The Superior Upholstery Co.

National Labor Relations Board - Board Decisions

Dec 5, 1961

134 N.L.R.B. 932 (N.L.R.B. 1961)

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ited reconsideration of its decision and order and the filing of
such amended or supplemental order as may be appropriate;
(5) The Court retains jurisdiction of the matter, and on the
filing of a supplemental or amended order of the Board, all
parties shall have the right to file whatever amended pleadings
and papers as each might think advisable or appropriate;
(6) The Court does not, of course, intimate any decision as to
the correctness or propriety of any change by the Board in its
decision or order.
Pursuant to the court's remand, the Board, having duly reconsidered
its Decision and Order in the light of Upholsterers Frame d Bedding
Workers, etc. (Minneapolis House Furnishing Company), 132 NLRB
40, has decided to issue the following amended Order wherein we
shall delete the remedial provisions which' are applicable to viola-
tions of Section 8 (b) (4) (i) (B) of the Act.
ORDER
IT IS HEREBY ORDERED that the Board's Order in this case be, and it
hereby is, amended by striking out therefrom subparagraph (a) of
paragraph numbered 1, in its entirety.
IT IS HEREBY FURTHER ORDERED that the Board's Order in this case
be, and it hereby is, amended by striking out therefrom the following
portion of subparagraph (b) of paragraph numbered 1, ": where
in either case," and substituting in lieu thereof the following :
", where".
IT IS HEREBY FURTHER ORDERED that the notice required to be posted
by the Respondent, attached as the Appendix to the Board's original
Decision and Order in this case, be, and it hereby is, amended by
striking out therefrom the language following "We Will Not" begin-
ning with "induce or encourage employees ..." and ending with
"... any services, or".
The Superior Upholstery, Company and Local 919, Retail Em-
ployees Union , Retail Clerks International Association, AFL-
CIO. Cases Nos. 1-CA-3431 and 1-RC-5925. December 5, 1961
DECISION AND ORDER
On August 14, 1961, Trial Examiner William Seagle issued his In-
termediate Report, finding that the Respondent had engaged in and
was engaging in unfair labor practices in violation of Section 8(a) (1)
and (2) of the Act and recommending that it cease and desist there-
from and take affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions and
134 NLRB No. 88.
THE SUPERIOR UPHOLSTERY COMPANY 933
a supporting brief. A brief was filed by the General Counsel in sup-
port of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this, case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has con-
sidered the Intermediate Report and the entire record in this case, in-
cluding the exceptions and the briefs, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.'
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2(c) read: "Notify the Regional
Director for the First Region, in writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply
herewith." 2
IT IS FURTHER ORDERED that the objections to the election in Case No.
1-RC-5925, be, and they hereby are, sustained and that the election be
set aside as recommended by the Regional Director and a new election
directed at such time as the Regional Director shall deem appropriate
under the circumstances.
1 In doing so, however , we do not adopt certain gratuitous comments unnecessary to our
decision herein . We base our conclusion that Respondent violated Section 8 ( a) (2) and (1)
of the Act solely on the findings and reasoning set forth in the section of the Intermediate
Report entitled "Concluding Findings" and on the credited testimony supporting such
findings.
2 In the notice attached to the Intermediate Report as the Appendix, the words "A Deci-
sion and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner " 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."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Under date of February 29, 1960, Local 919, Retail Employees Union , Retail
Clerks International Association , AFL-CIO (hereinafter referred to as Local 919 or
the Union ), filed a petition requesting that it be certified as the representative of the
Respondent 's employees for purposes of collective bargaining . A hearing on the peti-
tion was held on April 13 , 1960 , and on January 5, 1961, the Board rendered its de-
cision directing an election to be held.' The election was held on the company
premises on January 31, 1961 , between the hours of 10 and 10:45 a.m., and of the
38 valid votes counted , Local 919 received 13.
On February 7, 1961, Local 919 filed objections to the conduct of the election
on four grounds . On March 6 , 1961 , the Acting Regional Director filed a report
finding merit in the second of the objections filed by Local 919. He found that on
January 25 and 26, 1961 , the Respondent had been instrumental in the formation
1 The eligible voters were to be all selling and nonselling employees of the Respondent
in Elmwood , Connecticut , who were employed during the payroll period ending Decem-
ber 31, 1960, including salesmen , office clerical employees , upholstery shop employees,
warehousemen , truckdrivers , and drivers ' helpers , but excluding guards and supervisors as
defined in the Act.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a grievance committee of its employees , and that by the formation of this commit-
tee the Respondent had interfered with the rights of its employees "to a free and un-
trammeled election." He recommended , therefore, that the election be set aside,
and that he be directed to conduct a new election at such time as he might consider
appropriate. On March 13, 1961, the Respondent filed exceptions to the Acting Re-
gional Director's report, and requested a hearing on its exceptions. On March 14,
1961, Local 919, filed a charge that since on or about January 25, 1961, the Respond-
ent had dominated, interfered with, and contributed support to a labor organiza-
tion in violation of the Act. On April 28, 1961, the Acting Regional Director issued
a complaint and notice of hearing against the Respondent, alleging that on or about
January 25, 1961, the Respondent by and through its supervisors, managerial em-
ployees, and their agents had initiated, formed, sponsored, and promoted the griev-
ance committee aforementioned , and from January 25, 1961, to date had assisted
and contributed to the support of the administration of the committee, all in violation
of Section 8(a)(2) of the Act. In connection therewith, certain acts of interference
in violation of Section 8(a)( I) of the Act were also charged against the Respondent-
Under date of May 5, 1961, the Respondent filed an answer to the complaint, deny-
ing the commission of the unfair labor practices with which it was charged.
, Under date of May 17, 1961, the Board entered an order authorizing the consolida-
tion, for the purpose of hearing, of the complaint and representation proceedings,
and under date of May 19, 1961, the Acting Regional Director entered an order
consolidating them.
On June 1 and 2, 1961 , a hearing was held before William Seagle, the duly desig-
nated Trial Examiner, at Hartford, Connecticut, with respect to the issues in the con-
solidated proceedings. At the conclusion of the taking of testimony, counsel for
the parties waived oral argument but they filed briefs subsequent to the hearing, and
these briefs have been considered.
Upon the record so made, and based upon my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent is a Connecticut corporation, which maintains its principal office
and place of business at 1061 New Britain Avenue, city of Elmwood, county of Hart-
ford, State of Connecticut, where it is engaged in the manufacture, sale, and distribu-
tion of furniture and related products at retail.
In the course of the conduct of its business, the Respondent has continuously
caused large quantities of fabrics, wood, springs, and related products that are used
by it in the manufacture of furniture to be purchased and transported in interstate
commerce from and through various States of the United States other than the
State of Connecticut. Specifically, the Respondent has purchased annually from
sources outside the State of Connecticut materials valued in excess of $50,000 and
these materials have been transported directly to its place of business from points
outside the State of Connecticut. From its retail sale of furniture, the Respondent
has derived a gross annual revenue in excess of $500,000.
H. THE LABOR ORGANIZATIONS
Local 919 is an outside labor organization that has sought to organize the Re-
spondent's employees.
The grievance committee, representing the employees of the Respondent, is a
labor organization without outside affiliation.
III. THE UNFAIR LABOR PRACTICES
A. Introductory
Although the form of the Respondent's business, which had its inception about 29
years ago, is corporate, the Company is entirely owned and operated by William
Singer, its president and founder, and Arthur M. Burr, its secretary-treasurer. The
two men apparently refer to each other as "partners," and actually operate the busi-
ness under -a trade name-the Puritan Furniture Mart.
Although the Superior Upholstery Company is admittedly engaged in the manufac-
ture of furniture, its sales are not confined to the sale of furniture manufactured by
itself. In recent years the firm has been purchasing the stock of bankrupt stores in
order to augment the scope of its business. Indeed, it appears to be engaged primarily
in the retail sale of furniture. Of the approximately 150,000 square feet of floorspace
comprised in the premises of the firm, approximately 80,000 square feet, or more than
THE SUPERIOR UPHOLSTERY COMPANY 935
half, is in the retail store area . The departments of the firm are a refinishing depart-
ment, upholstery department, and a shipping and receiving department ,2 in addition to
the office force and the sales force. There are no less than 10 salesmen ,3 6 clerical em-
ployees,4 and 12 shipping department employees .5 As the total number of employees
probably does not exceed 45, it is apparent that the majority of them have been
engaged in manufacturing operations.
The success of any retail business depends on the ability of its sales force. This
would be particularly true in the case of a furniture business . As articles of furniture
are usually expensive , and are not frequently or lightly purchased , furniture salesmen
must be particularly versed in the arts of salesmanship , and possess a high degree
of persuasiveness and resourcefulness , in addition to persistence . Since Singer and
Burr were proud of the success they had made in their business , it is to be inferred
that their salesmen possessed these qualities .6 They were well paid for their services.7
and it is apparent that they would have the most prestige among the employees of
the firm . Even more important, in view of the events in which they were to become
involved , they appear to have been particularly devoted to their employees-8
There is no doubt that Singer himself thought that not only the salesmen but
all of the employees had reason to be satisfied . He considered that he was supplying
them with steady work under excellent working conditions . He sometimes helped
employees with personal loans, and allowed them time off to attend to personal
matters without docking their pay . He had also granted to the employees such
other benefits as group life insurance and Blue Cross coverage.
Singer was , moreover, no absentee employer . He was in the store from early
morning to late at night. He was not above lending a hand at anything, even if
it was only helping lift the end of a mattress . When he was on the stand, he
described himself as "President and General Manager of all the departments," and
he added : "I operate the whole business ." While he made this declaration in an
effort to disguise the undoubted fact that he had supervisory employees, it had
a measure of truth in it. He certainly worked as hard , if not harder than anybody
else, and he could get quite emotional when he thought of how he had built up the
business.
2 This includes , apparently , the warehouse employees and the truckdrivers . The head of
the shipping and receiving department is William A Jones.
3 Six of the salesmen were called as witnesses by the Respondent, namely, Raymond'
Liberati, Fred Verret, Elwyn D. Wakeman , Joseph Forte , George F. Johnson , and Walter
Kushay, who is not only the top salesman but general manager of the firm. The names of
four other salesmen may be gathered from the record, namely, Belzac , Fezlick , Fecitt,
and Corvo
4 The office employees are Lois Fogg, Elsa Pauline Swanson, Marie Fuller , Shirley
Wininger , and Lillian Perham. The record shows that Lois Fogg is the payroll clerk and'
bookkeeper and that Marie Fuller, who had been laid off prior to the hearing, was recep-
tionist and telephone operator . She also handled complaints about furniture that had to
be repaired In addition , there is John Silverwatch , the creditman.
5 The record reveals the names of only four of the warehousemen , and of one of the
truckdrivers . The warehousemen are Peter Wichrowski , Jake Dubofsky , Louis Rosa, and
Charles Harris , and the one truckdriver is Otis Batchelder . There are , however, three
other truckdrivers
6 However , the record shows that some customers who came into the Puritan Furniture
Mart possessed a high degree of sales resistance . If the salesman who was waiting on
the customer could not make the sale , it was concluded , as Singer explained it, that the
personalities of the customer and salesman did not fit , and the customer was turned over
to another salesman. This was known among the salesmen as a T.O. ( turnover). As
occasion demanded , little deceptions might also be practiced For Instance , Walter Kushay,
although he was the general manager, might be introduced to a customer as a "decorator,"
or Singer himself might pose as a "buyer."
7In addition to their salaries the salesmen received commissions . Raymond Liberati,
one of the salesmen , testified that his salary without commissions was $120 a week.
Walter Kushay, who was not only the top salesman but also general manager , received,
however, not only a salary of $155 a week but a monthly bonus of $210 Kushay was also.
in charge of advertising for the firm.
8 For instance , one of the new salesmen , Elwyn D. Wakeman , who was first employed in
the middle of November 1960, declared with evident emotion when he was on the stand:
"I have never been treated so well in my life, and I have made mistakes , they have been
just wonderful to me. There has been no criticism , it is a trial and error period for a man
learning a business , and they have been just wonderful " He also declared : "I just can't
say enough good things about the organization and management."
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. So far as their philosophy went, Singer and Burr certainly belonged to the
school of thought among employers who regard themselves and their employees
as just "one big happy family," and neither of them could understand why their
employees should be interested in any union. To unions they were unalterably
opposed. Burr candidly testified: "What knowledge I had of the actions of the
unions had never led me to believe they were a good thing to have, and I felt
a union was not necessary in my business. .. . Singer, who proved himself to
be an extremely reluctant and evasive witness, whose thought processes were some-
times rather obscure, attempted to disguise his views on unions, as shown by his
testimony when called as an adverse witness on behalf of the General Counsel:
Q. Did you hear the question. Did you want the Union in your store?
A. I don't know how to answer the question.
Q. Answer it the way-
A. If we did want the Union or if we didn't want it, it didn't matter with us.
Q. Did you not want the Union in the store?
A. It didn't matter, we operated 29 years happily engaged-one partner.
Q. Am I to understand then, you were indifferent to the idea of the Union
coming into your store?
A. It didn't make any difference.
Q. You didn't care whether it came in or it didn't come in, is that correct,
sir?
A. Well, it all depends on the way-this thing if getting deeper and it is more
than friendship-I didn't care whether it came in or didn't come in.
Q. Isn't it true that you didn't want the Union?
A. Never said that.
Q. Isn't it true you didn't want the Union?
A. No.
Q. Didn't you say on several occasions you didn't want the Union in there?
A. Never said it.
When Singer was called as a witness in his own behalf, his counsel tried to
straighten him out on his position with respect to unions but again he evaded the
question. He delivered himself only of the cryptic remark: "If we had a legal
authorized union, in other words, a union that all the boys would want, a union
that has been certified, I would have no objection." In other words, if a union won
an election, and was certified as the bargaining representative, he would perforce
bow to the inevitable.
However, along about December 1959, when the threat of outside unionism
began to materialize in the person of one Robert J. Ryan, an organizer for Local 919,
who began to make efforts to contact the employees of the Puritan Furniture Mart,
both Singer and Burr made their feelings about the Union all too plain. Ryan
testified that as soon as his efforts began he received a telephone call from Singer,
who told him that his employees did not need a union and to stay away from them.
Ryan replied to Singer that he would not stay away from his employees and that
the matter did not concern him. Persisting in his efforts to contact Singer's em-
ployees, Ryan went to the Puritan Furniture store a few weeks before the Board-
conducted election of January 31, 1960. It was near the end of the working day
and Ryan stood on the sidewalk waiting for some of the employees to come out
of the store so that he could talk to them. However, Singer came out of the store
and stood at the corner of the building looking in Ryan's direction. Singer did
not say anything to Ryan on this occasion but since he could not speak to any
of the employees while Singer was observing him, the union organizer left after
about 10 minutes. Shortly thereafter Ryan paid another visit to the outside of
the store but as he was standing on the sidewalk in front of the store, Burr emerged
from the store and asked Ryan what he wanted and what he was doing there. Ryan
made no reply to Burr but the latter told the union organizer to stay off the
property and keep out of the store.9
Despite the efforts of Singer and Burr to rid themselves of their unwelcome
visitor, the union organizer must have made substantial progress in interesting' their
employees in the Union, and in persuading them that it might be to their advantage
to give it their support, for otherwise no election would ever have been ordered,
and 13 of them would not have voted in favor of the Union when the election
took place.
e When Singer and Burr testified as witnesses in their own behalf, neither was called
upon to deny Ryan's testimony, and it stands, therefore, wholly uncontradicted.
THE SUPERIOR UPHOLSTERY COMPANY 937
B. Events prior ti the meeting of January 25
As the day of the election approached , the salesmen in the store began to discuss.
the situation , and, feeling that they did not need any outside union , they appear to
have conceived the idea of organizing a grievance committee to bargain with Singer
and Burr. The credit for this idea , which was hardly very original , was claimed,
apparently , by Salesman Raymond Liberati , for he testified that the idea of calling
a meeting of the employees to organize a grievance committee "started through
my discussions ." In the actual competition for leadership , however, he seems to
have been left behind , for Salesman Fred Verret testified that the drive was "spear-
headed by Johnson , Forte and I." 10 The record shows that the salesmen themselves
had no grievances 11 but , then, such grievance committees are almost by definition
committees organized by employees who have no grievances . As a group , the sales-
men were, of course peculiarly fitted for the task of organizing the grievance com-
mittee: to a lesser or greater degree they were adept in the art of salesmanship.
Liberati testified that Forte and Johnson were selected to get the grievance com-
mittee going because the salesmen felt that "they could express themselves better
than some of the other men."
Counsel for the Respondent would have me believe that "some" of the salesmen
only were involved in the discussions that led to the organization of the grievance
committee , and that the meeting that was called for that purpose was wholly spon-
taneous , the decision to call it being reached the very morning of January 25, 1961.
To indulge in either of these hypotheses would be, however , both contrary to reason
and the testimony of some of the salesmen themselves , who, although they attempted
to conceal the truth , sometimes revealed it unwittingly . The meeting on January
25 could hardly have taken place without some planning, and , therefore, could
not have been spontaneous , and it is difficult to understand how, with the discus-
sions going on among "some " of the salesmen , the others could have avoided in-
volvement or at least learned what was being discussed.
Liberati testified that he discussed the idea of the meeting "with other salesmen
on the floor ," characterized the discussions as "general discussions ," and added
that "we had talked about arranging a meeting ." Moreover , he defined the "we"
as meaning "the sales force ." Wakeman , when asked "Did you have any part in
arranging for this meeting Mr. Wakeman ?" replied: "Well , we all had talked a
little about it;' [Emphasis supplied. ] Verret testified on direct examination that the
idea of calling a meeting was discussed by "most" of the sales force but on cross-
examination he testified that "all" the salesmen were involved . Forte and Johnson,
who were spearheading the drive, testified , respectively , that the problem was dis-
cussed while a half a dozen of the salesmen were sitting around a desk, and "among
the boys on the floor." To be sure, the three salesmen who testified that "all" of
them were involved in the discussions attempted to back away from the "all"
when specifically asked whether the "all" included Walter Kushay, the general man-
ager. Wakeman, when asked whether he was including Kushay, replied , "No, sir,
he knew nothing about it as far as I know." [ Emphasis supplied.] Verret, when,
asked whether Kushay was one of those who participated in the discussions, re-
plied: "No, 1 don't think Mr. Kushay talked to me about it," and when pressed
to say whether he was positive , replied further : "I can't answer that , I don't think
he was." It is obvious that such denials as these are hardly very definite. The
only explanation that Verret could give for not discussing the idea of the meeting
with Kushay was that the latter just did not happen to be around at such times as
the discussions took place. Apparently nobody bothered to call him although, ac-
cording to all the salesmen , he was just "one of the boys." Kushay himself, also
denied, of course, that he was in anyway involved but he was no more truthful
in his testimony than the other salesmen . He denied , for instance , that he had
any part in selecting any of the three salesmen who were to serve on the grievance-
committee . But Verret admitted that Kushay was asked after the grievance com-
mittee was organized whether he wanted Verret to be one of the representatives.
to Johnson and Forte were two other salesmen Johnson had been with the firm for
some 8 or 9 years.
11 When asked whether any of the salesmen told him "why they didn 't want the union,"
Verret replied . "They diked the working conditions they sand were there , and no point in,
having a union . They mentioned this on several occasions " [ Emphasis supplied.]
Forte , one of the prime movers in the organization of the grievance committee, also
testified that the salesmen "were satisfied with conditions as they were ." Then there is,
of course , the glowing tribute which Wakeman paid to the management, and which I have
already mentioned.
038 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
If after, why not before? The refusal of the salesmen to admit that Kushay
participated in the discussions about the grievance committee simply reveals the
awkward dilemma in which the Respondent's witnesses found themselves. They had
testified that Kushay was not the general manager but simply an ordinary salesman
like themselves. But if Kushay was, indeed, just "one of the boys," why should
he not have behaved like one of them?
As for the alleged spontaneity of the decision to organize the grievance com-
mittee, Liberati explicity testified that the idea was not just broached on the morn-
ing of the meeting but "previous to that"; he thought that it was a "day or two
before that." Verret testified similarly that the idea was discussed "prior to January
25," and he, too, thought the discussion extended over "a day or two." Moreover,
he had already testified that the idea had been discussed "on several occasions."
Wakeman testified: "I don't think the meeting was just brought up that morning."
Forte also admitted to discussions prior to the meeting. When he referred to a
discussion on January 25, he was obviously referring to the particular discussion
of the six salesmen sitting around the desk. To be sure, two of the salesmen-
Wakeman and Johnson-also declared that the decision to hold a meeting on
January 25 was spontaneous but these declarations were obtained by grossly leading
questions , and Wakeman by so testifying only contradicted and discredited himself
as a witness , since he had already given testimony to the contrary. Of course, the
final decision to hold the meeting may, conceivably, have been made the morning
of January 25 but the discussions had certainly been proceeding for several days.
The reluctance to admit this is attributable also to the desire of the witnesses to
avoid implicating Kushay for, obviously, if the meeting were spontaneous, there
would have been less of an opportunity for Kushay to participate in the planning
stage.
C. The meeting of January 25
The grievance committee was finally organized at a meeting held in the mezza-
nine of the store on January 25. The meeting began at 9 a.m., which was when
work should have commenced in the store , and lasted probably from a half to
three-quarters of an hour, although it may have taken as much as an hour. All, or
virtually all, the employees attended the meeting, and among the employees who
attended were Walter Kushay, the general manager, and William A. Jones, the head
of the receiving and shipping department. .,
Counsel for the Respondent does not argue that the employees assembled spon-
taneously at the January 25 meeting. He is concerned, however, to rebut any im-
plication that the employees were "ordered" to attend the meeting. This implication
he finds in the testimony of Adhemar Benoit, a cutter in the upholstery shop,
who testified that on the morning of January 25 Forte and Johnson "came into the
upholstery shop and ordered us to go out to the mezzanine for a meeting. .
Forte testified that he went into the upholstery shop to "ask" the employees there
lo attend the meeting. Forte further testified that he and Johnson went around
to every department to notify the employees of the meeting, and his testimony on
this point shows that he did not leave the employees with the impression that they
had much choice in deciding whether to attend. "Well," he testified, "we called
the meeting , we went around in different departments, every department was noti-
fied about a meeting that morning, we got the fellows and the girls in the office
up at the mezzanine." [Emphasis supplied.] I do not construe Benoit's testimony
as amounting to an assertion that Forte literally ordered him to attend the meeting.12
Actually the testimony of two of the Respondent's own witnesses , Peter Wichrowski,
the warehouseman, and Lois Fogg, the payroll clerk and bookkeeper, reveals the
compulsive formula employed by Forte and Johnson in getting the employees to
12 Counsel for the Respondent denounces the whole of Benoit's testimony as "riddled
with fabrications and exaggerations " Benoit's credibility is attacked principally because
he testified that on the Thursday he quit his employment he had taken his scissors home
with him ; and that he "always" did this when he finished his day's work, or "practically
all the time" The Respondent called another employee in the upholstery shop, Joseph
Cistulli, a very big man with an almost inaudible voice, who, after first testifying that
Benoit had taken his scissors home on the particular Thursday, testified a minute later
that Benoit never took his scissors home-a patent contradiction. The scissors had, of
course, nothing whatsoever to do with any of the important questions in the case So far
as these are concerned , Cistulli demonstrated that his powers of observation and his
memory were not to be relied on He testified, for instance, that Kushay was a salesman,
and then admitted that Kushay "possibly could be" general manager. Cistulli could be
easily mistaken about the scissors since none of the upholsterers had separate workbenches.
THE SUPERIOR UPHOLSTERY COMPANY 939
•
the meeting. Wichrowski testified that "somebody went by me and said `everybody
up on the mezzanine,' and I went up." Lois Fogg testified to the same effect, al-
though she softened what she heard. She testified: "One of the girls said `everybody
is going up to the mezzanine, come with us.' " When Forte and Johnson were going
around openly in the store after the working day had begun, saying to the employ-
ees, "Everybody up on the mezzanine," it would have taken a bold employee indeed
to question their authority. Of course, I do not mean to imply that Forte and
Johnson were directly responsible for the attendance of each and every Puritan
Furniture Mart employee at the January 25 meeting. Once the movement of the
employees to the mezzanine had been started some employees would simply follow
along, like the children who followed the Pied Piper.13 This would be particularly
true of any employee who had arrived a bit late that morning.14
Once the employees had been assembled on the mezzanine , Johnson and Forte took
over the conduct of the meeting. It appears that Johnson acted as chairman 15 but
actually both Johnson and Forte managed the meeting. As Marie Fuller, the recep-
tionist and telephone operator, put it: "Mr. Forte and Mr. Johnson would interrupt
one another and they would go back and forth.. Benoit put the same thought
somewhat more vividly when he testified that Johnson and Forte "seemed to be
throwing the ball to each other."
Johnson opened the meeting, being the first to speak. According to Benoit, Johnson
told the employees that a union was trying to organize the place, that unions were no
good, that they did not need any union, and that they could do much better by
themselves if they formed a committee of some kind. That the substance of what
Johnson said is accurately reflected in Benoit's testimony appears from the testimony
which Johnson himself gave, after confessing that he had had "a great deal to say."
Johnson thus summarized what he said at the meeting: "In essence I felt this thing
had been going along pretty smoothly, and having a mother-in-law in the thing
wouldn't be a good practice, referring to the union as outside help as the mother-in-
law." Johnson then called on Forte to relate his experiences with unions, and Forte
responded by telling about long strikes which had been called by unions, and which
had resulted in the replacement of the strikers by their employers. The moral which
Forte drew from his experiences was just about the same as Johnson's, for Forte
testified that he told the employees that "we didn't want a middle man, we could
settle things among ourselves." Lois Fogg, also one of the Respondent 's own wit-
nesses, testified that what Johnson and Forte said at the meeting was that "if we had
problems, we should be able to hash them out among ourselves."
Upon concluding his remarks, Forte invited Wichrowski, one of the warehousemen,
to speak, and Wichrowski related experiences similar to Forte's own. Wichrowski
was followed by Lenny DeSipio, one of the upholsterers, who told about a firm in
which the management discriminated against anybody who joined the union. Sev-
eral of the salesmen 16 and several of the office workers 17 then also spoke and dwelt
on the theme that unions were undesirable ,18 or that outside interference was dan-
gerous.19 Lois Fogg, who, as bookkeeper, had a particularly intimate knowledge
of financial matters, dwelt upon the financial help which Singer had extended to
individual employees 20 The record shows that there were 14 speakers at the
13 Thus, Elsa Pauline Swanson, one of the office employees , testified : "I saw them walk-
ing by my window , I was nosey and wanted to go too"
14 An example of such an employee would be Marie Fuller , the receptionist and telephone
operator , who testified that she arrived shortly after 9 a in. on January 25, and followed
Gladys, the cleaning girl , into the meeting
is He was, apparently , peculiarly reluctant to admit to this honor . He gave the
following testimony on this point:
Q Did you preside at this meeting?
A. You might say that I did, yes
Q. What would you say?
A Well, yes, I did
14 The salesmen who , in addition to Johnson and Forte , spoke at the meeting were:
Wakeman, Walter Fezlick, and Fred Verret
17 The office workers who spoke at the meeting were Lois Fogg , Elsa Pauline Swanson,
and Marie Fuller.
l9 Thus Verret himself testified : "I said I didn 't think we needed a union there "
19 Wakeman expressed the thought that "outside interference coming into an organiza-
tion can upset things where they don't understand management "
21 Thus she testified : "I said that there were several employees there that had, over a
period of years, had personal problems that they had gone to Mr Singer with, and that
940 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
meeting,21 and that no less than 6 of them were from the sales department. Of the
14 speakers, only 1, Jake Dubofsky, the warehouseman, expressed any strong opinion
in favor of outside unions. He expressed disagreement with the views of Forte,
Wichrowski, and DeSipio, and pointed out, in particular, that he had worked for the
firm that was supposed to discriminate against union members, and that it was not
true that it did so.
Because of their status as supervisory employees, the roles of Jones and Kushay
in the meeting of January 25 is of special interest. Counsel for the Respondent
seeks to minimize their roles. In the sense that neither Jones nor Kushay dominated
the meeting, this is true, since Johnson and Forte rather than they directed the pro-
ceedings. But it is not true that Jones and Kushay did not join in the attack on
outside unions, and in the advocacy of an inside organization. Both spoke at the
meeting, although it is not clear from the record at what point in the proceedings their
remarks were made, and both testified with respect to the substance of these remarks.
Jones began his testimony by declaring himself to be "peeved" by the fact that,
apparently, information had been disseminated concerning what he called "an unor-
ganized union" without his having been contacted about it. He went on to say that he
had had extensive experiences with unions, particularly when employed by the Bigelow
Sanford Carpet Company in Thompsonville. He had been a shop steward, an
executive board member of the negotiating committee, and chairman of the union
° time-study committee. Based on these experiences, it was his opinion that "in gen-
eral unions were good" but that he was "ill at ease" because of the way the situation
had apparently developed at Puritan and because of the belief that it was "necessary
for people who have grievances or complaints to collectively attempt to work these
complaints out themselves prior to calling in outsiders to help them with their
problems." [Emphasis supplied.] He ended his remarks, however, by declaring
virtuously that each employee should "examine his own conscience and vote in the
election as he saw fit."
Jones showed himself to be a well-spoken and extremely self-possessed individual,
as well as a person who was accustomed to give orders. Yet during his cross-examina-
tion, he attempted to maintain that he was "just a shipper," that he had no employees
working under him, and that he never gave "orders," although he admitted that he
sometimes gave what he called "directions." These assertions of Jones, if true, would
leave unexplained how a department of the firm that had 12 employees, and that
included not only shipping and receiving but warehousing functions, could operate
without any effective head. As a matter of fact, one of the Respondent's previous
witnesses, Peter Wichrowski, had already testified that Jones was "the head of the
shipping department," and "the foreman over me," and in the end even Singer, who,
as usual, long evaded committing himself on the point, was compelled to admit:
"Yes, Mr. Jones is in charge of the shipping room." Moreover, Jones in the end fell
into a trap which was his undoing. When asked about the time when the meeting
of January 25 began, he testified that it must have been approximately 9 o'clock
"because it is at that hour we have our trucks loaded and ready to go, and I
couldn't get my trucks off because the men disappeared to a meeting." Jones was
then asked: "How did the meeting come to your attention" and he replied: "Only
by the absence of my men." [Emphasis supplied.] Upon these answers being called
to his attention, Jones tried to undo the damage, although not very successfully, by
explaining that "my trucks" and "my men" were just "figures of speech."
Kushay's technique in testifying about his attendance at the January 25 meeting
was quite different from that of Jones, who had pretended to grief at being slighted.
Kushay attempted a casual approach, as if his attendance at the meeting was practi-
cally accidental, his presence there so evanescent, and the meeting itself so disorderly
that he could hardly remember very much of what had been said and done there.
Thus, he testified that he did not come in until 9:15 or 9:20 the morning of the
meeting, and became aware that the meeting was in progress only because there was
"milling around on the mezzanine." Even then, he further testified, he did not go up
to the meeting of his own accord. His testimony on this point was: "As a matter of
fact, Liberati waved me on to the meeting, I didn't know what it was all about."
Asked whether he was "asked to voice an opinion" at the meeting, Kushay replied:
"I wasn't asked formally to voice an opinion, but I tried to squeeze one in ." [Empha-
sis supplied.] Squeezing in an opinion would, of course, be supremely casual. It
seems also that the squeeze, according to Kushay, was necessary because the meeting
Mr Singer had rendered them financial help that I knew of because I make out the pay-
roll checks; I mentioned no names, of course; they had been granted individual help"
=In addition to those already mentioned, these were Kushay, Jones, Otis Batchelder,
one of the truckdrivers, and Jake Dubofsky, one of the warehousemen.
THE SUPERIOR UPHOLSTERY COMPANY 941
"was more or less like a jam session" and also "like a jamboree." In any event, he
admitted to edging Johnson, and finally squeezing his opinion in. "I had this to say,"
he testified, "I see no unhappy faces here, however, I worked in this place, I left this
place, and I was very happy to come back to this place." Benoit having testified that
Kushay had also said that unions were no good and only interested in collecting dues,
and that they could do much better by themselves with a negotiating committee,
Kushay was called upon to deny, and did deny, that he had expressed any opinions
about unions at all. Finally, he testified that he had not stayed very long at the meet-
ing, leaving "when they started discussing something about committees."
While Kushay, like Jones, does not seem to have made himself particularly con-
spicuous at the meeting of January 25, there is no doubt that whatever he said did not
strike a discordant note, and that even if he may not have directly suggested the
formation of a grievance committee, his remarks were certainly not designed to dis-
courage such a step. Indeed, Lois Fogg, who was certainly a witness who favored
such a step, testified that Kushay at the meeting not only spoke of his happiness in
returning to the Company after once leaving it but also expressed the thought that
"the employees should think about their employment with the Company." [Empha-
sis supplied.] This, certainly, was an ominous remark and tends to discredit his
denial that he said anything against unions.
There is no doubt, too, that Kushay exaggerated the lateness of his arrival at the
store on the morning of January 25. The meeting started at 9 am, and he was
only a few minutes late in getting to the meeting.22 I credit his testimony that he
left the meeting as soon as the organization of the grievance committee actually com-
menced. His late arrival and early departure would be natural in his case. A person
of his importance could not be expected to go to the meeting, until it had been set up,
and it is readily understandable why he should leave the meeting as soon as the
mechanics of organizing the grievance committee had commenced. However, Kushay
by denying, like Jones, that he was a supervisory employee, got himself into the same
awkward dilemma as when he denied that he participated in the prior discussions of
the salesmen about the plan to organize a grievance committee. If, indeed, he was
not a supervisory employee, there was no reason why he should have left the meet-
ing when he did Kushay made his position even more untenable by admitting that,
although his title with Superior was "Sales Manager," it may have appeared in the
Hartford papers as general manager.23
Kushay having departed from the mezzanine, what might be called the business
phase of the January 25 meeting began. Johnson or Forte suggested the formation
of a grievance committee that could deal with Singer, the committee to consist of
three representatives from each department of the firm. But before a vote could
be taken on this proposition, Marie Fuller, the receptionist and telephone operator,
demurred against such hasty action, and suggested that the employees be allowed
until the following day to think it over. Apparently agreeing, Johnson adjourned
the meeting until the following day when, as Marie Fuller put it, "We could make our
,own selection and choose our own committee to forward our grievances to Mr.
,Singer." Even more significantly, Marie Fuller testified that Forte said at the meet-
ing that "Mr. Singer would listen and cooperate with our committee."
The implied promise to Marie Fuller to wait until the next day was not kept.
The grievance committee representatives were selected later the same day. The
office employees elected three of their number to represent them on the grievance
committee, namely, Lois Fogg, Elsa Pauline Swanson, and John Silverwatch. There
were also elections, apparently, in the shipping, upholstery,24 and refinishing depart-
22 Although Lois Fogg testified that Kushay arrived at the meeting 10 to 15 minutes
after it started, she must have been mistaken on this point Two of the Respondent's own
witnesses testified to the contrary. John Silverwatch testified that Kushay came to the
meeting "slightly after the meeting was in progress," and Peter Wichrowski testified that
Iiushay came in "a few minutes after the meeting, after everybody was there" More-
over, Kushay himself testified that "Johnson was talking as I went in" and it was
Johnson who opened the meeting
= If there could be said to be any doubt concerning the status of Jones and Kushay, it
must be regarded as settled by the stipulation entered into by counsel for the Respondent
at the hearing in the representation proceeding Counsel for the Respondent then stipu-
lated that Jones and Kushay were supervisory employees While the Respondent was
afforded an opportunity to prove the contrary in the hearing in the present case, the
evidence only reinforces the stipulation
21 The employees in the upholstery department marked the names of the representatives
.on slips of paper, and Johnson and Forte came into the shop with an empty cigar box in
which they collected the slips of paper.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments but the record shows the names of only two of the representatives of the ship-
ping department. These were Charles Harris, a warehouseman, and the Jake
Dubofsky who had been the revolte at the meeting. The three representatives
of the salesmen were Johnson, Forte, and Verret but they were selected rather than
elected. Needless to say neither Jones nor Kushay was chosen as a representative.
It is significant that Charles Harris, who was later elected chairman of the grievance
committee , could not remember the names of a single one of the representatives
from either the upholstery or refinishing departments, and did not even know the
names of the salesmen who had been appointed representatives. Moreover, Charles
Harris testified that he did not tell either Singer or Burr of the existence of the
grievance committee after it was formed. If this was so, it could only have been
because it was an open secret!
Indeed, the testimony that both Singer and Burr gave with respect to their aware-
ness of the purpose of the meeting and the existence of the grievance committee
can only be characterized as astounding. They even attempted to deny that they
understood the purpose of the meeting after it had taken place or that the grievance
committee had been organized' They made these attempts, moreover, despite the
fact that Singer in a prehearing affidavit dated February 15, 1961, had deposed
that (1) both he and Burr were on the premises at 9 a.m. on January 25, and that he
personally saw Kushay going up to the mezzanine; (2) while the meeting was going
on, he tended to the store; (3) he did not even ask anyone about the meeting because
he was afraid that "it was a union meeting," and he did not want to be charged
with unfair labor practices, and, finally, (4) "before the day was over," he learned
that there had been complaints at the hearing that he did not listen to the employees'
grievances, and that there had been suggestions that a committee be formed to talk
to him about it. Yet at the hearing he tried, with manifest anguish, to shy away
even from those admissions. After the meeting, he testified, "I learned certain things,
what the meeting was about, I didn't want to dig, my lawyers told me don't interfere,
don't ask nothing." But he did not precisely define these certain things. After
testifying: "I didn't know whether it was a meeting for the union," he was asked.
the following questions and gave the following answers: 25
Q. Do I understand you believed it was a union meeting?
A. It might have-it might have been a union meeting.
Q. Was it your belief that this meeting that you observed on January 25 was
a union meeting?
A. My belief is, I didn 't know what it was, sir , this is a 100 percent true
statement.
Q. You made no effort to find out?
A. No.
Q. And you say you made no effort to find out because your attorney told'
you not to interfere with them?
A. My attorney said-he said to don't interfere, it might be a violation.
Q. This meeting went on, I take it, for an hour?
A. To me, it looked like a long time, but I think it was half an hour.
Q. This was between 9:00 and 10:00 a.m. in the morning?
A. Yes, sir, my partner got in, the meeting was already in progress, everybody
was running, we didn't know where.
Q. By the way, did you know that some of your supervisors were at the
meeting?
A. I didn't know who was there, I didn't care because it was enough on my,
heart to see everybody running all of a sudden without getting an okay from me.
After failing to remember whether he saw Kushay " going in the direction of`
where the meeting was being held," although he had remembered it clearly at the
time he had made his affidavit, Singer even went on to express disapproval of the
meeting, despite the fact that he had kept this disapproval strictly to himself, and
had not docked the employees' pay because they had attended the meeting. Thus,
he testified:
Q. Isn't it abnormal for all the employees in your store to leave their stations.
and to attend a meeting without your approval?
A. It is abnormal, and I was disappointed about it.
Q. For that matter, it never happened before?
A. For that matter, it shouldn't have happened here.
Q. You say you disapproved of it?
A. I disapproved 100 percent.
The rulings on objections are being omitted.
THE SUPERIOR UPHOLSTERY COMPANY 943
Q. Did you disapprove it severely?
A. By doing what?
Q. Did you disapprove it enough to dock their pay?
A. We never docked anybody's pay without leaving the premises.
Q. You state you didn't disapprove it to that degree?
A. I disapproved it a hundred percent, no other ways, a hundred percent.
Q. The hundred percent did not include not paying them?
A. Because we never docked , there are people in there when they take off
for an hour we've never docked them.
Although Burr knew , of course , that the meeting of January 25 was in progress,
he did not attempt to explain his failure to interfere by invoking the advice of any
lawyers.26 He testified that he simply felt that "the employees undoubtedly had a
right to have a gathering as a group to discuss with themselves their particular group
attitude ." Like Singer, he also invoked "the established practice " of the firm not
to dock employees when they had to attend to matters of a personal nature. How-
ever , Burr was even more emphatic than Singer in maintaining that he did not learn
of the existence of the grievance committee until after the election . Yet he admitted
that he had talked immediately after the meeting to a considerable number of the
employees who had attended it. Even after these conversations , he assumed that the
purpose of the meeting was "to discuss their own personal feelings individually for or
against the proposition of having a union " ( by which he meant Local 919).
D. The meeting of January 26
On January 26 there was another meeting on the mezzanine . It started about
10 a.m., and lasted for about one-half or three-quarters of an hour . During this
meeting the rear door of the store was locked , and a Mr. Lippman , who visited the
store as a representative , was called upon , as Burr put it, to baby-sit for the store,
which is to say that he took care of the business . The January 26 meeting was ad-
mittedly called by Singer and Burr , and the employees were paid for the time which
they spent at this meeting.
At this meeting Singer read a statement prepared by his lawyers, and after the
meeting a copy of the statement , signed by Singer and Burr, was mailed to each of
the employees . The statement was an appeal to the Puritan Furniture Mart em-
ployees to vote against Local 919 in the approaching election which was only 5 days
away. The statement can be summarized as a disquisition on the disadvantages of
outside unions, and the advantages which were already enjoyed by the Puritan Furni-
ture Mart employees ( 14 separate advantages were listed ). The last paragraph of
the statement reads as follows:
We believe that our many years of working together in a direct personal
manner without outsiders in the picture-without your loss of your right to
speak for yourself and without you or your family suffering the loss of a single
day's pay because of strikes or work stoppages-clearly shows that a union is
not needed here and would not be an advantage to you . We believe that you
feel the same way and will not be fooled by the promises of the paid organizers.
We hope and believe that on January 31, you will exercise your secret ballot to
VOTE NO!
The meeting of January 26 was not confined , however, to the reading of the pre-
pared statement , which could not have taken very long. After it had been read,
Singer and Burr made some extemporaneous remarks, and a few employees asked
questions or made some comments. In their extemporaneous remarks both Singer
and Burr dwelt upon how they had built the business up, and expatiated on the theme
that they and their employees were "one big happy family." If Kushay is to be be-
lieved , there were tears in Singer 's eyes, so that , although he spoke for 15 minutes,
he could not say very much . The fact remains , however, that he said enough to
make it clear that the happiness of the family could continue , and the employees be
provided with full employment , only if he could handle their grievances without
outside interference . Burr spoke to the same effect . If the prepared statement may
be described as election propaganda against Local 919, the extemporaneous remarks
of Singer and Burr may be described as veiled appeals for support of the grievance
`6 In his affidavit , Singer, too , did not mention that he had consulted his lawyer But
even if he did , it is inconceivable that his lawyer would have told him that he could not
rebuke employees who did not attend to their duties
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee, coupled with distinct intimations that continuance of full employment was
dependent on the handling of grievances without outside interference.
Thus, Marie Fuller testified that Singer suggested that "as one big family we could
operate without any outside help or interference, and that we could best do that with-
out a union .. ," and also declared that he was ready to talk to the employees at
any time, although he was not promising them anything. It was in this connection
that Marie Fuller asked Forte whether he had been speaking for Singer at the meet-
ing the previous day when he told the employees that Singer would listen and co-
operate with their committee. Forte, however, never got to answer the question
because Singer interrupted him to say that although he could not promise anything
"at this time," his door was always open. That Marie Fuller correctly reported the
substance of Singer's and Burr's remarks is apparent from their own testimony.27
Other employees testified along similar lines. Lois Fogg testified that Singer empha-
sized steady employment, and said that they would try to see that all jobs were secure
in the future, although he would make no promises "to do any other than what he had
done in the past." Wakeman and Forte testified in substance that when Singer spoke
of their being one happy family, he added that he would like to keep it that way.
Even more significantly Silverwatch testified that Singer and Burr stated at the meet-
ing that "if there was any grievances they would be very happy to listen and straighten
them out, but they did not know of any difficulties or grievances in the store, they
were not familiar with them." Apparently what impressed Jones most about Singer's
remarks was also the latter's emphasis upon the steady work provided by the firm
but in testifying about this Jones again proved to be a rather embarrassing witness for
the Respondent, for he revealed that Singer inferred that he would be able to supply
steady work "if there was no outside interference." As Jones put it: "His practice
had been to keep them and he wanted to be able to continue that practice, and he felt
he could do so if there was no outside interference, this was inference, he did not
specifically say `outside interference,' I make that distinction." As for what the
employees may have said at the meeting, the record reveals only what was said by
Elsa Pauline Swanson, in addition to Marie Fuller. When it came her turn to speak,
Swanson declared, being tired of all the griping: "Let's try to give a little bit here
and we'll get." When pressed to explain this, she testified that she was asking for
a spirit of cooperation rather than encouraging the voicing of grievances. When
asked what the purpose of the grievance committee was, she expressed the opinion
that "it didn't amount to anything anyway."
This opinion is readily understandable, from an employee viewpoint. It is ap-
parent, however, from the very timing of the meeting of January 26, that Singer
and Burr did not share this opinion. The grievance committee having been launched,
it was important that a more direct attack against Local 919, in which Singer and
Burr themselves should participate, should be made without further delay. Burr
testified, to be sure, that the meeting of January 26 "had been planned a week in
advance," but his own testimony about the visiting representative, Mr. Lippman,
who just happened to be in the store at that time, is inconsistent with advanced
planning that went so far as to select a particular day. Moreover, Burr's testimony
is inconsistent with Singer's on this point. When asked- "This was a pure accident
that the meeting you called should occur the day after January 25?" he replied:
"That is the day my partner and I decided to have a meeting, it had nothing to
do with the other meeting, sir." Of course, it was quite possible that Singer and
Burr had planned to have a meeting with their employees sometime before the
election, and in this sense a decision had already been made to hold a meeting.
But this decision need not have extended necessarily to the selection of a particular
day. Moreover, if in fact a meeting on January 26 was planned a week in ad-
vance, then it would be only because the meeting of January 25 had also been
planned a week in advance. In any event, the effect of the meeting of January 26
upon the employees would be precisely the same whether it had been planned in
advance or was born upon the inspiration of the moment. This effect was certainly
27 Singer testified that he told the employees at the meeting that he and his partner had
listened to each employee individually, and Burr told the employees that if they thought
about it they would conclude that "they could continue to deal with us in the same man-
ner in the future as they had in the past, and without the help of outsiders to guide them
in their thoughts." Burr ended his remarks by referring to the prepared statement which
he described as "a paper to state that we felt we could handle it without a union." Asked
whether in the paper the employees had been told to vote "No" In the election, Burr char-
acteristically replied: "Did not use the word 'No'" However, the prepared statement
concludes with the admonition in large bold-faced type: "VOTE NO"
THE SUPERIOR UPHOLSTERY COMPANY 945
to make clear to the employees that Singer and Burr were in favor of the very
procedure which had been developed the previous day to deal with their grievances.28
E. The meeting of February 1
Once the employee representatives to serve on the grievance committee had been
selected, it would have been normal procedure for them to elect officers and approach
their employers with a request to meet with them. Actually, they seem to have
gone underground for a week. But on January 31, the Board-conducted election
was finally held, and the grievance committee representatives came out into the
open. On February 1, they held a meeting for the purpose of electing officers and
of deciding upon the requests to be made to Singer and Burr. Needless to say,
this meeting, too, took place on the mezzanine of the store but it was held in the
afternoon rather than in the morning. It commenced about 1:30 p.m. and lasted
perhaps an hour.
Three representatives from each department appear to have been present, which
would be 15 in all, although, as previously indicated, the names of only 8 of them
are of record The representatives present elected Charles Harris, the warehouse-
man, to be chairman, and Lois Fogg, the payroll clerk and bookkeeper, to be
secretary of the grievance committee. Judging from his behavior on the stand,
both as a witness for the General Counsel and the Respondent, Harris' chief
qualification for the chairmanship was that he was a man of few words-not
given to unburdening himself unduly. The utility of a clerical employee as sec-
retary is obvious. No treasurer was chosen, since the grievance committee, which
was using company facilities, had no need to raise any funds. For the same
reason no provision was made for the payment of initiation fees, dues or any other
assessments.
The officers having been elected, the grievance committee proceeded to business,
and Lois Fogg made some minutes of the meeting. As she put it: "Yes, I scratched
a couple notes." The business of the meeting was to obtain suggestions of griev-
ances or requests to be presented to Singer. Of the suggestions made six were
adopted, and Lois Fogg was asked to reduce them to writing. This she did "on
some paper that was in the office." As typed up by her, six items were listed,
as follows:
1. 20% increase (to counteract 30% to 40% increase in cost of living).
2. 40 hours for refinishers, truckmen and warehousemen, same as 40 hours
worked by the upholstery shop.
2A. Six. paid sick days per year per each person.
3. Accident and health insurance plan.
5. Savings bond plan-entirely voluntary on part of employee.
6. Blue Cross to be paid 100% by firm regardless of whether individual or
family plan.29
After it was typed up, the list of requests was presented by Harris to Singer at
the door to the latter's office. Harris was rather taciturn about this presentation,
the more so than when he was testifying as a witness for the Respodnent. As a
witness for the General Counsel, he had testified as follows:
Q. What did you say when you gave it (the list) to him (Singer)?
A. I gave it to him, said the list came from the committee.
Q. What did he say?
A. He took it and put it in his pocket and said "okay."
Q That was the extent of your conversation?
A. Right.
28 Perhaps the most remarkable of the contentions made by counsel for the Respondent
is that what Singer and Burr said at the meeting of January 26 was a disavowal of what-
ever Jones and Kushay may have said at the meeting of January 25! This contention is
all the more remarkable because counsel actually objected at the hearing to the reception
of any evidence concerning what was said at the meeting of January 26 on the ground
that the occurrence of this meeting was not specifically alleged in the complaint If, in
fact, what was said by Singer and Burr at the January 26 meeting was a disavowal of the
events of the previous day, the testimony concerning this meeting should have been wel-
come indeed Although the occurrence of the January 26 meeting was not specifically
alleged in the complaint, the evidence relating to it was admissible because it shed further
light upon the events of the previous day.
29 The rather peculiar numbering of the items is reproduced as it appears in the original.
630849-62-vol. 134-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But, as a witness for the Respondent , Harris testified : "I never spoke to Mr.
Burr about it (the list), and actually never spoke to Mr. Singer about it, all I did
was to give him the slip . . . ," and all that Singer did was to put the list in
his pocket. Be it noted that when Harris, in giving Singer the list, told him that
it came from the committee, Singer did not ask: "What committee?" Singer did
not dock any of the employees for the time which they spent at the February 1
meeting, and he granted two of the requests made to him. These were requests
Nos. 2 and 3, which were, respectively, a 40-hour week for refinishers, truckmen,
and warehousemen, and the accident and health insurance plan. The granting of
these two requests seems to have exhausted the raison d'dtre of the grievance
committee-at least for the time being. In any event, it has held no meeting since
February 1.
Singer's testimony concerning the meeting of February 1 was quite typical.
He could no longer deny, of course, that he had finally learned of the existence
of the grievance committee. Consequently, he even admitted that he saw the em-
ployees on the mezzanine 30 and walked up there to talk to them. But he pre-
tended, nevertheless, as usual, that he disapproved wholly of the holding of the
meeting, and that it had absolutely no influence, moreover, upon his subsequent ac-
tions. He testified:
i Mr. Burr and I attended a church dinner and we came in, it was the time
that we came in, all of a sudden we saw quite a few people sitting upstairs
very comfortable, instead of selling furniture they were sitting down, this was
after the election, so I came in and I walked upstairs, I figured, "what is
going on now," as I walked upstairs they told me they were having a meet-
ing for a few minutes after the election, I walked downstairs and after about
a half hour they came right down about five minutes after they saw me, and
then afterwards Mr. Harris presented me with a piece of paper. .. .
This piece of paper seems to have filled Singer with the most acute embarrass-
ment. He attempted to create the impression that when Harris gave him the paper,
he hardly knew what it was! "I read it very little," he testified, and he could not
even remember what the paper contained. Indeed, at this point he became so
disconcerted that he began to confuse the whole sequence of events, and actually
testified that he received the paper from Harris and discussed it with Burr the day
before they themselves called the meeting on the mezzanine. Indeed, Singer testi-
fied to this effect no less than three times but he did so most explicitly in the follow-
ing testimony relating to the paper presented to him by Harris:
Q. On this paper was contained a list of proposals that this committee wanted
of you?
A. If this is what you call it.
Q. What do you call it?
A. I examined it afterwards and went over it with my partner , no part were
we going to have anything to do with it ; the next morning, the very next morn-
ing we called a meeting, the truckmen , the finishing department , we told them
that every person will be paid in accordance with his work individually... .
[Emphasis supplied.]
This would mean that the grievance committee had met, elected officers, formu-
lated its grievances , and presented them to Singer through Harris on January 25!
However, what is most astounding and unbelievable about Singer 's testimony relating
to the paper Harris gave him was his attempt to deny that the action which he took
with respect to it had anything to do with his receiving it. Thus, he testified:
Q. Did you grant any of the requests or proposals referred to or described on
the document? ,
A. Anything we granted had nothing to do with the document, sir.
TRIAL EXAMINER: That is not the question; the question is, "did you grant
any of the requests?"
The WrrNEss : None of the requests on the paper.
Q. (By Mr. KowAL. ) Did you later change the hours to 40 hours for refin-
ishers, truckmen , and warehousemen?
A. After a speech given to them that they please cooperate , that we can do
the same amount of work in 40 hours.
30 The fact that employees meeting on the mezzanine could be seen by anyone walking
into the store makes it apparent that Singer must also have seen the employees when the
meeting of January 25 took place.
THE SUPERIOR UPHOLSTERY COMPANY 947
Q. In any event, this was a change that occurred after February 1?
A. It occurred.
Q. That was something that was described on that document?
A. It don't matter, it had to do with business because we didn't need any more.
Q. After February 1, 1961, did you introduce an accident and health insur-
ance plan?
A. That was in operation for a long time that we were supposed to introduce.
Q. But you didn't introduce it until after February 1, 1961?
A. On the insurance company papers.
Q. You didn't introduce it until after the election?
A. We didn't introduce it until after the election.
Q. This was also a proposal contained on this document, wasn't it?
A. I don't know, but this had to do with the year before.
F. Concluding findings
I must conclude that the allegations of the complaint have been fully substantiated.
I am aware, of course, that Singer and Burr deny any personal involvement in the
formation of the grievance committee, and that there is, therefore, no direct proof
of their complicity in this respect. The commission of unfair labor practices may
be established, however, by indirect evidence. It is possible of course, that as an
idea the grievance committee may have originated in the discussions of the salesmen
but the subsequent conduct of Singer and Burr plainly indicates that they enthusi-
astically adopted the idea as soon as it was suggested, and promoted it assiduously.
As the Seventh Circuit had occasion to say in a very recent case involving 8(a) (2)
charges: "Actions speak louder than mere words." 31
In any event, the actions of Kushay and Jones, who were supervisory employees 32
and who were present at the meeting of January 25, are attributable to the Respond-
ent.33 Singer and Burr had knowledge of their attendance at the meeting, and
neither reprimanded them, nor took any steps to repudiate what they had done or
said. Indeed, Singer and Burr followed up their actions and pronouncements by
calling a meeting of their own to make clear to their employees that they favored
direct dealings with them, and that they were prepared to listen to their grievances
if there were no outside interference. While it is true that neither Kushay nor
Jones presided over the meeting of January 25, their mere presence there was enough.
Although a disproportionately large part of the testimony in the present case has
to do with the question whether Kushay and Jones were supervisory employees, the
outcome of the case would not be materially affected, moreover, even if it could
be concluded that they had no supervisory status. The evidence supports the con-
clusion that the Respondent had two other agents in Johnson and Forte. Supervisory
status is important as an indication of agency but it is not the sole criterion. Agency
may be shown by other evidence, and it is shown in the present case by the evidence
relating to the manner in which Johnson and Forte convoked the meeting of Janu-
ary 25 during working hours on company premises. At the meeting of January 25,
Johnson and Forte, moreover, told the employees that Singer would listen and co-
operate with their committee, and when reference was made to this assurance at
the meeting on the following day in the presence and hearing of Singer, he said
nothing that could be regarded as a repudiation of Forte's assurance.
Counsel for the Respondent argues that the Respondent was justified in failing
to dock the pay of its employees for the time that they spent at the various meetings,
in view of its policy of permitting employees to take time off for personal reasons
without loss of pay, and in view of the impending election.
It should be obvious that the policy of allowing a single employee, or a few
employees, to take time off on a given day without loss of pay to visit a doctor or
a sick aunt, or to do a little shopping, falls in quite a different category from the
policy of paying all the employees when they abandoned their work at the same time
st See St Louis Independent Packing Company, a Div. of Swift & Co. v N L R B., 291
F. 2d 700 (C.A. 7).
32 The fact that neither Kushay nor Jones had the power to hire or fire is not decisive.
See N L R B v. Link-Belt Company, 311 U S. 584, 599.
33 See International Association of Machinists, Tool and Die Makers Lodge No 35 v.
N L.R.B , 311 U.S. 72, 80, in which the Court said : "The employer, however, may be held
to have assisted the formation of a union even though the acts of the so-called agents were
not expressly authorized or might not be attributable to him on'strict application of the
rules of respondeat superior,."
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in order to engage in concerted activity . The established policy permitted the busi-
ness to continue , with perhaps a slight degree of inconvenience , while the other
policy would necessarily , and did actually, result in the total cessation of all busi-
ness activity . This other policy could find its justification only in some overriding
emergency , which in this case arose in the Respondent 's desire to defeat the outside
union.
How the pendency of the election justified the failure to dock the employees for
the time spent at the organizational meetings of January 25 and February 1 remains
extremely obscure. Apparently , counsel for the Respondent thinks that the failure
to dock would have created a situation in which "Union strategy-by which he
means, presumably Local 919-would dictate the calling of any employee meeting
prior to an election and thereby giving the employer the hard choice of either docking
when it has never docked and at a time when it is most inopportune to dock, or
not docking at all , and having the election set aside." If I understand this argument
at all , it seems to be that whenever a union holds a meeting in its own hall prior
to an election , the employer is privileged to hold a meeting on his own premises
to counter the union 's propaganda effort , and to pay the employees for the time
spent at the meeting . But such an argument , even if valid , could apply only to the
meeting of January 26. The meetings of January 25 and February 1 were not
limited to countering union propaganda . They were in fact organizational meetings.
Counsel for the Respondent seems to overlook also the fact that the Respondent's
support of the grievance committee was not limited to paying its employees for the
time they spent . at the meetings. It extended far beyond this form of assistance. It
included also making its premises available for the meetings , and extending the use
of other facilities to the supporters of the grievance committee , not to mention the
provision of a captive audience , and the attempt to carry on the business of the firm
while the meetings were in progress.
One of the major arguments of counsel for the Respondent is that whatever may
have been said by Singer, Burr , Kushay, and Jones , since it included no threats or
promises, was only an exercise of the right to free speech guaranteed by Section
8(c) of the Act, and could not be introduced as evidence of any violation of the Act.
In particular counsel insists that whatever was said at the meeting of January 26,
was permissible preelection propaganda ; that at no time did either Singer or Burr
make any promises or give any encouragement to group activity, and that when
Singer in his affidavit referred to "grievances" he was referring to the grievances of
individual employees.
It is apparent that this argument rests for the most part upon an interpretation
of the evidence not supported by the record-Singer was inviting group activity,
although it is true , of course , that groups are composed of individuals-as well
as upon theoretical misconceptions of the scope of the guarantee of free speech.
While "inside" unions are not proscribed by the Act, and the owners and super-
visory employees of the Respondent could well entertain such views and express
them to their employees at a preelection meeting, their attitude toward unions are
relevant in determining whether they interfered with an organization of their
employees ,34 and the expression of their views are not to be considered in isolation but
in the context of any acts of interference and assistance which are proscribed by
Section 8 (a)(1) and ( 2) of the Act. While speech that contains no threats or
promises of rewards or benefits is privileged, speech that has the effect of interfering
with the organizational rights of employees is not privileged but constitutes an un-
fair labor practice . Thus, anything said by way of encouraging the organization of
the grievance committee as an alternative to the outside union which had already
been denied access to the employees by Singer and Burr was not privileged but con-
stituted an unfair labor practice . Nothing could better illustrate the misapprehen-
sion of this distinction by counsel for the Respondent than his contentions that
the evidence of Marie Fuller, which included the testimony that Forte assured the
employees at the January 25 meeting that Singer would listen to and cooperate with
the committee, was actually favorable to the Respondent , and that the testimony
of Ryan , which establishes not only the hostility of Singer and Burr to Local 919
but the steps they took to deny access of the Union to their employees , "was obvi-
ously not, nor could it be, relevant to the issues involved !" On the contrary, by pro-
moting the formation of the grievance committee after excluding the Union from
its premises , and in order to deter its employees from engaging in outside union
84 See N .L R B. v Link-Belt Company, supra, at page 588, where the Court said: "The
employers ' attitude towards unions is relevant."
THE SUPERIOR UPHOLSTERY COMPANY 949
activities, the Respondent interfered with the rights of its employees to self-
organization, and hence independently violated Section 8(a)(1) of the Act.35
Finally, it is not true that what was said by Singer, Burr, and their agents to the
employees at the meetings of January 25 and 26 was wholly devoid of threats or
promises. It was certainly intimated to the employees that the continuance of the
happy family relationship and of steady employment was dependent upon the ab-
sence of outside interference. The threat may have been veiled but, in the context
of Singer's and Burr's well-known hostility to outside unions, their remarks may
well have had a coercive effect upon their employees. As for the making of promises,
Singer was careful to comply with the letter of the law by saying that he was making
no promises but he himself added that his door was always open, and Forte on his
behalf had told his employees that he would listen and cooperate, which amounted
to an invitation to submit their requests or grievances, and a promise to consider
them. What Singer really had in mind must also be judged in the light of what he
subsequently did, which was to confer upon his employees at least two of the benefits
requested by them. The fact that the benefits were postponed until the day after
the election does not make them any the less beneficial. They were then conferred
nunc pro tunc.
So far as the election of January 31 is concerned, it must be assumed that the re-
sult was influenced by the conduct of Singer and Burr prior to the election, since
this conduct included acts of interference and assistance in violation of Section
8(a) (1) and (2) of the Act. There is no merit in the Respondent's contention
that since Local 919 knew of the Respondent's unfair labor practices before the elec-
tion that it ought not to beset aside. The rule is that any conduct may be considered
which occurs after the date of the Board's Decision and Direction of Election,36 and
the unfair labor practices in the present case occurred after this date.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in section III, above, occurring
in connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, nand commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has interfered with the rights of its employees
in violation of Section 8 (a) (1) and (2) of the Act, I shall recommend that the Re-
spondent cease and desist from such practices and take such affirmative action as
will effectuate the policies of the Act. As the complaint does not allege that the
Respondent dominated the grievance committee, and the General Counsel emphasizes
the absence of such an 'allegation, I shall recommend the withholding of recognition
from the committee but not its disestablishment. While the committee has not
functioned since February 1, there is always the possibility that it may become
active again. Finally, in view of the scope of the Respondent's unfair labor prac-
tices, I shall recommend that the Respondent cease and desist from interfering with,
restraining, or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
So far as the election of January 31 is concerned, I recommend that the excep-
tions to the report of the Acting Regional Director be overruled; the result of the
election be set aside; and the Regional Director be authorized to conduct another
election as soon as he is of the opinion that the effects of the Respondent's unfair
labor practices have been sufficiently dissipated.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 919 and the grievance committee are labor organizations within the
meaning of Section 2(5) of the Act.
15 See lktilham Products Company, Inc, 114 NLRB 1441 ; Automotive Supply Co, Inc,
119 NLRB 1074; Detroit Plastic Products Company, 121 NLRB 448; Ballas Egg Products,
Inc, 121 NLRB 873
38P W Woolworth Company, 109 NLRB 1446.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with the rights of its employees to self-organization, and by
sponsoring and supporting the grievance committee, the Respondent has violated
Section 8(a)(1) and (2) of the Act.
RECOMMENDATIONS
Upon the entire record in the case, and pursuant to Section 10(c) of the Act, as
amended,.I hereby recommend that the Respondent, The Superior Upholstery Com-
pany, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Initiating, forming, sponsoring, or promoting any labor organization of its
employees, or contributing financial or any -Other form of aid or support to the
grievance committee of its employees, or to any other labor organization, and from
otherwise interfering with the representation of its employees through a labor or-
ganization of their own choosing.
(b) Recognizing the grievance committee, or any like organization, or successor
thereto, as the representative of any of its employees for the purpose of dealing with
the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until the said griev-
ance committee or other labor organization shall have established in another Board-
conducted election that it represents a majority of the Respondent's employees.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
.(a) Withdraw all recognition from the grievance committee, as the representative
of any of its employees for the purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment, unless and until such grievance committee shall have estab-
lished in another Board-conducted election that it represents a majority of the
Respondent's employees.
(b) Post at its place of business in Hartford, Connecticut, copies of the notice
attached to this Intermediate Report marked "Appendix." Copies of said notice,
to be furnished by the Regional Director for the First Region, shall, after being
duly signed by the president of the Respondent, be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(c) File with the Regional Director for the First Region in writing, within 20
days from the date of the receipt of this Intermediate Report, a report setting forth
in detail what steps the Respondent has taken to comply with its recommendations.
It is further recommended that unless the Respondent shall, within 20 days after
receipt of this Intermediate Report, notify the said Regional Director in writing
that it will comply with the foregoing recommendations, the Board issue an
order requiring the Respondent to take such action.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT initiate, form, sponsor, or promote any labor organization of
our employees, or contribute financial or any other form of aid or support to
the grievance committee of our employees, or- to any other labor organization,
or otherwise interfere with the representation of our employees through a labor
organization of their own choosing.
WE WILL withdraw and withhold all recognition from the grievance committee
of our employees, or any like organization or successor thereto, as the repre-
sentative of our employees for the purpose of dealing -with us concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or any other
condition of employment , unless and until such grievance committee shall have
established in another Board-conducted election that it represents a majority of
our employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in their rights to form , join, or assist labor organizations , including
FAIRBANK KNITTING MILL, INC. 951
Local 919, Retail Employees Union , Retail Clerks International Association,
AFL-CIO, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any and all such
activities , except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a)(3).
THE SUPERIOR UPHOLSTERY 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.
Fairbank Knitting Mill, Inc. and John Jerome Pompura. Case
No. 6-CA-2250. December 5, 1961
DECISION AND ORDER
On September 13, 1961, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions to
the Intermediate Report together with a supporting brief. A brief
in support of the Intermediate Report was filed by the General
Counsel.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
1 In adopting the Trial Examiner's finding that Respondent had knowledge of Pompura's
union activities , Member Rodgers does not rely upon the small number of employees at
the plant or the small size of the community involved . He does rely on the following
factors: The timing and the abruptness of the discharge; the Respondent's explanation to
Pompura that he had been discharged at least in part because of his "outside activities";
and the Respondent ' s stated belief that the "stuff" of Pompura's brother ( a known union
proponent ) had "rubbed off" on Pompura.
134 NLRB No. 65.