Park Furniture Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 912 (N.L.R.B. 1972)

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Packer Sales Corporation d/b/a Park Furniture Man-
ufacturing Co. and Teamsters "General" Local Un-
ion No . 200 affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case 30-CA-1726
calculated to elicit information as to the identity of
the union adherents, and as such, constituted unlaw-
ful interrogation under Section 8(a)(1) of the Act.
THE REMEDY
October 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On May 2, 1972, Trial Examiner John F. Funke
issued the attached Decision in this proceeding.
Thereafter, the General Counsel and the Charging
Party filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and Respondent filed
cross-exceptions and a brief in answer to the excep-
tions of the General Counsel and the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and brief, cross-exceptions, and briefs and has decid-
ed to affirm the Trial Examiner's rulings, findings,'
and conclusions and to adopt his recommended Or-
der, as herein modified.
Contrary to the Trial Examiner, we find that Re-
spondent violated Section 8(a)(1) by unlawfully inter-
rogating employee Robert Davis. In dismissing the
allegation, the Trial Examiner found that in a conver-
sation on August 23, 1971, Respondent's president,
Donald Johnson, asked why the employees had gone
to the Union. The Trial Examiner found that the in-
quiry was not an attempt to learn the identity of the
union adherents or their leaders since Johnson knew,
from the Union's letter, that all of the drivers and
helpers had signed union cards and that the inquiry
did not contain any implied threat of reprisal for tak-
ing such action. For these reasons, he concluded that
the conversation was not coercive. We do not agree.
The Trial Examiner failed to set forth the entire
conversation between Johnson and Davis. Davis testi-
fied without contradiction that in the same conversa-
tion Johnson also asked him who "decided to get the
union in." The Union's letter, demanding recognition,
merely claimed that the Union represented a majori-
ty, and did not indicate that all drivers were repre-
sented. Considering the nature of the inquiry and the
content of the letter, we find no basis for the Trial
Examiner's conclusion that Johnson did not seek the
identity of the union adherents and union leaders. In
our opinion, Respondent's questioning of Davis was
Having found that Respondent unlawfully inter-
rogated Robert Davis on August 23, 1971, we shall
order that the violation be redressed as set forth in the
section entitled "The Remedy" of the Trial
Examiner 's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Packer Sales Cor-
poration d/b/a Park Furniture Manufacturing Co.,
Milwaukee, Wisconsin, its officers, agents, successors,
and assigns, shall take the action set forth in_the Trial
Examiner's recommended Order, as so modified:
1. Substitute the following as paragraph 1 of the
Trial Examiner's recommended Order:
"1. Cease and desist from:
"a. Interrogating any employee as'to his union
sympathies.
"b. Interrogating any employee to learn the iden-
tity of union supporters.
"c. In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed them in Section 7 of the Act."
2. Substitute the attached notice for the Trial
Examiner's notice.
1 The General Counsel has excepted to certain credibility findings made
by the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear pre-
ponderance of all of the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (C A 3) We have carefully examined the record and find no basis
for reversing his findings In adopting the Trial Examiner 's finding that the
jurisdictional standard was met , we rely on the gross revenues attributable
to the volume of work performed in 1971 and find that this sum, $502,104 56,
satisfies the Board's requirement for retail enterprises
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate any employee con-
cerning his union sympathies.
WE WILL NOT interrogate any employee to
199 NLRB No. 165
PARK FURNITURE CO.
learn the identity of the employees interested in
having a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
PACKER SALES CORPORATION
d/b/a PARK FURNITURE MANU-
FACTURING CO. (Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or
compliance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-272-3861.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: This proceeding was
brought before the National Labor Relations Board upon:
1. Charges filed by Teamsters "General" Local Union
No. 200, affiliated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of America,
herein the Teamsters, against Packer Sales Corporation
d/b/a Park Furniture Manufacturing Co., herein Packers or
the Respondent, alleging Packer violated Section 8(a)(1)(3)
and (5) of the Act. Said charges were filed September 28,
October 22, and November 30, 1971.
2. A complaint and amendment to the complaint issued
by the General Counsel alleging Packer violated Section
8(a)(1)(3) and (5) of the Act. Said complaint was dated
December 9,197 1, and the amendment dated December 10,
1971.
3. Answer of Respondent denying the commission of
any unfair labor practices, dated December 15, 1971.
4. An amended answer denying the commission of any
unfair labor practices and the jurisdiction of the Board.'
5. A hearing held by me at Milwaukee, Wisconsin, on
February 17 and 18, and March 7 and 8, 1972.
6. Briefs received from the General Counsel and the
Respondent on April 12, 1972.
Upon the entire record in this case and from my obser-
vation of the witnesses while testifying , I make the follow-
ing:
1 T X Exh I-r This answer was received at the hearing
FINDINGS OF FACT
I THE BUSINESS OF PACKER
913
Packer, a Wisconsin corporation, is engaged in the re-
tail upholstery business at Milwaukce. It was stipulated at
the heanng (Joint Exh. 1) that during 1971 Packer received
gross revenues from its sales in the amount of $519,106.17
and that refunds of such sales totaled $3,790.61, leaving a
net balance of $515,315.76. Part of such revenue repre-
sented proceeds from sales actually made during December,
1970, in the amount of $20,510.11, leaving a gross revenue
from sales actually made in 1971 of $498,596.26 and net
revenue of $494,805.65. Adding to this figure the sales re-
ceivables but not collected during December, 1971, in the
amount of $3,508.30 establishes gross sales of $502,104.56
and net sales of $498.313.95. It was also stipulated that
Packer made purchases of materials in excess of $50,000
from points and places outside the State of Wisconsin.
Whether the Board's jurisdictional standard of $500,
000 of gross volume of business per annum for retail enter-
prises is met 2 is determined by which accounting procedure
is followed. The Trial Examiner asserted jurisdiction at the
heanng on the basis of the net cash revenue received during
1971 on the ground that where alternative accounting pro-
cedures were acceptable it would effectuate the purpose of
the Act to use that which would give the Board jurisdiction
and enable it to prevent or remedy unfair labor prac-
tices.3 The ruling was purely arbitrary on the part of the
Trial Examiner and the determination is, of course, exclu-
sively within the discretion of the board.
I find Packer in commerce within the meaning of the
Act.
II THE LABOR ORGANIZATION INVOLVED
The Teamsters is a labor organization within the
meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Evidence
1. Background
During August 1971,4 Packer employed two truck-
drivers and two helpers at its place of business at Milwaukee
for the purpose of making deliveries to and from its custom-
ers. The drivers were Nicola Stefanovic and Galen Fry and
the helpers were Frank Sanders and Robert Davis. Henry
Wambach, an organizer for the Teamsters, testified that he
met with these four employees on August 19 at his office
where the question of joining the Teamsters was discussed
and all four signed authorization cards.5 On the next day the
Teamsters wrote a letter demanding recognition and on the
2 Carolina Supplies and Cement Co, 122 NLRB 88
I Cf Decker Disposal, Inc, 171 NLRB 879 at 884
4 Unless otherwise noted all dates hereafter refer to 1971
5 G C Exh 2, 3, 4 and 5 There is no dispute concerning the authenticity
of these cards
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same day filed a petition for an election with the National
Labor Relations Board.6
Donald Johnson, president of Packer, testified that he
and his attorney at that time, Barnett W. Franks, met with
a Teamsters officer following the receipt of its letter. John-
son declined to recognize the Teamsters on the ground that
he thought the appropriate unit should include his shop
employees as well as the drivers.7
It was stipulated by the parties that following this meet-
ing a hearing was held in Case 30-CA-1566 on September
10 and that the Regional Director issued an Order and
Direction of Election on September 23 in a unit described
as follows:
All truck drivers and helpers of the employer, exclud-
ing all clerical employees, salesmen, service employees,
managerial employees, guards, supervisors, as defined
by the Act, and all other employees.
Since the work of the drivers was not integrated with that
of the other employees and their working conditions were
substantially different I find the above unit appropriate.8
2. Violations of Section 8(a)(1)
Frank Sanders testified that he was 21 years old and
that he had been employed by Packer as a driver's helper
for about 1 year prior to his discharge on September 3. He
stated he worked about 12 hours a day for a straight salary
of $90 per week (increased to $95 in August). The raise was
requested by him of Donald Johnson, president and manag-
er of Packer.
On the week following the signing of the cards (the date
is fixed as either August 24 or 25) the four truckmen met in
Johnson's office where they were told by Johnson that if the
Union came in their paychecks would be made out in Min-
neapolis on a biweekly basis resulting in a 2- to 3-week delay
in their receipt. Johnson also told them that before he would
pay them $5 per hour he would pack up and leave. A few
days later Sanders had a conversation with Johnson in the
presence of Fry in which Johnson told him he would be
getting less take-home pay because the union dues would be
deducted from his pay.
The testimony as to the meeting in Johnson's office is
corroborated in substance by Stefanovic, Fry, and Davis.
Fry, however, testified that "one of us" asked for the meet-
ing and that he initiated the union discussion by asking
Johnson what he thought about the Union.
Stefanovic testified that Johnson told him a day or two
later that he would be let go if the Union came in because
he was the junior driver and that Johnson threatened to
lease the trucks rather than pay the union scale which John-
son fixed as $5.50 per hour.
Both Fry and Davis testified to conversations with
Johnson after the meeting in which Fry was told by Johnson
that he could not afford a union and in which Davis was
6 G C Exhs 6 and 7
i No Teamsters representative testified to this meeting
8 The Genefal Counsel attempted to show, in another aspect of his case,
that the drivers could have been employed as upholsterers in the shop after
the sale of the trucks The testimony of Johnson, however, credibly estab-
lished that the drivers possessed neither the training nor experience required
of his shop employees
told the trucks might be leased? Davis further testified that
he saw Johnson on Monday, August 23, and that Johnson
asked him why they had gone to the Union and when he
told Johnson he needed more money Johnson suggested he
take up driving, a suggestion which did not appeal to Davis.
Johnson also told him that it would be unfair to have a
union for the drivers, that the union should cover the entire
shop.
Referring to the meeting with his dnvers, Johnson testi-
fied that this meeting took place on August 24 at the request
of Galen Fry. Fry wanted to know what Johnson thought
about the Union. Johnson told them he could not discuss
the Union with them but that if they wanted more money
they could not get it under the presidential freeze unless
they transferred to another job. Johnson told them he would
be meeting with the Teamsters. He denied that anything was
said at this meeting about changing the payroll arrange-
ments; that he threatened to close the plant and leave or
that he threatened to lease the trucks. He admitted telling
the drivers that since their wages were frozen they would be
making less take-home pay if the union dues were deducted.
Johnson testified that he had a specific conversation with
Davis in which he urged him to become a driver so he could
earn more money. He also recalled a conversation with
Stefanovic in which he told Stefanovic that if there were any
layoffs Stefanovic would be the first to go because of his
junior status but denied telling him he would be laid off if
the Teamsters got in.
The possibility of a change in payroll practice came up,
according to Johnson, in the week following his meeting of
August 24. He told both Fry and Davis that he was contem-
plating a change and that the checks would be made out in
Minneapolis and the men, including the shop men, would
be paid every other week.10 This was a cost-cutting proce-
dure and was made effective on February 11, 1972. (Resp.
Exh. 6). The change had no relation to the union activity of
the drivers nor was it discussed with them in conversations
related to union activity.
The second allegation concerning unlawful interroga-
tion refers to a conversation between Johnson and Hanson
on October 18 after the suspension or discharge of Hanson
on October 14. Hanson was seeking reinstatement and it is
his testimony that Johnson asked him whether he favored
the Union and that when Hanson told him he was neutral
but inclined to favor the Company Johnson permitted his
reemployment. Neither Johnson nor Fleanor, who was
present, testified as to this conversation.
Another allegation states that Johnson on September 3
threatened employees with a discontinuance of the Madison
run if the Union got in. This, too, is based on Hanson's
testimony. Hanson stated that on September 3 Johnson told
him that he (Johnson) was thinking of dropping the Green
Bay and Madison runs if the union came in and that Fry
and Davis would regret it because they would be cut down
9 Throughout the testimony there is a discrepancy between the employee
witnesses and Johnson as to whether he told them the trucks would be leased
or sold I find this discrepancy immaterial as it is clear that the employees
were being notified that Packer might no longer be conducting the trucking
operation
10 When Davis expressed concern about the delay in receiving his check
Johnson told him not to worry, that something would be worked out
PARK FURNITURE CO. 915
to 40 hours or less per week.' (Why Hanson, not a driver,
should be involved with Johnson in a discussion of the runs
is not explained.)
Johnson testified that after the opening of the business
in February, 1970, Packer expanded its business to Racine,
Kenosha, Madison, Jamesville, Fond du Lac, Oshkosh, and
Green Bay. Business was solicited at these locations through
local newspaper advertising and direct telephone service. In
1971 retrenchment took place and the outlets at Fond du
Lac, Oshkosh, and Appleton were closed in June and, in
July, Green Bay. At Madison Packer subcontracted out its
work to a former employee who operated under the name
of Custom Decorators. This eliminated the necessity for
delivery to and from Madison and deliveries to Madison
ceased in the fall of 1971. In the beginning of 1972 Packer
ceased all operations in Madison. Johnson testified that he
never had a discussion with his drivers concerning Madison
-but that the fact that Packer was closing down the other
outlets was generally known as, indeed, it must have been,
particularly to the drivers. No driver testified to any conver-
sation respecting Madison.
3. The discharge of Frank Sanders
On Friday, September 3, Sanders returned from his
run at about 10 p.m. and was told by Ray Fleanor, shop
foreman, that he had been laid off and that thereafter the
business would operate with only one truck. On the follow-
ing Monday morning Sanders reported and saw Johnson
who confirmed the fact that he had been laid off and that
Packer would operate with only one truck. Sanders testified,
nevertheless, that two trucks operated that day with Fry and
Davis driving one and two other employees driving the
other. (Stefanovic, the other driver, had been terminated on
August 27, so that Fry and Davis were the only two regular
truckmen left.)
On cross-examination Sanders testified that Johnson
had never reprimanded him for using profane language be-
fore his secretaries but that at the unemployment compen-
sation hearing Johnson and one of the secretaries alleged
this as a cause for discharge. Sanders denied that he had
ever used profane language in front of the secretaries.
Veneta Curro had been employed as office manager by
Packer for about 1-1/2 years prior to leaving the Company
shortly after Christmas of 1971. In that capacity she pre-
pared the delivery tickets for the drivers and had frequent
contact with them. She testified that on several occasions
she had complained to Johnson about obscene language
used by Sanders to her and the other girls. On September
1 she complained to Sanders again because Sanders had
referred to her as a M.F. and a bitch. It was clear that by
"M.F." Curio was describing an obscene epithet alleging an
incestuous relationship between the person addressed and
his mother. Her testimony as to her conversation with John-
son on that day reads:
We discussed that Dust couldn't work there any longer,
unless Frank was let go. He had warned him repeatedly
about this and he dust continued to do it. We couldn't
11 Since Fry and Davis were paid on a salary basis without overtime it
would seem that a reduction in their hours would constitute a benefit rather
than a detriment.
say anything to him in the office. He would come up
and use foul language constantly. If he didn't say it
directly he would dust sit and look at you and lick his
lips, so we discussed whether or not to let Frank go and
Mr. Johnson said yes, he would let him go. He would
tell him by the end of the week.
On cross-examination Curro admitted that the other
drivers used obscene language in the office but that Sanders
was the only one discharged for it.12 There is no evidence
that she made any complaints concerning the other drivers.
Johnson testified that on September 1 Curio came to
him and complained again (she had complained before)
about Sanders and his "filthy mouth." Johnson promised to
fire him at the end of the week (September 1 was a Wednes-
day). On Friday she again complained and told him that if
Sanders was not discharged she would leave. Johnson then
instructed Fleanor to notify Sanders of his discharge when
he returned from his deliveries. When Johnson saw Sanders
on the following Monday morning he told him he had been
discharged for using obscene language.13
Roger Hanson and Galen Fry were called in rebuttal
to establish that Curro herself used obscene or vulgar lan-
guage thereby mitigating her testimony that Sanders' lan-
guage caused her to seek his discharge. Hanson testified that
on a day in October he heard Curio state as he left
Johnson's office "He can take his god damn fucking busi-
ness and shove it up his ass."
Fry testified that one occasion in the fall of 1971 he
arrived shortly before 6 p.m. to turn in his tickets and asked
Curio to check them. According to Hanson she told him, "I
better go fuck myself if I want to check in tonight, she says,
because she was in a hurry to get home." Fry testified that
on another occasion he heard Curio, talking to a customer
on the telephone tell the customer not to speak to her like
that, call the customer a son-of-a-bitch and hang up.
Curio, on rebuttal, denied each of the three incidents
set forth although she admitted swearing at Fry on occasion
for picking her up and for pinching her leg under the table.
She specificially denied using the word "fuck" on any occa-
sion.
Johnson denied that he had heard Curio use the lan-
guage attributed to her, or other similar vulgarities on any
occasion. 14
4. The discharge of Roger Hanson
Hanson testified that he was 23 years old and had
worked for- Packer as an upholsterer for about 13 months.
(He was not employed by Packer at the time of the hearing,
having been discharged in December.) On October 14 he
stopped at the Cottage Inn for breakfast as was his custom.
He met Jim Frane, then a driver of the former Packer
12 She did not testify, however, that any other driver addressed her with
an epithet so revolting in its obscenity , a distinction discussed later.
13 Although Sanders was recalled for rebuttal after Curio and Johnson
gave the above testimony he was not interrogated with respect to it. Apart
from his blanket denial that he used obscene language in the presence of the
secretaries there is no denial of Curro 's testimony
14 The U .S Supreme Court in Cohen v California, 403 U.S 15, the Court
held that the phrase "Fuck the Draft" was not obscene since it was in no
sense erotic but a vulgar allusion to the Selective Service System and that a
person wearing a jacket bearing those words in public was protected by the
First and Fourteenth Amendments
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucks, and later met Fry and Davis who were no longer
employed at Packer. Fry and Davis asked Hanson if he
intended to give an affidavit (the charges herein were under
investigation at the Regional Office of the National Labor
Relations Board) and when Hanson said he did the three of
them left for the Regional Office. Hanson did not report or
call in until he returned at about 10:30 a.m. When he started
for work his foreman, Ray Fleanor, told him he was not
needed and Hanson picked up his tools and went home. On
Monday, October 18, he returned to the shop and met with
Johnson and Fleanor in Johnson's office. Johnson asked
where he had been on Thursday morning and Hanson told
him he did not have to tell him.15 It was at this time that
Johnson asked him whether he was for or against the Union
and told him he could not be neutral. It was then that
Hanson shifted his position and told Johnson he was more
on his side because he worked for him. Johnson told him he
would take him back if Fleanor agreed and Fleanor did
agree on the condition that Hanson report to work on time.
Hanson started working the next day.
Neither Johnson nor Fleanor testified with respect to
the reasons for Hanson's discharge (or suspension) or to the
conversation at the time of his reinstatement.
4. The termination of Fry and Davis
and the refusal to bargain
Fry had been employed as a driver for about 1 year
and Davis had been employed as a helper since April 20,
1970. Both were terminated by Packer on September 27.
Fry testified that about 1 week before the Board hear-
ing in the representation case Johnson told him and Davis
that he was leasing out the trucks and that on September 24
Johnson told him he had a big surprise coming for Fry on
Monday (September 27). On Monday when he and Davis
reported for work there were no stops in the basket and he
and Davis then proceeded to Johnson's office where John-
son told them he had no further use for them because he had
leased the trucks. They were given their paychecks. Davis
corroborated Fry's testimony as to this conversation on
September 27.
Johnson's testimony on this issue was lengthy and con-
sisted largely of a recital of the woes which may beset a
small business . Johnson's testimony, supra, that certain runs
had been eliminated in the interests of economy before the
organization by the Teamsters is uncontradicted.
Respecting the sale of the trucks, Johnson testified that
he first had discussion concerning his trucking, problems 16
with Tom Curio, not employed by Packer but the husband
of Veneta Curro, and Jim Frane, his outside service man.
This discussion took place on July 4 and in it Frane suggest-
13 Hanson testified that during this conversation Johnson told him that
another employee named Phillips (not called as a witness) told him that he
(Phillips) thought Hanson had gone to the Union The time of this alleged
conversation is not fixed as either before or after Hanson 's return to the shop
on Thursday.
16 Johnson complained that one driver, in December, 1970, had stolen
$700; that in 1971 he had "gone through" 30 drivers and helpers, that he had
heavy accident ratio and that absenteeism and tardiness on the part of the
drivers was a recurring problem He was threatened with loss of his insurance
policy by his agent, John Weiss. Weiss testified that Aetna, had refused to
renew and that at the time he testified , February 18, 1972, he had not found
a new carrier to accept the risk
ed that Johnson sell the trucks to him and Curro. Since
neither Curro nor Frane appear to have had heavy cash
reserves the problem of financing the transactions was pre-
sented and the three had several further discussions in seek-
ing a workable agreement.
On September 25 the transaction was completed by a
sale of the trucks to P & K Services, Incorporated, and a
leasing back of the trucks to Park Furniture (Packer).17
(Resp. Exhs. 5-a and 5-b.) From that date P & K operated
the trucks under an arrangement with Packer whereby
Packer paid P & K $6 for each delivery and pickup. The first
two drivers under this operation were Jim Frane and a
driver identified as Rocky Stoltz. (The helpers were never
identified.) None of Packer's drivers or helpers were em-
ployed by P & K with the result that the union majority was
effectively destroyed.
It is not disputed that the "sale" was made without
notice to or consultation with the Teamsters nor did Packer
ever offer to bargain with the Teamsters respecting the ter-
mination rights of the former employees. On the other hand
no Teamsters representative testified that any request for
such bargaining was made.
The General Counsel questions the bona fides of the
sale. The sale, and the term here is used here only to desig-
nate the transaction and not as a finding of fact, was not a
cash transaction but a conditional sale (Resp. Exh. 5-b) by
which Packer sold three trucks to P & K for $12,049.34, to
be paid in 23 monthly installments of $515.86 and a 24th
installment of $253.56. Title and ownership were to remain
in Packer until the purchase price was fully paid with the
usual right to repossess in event of default and the obliga-
tion on the part of P & K to keep the trucks in good repair.
P & K simultaneously leased the trucks to Packer under
terms which provided that P & K should provide all drivers
and helpers and that the rental should be fixed at $6 for
every stop made on behalf of the lessee (Packer). The effect
of this arrangement was to continue the delivery services by
Packer through a contractor who would be using the same
trucks and performing the services in the same manner. It
simply divorced Packer from its employer status and re-
lieved it of the expenses involved in the trucking operation.
P & K assumed responsibility for collecting the money due
Packer, it held itself responsible for gross negligence in han-
dling Packer's products and it agreed to have its motor
vehicles and personnel at Packer's place of business no later
than 7:30 a.m. 5 days a week. Employees of P & K perform-
ing out-service work were required to meet Packer's qualifi-
cations.
B. Conclusions
1. Violations of Section 8(a)(1)
The main thrust of the General Counsel's allegation on
this issue is directed to Johnson 's meeting with his drivers
on August 24,18 4 days after the drivers had joined the
Teamsters and the demand for recognition had been made.
17 The leaseback arrangement was, according to Johnson , made for the
purpose of avoiding the requirement for an ICC permit , which Johnson had,
but which cost P & K $2,500
is I accept this as the date on which the meeting took place although the
date is immaterial.
PARK FURNITURE CO. 917
It is conceded that one of the drivers asked for this meeting
and that Fry asked Johnson what he thought of the Union.
In the course of their disucssion the drivers all testified that
Johnson told them that before he would pay union scale
(fixed by Johnson as either $5 or $5.50 per hour) he would
pack up and leave. Johnson, on the other hand, testified that
the drivers could not get more money because of the pay
freeze then in effect and denied threatening to close the
plant. Since the pay freeze was then in effect and was a
matter of general and, to those in business, of special and
vital concern, Johnson's version is the more plausible. There
would be little reason for Johnson to discuss the union scale
(he testified he did not know what it was) when he was
protected against any wage demands by the Teamsters by
imposition of the freeze.19 Since I credit Johnson's version
I would further find that he was justified in truthfully ex-
plaining the situation. I would reach the same finding with
respect to his alleged statement to Sanders then his take-
home pay would be diminished by the deduction or pay-
ment of union dues and his statement to Davis that if he
wanted more money he should turn to driving. Accordingly,
I find that none of these statements contained any threat of
reprisal or promise of benefit and that they were protected
by Section 8(c) of the Act as statements of fact. Similarly I
find his statement to Stefanovic that he would be the first
to be laid off if the Teamsters came in because he was the
junior driver is supported by the fact that seniority is usually
controlling in a layoff situation and is almost inevitably
protected in collective-bargaining agreements.
It is also alleged that Johnson threatened the drivers
that he "would lease or sell the trucks and terminate its
operations because of their sympathies for and activities on
behalf of the Union." At this time, however, negotiations for
the sale of the trucks were under way and had not been
initiated in response to union activity. (The first meeting at
which the disposition of the trucking problem was discussed
took place about 6 weeks prior to the union activity.)
Johnson's lengthy testimony as to his difficulties with the
trucking operation is not contradicted except as to incidents
(such as complaints about Fry) which I consider minimal.
Again, assuming Johnson did make reference to the sale as
he eventually did, there was no reason for him to relate it
to the union activity of his drivers. Whatever Johnson told
his drivers it must be measured against his testimony, not
contradicted, that he had been losing money since Novem-
ber, 1970.20 I cannot find that Johnson was engaged in an
antiunion campaign at this time 21 but rather in a realistic
appraisal of what the employees could hope to get from the
Teamsters in the light of his own economic situation and the
wage freeze . As the Supreme Court stated in N.L.R.B. v.
Gissel Packing Co., 395 U.S. 575:
Where an employer's anti-union efforts consist of
speech alone, however, the difficulties raised are not
19 The Board has taken recognizance of this freeze and its impact on
collective bargaining and has modified its contract bar rules accordingly
West India Co, 195 NLRB No. 203.
20 The General Counsel apparently conceded the truth of this testimony
since he stated on the record that he had reason to believe the Company was
in an economic position where it could not sustain itself much longer
21 Johnson made no antiunion speeches and the only time he met with all
four drivers was at their request and the discussion of the Union was brought
up by them
easily resolved. The Board has eliminated some of the
problem areas by no longer requiring an employer to
show affirmative reasons for insisting on an election
and by permitting him to make reasonable inquiries
.., But we do note that an employer's free speech
right to communicate his views of his employees is
(firmly established and cannot be infringed by a union
or the Board.
The Court then stated that any assessment of the precise
scope of that right must be made in the context of its labor
relations setting. Viewing the employer's right to the expres-
sion of "views, argument or opinion" containing "no threat
of reprisal or force or promise of benefit" in the context of
Packer's economic problems, its relationship with its em-
ployees, its expression of its intent to meet with the Team-
sters and its lack of any expression of hostility or animus
toward unionization I find Johnson's remarks represented
his effort to deal candidly and truthfully with his drivers.
Truth and candor in dealing with employees in labor rela-
tions are not condemned by the statute although grave risks
may attend their exercise.
As to the allegation of unlawful interrogation of em-
ployees the only dates cited are August 23 and October 18.
Davis testified that on August 23 Johnson asked him why
the men had gone to the Union. At this time Johnson knew,
from the Teamsters letter, that the drivers had, organized.
This, then, was no attempt to learn the identity of the union
employees or their leaders nor did it include any implied
threat of reprisal for taking such action. That the conversa-
tion was not hostile is demonstrated by Davis' reply that he
had gone because he wanted more money and Johnson's
suggestion that he take up driving. (Davis, with Johnson's
encouragement, did try to learn but he apparently quit when
he wrecked a truck.) If this conversation is held coercive
then we have returned, it would seem, to the old rule that
interrogation is coercive per se, a rule finally rejected by the
Board, due to its failure to find acceptance by the Courts,
in Blue Flash Express, Inc., 109 NLRB 59L
I find that this interrogation did not violate Section
8(a)(1) of the Act.
As to the October 18 allegations Hanson testified that
Johnson asked him whether he favored the Union and was
told preferred to be neutral but that since he was working
for Johnson he was inclined to favor the Company. I accept
this testimony since Johnson, who was present and heard it,
did not deny it when called. At this time Johnson was trying
to discover the reason for Hanson's failure to appear on
time on October 14 and, if Hanson is to be believed, suspect-
ed that Hanson had gone to the Labor Board with Fry and
Davis. The inquiry did not proceed beyond that point and
Johnson reinstated Hanson when Fleanor consented. I
would not ordinarily find this interrogation coercive 22 ex-
cept for the fact that it took place at the time Hanson was
seeking reinstatement and was accompanied by the sugges-
tion to Hanson that an attitude of neutrality was not
enough. This is slender ground but I nevertheless find that
by this inquiry Packer violated Section 8(a)(1) of the Act.
The alleged threat to end the Madison run merits little
consideration . It was made at a time when other runs had
u The interrogation does not satisfy, it should be noted, the criteria for
coercive interrogation set forth in Bourne v . N L R B, 332 F 2d 47 (C A. 2).
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been discontinued, when Packer was curtailing its trucking
operations and when further discontinuances could rea-
sonably have been expected. It was moreover, not made to
any of the employees who would have affected and, since
those employees were paid on a salary basis, it would not
be adverse to their immediate interests. I do not find this
statement, made to Hanson, a threat of reprisal either
against Hanson or the driver employees.
2. The discharge of Sanders
I find that Sanders was discharged for directing foul
and obscene epithets and gestures to a female employee and
that such conduct warranted discharge, discharge perhaps
more precipitate than took place here. I do not think reasons
for such a finding require either dissertation or explication.
The issue presented is not whether, under the tolerances of
society today, such language should be regarded as permis-
sive. Permissiveness is not required of an employer in his
day-to-day relations with his employees and however strict
the standards of deportment he may impose may seem (and
Johnson cannot be charged with severity in this respect) he
is not forbidden to enforce them. Under the "any or no
reason" rule he may discharge unless discrimination within
the meaning of the Act is found. I find no such discrimina-
tion here23
I do not find any serious credibility issue in the testimo-
ny. Sanders, as has been stated, did not deny the specific
allegations made by Curro. Curro, on the stand, was obvi-
ously embarassed at having to give such testimony. It is
inconceivable to me that she concocted it.
I find the discharge of Sanders did not violate Section
8(a)(1) or (3) of the Act.24
3. The case of Roger Hanson
It is not clear whether Hanson was discharged, laid off,
or suspended on October 14 but the semantics are not mate-
nal. He was, when he reported 2-1/2 hours late, told by his
foreman that his services were no longer needed. When he
reported to work on October 18 he was reinstated after (1)
refusing to explain his tardiness on the 14th and (2) agreeing
23 Assuming, arguendo, that Curro did use the vulgarities attributed to her
by Fry and Hanson this would have no impact on my disposition of the issue
The Court in Cohen v. California, supra, pointed out the distinction between
obscenity and vulgarity in the terms of criminal law and the constitutional
guarantees but the distinction is a valid one in measuring conduct regardless
of the nature of the proceedings Both vulgarity and obscenity have become
commonplace as means of expression but the difference between the imper-
sonal use of such terms and the direct implication of incest , sodomy, or even
of disparaging reflection on ancestry is still vast The Court also pointed this
out in distinguishing vulgarity from "fighting words" which inevitably are
liable to provoke violence Curro had the right to resent the foul epithet
addressed to her regardless of the scope of her own vocabulary
24 We are living in times when discrimination with respect to race or sex
is a dominant and highly emotional social issue, and properly so. Even those
of us in the lower echelons of the decision -making hierarchy are aware that
allegations of bias and prejudice are being more frequently and impulsively
raised when the decision touches either area . The question might well be
raised by the more vocal members of what had best be described as the
opposing sex as to whether the Trial Examiner would make the same decision
if (1) a female had addressed the same epithet to another female employee
or (2) if a female had addressed the same epithet to a male employee The
answer will be given when the issue is presented.
that he favored the Company over the Union. Since there
is no evidence that either Johnson or Fleanor knew, when
he reported to work on October 14, that his absence had
been due to his visit to the Regional Office, 25 the inference
of discrimination must rest on Hanson's testimony that
sometime in August he told Johnson he favored the Union.
(This interrogation was not alleged as a violation in the
complaint so no finding was made thereon.) It was, howev-
er, Fleanor and not Johnson (whom he did not talk to) who
sent him home. I am unwilling to infer without any support-
ing evidence that Fleanor knew or suspected Hanson of
having gone to the Regional Office and sent him home for
that reason rather than that he was disciplined for his dere-
liction in failing to report or explain his absence 26
4. Fry, Davis, and the refusal to bargain
Certain facts are not disputed. I have found the unit
appropriate for the purposes of collective bargaining, that
a demand for recognition and bargaining was made upon
Packer, and that the Teamsters represented a majority of
the employees in that unit at the time the demand was
made.27 Nor is it disputed that upon receipt of this demand
that Packer's president and its attorney meet with a Team-
sters representative-and declined recognition on the ground
that an appropriate unit should include all employees 28
Since no Teamsters representative testified to this meeting
what else, if anything, took place is not known.
Nor is there dispute that on September 25 Packer deliv-
ered its trucks to P & K and that as a result the services of
Fry and Davis were terminated. The General Counsel dis-
putes the bona fides of the sale, contending that the trans-
action was designed to frustrate the bargaining rights of the
employees and that the termination of employment of Fry
and Davis violated Section 8(a)(3) and the unilateral change
in the trucking operations violated Section 8(a)(5) of the
Act.
I would first find that legitimate business considera-
tions dictated the transaction, which I1fmd a "contracting
out" and not a sale . This finding of legitimacy is based on
the lengthy and credible testimony of Johnson, summarized
supra, concerning his difficulties with his trucking opera-
25 Whether or not Johnson was so informed by Phillips there is no showing
as to when he was informed
26 The record reflects that Hanson was again discharged by Packer in
December This discharge was not alleged as a violation of the Act but the
General Counsel nevertheless alleges in his brief that this December dis-
charge was "a continuation of the same conduct earlier directed against
Hanson in terminating him on October 14 and that the reason given for the
termination was pretextual." It is submitted that if the General Counsel had
evidence that the termination in December was discriminatory and the rea-
sons given were pretextual then he was obligated to issue complaint If he had
no such evidence, as one must assume is the case , then he should not allege
the incident as evidence that the prior suspension was unlawful. No Trial
Examiner is helped by a misleading argument
27 Packer's counsel did not, in his brief, urge the inappropriateness of the
unit so I do not find this a continuing issue
25 There is, however, nothing to establish that at the time of the sale the
Teamsters represented a majority of the drivers. Sanders and Stefanovic had
already been discharged and whether their replacements were union adher-
ents is not known in fact it is not known who the replacements were I cannot
therefore concede that the General Counsel's statement in his brief that
Respondent "knew an election had been ordered and that its drivers and
helpers would clearly vote for the Union" is correct The result of the election
might well have been in doubt
PARK FURNITURE CO. 919
tion. He had, I find, ample reasons for wishing to divest
himself of its problems and had initiated negotiations with
that end in view before union organization on the part of
the employees. Even after union organization was made
known to him he committed, or so I have found, no unfair
labor practices between that time and the time of the con-
tracting. I find his motive economic and not discriminatory.
If, however, he had at the time of the sale an obligation to
bargain with the Teamsters then it is clear that, under Fibre-
board,29 he was obligated to bargain concerning the con-
tracting out and its effects on his employees regardless of his
motive.
The crucial question presented is whether, on Septem-
ber 25, Packer was under any obligation to bargain with the
Teamsters concerning terms and conditions of employment
in the unit. At this time a petition for an election was pend-
mg and, apart from the fact that four authorization cards
were received in evidence, there is nothing to show that
proof of the Teamsters majority was submitted to the
Packer's president at his meeting with the Teamsters repre-
sentative.30 Packer took at least an arguable position when
Johnson stated he believed the entire shop constituted an
appropriate unit and I do not find that he became obligated
to bargain upon receipt of the Teamsters demand. Pending
an election an employer is still entitled to take unilateral
action provided it is not taken for the purpose of preventing
the right to a free election or to affect the outcome thereof.
The dilemma posed an employer and the correct rule re-
specting unilateral action has best been set forth by Trial
Examiner Reel in McCormick Longmeadow Stone Co., Inc,
158 NLRB 1237. The issue presented there was the
employer's action in withholding certain benefits from its
employees unless the Union agreed not to file objections to
an election and the withholding of certain benefits because
the Union did not waive such rights. The principle ennunci-
ated by the Trial Examiner, however, is not so narrowly
confined and has general applicability to any change in
terms and conditions of employment made by an employer
during the pendency of a question concerning representa-
tion. I think the Trial Examiner posed both the problem and
the law which governs it clearly and concisely when he
stated at 1241, 1242:
Analysis of the problems here raised must begin
with the recognition that the statute as construed by the
Board and the courts places the employer in a difficult
position when economic circumstances dictate a revi-
sion in his wage structure and a representation pro-
ceeding is pending. The Supreme Court has held that
an employer violates Section 8(a)(1) if "while a repre-
sentation election is pending," he confers benefits `for
the purpose of inducing employees to vote against the
Union' N.L.R.B. v. Exchange Parts Company, 375 U.S.
405, 409. The Board has applied this principle to hold
unlawful an employer' s action in granting benefits after
an election, if objections to the election are pending.
Ambox, Incorporated, 146 NLRB 1520. On the other
hand, in Champion Pneumatic Machinery, Co., 152
NLRB 300, the Board distinguished Ambox and held
that on the facts in Champion the benefits there granted
were not for the purpose of affecting the pending repre-
sentation proceeding. As recognized in Champion, an
election under this Act may be "pending" for several
years, when, as here, a representation proceeding is
held in suspense during the processing through appel-
late litigation of an unfair labor practice case which
must be resolved before the election in the representa-
tion case is conducted. In Champion the Board recog-
nized that `Fluctuations in the cost of living or in the
labor market or in other factors affecting the
employer's business may well occur during this period
rendering wage adjustments advisable or necessary'
and the law does not require `a holding that any such
adjustment made while a second election is pending is
automatically an unfair labor practice.'
The employer's problem is not only difficult in
terms of deciding on a course of action which will be
lawful, but involves him in some peril if he makes the
wrong choice. If he chooses not to grant benefits, he
may lose key personnel. If he makes the other choice,
he then must decide to what extent, if any, he will
discuss the matter with the union involved in the repre-
sentation case. To bargain with the union over the
matter is not only inconsistent with the employer's
position that the union is not the statutory representa-
tive, but may result in his being held to have violated
Section 8(a)(2) and (1) of the Act under International
Ladies' Garment Workers' Union AFL-CIO v.
N. L. R. B., 366 U.S. 731. To institute the benefits with-
out discussing the matter with the union not only in-
volves the employer in a possible violation of Section
8(a)(1) under Exchange Parts and Ambox, supra, but
even lead to a bargaining order based on the theory
that his unfair labor practice prevented a fair election,
so that the union's majority may be established by
authorization cards.
s s s $
An employer's legal duty in deciding whether to grant
benefits while a representation case is pending is to
determine that question precisely as he would if a union
were not in the picture. If the employer would have
granted the benefits because of economic circum-
stances unrelated to union organization, the grant of
those benefits will not violate the Act. On the other
hand, if the employer's course is altered by virtue of the
union's presence, then the employer has violated the
Act, and this is true whether he confers benefits be-
cause of the union or withholds them because of the
union.
On the strength of findings which I have already made
I do not believe that the General Counsel has established
that the contracting out was motivated by a desire to termi-
nate union organization although concededly that was the
result. Under those circumstances it follows that he was
free to take unilateral action during the pendency of the
election.31
29 Fibreboard Paper Products Corp, v. N L R B 379 U S. 203
30 The failure of any Teamsters representative to testify as to this meeting
does not aid the General Counsel's case.
31 The decision would be otherwise had the Teamsters been certified or
recognized as the collective bargaining agent.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case and upon the fore-
going findings , I make the following:
CONCLUSIONS OF LAW
1. By interrogating an employee concerning his union
sympathies at a time when the question of his reinstatement
was pending Respondent Packer violated Section 8 (a)(1) of
the Act.
2. Respondent Packer did not violate Section 8 (a)(3) or
(5) of the Act.
IV THE REMEDY
While I have some concern as to whether the isolated
act of restraint and coercion found herein warrants the
issuance of a remedial order I shall nevertheless recommend
that Respondent Packer cease and desist from such conduct
and take the usual affirmative action.32
Upon the foregoing findings of fact, conclusions of law
and upon-the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER33
Respondent Packer Sales Corporation d/b/a Park Fur-
32 Auto Workers v . N L R B [Omni Spectra, Inc.], 427 F .2d 1330 (C A. 6),
Woodworkers, Local 310 v. N.L.R.B, 380 F 2d 628 (C.A.D.C.).
33 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,,
niture Manufacturing Company, its officers, agents, succes-
sors and assigns, shall:
1. Cease and desist from interrogating an employee as
to his union sympathy at a time when the question of his
reinstatement to employment is pending.
2. Take the following affirmative action:
(a) Post at its place of business at Milwaukee, Wiscon-
sin, copies of the notice attached hereto and marked "Ap-
pendix."34 Copies of said notice, on forms to be furnished
by the Regional Director for Region 30, shall after being
duly signed by the Respondent, be posted immediately
upon receipt thereof in conspicuous places and will be
maintained for a period of 60 consecutive days. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 30, in writ-
ing within 20 days from the receipt of this Decision what
steps have been taken to comply herewith 35
conclusions , and Recommended Order herein shall, as provided in Section
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.
34 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
35 In the event that this Recommended Order is approved by the Board
after exceptions have been filed , this provision shall be modified to read.
"Notify the Regional Director for the Thirtieth Region in wasting within 20
days from the date of this Order, what steps the Respondent has taken to
comply herewith "