldin, C. B. Forester, W. E.
Jordan, J. E. Choate, H. F. Hoppes, M. Kay, Mrs. A. U. Barmer,
R. R. Jordan, James Western, Alonzo Dabney, and N. W. Bowers,
and that by each of said discharges, the respondent has discrimi-
nated in regard to hire and tenure of employment, and has thereby
discouraged membership in Furniture Workers Local Union Na.
1174, United Brotherhood of Carpenters and Joiners of America.
We find that the respondent, by the acts above set forth, has inter-
fered with, restrained, and coerced its employees in the exercise of
the right to self-organization, to form, join or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
collective bargaining and other mutual aid and protection as guar-
anteed in Section 7 of the Act.
34 NATIONAL LABOR RELATIONS BOARD
We find that W. 0. Sullivan, A. U. Barmer, B. A. Mauldin, C. B.
Forester; W. E. Jordan, J. E. Choate, H. F. Hoppes, M. Kay, Mrs.
A. U. Barmer, R. R. Jordan, James Western, Alonzo Dabney, and
N. W. Bowers were at the time of their discharge, and at all times
thereafter, employees of the respondent, and ceased work because of
the unfair labor practices of the respondent.
We find that the activities of the respondent as above set forth,
occurring in connection with the operations of the respondent de-
scribed 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 of commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board finds and concludes as
a matter of law
1. Furniture Workers Local Union No. 1174, United Brother-
hood of Carpenters and Joiners of America, is a labor organization,
within the meaning of Section 2, subdivision (5) of the Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of W. 0. Sullivan, A. U. Barmer, B. A.
Mauldin, C. B. Forester, W. E. Jordan, J. E. Choate, H. F. Hoppes,
M. Kay, Mrs. A. U. Barmer, R. R. Jordan, James Western, Alonzo
Dabney, and N. W. Bowers, and each of them, and thereby dis-
couraging membership in a labor organization, has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8, subdivision (3) of the Act.
3. W. 0. Sullivan, A. U. Barmer, B. A. Mauldin, C. B. Forester,
W. E. Jordan, J. E. Choate, H. F. Hoppes, M. Kay, Mrs. A. U.
Barmer, R. R. Jordan, James Western, Alonzo Dabney, and N. W.
Bowers were, at the time of their discharge, and at all times there-
after, employees of the respondent within the meaning of Section 2,
subdivision (3) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law
and pursuant to Section 10, subdivision (c) of the National Labor
DECISIONS AND ORDERS 35
Relations Act; the National Labor Relations Board hereby orders that
respondent, Memphis Furniture Manufacturing Company, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist :
(a) From discouraging membership in Furniture Workers Local
Union No. 1174, United Brotherhood of Carpenters and Joiners of
America, or in any other labor organization of its employees, by
discharging or threatening to discharge and refusing to reinstate any
of its employees, or otherwise discriminating in regard to hire and
tenure of employment or any term or condition of employment, or
by threat of such discrimination;
(b) From interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form, join or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protections,
as guaranteed in Section 7 of the National Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to W. O. Sullivan, A. U. Barmer, B. A. Mauldin, C. 13.
Forester, W. E. Jordan, J. E. Choate, H. F. Hoppes, M. Kay, Mrs. A.
U.'Barmer, R. R. Jordan, James Western, Alonzo Dabney, and N. W.
Bowers immediate and full reinstatement, respectively, to their
former positions without prejudice to their seniority or other rights
and privileges;
(b) Make whole W. O. Sullivan, A. U. Barmer, B. A. Mauldin,
C. B. Forester, W. E. Jordan, J. E. Choate, H. F. Hoppes, M. Kay,
Mrs. A. U. Barmer, R. R. Jordan, James Western, Alonzo Dabney,
and N. W. Bowers for any losses of pay they have suffered by reason
of their discharge by payment to each of them, respectively, of a sum
of money equal to that which each of them, respectively, would nor-
mally have earned as wages during the period from the date of his
discharge to the date of such offer of rb.k-atement, less any amount
earned by each of them, respectively, during such period;
(c) Post notices in conspicuous places in its plant, stating (1) that
the respondent will cease and desist in the manner aforesaid; and (2)
that said notices will remain posted for a period of at least thirty
(30) consecutive days from the date of posting;
(d) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
The allegations of the complaint referring to Troy Pugh are hereby
dismissed without prejudice.