Vulcan Furniture Manufacturing Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1953

103 N.L.R.B. 870 (N.L.R.B. 1953)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment and the
terms and conditions of employment of A. A. Overman , Steve Tucker, T. G. Arm-
strong, and Lavoy Hobbs, and by discharging Harold Crosslin on February 26
and Martie Ulmer on March 28, 1951, and by discriminatorily displacing those
individuals ( other than the above -named employees ) laid off on February 14-16,
1951, thereby discouraging membership in International Fur & Leather Workers
Union, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise
of the 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
5. The Respondent did not commit any unfair labor practice in regard to Annie
B. Blackburn and Sallie Blackburn.
[Recommendations omitted from publication in this volume.]
VULCAN FURNITURE MANUFACTURING CORPORATION and UNITED FU-R.
NITURE WORKERS OF AMERICA, CIO. Case No. 10-CA-1317. March
20) 19153
Decision and Order
On August 29, 1952, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and 8 (a) (5), and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof. In addition, the
Respondent requested oral argument which is hereby denied as the
record and brief, in our opinion, adequately present the issues and
positions of the parties.
The Board 1 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 2 The Board has considered the In-
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its power in connection with this case to a three -member panel
[ Members Houston, Murdock, and Styles].
' The Trial Examiner properly rejected evidence offered by the Respondent in support
of its contention that despite formal compliance with the filing requirements of Section
9 (h) of the Act, the Union Is Communist dominated . The fact of compliance by a labor
organization which is required to comply, is a matter for administrative determination and
is not litigable by the parties . See Sunbeam Corporation, 94 NLRB 844 ; Swift t€ Com-
pany, 94 NLRB 917; cf. Highland Park Manufacturing Company, 71 S Ct. 489. The
Board has administratively determined that the Union has complied with the require-
ments of Section 9 ( h) by reason of the fact that its officers have filed non -Communist
103 NLRB No. 89.
VULCAN FURNITURE MANUFACTURING CORPORATION 871
termediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.3
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Vulcan Furniture Manu-
facturing Corporation, Birmingham, Alabama, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Furniture Workers
of America, CIO, as the exclusive representative of all its employees
in the appropriate unit set forth in the Intermediate Report with
respect to rates of pay, wages, hours of employment, or other condi-
tions of employment.
(b) In any manner interfering with the efforts of United Furniture
Workers of America, CIO, to bargain collectively with it on behalf
of the employees in the aforesaid appropriate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act;
(a) Upon request, bargain collectively with United Furniture
Workers of America, CIO, as the exclusive representative of all em-
ployees in the appropriate unit, and embody any understanding
reached in a signed agreement.
(b) Post at its place of business in Birmingham, Alabama, copies
of the notice attached hereto and marked "Appendix." 4 Copies of
such notice, to be furnished by the Regional Director for the Tenth
affidavits . Insofar as the Respondent 's contention raises a question as to the truth and
validity of the affidavits filed under Section 9 (b), a United States district court has
recently held that the Board does not have authority to investigate such a question.
American Communications Association v. Herzog et al., Civil Action No. 5827-52 U. S.
District Court for the District of Columbia. See American Cable d Radio Corporation,
102 NLRB 877.
We also consider proper the Trial Examiner 's refusal to consider the merits of matters
which the Respondent had raised in objections to the election in the prior certification
proceedings . It has long been the policy of the Board not to permit a Respondent to
relitigate, in a subsequent unfair labor practice proceeding involving charges of a refusal
to bargain with a certified representative the issues decided in the prior representation
proceeding . See Clark Shoe Company , 88 NLRB 989 ; American Finishing Company, 90
NLRB 1787.
8 We agree with the Trial Examiner that on January 24, 1952 , and at all times subse-
quent, Respondent has refused to bargain with the Union . However, we find that the
Union has been the exclusive bargaining representative for the employees In the appro-
priate unit since January 21 , 1952, the date of the Board certification , and not September
25, 1951 , the date of the election, as found by the Trial Examiner . See Harbor Chevrolet
Company et al., 93 NLRB 1326, 1328.
1In the event that this Order is enforced by 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."
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region, shall, after having been duly signed by the Respondent's au-
thorized representative, be posted by the Respondent immediately upon
receipt thereof, in conspicuous places, including all places where
notices to employees are customarily posted, and maintained by it for
at least sixty (60) consecutive days thereafter. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
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, we hereby notify our employees that :
WE WILL bargain collectively upon request with UNITED FURNI-
TURE WORKERS OF AMERICA, CIO, as the exclusive representative
of all employees in the bargaining unit described herein, with
respect to grievances, labor disputes, wages, rates of pay, hours of
employment, and other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All production and maintenance employees at our Birming-
ham, Alabama, plant, including the truck driver, but exclud-
ing office clerical employees, professional employees, guards,
the general manager, the plant superintendent, the mill fore-
man, the upholstery department foreman, the shipping and
receiving clerk, and other supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the above-
named union to bargain collectively with us, or refuse to bargain
with said union, as the exclusive representative of all our em-
ployees in the bargaining unit set forth above.
VULCAN FURNITURE MANUFACTURING 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.
VULCAN FURNITURE MANUFACTURING CORPORATION 873
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, a hearing involving allegations of unfair labor practices in violation
of Section 8 (a) (1) and (5) of the National Labor Relations Act, as amended,
81 Stat. 136, herein called the Act, by the Respondent, was held before me in
Birmingham, Alabama, on July 28, 1952. The complaint alleges that Respond-
ent since January 23, 1952, has refused to bargain collectively with the Union
as the exclusive representative of employees in an appropriate unit, and thereby
has interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed by the Act. In substance, Respondent denies that the Union
is a labor organization within the meaning of Section 2 ( 5) of the Act, neither
admits nor denies that the unit found appropriate by the Board on August 29,
1951, in its Decision and Direction of Election' and on January 21, 1952, in
its Supplemental Decision and Certification of Representatives,' constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act, denies that a majority of the employees in the
described unit designated and selected the Union as their collective bargaining
representative, and avers that it is under no duty to bargain with the Union.
At the hearing all parties were represented, were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, to argue orally upon the record, and to file briefs and
proposed findings and conclusions.
Upon the entire record, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent admits that at all times material herein, it has been a corporation
organized under and existing by virtue of the laws of the State of Alabama,
maintaining its principal office and place of business at Birmingham, Alabama,
where it is engaged in the manufacture and sale of chrome dinette sets, and that
in the course and conduct of its business operations during a representative 12-
month period, it sold finished products, consisting principally of chrome dinette
sets, of a value in excess of $50,000, to customers located outside the State of
Alabama.
In accordance with the Board's finding of August 29, 1951, I find that Re-
spondent is engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
In accordance with the Board' s finding of August 29, 1951, I find that United
Furniture Workers of America, CIO, is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, the Board has found , and in accordance with such
finding, I find that all production and maintenance employees at the Respondent's
Birmingham , Alabama, plant, including the truck driver, but excluding office
1 10-RC-1413 , not published in printed volumes of Board Decisions.
Vulcan Furniture Manufacturing Corporation, 97 NLRB 1116.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical employees, professional employees, guards, the general manager, the
plant superintendent, the mill foreman, the upholstery department foreman, the
shipping and receiving clerk, and other supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act.
A Board election was conducted on September 25, 1951; the Union received
a majority of the votes, and the Union was certified on January 21, 1952. In ac-
cordance with the certification, I find that since September 25, 1951, the Union has
been and now is the exclusive bargaining representative of the employees in the
appropriate unit, within the meaning of Section 9 (a) of the Act.
On January 23, 1952, by registered letter received by Respondent on January
24, 1952, the Union requested Respondent to bargain. No response to this let-
ter was received by the Union from Respondent. I find that on January 24, 1952,
and at all times since, Respondent has refused to bargain with the Union.
Respondent claims that it was under no duty to bargain with the Union be-
cause "it is felt before the election should have been certified, that the Board
should have at least shown to the Company and its employees that it had gone
into the workings of that Union to determine that it was not communistically
controlled . . . that there should be a very complete investigation and that
it should be shown that this Union has complied not only formally but prac-
tically with the provisions of the Labor Management Relations Act."'
Respondent also claims that the Union did not receive a majority of the votes,
that the election was not properly called, and that it was improperly denied a
bearing where it might seek to prove that its employees were intimidated,
threatened, and coerced at the time of the election. I do not consider that the
merit of these various claims is before me for determination but instead that I
merely serve as a medium through whom the question of such merit may reach
the Board for its determination.
I therefore conclude and find that on January 24, 1952, and at all times since,
Respondent has refused to bargain collectively with the Union as the exclusive
representative of all employees in the appropriate unit, and that by such re-
fusal Respondent has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
8 On the grounds of immateriality in the proceeding before me and that alleged defects
in fulfilling the requirements of Section 9 (f), (g), and (h) of the Act are not proveable
before a Trial Examiner, I rejected Respondent's proffer of evidence pertaining to this
claim. Thereafter, the General Counsel entered into stipulations with the Respondent
that: (1) If a named individual were called he would testify in accordance with his state-
ment before the Subcommittee on Labor and Management Relations, United States Senate,
on June 19, 1952; ( 2) If he were called, a reporter who wrote an article appearing under
date of June 21, 1950, on page 4, column 1, in the New York Times, would testify in
accordance with the statements appearing in such article; (3) If they were called, the
persons who wrote an article beginning on page 4 and continuing through pages 6 and 11,
in the Upholsterers International Union Journal for December 1951, would testify in
accordance with the statements appearing in such article ; and (4) If they were called,
the committee who issued a report which is Document No. 89, 82nd Congress , would testify
in accordance with the statements appearing in such report . What were agreed to be
genuine copies of this statement, these articles , and this report were offered. I ordered
them placed in a file entitled "Rejected Exhibits."
LEGION UTENSILS COMPANY 875
V. THE REMEDY
It has been found that Respondent has engaged in the unfair labor practice of
refusing to bargain collectively with the chosen representative of its employees.
It will therefore be recommended that it cease and desist therefrom and from
like and related conduct. It will further be recommended that Respondent bar-
gain collectively, upon request, with the Union as the exclusive representative of
its employees in the aforesaid appropriate unit.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent's Birming-
ham, Alabama, plant, including the truckdriver, but excluding office clerical em-
ployees, professional employees, guards, the general manager, the plant superin-
tendent, the mill foreman, the upholstery department foreman, the shipping and
receiving clerk, and other 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. United Furniture Workers of America, CIO, was on September 25, 1951,
and at all times since has been the exclusive representative of all employees in
the aforesaid unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing on and after January 24, 1952, to bargain collectively with the
aforesaid Union as the exclusive representative of the employees in the appro-
priate unit, Respondent has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid unfair labor practices, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, thereby engaging in an unfair labor practice within the mean-
ing of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
ANGELO C. SCAVULLO, MARIE ISABELL SAEGERT , MARGARET MARY SCOTT,
ANGELA M. SCAVULLO, VICTOR K. SCAVULLO AND CHARLES SCAVULLO
D/B/A LEGION UTENSILS COMPANY and LOCAL 475, UNITED ELECTRI-
CAL, RADIO AND MACHINE WORKERS OF AMERICA, PETITIONER and
LOCAL 463, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MA-
CHINE WORKERS, CIO. Case No. 2-RC-4239. March 20, 1953
Supplemental Decision and Order
Pursuant to a Decision and Direction of Election issued herein on
March 14, 1952,E an election by secret ballot was conducted on April 4,
1 Not reported In printed volumes of Board decisions.
103 NLRB No. 39.