Restonaire Bedding Co.

National Labor Relations Board - Board Decisions

May 18, 1967

164 N.L.R.B. 729 (N.L.R.B. 1967)

RESTONAIRE BEDDING COMPANY
Allen H . Kraft , Alex Kraft and Sarah Kraft
Ellenson , Co-Partners , d/b/a Restonaire
Bedding Company and Wallene Renfroe
and Polly Mae Griffin , Charging Parties.
Cases 7-CA-5676 and 7-CA-5676 (2)
May 18, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On February 17, 1967, Trial Examiner William
Seagle issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, a brief in support thereof,
with attachments, and a request for oral argument,'
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
'Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Allen H. Kraft,
Alex Kraft and Sarah Kraft Ellenson, Co-Partners,
d/b/a Restonaire Bedding Company, Detroit,
Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' The Respondent's request for oral argument is hereby denied,
as in our opinion, the record in this case, including the
Respondent's answer, exceptions, and brief, adequately presents
the issues and positions of the parties
2 Pursuant to Respondent's request for a continuance, the
Regional Director continued the scheduled hearing herein for 8
days The Acting Regional Director thereafter denied
Respondent's request for further continuance and Respondent's
appeal therefrom to the General Counsel was denied At the
opening of the hearing herein, Respondent's counsel orally moved
for a second continuance and offered into evidence a written
motion for continuance with documents attached The Trial
729
Examiner denied the motion and rejected the written motion and
documents with permission to renew the offer when Respondent
presented its case Respondent's counsel thereupon left the
hearing and did not return Respondent excepts to the Trial
Examiner's refusal to grant a second continuance and rejection of
its profferred exhibits, and urges the Board to remand the case for
further hearing In the absence of objection, Respondent's written
motion for continuance and attached documents are hereby
admitted into evidence as Resp Exh 1, and have been
considered Section 102 43 of the Board's Rules and Regulations
provides that continuances are within the discretion of the Trial
Examiner After careful consideration of the entire record, we
find no merit in Respondent's contention that the Trial
Examiner's refusal to grant a second continuance was an abuse of
discretion, based on bias and prejudice against Respondent, or
deprived Respondent of due process of law See Somerville Cream
Co , 95 NLRB 1144, enfd 199 F 2d 257 (C A ]).Missouri Transit
Company, and its President, P W Fletcher, 116 NLRB 587,
Crusader-Lancer Corp , 144 NLRB 1309, Taxicab Drivers Union,
Local 777, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Crown Metal
Manufacturing Company), 145 NLRB 197, enfd 340 F 2d 905
(C A 7) In these circumstances, the Respondent's request to
remand the case for further hearing is denied
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner: This case was heard
at Detroit, Michigan, on November 29, 1966 , upon charges
filed on August 16 and 18, 1966, and a consolidated
complaint issued by the Acting Regional Director on
October 25, 1966, in which it was alleged that the
Respondent had violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, in the course
of its attempt to prevent its employees from succeeding in
decertifying the incumbent Union, Central States Joint
Board, Local 365, Amalgamated Clothing Workers of
America, AFL-CIO (hereinafter referred to as ACWA or
as the Amalgamated).
The hearing in this case was originally set for
November 21, 1966. At the time that the Respondent filed
its answer , it was not represented by outside counsel,' but
such counsel was retained on November 16. Upon
application to the Regional Director, the hearing was
rescheduled from November 21 to 29, 1966. When the
Respondent requested a further continuance, the request
was denied by the Acting Regional Director on
November 25, 1966. Although there had been, admittedly,
no change in intervening circumstances, counsel for the
Respondent appeared at the hearing and moved that the
hearing be continued until sometime in January 1967. The
further continuance was requested on the grounds that the
Respondent was involved in other proceedings; that it had
been involved in the past in many other unfair labor
practice proceedings, some of which had been found to
have merit ; and that the charges in the present
proceeding, which included allegations of violations of
Section 8(a)(3) of the Act involved "very subtle factors."
As none of the grounds advanced appeared to furnish an
adequate basis for a further continuance, the motion of
counsel for the Respondent was denied. Thereupon,
counsel for the Respondent and its representatives left the
hearing, and the evidence of the General Counsel's
witnesses was taken in their absence.
' The record shows that Alex Kraft, one of the partners, is a
lawyer
164 NLRB No. 102
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record so made, and in view of my observation
of the demeanor of the witnesses, I hereby make the
following findings of fact:
1. THE RESPONDENT
The Respondent is a copartnership, consisting of Allen
H. Kraft, Alex Kraft, and Sarah Kraft Ellenson, doing
business under the firm name and style of Restonaire
Bedding Company. The Respondent maintains its
principal office and plant at 2500 Fifth Street, Detroit,
Michigan, where it is, and has been, engaged at all
material times in the manufacture, sale, and distribution of
mattresses and related products.
In the course and conduct of its business operations
during the past year, the Respondent has derived gross
revenue from sales and services direct to customers
outside the State of Michigan in an amount in excess of
$50,000. During the same period, the Respondent made
purchases of materials and secured services directly from
points outside the State of Michigan in an amount in
excess of $50,000.2
It. THE LABOR ORGANIZATION INVOLVED
Central States Joint Board, Local 365, Amalgamated
Clothing Workers of America, AFL-CIO, and
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind. (hereinafter
referred to as the Teamsters), are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent has had contractual relations with
ACWA, apparently, for many years. The last contract
between Restonaire and the Union was entered into as of
October 1, 1963, and expired on October 1, 1966.
During the last year of the contract, most of the
Respondent's employees in the bargaining unit appear to
have become dissatisfied with their representation by
ACWA, and Wallene Renfroe, one of the Respondent's
oldest employees, who had been with the Company for
over 11 years, filed a decertification petition in their
behalf" on July 28, 1966. On her trip down to the Regional
Office of the Board, Renfroe was accompanied by Polly
Mae Griffin, the Amalgamated shop stewardess.
On August 3, 1966, Allen Kraft, holding a letter in his
hand, in which, apparently, he had been informed that a
petition had been filed to decertify the Amalgamated,
came out to Wallene Renfroe's work station and
summoned her to his office where he subjected her to a
lengthy tirade, demanding to know why she had taken
action to decertify the Amalgamated union, and
expressing his feelings about the matter. He declared that
they could not have two unions; that they could not put up
with the Teamsters, especially by themselves; that they
could not meet the Teamsters demands. He demanded
that Renfroe withdraw the decertification petition, and,
when she shrugged her shoulders, he told her that,
although he was not threatening her, he would have to let
' These findings are based on a stipulation entered into by all
parties, including the Respondent , at the hearing on the
decertification petition (Case 7-RD-673 ) The stipulation appears
in the transcript of the decertification proceeding at page 10 The
Respondent also admitted , in its answer in the present proceeding
her go unless she withdrew the decertification petition. He
kept repeating everything he had said already and added
that he would close his doors before he would let the
Teamsters come in. At this point Alex Kraft came into the
office and repeated everything Allen Kraft had said,
including his threats. Renfroe then dwelt upon the
employees' grievances, which had led them to sign and file
the decertification petition , and Allen and Alex Kraft
assured Renfroe that they would take care of the
grievances if she would get the employees to withdraw the
decertification petition. They also attempted to persuade
Renfroe that Polly Mae Griffin, who was the shop
stewardess, was only using her as a front in the effort to
decertify the union. But Renfroe finally walked out of the
office, after making it clear that she would not fall in with
their wishes.
Just before quitting time on August 10, which was a
Wednesday, Renfroe informed Gerald (Jerry) Desjardin,
her foreman, that she would not be in on Thursday and
Friday, the last 2 working days of the week, because she
had to go out of town. Desjardin told her that it would be
okay but he would go and tell Allen Kraft. When Desjardin
came out of the latter's office, he said nothing further to
Renfroe, although she was still there, waiting in line with
the other employees to punch out.
Renfroe's reason for not working the rest of the week
was that she had to go to Atlanta, Georgia, and
Chattanooga, Tennessee, on behalf of the Calvary Baptist
Church, of which she was a member. She returned to her
home in Detroit shortly before 8 a.m. on Monday, August
15. As she got into her car to drive to work, a messenger
boy arrived with a telegram for her. The telegram, which
was dated August 11, the previous Thursday, read: "You
left without permission and good cause. You are requested
to report for work today not later than 2:30 p.m. Otherwise
you are discharged." Notwithstanding the telegram,
Renfroe decided to drive down to work, and did so,
arriving at the Restonaire plant at 8:30 a.m. She found that
her timecard was missing from the rack. When she asked
Desjardin for an explanation, he told her to wait until Allen
Kraft came in. When the latter arrived about 12:30 p.m.,
he had Renfroe called into his office. He told her that
"they" had evidence that she had received the telegram at
7 o'clock on Thursday-he did not specify whether this
was a.m. or p.m.-and that she was fired for being absent
without permission. Renfroe pointed out to Allen Kraft
that she had the permission of her foreman, Jerry
Desjardin. Allen Kraft told het she should have obtained
permission from him, personally. Renfroe pointed out that
this was not the practice, that the permission of her
foreman was all that was required, and that the real reason
for her being fired was that she had refused to withdraw
the petition. At this point Alex Kraft came in , and also told
her that she was fired for leaving without permission, and
suggested that she file a grievance with Polly Mae Griffin,
the stewardess. Renfroe told Allen and Alex Kraft that she
would not file any grievance but she did go to see Griffin,
who suggested that she file a charge with the National
Labor Relations Board. While they were talking, Alex
Kraft came out, and attempted to draw Griffin away, so
that it was engaged in commerce within the meaning of Section
2(6) and (7) of the Act
' This was the petition in the decertification proceeding already
mentioned . i e , 7-RD-673
RESTONAIRE BEDDING COMPANY
that he could talk to the latter out of Renfroe's earshot.
But the latter followed them around and heard Alex Kraft
tell Griffin that Renfroe should file a grievance. The next
day, which was August 16, Renfroe went down to the
Regional Office of the Board and filed a charge, in
accordance with the advice given to her by Griffin.
On the day of Renfroe's discharge, Griffin, as shop
stewardess, adopted the suggestion of Alex Kraft that
Renfroe file a grievance, which she put into writing. In the
afternoon of the same day, Griffin was called into the
office to discuss the grievance, and she found there not
only Allen and Alex Kraft but Robert Kraft, Allen's son,
and Jack Isbee, their office manager Griffin told them that
Renfroe had had permission to be absent, and that she
should be put back to work. She also pointed out that in
any event under the terms of the union contract an
employee could be absent for 2 working days without
notifying the employer.4 Alex Kraft agreed that Renfroe
should be put back to work, and told Isbee to send her a
telegram to report to work the following morning. Such a
telegram was, however, never sent, because Allen Kraft
would not agree to do so.
Early in the morning of Wednesday, August 17, Allen
Kraft came to Griffin's work station, and asked her if she
was behind in her cutting She replied to this question in
the affirmative but asked Allen Kraft what had happened
to Joann Jackson, the girl who had been helping her. Allen
Kraft told Griffin that this girl had been dismissed the
previous day, and asked Griffin to teach one Sophie
Ciarkowski how to string up and cut. This employee had
retired on July 29, 1966, and had been given a big
retirement party the previous Wednesday at which she
had been presented with a piece of luggage by the
employees, a gold watch by the management, and a check
for $25 by the Union. Griffin told Allen Kraft that as shop
stewardess she had to reject his request, which, if it were
granted, would violate the seniority provisions of the union
contract. She added that if he insisted that Sophie do the
stringing up and cutting, he should have someone else give
Sophie the cut and measurements because she would not
be responsible for Sophie's mistakes. Thereupon, Allen
Kraft told Griffin that she was fired, and about 1:30 p.m.
the same day gave her a letter in which he stated the
alleged reason for her discharge. The letter, which was
addressed simply Polly Griffin and signed A. Kraft read as
follows:
You are hereby dismissed from your job for refusal to
comply with management's request to show one of
our old employees, Sophie, how to string up material
for cutting purposes.
This is insubordination and a just cause for dismissal.
You can follow the normal grievance procedure.
Please clean out your locker before leaving.
Having rid themselves of Renfroe and Griffin, the Kraft
brothers turned their attention to the promotion of a
petition to secure the withdrawal of the decertification
petition that had been launched by them. On August 15,
an Amalgamated union representative by the name of Lee
came to the plant in the morning and asked William
White, one of the employees, whether he knew where
4 There is a provision to this effect in article III, section 3, of
the union contract
731
Theodore Tett, one of the employees who was then on
vacation, lived. When White replied in the affirmative,
Lee asked him to go along with him to Tett's home. White
then secured permission from Isbee to leave the plant and
accompany Lee. White received his regular pay while he
was away from the plant on this mission The trip to Tett's
house was successful, for he not only signed the
decertification withdrawal petition himself but took charge
of securing signatures to it. Indeed, Tett's name leads all
the other names on the petition, which were secured
between November 11 and 15, 1966. A significant
signatory to the decertification withdrawal petition was
Foreman Desjardin. On November 16, 1966, Desjardin
also sent a telegram to the wife of William White, the
employee already mentioned, who had not signed the
decertification withdrawal petition, to call him at the plant
at 8 a.m. the next morning. When Mrs. White did so,
Desjardin explained to her that he was having trouble in
getting her husband to sign the decertification withdrawal
petition and asked her to talk to her husband, as well as
other employees, and persuade them to sign it.
It seems obvious that in discharging Renfroe and
Griffin, the one for absenting herself from work without
permission and the other for insubordination, the Krafts
were only advancing pretexts and that the real reason for
their discharges was their activity in pushing the
decertification petition. In the case of the discharge of
Renfroe, the discriminatory motive is clearly indicated by
the background of her discharge; the fact that she had
actually obtained permission to be absent; that her
discharge was accomplished in entire disregard of the
terms of the union contract, even if she had left without
securing permission; and finally, by the fact that the
Krafts waited until long after she had left town before they
sent her the telegram threatening to discharge her unless
she reported for work, for, by this time, she could no
longer be reached
As for Griffin, she was discharged not only because she
was helping Renfroe push the decertification petition but
also because as union stewardess she had taken up the
cudgels for Renfroe. This was certainly a protected
concerted activity, even if she were wrong in her
interpretation of the applicable provision of the union
contract. She was also engaged in a protected concerted
activity when she refused to teach cutting to Sophie, a
retired employee, because it would violate the seniority
provisions of the union contract. The resuscitation of
Sophie, in order to get rid of Griffin, only adds a bizarre
element to her discharge. Allen Kraft and Griffin were old
antagonists. He had discharged her on several previous
occasions for discriminatory reasons only to have her
reinstated The last time this occurred had been in
September 1965, when he discharged her for refusing to
induct into the Amalgamated union an employee of 2
weeks, although this would have been a violation not only
of the union contract but also of the union-shop provision
of Section 8(a)(3) of the Act.
To the strong circumstantial evidence that establishes
the unlawfulness of the discharges of Renfroe and Griffin
must be added, finally, direct evidence that Allen Kraft
had declared to employees on several occasions that if he
could only get rid of them he could run the shop like he
wanted to
IV. THE REMEDY
In view of the serious nature of the violations involved in
the discharge of Wallene Renfroe and Polly Mae Griffin, I
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall recommend a broad form of cease-and-desist order,
restraining the Respondent from infringing upon any of the
rights guaranteed to employees by Section 7 of the Act.
To remedy the discriminatory discharges of Wallene
Renfroe and Polly Mae Griffin, I shall also recommend, by
way of affirmative relief, that the Respondent offer to them
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed by them, discharging, if necessary, any new
employees hired subsequent to the dates of their
discharges in order to replace them. I shall also
recommend that the Respondent make Wallene Renfroe
and Polly Mae Griffin whole for any loss of pay they may
have suffered by reason of their^t ischa7ges by payment to
each of them of a sum of money equal to the amount which
she would normally have earned as wages from the date of
her discharge to the date of the Respondent's offer of
reinstatement, less her net earnings during the said
period. The amount of backpay is to be determined in
accordance with the formula prescribed in F. W.
Woolworth Company, 90 NLRB 289, and interest is to be
computed on the amount so determined in accordance
withlsis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent, Restonaire Bedding Company, is
an employer engaged in commerce, or in an industry
affecting commerce, within the meaning of Section 2(6)
and (7) of the Act.
2. Central States Local Board, Local 365, Amalgamated
Clothing Workers of America, AFL-CIO, and
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., are labor
organizations within the meaning of Section 2(5) of the Act.
3. By interrogating some of its employees coercively
concerning their union decertification activities; by
interfering with these activities, and by threatening them
with loss of employment if such activities were continued,
the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby committed unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) of the Act.
4. By discharging Wallene Renfroe and Polly Mae
Griffin, two of their employees, on August 15 and 17, 1966,
respectively, because they had engaged in union or other
concerted activities, the Respondent has committed unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and (3) of the Act.
organization of its employees, by discharging any of its
employees, or in any other manner discriminating against
them with respect to their hire or tenure of employment or
any term or condition of their employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action in order to
effectuate the policies of the Act.
(a) Offer to Wallene Renfroe and Polly Mae Griffin
immediate and full reinstatement to their former or
substantially equivalent positions of employment, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them in
the manner and to the extent set forth in section IV 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, and other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Post at its plant at Detroit, Michigan, copies of the
attached notice marked "Appendix."5 Copies of said
notice, to be furnished by the Regional Director for Region
7, after being duly signed by the Respondent's
representative, shall be posted by Respondent
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 7, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.6
" In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
^ In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondent, Restonaire
Bedding Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating any of its employees coercively
concerning their union decertification activities;
interfering with their union decertification or other
concerted activities; and threatening them with loss of
employment, if such activities were continued.
(b) Discouraging membership in International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Ind., or any other labor
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT coercively interrogate our employees
concerning their union decertification activities;
interfere with their union or other concerted
activities; or threaten them with loss of employment if
such activities are continued.
WE WILL NOT discourage membership in the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., or in
any other labor organization of our employees, by
RESTONAIRE BEDDING COMPANY
discriminating with respect to the hire or tenure of
their employment or any term or condition of their
employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the right to self-organization, to form labor
organizations, to loin or assist the above-named or any
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in any other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities.
WE WILL offer to Wallene Renfroe and Polly Mae
Griffin immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
they may have suffered by reason of our
discrimination against them.
733
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of any labor
organization, except to the extent that this right may be
affected by any agreements in conformity with Section
8(a)(3) of the Act.
RESTONAIRE BEDDING
COMPANY
(Employer)
-Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.