Memphis Furniture Mfg., Co.

National Labor Relations Board - Board Decisions

Oct 7, 1977

232 N.L.R.B. 1018 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Memphis Furniture Mfg. Co. and United Furniture
Workers of America, AFL-CIO. Cases 26-CA-
6255, 26-CA-6296, 26-CA-6296-3, and 26-CA-
6425
October 7. 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 8. 1977, Administrative Law Judge John
P. von Rohr issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,2 and conclusions3 of the Administrative
Law Judge and to adopt his recommended Order,
except that the remedy is modified so that interest is
to be computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977). 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Memphis Furni-
ture Mfg., Memphis, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I On October 26, 1976, the first day of the hearing, the parties executed a
settlement agreement which was approved by the Administrative Law
Judge. Respondent filed with the Administrative Law Judge an application
for modification of the notice to employees in which it sought to substitute
certain language in the notice and, subsequently, filed a memorandum in
support thereof. On November I I the General Counsel filed a motion to set
aside the settlement agreement and reopen the record in which he submitted
that Respondent had failed to comply with the terms of the settlement
agreement and, subsequently. filed a memorandum in support thereof in
which he further asserted that Respondent had circulated a handbill among
its employees which was "clearly calculated to, negate the effect of the
Notice to Employees." By order dated December 3, the Administrative Law
Judge granted the General Counsel's motion and ordered that the hearing
be reopened.
Respondent has excepted to the Administrative Law Judge's granting of
the General Counsel's motion and his failure to rule upon its application to
modify the settlement agreement. We tind no merit to Respondent's
exceptions.
On February 7, 1977, Respondent filed with the Administrative Law
Judge a posthearing motion for receipt of documentary evidence in which it
sought to introduce, in support of- its contention that shipping clerk Presley
was a supervisor, a written reprimand issued to an employee by shipping
clerk Brown after Presley's discharge, but prior to the hearing. On February
232 NLRB No. 164
14, the General Counsel filed an opposition thereto. In his Decision, the
Administrative Law Judge denied Respondent's motion on the ground that
the document was available at the time of the heanng. Respondent has
excepted to this ruling. We hereby affirm the Administrative Law Judge's
ruling denying Respondent's motion.
On Apnl 1, 1977, Respondent filed with the Administrative Law Judge a
motion to reopen the record for submission of newly discovered evidence in
which it sought to introduce a list of Respondent's supervisory employees
which the Union had previously submitted to the Board's Regional Office in
connection with a representation election. In his Decision, the Administra-
tive Law Judge denied this motion on the basis that the information
contained therein "involve[s] circumstances which appear to have changed
since Presley's discharge." Thereafter, on July 8, Respondent filed a similar
motion with the Board. We hereby affirm the Administrative Law Judge's
ruling denying Respondent's April I motion and we hereby deny
Respondent's subsequent motion inasmuch as the evidence sought to be
adduced by Respondent, on its face, related to postheanng circumstances.
2 Respondent and Charging Party have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dr) Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
Additionally, we are satisfied that Respondent's contentions that the
Administrative Law Judge was biased are without menrit. There is nothing in
the record to suggest that his conduct at the hearing, his resolutions of
credibility, his rulings, or the inferences he drew were affected by any bias or
prejudice.
I We agree with the Administrative Law Judge's conclusion that
Respondent violated Sec. 8(aX I) and (3) of the Act by discharging employee
Presley because of his union activities and because he filed unfair labor
practice charges with the Board. In finding this violation, however, we
additionally rely on Presley's uncontradicted testimony that at his discharge
meeting on August 2, 1976, Respondent's division manager, Cnner, told him
that "[S]ince you have filed 8(aXl) charges, and since you are working for a
union, the company has no further use of your services."
We further agree with the Administrative Law Judge's conclusion that
Respondent interrogated Presley in violation of Sec. 8(aXI) of the Act. In so
doing, however, we rely solely upon Presley's unrefuted testimony that
Supervisor Oseman questioned him on July 19, 1976, and August 2, 1976,
about his union activities and the reasons therefor and on the admission of
Respondent's director of industnal relations, Osborne, that on August 2, in
his presence, Oseman questioned Presley concerning his union activities.
See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon
charges, duly filed, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 26 (Memphis, Tennessee) issued a consolidated
complaint on September 30, 1976,1 against Memphis
Furniture Mfg. Co., herein called Respondent or the
Company, alleging that it had engaged in certain unfair
labor practices in violation of Section 8(aX3) and (I) of the
National Labor Relations Act, as amended, herein called
the Act. Respondent filed answers denying the allegation
of unlawful conduct alleged in the consolidated complaint,
as amended.
Pursuant to notice, a hearing was held before me in
Memphis, Tennessee, on October 26, 1976, and January 25
and 26, 1977. Briefs were received from the General
i An initial complaint in this proceeding issued on September 2, 1976.
The consolidated complaint referred to above was further amended by
adding Case 26-CA46425 pursuant to an Order granting the amendment on
January 11, 1977.
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MEMPHIS FURNITURE MFG. CO.
Counsel and Respondent on March 21, 1977, and they
have been carefully considered. 2
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a corporation doing business in the State
of Tennessee with an office and place of business located in
Memphis, Tennessee, where it is engaged in the manufac-
ture, distribution, and sale of furniture. During the 12
months preceding the hearing herein, Respondent pur-
chased and received products valued in excess of $50,000
which were shipped to it from points located outside the
State of Tennessee. During this same period, Respondent
sold and shipped products valued in excess of $50,000
directly to points located outside the State of Tennessee.
Respondent concedes, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
1I. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, AFL-CIO,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Discharge of Arthur Presley
The complaint alleges that Respondent discharged
Arthur Presley on August 2, 1976, in violation of Section
8(a)(1) and (3) of the Act. Admitting that Presley was
discharged on this date because of his activities in support
of the Charging Union, and also because he filed unfair
labor practice charges against the Company, Respondent's
sole defense is that it was lawfully entitled to take this
action because Presley was a supervisor within the meaning
of Section 2(10) of the Act.
B. The Supervisory Issue with Respect to Presley;
Analysis and Conclusions
The supervisory issue as to Presley was litigated to the
point of the testimony being almost overly voluminous.
Having considered all this testimony, but deeming it
unnecessary to relate all the details, the summation of the
relevant facts and credible evidence set forth below will
suffice as a basis for resolving the issue herein.
2 On February 3, 1977. Respondent filed a posthearing motion to
introduce an attached document into evidence. The motion is hereby denied
since the motion itself reflects that the document allegedly was available to
Respondent at the time of the hearing. On April 1, 1977. Respondent filed a
second motion also seeking to introduce an attached document into
evidence. This motion is also denied since the record reflects that the data
contained therein, which is purported to he relevant to the supervisory status
of individuals holding the same position as Arthur Presley. the discnriminatee
herein, involve circumstances which appear to have changed since Presle)'s
discharge,
I As Respondent states in its hrief. the terms "shipping clerk." "car
loading foreman," and "loading foreman" were used interchangeably at
various points in the record, However, the record reflects, and I find, that
Presley began his employment with Respondent on
September 9, 1972, as a laborer. He thereafter became a
forklift operator, a job which he retained until being
promoted to the position of shipping clerk in early 1974. As
shipping clerk, Presley was hourly paid, worked 8 hours a
day, 5 days a week. Approximately a month after becoming
shipping clerk, Presley was placed on a salaried basis and
was told that he would be responsible for the proper
loading of boxcars by the three-man crew, of which he was
one.3
Respondent's loading operation involves the shipment of
furniture in railroad boxcars and is conducted from a
loading platform adjacent to the company warehouse,
which is located adjacent to a railroad siding. Three crews,
each consisting of three men, are engaged in this operation,
and each crew loads approximately three boxcars per day.
David Criner is the division manager in charge of railroad
loading. David Presley, in fact, replaced Criner as chief
crew member (i.e., shipping clerk) on one of the crews at
the time Criner was promoted to the aforesaid position.
Criner, at the times material hereto, in turn answered to
Glenn Brasfield, the assistant warehouse manager.
Whether or not Presley was engaged in the responsible
direction of employees within the meaning of Section 2(1 1)
of the Act requires a description of the work of the
shipping crew as well as the function of the head of the
crew, which, as shipping clerk, Presley was the head of his
crew. Thus, the two crew employees who work with Presley
are classified as stacker and lift operator, respectively. At
the beginning of the day, 7 a.m., Presley goes to the office
and receives a loading manifest from Criner. This manifest,
which is prepared by Criner, specifies the items that are to
be loaded and shipped that day. Presley then returns to the
dock area and prepares a list of the furniture the lift
operator is to procure from the warehouse. In the
meantime the stacker is engaged in cleaning the boxcars
and the lift operator is cutting the braces that are used to
keep the furniture from shifting during transit. The loading
operation begins when the lift operator is given the list and
brings the items listed thereon from the warehouse to the
dock. The stacker then proceeds to load the car. Before
doing so, however, the cartons containing the furniture are
stenciled by Presley. When Presley is not engaged in
writing tickets or stenciling, he assists in cleaning the cars
and spends well over 50 percent of his time in the physical
work of loading the cars with the stacker.4 From all the
foregoing, and upon the entire record in this case, I am
persuaded and find that Presley's duties are of a routine
neither Presley nor the employees were ever told that Presley held the title of
foreman.
4 Presley testified that he spent about 6 hours per day helping the stacker
to load the boxcars. In this connection, one of Respondent's engineers
conducted a timestudy of the shipping clerk job some 2 months after the
charges herein were filed. This so-called timestudy was conducted by the
engineer for the brief period of just 2 hours and purports to reflect that the
individual who held the position spent 15 percent of his time on manual
labor and 85 percent of his time on clerical or alleged "supervisory" duties.
Upon the entire record, and even if it be assumed that Presley may have
somewhat overstated the amount of time he spent on loading. I am
persuaded that Presles's testimony, which I credit, was considerably more
accurate than the timestudy.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature, that he does not exercise independent judgment in
the performance of these duties,5 and that he does not
responsibly direct employees in a manner or degree to find
him a supervisor within the meaning of the Act. Indeed,
this finding is buttressed by the testimony of Hayes Ware,
Jr., the stacker in Presley's crew, who was called as a
Respondent witness. Thus, on cross-examination Ware
conceded that his duties were routine and that he could
perform his work throughout the day without anyone
having to tell him what to do.
Apart from certain incidents relied upon by Respondent
and which are noted below, it is undisputed that Presley
did not exercise and was not vested with the authority to
hire, discharge, suspend, lay off, recall, promote, transfer,
reward, discipline, settle grievances or to effectively
recommend any such action. Turning to the incidents
which require some discussion, one involves the testimony
of James Brown, the head of another loading crew,
concerning his involvement in the transfer of an employee
from his crew. Brown, it is preliminarily noted, was a
verbose and rambling witness and one who impressed me
as tending to exaggerate and color his testimony in favor of
his employer. Thus, in testifying that he was instrumental
in having an employee, one Otho Richardson, transferred
from his crew, Brown testified that he asked Criner that
Richardson be transferred to the main plant because "I felt
like the guy could make another start inside the company if
he be transferred to another department." At another
point, however, Brown testified that he told Criner that
Richardson "wouldn't mind being transferred to the plant
because it would be close to his home." According to the
latter reason, it would appear that Brown's involvement
merely entailed his passing on Richardson's wishes to the
foreman with the hope that the foreman would give this his
favorable consideration. In any event, I find Brown's
testimony as aforesaid insufficient to establish the purpose
for which it was apparently offered; namely, that the
shipping clerks were vested with the authority to effectively
recommend the transfer of employees from their crews.
Moreover, assuming arguendo that Brown did play some
part in effectuating Richardson's transfer, the Board has
consistently held that isolated instances of supervisory
authority are insufficient upon which to base a finding that
an individual is a statutory supervisor.
With reference to another incident, Respondent asserts
in its brief that " Presley effectively recommended disciplin-
ary action when he initiated the investigation of Jewell Bell
for not obeying his instructions and also her unauthorized
absence from the work area, when he told David Criner of
the problem, he took action based on Presley's recommen-
dation." Concerning this incident, Presley credibly related
it as follows: On one occasion near lunch time, Jewell Bell,
the lift operator on his crew, stated that she wanted to go to
the plant to pick up her check. Since this was still during
working hours, she asked that he "cover for her" until she
returned. Presley responded only by telling Bell that she
should see Criner and ask for his permission to leave. Bell
I The sole independent judgement utilized by Presley was to determine
the order in which the prespecified items were to be loaded in the boxcar. At
best, I would consider this only a special skill or special duty which would
normally he expected with the position in question.
6 Golden West Broadcasters K 71L_4, 215 NL RB 760, 761 (1974):
stated that she did not have time and left the area without
doing so. A short while later, Criner appeared and asked
Presley of Bell's whereabouts. Presley told him what had
occurred. Criner then asked that he send Bell to his office
when she returned. Presley did so. When Bell returned
from Criner's office, she apprised Presley that she was
being laid off for a week because she left the job without
the foreman's permission. Contrary to Respondent's
contention that "this disciplinary action was directly
related to Presley's exercise of his supervisory authority
and his effective recommendation of disciplinary action
with respect to Bell's conduct," I find just the opposite to
be true; namely, that the incident clearly demonstrates that
Presley did not hold any such authority.
It is also noteworthy that Presley, as well as the other
crew heads, did not have authority to grant overtime or to
grant time off to other members of the loading crews.
Although on occasion crew members would work overtime
if the loading of the boxcars was not completed during
regular work hours, this was a matter that was automatical-
ly and routinely expected. As to the lack of authority to
grant time off, it is significant that if the employees called
in late, they would call Criner, not the shipping clerks.
There remains for discussion certain other nonstatutory
criteria present in this case which, while not conclusive in
themselves, are factors often associated with supervisory
status. Principal among these is the fact that Presley and
the other crew heads are paid on a salaried basis and that
they receive a supervisor's bonus. With respect to the
bonuses, Respondent has bonus plans for both its employ-
ees and its supervisors. Each plan is basically a piece-rate
or an incentive-type plan, i.e., the amount of the bonus
being dependent upon the amount of furniture produced
and shipped. While the formula with respect to both the
supervisory and employee bonus plan is the same, the
supervisory plan provides a somewhat higher monetary
benefit. 7 Concerning all the foregoing, and although
relevant to the issue, the factors of salaries and bonuses
remain only secondary indicia of supervisory status and are
in themselves not controlling. B & B Grocery, Inc., d/b/a
St. Louis IGA Foodliner, 223 NLRB 793 (1976). Indeed, in
Welsh Farms Ice Cream, Inc., 161 NLRB 748 (1966), the
Board specifically found two individuals to be employees,
not supervisors, notwithstanding that they were salaried
and received bonuses not paid to the production employ-
ees. Accordingly, and particularly in view of the fact that
Presley and the other crew heads have been found not to
possess any of the supervisory indicia set forth in Section
2(11) of the Act, I conclude and find the salary and bonus
factors not to be controlling here. The same may be said of
the fact, as the record reflects, that Presley and the crew
heads attend sporadically held supervisor meetings. In-
deed, insofar as these meetings are concerned, it is
noteworthy that they are principally concerned about
matters relating to safety. There is no evidence that these
meetings concern matters otherwise related to supervisory-
employee relationships.
Highland Telephone Cooperative, Inc., 192 NLRB 1057, 1058 (1971):
Commercial Fleet Wash, Inc., 190 NLRB 326(1971).
7 The employees on the supervisory plan receive a maximum of 30
percent of base pay, clerks and assistants a maximum of 25 percent of base
pay and labor a maximum of 20 percent of base pay.
1020
MEMPHIS FURNITURE MFG. CO.
Finally, in determining a supervisory issue, the Board
and the Courts have long taken into consideration the
factor of the ratio of the number of supervisors to the
employees.8 If Presley and the two other shipping clerks
were found to be supervisors, there would be, with the
inclusion of Criner, 4 supervisors for 6 employees. This
ratio would appear clearly out of balance.
Accordingly, and on the basis of all the foregoing and the
record as a whole, I find that Presley was a nonsupervisory
leadman and that his discharge by Respondent for
engaging in union activities and for filing unfair labor
practice charges against the Company violated Section
8(a)(1) and (3) of the Act.9
C. Interference, Restraint, and Coercion
1. Alleged Supervisory Status of Christine Henry
and Dora Tidwell
The complaint alleges that Christine Henry and Dora
Tidwell, both alleged to be supervisors within the meaning
of the Act, engaged in certain conduct violative of Section
8(a)(1) of the Act. As discussed below, I find the evidence
does not support the allegation that these individuals are
supervisors.
Henry and Tidwell are floor ladies in the sewing
department which is under the supervision of Foreman
James Boalus. Further breaking down the sewing depart-
ment, Tidwell is floor lady in the cushion department and
Henry is the floor lady in the pillow department. There are
approximately 14 employees in the cushion department
and it appears there are about the same number in the
pillow department. The employees in both departments are
engaged in the operation of various types of sewing
machines to perform their work. Henry and Tidwell do not
operate machines but are primarily engaged in bringing
into the department and distributing to the employees the
various materials the employees need to work with. In
describing this work, Ethan Brownlee, Jr., the superinten-
dent over the sewing, cutting and upholstery department,
testified without contradiction as follows:
The work is cut over on the cutting table and we have
arm seamstresses, and people of this nature, and what
she [the floor lady] will do is actually pick up the
bundle and the bundle will go to the arms and seats will
go to the seats and backs to the back people. It's just
distributing out the work to the people she's instructed to
distribute it to .... When the person is getting low she
keeps them supplied. She is instructed not to let them
run out. If they are running low and she hasn't got it
over there before they run out they would holler for
work. [Emphasis supplied.]
Other than the foregoing, the floor ladies verify and sign
the time and production sheets of the employees, and they
are also engaged in the training of new employees.
8 For example, see Welsh Farms Ice ('ream Inc., supra.
9 The complaint does not allege an 8(a)(4) violation of the Act.
'° I have not overlooked the General Counsel's evidence that Tidwell
and Henry have spaces in the supervisors' parking area. However, this is
explained bh the fact that the nature of their work, that of distributing the
Upon consideration of all the foregoing, I am persuaded
and find that Henry and Tidwell are engaged only in the
routine assignment of work which does not require the
exercise of independent judgment and that they are not
engaged in the responsible direction of employees as
contemplated in Section 2(11) of the Act. Insofar as the
other indicia of supervisory authority defined in Section
2(11) are concerned, it is undisputed that the floor ladies do
not exercise and are not vested with authority to hire,
discharge, transfer, suspend, lay off, recall, promote,
assign, reward, or discipline other employees, or to adjust
their grievances, or effectively to recommend any such
action. In addition, it is also significant that Henry and
Tidwell punch timeclocks as do the other employees, they
are hourly paid, and they do not receive a supervisor's
bonus. In fact, the record reflects that Tidwell and Henry
do not so much as possess authority to grant employees
time off, the employees having to obtain such permission
from Foreman James Boalus.
In view of all the foregoing, and upon the entire record in
this case, I conclude and find that Dora Tidwell and
Christine Henry are not supervisory employees within the
meaning of the Act.10 Accordingly, it is recommended that
the allegations of unlawful conduct attributable to them be
dismissed.
2. Other Alleged 8(a)(1) Conduct
During the period material hereto, Vickie Harris was
employed by Respondent as an inspector in the sewing
department under the supervision of Foreman James
Boalus. Harris was active in an organizing campaign which
was being conducted at Respondent's plant in the spring
and summer of 1976, these activites including the distribu-
tion of handbills throughout the plant. On occasion she
also wore a union T-shirt inside the plant.
Shortly before the lunch hour, on or about August I.
1976, which was the first day she wore a shirt with a union
emblem, a company secretary came to Harris and advised
her that someone wished to see her outside the plant.
Harris thereupon sought to find Boalus to ask permission
to leave her work station. Not finding Boalus in the area,
Harris spoke to Walter Westbrook, the foreman of the
cutting department. Westbrook had Boalus paged, but
without success. When Harris then explained that she was
wanted outside, Westbrook gave his permission for her to
leave. Upon arriving outside the plant, Harris ascertained
that it was a union representative who wished to see her.
Explaining that she would be on her lunch break in a few
minutes and would see him then, Harris returned to her
work station. Shortly after her return, Boalus told her that
he knew whom she had been talking with outside the plant
and stated that he would not allow it. Harris explained that
she did not know who it was until she got outside the plant.
Boalus went on to say that he did not understand her
involvement with the Union in the first place, that she was
making good money and enjoyed excellent working
material. requires that they always be to work on time. This is also true lot a
mechanic, a nonsupersisory employee, who also has a space on the
supervisors' parking area. In ans event. this is not a controlling factor in
deciding the supervisory issue
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions. Boalus then left but returned a few minutes
later and stated that she was wanted in the office of Ethan
Brownlee, Jr., the upholstery superintendent. With Boalus
also present, Brownlee told Harris that she was receiving a
written warning for leaving her department without
permission. Harris said she would not sign it because she
had obtained permission to leave from Westbrook. Re-
sponding only to the effect that Westbrook was not her
supervisor, Brownlee turned to his secretary and had her
type up a warning slip which was to be placed in Harris'
personnel file. Before leaving, Harris was told by Brownlee
that she would be discharged if she received a second
warning.
Concerning all the foregoing, Brownlee testified that he
observed Harris from his window when she went outside
and that he saw her speak to a person whom he recognized
as a union representative. By thus tying the incident in with
Harris' union activities, I am persuaded and find that the
warning was not predicated upon the enforcement of any
company rule but was rather intended to discourage union
activity. Obviously, Harris did not intend to engage in any
union activities during working hours. By any standard,
hers was a normal reaction to the message from the
company secretary and she did what she could by
obtaining permission from Westbrook to leave her work
station. If company permission was improperly given,
Brownlee, who was fully apprised by Harris of what had
occurred, should have taken the matter up with Westbrook,
not Harris. Instead, Brownlee seized the occasion to take
the action for the purpose indicated. I find that by such
conduct, Respondent violated Section 8(a)(l) of the Act.
Amy Harsch was employed by Respondent for 12 years
as a seamstress. The record reflects that Harsch was also an
active union adherent and was observed by Respondent
passing out union literature in front of the plant during the
months of June and July 1976. On or about August 16,
Harsch was summoned to Brownlee's office at which time
Brownlee stated that he had heard she had been harassing
employees. Harsch denied that she had. Without elaborat-
ing further, Brownlee thereupon advised that he was giving
her a warning. The warning was reduced to writing and
placed in her personnel file. Concerning this matter,
Brownlee testified that two girls complained that Harsch
was "harassing" them. One, he said, reported that Harsch
had stated she could get in some kind of trouble if she tried
to come in to work. Brownlee did not recall exactly what
Harsch is alleged to have stated, but finally tied the remark
in with a strike situation. The other employee, he testified,
complained that Harsch was bothering her too much about
the Union during break periods. Upon the entire testimo-
ny, I am not persuaded that Harsch engaged in any type of
unprotected activity which justified the warning in kind.
The employees who were alleged to have been harassed
were not called by Respondent; nor did Brownlee,
notwithstanding Harsch's denial of having engaged in any
harassment, apprise her of any specific conduct concerning
which she allegedly was accused. Just as the warning issued
to employee Harris, I find that the warning issued to
Harsch was designed to thwart legitimate union activities
a The unrefuted testimony of Presle). These interrogations, in effect.
were admitted by Respondent since Respondent admittedly discharged
among the employees. Respondent thereby violated Sec-
tion 8(a)(1) of the Act.
The record further reflects that on July 19, 1976, and
again on August 2, 1976, Ollis Oseman, the warehouse
manager, interrogated Arthur Presley concerning his union
activities. 1 Since Presley was an employee, it is found that
by such conduct Respondent further violated Section
8(a)( ) of the Act.
I find no merit to the remaining allegations in the
complaint charging Respondent with various other inde-
pendent violations of Section 8(a)(1) of the Act. In some
instances, no proof was adduced at all. In others, I have
considered all the testimony but find the testimony
insufficient to support the allegations. Without relating all
the details, I should mention one such allegation which
charges that Respondent caused a reduction in the wages
of Amy Harsch by requiring her to redo work that
contained no defects. Doris Tidwell, whom I have found to
be an employee, not a supervisor, is named as being
responsible for this alleged conduct. Although other
supervisors were also mentioned in the testimony in
connection with this incident, all of which testimony I have
fully considered, I find that the General Counsel has not
established by a preponderance of the evidence that
Respondent caused Harsch to redo certain work because of
reasons related to her union activity. I find the same to be
true concerning a warning given to Harris on or about
August 30, 1976, for missing work and not calling in. As to
the latter incident, while the warning may not have been
entirely justified, the evidence does not establish that it was
motivated by Harris' union activity. It is, accordingly,
recommended that these allegations be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operation of
Respondent described in section 1, above, have a close,
intimate, and substantial relationship 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.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discharged Arthur
Presley in violation of Section 8(a)(1) and (3) of the Act, I
shall recommend that Respondent be ordered to offer him
full and immediate reinstatement to his former position or,
if this job no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other rights
and privileges, and to make him whole for any loss of
earnings he may have suffered from the date of his
discharge to the date of Respondent's offer of reinstate-
ment. Backpay shall be computed in accordance with the
Presley for union activities which were at least partially confirmed as a result
of these interrogations.
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MEMPHIS FURNITURE MFG. CO.
formula prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon computed in the
manner and amount prescribed in Isis Plumbing & Heating
Co., 136 NLRB 716 (1962).'2
In view of the nature and extent of the unfair labor
practices herein found, it will be recommended that
Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed employees in
Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(I)
and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
On the basis of the above findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER '3
The Respondent, Memphis Furniture Mfg. Co., Mem-
phis, Tennessee, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees because they engage in union
activities or file charges under the Act.
(b) Issuing warning notices to employees for the purpose
of discouraging union activity and interrogating employees
concerning their union activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Arthur Presley immediate reinstatement to his
former position or, if this position no longer exists, to a
substantially equivalent position, and make him whole for
any loss of pay he may have suffered by the reason of the
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its plant in Memphis, Tennessee, copies of the
attached notice marked "Appendix." 4 Copies of said
notice, on forms to be provided by the Regional Director
for Region 26, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 26. in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges the commission by Respon-
dent of any unfair labor practices not specifically found
herein.
12 With respect to the warning notices issued to Vickie L. Harris and
Amy Harsch. the record reflects that these have already been removed from
the personnel files of these employees. Accordingly, the usual remedial
Order in cases of this nature requiring that they be removed is unnecessary.
1i In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order and all objections thereto shall be
deemed waived for all purposes.
1i In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing and Order
of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees for engaging in
union activities or for filing charges under the National
Labor Relations Act, as amended.
WE WILL offer Arthur Presley immediate and full
reinstatement to his former position or, if this position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination
practiced against him.
WE WILL NOT issue warnings to our employees for
the purpose of discouraging union activity.
WE WILL NOT interrogate employees concerning their
union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act.
MEMPHIS FURNITURE MFG.
Co.
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