Revere Furniture Mfg. Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1963

144 N.L.R.B. 607 (N.L.R.B. 1963)

REVERE FURNITURE MFG. INC. 607
Revere Furniture Mfg. Inc. and Upholsterers ' Local Union No.
15, Upholsterers International Union , AFL-CIO . Case No.
01-CA-5061. September 16, 1963
DECISION AND ORDER
On June 19, 1963, Trial Examiner E. Don Wilson issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and Was not engaging in certain
unfair labor practices and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, and the excep-
tions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
[The Board dismissed the complaint.]
' We agree wtih the Trial Examiner 's finding that Respondent did not violate Section
8(a) (3) by discharging employee Child. In doing so, we rely solely on the fact that Child
was engaged in soliciting on company time without the Respondent 's permission, and
that his discharge for this activity was not violative of the Act. See Rex Manufacturing
Company, 86 NLRB 470.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Upholsterers' Local Union No. 15, Upholsterers Inter-
national Union , AFL-CIO, herein called the Upholsterers, the General Counsel of
the National Labor Relations Board , herein called the Board , through the Acting
Regional Director for the Twenty-first Region , issued a complaint dated December 31,
1962, against Revere Furniture Mfg. Inc., herein called Respondent or Company,
alleging violations of Section 8(a)(1) and ( 3) of the National Labor Relations Act,
herein called the Act. Respondent by duly filed answer denied committing unfair
labor practices.
Pursuant to notice , a hearing was held before Trial Examiner E. Don Wilson at
Los Angeles , California , on February 4, 5, and 6 , 1963 . All parties appeared and
participated fully in the hearing. Before the hearing concluded , all parties were
afforded full opportunity for oral argument . Briefs of the General Counsel and
Respondent have been received and considered.
Upon consideration of the entire record, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged in the business of manufacturing
upholstered furniture . At all material times, Respondent has maintained its princi-
pal office and place of business and a furniture manufacturing plant in the city of
144 NLRB No. 63.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hawthorne , California. During the calendar year, 1962, Respondent , in the course
and conduct of its business operations , manufactured , sold, and distributed at its
plant products valued at more than $500,000, of which products valued in excess
of $50,000 were shipped from said plant directly to points outside the State of
California . During the same year, the Respondent purchased and received goods
valued in excess of $50,000 directly from sources located outside the State of
California. Respondent is now and has been at material times an employer engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act. The Board
has jurisdiction of the subject matter of this proceeding.
H. THE LABOR ORGANIZATIONS INVOLVED
The Upholsterers and Teamsters Local 196, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
herein called Teamsters, and Furniture Workers Local 3161, affiliated with Inter-
national Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called
Furniture Workers, are, and have been at all material times, labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
There are two primary issues: (1) At material times did Respondent have in effect
and enforce a rule which forbids union or concerted activity on company property
on nonwork time; and (2) was Daniel Child discharged on November 12, 1962,1
because he engaged in protected concerted and union activities in behalf of the
Upholsterers, Teamsters, and Furniture Workers and in order to discourage member-
ship in the Teamsters and Furniture Workers?
B. Background
One building houses the operations of Respondent, Franklin Frame Co. and
Revere Lamps, Inc. The latter companies have ownership in common with Re-
spondent. The operating premises of the companies are separated one from another
by physical barriers. Franklin Frame Co. manufactures frames and is some-
times referred to as Respondent's mill department. Revere Lamps, Inc., manufac-
tures lamps and its operations appear in no way to be related to those of the
other two companies. Respondent's operations consist of upholstering, including a
variety of steps in the process. Respondent has its own shipping department. In
its upholstering operations Respondent has from 38 to 50 employees of whom about
4 are engaged in shipping and receiving, including 1 or 2 truckdrivers. The mill
department (Franklin Frame Co.) has about six employees. Revere Lamps, Inc.,
has about 50 employees.2 Larry Brooks has been Respondent's plant manager for
about 3 years. He is also the manager of the mill department.
Respondent's employees who are engaged in its upholstering operations have been
represented by the Upholsterers for several years, during which time the Upholsterers
has had a collective-bargaining contract with the Wholesale Upholstered Furniture
Association, of which Respondent is and has been a member at material times. The
employees of the lamp department, the mill department, and Respondent's shipping
department are and have been unorganized and not represented by any labor
organization.
On June 9, 1961, Respondent probably posted on its bulletin board in the up-
holstering department, the following rules:
ATTENTION ALL REVERE FURNITURE EMPLOYEES
JUNE 9, 1961.
THE FOLLOWING RULES ARE SET UP BY THE COMPANY AND MUST
BE FOLLOWED. ANYONE NOT ABIDING BY THE FOLLOWING
RULES WILL BE SUBJECT TO DISMISSAL.
1. YOU MUST ENTER THE FACTORY, DURING WORKING HOURS,
THROUGH THE DOOR LOCATED ON THE EAST SIDE OF THE BUILD-
ING. NO ONE WORKING FOR THE FURNITURE COMPANY CAN
ENTER THE WEST DOOR.
2. YOU MUST SEEK PERMISSION FROM YOUR FOREMAN TO
ENTER ANY OTHER DEPARTMENT IN THE FACTORY.
'Hereinafter all dates refer to the year 1962 unless otherwise specified.
2 Revere Lamps, Inc., is not in any manner Involved In this proceeding.
REVERE FURNITURE MFG. INC. 609
3. IF YOU COME TO WORK ON A DAY THAT YOU ARE NOT
WORKING FOR SOME REASON OR ANOTHER, YOU MUST GO TO
THE RECEPTIONIST DESK AND BE ANNOUNCED. ABSOLUTELY
NO ONE IS PERMITTED IN THE FACTORY UNLESS YOU HAVE
PUNCHED IN ON THE TIME CLOCK.
4. NO SOLICITING OR ANY OTHER BUSINESS CAN BE CARRIED
ON DURING WORKING HOURS OR ON COMPANY PROPERTY.
REVERE FURNITURE MFG. INC.
(S) Lawrence Brooks
LAWRENCE BROOKS, Plant Manager.
Copies of the rules as set forth above, whether or not posted, were distributed to
employees on or about June 9, 1961.3 Brooks testified that rule No. 4 contained
a typographical error in that the final part should have read "and on company
4property."
arnel Child was employed by Respondent as a journeyman upholsterer on
October 4, 1960. For a major portion of his employment, Child was shop steward
for the Upholsterers. As an upholsterer, it was rarely that his duties required
him to visit the mill department. As shop steward he had no responsibilities in
connection with the employees either in the mill department or in the shipping
department. Other than walking through the shipping department to punch in or
out (on the timeclock), he had little or no occasion to be in the shipping department,
unless directed by his foreman. Such direction was not frequent.
Before November 9, Child regularly engaged in his duties as shop steward for the
Upholsterers and at no time did Respondent interfere. Child regularly talked
to employees in the upholstery department about the Upholsterers. He took ap-
plications for membership in the Upholsterers and dues deduction applications from
new employees and told them they should join the Upholsterers. Though he would
try to work such activity into "break time," he sometimes did it on the company time
and, of course, on company premises. He was very busy in processing grievances,
particularly for seamstresses. His soliciting new employees to join the Upholsterers
during company time was done with the knowledge of management. He was never
reprimanded, prior to November 9, for any of his union activities, including discus-
sions of grievances with fellow employees or the processing of grievances with man-
agement during working hours, and, of course, on company premises .5
At the hearing, General Counsel contended that "the former union steward
(Child) was permitted to engage in union activities during working time." Counsel
for Respondent agreed that the union steward, Child, was permitted by Respondent
"to engage in proper union activities on company time, and he was never disciplined
for the union activities on company time." General Counsel further agreed that
the record established that Child had engaged in union activities on company time
throughout his employment and had never been reprimanded, disciplined, or
criticized therefor.
Also, during his employment, Child was one of Respondent's lower producers
as an upholsterer. At his request, Child was transferred from one type of opera-
tion to another. On several occasions Brooks encouraged Child to increase his
production and thereby increase his earnings. Respondent's upholstering was per-
formed through a "line" and there were periods of time when work piled up at
Child's station. Although Brooks encouraged Child to increase his production and
though there were "a goodly number of job applicants" for the type of work
performed by Child, Respondent never threatened Child's discharge before No-
vember 9, although Child frequently engaged in union activities on company time
3 Rule No. 4 was republished along with the other and some additional rules on Decem-
ber 20, 1962, after the discharge of Child. As republished , rule No. 4 makes no reference
to "company property."
4 Further herein, I shall discuss this rule and its application in some detail . I here note
that Brooks' demeanor impressed me favorably and recognizing his particular interest in
this proceeding, nonetheless I have found him to be an honest witness who conscientiously
tried to and did tell the truth.
5 Findings with respect to the union activities on company time and premises with the
approval of Respondent are based upon admissions of Child, which are credited. Child
often exhibited a poor recollection which I consider , in light of the context of all his testi-
mony, to be indicative of an unwillingness to admit facts which might, in his opinion, be
adverse to what he considered his or the Upholsterers' best interest. Testimony elicited
from Child has been evaluated not only in light of his apparently deficient memory but
also in light of his demeanor which impressed me unfavorably.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and property to the knowledge of Respondent. That Child engaged in union ac-
tivities on company time may have contributed to his comparatively low produc-
tion record.
In evidence, as General Counsel's Exhibit No. 6, is a contract between the
Upholstered Furniture Manufacturers' Association of California and the Uphol-
sterers. Respondent, as a member of the Association, was a party to the contract
with the Upholsterers. This contract was executed in October, having been nego-
tiated for some time prior thereto and was effective as of July 1, a preceding and
similar contract having been executed in 1960 and having expired on June 30.
Paragraph II of the current contract provides, in part: "The business representatives
and authorized representatives of the Union, as provided for hereafter, shall have
access to the Employer's plant by permission through the office of the Employer,
but such permission shall not be denied." Paragraph XV provides, in part, that
the Union and employees will, "B. 1. Cooperate to keep at a minimum the time
devoted by officers, stewards, and members in handling grievances, soliciting Union
members, Union dues, or engaging in other Union activities on the Employer's
property during working hours." Section XV of the contract further provides,
in part, (A) that "the Union agrees not to interfere in matters which are solely
the functions of the Employer."
C. November 9, and Dan Child
For about 2 weeks before November 9, Shop Steward Dan Child had been
absent from his employment by Respondent because of a disabled arm resulting
from an allergy shot which produced an infection.
While still so disabled, Child received the following telegram from Jess E.
Gonzales, business manager of Local 15 of the Upholsterers:
LDT20 KT 60 NL PD
LOSA NOV 8
DAN CHILDS
3582 LOS FLORES LYNWOOD CALIF (CP)
DEAR BROTHER CHILDS THIS IS TO ADVISE YOU THAT AN IM-
PORTANT SHOP MEETING WILL BE HELD ON MONDAY NOVEM-
BER 12TH FOR ALL EMPLOYEES OF REVERE FURNITURE COMPANY
AT THE AMERICAN LEGION HALL 1424 SOUTH PRARIE HAW-
THORNE AT 445 PM PLEASE CONSTRUE THIS MESSAGE TO IN-
CLUDE EVERYONE A ROLL CALL WILL BE TAKEN OF ALL PEOPLE
PRESENT FRATERNALLY.
JESS E GONZALES BUSINESS MGR UIU LOCAL 15.
Immediately upon receipt of the above telegram, Child called the union office. It
is not clear to whom he spoke, but Child testified credibly he "asked them when he
wanted this carried out, my going up and notifying the people, and he says, `go up
at noontime,' which I did." 6
Lunch break for the upholstery, mill, and shipping departments began at 12:15 p.m.
When he arrived at Respondent's plant at or shortly before noon, he spoke to
James T. (Jimmy) Sterling, a truckdriver employed by Respondent in its shipping
department and not represented by the Upholsterers.v Sterling was working at the
time of this conversation. Child told Sterling that the Upholsterers were to have
a meeting at which a Teamsters official would "officiate." He asked Sterling to
advise the other truckdriver of the meeting. Child, leaving Sterling, approached the
desk of Errol Campbell, the "head" of Respondent's shipping department and a
supervisor within the meaning of the Act.8 This was during working hours. They
exchanged a few words and Child continued into the upholstery department. In the
upholstery department, still during working time, Child told the employees in the
upholstery department of the Union meeting to be held the following Monday night.
He told them what time to come to the meeting. He was still in the upholstery
department when the buzzer sounded, announcing the 12:15 lunch break. A few
minutes after 12:15 he entered the mill department and spoke to an employee there.
It appears that Child continued in activities in behalf of the Upholsterers, Teamsters,
and Furniture Workers during the lunch break.
6 He probably spoke to Jess Gonzales, Upholsterers' representative.
71 credit Sterling's testimony that Child, rather than entering through the so-called
east door, "jumped up on the dock" to converse with Sterling
8 Campbell impressed me as an honest witness
REVERE FURNITURE MFG. INC. 611
For a substantial portion of the time that Child was engaging in these activities
on November 9, Frank LaCasella, a representative of the Upholsterers, sought and
obtained from Brooks permission to conduct Upholsterers' business in the shop and
apparently conducted such business.9 When Child and Frank LaCasella were leaving
the premises shortly after lunch, Brooks spoke to both of them briefly in Brooks'
office and then in much more detail to Child alone.
While alone with Child, Brooks asked him what he had discussed with Sterling
that morning. Child gave no answer and Brooks told him he had no business trying
to organize Respondent's truckdrivers.10 Brooks told him that he was violating the
contract, particularly articles II and XV.11 Brooks warned Child of "further action"
if Child were caught "doing it again." Child told him that what he had done that
morning had been done under the instructions of Jess Gonzales.12 Brooks asked
Child to state what business he had to conduct activities on behalf of the Teamsters
and Furniture Workers. Child "refused" to answer him. Child stated he was "fol-
lowing the orders or instructions of Jess Gonzales." 13
Company's rule No. 4 (no soliciting) was not discussed in terms and no copy
of the rules was exhibited at the November 9 discussion between Brooks and Child.
Child testified and I find that he never saw a copy of the so-called company rules
Nos. 1 through 4 until after his discharge, when counsel for General Counsel
exhibited them to him. Child admitted that he had discussed a rule about entering
through the east door before his discharge, but stated that he had never talked
about or discussed rules Nos. 2, 3, or 4 before he spoke to counsel for General
Counsel after his discharge. When asked if rule No. 4 was ever brought to his
attention "orally or in writing" prior to the time he met with General Counsel, Child
made no response.14 Having considered the entire record, I find rule No. 4 was not
mentioned to Child by Brooks or anyone else at any material time and considering
that Child, an active shop steward, was unaware of rule No. 4 prior to his discharge,
I further find that rule No. 4 was not enforced with respect to Respondent's em-
ployees at any material time.15
I find that, in substance, on November 9, Brooks, having learned of Child's
activities in behalf of the Teamsters and Furniture Workers on company time, told
him not to engage in such during his or other employees' working time. He was
told that what "he did on his time was his own business, but what he did on [Brooks']
time was [Brooks'] business and [Brooks] didn't want it continuing." Brooks
threatened Child with discharge should he persist in occupying his and other em-
ployees' time in such matters during working hours. Child was told by Brooks on
November 9 that he and the other employees were being paid by the Respondent
and not the Union and Child should devote as much time as he could to upholstering.
Brooks further told Child not to undermine Respondent's salaried people, Brooks
describing such "as interference in company affairs." Child told Brooks that he had
come into the plant on company time on that day because he had been so instructed
by Jess Gonzales and the contract contained a provision "that he had to listen to
what Jess Gonzales says." Brooks said Child might be violating the contract by
his conduct of Friday. Brooks told Child he was violating a company rule by
soliciting "during working hours and on company property." Child was also told
correctly that the Upholsterers, under the contract, specifically did not represent
woodworkers (mill department employees) and teamsters (shipping department em-
ployees). Child said he'd confer with Gonzales about his right to do anything
Gonzales required, regardless of whether his actions broke company rules.16
9 Child neither sought nor obtained permission from Respondent's management to enter
Respondent's premises on November 9 It is clear he was not there to work as an em-
ployee and that he was on the premises as an agent of Jess E. Gonzales, business manager
of Upholsterers Local 15, such agency being other than shop steward.
10 Of course, at that time, any such activity had been conducted on working time of the
truckdrivers and while Child was off on sick leave, so far as the record shows
11 Pertinent sections thereof are set forth, supra. Brooks did not refer to the sections
by number but described them very generally.
12 Child testified he never asked Respondent for permission to carry on organizing
activities during working hours for a union other than the Upholsterers
13 The findings in this paragraph are based upon admissions of Child
14 The record indicates Child did not meet counsel for General Counsel until an ex-
tended period of time after his discharge.
15 There is no credible probative evidence to the contrary.
1e The findings in this paragraph are based upon credited testimony of Brooks
727-083-64-vol. 144-40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. November 12, and Dan Child
1. Before the discharge interview
Child returned to Respondent to work on November 12 at the normal time of
8:05 a.m. About 9 a.m., while Sterling was walking past Child's "working post,"
Child told Sterling "to make sure that he remembered the time of the meeting and
to extend this invitation to the other truckdriver (John Jones)." Sterling said that
Jones was "out on the road" and might be back by noon. Child asked Sterling to
see Jones and ask Jones to see Child at the latter's work station. Apparently about
the same time, Child called Shipping Department Supervisor Errol Campbell over
to him from the "working post" of another employee. Child 17 having asked Super-
visor Campbell if the latter knew that Brooks was angry with Child on November 9,
and having asked Campbell if he knew why Brooks was angry, then asked Campbell
how Campbell liked it "up front" and inquired as to Campbell's pay. Child indi-
cated Campbell would "be paid more in the Union." Campbell said he "almost
didn't get paid for Saturday's work at all and that he could stand a union right now
himself." There was further "friendly talk" between them. Subsequently, Campbell
saw a "floor boy" named John (probably Velasquez) talk to a truckdriver, John
Jones, in the shipping department. John Jones then told Campbell "he wanted him
over in the furniture department, could he go over there." 18 Campbell told him not
to do so and reported the incident to Brooks.19
Also, at 9:30 a.m. on November 12, Brooks, as he had done in some few instances
in the past, asked Child to notify the upholstery employees that Brooks would like
to meet with them at the morning break, to work out details for a 4-day Thanks-
giving holiday. Child so notified the employees during working hours.
2. The discharge interview on November 12
In the middle of the morning of November 12, Brooks discharged Child, the
discharge interview occurring in Brooks' office.
Brooks told Child it had been reported to Brooks that Child had, that morning,
gone to the shipping department and talked to Sterling about the Teamsters while
Sterling was working. So credibly testified Child 20 Child credibly testified he
believed Brooks said he had heard that Child sent Floorboy John Velasquez to
get truckdriver John Jones off his job so he could talk to Child. Child further
credibly testified that he told Brooks that he was "organizing the truckdrivers"
through Gonzales' "instructions that I was to extend this invitation to the meeting
Monday night to the truckdrivers " Brooks told Child he had violated Respondent's
rules 21 Brooks told Child he had violated articles II and XV of the union contract
also and Brooks was upset and was going to discharge Child. Child attempted to
show Brooks a provision in the contract "where I had the responsibilities in listen-
ing to what my business manager had to say that's why I was doing this ... extend-
ing the invitation to this meeting to the Teamsters-or to these truckdrivers."
Brooks told him he could take it to arbitration or the Union to fight for him. The
conversation "was more or less pretty nice after that." 22
In substance, I find that by about 10:15 a m., on November 12, Brooks was
advised that Child, having arrived to work that morning, continued with the activities
which he had left off on November 9, despite Brooks' threat of discharge should
they be continued. Correctly or not in full detail, Brooks believed that Child
was, on company time, "approaching people not in the bargaining unit, sending
warners 23 all over the factory seeking these people out, generally not working, and
17 While continuing h18 work.
18 The "he" was not further identified . The record indicates that Brooks, learning of
this conversation, believed "he" was Child.
19 The findings in this paragraph are based upon credited admissions of Child and
credited testimony of Campbell.
20 This finding deals only with what Brooks said . Brooks probably was so told His
information was not entirely correct.
21 Although the so-called Respondent' s rules Nos . 1 through 4 had never been seen nor
discussed by Child prior to November 9, Respondent, as found above, enunciated various
rules to Child.
22 The findings in this paragraph are based upon credited testimony of Child.
23 I understand this to mean that Brooks believed Child was sending persons on union
business to other departments.
REVERE FURNITURE MFG. INC. 613
not doing what he's supposed to do." It appeared to Brooks that Child was flagrantly
disobeying Brooks' instructions and deliberately attempting to disrupt the morning's
work. He inquired of Child why Child was so acting. Child told Brooks he had
told Jess Gonzales of Brooks' threat to discharge Child and Gonzales told him,
"Never mind, don't bother. You do as I tell you." Child told Brooks he was
instructed to do "whatever else he was doing there for the Union." Brooks told
Child he was "very disappointed that he would openly defy me when I asked him
not to. I questioned him why again he had done this, and he told me that he had
gone to Jess E. Gonzales and that Jess E. Gonzales had told him to disregard my
instructions and that he had the right to do whatever he wanted, apparently, and
I discharged him." Brooks told Child it had been reported to Brooks that Child
had continued to engage in union activities in departments other than his own dur-
ing working hours. Child told Brooks that Gonzales had told him to continue
his activities in organizing for the Teamsters and the Furniture Workers. In the
framework of these facts as found in substance as to November 12, Respondent,
through Brooks, discharged Child 24
3. After the discharge interview
After the discharge of Child, Gonzales and Brooks conversed several times.
Gonzales requested Brooks to put Child back to work. Brooks refused. I spe-
cifically do not credit Gonzales' testimony that Brooks indicated a reason for
discharging Child was a shop rule which prohibited employees "from engaging in
any activities on company time or company property." 25 The day after Child's
discharge, Gonzales and Frank LaCasella jointly requested Brooks to put Child back
to work. Brooks refused. Gonzales threatened to file the instant unfair labor
practice charge. Brooks, in all his conversations with Gonzales, offered to arhitr.,-+"
Gonzales refused arbitration.
E. Concluding findings
1. Rule No. 4
Of course, rule No. 4, promulgated on January 9, 1961, exceeded the permissible
authority of Respondent to limit union activity protected by Section 7 of the Act.
However, counsel for General Counsel correctly contends in her able brief that
"Section 10(b) of the Act prevents a finding of an unfair labor practice with respect
to its promulgation." She argues, however, that Child was discharged by Brooks
as part of an implementation of the June 9, 1961, rule No. 4. By inference, if
not in so many words, she appears to argue that rule No. 4 should now be found
unlawful because it was enforced on November 12 in connection with Child's dis-
charge. Paragraph 4 of the complaint alleges that "at all times material herein "
Respondent has enforced rule No. 4.
I find General Counsel has not proved his allegation as contained in paragraph 4
of the complaint by a preponderance of the substantial evidence. Nothing could
be more clear than the facts, as established in this record, that Child, an active shop
steward for the Upholsterers, freely and to the knowledge of Respondent ran the
gamut of union activities on company time and property without hindrance, inter-
ference, or restraint from Respondent. In fact, I credit Brooks' testimony that the
"or" in the latter part of rule 4 was a typographical error for the word "and."
That Respondent, so far as this record shows, permitted employees to apply for
membership in the Upholsterers and sign dues deduction cards at the request of
Child, on company time and property, as proved by General Counsel, negates en-
forcement of a rule that there be no union activities on company property. General
Counsel, as I view the record, conceded that, although Child regularly engaged in
union activity on company property and on company time, e.g., taking applica-
tions and processing grievances, Respondent at no time and in no manner interfered
with him, much less reprimanded him for such activity. Indeed, the record establishes
24 The findings an this paragraph are based upon credited testimony of Brooks
25 The record makes it abundantly clear that employees and particularly Child were
permitted to engage in union activities on company time and property during material
times. Also, I specifically credit the testimony of Brooks that in addition to allowing the
Upholsterers freely to engage in proper union activities on company time and property,
he permitted the Teamsters to come on Respondent's property and engage in Teamster
business and visit with employees for Teamster business. The latter findings are either
based on concessions of General Counsel or on uncontradicted testimony of Brooks
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent encouraged Child to do better work so that Respondent, other
upholsterers, and Child could better themselves. The record demonstrates com
mendable harmony between Respondent and Child in the execution of union busi-
ness on company time and property. Since General Counsel contends that the dis-
charge of Child "was in enforcement of that company rule," I here note that I shall
find Child's discharge was unrelated to protected concerted or union activities, and
particularly I now find that company rule No. 4 in no way was connected with
Child's discharge.
2. Discharge of Dan Child
I find that General Counsel has not established by a preponderance of the credible
substantial evidence ,that Child was discharged because he engaged in protected con-
certed or union activities.
In the circumstances of this case, I do not agree, as argued by counsel for
General Counsel, that "by discharging Child because he engaged in conduct for
the purpose of assisting [the Teamsters and Furniture Workers] to organize the em-
ployees in the unorganized departments of Respondent [Respondent] discriminated
against him." There is no evidence that Respondent opposed such organization
by the Teamsters or Furniture Workers or their agents. The only evidence on this
point in the record is to the contrary, i.e., the Teamsters were permitted on the
premises to discuss union matters with employees and the Furniture Workers never
requested permission to do likewise.
At the hearing, counsel for General Counsel conceded that until November 9
and for a period of 2 or more years, Child engaged in the normal activities of a
shop steward in behalf of the Upholsterers on company time and property with
no criticism of any sort from the employer.
Counsel for General Counsel similarly conceded that Respondent properly could
have refused admission of Child to the plant on November 9, because Child was
not on active duty and that Child should have, though he did not, seek permission
from Respondent to enter the plant. She further conceded that if a representative
of the Teamsters, e.g., a business agent, had entered the plant on November 9 and
engaged in the activities, during working hours and on compnay time, in which
Child engaged, Respondent could have had the Teamsters' representative arrested
as a trespasser or thrown him off the premises.
Counsel for General Counsel made it clear she did not contend that Child had
any right on Respondent' s premises to talk to the shipping department employees on
November 9. She conceded further that had Child been discharged for that
activity, a complaint would not have issued.
General Counsel did contend, however, that on November 12, Child, while on
working time, engaged in protected activity in talking to employees, who were not
organized, during their working time, to encourage them to join a labor organiza-
tion other ,than the one to which he belonged and of which he was shop steward.
It was further contended that, in context, Child had the protected right to cause
fellow employees to stop working for a comparatively short period of time to en-
gage in a conversation about their joining a labor organization other than the one
to which Child belonged.
I do not agree. I recognize that at Brooks' request, Child spent some considerable
time on November 12, notifying fellow employees of a meeting Brooks wished
to have with them at break time about a matter of mutual concern to the em-
ployees and Respondent. General Counsel argues in the brief that this is indica-
tive of a lack of genuine concern as to what Child did on his working time. To
the contrary, I find it demonstrates that Respondent permitted Child to engage in
other than customary work where it suited Respondent's legitimate interests and
especially where the Upholsterers had a legitimate interest. So, Child could engage
in his shop steward activities which were in accord with Respondent's and the
Upholsterers' interests as established by contract.
As shop steward, Child had an obligation, no doubt, to attempt to secure com-
pliance with working conditions as fixed by his principal, the Upholsterers, and
Respondent through contract. I find he ignored not only the Respondent but the
contract when, unannounced, he entered Respondent's premises on November 9,
and took up the working time of employees in the shipping and upholstery depart-
ment to advise them of a November 12 meeting. I see no excuse for this utter
disregard of a contractual provision requiring that access to the Respondent's
plant by an authorized representative of the Upholsterers be obtained "through the
office of the Employer, but such permission shall not be denied." Especially is
this so, when an authorized representative of the Upholsterers, Frank LaCasella,
requested and was granted permission to visit the employees at and during the
IOWA BEEF PACKERS, INC. 615
same time Child was on the premises interfering with production, without per-
missions Further, Child was certainly not on the premises on November 9 as
a shop steward, policing a contract, nor was he there as an employee ready to work.
As he described himself to Brooks, he was just there to do what Gonzales wished
and he appeared to have little concern for his or the Upholsterers' duties under the
contract but appeared to be determined to let Gonzales' will be done.
In addition, I find that Child violated section XV of the contract, either as a
representative of the Upholsterers or as an employee who received its benefits, by
talking to employees during their worktime on November 9 and 12, in that he
was failing to "Cooperate to maintain high standards of . . . job performance."
Similarly, it is obvious to me that Child, by talking to employees and a supervisor,
on November 9 and 12 as found herein, violated section XV of the contract by
failing to "Cooperate to keep at a minimum the time devoted by officers, stewards,
and members in handling grievances, soliciting union members, ... or engaging in
other Union activities on the Employer's property during working hours." There
is no substantial evidence that Child effectively could not have engaged in these
activities on nonworking time.
Further, I find that the manner of Child on November 9 and 12, especially when
dealing with Brooks, was arrogant, possibly occasioned by a misunderstanding of
what Gonzales expected of him. Further, finding that Brooks on November 9
legitimately and clearly directed Child to desist from engaging in Teamsters and
Furniture Workers' union activity on company time, I further find that Child de-
liberately and contumaciously ignored Brooks' directions, on November 12, perhaps
mistakenly believing that Gonzales rather than Brooks could direct his working
time activities even though the particular activities did not involve his duties as
shop steward.
In sum, I find General Counsel has not established by a preponderance of the
credible and substantial evidence that Respondent violated the Act as the com-
plaint alleges.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and has been at material times, an employer within the mean-
ing of Section 2(2) of the Act and is engaged in commerce within the meaning of
the Act.
2. The Upholsterers, the Teamsters, and the Furniture Workers are, and have
been at all times material to this proceeding, labor organizations within the mean-
ing of Section 2(5) of the Act.
3. The record does not establish that Respondent has engaged in the unfair labor
practices, or any of them, alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
the entire record in this proceeding, it is recommended that the Board enter an
order dismissing the complaint.
=u It is needless to speculate whether request for permission would have been denied.
Iowa Beef Packers, Inc. and Frank Laird
Iowa Beef Packers, Inc. and District No. 3, United Packinghouse
Food and Allied Workers , AFL-CIO . Cases Nos. 18-CA-1500
and 18-CA-1510. September 17, 1963
DECISION AND ORDER
On May 14, 1963, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
144 NLRB No. 64.