Webb Furniture Corp.

National Labor Relations Board - Board Decisions

May 20, 1966

158 N.L.R.B. 1003 (N.L.R.B. 1966)

WEBB FURNITURE CORPORATION 1003
Webb Furniture Corporation and District 50, United Mine Work-
ers of America . Case No. 5-CA-32926. May 20, 1966
DECISION AND ORDER
On February 9, 1966, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged ill' and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, 'as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the
exceptions, and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modifications.'
We find, as did the Trial Examiner, that the Respondent, by
granting unilateral merit wage increases to certain employees in
July 1965, violated Section 8(a) (5) and (1) of the Act. We do not,
however, !agree with the Trial Examiner that denial of the Board's
request for enforcement of its bargaining order in Webb Furniture
Corporation, 152 NLRB 1526, by the United States Court of Appeals
for the Fourth Circuit, would relieve the Respondent of any further
duty to bargain and serve to nullify any bargaining ordered in this
matter. For, even if it were found by the court that an impasse
existed prior to the action complained about herein, such impasse did
not terminate the Union's representative status or entitle Respondent,
in the circumstances of this case, unilaterally to grant merit increases.
We believe it will effectuate the policies of the Act to enter an order
against such unilateral action.
We do not agree with the Trial Examiner's finding that the
Respondent did not violate Section 8 (a) (1) of the Act herein. On
The following typographical errors in the Trial Examiner's Decision are hereby
corrected by changing the word "with" to "without" on pages 1005 and 1007.
158 NLRB No. 102.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contrary, we find that the Respondent -violated Section 8(a) (1)
by ordering, under threat of discharge , employees Robert Dalton and
Kimber Burcham to remove union insignia from their lunch box and
apron, respectively .2 Accordingly , we amend the Trial Examiner's
Conclusions of Law by renumbering paragraph 3 therein as para-
graph 4, and by inserting as paragraph 3, the following paragraph :
"3. By compelling employees to remove , and by prohibiting their
wearing of union insignia , in the plant and threatening employees
with loss of employment if they wore or displayed union insignia on
lunch boxes and aprons , Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act."
[The Board adopted the Trial Examiner 's Recommended Order
with the following modifications :
[1. Add the following paragraph 1(b) to the Recommended
Order :
"(b) Compelling or requiring its employees to remove , or pro-
hibiting its employees from wearing or displaying union insignia,
or threatening employees with discharge for wearing or displaying
union insignia on their lunch boxes and aprons."
[2. Add the following paragraphs to the Appendix attached to
the Trial Examiner 's Decision :
WE WILL NOT require our employees to remove , or prohibit
them from wearing or displaying , union insignia on their lunch
.boxes and aprons.
WE WILL NOT threaten any of our employees with discharge
to compel them to remove , or to prevent them from wearing or
displaying, union insignia on their lunch boxes and aprons.
[3-. The telephone number for Region 5, appearing at the bottom
of the notice attached to the Trial Examiner 's Decision , is amended
to read: Telephone No. 752-8460 , Extension 2159.]
2 Republic Aviation Corporation v. N.L R.B., 324 U.S. 793, 801-803; N.L.R.B v. Power
Equipment Company, 313 F. 2d 438, 441-442 (CA. 6). Cf. Caterpillar Tractor Company,
a Corporation v. N.L.R.B., 230 F. 2d 357 , 359 (C.A. 7).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed August 4, 1965, and October 15, 1965, by District 50, United
Mine Workers, herein District 50 or the Union, against Webb Furniture Corpora-
tion, herein Webb or the Respondent, the General Counsel issued complaint
alleging Respondent violated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, as amended. The answer of the Respondent denies the commission of
any unfair labor practices.
This proceeding, with the General Counsel and Respondent represented, was
heard before Trial Examiner John F. Funke, at Roanoke, Virginia, on Decem-
ber 21, 1965.
WEBB FURNITURE CORPORATION 1005
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a Virginia corporation engaged in the manufacture of furniture
at its plants at Galax, Virginia. During a representative 12-month period Respond-
ent received goods and merchandise valued in excess of $50,000 from points
outside the Commonwealth of Virginia and during the same period Respondent
sells and ships merchandise valued in excess of $50,000 to points outside the
Commonwealth.
I find Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find District 50 is a labor organization within the meaning of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. Background
On October 12, 1962, District 50 was certified as the collective-bargaining repre-
sentative of Respondent's employees by the Regional Director of Region 5. The
appropriate unit consisted of "all production and maintenance employees, includ-
ing firemen and truckdrivers at Respondent's Galax, Virginia, plants but excluding
all office clerical employees, guards, professional employees, and supervisors as
defined in the Act." 1 The parties entered into negotiations on November 6, 1962,
and between that date and December 10, 1963, 17 bargaining meetings were held.
On August 3, 1964, unfair labor practices were filed by District 50 and a complaint
was issued by the General Counsel in Case No. 5-CA-2908 alleging Respondent
violated Section 8(a)(5) and (1) of the Act. On June 15, 1965, the Board
adopted the Decision of Trial Examiner Nachman finding Respondent had violated
Section 8(a)(5) and (1) of the Act and directed Respondent to comply with
the Trial Examiner's Recommended Order.2 Respondent has not complied with
the Board's Order of June 15 and enforcement is presently being sought in the
Fourth Circuit.
2. Violation of Section 8(a)(5)
Following the issuance of the Board's Order, supra, and during the month of
July 1965, Respondent granted merit increases to 95 employees at plant 1 and
87 employees at plant 2. (Total complement at the plants was 415.) Respondent
admitted that it granted these increases without notice to or consultation with the
Union.3 Ward testified that at the last meeting between the parties, December 10,
1963, the Union had inquired why employees in the same job classifications
received different rates of pay and Ward explained that Respondent had been in
the practice of granting wage increases as employees showed progress in their
work. The Union, according to Ward, voiced no objection to this practice .4
It is the contention of the General Counsel that the unilateral granting of the
increases at a time when Respondent was obligated to bargain under the order of
the Board violated Section 8(a) (5) of the Act.
3. Violations of Section 8(a)(1)
The complaint alleges one incident of violation of Section 8(a)(1) but the
testimony supports reinforcement of that allegation with another.
On a date fixed in the record as shortly prior to August 12 George Wilson,
superintendent of plant 2, noticed a bright green and black sticker on a company
1 Respondent admits the unit is appropriate and I so find.
x Webb Furniture Corporation, 152 NLRB 1526.
The only witnesses in the case were Dwayne Ward, president of Respondent, George
Wilson, superintendent of plant 2. The record is free of the contradictions, evasions, and
credibility issues so characteristic of Board proceedings.
4 It was stipulated at the hearing the Respondent also granted merit wage increases
during the year 1964.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toolbox in the cabinet room.5 The sticker bore the legend in letters varying in
size and print "Join District 50." Wilson removed the sign from the toolbox and
the record indicates that he knew an employee named Robert Dalton had placed
it there for he testified that on the next morning he told Dalton not to put any
more signs on company property. At lunchtime the next day Wilson saw a similar
sign on Dalton 's lunch box and Dalton asked him if he ( Wilson ) was going to,
take it off.6 Wilson told him he did not know and then reported the incident to,
President Ward who told him to ask Dalton not to bring it back. The next day
the sign was not on the lunch box. On August 12 Ward wrote Dalton (General
Counsel's Exhibit 3) the following letter:
It has come to our attention that you have been wearing a badge signifying
that you are a member of the United Mine Workers of America, District 50,
and that you have been displaying a sign in our plant to promote others to,
join District 50, United Mine Workers of America, and that you have con-
tacted other employees during working hours with reference to Union activities.
There is no objection to you wearing a badge signifying that you are a member
of United Mine Workers of America, District 50. It interfers [sic] with the
production and is against company policy for you to display a sign in our
plant, either for or against Union membership. It is against company rules
for anyone to solicit for anything during working hours without permission-
from the Superintendent.
It is against company rules to visit company employees, or leaving job with-
out permission of supervisor.
This is to notify you that it is permissible for you to wear the Union badge,
but the display in our plant of a sign for or against Union membership or
contacting other employees during working hours is forbidden, and if you
continue these activities it will lead to your discharge.
This is the 8(a)(1) allegation of the complaint in its entirety. The General'
Counsel alleges that only the order to remove the sticker from the lunch box
was a violation and no claim has been asserted that employees have the right
under Section 7 to decorate an employer's property with union propaganda.
In subsequent testimony Wilson stated that on another occasion he had repri-
manded an employee named Kimber Burcham for dangerous horseplay and
Burcham then appeared with a similar sticker on his work apron. He told Bur-
cham to take it off and that, should he return with it, he would be discharged..
Although this incident was unknown to the General Counsel at the time complaint
was issued I believe it is encompassed within the scope of paragraph X thereof
without any requirement of amendment.
B. Conclusions
1. Violations of Section 8(a)(5)
The narrow issue presented is whether the granting of unilateral wage increases.
under the circumstances of the case constitutes an unlawful refusal to bargain.
The determination of that issue may well depend on whether the Board's request
for enforcement of its order in Webb Furniture Corporation, supra, is granted or
denied by the Fourth Circuit. If granted the parties will be returned to the
bargaining table and all mandatory issues will be subject to negotiation . If denied
the Respondent is relieved of any obligation to bargain?
The posture of the case before me is therefore peculiar in that the effectiveness
of any recommended order may be destroyed by subsequent action of the court.
Nevertheless Respondent indicated at the hearing District 50 had , in effect , waived
5 General Counsel's Exhibit 4 . The sticker is 14" x 4" in size.
G The sticker remained on Dalton's lunch box the remainder of the day . The lunch
box was placed outside of the toolbox although it had been Dalton's practice to place his
lunch box in the toolbox.
7 The General Counsel contended at the hearing that the obligation to bargain on merit
increases would survive the findings of an impasse in the prior case. The point, how-
ever , has not been briefed to me and I do not agree . Where an impasse on major issues
precludes the negotiation of a contract I see nothing to be gained by directing the parties.
to discuss, ad tinfinitum, collateral issues.
WEBB FURNITURE CORPORATION 1007
its right to negotiate on merit increases by acquiesence when Respondent's prac-
tice was explained during negotiations in 1963 and by its silence when further
increases were granted in 1964. So, should the court direct enforcement of the
Board's Order, this issue might survive.
I do not agree that the more recent decisions of the Board support a finding that
District 50 waived its right to notice and bargaining on these wage increases. The
Board has repeatedly held that the waiver of a statutory right is not lightly to be-
inferred but must be "clear and unmistakable." 8 I do not believe mere failure to,
express immediate opposition to a specific company practice during negotiations,
constitutes such a waiver. Until a contract has been executed all mandatory
subjects of collective bargaining which have not been specifically accepted or
rejected by mutual agreement remain open for negotiation. If I understand the.
controlling decisions of this Board then District 50 did not by mere silence on
this issue during the last meeting with the Respondent agree that Respondent
should have the right to continue unilateral action on wage increases.
It is to be hoped that this decision which, under the posture of the case is not
entirely free from taint of irrationality, will not serve the sole purpose of prevent-
ing the grant of any further wage increases by Respondent. Unhappily, that is,
its most reasonably foreseeable consequence.
2. As to violation of Section 8(a)(1)
I think that without regard for the profundity of the legal issue presented it may
be disposed of by the maxim de minminis non curat lex. It is inappropriate that
at a time when this Nation and its resources are involved in a major war on a
vast and alien continent, this or any other agency should be called upon to lay
waste its time on each and every frivolous and trivial issue that sophistry can
conjure. I cannot find that the refusal of an employer to permit his employees
to decorate their lunch boxes or their work clothes with vividly colored stickers
of recruitment for their union interferes with the rights guaranteed by Section 7
of the Act. Nor do I find that such conduct on the part of an employer has the
"close, intimate and substantial relation to trade, traffic and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce." 9 I therefore find it unnecessary to consider
whether this case fits the Board's rule in Fabri-Tex Incorporated.10
IV. THE REMEDY
Having found Respondent has engaged in and is engaging in certain unfair
labor practices I shall recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the foregoing findings and conclusions and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act and District 50 is a labor organization within the meaning of the Act.
2. By granting wage increases to certain employees during the month of
July 1965, without notifying or consulting with District 50, Respondent violated
Section 8(a)(5) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of the Act.
8The Timken Roller Bearing Co. v. N.L.R.B., 325 F. 2d 746 (C.A. 6) ; Smith Cabinet
Manufacturing Company, Inc., 147 NLRB 1506; Cloverleaf Division of Adams Dairy Co.,
147 NLRB 1410; New York Mirror, Division of the Hearst Corporation, 151 NLRB 834;
Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953 . Cf. The Borden Company,
at al., 110 NLRB 802; Speidel Corporation, 120 NLRB 733.
8 Properly the word "States" Is not capitalized when reference is made to the States
as a class.
10148 NLRB 1623. The Board's finding In that case, which permitted employees to
wear outsized union buttons to work, was rejected by the court in F+abri-Tea, Inc v
N.L R.B., 60 LRRM 2376 (C.A. 8). Here the employees were permitted by management
to wear such buttons.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, I recommend that the Respondent, Webb
Furniture Company, its officers, agents, successors, and assigns, shall
1 Cease and desist from refusing to notify, consult, and bargain collectively
with District 50, United Mine Workers of America, as the exclusive bargaining
agent of employees in the unit found appropriate herein and certified by the
Board on October 12, 1962, with respect to merit or other wage increases to be
granted to employees of Respondent in said unit
2 Take the following affirmative action to effectuate the policies of the Act
(a) Upon request, notify, consult, and bargain collectively with District 50,
United Mine Workers of America, as the exclusive bargaining r+ presentative of all
its employees in the aforesaid appropriate unit with respect to merit or other
wage increases to be granted its employees
(b) Post at its plants at Galax, Virginia, copies of the attached notice marked
"Appendix " ii Copies of such notice, to be furnished by the Regional Director
for Region 5, shall, after being signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained by it
for 60 consecutive days, in conspicuous places, including all places where notices
to employees are customarily posted Reasonable steps shall bi taken to see that
such notices are not altered, defaced, or covered by other material
(c) Notify the said Regional Director for Region 2, in writing, within 20 days
from the receipt of this Trial Examiner's Decision, what step', have been taken
by Respondent to comply herewith 12
ii In the event that this Recommended Order be adopted by the Board the words 'a
Decision and Order" shall be substituted for the words the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board s Order be enforced
by a decree of a United States Court of Appeals the words a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
12 In the event that this Recommended Order be adopted by the Board this provision
shall be modified to read "Notify said Regional Director in writing within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that
WE WILL NOT refuse to notify, consult, and bargain collectively with District
50, United Mine Workers of America as the exclusive representative of
employees in the appropriate bargaining unit with respect to merit or other
wage increases to be granted to employees in said unit The appropriate
bargaining unit is
All production and maintenance employees, including firemen and truck-
drivers at Respondent's Galax, Virginia, plants, but excluding all office
clerical employees, guards, professional employees and supervisors as defined
in the Act
WEBB FURNITURE CORPORATION,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No 752-2159