Rowe Furniture Corp. of Missouri, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1972

200 N.L.R.B. 155 (N.L.R.B. 1972)

ROWE FURNITURE CORP. OF MISSOURI 155
Rowe Furniture Corporation of Missouri, Inc. and
Upholsterers' International Union of North Ameri-
ca, AFL-CIO
Rowe Furniture Corporation of Missouri, Inc. and
Upholsterers' International Union of North Ameri-
ca, AFL-CIO, Petitioner. Cases 14-CA-6092,
14-CA-6114, 14-CA-6135, 14-CA-6154, and
14-RC-6641
November 8, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 28, 1971, Trial Examiner Thomas S.
Wilson issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and the
General Counsel filed exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order, as herein modified.
Respondent excepts to the Trial Examiner's find-
ings that Respondent violated Section 8(a)(1) and (3)
of the Act by discharging Freda Aldridge Dunning.
We find merit in this exception.'
Respondent assertedly discharged Dunning on
February 2, 1971, for neglecting her work, interfering
with the work of others, persistent conversations
during worktime, and using abusive language-all
after several warnings. The Trial Examiner found
that these were not the reasons Mrs. Dunning was
discharged. Rather, he found that Respondent's vice
president and general manager, Bohon, knew or
suspected that Dunning was prounion and might
lead others to vote for the Union, and that he fired
her for this reason, in violation of Section 8(a)(3) and
(1) of the Act. We believe this conclusion of the Trial
Examiner is not supported by the record as a whole.
The Trial Examiner cites evidence that showed that
Dunning did talk a lot while working, that she did
yell to people on occasion, and that she let out with
I Member Kennedy dissents from his colleagues' finding that Respon-
dent violated Sec 8(a)(l) and (3) of the Act in discharging Ray Calton.
The finding of violation as to Gilton appears to be predicated upon
speculation that a fellow employee informed on Gilton even though the
affirmative evidence is to the contrary Gilton, who was a probationary
employee, had a poor attendance record and had been tardy reporting to
work On the day of his discharge, the Respondent learned that he had
falsified his employment record by omitting Florsheim as a previous
exuberant shouts as breaktime approached. Further,
she had received a written reprimand about a month
before her discharge for using abusive language
toward a supervisor and had received oral repri-
mands for talking too much on the job. Although the
Trial Examiner stated that Respondent's evidence
did not show that any of these instances had
occurred for a month or more prior to her discharge,
this finding directly follows a summary of Respon-
dent's evidence, including evidence that utility man
Armes had in the preceding 2 weeks spoken to
Dunning and Sharon Haffard on a couple of
occasions about talking too much, and that he had
done this under orders of Bohon and Foreman
Sisson.
More significantly, the Trial Examiner's finding
that Bohon knew or suspected that Mrs. Dunning
was prounion is not supported by the record. Mrs.
Dunning's union activities were limited to signing a
union authorization card and attending one of the
union meetings. Although Mrs. Dunning testified
that she had spoken on occasion to fellow employees
about the Union, she also testified that she had not
spoken to any supervisors of it.
The Trial Examiner based his finding in part on the
fact that Mrs. Dunning was an extrovert who was
very friendly and talkative and inferred that it must
have been known by Bohon that she was for the
Union.
The Trial Examiner further inferred that Respon-
dent knew of Mrs. Dunning's union activities based
on the testimony of utility man Armes. Armes
testified that employee Sharon Haffard rode to work
with him and when he learned of the union
organizing he asked Haffard if she knew anything
about it. When Haffard replied that she did know of
it, Armes stated that, although he did not know her
opinion of it, he opposed the Union and, since they
were neighbors and friends, he thought it best for
them not to discuss it. The Trial Examiner inferred
from this that Armes must have sensed that he and
Haffard held divergent views about the Union. He
further inferred that since Haffard and Dunning
were friends, Armes must have known that Haffard
and Dunning did not hold divergent views on the
Union. We believe this inference to be too broad to
support a finding that Respondent suspected Mrs.
Dunning of being prounion, especially since Armes
testified that he and Haffard said nothing more
employer. When discharged at Florsheim, the Manager was physically
beaten by Gilton. As found by the Administrative Law Judge, Gilton
"practically went berserk" when he was discharged by Respondent As he
was leaving, Gilton threatened: "I'll get everyone of you sons of bitches and
if you don't believe them [me?], you dust ask over at Floresheim"
Even if Member Kennedy were to find that Gilton's discharge violated
the Act, he would find his conduct immediately following his termination
would bar his reinstatement.
200 NLRB No. 1
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the Union and there is no evidence to the
contrary.
We are unwilling to find that an employer has
unlawfully discharged an employee because of her
union activities where, as in this case, these union
activities are minimal, the only findings that the
Respondent knew of the employee's union activities
are based on inferences which we feel are too broad
to adopt, and where the employee had admittedly
carried on the unprotected activity for which
Respondent assertedly fired her. For these reasons,
we will dismiss the allegation in the complaint
relating to the discharge of Mrs. Dunning.
Unlike our colleague, we affirm both the Trial
Examiner's finding that Respondent discharged
employee Gilton in violation of Section 8(a)(1) and
(3) of the Act, and his recommended Order reinstat-
ing Gilton with backpay.
Respondent's asserted reason for discharging
Gilton, that he had falsified his employment applica-
tion and not mentioned his trouble at Florsheim,
does not withstand scrutiny. Respondent's general
manager, Bohon, testified that he received an
unsolicited call from the manager of Florsheim on
the morning of February 4, 1971, in which such
manager told Bohon of trouble they had had with
Gilton when he was employed there. Thereafter,
Bohon checked Gilton's employment application and
found that Gilton had not mentioned Florsheim as a
former employer, and he had indicated that he had
not had trouble with any prior employer. Because of
this, according to Bohon, he then decided to
discharge Gilton. The Trial Examiner did not credit
this account, and found that the Florsheim incident
had nothing to do with Bohon's decision to fire
Gilton, but rather was brought into this case by
Gilton himself after he was discharged. The record
supports such a finding.
At the time Gilton was told of his discharge by
Foreman Sisson (which was about 4 p.m.), the only
reasons given were that he missed too much work
and that his work was poor. No mention was made
of his falsifying his work application or of his trouble
with Florsheim. Further, even later, when Gilton
returned and accused Respondent officials and a
fellow employee, Jarrell, of "framing" him, there was
admittedly no mention of the Florsheim incident by
Bohon. It was at that time that Gilton mentioned his
trouble at Florsheim. Although Bohon and Sisson
differ in their testimony as to when and by whom the
decision to discharge Gilton was made, Sisson
admittedly was told nothing by Bohon, and knew
nothing of the Florsheim incident or the application
falsification at the time he discharged Gilton.
The reasons given to Gilton for his discharge also
appear to be a pretext. Although his attendance
record was somewhat poor, he had never received a
reprimand for it. Further, his attendance was the
subject for discussion between Bohon and Sisson the
day before Gilton's discharge, and they had decided
at that time, against discharging him.
Thus dismissing the application falsification and
the attendance record as the reasons for Gilton's
discharge as being pretextual, we come to the real
reason for the discharge, Gilton's prounion sympathy
and activity. On the afternoon Gilton was dis-
charged, fellow employee Jarrell went to Sisson's
office twice. In the short span between these visits to
Sisson, Jarrell asked Gilton if he was still for the
Union, to which he received an affirmative answer.
Shortly after Jarrell's second visit to Sisson's office,
Gilton was summoned to Sisson's office and dis-
charged.
Although Jarrell denied speaking to Sisson of
Gilton's position on the Union, his contradictory
testimony, combined with the events immediately
surrounding his visits to Sisson, provide grounds for
the inference that he did speak to Sisson of Gilton.
In agreeing with the Trial Examiner that Respon-
dent did have knowledge of Gilton's union activities
however, we do not rely solely on an inference that
employee Jarrell told Sisson about such activity, but
also on the fact that Respondent had its utility men
(found herein to be supervisors), watching for union
activity which they were to report to Respondent.
Since Gilton had signed a union authorization card,
had attended a union meeting, and had discussed the
Union around the shop with other employees,
including Jarrell, it is inconceivable that' Respondent,
in its efforts to learn of all the union activity around
the shop, failed to learn of Gilton's stand.
For the foregoing reasons, as well as others detailed
by the Trial Examiner, we find Gilton was dis-
charged in violation of Section 8(a)(3).
We also find that Gilton's activities at the time of
his discharge do not negate his reinstatement rights,
in light of Respondent's unlawfully causing Gilton to
lose his job. Further, as stated by the Trial Examiner,
because of the passage of time, it seems reasonable to
believe that there will not be a repetition of such an
incident.
We find merit in some of the General Counsel's
exceptions to the Trial Examiner's failure to find
violations of Section 8(a)(1) where he did find that
interrogations as to union activities had in fact been
engaged in by supervisory employees.
In his Decision, the Trial Examiner found that
when discriminatee Charles Millican had been
interviewed for employment by Respondent's per-
sonnel manager, Don Green, the latter inquired of
Millican if the plants he had worked in before had
been unionized, asked what Millican thought of
ROWE FURNITURE CORP. OF MISSOURI 157
unions, and explained that the Respondent was not
unionized and that things were different there in
Poplar Bluff than they were in Michigan.
The Trial Examiner also found that after Bohon
had discharged discriminatee Trout, Bohon inquired
if Trout had heard anything about the Union, to
which Trout replied, "You are sunk."
The Trial Examiner further found that the day
after the second union meeting, while utility man
McMeans and employee Charles Dunning were
conversing about the meeting, McMeans inquired,
"What's Robert Hasting anyway, is he some kind of
a wheel down there?"
We find the foregoing incidents constitute coercive
interrogations relating to union activities, in violation
of Section 8(a)(1) of the Act.
As we agree with the Trial Examiner that Respon-
dent's unfair labor practices have made the holding
of a free and fair election in the near future an
impossibility, we will dismiss the petition in Case
14-RC-6641 and order Respondent to bargain with
the Union concerning the wages and working
conditions of employees in the unit found appropri-
ate by the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below
and hereby orders that the Respondent, Rowe
Furniture Corporation of Missouri, Inc., its officers,
agents , successors , and assigns , shall take the action
set forth in the Trial Examiner's recommended
Order, as modified.
1. Insert the following as paragraph 1(c) and
reletter the present paragraph 1(c) as 1(d):
"(c) Interrogating employees as to their union
membership or activities, or as to the union member-
ship and activities of other employees."
2. Delete from paragraph 2(a) the name of Freda
Aldridge Dunning.
3. Substitute the attached notice for the Trial
Examiner's notice.
IT IS FURTHER ORDERED that the petition in Case
14-RC-6641 be, and it hereby is, dismissed.
any term or condition of employment of any of
our employees because of their membership in or
activities on behalf of the Union or of any other
labor organization of their choice.
WE WILL offer to Richard G. Trout, Ray
Gilton, Ronnie Roach , and Charles J. Millican
immediate and full reinstatement to his former
job or, if that job no longer exists, to a
substantially equivalent position , without preju-
dice to his seniority or other rights and privileges,
and pay each of them for any loss of pay he may
have suffered by reason of our discrimination
against him together with interest thereon at 6
percent per annum.
WE WILL NOT interrogate our employees con-
cerning their union membership or activities or
the union membership or activities of other
employees.
WE WILL , upon request, bargain collectively in
good faith with Upholsterers' International Un-
ion of North America, AFL-CIO, as the exclusive
representative of our employees in the unit found
by the National Labor Relations Board to be
appropriate, with respect to rates of pay, wages,
hours of employment and other terms and
conditions of employment and, if an understand-
ing is reached , embody same in a written signed
agreement.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise
of their rights to self-organization , to form, join,
or assist labor organizations, including Upholster-
ers' International Union of North America,
AFL-CIO, to bargain collectively through a
bargaining agent chosen by our employees, to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or
protection, or to refrain from any such activities.
RowE FURNITURE
CORPORATION OF
MISSOURI, INC.
(Employer)
Dated By
(Representative ) (Title)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT in any manner discriminate in
regard to the hire and tenure of employment or
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 210 North 12th Boulevard, Room
448, St. Louis, Missouri 63101, Telephone
314-622-4142.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon charges duly
filed on February 8 and 22 and March 5 and 16, 1971, by
Upholsterers' International Union of North America,
AFL-CIO, herein referred to as the Union or the Charging
Party, the General Counsel of the National Labor
Relations Board, herein referred to as the General
Counsel' and the Board, respectively, by the Regional
Director for Region 14 (St. Louis, Missouri), issued its
complaint dated March 31, 1971, against Rowe Furniture
Corporation of Missouri, Inc., herein referred to as the
Respondent. By order dated April 13, 1971, said Regional
Director consolidated the aforementioned complaint of
those consolidated cases with the Charging Party's objec-
tions to the election conducted on March 3, 1971, among
Respondent's employees in the following described appro-
priate collective-bargaming unit:
All production and maintenance employees at the
employer's Poplar Bluff, Missouri plant, excluding
over-the-road truckdrivers, office clericals, guards,
professional employees, and supervisors as defined in
the Act.
on the ground that the 8(a)(1) allegations in the complaint
covered the undetermined objections to the election.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (3), and
(5) and Section 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, herein referred to as the
Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice, a hearing thereon was held in Poplar
Bluff, Missouri, on June 14, 1971, before Trial Examiner
Eugene E. Dixon2 and before me from July 6 through 9
and from July 27 through 30, 1971. All parties appeared at
the hearing, were presented by counsel, and were afforded
full opportunity to be heard, to produce and cross-examine
witnesses, and to introduce evidence material and pertinent
to the issues. At the conclusion of the hearing oral
argument was waived. Briefs were received from General
Counsel and the Charging Party on September 13, 1971.
Respondent filed no brief.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and
accordingly I find:
Rowe Furniture Corporation of Missouri, Inc., is, and
has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the
State of Missouri.3 At all times material herein, Respon-
dent has maintained its principal office and place of
business at 2700 Central Street in the city of Poplar Bluff,
and State of Missouri, herein called the Poplar Bluff plant.
Respondent is, and has been at all times material herein,
engaged in the manufacture, sale, and distribution of
upholstered furniture and related products. The Poplar
Bluff plant is the only facility involved in this proceeding.
During the year ending December 31, 1970, which period
is representative of its operations during all times material
hereto, Respondent, in the course and conduct of its
business operations, purchased and caused to be transport-
ed and delivered to its Poplar Bluff plant, textiles, wood,
metal, stuffing, and other goods and materials valued in
excess of $50,000, of which goods and materials valued in
excess of $50,000 were transported and delivered to its
plant in Poplar Bluff, Missouri, directly from points
located outside the State of Missouri.
Accordingly, I find that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE UNION INVOLVED
Upholsterers ' International Union of North America,
AFL-CIO, is a labor organization admitting to member-
ship employees of Respondent.
III. THE UNFAIR LABOR PRACTICES AND OBJECTIONS
TO THE ELECTION
A. Supervision at the Poplar Bluff Plant
Respondent's parent, Rowe Furniture Corporation, is a
Virginia corporation headquartered in Salem, Virginia.4
Presently it operates at least seven plants manufacturing
furniture in Virginia and other localities. According to its
stationery it is celebrating its 25th anniversary year in 1971.
In 1968 Respondent commenced the manufacture of
upholstered living room furniture in Poplar Bluff, Missour-
i, under the name in the caption hereof and moved into its
present air-conditioned plant about March 1970.
Since its inception the Poplar Bluff plant has been in
charge of Robert Jackson (Jack) Bohon, vice president of
Respondent and general manager of the Poplar Bluff plant
who, in turn, reports to Lloyd Rowe, vice president plant
operations, in Salem, Virginia. Bohon himself has been an
employee and/or official of Rowe for some 24 years.
By December 14, 1970, there were about 79 production
1 This term specifically includes the attorney appearing for the General ment until July 6, 1971. He heard no testimony in the case.
Counsel at the hearing. 3 Respondent's parent company is Rowe Furniture Corporation head-
2 All Trial Examiner Dixon did on June 14 was to hear argument on quartered in Salem, Virginia.
Respondent's motion to postpone the hearing and to grant the postpone- 4 See Rowe Furniture Corporation, 145 NLRB 1175.
ROWE FURNITURE CORP. OF MISSOURI
employees, exclusive of over-the-road truckdrivers, office
clericals, guards, professional employees and officials
employed by Respondent at its Poplar Bluff operation.
The testimony at this as well as in the R case,
14-RC-6641, shows that Bohon, as general manager of the
Poplar Bluff plant had full supervision of the whole plant.
Under Bohon there was Don Green in charge of purchas-
ing andpersonnel and, according to Respondent's evidence,
two "foremen" in charge of all the plant production, to
wit, Trubie Graham in charge of what might be called the
"soft goods" departments5 and John Willie Sisson in
charge of the "hard goods" departments .6 The evidence
also disclosed that Trubie Graham was in an airplane
accident on December 13, 1970, which incapacitated him
until May 1971 during which time Sisson added supervi-
sion of the soft goods departments to his supervision of the
hard goods departments.
According ' to Respondent here, and in the R case, the
above-mentioned were the only "supervisors" in the plant,
hence I "foreman" to 79 production employees.
The evidence further disclosed that there are in Respon-
dent's plant eight separate departments with a varying
number of production employees in each. There are also
eight so-called utility men. Three of these utility men, to
wit, Jack Heaton, Oliver McMeans, and Tom Bounds,
oversaw the assembly department which consists of two
automated lines where the frames are upholstered. Line I
here consists of 5 employees ' while line 2 has 10 such
employees. At all times material here utility man McMeans
oversaw line 1 while utility men Heaton and Bounds, at
least until the December 13 accidem, oversaw line 2. There
were other utility men in the other departments, such as
Jerry Jett in the frame and spring department, Jerry Armes
in the cutting department and during the crucial period,
due to as injury to utility man Miller in the airplane
accident, in the sewing department for example.
At the R case proceeding in St. Louis on January 21,
1971, Respondent maintained' that none of these utility
men had any authority which qualified them as supervisors
within the meaning of the Act as they only acted upon
direct orders of their "foreman." On the other hand, the
Union in the representation proceeding argued that in
some instances at least, these eight employees known here
as "utility men" were supervisors within the meaning of the
Act. The Regional Director agreed with Respondent that
the utility men were merely employees and, thus, included
the utility', men in the unit thereby making them eligible to
vote in the March 3, 1971, election.
The complaint herein alleges that John Heaton and
Oliver McMeans, two of the aforementioned utility men,
acted as "agents" for and on behalf of Respondent.
At the instant hearing further details as to the superviso-
ry status of these eight utility men was brought out in the
evidence, as is permissible. Southern Airways, 124 NLRB
No. 93, enfd. in part 290 F.2d 5,19 (C.A. 5).
In addition to these utility men Respondent had what it
called "floaters," who were employees with skills sufficient
so that they could fill in for absent employees or help train
new employees. Floaters filled'' in or trained as ordered by
5 The soft goods departments would consist of fabric storage , cutting,
sewing, and cushion stuffing.
159
the utility men. No claim is made that the floaters were
supervisors.
As noted, following the airplane accident of December
13 in which "foreman" Trubie Graham and utility man
Miller of the sewing department were temporarily incapa-
citated at least until about May, "foreman" Sisson added
the supervision of the soft ware departments , theretofor
under Graham, to his own hardware department and
utility man Jerry Armes added the sewing department,
where Miller had been prior to the accident, to his own
cutting department. In addition utility men Bounds and
McMeans of the assembly department were told to report
to Sisson through utility man Heaton who was freed of his
duties on line 2 so that he would be available to do what
Respondent chose to call , but not define, "more leg work"
for Sisson.
Heaton testified that, although there was no change in
his authority, he had to do more "on my own" because of
the unavailability of Sisson due to his added supervisory
duties in the soft ware department.
About the time of the representation hearing in St. Louis
on January 21 Heaton reported to Bounds that Bohon
intended to "downgrade" the utility men but without
changing their duties, responsibilities, or pay in an effort to
have the Regional Office include utility men within the
appropriate unit so that they could vote in the coming
representation election.
Before that hearing utility man Kennedy was told by
Bohon that "he would possibly have to sacrifice me and
Jack Heaton and possibly another one in order to get the
rest of them [utility men] a vote."
By order dated February 3, the Regional Director did
hold that "the evidence [at the representation hearing]
failed to show that the utility men possess any of the
indicia of supervisory authority."
The evidence presented at the instant hearing proved
that utility men were hourly paid. Their rate of pay was
unspecified but approximated 50 cents an hour above the
base rate of employees earning at a rate of 120 percent
production and thus equaled or bettered that of an
employee producing at that rate on incentive pay.
Further, and contrary to the Regional Director's finding,
the evidence, as will be disclosed hereinafter, proved that
utility men:
1. Could, and did, issue orders on their own to other
employees, which orders were to be obeyed on pain of
discharge;
2. Could, and did, orally reprimand employees for
alleged deficiencies in production or conduct;
3. Could, and did, issue written reprimands under their
own name with the threat that further deficiency would
result in discharge;
4. Could, and did, make effective recommendation
regarding alleged deficiencies of employees to Bohon
and/or Sisson with discharge resulting; and
5. Could, and did, threaten employees with discharge
on their own.
At this hearing, as at the representation case hearing,
Respondent claimed that utility men did the above only at
6 Hard goods included the frame and spring departments, assembly
department , and shipping department.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the explicit direction of Bohon and/or Sisson. That
contention was disproved here.
In addition, in an apparently unguarded moment, Sisson
issued a written reprimand to employee Freda Aldridge
Dunning for using "profane language" to a "supervisor,"
Jerry Armes.
The truth of the matter is that Respondent at Poplar
Bluff had, in fact, "downgraded" its supervisory staff at
least one step in addition to changing the almost universal
terms in use .7 In fact Bohon was the general manager.
Graham and Sisson were superintendents of the soft ware
and hardware departments, respectively, rather than
"foremen." And "utility men" were, in fact, the depart-
ment foremen in the usual sense of that term.
Under the facts disclosed herein there can be no
question, and I therefore find, that the utility men at
Respondent's Poplar Bluff plant had the requisite authority
and qualify as supervisors within the meaning of the Act.
B. Basic Facts
Jack Wuichet, an organizer for the Union, began getting
in touch with Respondent's employees about organizing
Respondent's plant about December 1, 1970. By December
7 he had set up an organizing committee consisting of
employees Robert Hasting, Philip Randall, Tom Parks,
and Jim Blakeney. James (Tom) Parks left Respondent's
employ a few weeks later to attend college and was
replaced on the committee by Ronnie Roach.
By December 16, 1970, 49 employees had executed
unambiguous cards authorizing the Union to bargain
collectively with Respondent on their behalf out of a staff
which in December numbered 71 excluding the utility men
or 79 including them. Hence at that time the Union was the
majority representative of Respondent's employees in the
appropriate production and maintenance unit.
By letter dated December 17, the Union notified
Respondent that a majority of its employees had executed
such authorization cards and demanded recognition and
bargaining, accompanied with the offer to allow a neutral
third person to determine the question of the authenticity
of the signatures and the majority.
Prior to the receipt by Respondent of this letter on
December 18, employee Robert Hasting had informed
utility man Heaton that the Union was writing a letter
demanding recognition. Heaton admitted receiving this
information from Hasting but could "not remember" if he
had passed that intelligence on to Bohon or any other
Respondent official.8
Ten days later on January 28, 1971, Respondent
answered, refusing recognition on the ground that "circum-
stances coming to our attention convince us that your
union does not represent a majority of our employees" and
suggesting that the issue be settled by a Board-conducted
election.
7 At the instant hearing even Respondent's able counsel once apologized
for becoming mixed up on the local nomenclature because it differed from
that in use at other of Respondent's plants.
8 Heaton was a most amenable witness on direct examination by
Respondent while answering leading questions but a most conveniently
forgetful one on cross -examination . His obvious tendencies did nothing to
enhance his credibility- From other matters admittedly reported to officials
In fact the Union had filed a petition for certification on
December 18.
On January 19 the utility men attended their regular
weekly utility study group presided over by Bohon. This
time Respondent's production manager Lloyd Rowe from
Salem, Virginia, was in attendance . The matter of the
representation hearing scheduled for St. Louis on January
21 came up. Those utility men present were advised that
the company officials did not then know if utility men
would be classed as employees in the unit or as supervisors
so that it would be best if the utility men said nothing
about their feelings towards the Union. During the meeting
Rowe remarked that, "We had licked the Union before
and can do it again." It was at this meeting that Bohon told
the men that the best thing they could do would be to
"keep your eyes and ears open and report back so that he
could nip it in the bud." 9
The testimony is in conflict as to whether Bohon actually
used the words "union" or "union activities" in this
connection or not. Heaton testified that he understood the
statement to refer to a "slowdown." However utility men
Kennedy and Bounds, at least, understood Bohon to be
referring to union activities.10
The Board held an election among Respondent's
employees in the unit then found appropriate, including
the utility men, on March 3 which resulted in a tie vote of
36 for and 36 against union representation . Respondent
challenged the ballots of four discharged employees, to wit,
Ronnie Roach, Freda Aldridge, Ray Gilton, and Charles
Millican. Those ballots have not been opened or counted.
All these discharges are alleged here to have been
discriminatory and in violation of Section 8(a)(1) and (3) of
the Act in the instant complaint.
The Charging Party filed timely objections to the
election on various grounds, some of which are here
alleged to constitute interference , restraint, and coercion,
as well as due to the unopened challenged ballots of the
four discharged employees.
By order dated April 13, 1971, the Regional Director
eliminated certain of these objections but referred the
remainder to the Trial Examiner hearing this unfair labor
practice for determination.
Believing that these objections can best be handled as an
integral part of the charges of unfair labor practices against
Respondent here rather than as a separate individual
matter, this Trial Examiner will so handle them and so will
proceed forthwith to the unfair labor practice allegations.
C. Discharges and Other Discrimination
1. Richard Troutt
Richard Troutt was employed by Respondent on the
assembly line under Foreman Sisson and utility men
Heaton, McMeans, and Bounds from July 1970 to the date
by Heaton during this period, the inference is that he reported this
intelligence also.
9 On direct examination Bohon acknowledged that one of his favorite
expressions is "keep your eyes and ears open and keep me informed as to
what is happening."
iS This no doubt accounts for the numerous "reports from the floor"
which permeated this hearing, especially from Heaton
ROWE FURNITURE CORP. OF MISSOURI 161
of his discharge on December 17, 1970. He was never
reprimanded, orally or in writing, during his employment.
On December 8 Troutt signed a union authorization card
for employee Phillip Randall in the Respondent's employ-
ee parking lot and thereafter had verbally let his fellow
employees know at work that he was in favor of the Union.
At 10:I5 a.m. on December 17, 1970, Bohon sent word
to Bounds to bring Troutt to his office where Bohon
accused Troutt of having shot floater Bill Walker that
morning with a staple fired from an air gun and using
profane language to Bounds, both, according to Bohon,
dischargeable offenses and notified Troutt that he was
discharged. Troutt denied that he had shot Walker that day
and suggested that he was not the only employee who shot
staples from the air guns. Despite these denials Bohon
discharged Troutt and ordered Bounds to get Troutt's tools
and escort him from the plant. While Bohon and Troutt
were alone in the office awaiting Bounds' return, Bohon
inquired if Troutt had heard anything about the Union.
Troutt's answer was, "You are sunk." 11
While present at this meeting Bounds did not deny to
Bohon Troutt's alleged use of profane language towards
him although he did deny that Troutt had ever used such
language to him at the hearing.
The Respondent's story is somewhat different. Accord-
ing to Bohon, in the early afternoon of December 16 while
looking out from his mezzanine office, he saw Troutt fire
an air gun toward Walker. At that distance Bohon could
not see whether a staple left the air gun but testified that he
did see Walker "flinch" and, therefore, assumed that the
gun had been loaded. Recognizing the obvious danger
involved but being too busy at the time to do anything
about it then, Bohon made a note on his calendar to
remind hire of the matter the following day.
Early in the morning of December 17 Heaton reported to
Bohon in his office, according to Heaton, that he had seen
Troutt shoot Walker that morning.
Thirty minutes later Bohon called a conference in his
office of Sisson, Heaton, and Bounds in which Bohon told
the others that he had seen Troutt shoot Walker that
morning and that, if after an investigation that should
prove that to be true, he was discharging Troutt. There-
upon, according to Bohon, Heaton stated that no investiga-
tion was necessary as he had seen Troutt shoot Walker that
11 This latter part of Troutt's testimony Bohon denied based on the fact
that, as he originally testified, the first he knew of the Union was when he
received the letter demanding recognition on December 18. Subsequently in
his testimony Bohon acknowledged that he had heard rumors or "reports
from the floor" of the Union since the opening of the plant in 1968
Admittedly Heaton had learned a few days before December 18 from
Hasting that the Union was going to send Respondent this letter demanding
recognition. Utility Man Bounds also knew of the Union from Troutt and
from Hasting some weeks before the Troutt discharge. "Reports from the
floor" in Respondent's plant were matters picked up from conversations
heard on the floor and reported to management by utility men. Sisson
acknowledged that these "reports from the floor" constituted, in more
common parlance, a "grapevine" and that he, Sisson , had never known a
plant without one.
Under these facts I cannot credit Bohon's denial and must find that
Bohon knew both about the existence of the union organizing campaign and
Troutt's participation therein at the time of the discharge.
12 Bounds' testimony was different still. He claimed that the first he
heard of the Troutt discharge was when Heaton came to hum on the line and
ordered him to take Troutt to Bohon's office to be discharged
morning. Thereupon, without further investigation, Bohon
sent Bounds to get Troutt for the discharge interview.12
The net result was that Troutt was discharged that
morning and left the plant. He has never been reinstated.
Early the following morning, December 18, Sisson called
Bounds to his office stating that he had seen Bounds
talking to Troutt that morning a short distance from the
plant and wanted to know what they had been talking
about. Bounds answered that Troutt had been telling him
that Troutt wanted his paycheck at noon. Sisson answered
that he "thought that Richard [Trouts] had something to
do with the Union and hoped to hell that [Bounds] didn't
have nothing to do with it." 13
I agree with Bohon that shooting staples from an air gun
at another employee is a highly dangerous occupation and
should be prohibited. But the fact of the matter at
Respondent's plant is that every employee there, including
Heaton, McMeans, and Bounds, as well as the ordinary
employees had been guilty of this same offense since the
plant opened. There was admittedly no company rule
prohibiting such use of the air guns. Such shooting was a
common practice throughout the plant, as all the utility
men and employees who testified admitted even though
Bohon testified that he never before had seen any such act.
Heaton testified that he recognized the danger of shooting
staples at employees but he did not know that it was
serious enough to cause an employee's discharge.
After Troutt's discharge Bohon gave orders to Heaton to
relay to Bounds and McMeans that, if they ever saw
anyone else shooting staples, they were to usher the guilty
employee out of the plant' even before reporting the
incident to Bohon. It thus appears that, for this offense at
least, utility men were given the right to preemptorily
discharge employees.
Under the circumstances here I am convinced, and
therefore find, that Bohon and Sisson both had knowledge
at least as early as December 15, despite their denials, of
the union organizing drive then going on in the plant, that
this alleged shooting episode was used as a pretext for the
discharge of Troutt and that, in fact, Bohon used this
pretext as his opening gambit against the union drive
because Respondent knew or considered Troutt to be
prounion and in an effort to head off that organizational
drive in violation of Section 8(a)(3) and (1).
In addition I also find that Sisson warned Randall about
13 Sisson admitted having called Bounds to his office after seeing Bounds
in the industrial park near the plant with Troutt that morning but denied
having said anything about the Union based on the fact that Sisson "did not
think" he had been told anything about the Union at that time.
However, acting upon a "report from the floor" brought to him by
Heaton, Sisson on December 15 about 1.30 p.m. admittedly called in Philip
Randall, a union committeeman who had been spending a considerable
amount of time in the evenings at this time with Wuichet soliciting
employees to sign union authorization cards, and told Randall, "I
understand things aren't goingjust right around here to suit you," and, after
Randall stated that things were just fine, added, "Well, I heard you have
been keeping some bad company ." After Randall had denied knowing who
he meant by "bad company," Sisson said that he thought Randall did and
then reminded Randall that, "And you know I didn't have to give you your
job back the first time you worked here." According to Sisson and Heaton,
the "report from the floor" Sisson acted on was only to the effect that
Randall "had been doing a lot of running around at night" and was "living
it up"
I found Sisson to be an unconvincing witness.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "bad company," i.e., the union organizer, he had been
keeping in order to coerce Randall into abandoning his
efforts on behalf of the Union in violation of Section
8(a)(1) of the Act.
2. Treatment of Robert Hasting
Robert Hasting has been an employee of Respondent
almost from the beginning of Respondent's operation in
Poplar Bluff. During the critical period here he regularly
worked positions 7-8 on line 2 under Heaton and
McMeans as utility men. Admittedly he was one of the
better and more versatile upholsterers.
In December 1970, he became probably the most active
employee member of the employees' organizing committee
which was formed by Wuichet about December 7 and
secured more signed authorization cards than any other
employee. It was Hasting who admittedly told Heaton
several days before December 18, the day of its receipt, of
the letter which the Union was sending Respondent on the
question of recognition.14 Even earlier Bounds had also
learned of the Union's organizing effort from Hasting and
from Troutt. In fact Bohon admitted knowing that Hasting
was the first employee to display a union sticker on his
automobile. Thus there can be no doubt that Respondent
well knew of Hasting's prounion sympathies as well as the
fact that he was the leader of the organizing attempt.
On January 18 the Union held an open meeting attended
by about 35 employees.
On January 19 the regular utility men's meeting was held
where Bohon and Rowe spoke as found heretofore.
It was just prior to the St. Louis representation hearing
that Bohon told utility man Kennedy that he might have to
"sacrifice" Heaton and Kennedy and perhaps another
utility man in order to get the remainder the right to vote in
the election as part of the appropriate unit. This testimony
corroborated Heaton's quoting of Bohon to Bounds that
the utility men were to be "downgraded" without any
change in their authority, responsibility, or pay.
Rowe, Bohon, and another attorney from Machen's firm
appeared on behalf of Respondent at St. Louis. The Union
was represented there by Organizer Wuichet, Attorney
Armbruster, and employees Hasting, Roach, and Blake-
ney. Hasting, who had been subpenaed for the hearing,
made arrangements with Bounds to be absent on January
21, a Thursday. Heaton noted the absence of these three
employees on that day.
Upon his return from St. Louis Heaton inquired of
Hasting as to how much the Union was paying him and
inquired as to what had happened at the meeting.
McMeans made much the same inquires of Hasting.
On February 19, the day after the Union's second
meeting, McMeans asked Charles Dunning, "What's
Robert Hasting anyway, is he some kind of a wheel down
there?"
14 When asked if he had reported this intelligence to Bohon, Heaton
answered: "I don't remember if I did ... I could have and forgotten." As
noted, Heaton excelled in forgetting.
15 In this conflict of testimony I must credit the testimony of Hasting
who appeared to be an honest, straightforward witness who was telling the
truth and whose testimony in this and other regards conformed with
Respondent's written records. On the other hand, Heaton's amenability on
Within a day or two after the St. Louis meeting Heaton
and McMeans admittedly began to watch Hasting at work
on the assembly line minutely. Instead of the usual 2-or-3-
minute watch which had been customary, both utility men
began to stand over Hasting at his work for periods
ranging from 15-30 minutes each. Finally Hasting became
irritated enough and told them, in vain, "to get off my
back." This accomplished nothing as the two utility men
continued their practice until 2 months or so before the
present hearing when their inspection returned to normal.
Heaton and McMeans acknowledged that during this
period they did increase their inspection of Hasting's work.
Their explanation was that within a day or two of the St.
Louis meeting the quality of Hasting's work slumped so
precipitously and badly as to require such close inspection.
The utility men attributed Hasting's alleged slump to
nervousness over getting behind in his work and to another
"report from the floor," which Bohon also received, that
Hasting had been told by the Union that he would be
discharged, because of his activities for the Union
apparently. Bohon admitted receiving this "report from the
floor," and even though believing that it accounted in part,
at least, for Hasting's alleged poor quality, also admitted
that he made no attempt to reassure Hasting in any way
that the alleged report was false. Nor did Sisson who knew
of this report. On the other hand, however, Hasting
testified, and Heaton denied, that prior to the March 3
election Heaton told Hasting, "It don't matter, some day,
somewhere, somehow, I will find you and we will get
you „i5
In addition beginning on Saturday, January 23, and
continuing thereafter until the week ending March 21
Hasting was required to work overtime on innumerable
occasions even though Hasting complained to Heaton that
he did not like or want to work overtime. When, on
February 2, Hasting complained to Heaton about over-
time, Heaton replied that "we don't want you going to all
those union meetings." 16
Respondent's records prove that Hasting worked a
weekly average of 41.63 hours during the last 6 months of
1970 as against an average of 42 hours per week for the
first 6 months of 1971. But even here there is a difference.
In 1970 the whole plant worked a 9-hour day from August
to the middle of October whereas the overtime Hasting
worked in 1971 occurred between January 23 and the week
ending March 28 during which period Hasting was
individually selected to work overtime with a small crew
despite his known objection to overtime. The whole plant
was not working overtime.
Respondent's witnesses, Sisson and Heaton, explained
the continual selection of Hasting for overtime work
during 1971 on the grounds that, when repairs were to be
made, they selected the best men in the plant with the
requisite skills and versatility for the work to be done.
Admittedly Hasting had both the skills and the versatility.
direct and forgetfulness on cross led him on occasion to contradict himself
within minutes , in instances on the same page of the transcript.
16 Heaton denied making this statement . But he also denied at first that
Hasting had ever complained about having to work overtone . Heaton
finally had to change this testimony because even Bohon had received
reports of Hasting's complaints about having to work overtime.
ROWE FURNITURE CORP. OF MISSOURI 163
So, according to them, they had to continue to select
Hasting for overtime work in order to get that repair work
done.
This testimony raises an interesting dilemma. If Respon-
dent is to be believed, it seems that, during overtime hours,
Hasting's services were essential because of his acknow-
ledged versatility and excellent workmanship whereas,
during regular hours during the same exact period of time,
Hasting's workmanship had become so bad that both
Heaton and McMeans were required to stand over him at
work in order to get passable quality out of him. Thus
Respondent appears to be walking down the opposite sides
of the same street.
This dilemma appears to dissolve , however, in the face of
other records ' of the Respondent which prove that a
majority of Hasting's overtime hours were spent on work
known as "cleaning," which is unskilled work and thus did
not require either Hasting's skills or versatility.
The evidence is so strong and so convincing that I must
find, as I here do, that Respondent deliberately and with
malice of forethought simultaneously harassed Hasting by
standing over his shoulder during his working hours and at
the same time forced him to work unwanted overtime
hours for the purpose, as Heaton told him, "to keep him
from attending all these union meetings" and/or to find
"something, somewhere , somehow" with which to dis-
charge him because of his known leadership of the union
organizing efforts at the plant , all in violation of Section
8(a)(1) and (3) of the Act.
3. Freda Aldridge Dunning
Freda Dunning, nee Aldridge , began her employment
with Respondent on February 4, 1969 , in the sewing
department . Trubie Graham was her "foreman" until his
accident of December 13 when John Sisson replaced him
as such "foreman" until Graham's return in May 1971. At
the same time utility man Jerry Armes added the sewing
department to his cutting department , replacing utility
man Miller who was injured in this same airplane accident.
Freda17 and Sharon Hafford worked at machines side by
side and some short distance from the other sewers in the
sewing department . They were good friends . In fact Sharon
had ridden to work with Freda until Sharon and her
husband moved into a house belonging to Jerry Armes'
grandfather which was next door to the house of Jerry
Armes . Thereafter Sharon rode to and from work with
Armes.
Freda was paid at a base rate of $2. 10 per hour and was
one of the few sewers in the department who produced at a
rate of 100 percent or more . Sharon's production rate was
not as good as Freda's.
Conversation between the sewers was commonplace in
the sewing department . Throughout their careers with
Respondent Freda and Sharon talked together even during
working hours . Under Graham's foremanship this habit of
theirs of talking did not appear to bother Respondent or to
interfere with the work of others because, while occasional-
ly they were told they were talking too much , neither was
ever given a reprimand for such behavior.
Then in December the Union commenced to organize.
Charles Dunning, who was to marry Freda the following
April, signed a union authorization card on December 8.
Freda and Sharon signed similar cards a week later on
December 15.
Thereafter Freda did receive one written reprimand from
Sisson which read as follows:
You are being reprimanded for using abusive (sic)
language toward your superviser (sic), any further
misconduct on your part and you will be discharged.
[Emphasis supplied.]
At some undisclosed date Bohon dated this reprimand in
parenthesis as "Jan. 2 app." 18
The facts leading to this reprimand were that on this
particular day Sharon had been shouting across the
sewing-cutting room area trying in vain to attract Armes'
attention as she required his help . In order to assist Sharon,
Freda, who is chunky, good-natured, and definitely an
extrovert, rose from her machine and yelled across the
noise of the sewing machines to the far end of the area:
"Armes, get your ass over here."
Promptly upon receipt of this order which he, like
everyone else in the area, heard , Armes, describing himself
as somewhat "embarrassed ," promptly proceeded as
directed and took care of Sharon 's problem as well as
indicating to Freda that her language had been impolite.
Sisson estimated that this episode took place between 2
weeks and 2 months before Freda's discharge on February
2. Whenever the reprimand was actually given by Sisson,
Armes had suggested that Freda not be reprimanded for
the episode.
Sisson's decision to overrule Armes on the reprimand
may have been influenced by the fact that once or twice
Freda had greeted his appearance in the area with a shout
of "Hey Grouchy ." According to Sisson , he ignored these
greetings.
During Freda 's last few months at work Armes admit-
tedly had told Freda and Sharon a few times that the
"bosses" were on his back because they had seen the two
talking and requested that they "keep it down a little."
Similarly Armes did the same to other sewers in the
department. There was no company rule against talking
and, according to Armes, was permissible so long as it "did
not get out of hand."
About 11 : 30 a.m . on February 2, the day when Sharon
was sick and Armes had instructed Freda to give Sharon
assistance, Sisson ordered Armes to send Freda to him.
Upon her arrival , Sisson proceeded to discharge her
because of her conduct and because her talking was
"bothering other people in her department." Freda
objected that she did not talk anymore than anyone else in
the department which Sisson disputed , adding that he "was
only doing what Mr. Bohon had told him to do." Sisson
told Freda not to leave the room as Armes would get her
belongings from the plant . Freda objected and went back
for her belongings herself where she met Bohon and asked
why he had fired her.
17 Mrs. Dunning will be referred to herem as Freda to distinguish her is The "app." meant "approximately" according to Bohon.
from her husband Charles Dunning.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bohan took Freda to his office and told her that he was
firing her because she talked too much and bothered the
people around her. Freda inquired if anything was wrong
with her work. Bohon answered in the negative, adding
that Freda "could probably run 20 percent higher" and
that he "hated to fire [Freda] because I would be a loss to
the Company, that when he put another girl on that same
job that she could only probably run 30 percent." Freda
suggested that, if she, Freda, was fired for talking, then
Sharon should be fired also for the same reason. Bohon
answered that, "if Sharon was guilty and she was proven
guilty, she was proven to be an active part of the
conversation, that I would discharge her also." Freda
begged for a second chance and promised not to do any
talking. Bohon refused her a second chance.
Thus was Freda discharged. She has never been
reinstated.
Freda requested and received the following letter dated
February 16 over Bohon's signature which reads as
follows:
This is to advise that you were employed at our plant
from February 4, 1969, until February 2, 1971. During
this period you worked as a seamstress.
You were discharged for neglecting your work and
interfering with the work of other employees in
persistent conversation and sometimes abusive lan-
guage during work time-all after several warnings.
Considered solely on the surface and in a vacuum the
contention that Freda was discriminatorily discharged on
February 2 appears to be somewhat nebulous. The
evidence consists largely of the facts that Freda and her
friend Sharon signed union authorization cards on the
same day in December and that Freda, along with about
35 other employees, had attended the union meeting on
January 18 plus the fact that approximately 2 weeks
thereafter she was fired precipitously in the middle of the
day on February 2.
However considered as an integral part of the whole
picture here, General Counsel's contention makes sense.
The timing of Freda's discharge is interesting. Bohon
abruptly in the middle of the day discharged Freda or. a
day when there appeared to be nothing to trigger such
discharge. It was a day when Freda, acting on direct orders
from Armes, was tending an ailing Sharon, much of the
time in the restroom and thus off the floor where whatever
conversation Freda had could not have "disturbed the
work of others." Yet Sisson, stating that he was acting on
the direct orders of Bohon, and Bohon both informed
Freda that she was being discharged for talking too much
and disturbing the work of others. Bohon acknowledged
that he realized that Freda had been off the floor a lot that
day and assumed (correctly) that she had been in the
restroom. Consequently Bohon could have seen Freda
talking to and disturbing Sharon even less than usual on
this particular day due to her numerous absences with
Sharon in the restroom. He testified that, when he did see
her talking to Sharon, Freda seemed to have been the
instigator of the conversations with Sharon an apparently
unwilling participant which under the circumstances of
Sharon's illness would appear to have been perfectly
normal and natural that day. Yet it was this day that
Bohon chose to discharge Freda precipitously and without
warning.
Why the sudden discharge on this particular day? Why
was Bohon so adamant about Freda's dismissal at this time
while simultaneously stating how he "hated" to see her go
because he realized that her 100-percent production would
have to be replaced by a new girl whose production would
amount to about 30 percent? Obviously Freda's production
was not the cause of the dismissal-but rather argued
strongly for Freda's retention.
At the hearing Bohon , Sisson, and Armes all referred at
length to various episodes where Freda had emitted loud
"whoops" at breaktimes or at the end of the day, where
Freda had yelled "Hey Grouchy" to Sisson across the
room, where Freda had scattered dust and lint around the
area by dusting off the lamps with an airhose, where Freda
with a shout had transformed a float into a scooter as she
left the department at the end of the day, and, of course,
her loud and preemptory order to Armes to get over to
help Sharon. Also, on orders from Sisson or Bohon, Armes
had on a couple of occasions in the preceding 2 weeks
spoken to Freda and Sharon about talking a bit too much.
The evidence leaves no doubt but that Freda liked to talk,
was as described a "showoff," was uninhibited and a
complete extrovert.
But Respondent's evidence proved that none of the
above particularized incidents referred to had occurred in
the period of a month or more prior to her discharge
except, perhaps, the incident of Freda's preemptory order
to Armes which Bohon had noted on the written
reprimand as having occurred on January 2 "approximate-
ly." Hence it is clear that none of the episodes to which
Respondent referred had "interfered with the work of
others" for a month or so before Freda's discharge and,
besides, the interference from these related incidents would
have been minimal-even disregarding the fact that they
might even have helped morale. Quite obviously there was
more involved in this discharge than either Sisson or
Bohon told Freda.
It was about this time that Respondent began tallying up
the possible election result. Admittedly Bohon mentally
computed the votes using such objective standards as the
warmth of an employee's greeting and whether the
employee's eyes rose or fell upon his approach, etc., to
determine that individual employee's probable vote in the
election. But the evidence proved that Bohon did not rely
exclusively on the above objective criteria because he
asked at least one utility man, Kennedy, how each of the
eight employees under him would vote and discussed the
possibilities of the upcoming vote with Sisson19 who, with
Heaton, figured the election to be a 38-38 tie, a remarkably
accurate poll as events turned out, which, of course, had
necessitated an equally accurate determination of the
preference of each individual employee. In fact Bohon
even visited Trubie Graham in the hospital after the
accident to get his opinion as to how his employees would
vote. Hence, it is clear that Respondent was keeping a close
19 Sisson testified that he "could not recall" if Bohon's inquiries
descended to the preference of the individual employees.
I
ROWE FURNITURE CORP. OF MISSOURI 165
and accurate tally of votes and knew that one vote might
decide the election.
Bohon disclaimed having any knowledge as to how
Freda felt about the Union. With a young lady as friendly
and talkative as Respondent maintained the extrovert
Freda to be, this is a surprising contention especially for
one as interested in the election results as Bohon and with
all the "reports from the floor" he was receiving. Bohon
was not one to close his ears to information. In fact he
sought it.
This claim is even more surprising in Freda's case
because Bohon had a direct pipeline to a definitive
determination of Freda's preference through the Armes-
Sharon Hafford carpool and babysitting arrangement.20
Armes testified that he first learned of the Union just
about the time of the St. Louis meeting, no doubt at the
utility men's meeting on January 19, and on the next
morning asked Sharon during the drive to work if she knew
anything about the Union. Naturally Sharon did and said
so. Whereupon, according to Armes who acknowledged
that he personally,opposed the Union, he answered, "Well,
I don't know of [what] your opinion is on it, I have my
opinion, we both have a right to think what we want, we
are neighbors and friends and we will just not discuss it
and that way we will remain neighbors and friends." It
appears from this revealing testimony that Armes some-
how sensed that he and Sharon held divergent views
regarding the Union. So, according to Armes, nothing
further was ever said about the Union 21 But he also knew
that Freda and Sharon remained friends and hence did not
hold divergent views on the Union.
But, even accepting Armes' testimony at face value, with
an employee as talkative as Respondent claimed Freda to
be and with as much research into the question of the
employees' preferences on the union matter as Bohon was
doing on his own and with Trubie Graham, Sisson, and
Heaton, among others, it would be a miracle if Bohon was
in the dark as to Freda's position. Consequently, I cannot
credit Bohon's denial of knowing that Freda was proumon.
Then the reasons which both Bohon and Sisson gave
Freda for abruptly terminating her employment on
February 2 were obviously untrue,22 inapplicable or
outdated, at least on the day of the discharge because that
day, acting upon direct orders from Armes, Freda was
caring for the ailing Sharon largely in the restroom where
she could not have been interfering with the work of others
on the floor. Furthermore the other specific objectionable
conduct referred to all was a month or more in the past.
With, a tight representation election coming up where
every vote is going to count, it is dangerous for an
employer who does not want a union in the plant to allow a
talkative, showoff, extrovert to spend too much time
talking in the restrooms-even though she may be under
20 Each day 'utility man Armes drove Sharon to and from work and Mrs.
Armes babysat the Hafford children.
21 Neither side called Sharon as a witness.
22 See Shattuck Denn Mining ' Corporation v. N L.RB., 362 F.2d 466 (C.A.
9, 1966).
23 Jarrell testified that on this occasion he was called to Sisson's office
and asked about a prospective employee who had listed Jarrell as a
reference.
24 Gilton already knew from previous conversations about the Union
orders to tend a sick fellow employee. Extroverts have a
tendency to be leaders and influence people on issues.
When considered as an integral part of the whole, the
discharge of Freda on February 2 fits into the pattern of
the other discharges during this period and convinces me
that Bohon discharged Freda Dunning on February 2
because he knew, or suspected, that she was prounion and
might lead others to vote for the Union in violation of
Section 8(a)(1) and (3) of the Act . I so find.
4. Discharge of Ray Gilton
On November 18, 1970, Gilton began his employment
with Respondent in the frame and spring department
working on a two-man operation where he was trained by
utility man Jerry Jett and floater Paul Jarrell. Gilton
learned the job in average time and worked at it, teamed
with James (Tom) Parks, until about a week before his
discharge on February 4 when Parks, who had been on the
employees' organizing committee, left Respondent's em-
ploy in order to go to college. Upon Parks' departure,
Jarrell began training new employee Gene Mohr to team
up with Gilton.
Gilton executed a union authorization card on Decem-
ber 14, attended the January 18 union meeting, and also
discussed the need for a union in the plant with his fellow
employees and Jarrell.
Gilton was absent a total of 4 days during his
employment with Respondent and was late reporting for
work on occasion but had received no written or oral
reprimands for those or other reasons. His personal
relationships with his fellow workers and supervisors was
good.
Gilton was absent on February 3 due to automobile
trouble.
He reported back to work again on February 4 and was
again working with Mohr and Jarrell. About 2:30 p.m. Jett
asked Gilton to work overtime that evening. Gilton
demurred a bit because his car was still in the repair shop
and he had arranged a 4 p.m. ride to the shop. However
when Jett suggested that he would drive Gilton to the
repair shop, Gilton readily agreed to the overtime work.
About an hour later Jarrell left the job and went to
Sisson's office and then returned to work.23
Upon his return from the office Jarrell inquired of Gilton
if he were still for the Union. Gilton answered that he
thought the Union could do more for him than the
Company and that the Company had had its chance so
that he was going to give the Union its chance 24
A few minutes thereafter Jarrell returned to Sisson's
office.25
About 3:45, after Jarrell had again returned to work, Jett
appeared and told Gilton that Sisson wanted to see him in
the office. Upon his arrival in company with Jett, Sisson
with Jarrell that Jarrell feared that, if the Union succeeded, Respondent
would move its plant back to Virginia and, therefore, he was against the
Union.
After first denying that any such conversation took place , Jarrell testified
that "it was possible" that he and Gilton discussed the Union at this time.
25 Jarrell testified that he went to Sisson's office on this occasion to
discover for Mohr what Mohr's wage rate was. Mohr had already worked
for Respondent for about a week at this time.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Gilton that he was being discharged because he had
missed too much work and because of his poor work.
Gilton inquired if the discharge was caused by his union
activities. Sisson answered that the Union had nothing to
do with it.26 Gilton then asked for his check but was told
that he could only get that on payday, Friday. Then Gilton
warned Sisson that if Respondent "beat him out" of his
unemployment, he (Gilton) "would see [Sisson ] around."
The session became heated on Gilton's part before he
finally departed about 4 p.m.
Gilton returned to the plant about 5 p.m. He was mad.
Seeing Jarrell, Gilton accused him of having "framed"
Gilton by reporting his prounion sentiments to Sisson.
Jarrell denied the accusation. Gilton practically went
berserk. He attempted to start a fight with Jarrell and
threatened "to get" Sisson and other of Respondent's
officials if they "did him out" of his unemployment. As
Gilton was leaving, Bohon who was present throughout
heard Gilton say, "I'll get everyone of you sons of bitches
and if you don't believe them [me?], you just ask over at
Florsheim." The others present heard much the same.
After a considerable period of tension, Gilton finally left
the plant with no physical damage done.
As Jarrell left the plant on his way home, Gilton
followed Jarrell's car in his own automobile until Jarrell
managed to elude Gilton en route.
Thus was Gilton discharged.
As requested, Gilton received the following letter of
explanation dated February 16 over the signature of
Bohon:
This is to advise that you were employed at our plant
from November 19, 1970 until February 4, 1971, as a
probationary frame assembler.
You were discharged on February 4, 1971 for having
falsified your employment application,27 for an unac-
ceptable attendance record, mediocre work perform
ance, and unwillingness to work overtime as needed
-all during your probationary period. Further,
during the conversation leading to, and following your
discharge, you created a dangerous situation by your
foul language and threats to employees of the Compa-
ny.
Thus the testimony makes out a strong, clear case that
Gilton was discrimmatorily discharged.
I make this finding despite the fact that Sisson testified
that he had no knowledge of Gilton's union sympathies.
This denial comes with poor grace in the light of the
intensive research which was being done on that subject by
Bohon, Sisson, Heaton, et al. and by a man who was expert
enough on that subject to prophesy a tie election. I do not
credit the denial.
Jarrell also denied having informed Sisson that Gilton
was still for the Union only a few minutes prior to the
discharge. But Jarrell also had originally denied having
talked about the Union to Gilton in the short space of time
between his two visits to Sisson but finally acknowledged
that "it was possible" that he and Gilton had discussed the
Union in that short interval between visits.
I therefore have no hesitation, despite these denials, in
26 Sisson denied knowing anything about Gilton's union sympathies.
27 This is the first mention of this basis for discharge.
finding that Sisson and Respondent had knowledge that
Gilton was in favor of the Union before the discharge on
February 4.
At the exit interview Sisson informed Gilton that he was
being discharged because of his absences, tardiness, and
poor workmanship. However the evidence shows that on
February 3, the day Gilton was absent due to automobile
trouble, Bohon and Sisson had conferred about Gilton and
had decided against discharging him for those very same
causes. The only new element added on February 4 was
the confirmation of Gilton's stand about the Union.
But, on the other hand, Bohon contended that the real
reason for ordering the discharge of Gilton was his
falsification of his job application. He testified that early
on the morning of February 4 he received an unsolicited
telephone call from the manager of the Florsheim Shoe
plant across the street informing him that that morning
while bringing his wife to work at Respondent's plant, the
manager had noted Gilton going into the plant to work.
The manager then informed Bohon that Gilton had
previously worked at Florsheim and, when discharged, had
physically beaten up the manager. This was news to Bohon
but it convinced him that Gilton was not the type of
employee Respondent wanted. After the phone conversa-
tion Bohan checked Gilton's job application form and
discovered that Gilton had omitted Florsheim as a
previous employer and had answered "No" to the question
as to whether the applicant had had trouble with any prior
employer. This, according to Bohon, decided him that
Gilton had to be discharged. So, after that discovery, that
morning Bohon called in Sisson and instructed him to
discharge Gilton "at the end of the day" but to be sure to
have somebody with him at all times during the exit
interview with Gilton.
Bohon admits that he did not tell Sisson about the
Florsheim telephone call or the falsified application prior
to the discharge. He testified that the reason that he
concealed this information was to prevent Sisson from
getting "nervous."
Gilton corroborated the facts disclosed in this telephone
call and that he had deliberately falsified his job applica-
tion. There is, however, no corroboration as to the date of
this telephone call. The Florsheim manager was not called
as a witness.
There are a number of facts here which tend to refute
Bohon's testimony of having received this unsolicited
telephone call from Florsheim on the morning of February
4.
1. Bohon did not discharge Gilton immediately upon
the receipt of the Florsheim information and his check of
the application form. If this information made Gilton as
undesirable an employee as Bohon claimed, the normal
thing would seem to have been to have fired Gilton
immediately.
2. Bohon did not tell Sisson, his second in command,
anything about the Florsheim information or the falsified
job application. This seems passing strange . Bohon's
purported excuse, i.e., that knowing these facts might make
Sisson "nervous," justifies the use of the expression
ROWE FURNITURE CORP. OF MISSOURI 167
"poppycock." Bohon could have saved Sisson's nerves by
discharging Gilton himself. He had done so with others.
3. Bohon specifically ordered Sisson to discharge
Gilton "at the end of the day." This undue delay does not
appear to fit the crime as seen by Bohon.
4. Bohon's instruction to Sisson that he should be sure
always to have somebody present at the exit interview with
Gilton implies that Bohon feared the possibility of
violence. However, Sisson testified that such an instruction
was not unusual. Some companies like to have witnesses
around.
5. Bohon and Sisson disagree on when the decision was
made to discharge Gilton, with Sisson claiming that he
made the decision in the middle of the afternoon of
]February 4.
6. About 2:30 p.m. on that day, February 4, Gilton was
requested by Jett to work overtime that evening. This
established fact refutes both Bohon and Sisson because, if
Sisson knew that Gilton was to be discharged "at the end
of the day," or had made up his own mind to discharge
Gilton that day, Gilton would hardly have been asked to
work overtime. Respondent's answer, of course, would be
that it was Jett who made the request of Gilton and he
knew nothing of the impending discharge. However
Respondent's evidence regarding the supervisory status of
utility men was that Sisson-not the utility man-selected
the employees to work overtime. Once again Respondent
would like to walk on both sides of the street.
7. By his admitted reticence Bohon permitted Sisson to
give Gilton false reasons for his discharge, to wit, absences,
tardiness, and poor workmanship, whereas the real reason,
according to Bohon, the falsification of the application,
was never mentioned to anyone. Of course, according to
Bohon, Sisson was ignorant of the real reason Bohon had
ordered the discharge. But only the day before, February 3,
Bohon and Sisson had allegedly talked over Gilton and
decided against firing him for the very reasons Sisson gave
for the discharge at the exit interview.
8. Even though Bohon was present at the 5 p.m. ruckus,
Bohon never mentioned the Florsheim incident even
though its disclosure would have shifted the onus to
Gilton, eliminated his charge of frameup against Jarrell,
and probably stopped the whole incident. But tense as the
situation was, Bohon did not say one word about
Florsheim.
9. But Bohon's memory was vivid that, in order to
prove the reality of the threats he was making, Gilton's
parting shot was, "If you don't believe me, ask them down
at Florsheim." This was the sole mention of Florsheim
during this whole incident. It appears to have brought the
Florsheim incident into this case.
For the Florsheim manager to have first noted that
Gilton was an employee of Respondent on this particular
day, February 4, would have been pure coincidence,
possible but not probable, particularly as his wife had been
working for Respondent at least as long as Gilton had. The
odds against such a coincidence must be rather large. The
28 The record does not disclose what penalty, if any, was accessed and
paid after this plea.
Sisson testified to another occasion when Gilton was at the bowling alley
watching while Sisson and Jarrell were bowling for Respondent's team As
to this Sisson testified, and I ordered it stricken, that Gilton was watching
odds in favor of Bohon's investigating Florsheim after
Gilton's parting remark must be rated at about 100
percent.
For these reasons and because of the numerous gaps in
Respondent's credibility throughout this hearing, I am
convinced, and therefore find, that the Florsheim incident
came to light as a result of Gilton's 5 p.m. statement and
not prior to the discharge.
Accordingly the facts require, and I find, that Gilton was
discharged by Respondent on February 4 because of his
known preference for union representation and in order to
discourage union membership and activity in violation of
Section 8(a)(1) and (3) of the Act.
Unhappily that does not end this matter because I am
sure that, if Respondent had filed a brief herein, it would
argue that, even if Gilton were discriminatorily discharged,
his actions and threats thereafter disqualify him for
reinstatement.
It is true that at the time of the discharge Gilton
threatened to "get" Jarrell and all the Respondent officials
present in vulgar, profane language, that he followed
Jarrell's automobile as Jarrell left the plant, that some time
after the interview Gilton ran into the Jarrell family at a
shopping center, got into another fracas during which Mrs.
Jarrell apparently was knocked down for which, when
Jarrell swore out a warrant against him, Gilton pleaded
guilty.28
Gilton's threats at the time of his discharge and the
indications he gave of an intent to make good on those
threats thereafter are not to be condoned. Gilton was dead
wrong.
But, on the other hand, Respondent here is far from
being without fault. It lied to Gilton. It gave Gilton good
cause to believe that it had indeed "framed" him.
Respondent caused him to lose his livelihood in violation
of the law and it provoked the whole incident. Up until
that event the evidence proved that Gilton got along well
personally in the plant.
Because of the time which has now elapsed since that
event and because the hearing herein no doubt cleared the
air by making each side more cognizant of the problems of
the other, it seems reasonable to believe that there will be
no repetition of the incident and, consequently, I feel that
the usual remedy of reinstatement with backpay will be
appropriate here.
5. Ronnie Roach
Ronnie Roach was employed by Respondent on May 25,
1970, and worked continuously thereafter exclusive of a
period when he was absent from work due to an on-the-job
injury in August. He returned to work permanently on
September 24.
He signed a union authorization card on December 11,
1970, and replaced Tom Parks on the employees' organiz-
ing committee when Parks left for college.
Roach originally had worked in the frame assembly
the match "with the intention , I'm sure, with trying to start some trouble."
Factually, however, nothing happened except that one of the wives called
the police. Thus this incident proved to be more a case of nerves than
anything else.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department but, after his injury, became a spring installer.
During his employment Roach received one written
reprimand but was spoken to about his frequent tardiness.
Roach had been afflicted with ulcers since childhood
which caused him to be absent occasionally or to have to
see a doctor. This physical ailment he had noted on his job
application form. But Bohon testified that he knew nothing
about it until called to his attention during the investiga-
tion in this case.
On January 21 Roach attended the St. Louis representa-
tion hearing with fellow employees Robert Hasting and
Blakeney. It was well known to Respondent's supervisory
staff that Hasting and Roach were the first two employees
to display union automobile stickers on their automo-
biles.29
About 3:50 p.m. on February 4 utility man Jett requested
that Roach work overtime that evening. Roach demurred
saying that he had some important business to attend to
and then, while Jett was still standing looking at him,
Roach added, "Well, if you want to know what kind of
business it is, it is going to a union meeting." Roach
worked an hour overtime that night and was ordered to
report the next morning at 6:30 a.m., instead of the usual
starting time of 7:30 a.m., so as to get in another hour of
overtime work.
On February 5 Roach reported as requested and worked
until about 7:30 a.m. when he asked Jett for time off
because of stomach cramps. About 10 minutes later after
Jett had apparently consulted with Sisson, Roach was
excused from work.
That afternoon Roach returned to the plant to pick up
his weekly paycheck. After some confusion as to who had
his check, Sisson sent him to Don Green's office where
Sisson wanted to talk to him. In Green's office Sisson told
Roach that Roach "had been missing too much work and
that he couldn't have it no more and that he was going to
have to let [Roach] go." Sisson also mentioned Roach's
tardiness and said that he did not want any hard feelings
between them.
Thus was Roach discharged.
As requested, Respondent under date of February 16
sent Roach the following letter explaining the cause of his
discharge:
This is to advise that you were employed at our plant
from May 25, 1970, until February 5, 1971. You
worked as a frame assembler for 7 months, and as a
spring installer for the remainder of your employment.
You were discharged on February 5, 1971 for unwill-
ingness to work overtime as needed, and for an
unacceptable attendance record, having been absent
for 25 days, and tardy 27 days during the year 1970.
After reprimands you made no improvement in 1971
having been absent 4 days.
The contentions raised in this letter require a look at the
record, to wit, Respondent's Exhibit 12 which is a
compilation prepared by Respondent of Roach's attend-
ance record throughout his employment. This record shows
that in 1970 Roach was absent a total of 26 days of which
21 were due to an on-the-job injury, and he was tardy 31
times running from 1 to 15 minutes each. This record
further shows that, after receiving a written reprimand on
November 12, 1970, Roach left the plant once at 11:30
a.m. for which there is a doctor's report in the file, was late
twice (once for 4 hours 15 minutes and the other for 4
minutes) and was listed as "out" three times for 1 hour 22
minutes, 1 hour 54 minutes, and on December 31 for 3
hours 29 minutes.30 It was agreed that all Roach's absences
had been "excused absences."
The record further shows that for the year 1971 Roach
was absent three times which included January 21 when
Roach, as Respondent well knew, was in St. Louis for the
representation hearing, and was never tardy. Roach's
attendance record was perfect from the date of the St.
Louis meeting to about 8:30 on the morning of February 5
when Respondent excused him because of illness. Later
that day Respondent chose to discharge him.
At the hearing Bohon conceded that there had been
some "improvement" in Roach's attendance during 1971
despite his letter to the contrary.
As for Roach's "unwillingness to work overtime as
needed," Roach acknowledged that during his period of
employment he had objected to working overtime three or
four times. While Roach demurred to working overtime on
February 4 because, as he informed Jett, of "important
business-a union committee meeting ," he not only
worked the requested hour overtime on that day but also
reported an hour early on February 5 for another
requested overtime. This tends to refute the contention
contained in the February 16 letter.
Hence when Respondent discharged Roach on the
evening of February 5, Roach's attendance record had
been perfect for better than 2 weeks-until he became
ill about 7:30 that last morning-and, in addition, he had
worked an hour of overtime on both February 4 and 5. On
the other hand, he was known to have been absent on
union business in St. Louis on January 21, was known to
have a union sticker displayed on his automobile, and had
demurred temporarily at working overtime on the day
before his discharge because he preferred to attend a union
committee meeting.
All the facts here lead but to the conclusion, which I here
find, that Respondent discharged Ronnie Roach on
February 5, 1971, because he was known to be one of the
leaders of the Union and in order to discourage union
membership and activities among its employees in viola-
tion of Section 8(a)(1) and (3) of the Act.
6. Charles Millican
Charles Millican was employed by Respondent as a
dispatcher for the two assembly lines from the date of his
hire in October 1970 until his discharge on February 19,
1971.
When Don Green, personnel manager, interviewed
Millican at the time of his hire, Green noted that much of
Millican's prior employment had been in the State of
Michigan and inquired if those plants had been unionized,
and then, after an affirmative answer, asked what Millican
29 Bohon had seen lots of these auto stickers. Heaton knew of six or 3° These `buts" may have been for dental appointments which
seven cars with such stickers on them Sisson saw none. Respondent had arranged for Roach.
ROWE FURNITURE CORP. OF MISSOURI
thought of unions. Milhcan's answer was noncommittal,
some good, some bad. Green thereupon explained that
Rowe had no union and that things were different in
Poplar Bluff than they were in Michigan. He also inquired
as to why Millican sought a job in Poplar Bluff and if he
would be permanent. Millican's answers apparently satis-
fied Green so Millican was hired that day with Sisson
explaining his job to him.
As the dispatcher it was Millican's job to supply the two
automated assembly lines with their 15 operators with all
the necessary frames and materials for them to turn out
completely finished living room upholstered furniture at
the end of the line. This meant that Millican had to push
stacked frames on vehicular "floats" from the frame and
spring department to the head of the automated line. He
then removed the frames from the float and put an
individual frame on a vehicle known as a "buck" which
was attached to the line and automatically thereafter went
to each operator on that line. After completion the
furniture was removed from the buck by the cleaners and
the bucks returned to the head of the assembly line by an
automated drag line. In addition it was Millican's duty to
secure the necessary covering, cotton, cardboard, orna-
mental wood pieces etc. which would be used on each piece
of living room furniture. As was the case with all the men
in that department Millican worked under the supervision
of Jack Heaton, Tom Bounds, and Oliver McMeans, the
utility men.
Millican learned his job in a normal period of time. His
job evaluation sheet indicates that he received one written
reprimand which reads as follows: "You are being
reprimanded for not doing your job properly, not following
orders or instructions, and leaving your job area too often.
S/ Jack Heaton 1-15-71.1131
About a week prior to the aforementioned reprimand
Heaton had ordered Millican to sort out some arm
cushions. When Millican told Heaton that he was too busy,
did not have the time and, besides, that was not part of his
job, Heaton retorted, "Any time I tell you to do anything
it's your job-so you will either do it or else I will send you
home." Millican and Heaton thereupon took the matter to
Sisson who listened to the story and then stated, "if he
don't have the time to do it he can't do it." Subsequently
Heaton told Millican that he did not like people who
couldn't do what he told them right then and there without
having to make a big issue of it and taking it to the "big
boss."
Millican acknowledged that his work had been criticized
three or four times during his employment. On one
occasion about 2 months after Millican started work, the
cleaners were slow returning bucks to the assembly line.
Sisson noting this told Millican to go help the cleaners if
that ever happened again and he had time. Then a short
time later Heaton criticized Millican for having gone and
helped the cleaners and being away from his work area too
often. Millican was confused.
Also prior to his discharge Millican had been told to be
more careful while moving floats loaded with frames by the
31 Both Sisson and Heaton testified that Heaton administered this
reprimand on direct orders of Sisson . Sisson was not present at the
169
frame and spring department to the assembly line so that
these frames would not fall.
Millican attended the February 18 union meeting at
which time he secured a 15 inch by 4 inch union
automobile sticker reading "Vote U. I. U. AFL-CIO"
which he promptly placed on the back window of his
automobile.
The following morning, February 19, Millican drove his
automobile so decorated into the employees parking lot
and parked. Parking immediately behind him was another
automobile containing Jack Heaton and Oliver McMeans
who watched Millican leave the car and enter the plant.
Just before noon that day no bucks were coming back
from the cleaners. Heaton inquired why Millican did not
have enough "setups," i.e., frames on bucks, for the
assembly line . Millican told him that no bucks were
coming back and asked Heaton to get him some . Heaton
terminated the conversation by saying "I will see about
that after lunch ." Soon after lunch Millican ran out of
bucks entirely and again requested Heaton to get him
some. The line began to run down for lack of bucks.
Millican asked Heaton for permission to go home as he
was not feeling well. About 2 p.m. Heaton took Millican to
see Sisson . Sisson said that Millican was not keeping up
with production, was holding up too many people, and he
thought "it was time for us to part company." Millican
argued that he could not keep up production if he could
not get bucks for setups . Sisson answered, "Well, that's
your job to make sure you keep bucks up there." Millican
reminded Sisson that, when he tried to get bucks, he had
received a written reprimand for doing it. Sisson replied,
"well, that's too bad" and handed Millican his check and
asked Heaton to take him out of the plant.
Under date of February 25 Respondent advised Millican
of the reasons for his discharge in the following letter:
This is to advise you that you were employed at our
plant from October 12, 1970, to February 19, 1971.
During this time you worked as a dispatcher, supplying
the workers in department number 8 cover assembly.
You were terminated for
(1) Your refusal to obey orders.
(2) Performing your work in a very careless manner.
(3) Failure to keep up your work, thereby holding up
a large number of workers-all after proper warning
against such misconduct.
One other thing occurred on the morning of February
19. Sometime that morning while the trouble with the
bucks was going on, Heaton ordered Millican to get a
certain wood part. Millican answered that he did not have
the time at the moment but would when he could.
Thereafter, according to Heaton, after giving Millican this
order, he stood watching Millican and saw him go over to
the cutting area and start playing with an air hose. After
watching Millican play "about" 10 minutes, Heaton
thereupon went and complained about the trouble he was
having with Millican to Sisson who said that he "would go
ahead with it." According to Millican, after receiving the
order, he went to ask the cutter for some cotton which was
also needed for the assembly line but had to wait there
reprimand.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while Heaton and the cutter conversed during which time
he did examine the air hose which he claimed he had never
seen before. No doubt something of this nature occurred
sometime that morning but not as either one of these
witnesses testified. One thing is clear: Millican did not get
the wood part as ordered.
According to Sisson's testimony, after Heaton's report
on the trouble he was having with Millican, Sisson went to
Bohon and they decided to discharge Millican that
afternoon. Sisson testified that he did not "remember" if he
and Bohon discussed Millican's union sympathies during
that conversation nor did Sisson "remember" if Heaton
had said anything to him about Millican's having a union
sticker on his car.32
There is no doubt that Millican was not the perfect
employee. On occasion frames fell off the floats as he was
pushing them to the assembly line. But the evidence
showed that frames occasionally fell no matter who was
pushing the floats, both before and after Millican's tenure.
No doubt Millican did look at the air gun. But the Troutt
case indicates that this was a common practice throughout
the plant. No doubt Millican did forget things and was on
occasion careless. But the perfect employee has not yet
been born.
So, taking Respondent's letter of February 25 at face
value, Millican was discharged because he disobeyed the
orders of Heaton, his utility man. This bears upon the
question of the supervisory status of utility men and
proves: (1) Utility men had the authority to give orders
which were to be obeyed on pain of discharge, and (2)
utility men had the authority to make effective recommen-
dations for an employee's discharge.33
Again taking Respondent's letter at face value, Millican
was discharged for careless work and failure to keep up but
this contention is contradicted by the 2-1/2 cents34
automatic raise which Millican received just 3 days before
his discharge. These raises were automatic if the employ-
ee's work was satisfactory. In this connection it must be
here said that Respondent's credibility throughout this
hearing left much to be desired.
As was the pattern throughout this case, Millican was
discharged within hours of the time that Heaton saw the
union sticker on his car. In Hasting's case the discrimina-
tion began 2 days after his appearance in St. Louis. In
Troutt's case it happened promptly upon Respondent's
learning that the Union was going to send a letter
demanding recognition. In Roach's case it followed within
hours-albeit the following day-of his expressed prefer-
ence for attending a union meeting to working overtime-
-albeit that he had worked overtime twice in the
meantime. In Gilton's case the retaliatory move occurred
within minutes. In Aldridge's case it happened as soon as
she began to spend too much time in the restroom-albeit
while nursing a fellow employee. Clearly Bohon had meant
what he said about "nipping it in the bud."
Accordingly I must, and hereby do, find that on
February 19 Respondent discharged Charles Millican
because of his suspected membership and known activities
32 In fact, Sisson could not recall having ever seen a union automobile
sticker.
33 Sisson testified that he accepted Heaton's word regarding the alleged
on behalf of the Union and in order to discourage such
membership and activities among its employees in viola-
tion of Section 8(a)(1) and (3) of the Act.
D. Refusal To Bargain and Objections to the
Election
As heretofore found, on December 18, 1970, the Union
made formal demand upon Respondent to recognize and
bargain with the Union as the exclusive representative of
its employees in the appropriate unit together with an offer
to permit a third party to determine the authenticity of the
union signed authorization cards as well as the majority.
Respondent refused this request because of certain
unspecified "information coming to our attention" which
allegedly convinced Respondent that the Union did not
represent a majority.
As of December 18, 49 of Respondent's 78 (including
utility men whom I have excluded from the unit as
supervisors within the meaning of the Act) employees in
the appropriate unit. The authenticity of these cards was
not questioned during the hearing. Hence, as of the time of
the request, the Union was by law the exclusive representa-
tive of the employees in the appropriate unit.
After refusing this demand for recognition, Respondent
used the time so created to engage in massive unfair labor
practices, including the discriminatory discharges of four
employees, Aldridge, Gilton, Roach, and Millican, who
were all part of the appropriate unit at the time of their
discharges, in an effort to destroy the Union's majority.
For the same purpose Respondent made a continuing
public display in its treatment of union leader Robert
Hasting of what employees could expect if they, continued
to support the Union. Thus Respondent's unfair labor
practices were both massive and continuous.
As a result when the Board conducted its election on
March 3, that election resulted in a 38-38 tie, Through
Respondent's successful "downgrading," the eight utility
men were permitted to vote in this election. The ballots of
the four dischargees above mentioned were challenged and
not counted, awaiting the decision of a Trial Examiner.
As these four dischargees were eligible voters at the time
of their discharges and have here been found to have been
discriminatorily discharged in violation of the Act, Res-
pondent's challenges to their ballots must be overruled.
Contrary to the determination of the Regional Director,
it has also been found herein that Respondent's "utility
men" were and are supervisors within the meaning of the
Act and, therefore, not members of the appropriate unit or
eligible to vote in the election.
Respondent's massive unfair labor practices during this
period were intended to, and did, affect the results of the
election of March 3. In addition I am convinced that
through those deliberate unfair labor practices Respondent
has made the possibility of holding a' free and fair election
in the near future an impossibility.
Consequently I also believe that the expression of the
employees' desire for union representation as shown by the
signed authorization cards is a better indication of their
disobedience and made no investigation thereof.
34 The evidence is unclear as to whether this last raise was 2-1/2 or 7-1/2
cents.
ROWE FURNITURE CORP. OF MISSOURI 171
desires in that regard than either the March 3 election or
another election in the future.
The facts show that on December 18, 1970, Respondent
refused to bargain with the Union as the exclusive
representative of its employees in the appropriate unit in
violation of Section 8(a)(1) and (5) of the Act. Accordingly,
I will order that Respondent, upon request, bargain with
the Union as such exclusive representative of its employ-
ees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
exclusive representative of its employees in regard to
wages, hours, working conditions, and grievances and, if
agreement is reached, to embody such agreement in a
written signed document.
The appropriate unit is as follows:
All production and maintenance employees at Respon-
dent's Poplar Bluff, Missouri, plant, excluding over-the-
road truckdrivers, office clericals, guards, professional
employees and supervisors as defined in the Act including
utility men.35
Because of the type of the unfair labor practices engaged
in by Respondent, I sense an opposition by Respondent to
the policies of the Act in general and I deem it necessary to
order Respondent to cease and desist from in any manner
infringing upon the rights guaranteed its employees in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record herein, I make the following:
CONCLUSIONS OF LAW
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that the
Respondent cease and desist therefrom and that it take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Richard G. Troutt
on December 17, 1970, Freda Aldridge Dunning on
February 2, 1971, Ray Gilton on February 4, Ronnie
Roach on February 5, and Charles J. Millican on February
19, 1971, because of their membership and activities on
behalf of the Union in violation of Section 8(a)(1) and (3)
of the Act, I will recommend that Respondent offer each of
them immediate and full reinstatement to his or her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his or her
seniority or other rights and privileges and make each
whole for any loss of pay he may have suffered by reason
of said discrimination against him on or after the date of
the discrimination by payment to each of a sum of money
equal to that which he would have earned from the date of
the discrimination to the date of the offer of reinstatement,
less the net earnings of each during such period in
accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at 6 percent
per annum,
Having also found that Respondent has discriminated in
regard to the conditions of employment of Robert Hasting
from and after January 23, 1971, I will recommend that
Respondent cease and desist therefrom.
Having also found that Respondent has refused to
bargain in good faith with the Union in violation of
Section 8(a)(5) of the Act, I will order that Respondent,
upon request, bargain in good faith with the Union as the
35 Based on far more complete evidence than the Regional Director had,
I have concluded, contrary to the Regional Director's decision, that all
utility men are supervisors within the meaning of the Act and, therefore,
expressly excluded utility men from the appropriate unit.
36 In the event no exceptions are filed as provided by Sec. 102.46 of the
1. Upholsterers' International Union of North Ameri-
ca, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of
employment of Richard G. Troutt on December 17, 1970,
Freda Aldridge Dunning on February 2, Ray Gilton on
February 4, Ronnie Roach on February 5, and Charles J.
Millican on February 19, 1971, and discriminating in
regard to the conditions of employment of Robert Hasting
on and after January 23, 1971, because of their union
membership and activities on behalf of the Union and in
order to discourage such union membership and activities,
Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
3. By refusing to bargain collectively with the Union as
the majority representative of the majority of Respondent's
employees in the appropriate unit on and after December
28, 1970, Respondent has refused to bargain in good faith
with the Union as such representative in violation of
Section 8(a)(1) and (5) of the Act.
4. By interfering with, restraining, and coercing its
employees in the rights guaranteed them in Section 7 of the
Act, Respondent has interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 36
ORDER
Respondent, Rowe Furniture Corporation of Missouri,
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., Poplar Bluff, Missouri, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating in regard to
the hire and tenure of employment or any term or
condition of employment of any of its employees because
of their membership in or activities on behalf of the Union
or any other labor organization of their choice.
(b) Refusing to bargain in good faith with Upholsterers'
International Union of North America, AFL-CIO, as the
exclusive representative of Respondent's employees in the
appropriate unit which is:
All production and maintenance employees at Respon-
dent's Poplar Bluff, Missouri, plant, excluding over-the-
road truckdrivers, office clericals, guards, professional
employees and supervisors as defined in the Act including
all utility men.
(c) In any manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Richard D. Troutt, Freda Aldridge Dunning,
Ray Gilton, Ronnie Roach, and Charles J. Millican
immediate and full reinstatement to his or her former job
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make each whole for any loss of pay he
may have suffered on and after the date of the discrimina-
tion against him, by reason of such discrimination in the
manner set forth in the section of this Decision entitled
"The Remedy," with interest thereon at 6 percent per
annum.
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
31 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Upon request, bargain collectively in good faith with
Upholsterers' International Union of North America,
AFL-CIO, as the exclusive representative of Respondent's
employees in the aforefound appropriate unit with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment and, if an under-
standing is reached, embody same in a written signed
agreement.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(e) Post at its Poplar Bluff, Missouri, plant copies of the
attached notice marked "Appendix." 37 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by 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, includ-
ing 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.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.38
IT IS FURTHER RECOMMENDED that, unless Respondent
notifies said Regional Director within 20 days from the
receipt hereof that it will take the action here ordered, the
Board issue an order directing Respondent to take the
action here ordered.
38 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 14, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."