Valley City Furniture Co.

National Labor Relations Board - Board Decisions

Dec 15, 1954

110 N.L.R.B. 1589 (N.L.R.B. 1954)

VALLEY CITY FURNITURE COMPANY 1589
7. By discharging Talton Young, Thaddeus Brown , Tom Robertson , W. W. Smith,
Irvin Garcia, and Refugio Hernandez , denying M. C. Rogers reinstatement as a
flagger , refusing to reinstate Claude Banks on or about December 4, 1952, denying
Paul F . Rigsby reinstatement , cancelling the seniority rights of Sterling Green, and
employing Sterling Green at a lower rate of pay than the one at which he was
employed at the time the strike began , all as found above, the Respondent has
variously discriminated in regard to the hire , tenure, and conditions of employment
of employees , thereby discouraging membership of employees in a labor organiza-
tion, and has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and 8 (a) (3) of the Act.
8. By interfering with , restraining , and coercing employees , as found above, in
the exercise of rights guaranteed to them by Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
10. The Respondent has not engaged in any unfair labor practices with respect
to the discharge of Refugio Hernandez on or about October 25, 1952, the hire of
Henry Hayes, and the termination of employment of Thomas Leonard, Jr.
[Recommendations omitted from publication.]
VALLEY CITY FURNITURE COMPANY and LOCAL 415, UNITED FURNI-
TURE WORKERS OF AMERICA , CIO. Case No. 7-CA-786. December
15, 195.
Decision and Order
On August 31, 1953, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Valley City Furniture Company had engaged in and
was engaging in certain unfair labor practices in violation of Section
8 (a) (1), (3), and (5) of the Act and recommending that the Re-
spondent cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.'
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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and here adopts the findings , conclusions , and recommendations
of the Trial Examiner insofar as they are consistent herewith.2
1 The Respondent 's request for oral argument is hereby denied , inasmuch as the record,
Including the exceptions and briefs , adequately presents the issues and positions of the
parties
2 The Respondent contends that the complaint should be dismissed because the record fails
to establish the compliance status of the Union The Board has frequently held that compli-
ance is a matter for administrative determination and is not a litigable issue in a complaint
proceeding See, e. g, Florence Manufacturing Company, inc. 92 NLRB 185, Coca-Cola
Bottlvng Company of Louisville, Inc, 108 NLRB 490. The record therefore need not reflect
the compliance status of a labor organization . We are , moreover , administratively satisfied
that the Union is in compliance with the Act's filing requirements Accordingly, we find
no merit in the Respondent ' s argument.
110 NLRB No 210.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner found, and we agree, that the Respondent
by various coercive and threatening statements Inade by its foremen
and plant superintendent, as detailed in the Intermediate Report,
violated Section 8 (a) (1) of the Act.3
2. The Trial Examiner found that the Respondent, prior to the
Union's strike on July 31, 1952, refused to bargain in good faith in
violation of Section 8 (a) (5) of the Act. While we agree with the
Trial Examiner's conclusion, we do not subscribe to all of his
rationale.
As detailed by the Trial Examiner in support of his 8 (a) (5)
findings, the record reveals that the Respondent (1) refused to pro-
vide the Union with wage information, (2) unilaterally increased the
working hours without consulting or notifying the Union, and (3)
granted its negotiators only a limited authority. Only the third mat-
ter requires clarification. According to Olsen, the Respondent's
president, Plant Superintendent Lantinga was granted authority to
act for the Respondent in negotiations, with Olsen reserving final ap-
proval on major questions stemming therefrom. Dunn,4 while author-
ized to act only in an advisory capacity, was to have responsibility
for the preparation of counterproposals. Olsen claimed to have dis-
cussed the Union's proposals and possible counterproposals with both
Lantinga and Dunn but no final conclusion as to the nature of the
counterproposals had been reached by July 23. The Respondent
argues, following Olsen's testimony, that Lantinga was given full
authority to act in its behalf, subject only to review of major decisions
by Olsen, while Dunn's-authority was primarily of an advisory na-
ture. The company representatives' conduct at the bargaining ses-
sions belies the Respondent's argument . For the Respondent has
failed to explain why Lantinga, if so authorized, did not give the
Respondent's position on wage information at the June 27 meeting.
At that time, while Lantinga -sat at the bargaining table, Dunn told
the Union that he would have to consult with the Respondent's offi-
cials on that matter. Later, at the July 23 meeting, Dunn said he
could make no official counterproposals for he had received no such
authority from Olsen. Lantinga sat by and said nothing. No coun-
terproposals were made by the Respondent although it had a month's
time to prepare them. If Lantinga were authorized to negotiate as
contended, he appeared suspiciously silent and, indeed, allowed the
Union to believe that Dunn rather than he was the principal negotia-
tor. Thus, while Dunn concededly had only a limited authority,
Lantinga appears to have had no greater authority. Nothing appears
3 This finding encompasses all of the Respondent 's conduct referred to in the Intermediate
Report in Section III, B and C
4 The Trial Examiner mistakenly referred to Dunn as a Detroit attorney . Dunn's law
offices appear to be in Grand Rapids, Michigan.
VALLEY CITY FURNITURE COMPANY 1591
to have been done without Olsen's express permission, with limita-
tions necessarily being placed thereby on both Lantinga and Dunn.
Under these conditions, successful bargaining was impossible. We
conclude, in agreement with the Trial Examiner, that the Respond-
ent's improper bargaining attitude was, in part, characterized by its
failure to give sufficient negotiating authority to its representatives.
We find, according to well-established Board principles,5 that these
actions of the Respondent, whether considered separately or in their
totality,6 constitute a refusal to bargain in good faith in violation of
Section 8 (a) (5) and (1) of the Act.
To the extent set forth above, our findings and conclusions coincide
with those of the Trial Examiner. However, the Trial Examiner
relied upon three other factors in characterizing the Respondent's
course of conduct as unlawful. These factors are, in our opinion,
without legal or factual merit and in no way support the Trial
Examiner's conclusion.
First, the Trial Examiner found that the Respondent had postponed
meetings without good reason. It is true that the Respondent met
with the Union on but 2 occasions during the approximately 2-month
period following the Union's certification. We nevertheless find
nothing unreasonable or improper in the delays occasioned by the
Respondent. Thus it appears that between the Union's first request
for a meeting on June 6 and the first meeting on June 27, there were
no postponed meetings. Then, at the June 27 meeting, Lantinga
explained that the plant vacation period would forestall a second
meeting until at least July 7. Nowhere does it appear that the Union
objected to this delay. After a union representative called Dunn on
July 7, meetings were arranged for July 11 and 18. Both were post-
poned at Dunn's request. A meeting was finally held on July 23, only
2 weeks after the Union had called Dunn. Unlike the Trial Examiner,
we do not consider this brief delay, encompassing but two postponed
meetings, as evidence of bad-faith bargaining.'
Secondly, the Trial Examiner found that the Respondent had de-
clined at the June 27 meeting to discuss "economic issues." We cannot
6 Refusal to furnish wage information . See, e . g, Whitin Machine Works, 108 NLRB 1537
(Member Beeson dissenting ) ; Skyland Hosiery Mills, Inc., 108 NLRB 1600 A refusal
to furnish wage information cannot be excused on the ground that employee petitions re-
quest the employer not to disclose it (Boston Herald-Traveler Corporation , 102 NLRB 627)
or on the ground that the failure to furnish such information did not impede negotiations
(cf Leland- G-ifford Company , 95 NLRB 1306 , 1310 ). On the facts of this case , neither
argument is persuasive.
Unilateral changes in working conditions See, e. g, Top Mode Manufacturing Co., 97
NLRB 1273, Hallam & Boggs Truck and Implement Company, 95 NLRB 1443. Even the
Respondent ' s unilateral change of hours after the election but before certification is per se
violation of Section 8 (a) (5). Tennessee Valley Broadcasting Company, 83 NLRB 895,
898 at footnote 7, Jordan Bus Company, 107 NLRB 717.
Granting bargaining representatives only a limited authority . See, e g., Sussex Hats,
Inc, 85 NLRB 399; Deena Artware, Incorporated, 86 NLRB 732.
9 Member Beeson would look only at the totality of the conduct of the Respondent.
7 Cf. Reed & Prince Manufacturing Company, 96 NLRB 850.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree. The record discloses that the Respondent only suggested de-
ferring such issues until other terms of the contract had been agreed
upon.' Nowhere does it appear that the Union objected to this sug-
gestion. Nor was the Respondent's suggestion unreasonable on its
face. Accordingly, we find that the Respondent's attitude towards
"economic issues" in no way indicates an unwillingness to fulfill its
bargaining obligations.
Finally, the Trial Examiner found that on July 31 "Lantinga re-
fused to discuss with the Union's bargaining committee the resolution
at the employees' meeting." At that meeting, the Union decided to
engage in daily work stoppages to protest the Respondent' s failure
to bargain in good faith. Factually, we have no dispute with the
Trial Examiner's findings. We do not, however, believe that
Lantinga's refusal to talk with the Union can be considered an un-
lawful refusal to bargain. As the Respondent points out in its brief,
the Union was on July 31 threatening to engage in a partial strike,
an activity long considered outside the protection of the Act. We
consider the Union's threat on July 31 to be an integral part of its
partial strike tactics. In view of the well-settled rule that an em-
ployer's duty to bargain is suspended while a union is engaged in
unprotected activity,9 we are constrained to find that Lantinga was
under no obligation to speak with the Union while it was engaging
in such threats.10 Were we to hold otherwise, we would be encour-
aging the use by unions of threats of unlawful and unprotected action
to force concessions from an employer. Such a result would be con-
trary to the policy objectives of the Act. Accordingly, we find that
under the above circumstances Lantinga's refusal was privileged and
in no way violated the Act.
We conclude, for reasons already stated, that between June 4 and
July 31, 1952, the Respondent failed to bargain in good faith in
violation of Section 8 (a) (5) and (1) of the Act.
3. The Trial Examiner found that the Union's strike on July 31
was caused' by the Respondent's refusal to bargain and that the em-
ployees reported for work without condition on the morning of Aug-
ust 1. Based on these findings and the Respondent's conduct on
August 1 in conditioning the strikers' return on their submission to
personal interviews without the presence of a union representative,
the Trial Examiner concluded that the employees were unlawfully
discriminated against in violation of Section 8 (a) (3) and (1) of
8 The union representative testified as follows , "At this particular point [discussion of
paid holidays] the Company informed us, through Mr. Dunn, that they were not willing
to discuss any economic issues in this particular meeting ; that he would propose that we
stay with the noneconomic issues and place over for future negotiations all economic issues
or issues of an economic nature." [ Emphasis supplied ]
9 Phelps Dodge Copper Products Corporation, 101 NLRB 360
10 See Kraft Foods Company, 108 NLRB 1164 and cases cited therein , see also Peninsular
f Occidental 8 S. Co. v. N. L R . B., 98 F. 2d 411 , 414 (C A 5 ), cert denied 305 U. S. 653.
VALLEY CITY FURNITURE COMPANY 1593
the Act. We do not agree with all of the Trial Examiner's findings
nor do we agree with his conclusions.
On July 30, the Union resolved at its meeting to file a charge with
the Board complaining of the Respondent's refusal to bargain. The
Union further decided at that meeting " to cut out overtime until and
unless the Company would meet with [the Union] and bargain in
good faith" and "to cut out overtime beginning on the following day ;
that is . . . to cease work at 3: 30 instead of 4: 30 [p. m.], the 3: 30
period being the end of the eight hour day." The next day, July 31,
between 2 and 2:30 p. in., the employee bargaining committee, pur-
suant to instructions received at the July 30 meeting, went to Lantinga
and informed him of the Union's decision. The committee told him
that the Union had "decided that [the employees] were going to work
only eight hours a day now [because] the Company wasn't bargaining
in good faith . . ." to which Lantinga replied that "he thought the
people wished to work 9 hours a day." Lantinga testified to the same
effect : "The committee notified me that they were quitting work at
3:30 and working eight hours a day . . . I told them we were on a
9-hour schedule and we were going to remain so at that time."
Lantinga then instructed his foremen to notify all the employees that
the workday was to last until 4:30 p. in. A considerable number of
employees walked off the job at 3: 30 p. in. on July 31.
On the morning of August 1, the employees who struck the day
before reported for work and were refused admittance to the plant
unless they agreed to submit to personal interviews without the pres-
ence of a union representative. The employees would not return un-
der these conditions. They contacted Hargrove, a union representa-
tive, who in turn called Lantinga. Lantinga confirmed all that had
taken place and stated, in justifying his insistence on personal inter-
views, that he wanted the employees "to . . . understand they cannot
leave the plant an hour ahead of [the] scheduled quitting time." Sig-
nificantly, Hargrove testified on cross-examination that during this
conversation he offered to return the employees to work on the Re-
spondent's own terms of employment, namely, the 9-hour day.11 This
testimony, although not referred to in the Intermediate Report, ap-
parently was the basis of the Trial Examiner's finding that on Au-
gust 1 the employees reported for work without condition. Lantinga,
however, testified that Hargrove made no such offer and that the con-
versation dealt generally with the question of possible negotiations
on returning the employees to work and on the hours to be worked.
Moreover, Taylor, a member of the employee bargaining committee,
who stood by Hargrove's side while the latter spoke with Lantinga,
testified that Hargrove said nothing about the employees returning
11 Lantinga also , according to Hargrove , refused to meet with the Union's representatives
on August 1.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work on a 9-hour day. Indeed he testified that the first reference
to a return on the basis of a 9-hour day in conversations between the
Respondent and the Union was on August 4.
The next union meeting was held on August 3. At that meeting,
the members decided to report for work without condition on the fol-
lowing morning. Such action clearly implies that until August 4
there was a continuing condition to the employees' return to work,
namely, their refusal to work overtime. The union representatives
all testified, without contradiction, that on August 4 the striking em-
ployees were willing to return to work on the basis of a 9-hour day.
The Respondent began to replace employees shortly after the first
stoppage on July 31. By August 4 a number of replacements had
been hired. As already noted, the Union on August 4 agreed to re-
turn the employees without condition as to the hours to be worked.
However, the Union further insisted that the Respondent return all
employees, including those who had been replaced. The Respondent
refused to agree to this and the employees did not return. It was not
until August 6 that the latter condition was withdrawn by the Union.
The parties then agreed that employees, other than those replaced,
would be returned to work. Further replacements had been made be-
tween August 4 and 6.
Upon a preponderance of the evidence and the inherent probabili-
ties of this situation, we believe that the Trial Examiner misconstrued
the nature of the Union's strike action. The record clearly establishes
that the Union refused to work the overtime hours set by the Re-
spondent. The Union in fact engaged in one stoppage and intended
regularly to continue such tactics. It communicated that intention
to the Respondent. Nowhere, prior to August 4, does the record re-
veal any change in the Union's intentions. Moreover, we find, con-
trary to the Trial Examiner, that on August 1 the Union did not un-
conditionally offer to return the employees to work.12 This evidence,
realistically viewed, establishes both the Union's plan to engage in
a series of partial strikes and its effectuation of that plan.
We find that the partial strike called by the Union from its very
inception was the sort of activity which, although concerted, is not, as
against the action taken by the Respondent, entitled to the protection
of the Act.13 The vice in such a strike derives from two sources. First,
' In making this finding, we rely not only upon the testimony of Lantinga and Taylor,
but also upon all the events surrounding the Union's strike action. We note further that
the Trial Examiner's finding in this regard fails to conform to the actual time sequence of
events on August 1. The Trial Examiner maintained that the employees reported for work
on the morning of August 1 without condition. There is no evidence to support that finding.
The Trial Examiner, without so stating, appears to be relying on Hargrove's testimony.
That testimony, however, establishes only that Hargrove told Lantinga late on the morn-
ing of August 1 that the employees were prepared to return to work without condition.
Is C. G. Conn, Ltd. v. N. L. R. B., 108 F. 2d 390 (C. A. 7). See also N. L. R. B. V. Mont-
gomery Ward ,& Co., 157 F. 2d 486 (C. A 8) ; Home Beneficial Life Ins. Co. v. N. L. R. B.,
159 F. 2d 280 (C. A. 4) , Auto Workers v. Wisconsin E. R. B., 336 U. S. 245.
VALLEY CITY FURNITURE COMPANY, , __ 1595
the Union sought to bring about a condition that would be neither
strike nor work. And, second, in doing so, the Union in effect was
attempting to dictate the terms and conditions of employment. Were
we to countenance such a strike, we would be allowing a union to, do
what we would not allow any employer to do, that is to unilaterally
determine conditions of employment. Such a result would be foreign
to the policy objectives of the Act. It is true, as our dissenting col-
leagues state, that the Respondent unilaterally changed the hours of
work. But that unlawful act did not privilege the Union's resort to
the partial strike as a self-help device, any more than the Union would
have been privileged to engage in a sitdown strike or slowdown to pro-
test the Respondent's action." We do not view this as a novel prob-
lem. For, within the past 10 months, the Board has characterized
similar strikes as being outside the protection of the Act.15 We find
support for the result reached in these cases in a long series of court
decisions.16
In view of the above finding, we see nothing unlawful in the Re-
spondent's insistence on personal interviews. We construe such in-
sistence as being no more than legitimate disciplinary action which
bore a direct relation to the unprotected strike. The Respondent had
a right to discover the employees' willingness to give continuous and
uninterrupted labor during the established workday. That the Re-
spondent had by August 1 been subject to only one stoppage is of
no consequence. An employer faced with such union conduct need
not wait until the strike becomes plural in number before taking ap-
propriate defensive action.
Nor do we consider unlawful the Respondent's refusal to allow union
representatives to be present at those personal interviews. For while
the Union was engaged in the unprotected partial strike, the Respond-
ent's obligation to bargain was suspended." Applying this same
principle, we find no violation in Lantinga's refusal to meet with union
representatives on August 1.
The unprotected strike continued until at least August 4. On Au-
gust 4, the Union conditioned its reinstatement request on the return
of all employees, including those who had already been lawfully re-
placed.18 The Respondent continued to make replacements until
14 We find no merit in the General Counsel's argument that a partial strike, otherwise
unprotected, would gain the protection of the Act by reason of its having stemmed from the
Respondent's unfair labor practices. We regard the case cited by the General Counsel
(Mastro Plastics Corp, 103 NLRB 511) as inapposite.
15 See Pacific Telephone and Telegraph Company, 107 NLRB 1547; Kohler Co., 108 NLRB
207 ; Personal Products Corp., 108 NLRB 743
16 See cases cited at footnote 13, supra. See also N. L R. B. v. Fansteel Metallurgical
Corp., 306 U. S. 240, N. L. R. B. v. Draper Corp., 145 F 2d 199 (C. A. 4).
14 Phelps Dodge Copper Products Corporation, 101 NLRB 360
is On August 4 there were important conversations between the parties. The General
Counsel contends that the Respondent's conduct on that day was in a number of respects
violative of the Act. First, the General Counsel argues that the Respondent's continuing
insistence on personal interviews was unlawful. However, we find, contrary to the Trial
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 6 when the Union unconditionally offered to return the em-
ployees. We find that all replacements made prior to August 6 con-
stituted constructive discharges of the employees replaced, and that
such discharges were lawful self-protective action against the unpro-
tected strikers.19 Moreover, we find no evidence of condonation in
the record at any time prior to August 6. At that time, however, the
Respondent agreed to take back all striking employees who had not
been replaced. The Respondent abided by its agreement. In fact,
three strikers had already been reinstated prior to August 6.
Eleven more were reinstated between August 6 and 8. Only two
strikers were not reinstated by August 8. We cannot, however, find
any evidence in the record of independent discriminatory motivation
behind the Respondent's failure promptly to reinstate these two
employees.20
In addition, the General Counsel maintains that on August 6 the
Respondent agreed to recall all replaced employees. The Respondent
emphatically denies this. Lantinga testified that no such agreement
was made and that he had insisted on August 6 that the replaced em-
ployees would be in the position of those initially applying for em-
ployment. Moreover, the Trial Examiner, crediting the testimony of
one of the union representatives, found that on August 4 Lantinga
told the Union that the replaced employees would not have jobs at
the Respondent's plant "any more." Again, on August 5, Lantinga
wrote the Union that the Respondent had "been willing . . . to re-
turn [the strikers] to work except for those who have of necessity
since [July 31] been replaced." It also appears that the Union con-
sidered the alleged recall agreement to be an important part of the
August 6 conversation. Nevertheless the Union made no mention of
any such agreement in its August 6 letter to the Respondent which
refers to such conversations. We are convinced, contrary to the Trial
Examiner, that a preponderance of the evidence establishes that no
such "recall agreement" was made by the Respondent. We so find.
Accordingly, we conclude that the Respondent has committed no
violation of Section 8 (a) (3) of the Act.
Examiner, that Lantinga no longer insisted on personal interviews once the Union agreed
to cease its unprotected strike In so finding , we rely, as we did before , upon both the
inherent probabilities of the situation and the testimony of Lantinga and Taylor. Second,
we find that the Respondent 's statement that the replaced employees would never again be
employed by it is in no way violative of the Act. As the Respondent had a right to replace
the unprotected strikers , its statement amounts to no more than an affirmation of its legal
rights . Third, we find the Respondent ' s failure to name the employees replaced is no vio-
lation of the Act. See Oklahoina Rendering Company , 75 NLRB 1112. Lastly, we find
nothing unlawful in the Respondent ' s breach of its August 4 promise to hire no further
replacements
11 The employment of an unprotected striker can be terminated by any replacement,
whether the latter' s term of employment be permanent or temporary
The following employees were replaced prior to August 6 Ambrose , Bayle, Brummel-
hofr, Garvey, Golembeski , Grey, Koenig, Ludwick, Marczynski, Morris, Rozek , Shoemaker,
Sief, Smigiel , Taylor, Venneman, Witham, and Workman.
20 See Utah Oil Refining Company, 108 NLRB 1392.
VALLEY CITY FURNITURE COMPANY 1597
4. The Trial Examiner found that the Respondent's refusal to bar-
gain on and after August 11, 1952, because of the Union's alleged loss
of majority status, was violative of Section 8 (a) (5) and (1) of the
Act. We agree.
As already noted, the Union was certified by the Board on June 6,
1952. The parties met for the last time on August 11, 1952. On that
occasion, Olsen appeared and flatly refused to bargain further with
the Union. He based his refusal on cards signed by approximately
90 percent of the employees rejecting the Union as their bargaining
representative." The Respondent had received those cards prior to.
August 11 and had checked their authenticity by comparing them
with employee payroll signatures.
In attacking the Trial Examiner's findings, the Respondent relies
principally upon two decisions of the Sixth Circuit Court of Ap-
peals 22 rejecting the Board's certification-year rule. That rule states
that the majority status of a certified union is presumed to continue
for 1 year from the date of the certification. In those cases, the court
found that where the employer had engaged in no improper conduct,
it could properly refuse to bargain with a union which no longer
represented a majority of the employees, even though the loss of ma-
jority occurred during the year following Board certification. It is
clear that the Respondent's reliance on these cases is misplaced.
Here, the Respondent committed serious unfair labor practices prior
to its receipt of the cards repudiating the Union. In these circum-
stances, even assuming that the Union had lost its status as a ma-
jority representative by August 11, we find that such disaffection may
be as much attributable to the Respondent's earlier unlawful refusal
to bargain as to other, unrelated causes.23 Accordingly, any employee
disaffection could not serve to relieve the Respondent of its obliga-
tion to bargain with the Union. To hold otherwise would be to per-
mit the Respondent to take advantage of its own unfair labor prac-
tices and thereby defeat the purposes of the Act.
Because the Respondent, by its admitted refusal to bargain with the
Union on and after August 11, failed to honor the Board's certifica-
tion, we find that the Respondent on and after August 11, 1952, has
refused to bargain with the Union as the exclusive representative of
employees of the Respondent in an appropriate unit in violation of
Section 8 (a) (5) of the Act, and has thereby interfered with, re-
"We believe the Trial Examiner erred in rejecting the cards as evidence of a loss of
majority status by the incumbent Union That change in status might, under different cir-
cumstances, be dispositive of an alleged refusal to bargain.
21 N. L. R. B. v. Vulcan Forging Company, 188 F. 2d 927, Mid-Continent Petroleum Corp.
v N L R B , 204 F. 2d 613, cert. denied 346 U. S. 856. Member Rodgers concurs in this
finding for the reason that he agrees that in this case the unfair labor practices occurred
p, i.or to the receipt of the cai ds repudiating the Union.
23 Franks Bros. Company v N L. R B , 321 U. S 702 ; see also Ideal Roller & Manufac-
turing Co, 109 NLRB 282.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strained, and coerced employees in the exercise of their statutory
rights in violation of Section 8 (a) (1).
5. The Trial Examiner found that the Respondent discriminatorily
refused to reinstate Mae Panza on October 23, 1952, in violation of
Section 8 (a) (3) of the Act. We do not agree.
As previously mentioned, the Union was engaged in an unprotected
strike between July 31 and August 4. Early in August, Panza, after
having received a leave of absence from the Respondent, was seen by
the Respondent's representatives passing out union leaflets. In doing
so, she was herself participating in the unprotected strike then in
progress.24 Thus, Panza was entitled to no greater protection against
disciplinary action than that received by the striking employees who
were replaced prior to August 6. When Panza returned to the plant
and sought her job, she was told by Lantinga that she had been re-
placed, in part because of her union activities in August. We find
that Panza was replaced because the Respondent believed she had par-
ticipated in the unprotected strike. Accordingly, the Respondent's
refusal to reinstate her does not violate the Act.21
Order
Upon the basis of the entire record in this case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Valley City Furniture Company, Grand Rapids, Michigan, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 415, United Furni-
ture Workers of America, CIO, as the exclusive bargaining repre-
sentative of its production and maintenance employees, excluding
office clerical employees, guards, professional employees, and super-
visors as defined in the Act.
(b) Refusing and failing to furnish to the above-named Union,
upon request, wage data concerning all hourly and piecework rates
and the methods by which such piecework rates are established.
(c) Unilaterally changing the hours of work at its plant without
consulting or notifying the statutory bargaining representative of its
employees.
(d) Threatening employees with reprisals because of their union
affiliations or activities.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist the above-named or any other
24 Marathon Electric Mfg. Corp, 106 NLRB 1171.
25 New Hyden Coal Company, 108 NLRB 1192.
VALLEY CITY FURNITURE COMPANY 1599
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of 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) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with the above-named Union
as the exclusive representative of its employees in the aforesaid appro-
priate unit with respect to wages, rates of pay, hours of employment,
or other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Upon request furnish to the above-named Union data concern-
ing all hourly and piecework rates and the methods by which such
piecework rates are established.
(c) Post at its Grand Rapids, Michigan, plant copies of the notice
attached hereto and marked "Appendix." 26 Copies of said notice, to
be furnished by the Regional Director of the Seventh Region, shall,
after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof and be maintained by it for
a period of at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint insofar as it alleges viola-
tions of Section 8 (a) (3) of the Act be, and it hereby is, dismissed.
CHAIRMAN FARMER, concurring :
I agree with my majority colleagues' ultimate disposition of the
issues presented for decision, including the alleged illegality in the
Respondent's treatment of the striking employees during the period of
the partial strike. In my view, the issue before the Board on this
aspect of the case is not the legality of any of the Union's conduct or
that of the employees in carrying on the type of strike action they
chose. All we are called upon to decide here is whether or not, in
view of the type of strike tactic used by the Union, the Respondent
Employer acted lawfully in choosing the course of conduct which
in its opinion was necessary to continue its plant operations in the
best way possible under the circumstances . I am satisfied that there
° In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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."
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was nothing violative of the statute in its reaction to the Union's
strike technique.
However, I expressly reject the Respondent's contention that an un-
protected strike of short duration permanently deprives strikers of
their protected status. This I regard as unduly harsh and legalistic.
I hold only that these strikers were unprotected during the period
when they were engaging in unprotected conduct. And it is for
this reason that I find, with my majority colleagues, that on and
after August 11, 1952, the Company was under a statutory obligation
to bargain with the Union and, because of its refusal to do so, com-
mitted an unfair labor practice.
MEMBERS MURDOCK and PETERSON, dissenting in part :
We disagree with that part of the majority opinion which holds
that employees who having announced their intention of refusing to
work an overtime hour in protest of the Respondent's unfair labor
practices, including the unilateral institution of the overtime hour,
are, after one walkout at the end of the regular day, subject to re-
placement and discipline. In so holding, the majority, relying upon
the Union's intent to continue such walkouts characterizes the Union's
activity as an unprotected partial strike.
We would find, to the contrary, that the strike resulted from the
Respondent's unfair labor practices, that the strike was at no time
partial in nature and did constitute an activity protected by Section
7 of the Act, and that all strikers are therefore entitled to reinstate-
ment and/or back pay.
In analyzing this case, we were immediately impressed by the close
interrelation of events. In its simplest terms, the case involves the
following series of actions : The Respondent unlawfully refused to
bargain, the Union struck in protest, and the Respondent retaliated
by replacing strikers. We believe that, to view the instant situation
in anything less than its totality, is to ignore both the legal conse-
quences of that interrelation as well as the equitable considerations
flowing therefrom.
We agree with the majority that the Respondent, prior to July 31,
refused to furnish the Union with wage information, failed to give
its bargaining representatives sufficient negotiating authority, and
unilaterally increased the working day from 8 to 9 hours without
consulting or notifying the Union. The Respondent's actions clearly
constituted an unlawful refusal to bargain. That this unfair labor
practice was the cause of the Union's July 31 strike cannot be open
to question. We do not understand the majority's decision to find
otherwise.
As unfair labor practice strikers, the employees would of course
be insulated against replacement. What then intervened to strip them
VALLEY CITY FURNITURE COMPANY 1601
of the protection that such status normally offers? The majority's
answer is that the strike was partial in nature and thus unprotected
from its very inception.
A partial strike in our eyes implies a continuing and re, wrriny
refusal to work the hours set by an employer. We will concede here
that the Union refused to work the ninth hour of the July 31 workday
and announced its intention to continue such refusal. The Respond-
ent was, however, struck on but one occasion. It is well settled that
a single strike by itself, even if but 1 hour in duration, would consti-
tute protected concerted activity .17 If the employees here returned
on the morning of August 1 without condition, doubtless the majority
would find the July 31 stoppage to be a protected unfair labor prac-
tice. It is the announced intention of the Union to strike in the future
which is the crux of the majority's finding that the Union engaged
in a partial strike.
We submit that in these circumstances the Respondent has a duty
to put the Union to a test of its intentions. In labor relations, stated
intentions are often no measure of true intentions. That the Union
may have abandoned its strike strategy on August 1 was patently
possible. The Respondent chose, however, to treat the Union's stated
intentions as a fait accompli, rather than to await the Union's deci-
sion as to whether it wished to risk the consequences of a partial strike.
In doing so, the Respondent on the morning of August 1 prevented
the strikers' return to the plant by the imposition of unlawful con-
ditions and thus converted the 1-hour stoppage into a full scale
strike. As a result, the Union never had an opportunity to change its
mind. In effect, the Respondent made the choice for the Union by
preventing the materialization of the partial strike.
To hold that a partial strike exists here because the Union evinced
such intention, is to rule that an avowed intent to engage in unpro-
tected activity is itself unprotected. By the same token, would not
a Union's avowed intent to strike in violation of a no-strike clause
subject the union members to disciplinary action prior to any strike
call? To so equate the word with the deed in determining the pro-
tection to be accorded union conduct under Section 7 of the Act seems
to us an unnecessary and unwise extension of the area of unprotected
activities. The majority view is a strict and inflexible concept which
will impede the negotiations of the parties at the bargaining table
through fear of the consequences of "injurious" words. We cannot
view this as a desirable result.
27 N. L. R B v. Kennametal, Inc., 182 F 2d 817 (C. A. 3) ; N L R. B. v. Buxza-Cardozo,
205 F. 2d 889 (C. A. 9), cert. denied 346 U. S 923; N. L R B V. Southern Silk Mills, 209
F. 2d 155 (C A. 6), cert. denied 347 U S 976, N L. R. B. v J. I Case Company, 198 F. 2d
919 (C. A. 8), cert. denied 345 U . S. 917.
338207-55-vol. 110-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the majority is holding that a bare threat to engage in an
unprotected activity is itself unprotected is evident from its finding
that the Respondent on July 31 was under no duty to talk with the
Union. On July 31, before any strike occurred, the Union gave the
Respondent's plant manager, Lantinga, notice of its planned strike
technique and explained that the strike could be avoided if the Re-
spondent bargained in good faith. Lantinga flatly refused to discuss
the matter. Since the majority views the Union's threat to engage
in a partial strike as an integral part of the strike itself, and thus
equally unprotected, it holds, applying the Phelps Dodge 28 principle,
that the Respondent's duty to bargain was suspended while the Union
persisted in such threats.
We believe any such suspension of the duty to bargain would be
premature. A threat of unprotected activity is no reason for a cessa-
tion of bargaining; indeed, it should be a stimulus to bargaining. At
such times, bargaining might prevent, at the very least forestall, the
materialization of the unprotected strike. To sanction a refusal to
bargain, as the majority does, is to insure the outbreak of economic
warfare. We cannot subscribe to such a policy.
We would find, accordingly, that the Respondent's duty to bargain
was not suspended on July 31 and that the Respondent in refusing to
speak with the union representatives on July 31 violated Section 8 (a)
(5) of the Act.
As the Union, in our opinion, has not here engaged in a partial
strike, we find nothing in the events surrounding the strike to remove
the employees from the category of protected unfair labor practice
strikers. Accordingly, we would hold that all employees who struck
on July 31 were thereafter discriminated against in violation of Sec-
tion 8 (a) (3) of the Act are entitled to reinstatement and/or back
pay 2s
Member Murdock also finds himself in disagreement with the views
expressed by Chairman Farmer in his concurring opinion, but deems
it unnecessary to express his contrary interpretation of the law in this
opinion.
28 Phelps Dodge Copper Products Corporation , 101 NLRB 360. We do not regard the
Phelps Dodge case as support for the majority 's position That case is completely inap-
posite. There, the union had in fact engaged in an unprotected slowdown which bore no
relation to any employer unfair labor practices Here, we have only a bare threat of a
partial strike stemming from the Respondent 's serious unlawful conduct
za Even assuming that the strike was partial in nature from its inception and thus un-
protected , we would nevertheless find the discriminatory conduct of the Respondent to be
violative of the Act . For the record contains abundant evidence of condonation by the Re-
spondent as early as August 4. Once condoned , the strikers would revert to the status
of protected unfair labor practice strikers.
As we find no partial strike here, we would further find the discriminatory refusal to
reinstate Mae Panza to be a violation of Section 8 (a) (3) of the Act.
VALLEY CITY FURNITURE COMPANY 1603
Appendix
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 bargain collectively, upon request, with Local 415,
United Furniture Workers of America, CIO, as the exclusive
representative of the employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and furnish to said labor
organization, upon request, wage data relating to hourly and
piecework rates, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees at our Grand
Rapids, Michigan, plant, excluding office clerical employees,
guards, professional employees, and supervisors as defined
in the Act.
WE WILL NOT unilaterally change the hours of work of the em-
ployees without consulting or notifying the above-named labor
organization.
WE WILL NOT threaten our employees with reprisals because of
their membership in any labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights to self-organi-
zation, to form labor organizations, to join or assist the above-
named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all
such activities 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 in Section 8 (a) (3) of
the Act.
All our employees are free to join, form, or assist any labor organi-
zation, and to engage in any self-organization or other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection or to refrain from such activities except to the extent
that such right is affected by an agreement made in conformity with
Section 8 (a) (3) of the Act.
VALLEY CITY 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.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National Labor
Relations Board, and an answer having been filed by the above-named Company,
herein called the Respondent, a hearing involving allegations of unfair labor prac-
tices in violation of Section 8 (a) (1), (3), and (5) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called the Act, was held in Grand Rapids,
Michigan, on July 7, 8, 9, and 10, 1953, before the duly designated Trial Examiner.
In substance the complaint, as amended at the hearing, alleges that the Respondent:
(1) Beginning on or about June 6, 1952, and at all times thereafter has refused to
bargain collectively with the Union as the exclusive bargaining agent of employees
in an appropriate unit; (2) by its unfair labor practices caused certain of its em-
ployees to go on strike on July 31, 1952; (3) on August 1 and thereafter discrimina-
torily refused to reinstate certain of said strikers after they had unconditionally
offered to return to work; and (4) by the aforesaid conduct and by other acts has
interfered with, restrained, and coerced its employees in the exercise of rights guar-
anteed by the Act. The answer denies the allegations of unfair labor practices.
At the hearing all parties were represented by counsel and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to introduce evi-
dence pertinent to the issues, to argue orally upon the record, and to file briefs and
proposed findings and conclusions. All parties have filed briefs and the Respondent
has filed proposed findings and conclusions. Said findings and conclusions are
adopted only in such respects as they are consistent with the findings and conclusions
appearing below. The Respondent's motions to dismiss the complaint in whole and
in part are disposed of by the conclusions and recommendations below.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Valley City Furniture Company is a Michigan corporation with its principal office
at Grand Rapids, Michigan, where it operates a manufacturing plant producing
furniture. During the year 1952 it purchased raw materials valued at more than
$300,000, of which about 40 percent was shipped in interstate commerce to its plant
from points outside the State of Michigan. During the same period it manufactured
and sold products valued at more than $1,000,000, about 85 percent of which was
shipped to points outside the State of Michigan.
The Respondent is engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Local 415, United Furniture Workers of America, CIO, is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Major events and issues
The main issues of this case stem from the Charging Union's unsuccessful effort
to obtain a collective-bargaining agreement with the Respondent after the Board,
pursuant to the results of a secret election, had certified it as the exclusive bargaining
agent of employees in an appropriate unit. General Counsel claims that the Re-
spondent bargained in bad faith, with clear intent not to reach an agreement. In-
cluded among the elements which he contends support his claim are: (1) Unjustifia-
ble delay in meeting with the Union; (2) refusal to provide information necessary
for bargaining; (3) failure to accord the company bargaining representative with ap-
propriate negotiating authority; and (4) denying employees who sought return to
work on August 1, 1952, the right to be represented by the Union.
It is also General Counsel's claim that the Respondent's failure to bargain in good
faith caused many of the employees to go on strike during the afternoon of July 31,
and that when they attempted to return to work the next morning they were refused
reinstatement unless, in derogation of their right to be represented by the Union,
they first subjected themselves to interview by a plant official. Before the dispute
as to reinstatement was settled, a few days later, some of the strikers were replaced
VALLEY CITY FURNITURE COMPANY 1605
by new employees and at the time of the hearing had not been recalled . In short,
while General Counsel voiced alternative claims, his main contention is' that all
strikers were discriminatorily denied reinstatement on the morning of August 1.
B. Coercive setting in which bargaining began
The Board held an election at the Respondent 's plant on May 28, 1952.1
Credible testimony of employees establishes that before the election responsible
representatives of management , by coercive statements , made plain the Respondent's
intent not to deal with the Union. Foreman Carroll Charles asked employee Fern
Brummelhoff if she knew "who was in the union," told her that if she did not join
she would be "well taken care of," and warned her that those who joined would be
"let out as quick as possible" and the plant would be shut down "like they did in
Chicago." About the same time Charles came to the working place of employees
Alice Ropelski and Eva Bayle (the latter wore a union button) and asked them
what they thought they would gain by having a union in the plant. When they said
they wanted its "protection ," Charles said that Olsen ( the Respondent 's president
and general manager ) would never have to "sign any papers ," but would just shut
down the plant.
On the day of the election both Charles and Plant Superintendent Lantinga told
Brummelhoff that if the Union came in the plant would be shut down.
On the same day Lantinga pounded his fist on the sanding table where employee
Grace Koenig, who wore a union button, was working. He reminded her that she
was the main support of her family and told her that if the Union got in she would
be out of a job. Later that day Lantinga returned and apologized for "being so
rude," saying that it was because of "the uproar over the union business."
On the election day Foreman Sczytko warned employee Bertha Polega that if the
"union gets in" she would be fired, and reminded her that because of her age it
would be difficult to get work elsewhere.
Shortly before the election Foreman Ten Elshof told employees Rosa Rozek and
Thelma Shoemaker, both of whom wore union buttons, that if the Union won many
employees would be laid off and the plant closed.
According to Lantinga there were but three foremen in the plant at the time
of the above-described occurrences. Since all three foremen, as well as the super-
intendent , participated in making coercive and threatening statements before the
election, it may not reasonably be held that such remarks were isolated. They not
only constituted interference, restraint, and coercion of employees' rights under the
Act, but defined the pattern of conduct the Respondent was to follow after the
election.
C. The refusal to bargain
1. Events
The Union won the election of May 28. On June 6 the Board certified it as the
exclusive bargaining agent of employees in an appropriate unit. Also on June 6
the Union sent the Respondent a letter, its receipt being conceded , requesting that
a date for negotiations be set promptly and that the Respondent furnish it , in order
that it might "adequately represent the employees in the bargaining unit," "all hourly
rates of pay applying to the employees in the bargaining unit and all piece-work
rates in the various piece-work operations and the methods by which such piece-
work rates are established."
During the same week it received the Union 's request to negotiate as well as the
Board 's certification of the Union , the Respondent unilaterally and without notifica-
tion to or consultation with the Union increased the daily working hours of em-
ployees in its finishing department , numbering about 40 persons under Foreman
Charles.
No company official replied to the Union's letter of June 6. A few days after
its receipt , however, a Detroit attorney , Stephen F . Dunn , telephoned the union
representative and said that although both he and the company officials were busy
he would try to arrange a meeting . On June 12 Dunn wrote to the union representa-
tive, stating that the "company executives " were "completely tied up" and suggested
that the union representative call him later about dates. A meeting was finally
arranged for June 27.
Dunn and Lantinga met on June 27 with union representatives and an employee
committee . At the meeting's opening the Union repeated its request for the infor-
mation solicited 3 weeks before, concerning the wage rates , pointing out that it was
I Case No. 7-RC-1732 [not reported in printed volumes of Board Decisions and Orders].
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
needed in order to approach intelligently the negotiation of wages. Dunn, in
Lantinga"s presence, said that while he did not know what the Company' s position
on this request was, he would not advise furnishing the information, but would
talk it over with the officials and let the Union know later. The Union then pro-
posed, and the company representatives refused, to establish an "interim agree-
ment" grievance procedure. For example the Union pointed to possible current
disputes in the plant, and stated that while contract negotiations were being carried
on there should be some arrangement whereby the employees' bargaining commit-
tee could meet with company officials from time to time. Both Dunn and Lantinga
took the adamant position that "if any agreement was reached, it would have to
be reached on the contract as a whole." Having been rebuffed in its first two re-
quests-for information and an agreement as to an interim grievance procedure-
the Union presented a written, proposed contract. Its various provisions were dis-
cussed. Company representatives agreed definitely to no single proposal, although
as to some they voiced tentative approval of principle, declined to discuss any
"economic issues" at this meeting, and as to the matter of overtime stated that they
would agree only to abide by the law. On this point the Union reminded the com-
pany representatives that the Respondent had, without consulting the Union, already
altered its working hours.2
As a witness, Lantinga admitted that he knew at this first negotiating meeting
that the Union, on behalf of the employees, was concerned about the question of
the 8-hour day. Despite this fact-as well as the fact that at the first meeting the
Company declined to discuss any "economic issues"-before the next meeting the
Respondent unilaterally increased the daily working hours of its other two depart-
ments, the machine and the cabinet. According to Lantinga the machine depart-
ment's hours were increased during the week ending July 8 and those of the cabinet
department during the week ending July 22.
At the close of the June 27 meeting, agreement on no point having been reached,
the union representatives urged another meeting as soon as possible, since it had
taken so long for the first meeting to be held. Lantinga declined to meet during the
vacation period, which began the next day, and said that Dunn would communicate
with the Union later.
Dunn did not communicate with the Union. On July 7 a union representative
called him. A meeting was definitely arranged for July 11. On July 10, Dunn
called the Union representative and said the Company's officers could not meet the
next day and asked for a later date. Dunn and the union official agreed upon the
date of July 18. Before July 18 Dunn called again and said he had been unable
to get together with the Company "for the purpose of formulating any counter pro-
posals." The Union protested against the repeated delays and breaking of commit-
ments and demanded to know when they could meet and when Dunn could appear
"with authority to proceed in negotiations." Finally the date of July 23 was set.3
On July 23 Dunn and Lantinga met with a union representative and the em-
ployees' bargaining committee. They brought no counterproposal, however, Dunn
claiming that only Olsen could give him authority to make counterproposals and that
so far he had been unable to obtain such authority. The Union again repeated its
request for the wage information asked for on June 6. Both Dunn and Lantinga
refused to provide such information. Lantinga then said that Olsen would be unavail-
able to consider negotiations until after August 4, when he would be back in Grand
Rapids.
Despite Lantinga's statement as to Olsen's availability, the latter was seen at the
plant 2 days later, on July 25, and as a witness admitted that he was there.
Having failed after many weeks to make any headway in bargaining-or even
to meet with anyone with negotiating authority-the Union called a meeting of its
members by distributing, at the plant gates, a leaflet headed "Let's Stop Company
Stalling." A meeting was held on July 30. The membership voted to file a charge
of failure to bargain with the Board.4 The employees also voted to cease work the
next day at the end of 8 hours, and the bargaining committee of employees was in-
structed to so inform Lantinga.
As instructed, the 4 members of the employees' negotiating committee went to
Lantinga in the plant at about 2 o'clock the afternoon of July 31. They informed
him that the membership had voted to work only 8 hours because the Company
2 The quotations in this paragraph are from the credible testimony of Union Representa-
tive McCormick
3 The quotations as to this meeting are from the credible testimony of Union Representa-
tive Hargrove.
4 The original charge in this case was filed the next day, on August 1.
VALLEY CITY FURNITURE COMPANY 1607
was not bargaining in good faith , and asked him if he would discuss the problem
then. Lantinga refused to discuss the matter, but said only that he believed the
majority wanted to work 9 hours.
At the end of 8 hours' work about 40 employees left the plant.
2. Conclusions as to the refusal to bargain before the walkout
The above-described events were the materialization of the Respondent's intent,
expressed repeatedly through its management and supervisory staff before the elec-
tion, not to deal with the Union. Appraisal of them leads to the sound conclusion
that at no time, from its receipt of the Union's letter of June 6, did the Respondent
bargain in good faith or meet the requirements of its obligations under the Act-
"to meet at reasonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment , or the negotiation of an agreement,
or any question arising thereunder." 5
The complaint alleges, the Board has found, and the Trial Examiner now finds
that the unit appropriate for the purposes of collective bargaining at the Respondent's
plant consists of all production and maintenance employees, excluding office and
clerical employees, guards, professional employees, and supervisors as defined in
the Act. As noted heretofore, the Board certified the Union as the exclusive bar-
gaining agent of all employees in this unit on June 6, 1952. The Trial Examiner
concludes and finds that at all times since that date the Union has been the ex-
clusive representative of such employees.
The Respondent refused to provide the Union with wage information, reasonably
necessary for intelligent negotiations .6 It arbitrarily and unilaterally increased the
working day from 8 to 9 hours, not only failing to consult with the Union, but de-
clining on June 27 even to discuss such "economic issues." Here the Respondent
does not claim that an impasse had been reached on this point. It gave its repre-
sentative at negotiating meetings only the power to set dates for such meetings-
and then failed to honor his commitments. It was not, however, until the July 23
meeting that Dunn disclosed to the Union his lack of negotiating authority. Meet-
ings were postponed without good reason. Even if Olsen had been reasonably busy,
it was clearly his duty to appoint someone with authority in order that his obliga-
tion under the Act be carried out. And on July 31 Lantinga refused to discuss
with the Union's bargaining committee the resolution at the employees' meeting.
Upon these several factors rests the conclusion that the Respondent refused to bar-
gain in good faith before the walkout of July 31, and that the walkout was caused
by the refusal to bargain.
D. The strike of July 31 and the refusal to reinstate strikers
1. The events
As noted above, about 35 employees left their work after completing 8 hours' work
during the afternoon of July 31, in protest against the Respondent's refusal to bar-
gain and its unilateral increase of working hours.
These employees reported for work at their regular hour the next morning, August
1, but were refused permission to enter the plant unless they first submitted to a
personal interview by Lantinga. They gathered in front of the building, where
they were told by Gerritson, who worked in Lantinga's office, that the superintendent
did not want to see the employees' bargaining committee but would only see the
employees individually. The employees got in touch with Hargrove, a union offi-
cial. Hargrove called Lantinga, who confirmed the fact that the employees would
not be permitted to work unless they first came to him individually. Hargrove
pointed out that the Union was the duly certified bargaining agent and should be
permitted to meet with him concerning the return of the employees. Lantinga in-
sisted that the employees must come to him , individually , without the union com-
mittee present . Hargrove urged him to consult with his attorney as to the legality
of this position. Lantinga said he would and would then call Hargrove. The super-
intendent, however, did not call Hargrove. Later the same day, not hearing from
Lantinga, Hargrove called Dunn, who agreed to try to arrange a meeting of the
parties. Neither that day nor the next day, according to Dunn's statement to Har-
grove, was he able to arrange a meeting. Not until the following Monday, August 4,
5 Section 8 (d).
6 See discussion of this point in Aluminum Ore Compan y, 39 NLRB 1297, enfd. 131 F.
2d 485 (C. A. 7).
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would Lantinga meet with the union representative and the negotiating committee,
Hargrove pointed out that the employees were ready, and had been ready, to return to
work unconditionally. Lantinga again insisted that the employees (with the exception
of four whom he said had already been replaced) would only be permitted to re-
turn if they came to him personally. As to these four, whom he declined to iden-
tify, Lantinga said they would not have a job "there any more."
Upon being informed of this new development of replacements , the union repre-
sentative asked for a recess in the meeting to confer with the employees ' commit-
tee. Later the same day the parties met again , the Union insisting that all the em-
ployees be permitted to return . Lantinga remained adamant , refusing to take back
the four (still unidentified) who had been replaced, and declining to take the others
back unless he first interviewed them individually . The union representative again
pointed out that such individual interviews would be contrary to the rights of em-
ployees under the Act, and informed the superintendent that unless some settlement
were reached a picket line would be at the plant the next morning. The union rep-
resentative specifically asked to know the names of the four employees Lantinga
claimed had been replaced , but the superintendent refused to name them. After
the close of this meeting, the union official communicated with Dunn, informing him
of the decision to picket the plant unless some settlement was reached. Dunn said
he would try to reach Lantinga and get him to agree to replace no more employees
until the parties could again meet on August 6. Somewhat later Dunn called the
union representative, told him that Lantinga had agreed to do as suggested, and the
picketing was called off.
The parties met on August 6. Again the Union asked for the names of the four
who had been replaced. Lantinga said that by then there were more than four.
When the union representative confronted Dunn with this breach of good faith, Dunn
merely said, "What has happened has happened, so let's get down to discussion on
how we can settle this matter."
Later that day, after Lantinga and Dunn had conferred, the former called the
union representative and agreed that all who had been replaced would be placed on
a "recall" list (apparently a preferential hiring list) and the others would be returned
to work. Lantinga said that he would call the employees whom he wished to have in
on August 7?
Appendix A, attached hereto, lists the names of employees who walked out on
July 31 and the dates they were permitted to return, as well as those who had not
been recalled at the time of the hearing.
2. Conclusions as to the refusal to reinstate
The facts lead to the inescapable conclusions that: (1) The employees, acting
after the vote at the union meeting, went on strike during the afternoon of July 31;
(2) they reported for work at their regular hour and without condition on the morn-
ing of August 1; (3) they were refused employment that day unless they subjected
themselves to a personal interview, without the presence of their legal bargaining
representative; and (4) as of the morning of August 1 the employees were effec-
tively locked out.
In the face of Lantinga's candid admission , as a witness, that he did not discharge
the employees for engaging in concerted activity the afternoon of July 31, the urg-
ing of counsel for the Respondent that he might have had grounds for such dis-
cipline finds no merit.
The Respondent before July 31, in violation of the Act, had imposed working con-
ditions upon its employees without consultation with the Union, before and on
that day refused to discuss the overtime with the Union, and thus precipitated the
concerted activity. It conditioned their return to their jobs upon their relinquish-
ing the right of representation which the Act guaranteed them. Thereafter, by refus-
ing to confer with the union representatives and by refusing to take back replaced
employees, it further evidenced its purpose of discouraging union membership and
of evading its bargaining obligations. Whatever the jockeying of positions during the
day of August 1 and thereafter, the evidence is clear and the Trial Examiner con-
cludes and finds that illegal discrimination against the employees named in Appen-
dix A began on the morning of August 1, when they reported for work.
4 The findings as to the events from July 31 to August 6 rest upon the credible testi-
mony of the two union representatives and employees on the bargaining committee Dunn
was not called as a witness. Lanttnga was an untrustworthy witness. As the record
shows, his testimony is self-contradictory and evasive on many points.
VALLEY CITY FURNITURE COMPANY 1609
E. The refusal to bargain on and after August 11
The parties met for the last time on August 11. There is no dispute that on this
occasion Olsen himself appeared and flatly refused to bargain further with the Union
on any matter because he did not believe the Union represented a majority of the
employees.
At the hearing the Trial Examiner rejected evidence submitted by the Respondent
to show that a number of employees had signed documents stating that they did
not wish to be represented by the Union. Whether or not such documents were
solicited by management is not established by the record. In any event, in view of
the long period of restraint, coercion, refusal to bargain, and discrimination which
preceded the obtaining of such documents, they cannot serve to support the Respond-
ent's contention that it was privileged to substitute its own judgment for that of the
Board. The Board and the courts have long held that under such conditions an em-
ployer may not evade its obligations under the Act by expressing doubt as to major-
ity representation.
F. The discriminatory refusal to reinstate Mae Panza
Mae Panza was employed in the assembly department until July 25, 1952, when
she became ill. Her doctor informed her that she could not work until she had
an operation, but that September 9 would be the earliest date possible. Panza
returned to the plant, informed Lantinga of what the doctor had said, and asked
for a leave of absence. Lantinga granted it. She asked him if she would have to
give him a written statement. Lantinga told her it would be enough if she had
the doctor send him a letter. A few days later her doctor informed her that he
had written to the Respondent. As a witness, Lantinga admitted that he had
received such a letter from her doctor, but although so requested did not produce
it at the hearing.
Early in August, Panza was seen by management representatives at the plant gate
passing out union leaflets. She was operated upon on September 9, remained in the
hospital until September 19, and was under the doctor's care until about October 23,
when she went to the plant to resume work. Lantinga refused to permit her to
resume her employment, informing her that he had seen her pass out union leaflets,
and if she had been able to do that she had been able to work. She protested that
she had not been fully incapacitated, but had not worked because of her doctor's
orders and because she had been instructed not to lift anything. (On her job she was
required to lift tables.) Lantinga then told her she had been replaced. Since then
he has refused to reinstate her.
As a witness, Lantinga claimed that he had only given Panza a leave of absence
for 30 days, and that she had violated it by overstaying it. As heretofore found,
Lantinga was an unreliable witness, and his testimony on this point, unsupported,
is not credited. He admitted that he had received word from the doctor concerning
the employee and admitted that he believed her statement that she had had an
operation when she appeared for work in October.
The Trial Examiner is convinced, and finds, that the real reason for refusing
to reinstate Panza on October 23 was her activity on behalf of the Union while on
leave of absence, and that such refusal was discriminatory and for the purpose of
discouraging union membership.
G. Continuing coercion
Employee Ann Huebner walked out with the others on July 31. As were the
others, she was refused permission to come in on August 1 unless she first saw
Lantinga. On Monday, August 4, however, she was called by her foreman, Leo
Sczytko, and told that she might return if she wished. She and another employee,
Howard Gunn, were permitted to go to work the following day, August 5, without-
so far as the record shows-first being required to see Lantinga separately. Either
that day or the next, Huebner asked the foreman if her daughter, Mildred Witham,
also could come back to work. Sczytko told her that it depended upon what hap-
pened at a union meeting scheduled that night, and advised her to call him late
in the evening. Huebner said that she did not think she would go to the meeting,
since she was- not feeling well. Sczytko told her to call him anyway, and he would
then know whether her daughter could come back or not. She did not call.
As she reported the next morning the foreman came to her, shook his fist, and
called her a "damn liar," declaring that she had told him she was not going to
the union meeting and he knew she did. In a few minutes she was called to Lan-
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinga's office. Sczytko went with her. Lantinga said that he knew she had been
to the union meeting, and if he "didn't have a heart bigger than" his head he would
fire her "on the spot."
This incident not only constituted coercion in and of itself, but it casts revealing
light upon the Respondent's motive for the lockout and discredits Lantinga's claim
that he wanted to interview employees alone for the sole purpose of reminding them
of the working hours at the plant .8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce in the sev-
eral 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 Respondent has engaged in and is engaging in unfair labor
practices, the Trial Examiner will recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the policies of the Act.
It has been found that at all times since on or about June 6, 1952, the Respondent
has refused to bargain collectively with the Union as the exclusive bargaining agent
of its employees in an appropriate unit. The Trial Examiner will therefore recom-
mend that the Respondent, upon request, bargain collectively with the Union as such
representative and, in the event that an understanding is reached, embody such
understanding in a signed agreement.
It has also been found that the Respondent discriminatorily refused to reinstate
certain of its employees who went on strike July 31, 1952, to discourage union
membership and concerted activities. The Trial Examiner will recommend that the
Respondent offer to Mae Panza and all those employees named on Appendix A to
whom such offer has not already been made, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and that they be made whole for any loss of pay
they may have suffered by reason of the discrimination against them, by payment
to each of them of a sum of money equal to that which he or she normally would
have earned from the date of the discrimination to the date of reinstatement or offer
of reinstatement, less his or her net earnings during such period.9 Such back pay
shall be computed in the manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289. It will also be recommended that the Respondent pre-
serve and upon reasonable request make all pertinent records available to the Board
or its agents. ' j
In view of the nature of the unfair labor practices committed, the commission
by the Respondent of similar and other unfair labor practices may be anticipated.
The remedy should be coextensive with the threat. It will therefore be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 415, United Furniture Workers of America, CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. The Respondent's production and maintenance employees at its Grand Rapids,
Michigan, plant, excluding office and clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3. The above-named Union was on June 6, 1952, and at all times since then
has been, the exclusive representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of Section 9 (a)
of the Act.
8 The Trial Examiner finds the evidence insufficient to sustain the allegations of the
complaint as to the Respondent's coercing or inducing its employees to sign petitions.
To this extent, and only to this extent, the Respondent's motion to dismiss is hereby
granted.
9 Crossett Lumber Company, 8 NLRB 440.
MASSACHUSETTS INSTITUTE OF TECHNOLOGY 1611
4. By refusing on June 6, 1952, and at all times thereafter to bargain collectively
with the aforesaid Union as the exclusive bargaining representative of its employees
in the aforesaid unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of its em-
ployees, and thereby discouraging membership in the above-named Union, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
7. 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.]
Appendix A
Date reinstated
Aksamiteski , Chester*
Ambrose, Edw. P.
Bayle, Eva
Botna, Frank-------- August 8, 1952
Brummelhoff, Fern
Dowgal , Joseph------ August 4, 1952
Garvey, Herbert
Golembeski , Edmund
Grey, Walter D.
Gunn , Howard______ August 5, 1952
Henk , Anna --------- August 16, 1952
Huebner, Ann ------- August 5, 1952
Johnson, Benjamin--- August 6, 1952
Koenig, Grace --- ---- Sept. 15, 1952
Ludwick , Andrew
Lynch, Paulin------ August 7, 1952
*The record shows that this employee was
reveal the date.
Date reinstated
Marczynski , Casimer
Morris, Mary
Pawleski, Evelyn ____. May 25, 1953
Polega, Bertha------- August 7, 1952
Ropelski, Alice______ August 7, 1952
Rozek, Rosa
Shoemaker , Thelma
Sief, Peter
Smigiel, Marie
Smith, Harold_ ______ August 8, 1952
Taylor, Homer
Terkat , Peter________ August 6, 1952
Thompson , Georgia__ August 7, 1952
Venneman, Joyce
Witham , Mildred
Workman, Gladys
reinstated in August 1952, but does not
MASSACHUSETTS INSTITUTE OF TECHNOLOGY ( LINCOLN LABORATORY)
and INDEPENDENT UNION OF PLANT PROTECTION EMPLOYEES IN THE
ELECTRICAL & MACHINE INDUSTRY , PETITIONER . Case No. 1-RC-
3693. December 15,195.1
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert E. Greene , hearing
officer. The hearing officer 's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. Massachusetts Institute of Technology is a nonprofit educational
institution located at Cambridge, Massachusetts . In 1951 the Insti-
tute undertook a research project, known as Project Lincoln , for the
Department of Defense because of the national emergency. Research
for the Project is conducted at Lincoln Laboratory, alone involved in
110 NLRB No. 232.