Sierra Furniture Co.

National Labor Relations Board - Board Decisions

May 19, 1959

123 N.L.R.B. 1198 (N.L.R.B. 1959)

1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sierra Furniture Company and Jack L. Green
Local 208, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Jack L. Green.
Cases Nos. 21-CA-3194 and 21-CB-1172. May 19, 1959
DECISION AND ORDER
On February 25, 1959, Trial Examiner William R. Ringer issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent Union filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief and the entire record
in these cases, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations with the modifications hereinafter
indicated.
We find, in agreement with the Trial Examiner, that the Respond-
ents violated the Act by executing a collective-bargaining agreement
containing a union-security clause at a time when the Respondent
Union did not represent a majority of the employees covered by the
contract. On August 6,1958, wheia the Respondent Company extended
recognition to the Respondent Union and entered into the contract,
neither Local 208, alone, nor Local 208 together with Local 123, Furni-
ture Workers, Upholsterers and Wood Workers Union 1 represented
a majority of the employees in issue. Moreover, we find that, under
the circumstances here present, majority status-individually or
jointly-on any other date is immaterial.
Although any such determination is unnecessary in view of our
decision herein, we are constrained to note our disagreement with the
Trial Examiner's finding that the cards of five of the six employees
who signed for Local 123 and not for Local 208 should be excluded
in determining majority status on July 31, 1958, because such em-
ployees had refused to participate in the strike action then in progress
1 Local 123 was the original organizer of the plant . On July 31 it disclaimed "any and
all" interest in representing the employees and the Respondent Union "separately and
severally" requested recognition . The Respondent Union contends that Local 123 jointly
organized the plant with it and that Local 123's cards should be included in any count to
determine majority status. We find it unnecessary to resolve such issue.
123 NLRB No. 148.
SIERRA FURNITURE COMPANY 1199
at the plant. The fact that certain employees crossed the picket line
to work does no invalidate their cards so far as a determination of
majority status is concerned.
As the Respondent Union lacked a majority on the date that
recognition was extended and the union-security contract was signed,
we find that the Respondent Company violated Section 8(a) (1),
(2), and (3) of the Act and the Respondent Union violated Section
8(b) (1) (A) and 8(b) (2) by entering into and giving effect to such
agreement.
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Sierra Furniture Company, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Recognizing Local 208, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, as the
representative of its production and maintenance employees for the
purpose of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, unless and until said labor organization shall have
demonstrated its status as the majority representative of the afore-
said employees pursuant to a Board-conducted election.
(b) Giving effect to the agreement of August 6, 1958, or to any
extension, renewal, modification, or supplemental or superseding
agreement, unless and until the Respondent Union shall have demon-
strated its majority status in the manner stated above and, then, only
if the agreement otherwise conforms to the provisions of the Act;
but nothing herein shall be construed to vary or abandon the wages,
hours, seniority, or other substantive provisions of any such agreement.
(c) Giving effect to any checkoff cards authorizing the deduction
of union dues from wages or remittances to the Respondent Union
prior to the date of compliance with this Order.
(d) Encouraging membership in the Respondent Union or in any
other labor organization of its employees by conditioning hire or
tenure of employment or any term or condition of employment upon
membership in, affiliation with, or dues payments to such union, except
where such conditions have been lawfully. established by an agree-
ment in conformity with the Act.
(e) Sponsoring, assisting, or contributing support to the Respond-
ent Union or to any other labor organization.
(f) In any other manner interfering with, restraining, or coercing
its employees- in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold recognition from Local 208, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America as the representative of its production and
maintenance employees for the purpose of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until such labor or-
ganization shall have demonstrated its status as the majority repre-
sentative of the aforesaid employees pursuant to a Board-conducted
election.
(b) Jointly and severally with the Respondent Union refund forth-
with to all employees from whose wages it has withheld or deducted
funds for transmittal to the Respondent Union, the amount of any
and all such deductions and withholdings, to the end that each em-
ployee shall be promptly, fully, and completely reimbursed for any
moneys so deducted or withheld.
(c) Preserve and make available to the Board, or its agents, upon
request, for examination and copying, all payroll records, timecards,
personnel records and reports, and all other records necessary to com-
pute the sums to be refunded under the terms of this Order.
(d) Post at its plant in Los Angeles, California, copies of the
notice attached hereto marked "Appendix A." 2 Copies of said
notice to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by a representative of the
Sierra Furniture Company, be posted by it immediately on receipt
thereof and be maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Post at the same places and under the same conditions as set
forth in (d) above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix B."
(f) Mail to the Regional Director for the Twenty-first Region
copies of the notice attached hereto marked "Appendix A" for post-
ing by the Respondent Union in its business office and union hall in
Los Angeles, California, in places where notices to members are cus-
tomarily posted. Copies of said notice to be furnished by the Regional
Director, shall, after being signed as provided above, be forthwith
returned to the Regional Director for such posting.
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
SIERRA FURNITURE COMPANY 1201
(g) Notify in writing, the Regional Director for the Twenty-first
Region within 10 days from the date of this Order as to what steps
it has taken to comply herewith.
B. Local 208, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Acting as the bargaining representative of the production and
maintenance employees of Sierra Furniture Company for the purpose
of dealing with said Company concerning grievances, labor disputes,
wages rates of pay, hours of employment and other conditions of
employment, unless and until it shall have demonstrated its status as
the majority representative of the aforesaid employees pursuant to a
Board-conducted election.
(b) Giving effect to the agreement of August 6, 1958, or to any
extension , renewal, modification, or supplemental or superseding
agreement, unless and until it shall have demonstrated its majority
status in the manner stated above, and, then, only if the agreement
otherwise conforms to the provisions of the Act; but nothing herein
shall be construed to vary or abandon the wages, hours, seniority, or
other substantive provisions of any such agreement.
(c) Causing or attempting to cause the Respondent Company to
discriminate against its employees in violation of Section 8(a) (3)
of the Act.
(d) In any other manner restraining or coercing employees of the
Respondent Company in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Jointly and severally with the Respondent Company refund
to all employees from whose wages the Respondent Company has
withheld or deducted funds for transmittal to it, the amount of any
and all such deductions and withholdings, to the end that each em-
ployee shall be promptly, fully, and completely reimbursed for any
moneys so deducted or withheld.
(b) Post in conspicuous places in its business office and union hall
in Los Angeles, California, and at all places where notices to mem-
bers are customarily posted, copies of the notice attached hereto
harked "Appendix B." s Copies of said notice to be furnished by
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
508'8'89-G0-vol. 123 77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for the Twenty-first Region , shall , after being
duly signed by a representative of Local 208, International- Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, be posted by it immediately upon receipt thereof and be main-
tained by it for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered , defaced, or covered by any other material.
(c) Post at the same places and under the same conditions as set
forth in (b) above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix A."
(d) Mail to the Regional Director for the Twenty-first Region
copies of the notice attached hereto marked "Appendix B" for post-
ing by the Respondent Company at its plant in Los Angeles, Cali-
fornia, in places where notices to employees are customarily posted.
Copies of said notice to be furnished by the Regional Director , shall,
after being signed as provided above, be forthwith returned to the
Regional Director for such posting.
(e) Notify in writing, the Regional Director of the Twenty-first
Region within 10 days from the date of this Order what steps it has
taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT recognize Local 208 , International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, as the representative of our production and maintenance
employees for the purpose of dealing with us concerning griev-
ances, labor disputes , wages, rates of pay, hours of employment,
or other conditions of employment , unless or until it shall have
demonstrated its status as the majority representative of the
aforesaid employees pursuant to a Board -conducted election.
WE WILL NOT give effect to the agreement of August 6, 1958, or
to any extension , renewal, modification , or supplement or super-
seding agreement , unless and until said Local 208 shall have
demonstrated its majority status in the manner stated above and,
then, only if the agreement otherwise conforms to the provisions
of the Act; but nothing herein shall be construed to vary or
abandon the wages, hours, seniority, or other substantive provi-
sions of any such agreement.
SIERRA FURNITURE COMPANY 1203
WE WILL NOT give effect to any checkoff cards authorizing the
deduction of union dues from wages or remittances to Local 208
prior to the date of compliance with the Order herein.
WE WILL NOT encourage membership in Local 208 or in. any
other labor organization of our employees by conditioning hire or
tenure of employment or any term or condition of employment
upon membership in, affiliation with, or dues payments to, such
union, except where such conditions have been lawfully estab-
lished by an agreement in conformity with the Act.
WE WILL NOT sponsor, assist, or contribute support to Local 208
or to any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section
8(a) (3) of the Act.
WE WILL jointly and severally with Local 208 refund forthwith
to all employees from whose wages we have withheld or deducted
funds for transmittal to Local 208, the amount of any and all such
deductions and withholdings, to the end that each employee shall
be promptly, fully, and completely reimbursed for any moneys so
deducted and withheld.
All our employees are free to become, remain, or refrain from be-
coming, members of any labor organization, except to the extent that
such right may be affected by an agreement conforming to the appli-
cable provisions of Section 8(a) (3) of the National Labor Relations
Act.
SIERRA FURNITURE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES OF SIERRA FURNITURE COMPANY AND TO
ALL MEMBERS OF LOCAL 208, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT act as the bargaining representative of the pro-
duction and maintenance employees of Sierra Furniture Com-
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany for the purpose of dealing with said Company concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment and other conditions of employment, unless and until we
shall have demonstrated our status as the majority representative
of the aforesaid employees pursuant to a Board-conducted
election.
WE WILL NOT give effect to the agreement of August 6, 1958, or
to any extension, renewal, modification, or supplemental or super-
seding agreement, unless and until we shall have demonstrated our
majority status in the manner stated above, and, then, only if the
agreement otherwise conforms to the provisions of the Act; but
nothing herein shall be construed to vary or abandon the wages,
hours, seniority, or other substantive provisions of any such
agreement.
WE WILL NOT cause or attempt to cause Sierra Furniture Com-
pany to discriminate against its employees in violation of Section
8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of Sierra Furniture Company in the exercise of rights guaran-
teed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Sec-
tion 8(a) (3) of the Act.
WE wILL jointly and severally with Sierra Furniture Company
refund to all employees from whose wages the Company has with-
held or deducted funds for transmittal to us, the amount of any
and all such deductions and withholdings, to the end that each
employee shall be promptly, fully, and completely reimbursed for
any moneys so deducted or withheld.
LOCAL 208, INTERNATIONAL BROTHERHOOD
of TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges by Jack L. Green against Sierra Furniture
Company, herein referred to as the Company, and against Local 208, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, herein referred
to as Teamsters or Respondent Union, the Regional Director for the Twenty-first
Region (Los Angeles, California) on behalf of the National Labor Relations Board
consolidated the cases and issued on September 8, 1958, a consolidated complaint
.against both Respondents and notice of hearing. Both Respondents filed answers
SIERRA FURNITURE COMPANY 1205
to the complaint. The issues litigated at the hearing before me in Los Angeles, Cali-
fornia, on October 13, 14, 15, and 16, 1958, were whether the Respondent Company
violated. Section 8(a)(1), (2), and (3) of the Act and whether the Respondent
Union violated Section 8(b)(1)(A) and (2) of the Act. Counsel for the General
Counsel, Respondent Company, and Respondent Union argued orally at the close
of the hearing and a brief has been received from the Respondent Union.
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company is a California corporation engaged in the manufacture
of furniture in its plant located at Los Angeles, California. The Respondent Com-
pany admitted in its answer that during the 12-month period preceding the issuance
of the complaint it had shipped products valued at more than $50,000 directly to
points located outside the State of California. The Respondent Union contested
jurisdiction at the hearing and evidence was introduced by the General Counsel with
respect to inflow of materials and outflow of products during said period. In his
oral argument counsel for the Respondent Union stated that he was not contesting
the method of proof with respect to interstate commerce of the Company and would
discuss the amounts shown and the legal question of jurisdiction, in the brief to be
filed with the Trial Examiner. In such brief he made no contentions as to jurisdiction
and discussed the alleged unfair labor practices, thereby impliedly conceding jurisdic-
tion in this proceeding. I find that during the 12-month period immediately preced-
ing the issuance of the complaint Respondent Company shipped products valued
at approximately $77,000 directly to points outside the State of California and re-
ceived at its plant during said period materials from States other than California
amounting to approximately $195,000. The Respondent Company is engaged in
commerce within the meaning of the Act. I find that it would effectuate the policies
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues involved-introductory
This proceeding involves a collective-bargaining agreement entered into on August
6, 1958, between the Company and the Respondent Union, providing for exclusive
recognition and for union security, in that employees were required to remain or
become union members within 30 days from the date of the contract or within
30 days from dates of hiring thereafter. The gist of the allegations with respect to
said agreement is that the Union at the time the contract was entered into did not
represent the majority of the employees in the appropriate unit, and that the Com-
pany "well knew that the Respondent Union was not said representative." The
Respondent Union filed an answer admitting the contract. At the hearing and in
its oral argument and brief the Respondent Union raised a number of defenses with
respect to relations between the Company and another union, Furniture Workers,
Upholsterers & Wood Workers Union, Local 123, herein referred to as Local 123,
and between the two unions, during the period here involved, particularly from early
July to August 7, 1958. These defenses will be considered after a chronology of
events and a discussion of the merits.
B. Chronology of events
In 1957, Local 123, whose business representative was Gus O. Brown, attempted
to organize the employees of the Respondent Company and obtained authorization
cards from a number of employees. No recognition was granted the union, appar-
ently because of a dispute as to jurisdiction. Beginning early in July 1958, Local
123 began again its organizing efforts and received from employees a number of
cards designating it for purposes of representation. Brown, as in 1957, was its
business representative. On July 17 he called Rehbock Lewis, the president of the
Respondent Company, herein referred to as Lewis, and over the telephone; stated
that Local 123 represented the majority of the maintenance and production employees
and asked for a conference to work out a collective-bargaining agreement.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows without dispute that the Respondent Union, the Teamsters, was
assisting Local 123 in its organizational campaign and that some employees under-
stood that the two locals were jointly organizing. It is undisputed, however, that
only cards designating Local 123 were used until approximately July 29.
Both Brown and Lewis in their testimony concerning the telephone conversation
agree that Lewis told Brown that he was leaving shortly for San Francisco to attend
a furniture convention and that he would not be able to handle the matter until
he returned. Brown testified that Lewis referred him to Mr. Seese, vice president
of the Company. Lewis testified that he did not remember the reference to Seese
but I do not consider their testimony necessarily in conflict. Lewis went on to
San Francisco on Friday or Saturday, July 18 or 19, and did not return until July 28.
Brown shortly got in touch with Seese, who referred him to Eddy Feldman, an attor-
ney who was also executive secretary of the Furniture Manufacturers Association and
as such had had experience in negotiation of collective-bargaining agreements of
members of the said Association. There is no dispute that he was representing the
Respondent Company in this matter, whereas George R. Richter represented the
Respondent Company as their general attorney. Feldman did not testify and Brown's
testimony as to his later conversations with Feldman is not denied. He says that he
talked to Feldman, he thinks on the same day as he talked to Lewis, and certainly
on several occasions before July 22 with respect to recognition by the Company of
the claim for recogniton. He testified that Feldman declined to bargain with Local
123. It seems clear that the discussion at first was in regard to Local 123 and Brown
testified that after he talked with Feldman, Feldman did not call him and "I think
I called him to inquire what happened." It is definitely indicated in Brown's testi-
mony that he talked to Feldman on July 21 and confirmed the telephone conversation
by letter of July 22. The letter of July 22 on stationery of Local 123 and signed by
Brown as business agent confirmed the telephone conversation made the day before,
"wherein I advised you that we have revised our request for recognition to the
above-named company in that the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 208 and our Local are jointly
requesting recognition" on behalf of the maintenance and production workers.
On the morning of July 22 a strike and picket line began at the Respondent Com-
pany's plant, conducted by Local 123 and members of the Respondent Union. The
evidence is not clear as to whether the picket signs contained the names of both
the Furniture Workers and the Teamsters from the beginning or whether for the
first 2 or 3 days the signs were only on behalf of Local 123 and thereafter con-
tained the names of both unions. I do not consider the uncertainty important since
in either event members of both unions were engaged in the picketing. It should
be kept in mind that the letter of Brown as business agent of Local 123 to Feldman
was dated July 22, the day the strike began.
On the same day of July 22 the Respondent Company, by Eddy S. Feldman sign-
ing as attorney, filed in the regional office an RM petition stating that Local 123
and Local 208 had presented claims to the Company for recognition as representa-
tives. It was stated in this petition that the claims of the Unions for recognition
had occurred on July 17.
On the same date of July 22, Mr. Seese of the Company informed Lewis at San
Francisco of the existence of the strike. Lewis returned on July 28.
The strike and the picketing, begun on July 22, continued until August 7. Ac-
cording to employee Edward Stabile, who did not join the strike, he counted 30 work
cards of those who worked that day and 28 cards of those who stayed out. Em-
ployee Jack L. Green, who also worked during the strike and who later signed the
charges in this proceeding, testified that he counted the work cards during the strike
and that there were 32 or 33 in and 29 out. Their testimony was not denied. It
is apparent, also, that 10 new employees were hired during the strike and naturally
were not on strike. I find that during the strike a majority of the employees in the
unit did not strike but worked in the plant.
On Thursday July 31, there were two documents hand-delivered to Lewis at the
plant by a person purporting to have come from Local 208, one a disclaimer by
Local 123 of any and all interest in representing the employees, dated July 31, and
signed by Brown as "business agent," the other a claim of majority by Local 208
and request for recognition for purposes of collective bargaining. The disclaimer
is worded as follows: "This is to advise you that as of this date our union disclaims
any and all interest in representing the employees of the Sierra Furniture Company,"
and indicates that copies were being sent to the Regional Office, Mr. Feldman,
and Local 208.
The letter from Local 208, signed by John W. Filipoff, secretary-treasurer, reads
as follows:
SIERRA FURNITURE COMPANY 1207
Whereas this Local Union is advised that Furniture Workers Local 12'3 has
this date disclaimed "any and all interest in representing the employees of
Sierra Furniture Company" and whereas this Local Union represents a ma-
jority of all maintenance and production workers (truck drivers included) ex-
cluding office employees, salesmen, guards and supervisors employed by Sierra
Furniture Company for purposes of collective bargaining, Local 208 hereby
serves notice on Sierra Furniture Company that it does hereby separately and
severally request recognition for purposes of collective bargaining on behalf
of and for all maintenance and production workers (including truck drivers)
excluding office employees, salesmen, guards and supervisors of Sierra Furni-
ture Company, 330 W. Avenue 26, Los Angeles, California.
It is to be noted that in this document Local 208 recognized that Local 123 had
dropped all interest in representing the employees, that Local 208 claimed to repre-
sent a majority of the employees in the unit and "separately and severally" requested
recognition for the purposes of collective bargaining. It was indicated that copies
of the letter were being sent to Feldman, the Regional Office, and Local 123.
On July 29, 30, and 31 and, as to three cards, on dates not indicated, the
Teamsters obtained authorization cards of employees in the unit.
On Monday, August 4, there was a meeting in Mr. Richter's office. Those attend-
ing were Gus Brown, who had signed the disclaimer of Local 123, delivered to Lewis
the preceding Friday, a Mr. Chavez, representing Local 208, a Mr. Fitzpatrick,
special representative of Local 208, Charles Hackler, an attorney for Local 208, Mr.
Richter, attorney for the Respondent Company, and Mr. Lewis.
Of those present Brown, Fitzpatrick, and Lewis testified. Chavez was not avail-
able, being out of the United States. It is clear that the purpose of the meeting was
to attempt to work out a settlement of the strike and as a part of a settlement, a
possible contract with Local 208. It should be remembered that on the previous
Friday, July 31, the disclaimer of Local 123 and the demand of Local 208 had
been given to the Company. There is considerable testimony as to just what was
said, particularly by Lewis with reference to the position of Brown at this meeting.
It is clear that Lewis at first questioned the propriety of Brown's presence at a
meeting the purpose of which was to negotiate with Local 208. Lewis testified that
Hackler, the attorney for the Teamsters, stated that Brown was present merely as
as a consultant for Local 208, although Brown's testimony indicates that it was
stated that he was there as representative of Local 208. I am satisfied that Brown
was not considered by those present as being at that time the formal representative
of the Teamsters, particularly since I hereinafter find that at the meeting in Feld-
man's office on August 6, when the contract was entered into, Brown submitted a
letter authorizing him to act as the representative of Local 208. It is clear that
the question of representation as there discussed related to Local 208. Accordingly
I do not find it important to resolve the uncertainties regarding any statements by
Lewis as to willingness to bargain with Local 123 or deal with Brown. I find that
there was discussion with reference to the Teamsters having a majority, the question
of an. election, the question of a card check, all of which questions were raised by
representatives of the Company, and that the company representatives were uncertain
as to whether Local 208 had a majority at that time. The representatives of Local
208 said that they had a majority and were willing to furnish proof thereof but
that they did not have the cards with them.
On the afternoon of August 6 the meeting was held at Feldman's office which
resulted in the execution of the contract. Present at this meeting were Brown,
Fitzpatrick, and Chavez, for the Teamsters, and Feldman, Seese, and Lewis, for the
Company. Of these, Brown, Fitzpatrick, and Lewis testified. Brown testified that
he had at this meeting a letter authorizing him to represent the Teamsters at the
meeting and to sign any contract arrived at. He testified that he thought that Lewis
or Feldman or possibly both of them asked whether "the union" represented a
majority and that he or Chavez said they did have a majority and that Feldman
asked whether they had cards to show for it and that he responded in the affirmative;
that Feldman asked whether they had them with them and he said they did not but
were willing to produce them, and that Feldman said "okay" and that those present
proceeded with the negotiations. No cards were produced.
The contract was written in handwriting on yellow lined paper, dated August 6,
was to run from August 7, 1958, to September 1, 1959, and was signed for the
Company by Lewis, for the Teamsters (Local 208) by Brown, with Seese and
and Fitzpatrick as witnesses.
It contained a union-security paragraph as follows:
2. Company to recognize union as exclusive representative of company
workers (as above specified) for the purpose of collective bargaining. All
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covered workers to become and /or remain union members within 30 days from
date and/or 30 days from date of employment commencing thereafter.
On the evidence before me there seems to be no serious question that Lewis agreed
to this contract because of the economic effects of the strike and the picketing of the
Company's business. I so find.
The contract was executed the night of August 6, 1958. The strike and the picket
line did not function the following day, August 7.
Sometime after the contract was entered into on .August 6, apparently during the
week before August 25, the date when the charges were filed, the news began to
spread among the employees that a contract had been executed. Seese, the vice presi-
dent told employee Green "one morning" when he came to work, that a contract had
been signed with Local 208. Green testified that he did not then know its terms.
Evidently about the same time, Brown, representing the Teamsters, talked with
Lewis and arrangements were made for Brown to come to the plant and meet with
the men and put in effect the provisions for union membership in Local 208.
Lewis called into his office employee Jack L. Green, who later signed the charges
in this proceeding, and employees Anthony D. Demitter and Raul Narvaez, in a
group and told them that he had executed the contract. According to Lewis, whose
testimony I credit, he indicated that he had signed the contract on account of
the economic pressure of the strike and the picketing, and asked the employees to
go along it as it was better for the plant. Brown came to the plant and talked
to the employees, who did not respond favorably.
Green, as an individual, on August 25, filed in the office of the Regional Director
the original charges in this proceeding, alleging only a lack of majority, and amended
charges on September 4 and 5, adding allegations of the union-membership clause
in the contract.
A petition by employees dated September 2 was prepared under the active direction
of Green. This was on paper from a yellow-lined tablet taken from the Company's
stationery supplies and prepared outside the plant and signed at the plant in the
mornings before work began. According to Green the introduction at the top of the
petition was written in printed letters by a woman neighbor of Green. She was not
called as a witness and Green stated that she had moved away. This petition
objects to representation by Local 123 (Furniture Workers) and indicates a con-
fusion in the minds of the drafters of the petition and/or the employees as to which
union was party to the contract. It states that there was talk around the plant that
Local 123 represented a majority in the plant and that the signers did not want 123
to represent them and that any of them who had signed cards for Local 123 were
withdrawing that representation. This petition was signed by 45 employees.
It is contended by the Respondent Union that the charges and the petition of
September 2 were instigated by the Company to avoid the contract of August 6
and the recognition thereby given to Local 208. This contention is considered
hereinafter.
C. Discussion of the merits
The General Counsel contends that this proceeding presents a very simple issue
as framed by the complaint and the answers, and stated in oral argument that the
question is simply: Did the Company execute the contract at a time when the
Teamsters did not have a majority of the employees in the appropriate unit and did
the Company have knowledge of such lack of majority? It is not quite that simple.
It will be remembered that the complaint, both as to the Company and the Respond-
ent Union, after setting out the term of the contract from August 7, 1958, to
September 1, 1959, the provision for exclusive representation and the union-shop
provision with regard to membership in the Teamsters, alleged that "Respondent
Union was not in fact the collective-bargaining representative of Respondent Com-
pany's employees and Respondent Company well knew that the Respondent Union
was not said representative of its employees." The answer of the Respondent Com-
pany, as conceded by its counsel in oral argument, substantially admitted the alle-
gations of the complaint and defended substantially only on the basis that it had
been forced into the execution of the contract, although doubting a majority. The
answer of the Respondent Union denies that the Teamsters at the time of the execu-
tion of the contract had no majority and that the Company well knew that it had
no such majority. As above indicated and hereinafter more fully discussed the Re-
spondent Union contends that its relations with Local 123, their joint organizational
campaign, the claimed refusal of the Company before the strike to recognize and bar-
gain with Local 123, the claimed resulting nature of the strike as an unfair labor
practice strike, the claim that any loss of majority between July 22 and August 6 was
caused by the strike and the hiring of new employees, and the claimed bad faith on
SIERRA FURNITURE COMPANY 1209
the part of the Company throughout the proceedings-all should be considered in
the decision of this case.
As pointed out above the complaint contains the allegation that the Company
well knew that the Respondent Union was not the representative of its employees
when the contract was entered into. At the hearing and in Respondent Union's brief
it seemed to be recognized and I was inclined to agree that the liability of both the
Company and the Union in this respect did not require proof of knowledge by the
Company of such lack of majority, but at most a good-faith doubt thereof.' On
February 6, 1959, the Board decided that even where the contract contains no union-
security provision, its execution in the absence of a union majority is an unfair labor
practice by both the union and the company, and doubt of a majority is immaterial.2
The Appropriate Unit
There is no dispute as to the appropriate unit. At all times involved in the rela-
tions of the Company and the Unions and throughout this proceeding there has been
a recognition of appropriateness of the unit with questions only as to majority. I
find that at all times involved herein the employees of the Company engaged in
maintenance and production work, excluding office workers, salesmen, guards, and
supervisors, constituted a unit appropriate for the purposes of collective bargaining.
Teamsters' Lack of Majority on August 6, 1958
The validity of a contract containing a union-security provision is recognized in
Section 8(a)(3) of the Act only "if such labor organization is the representative of
the employees as provided in Section 9(a), in the appropriate collective bargaining
unit covered by such agreement when made.. . The first issue of fact in this
connection is whether the Respondent Union, Local 208, held a majority of authoriza-
tion cards in its favor on August 6, 1958, the date of the contract. There was sub-
mitted in evidence a payroll of the Company showing the employees on August 7,
consisting of 70 persons. There were submitted by Local 208 34 cards designating
the Teamsters. An analysis of these cards shows that 7 such cards were signed by
persons who were not on the payroll on August 6.3 Accordingly, the cards submitted
indicate a total of 27, not a majority in the unit of 70. As to how many in said unit
had not signed cards for the Teamsters, it was stipulated at the hearing that 27 named
employees had signed no cards for the Teamsters; 13 other employees each testified
the same. Three employees had no cards among those submitted by Local 208 as
its designations.4 Total, 43. Accordingly, I find that 43 of the persons on the
payroll of August 7 had not designated the Teamsters as their representative.
Question of Teamsters' Majority on July 31, 1958
The Teamsters demanded recognition on July 31, 1958, by a letter hand-delivered
to Lewis, together with a disclaimer from Local 123. If it should be considered
that the question of majority should be determined as of July 31 the situation is
different in numbers but the result is the same. On that date there were 63 em-
ployees on the payroll, since, of the 70 on August 7, 7 were hired on dates from
August 1 to August 6.5 The cards of the Teamsters show 3 dated on July 29, 19
on July 30, 2 on July 31 and 3 with no dates. Even if the 3 undated cards are
counted, the total on July 31 is 28, not a majority.
No Majority by Locals 123 and 208, Combined, on August 7 or July 31, 1958
It was contended by the Respondent Union at the hearing and in its brief that
since the organizational campaign was joint, in that the Teamsters assisted Local 123
in obtaining its authorization cards, and since employees were told that it was a
joint organizational effort, the cards of both Local 123 and Local 208 should be
combined in determining the question of majority representation. Of course under
'Robbie Shoe Corp., 113 NLRB 314; cf. The Grand Union Company, 122 NLRB 589,
and Bryan Manufacturing Company, 119 NLRB 502, 507.
2 Bernhard-Altmann Texas Corporation, 122 NLRB 1289.
3 Arturo Sanchez,. Eva Prado, Martha Alvarez, Patricia Ann Trujillo, Antonio Rosales,
Aurdra Gi11ette; Virgiflia Gillette.
4 Kalif, Rozas, and Valdez.
s Douglas Hickman, Bertha Bacca, Eva Bacca, Enrique Ochea, Marcos Gonzales,
Alphonzo Camarillo, Salvador Guitterez.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this contention employees who first signed for Local 123 and later for Local 208
would not be conuted twice , but the total would consist of those who signed
for both unions , plus those who signed for either one and not the other. The
difficult legal and policy question -of the propriety of combining , in an unfair labor
practice case, the cards obtained by different unions in successive campaigns, or by
unions contemporaneously organizing , need not be resolved in this case , either as to
August 7 or July 31. An analysis of the combined cards shows that on August 7,
26 of the employees on the payroll had executed cards to both Local 123 and
Local 208 , 6 had signed cards for Local 123 only, and 1 had signed a Teamsters'
card who had not signed for the Furniture Workers. The total is 33, not a ma-
jority in the unit of 70.
As to July 31, it has been found that on that date there were 63 employees in
the unit. On tat date 27 persons had signed cards for Local 208, if we include 3
undated cards , treating them as having been signed before then , and 6 had signed
for Local 123 and not Local 208. These total 33, a majority . However, of the
six who signed for Local 123 and not for the Teamsters , five G did not join the
strike but worked. Their cards obviously should not be included . The result is
28 cards, not a majority.
Accordingly I need not pass on the question whether a majority of combined
cards would be a good defense in this case , for such combination does not con-
stitute a majority either on August 6 or July 31.
Defense of Refusal by the Company To Bargain
The Respondent Union contends that Local 123 represented a majority of the
employees on the payroll during the period from July 17 to July 22, the day the
strike began ; that Local 123 demanded recognition during that period and was
refused, such refusal constituting an unfair labor practice and causing the strike
to be an unfair labor practice strike; that since the Teamsters and Local 123 were
jointly organizing and jointly participated in the strike and picketing the Respondent
Union may take advantage of the majority held by Local 123 and treat it as a con-
tinuing majority up to and including August 6 when the new contract was made. I
find no merit in this contention . The formal disclaimer of the Furniture Workers
to the Company on July 31, with copies to the Board and Feldman , and the formal
demand by the Teamsters on the Company the same day , with copies to the Regional
Office, Feldman , and Local 123 , were formal written steps in the representation
process, whereby Local 123 abandoned its claim for representation , whether alone
or with the Teamsters , and the Teamsters thereupon claimed exclusive representa-
tion . At the meetings in Mr. Richter 's office on August 4 and Mr. Feldman 's office
on August 6, it is clear that the parties were considering the question of whether the
Teamsters represented a majority and had cards so indicating . All the parties were
discussing the question of majority on those dates and not as of an earlier date.
There was discussion of an election and of a card check. The question of a majority
by the Furniture Workers as of July 22 was not raised or considered until at the
hearing.?
U Jose Alaniz , Ronald W. Newbold, Nicholas Porno . Edward Stabile, Amanda Vidaurri.
7 While I do not consider it necessary to make findings with respect to the claimed
majority by Local 123 on July 22 or the question of whether the Company could be con-
sidered ( in a proceeding properly raising the question ) as having committed an unfair
labor practice by a refusal to bargain , I am discussing both points in this footnote on
the possibility that the Board may not agree that such matters are immaterial under the
facts here involved . The record indicates that on July 22 there were 60 employees in
the appropriate unit ( of the 70 employees on August 7, 10 were hired after July 22).
Of these employees 32 signed cards for Local 123, a majority . I do not find, however,
that the Company refused to bargain between July 17 and July 22. Lewis, the president,
was out of the city and I am not persuaded that Feldman definitely refused to bargain,
or that Brown thought he did. Brown testified that Feldman indicated that the Company
did not like Local 123; but on July 22 Feldman filed an RAI petition claiming requests
by the Teamsters and Furniture Workers as having been separately made (not as jointly,
made orally by Brown to Feldman on July 21 and confirmed by letter on July 22 ). There
clearly was uncertainty as to whether the Furniture Workers or the Teamsters or the
Furniture Workers and the Teamsters were making the campaign - andwere claiming the
representative status. Under these circumstances I find the evidence insufficient to sup-
port a refusal to bargain , and to make the strike an unfair labor practice one.
SIERRA FURNITURE COMPANY 1211
Although it is probably not a necessary part of the General Counsel's case (see
footnote 2) even though alleged, I find in these circumstances that the Company had
a good-faith doubt of a majority by the Teamsters August 6, 1958. The evidence
shows that Lewis and Richter raised the question of an election and of a card check
at the two meetings and the Teamsters representatives stated that they had cards
constituting a majority but did not have them with them. All the parties were trying
to settle the strike and do it quickly. The contract was handwritten on paper not
ordinarily used for legal documents and evidence indicates it was executed at night.
The circumstances indicate doubt by the Company of a majority and that it was
waived upon the Respondent Union's assurance that they had the cards. It is now
shown that the Teamsters did not have the necessary cards. The cards Local 208
did have were not submitted at the meetings of August 4 and August 7, nor at the
hearing until the last day of testimony.
The complaint as to the Union alleges that by entering into the collective-bargain-
ing agreement the Union caused and attempted to cause Respondent Company to
discriminate against employees in violation of Section 8(a)(3) of the Act. A
collective-bargaining agreement containing union-security clauses when entered into
by a union not representing the majority is clearly discriminatory as to the em-
ployees involved. There can be no question that the Union by economic pressure
of the strike and picketing caused the execution of such invalid contract and thereby
attempted to cause and caused such discrimination thereby encouraging membership
in the Union and violating Section 8(a) (3) of the Act. I so find.8
D. Defense of collusion
The Respondent Union in its brief vigorously contends that the proceeding should
be dismissed because of collusion on the part of the Company with the Charging
Party in the filing and processing of the charges and hearing. It contends that after
the contract was signed the Company decided to "get out of it," and encouraged
Green to file the charges and is "begging the court for an order against itself." The
record does not support such contentions. At most it appears that the Company is
unhappy with a contract which the majority of its employees did not and do not
want. There is evidence that the Company was not strict in permitting Green and
other employees to go to the Regional Office where they conferred and he filed
charges, but I am satisfied and find that such visits were not at the direction or sug-
gestion of company officials. It appears from the record that a majority of the em-
ployees, knowing that their majority was opposed to either union were shocked at
learning that the contract had been made with a minority union, and did something
about it, including filing charges, and preparing and signing a petition which the
Company had nothing to do with and which mistakenly referred to the Furniture
Workers rather than the Teamsters. I find that the processes of the Board have not
been abused or obstructed or taken advantage of,
E. Concluding findings
The Respondent Company having granted exclusive recognition to the Respondent
Union and entered into the collective-bargaining agreement of August 6 containing
union-security provisions when the Union was not in fact the majority representa-
tive of the employees involved, contributed support to the Respondent Union.
By entering into and giving effect to said agreement Respondent Company dis-
criminated in regard to hire and tenure of employment and terms and conditions of
its employees to encourage membership in Respondent Union.
By entering into and giving effect to said agreement Respondent Company has
interfered with, restrained, and coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
By attempting to cause and causing the Respondent Company to enter into and
give effect to said agreement Respondent Union has caused and attempted to cause
Respondent Company to discriminate against employees in violation of Section
8 (a) (3) of the Act.
By entering into and giving effect to said agreement Respondent Union has re-
strained and coerced employees of Respondent Company in the exercise of rights
guaranteed in Section 7 of the Act.
8 Robbie Shoe Corp., supra. I am not suggesting or finding that the strike or picketing
was illegal ; the vice lay in the lack of majority and the union-security provision.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By the acts and conduct above set forth Respondent Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1), (2),
and (3 ) of the Act.
By the acts and conduct as set forth above Respondent Union has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and
(b) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents , set forth in section III, above , occurring in
connection with the operations of the Respondent Company, described in section I,
above, have a close, intimate , and substantial relation to trade, traffic , and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, it will be recommended that they cease and desist therefrom and that they
take certain affirmative action designed to effectuate the policies of the Act.
The contract of August 6 does not expressly provide for deductions of union
dues by the Company and there is no evidence that any such deductions were made.
However, the contract contains a provision as follows:
4. All other contract provisions shall be as provided and fixed by the terms
and conditions of that certain labor contract known as the existing 1957
Agreement with Knoster Furniture Co of Los Angeles and Furniture Works
[sic] Local 123.
The 1957 agreement referred to in the above paragraph was not introduced in
evidence and there was no testimony with respect to its provisions . It may be that
under such incorporation by reference union dues have been withheld by the Com-
pany for the benefit of Local 208. It will be recommended that in the event union
dues have been withheld the Respondents shall reimburse such affected employees
for dues checked off by the Company and remitted to the Union under any such
terms of the agreement .9 Accordingly I shall recommend that the Respondent
Company and the Respondent Union jointly and severally reimburse the employees
covered by their contract of August 6, 1958 , for any dues deducted by the Company
pursuant to any checkoff authorization for the benefit of the Respondent Union.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By entering into, maintaining , and enforcing an agreement requiring the
-employees covered thereby as a condition of employment to become and remain or
to remain members of the Union although the Union was not the representative of
the aforesaid employees within the meaning of Section 9(a) of the Act, the Re-
spondent Company has engaged in unfair labor practices within the meaning of
Section 8 ( a)(1), (2), and (3) of the Act.
2. By entering into, maintaining , and enforcing an agreement requiring the
employees covered thereby as a condition of employment to become and remain or
to remain members of the Union although the Union was not the representative of
the aforesaid employees within the meaning of Section 9(a) of the Act , the Re-
spondent Union has caused and attempted to cause the Respondent Company to
discriminate against employees in violation of Section 8(a)(3) of the Act and has
thereby engaged in unfair labor practices within ,the meaning of Section 8(b) (1) (A)
and (b )( 2) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
O United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry
of the United States and Canada, Local 231 , AFL-CIO ( J. S. Brown -E. F. Olds Plumbing
& Heating Corporation ), 115 NLRB 594.