Carlson Furniture Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 162 (N.L.R.B. 1965)

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 25, in writing, within 20 days from
the receipt of this Decision, as to what steps the Respondent has taken to comply
herewith.26
26 If this Recommended Order is 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, as to what steps Respondent has taken to comply herewith."
APPENDIX A
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 135, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any
other labor organization of our employees, or discourage our employees from
engaging in concerted activities for their mutual aid or protection, by discriminat-
ing in regard to hire, tenure of employment, or any term or condition of employ-
ment of any of our employees
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to join or assist the
aforesaid union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL make the employees listed below whole for any loss of pay suffered
as a result of the discrimination against them.
Charles Belcher James B. Grosswiler
Robert Bryan Richard McIntire
Anthony DeBonis Lawrence Shanks
Bobby Dixon Alvin M. Walker
Charles Freeman Robert Whelchel
HI-WAY DISPATCH, INC.,
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.
Employees may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose 3-
8921, if they have any question concerning this notice or compliance with its
provisions.
Carlson Furniture Industries , Inc. and United Furniture Work-
ers of America and Local 886 of the International Union, Con-
federated Industrial Workers of America, Party in Interest.
Case No. 21-CA-5996. June 21, 1965
DECISION AND ORDER
On February 24, 1965, Trial Examiner William E. Spencer issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
153 NLRB No. 24.
CARLSON FURNITURE INDUSTRIES, INC. 163
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that Respondent had not engaged
in certain other unfair labor practices as alleged in the complaint.
Thereafter, Respondent and the General Counsel filed exceptions to
the 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 that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions, the briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the additions herein set forth.
The relevant facts as found by the Trial Examiner and as established
in the record show that :
On May 11, 1964, Respondent was operating its plant in the town of
Gardena, California. On that date Nick Nardi, a Local 886 represent-
ative, appeared at the plant and had a conversation with several of
Respondent's officials, including President Chupack, General Manager
Rose, and Plant Manager Neuberg. The latter then spoke to employee
McCurtis and advised him that a union representative was going to
visit the plant later in the day. Neuberg directed McCurtis to inform
the other employees that they were free to speak to the union represent-
ative and that they should not fear company retaliation. Neuberg
also indicated that the employees would benefit from representation.
Later in the day Nardi approached McCurtis and with the help of
McCurtis and Carter obtained authorization cards from all or almost
all of the other employees. Nardi then demanded recognition, which
was granted on May 12 after a cross-check of cards. On May 13 the
parties met for their first bargaining session. On May 14 they met a
,second time and reached agreement on a contract, giving the employees
-a 10-cent-per-hour wage increase, effective on May 18. Nardi and
Anthony Doria, the president of Local 886, then met with the employ-
ees to explain the contract to them, and the employees ratified the
agreement. On May 21 the contract was executed.
On June 1 Respondent moved its plant from the Gardena location
to the town of Huntington Park. The new plant was located next to
another furniture manufacturer whose employees were represented
by the United Furniture Workers, AFL-CIO. As a result of con-
tacts by Respondent's employees with these employees, there developed
1 Local 886, the party in interest herein , filed a brief in support of the Trial Examiner's
Decision.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
widespread dissatisfaction among the former with Local 886. Oli
June 5 McCurtis had a meeting of most of the Carlson employees at his
home, where they were addressed by a representative of United and all
employees at the meeting signed United authorization cards.
On June 8 McCurtis called Nardi and asked him to come to the plant.
The employees held a meeting at lunch break with Nardi present and
told Nardi that they did not want Local 886 to continue to represent
them. Supervisor Jeanes observed the meeting and questioned
employee Turner about it. Turner told Jeanes that the employees did
not want to be represented by Local 886 and that they believed they
could get a better union. Later in the day Rose interrogated McCurtis
about the meeting, and McCurtis stated that the employees did not
wish to be represented by Local 886. Rore replied that the Company
would withdraw the wage increase, and threatened that if Local 886,
were repudiated McCurtis and other employees would be discharged.
According to Chupack, Rose informed him of the employees' dis-
satisfaction with Local 886 either the evening of June 8 or the morning
of June 9 (other testimony fixes the date as June 9). When Chupack
received this news he said :
"All right, the hell with it. Take back the raise." He [Rose] said,
"You can't do that. You have a contract." I said, "Take it back
and I will slug it out with them later."
Nardi, in the interim, had reported to Doria concerning the employees'
repudiation of Local 886. On the morning of June 9, about the same
time that Chupack had withdrawn the wage increase, Doria called
Rose in regard to the employees' actions of June 8, and, apparently, as
the Trial Examiner found, Doria advised Rose that Local 886 was with-
drawing its representational claims. Following this conversation,
Doria sent Respondent the following telegram :
This confirms our telephone conversation of this morning that
on basis of majority vote among employees in plant opposed with
going further with the union we are hereby advising you that
union has no further interest in and in no manner represents
employees in your plant.
Anthony Doria President International Union Confederated
Industrial Workers of America.
Subsequently, Doria learned that United was interested in organiz-
ing the Carlson employees. He then attempted to revoke his earlier
communication to Respondent and reassert Local 886's claims as the
employees ' bargaining representative.'
2 At the hearing Respondent and Local 886 attempted to make much of Rose's testimony
that prior to receiving Doria's telegram , Nardi delivered a letter to Respondent repudiating
the telegram. 7e find Rose 's testimony in this respect contradictory and inherently im-
CARLSON FURNITURE INDUSTRIES, INC . 165
About 12:15 p.m. on June 9, Respondent discharged 1McCurtis and
Carter allegedly for cause.
Based upon the evidence as summarized above, the Trial Examiner
found that Respondent violated Section 8(a) (1) of the Act by threat-
ening employees that Respondent would withdraw a recently granted
10-cent-per-hour wage increase if the employees persisted in their
efforts to repudiate Local 886; by actually withdrawing such increase
when the employees continued to protest against Local 886; and by
threatening employees with discharge for opposing Local 886. The
Trial Examiner also found that Respondent violated Section 8 (a) (3)
and (1) of the Act by discharging employees McCurtis and Carter
because of their efforts to depose Local 886 as the bargaining represent-
ative "and discourage any attempts [by the employees] to shift alle-
giance to another labor organization." The Trial Examiner did not
find, however, that Respondent violated Section 8(a) (2) and (3), as
alleged in the complaint, by recognizing Local 886 and by entering into
and enforcing a collective-bargaining agreement with Local 886 con-
taining a union-security provision.
We agree with the Trial Examiner's findings that Respondent vio-
lated Section 8(a) (1) and (3) of the Act. We also agree with the
Trial Examiner that Respondent did not violate Section 8(a) (2) of
the Act when it initially recognized Local 886. However, we find in the
light of the events that occurred on June 9, 1964, and thereafter that
Respondent violated Section 8(a) (2) and (3) as alleged in the com-
plaint and as set forth below.
There can be little doubt that after June 1, when Respondent moved
its plant to Huntington Park, Local 886's status as the bargaining rep-
resentative became a source of trouble for Respondent. Thus, the rec-
ord shows that the employees quickly became dissatisfied with Local
886 and by June 5 a majority of the employees had signed United
authorization cards. While Respondent apparently did not know at
that time that the employees signed United authorization cards,
Respondent was aware of employee unrest, and Rose's testimony estab-
lishes that Respondent attributed a sharp decline in production to the
employees' manifest discontent with Local 886. Moreover, Rose's con-
cern with the decrease in production and his anger over the employees'
activities in connection with Local 886, prompted him to state on
plausible . We also find that Rose 's and Doria 's claim that they did not discuss the Union's
withdrawal as the employees ' representative during their first telephone conversation on
the morning of June 9 , inconsistent with the plain language of the telegram itself and
inherently implausible In any event, we find that the parties abrogated the existing
collective-bargaining agreement and that Local 886, with Respondent's consent or acqui-
esence, withdrew as the employees' representative during a telephone conversation between
Doria and Rose on the morning of June 9, as well as by Respondent's conduct of the
same date ( described below) In considering the contract nullified and "taking back" the
10-cent raise , and the telegram serves as evidence confirming the parties ' agreement in
this respect.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 8, that but for the contract with Local 886 Respondent would re-
duce wages and discharge unwanted employees. Therefore, when
Chupack, obviously aware of the decline in production, learned from
Rose, on June 9, that the employees wished to terminate the relation-
ship with Local 886, he quickly seized the opportunity. He told Rose,
"All right, the hell with it. Take back the raise.3 . . . If we don't
have a union then we will revert to our prior wage scale." Chupack
then instructed the bookkeeper to reduce the employees' wages to
the precontract rate.
When Doria spoke to Rose thereafter and informed him that Local
886 was abandoning all claims to represent the employees, the inference
is inescapable in light of the foregoing that Respondent agreed to or
acquiesced in that decision. We find, therefore, that Respondent and
Local 886 by mutual consent abrogated the existing collective-bargain-
ing contract, and terminated Local 886's representative status on the
morning of June 9. Although Local 886 subsequently demanded that
Respondent restore the wage increase and live up to the contract,
Respondent admittedly disregarded these demands. However, when
on June 10 Respondent was informed by United that it represented a
majority of the employees and demanded recognition, Chupack com-
plied with Local 886's request. Thus, it is apparent that Respondent
resumed its relationship with Local 886 only in order to foreclose the
employees' selection of another bargaining representative. Rose later
told the employees that McCurtis, who had been discharged the previ-
ous day, had caused all of the unrest by bringing another union into
the shop, then moved to quell any further unrest by telling the employ-
ees that those who were unwilling to accept Local 886 as the bargaining
representative were to punch out and leave.
As Respondent and Local 886 had, on June 9, agreed to and did ter-
minate their collective-bargaining relationship and abrogate the exist-
ing agreement, in light of Respondent's admitted knowledge that as of
June 9 Local 886 did not represent a majority of the employees, and in
light of Respondent's unlawful efforts on June 9 and 10 to coerce and
restrain the employees in their selection of a bargaining representative,
we find that Respondent violated Section 8 (a) (2) of the Act by honor-
ing Local 886's demand for recognition on June 10. We further find
that Respondent violated Section 8(a) (2) and (3) of the Act by rein-
stituting, on June 10, the collective-bargaining agreement containing
a union-security clause, and by thereafter enforcing and maintaining
such collective-bargaining agreement.
9 When Rose attempted to caution Chupack about reducing the employees' wages in light
of the contract with Local 886, Chupack disregarded the warning saying, "Take it back
and I will slug it out with them later."
CARLSON FURNITURE INDUSTRIES, INC.
THE REMEDY
167
Having found in agreement with the Trial Examiner that the
Respondent has engaged in and is engaging in certain unfair labor
practices , we shall order that it cease and desist therefrom and take cer-
tain affirmative action which we deem necessary to effectuate the poli-
cies of the Act.
Having further found that the Respondent has violated Section
8 (a) (2) of the Act, we shall order that the Respondent cease and desist
from such activities and, further, that it withdraw and withhold recog-
nition from Local 886 unless and until that Union shall have been certi-
fied by the Board as the exclusive representative of the employees. We
shall , of course , also order the Respondent to cease maintaining and
enforcing its unlawful agreement with Local 886.4
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner , as modified
herein, and orders that Respondent , Carlson Furniture Industries, Inc.,
Huntington Park, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order, as so modified.
1. Add the following to paragraph 1 of the Recommended Order :
"(c) Assisting and contributing support to Local 886 of the Inter-
national Union, Confederated Industrial Workers of America, or to
any other labor organization.
"(d) Recognizing Local 886 of the International Union, Confed-
erated Industrial Workers of America, or any successor thereto, as the
representative of its employees for the purpose of dealing with it con-
cerning wages , rates of pay , hours of employment , or other conditions
of employment, unless and until such labor organization shall have been
certified by the Board as the exclusive representative of its employees.
"(e) Giving effect to the collective -bargaining agreement entered
into on or about May 21, 1964, or to any extension, renewal, or modifi-
cation thereof, unless and until Local 886 shall have been certified by
the Board as the exclusive bargaining representative of its employees;
providing that nothing in this Decision and Order shall require
Respondent to vary or abandon any wage, hour , seniority, or other
substantive feature of its relationship with its employees which
Respondent has established in the performance of such agreement, or
to prejudice the assertion by its employees of any rights they may have
thereunder.
'As the record shows that the parties have not enforced the union -security and checkoff
provisions of the contract, we shall not order reimbuisement of dues
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(f) Encouraging membership in Local 886 of the International
Union, Confederated Industrial Workers of America, in violation of
Section 8 (a) (3) of the Act."
2. Substitute the following for paragraph 2(d) :
"(d) Withdraw and withhold recognition from Local 886 of the
International Union, Confederated Industrial Workers of America,
or any successor thereto, unless and until such labor organization shall
have been certified by the Board as the exclusive representative of the
employees."
3. Renumber paragraph 2(d) of the Recommended Order as 2(e),
and renumber paragraph 2 (e) as 2 (f) .
4. Amend the Appendix by adding the following after the second
full paragraph thereof :
WE WILL NOT assist or contribute support to Local 886 of the
International Union, Confederated Industrial Workers of Amer-
ica, or to any other labor organization.
WE WILL NOT give effect to the collective-bargaining agreement
entered into on or about May 21, 1964, with Local 886 of the Inter-
national Union, Confederated Industrial Workers of America, or
to any extension, renewal, or modification thereof, unless and until
Local 886 shall have been certified by the Board as the exclusive
bargaining representative of its employees.
WE WILL NOT encourage membership in Local 886 of the Inter-
national Union, Confederated Industrial Workers of America, in
violation of Section 8(a) (3) of the Act.
5. Amend the Appendix by adding the following after the third full
paragraph thereof :
WE WILL withdraw and withhold recognition from Local 886
of the International Union, Confederated Industrial Workers of
America, or any successor thereto, unless and until such labor
organization shall have been certified by the Board as the exclusive
representative of the employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented, was heard before Trial Examiner
William E . Spencer in Los Angeles , California, on November 12, 13, 16, and 17,
1964, upon a complaint of the General Counsel of the National Labor Relations
Board, the latter herein called the Board, dated August 17, 1964, and the duly filed
answer of Carlson Furniture Industries , Inc., herein called the Respondent. The
complaint ( based on a charge filed June 10, 1964, by United Furniture Workers of
America, AFL-CIO, herein called United) alleged , in substance , that the Respond-
ent, in violation of Section 8(a)(2) of the National Labor Relations Act, as
amended , herein called the Act, rendered unlawful assistance to Local 886 of the
International Union, Confederated Industrial Workers of America, herein called
Confederated ; in violation of Section 8(a)(3) of the Act, discharged two named
CARLSON FURNITURE INDUSTRIES, INC. 169
employees because of their union and concerted activities ; and by the aforesaid and
other specified conduct interfered with, restrained , and coerced its employees in
violation of Section 8(a)( I) of the Act.
Upon the entire record in the case, after consideration of the briefs filed with me
by General Counsel, Respondent, and Confederated, respectively, and upon my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation, prior to June 1, 1964, maintained its office
and principal place of business at Gardena , California , and since that date, at
Huntington Park, California . At all times material herein it has been engaged in
the business of importing , assembling , and distributing of furniture which is received
from Japan and other foreign countries. During the past calendar year, a repre-
sentative year, it sold and shipped from its California operations finished products
valued in excess of $50 ,000 to points outside the State.
II. THE LABOR ORGANIZATIONS INVOLVED
Confederated and United are, each of them, labor organizations within the mean-
ing of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Alleged unlawful assistance
Theodore McCurtis , the General Counsel's leading witness, employed by Respond-
ent in various capacities since November 1963, and discharged by the Respondent
on June 9, 1964, testified in substance that on May 11, 1964, Respondent's super-
visors, Edward Neuberg and Bill Jeanes , approached him where he was at work and
told him that a representative of a labor organization would be at the plant that
day; that he was to inform the other employees not to be afraid to talk to the union
representative ; that it would be good for them to have a union ; and that they would
get a dime raise through union representation . Following instructions , McCurtis
talked to the other employees along the lines suggested by Neuberg and Jeanes.
Shortly before noon, Confederated's representative, Nick Nardi, appeared at the
plant, had McCurtis pointed out to him by employee James Carter, asked McCurtis
if he had talked to the employees about union representation, and said that he would
meet with the employees during the lunch hour Nardi had previously, on that
day, called on Respondent president, Chupack, and obtained permission to interview
his employees.
At the meeting which followed just outside the plant, Nardi told the employees
of the benefits to be derived from affiliation with Confederated, and through McCurtis
and Carter, passed out authorization cards, saying that these were needed in order to
enable Confederated to negotiate with the Respondent on their behalf. All the
employees signed authorization cards.
Following his initial meeting with the employees, Nardi called at the office of
Carl Chupack, Respondent's president, told him that a majority of Respondent's
employees had signed authorization cards, and handed him a letter signed by Doria
demanding recognition of Confederated.' A cross-check of authorization cards
against Respondent's payroll was agreed upon by Chupack and Nardi, and on May 12
the cross-check was made by a certified public accountant On May 13 there was
a preliminary meeting between Respondent's Rose and a representative of Confed-
erated, and on the morning of May 14 a second meeting occurred attended by Rose,
Chupack, and Doria. At this meeting a contract was agreed upon. Pursuant to this
agreement , a 10-cent wage increase was made effective as of May 18 . On May 15
Chupack left this country for a business trip to Japan. He returned about June 1.
The imminence of his departure for Japan was a reason advanced by Respondent
and Confederated for the hasty action on a contract.
On May 15, right after quitting time, Nardi and Anthony Doria, Confederated's
president , met with the employees just outside the plant. Doria discussed the exist-
ing wage and job classifications , said that each employee would get an immediate
dime increase , and sketched the wage increases which would be obtained under a
3-year contract which Doria was proposing . According to McCurtis , Doria said
'Anthony Doria was Confederated ' s president.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there would be a 30-day trial period at the end of which the employees could
decide whether or not they wanted to retain Confederated as their union representa-
tive, or wanted to adopt the Union's proposed contract. Further, according to
McCurtis, Doria said that the job steward would have to sign any contract nego-
tiated on their behalf by Confederated. Admittedly, the employees were advised to
elect a job steward and McCurtis was chosen.
Dona denied that any reference was made to a 30-day trial period, and testified
that he reviewed the terms of the proposed contract with the employees and sub-
mitted it to them for their approval and, after discussion and comments from
McCurtis favoring its ratification, they unanimously approved it. He denied stat-
ing that the contract would require the signature of the job steward to make it
effective, and testified that when the question was raised by McCurtis he stated that
once the contract had been approved by the membership, Confederated's officers
were authorized to execute it and that the presence of the job steward was not
required but that McCurtis could affix his signature to the copy to be posted in the
plant if he desired to do so. On May 21 the contract was executed by Rose on
behalf of Respondent, and Doria on behalf of Confederated.
About June 1 Respondent transferred its operations from its Gardena plant to its
Huntington Park plant. Adjacent or close to its Huntington Park operation, employ-
ees of another employer were represented by United In discussions between
Respondent's employees and these other employees, Respondent's employees learned
of the kind of representation United was rendering the former, and apparently this
led to discontent among some of them with the kind of representation they were get-
ting, thought they were getting, or expected to get from Confederated. McCurtis
made contact with a representative of United, and on the evening of June 5 most of
Respondent's employees met at McCurtis' home where they were addressed by
United's agent The employees attending this meeting signed United authorization
cards. On June 8, about lunchtime, the employees met with Confederated's Nardi,
and McCurtis informed the latter that the employees did not want Confederated to
represent them.
Employee James Turner testified that after Nardi left the meeting, Supervisor
Jeanes asked him what the employees were talking about, and he, Turner, replied
that the employees did not want Confederated, that they figured they could get a
better union. Later, on that same day, according to McCurtis, he received a tele-
phone call from Doria asking about the employees not wanting Confederated to
represent them. According to McCurtis, Doria said that without Confederated rep-
resenting them, the Company could discharge anybody it wanted to and would take
back the wage increase already given. He asked McCurtis to talk to the employees.
On the same day, in answer to interrogation by Manager Rose, who was accompa-
nied by Neuberg, McCurtis advised them that the employees did not want Confed-
erated , whereupon Rose said that without Confederated Respondent would take
back the dime wage increase, and Neuberg said, "That is good that you don't want
the Union, see, because there is about ten guys back in the back I want to get rid of
anyway. In fact, I might just fire the whole plant, and you too, baby."
After being informed by Nardi that Respondent's employees had advised him that
they no longer wanted Confederated to represent them, Doria first informed Respond-
ent, in effect, that Confederated was withdrawing its representational claims, but
later , on learning that a rival union had entered the picture, an action which Doria
construed as a "raid," revoked the earlier communication and continued thereafter
to assert its representational status.
By letter dated June 9, United advised Respondent that it represented Respond-
ent's employees and requested bargaining on a contract. This letter was received by
Respondent on June 10.
A good deal of evidence was offered by General Counsel's witnesses on Respond-
ent's reaction on June 9, and later when informed that its employees had repudi-
ated Confederated as their bargaining representative. McCurtis testified that when
he advised Rose that the employees were firm in repudiating Confederated, the lat-
ter repeated his statement of the day earlier about rescinding the 10-cent waee
increase incorporated in Confederated's contract, and reminded McCurtis of what
Neuberg had said would happen to McCurtis if the employees did not keen Con-
federated as their representative. Employees McCurtis and Carter were discharged
about noon on that day, June 9. Employee Ed Hernandez testified that in the
early afternoon Neuberg showed him a telegram from Doria stating that Confeder-
ated no longer represented the employees and told him to find out if the employees
agreed with it Hernandez reported back that the majority no longer wanted Con-
federated. Later that day, according to Hernandez, Neuberg asked him if he would
CARLSON FURNITURE INDUSTRIES, INC. 171
sign Confederated's contract and he refused, saying that he had not been designated
a steward. Employee James Turner testified that on June 10, when he asked Neu-
berg why everybody was "snapping at one another," Neuberg replied that it was
McCurtis' fault in trying to bring in another union, that he, Neuberg, was tired of
it because production was falling back and he wanted the employees to get together.
Further, according to Hernandez and Turner, on that same day Neuberg told them
that employees who did not want Confederated could punch their cards and leave
but the others could stay. On being so informed, the employees, except a few,
started toward the timeclock, and were met by Neuberg, who reiterated that employ-
ees who did not want Confederated were to punch their timecards and leave; said
that it was going to be either this union or no union; that production was poor
because the employees were not getting out the work; that those who wanted to
work were to remain and those who did not were to punch out. Employee Albert
Weeks testified that at that point he told the employees not to check out if it was
a matter of working or not working, whereupon the employees returned to work
Turner further testified that Neuberg told him and Hernandez that he did not want
another union in the plant and would fight it if it tried to get in.
Respondent did, in fact, withdraw the 10-cent wage increase which had become
effective May 18. This was done at Chupack's direction. Chupack, on being
advised by Rose of dissention in the plant over Confederated, said, "Well, if we
don't have a union, then we will revert to our prior wage scale." When reminded
by Rose of the bargaining agreement, he said, "Well, if the people don't want it
[the wage increase], to hell with it. We will take it back." On learning of this
action, Confederated, by letter dated June 9, demanded that any increase granted
under the bargaining agreement withheld, should be reinstated and applied retro-
actively to the amounts withheld. This demand was complied with and Confed-
erated's letter posted in the plant.
Respondent's witnesses Rose and Neuberg denied threats directed at those employ-
ees who repudiated Confederated, such as were attributed to them as set forth above.
Neuberg admitted that he discussed the bargaining agreement with McCurtis, and
stated that there were several employees who would not be working there except
for the union; that if there were no union, they would not be working. He also
testified that he met with the employees on June 10 with respect to a dropoff of
some 60 percent of former production, stated to them that he would "fight to keep
the union out of my production," but otherwise made no reference to unions or
union activities. He specifically denied that he told Hernandez that if the employees
did not want Confederated, they were to punch out and go home, or that he at any
time showed Hernandez Doria's telegram, or asked him to sign the bargaining
agreement. I found Hernandez' explanation of how he came into possession of
Doria's telegram unconvincing, and do not believe that Neuberg asked him to sign
the bargaining agreement. There would have been no occasion for this since the
agreement had already been executed by the proper and necessary parties. Her-
nandez' smart young lawyer's agility in parrying questions on cross-examination did
not enhance his credibility as a witness. I also found it a little confusing that Neu-
berg, according to Weeks and others, in addressing the employees on June 9, would
tell them first to clock out unless they supported Confederated, and then, in the
course of the same remarks, to clock out unless they wanted to work. However,
the combined testimony of the General Counsel's witnesses on this point was con-
vincing and I credit them.
Finally, there was the testimony of Turner that in August, Respondent's Bill
Jeanes threatened him with discharge if he did not sign a dues deduction authoriza-
tion under the checkoff provision of the bargaining agreement. Jeanes' version of
the incident, which I credit, is that Victor Sambona, then union steward, asked him
to pass out checkoff authorizations, which he refused to do, and said that Con-
federated would request that employees refusing to sign be dismissed. Jeanes later
observed an unsigned checkoff authorization on the desk where Turner worked,
asked him to sign it, and when he refused, said, "Sign it or the union is going to
ask whoever doesn't sign to be dismissed." Admittedly, Confederated agreed, pos-
sibly at a later date, not to seek enforcement of the union-shop and checkoff provi-
sions of its contract, and Respondent has discharged no one for failure to observe
them.
I have no doubt, and accordingly find, that from the time it first learned that there
was dissension among its employees concerning representation by Confederated,
Respondent questioned various employees about this dissension and what it meant,
but considering that it had a contract with Confederated as their bargaining repre-
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative , I do not find such interrogations unreasonable or unlawful . There is na
evidence that Respondent knew of its employees ' interest in or affiliation with
another union at the time it engaged in such interrogations.
B. Concluding findings on alleged assistance and support
If McCurtis' testimony is credited in toto, Respondent, in effect, made him its
agent in soliciting its employees to designate Confederated as their bargaining rep-
resentative, and in promising wage and other benefits if they acted in accordance
with Respondent's wishes in the matter. There are, however, substantial portions
of McCurtis' testimony, as well as that of supporting witnesses, that I am unable to
credit. I do not believe that the Respondent promised a 10-cent wage increase or
any increase whatever if the employees chose Confederated, or instructed McCurtis
so to inform its employees. McCurtis did not mention the 10-cent increase in his
testimony until he had been given a gentle prod by his interrogator, and a support-
ing witness, Carter, who testified that he overheard Neuberg talking to McCurtis,
testified only that Neuberg said the employees would get more benefits and more
money by designating the union, making no mention of a definite figure. Carter,
who signed up about eight employees, in testifying on what he said to these
employees in soliciting them to sign cards, made no mention of a wage increase or
other benefits, and employees Turner and Hernandez, who were solicited to sign
cards by McCurtis, testified that McCurtis said no more than that the cards were
for getting a union into the plant. It is unlikely that had Neuberg actually prom-
ised a 10-cent increase, or any increase whatever, as an inducement to get the
employees to sign authorization cards, McCurtis and Carter would have withheld
this information from the employees that they solicited to sign union cards.
McCurtis' testimony, on cross-examination which follows, reinforces my doubts in
the matter:
Q. Mr. McCurtis, when was the first time anyone from the company ever
approached you with respect to any type of union discussion?
A. May 11.
Q. Who was it that approached you?
A. Mr. Neuberg.
* * * * * * *
Q. What did you take as an order from him on that particular occasion?
A. "You go around and talk to the other employees about the union."
Q. What did he tell you to tell them?
A. That he wanted-he said he wanted me to talk to the men that a man
would be out from the union and not to be afraid to talk with the man.
Q. You have testified to the fact that these are the things he said to you; num-
ber one, he wanted you to talk to the men; number two, no one was going to be
fired.
A. Yes.
* * * * * * *
Q. Was there anything else9
A. Explain the benefits they would gain by having the union.
Q. What benefits did he specifically point out would be available?
A. Raise in pay.
Q. How much of a raise in pay? Did he state that specifically9
A. I couldn't state specifically, but I keep thinking of a nickel or a dime.
Q. You don't recall?
A. Yes, nickel or dime raise.
Q. Did he say it would be a nickel or dime raise9
A. One out of the two, yes.
Q. One out of the two. You don't remember which?
A. Not exactly.
Carter's testimony, on cross-examination, in the matter also did little to resolve
my doubts in the matter. After testifying that he overhead Neuberg tell McCurtis
that a union would mean more money for the men, he admitted that he did not
hear Neuberg specify any amount of money. In his prehearing affidavit, Carter
stated: "Neuberg told McCurtis to advise the employees to join the union. Neuberg
did not mention the name of the union or the name of the union man. This is all I
recall of the conversation. Neuberg was alone when he spoke to McCurtis." There
CARLSON FURNITURE INDUSTRIES, INC. 173
are other portions of McCurtis' testimony, as well as that of Carter and other wit-
nesses for the General Counsel, that I am unable to credit, such as their insistence
that Doria never reviewed the proposed bargaining agreement with them, and
informed them that they had a 30-day trial period in which to decide whether they
wanted Confederated to represent them. Even Hernandez, hotly partisan for
United and against Confederated, admitted that he heard no mention of a 30-day
trial period, and Turner retracted his prior testimony that Doria did not review the
proposed contract with them when shown his pretrial affidavit which read in part,
"Doria went over the terms of the contract. Dona asked for a show of hands as
to whether we approved the contract. All the employees raised their hands." In
short, Turner gave perjured testimony in the matter and only when confronted with
a prehearing affidavit corrected it. What of the credibility of the other witnesses
for the General Counsel who denied that Doria submitted the proposed contract
for their endorsement? Also, I think it is obvious that whatever mention there was
by Doria of a 30-day trial period, it had reference to the union-shop clause of the
agreement. A review of the entire testimony of these witnesses for the General
Counsel convinces me that substantial portions of it are untruthful, distorted, or
mistaken, and it is hardly rendered acceptable by the fact that I am convinced that
neither were Respondent's witnesses Rose and Neuberg, particularly the latter, com-
pletely candid in their testifying.
I find that after Nardi visited the Gardena plant on May 11, Neuberg singled out
McCurtis and directed him to inform the employees that a union agent would visit
the plant later that day, that they were free to talk to him and need have no fear of
being discriminated against.2 It is possible that Neuberg may have left the impres-
sion with McCurtis that Respondent welcomed union representation of its employees
and thought they would benefit from it, but I find that he gave no assurances of
wage increases or other specific benefits. Chupack, Rose, and Neuberg all testified
that they had never heard of Confederated before Nardi called on them on the
morning of May 11, that there had been no prior contact between them and Nardi
or any other agent of Confederated, and I credit them. This does not rule out the
possibility that after Nardi's call, Respondent informed itself of this union, its repu-
tation, etc., but there is no evidence of this. The fact that all the empioyees solicited
promptly signed authorization cards for Confederated might signify company
approval, but I think it takes a little more than mere company approval to consti-
tute unlawful assistance and support within the meaning of the decisions. The quick
action in entering into a contract might also be regarded with suspicion, for it is
certainly unusual for a labor organization, newly organizing a plant, to get a satis-
factory contract after no more than two bargaining sessions, all within a week's
time, and that Respondent's owner, Chupack, was going to be out of the country for
no more than a week or two, hardly accounts for such haste But does this con-
stitute proof of unlawful assistance9 At most, I think it could reasonbly be con-
sidered as only one element among several of equal or stronger substance to justify
a conclusion of unlawful assistance. The employees did gain various benefits under
the contract, perhaps not as much and as many as they shortly came to believe they
should have, but enough that there is nothing in the contract on its face to spell out
collusion. Furthermore, as previously indicated, it is established to my satisfaction
that before the bargaining agreement was executed, Doria met with the employees
for the purpose of reviewing its terms, submitted it to them for their vote, and by a
unanimous show of hands they approved it. Turner's preheating affidavit, which he
affirmed on the witness stand, fully corroborates Doria in the matter. I am further
convinced that neither Doria nor Nardi told the employees that the bargaining
agreement would become effective only if signed by their job steward. McCurtis
was elected job steward at the same meeting in which the employees approved the
contract, and was informed by Doria that he could, if he chose to do so, affix his
signature to the copy of the bargaining agreement which would be posted in the
plant, from which he may have inferred that his signature was required, though I
consider this unlikely. Confederated's constitution and bylaws contain no such
requirement. Furthermore, it was only after the bargaining agreement had been
ratified by the employees and executed, that McCurtis established his first contact
with United and it was only then, apparently, that he became dissatisfied with what
2 Respondent explained convincingly that McCurtis was singled out because of his work
area where he normally would be the first of the employees to see the approach of the
union agent.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Confederated was offering in its collective agreement. There was no reason for his
withholding his signature from the agreement at the time of its ratification if, in
fact, he thought it was required to make the agreement binding.3
Respondent's reaction to its employees' attempted repudiation of Confederated on
June 8 and thereafter, some weeks after the execution of a bargaining agreement,
was unequivocal. It revoked the 10-cent wage increase given under the agreement
and reinstated it only on Confederated's demand. Neuberg admitted that he told
McCurtis that there were several employees who would not be working there except
for the union, and this obviously was said in order to counteract the employees'
attempted repudiation of Confederated. I think he went further than that. I think
he made an outright threat to McCurtis and others that discharges would follow if
the employees repudiated Confederated. Of course he may have had reference to
the union-shop clause of Confederated's contract, but if this was what he had in
mind he should have said so, and he did not. It should be noted, however, that it
is entirely consistent with a bona fide relationship between Respondent and Confed-
erated, that an attempt by the employees to break away from Confederated after
its representational status had been confirmed by a bargaining agreement, should be
resisted by one or both and affords little in the way of evidence establishing unlawful
assistance. There is no reason to question the testimony of Respondent's witnesses
that its production was adversely affected by dissention among its employees over
union representation, an issue which it might reasonably have considered sealed by
the execution of a bargaining agreement. In short, while I believe and find that
Respondent's threat to withdraw the 10-cent wage increase and act of withdrawing it,
and threats of discharge if its employees persisted in repudiating representation by
Confederated, constituted interference, restraint, and coercion within the meaning
of Section 8(a)(1) of the Act, such violations do not, in my opinion, establish
assistance and support within the meaning of Section 8(a)(2) of the Act.
It appears to me, after sifting all the testimony in the matter, that what happened
was that Confederated was the first labor organization to approach these employees
while they were still employed at the Gardena plant and encountering no opposition
from management, but, on the contrary, with the undoubted cooperation of man-
agement,4 got them signed up and covered with a bargaining agreement before, on
their transfer to a new location, they learned of what they came to consider the
superior advantages of being represented by another union. Obviously, after the
transfer and after they were acquainted with the advantages offered by a rival union,
these employees regretted their choice of Confederated and tried to bring about a
change in their bargaining representation. This they could do under prevailing rules
only by showing that they were unlawfully coerced in their initial choice of Con-
federated. While one may be fully appreciative of their dilemma, their falsification
in their testimony on several crucial points is not to be condoned and may, in fact,
have operated to make it impossible to guage correctly the full extent and nature of
Respondent's cooperation with Confederated in the latter's organizational coup.
I shall recommend dismissal of the 8(a) (2) allegations.
C. The discharges
In the forenoon or early afternoon of June 8, Supervisor Jeanes instructed McCur-
tis to assemble some 42 chairs, 32 of a Danish styling in walnut finish and 10 Italian
Provincial in a white finish. It was important to Respondent that the chairs be
completely assembled for shipment at 8 a.m. the following day, but Jeanes admitted
that he did not inform McCurtis of this deadline until near quitting time. According
to Jeanes, some 5 minutes was required for completing the assembly on one chair;
according to McCurtis, about 10 to 15 minutes was required for the operation. Late
in the afternoon, it having been observed that McCurtis had assembled only some
25 chairs, Jeanes detailed several other employees to assist him, among them Albert
Weeks, who was more experienced than McCurtis in chair assembly. The job of
assembling the chairs included removing them from packing cases, fitting them
together, and, as a final operation, applying screws to hold them in place. Work
on the chairs in question was finished shortly before 6 p.m., well past the usual quit-
ting time.
3 As testified to credibly by General Counsel's witness, Albert Weeks , the contract was
posted in the plant and bore the names (not signatures) of Rose and McCurtis , the latter
in bold letters
4I do not believe that an employer has to be hostile to organizational activities among
his employees in order to escape the charge of unlawful assistance
CARLSON FURNITURE INDUSTRIES, INC. 175
According to Respondent's witnesses, on attempting to load the chairs on a truck
for delivery the following morning, June 9, the Italian Provincial chairs fell apart.
This was due to the fact that these chairs had not been screwed into place. It was
necessary to complete this operation on the loading dock and this delayed delivery of
the shipment substantially beyond the time promised the purchaser . Jeanes testified
that he had certain knowledge that McCurtis had worked on these chairs , and that
McCurtis did the work on these chairs is borne out by the testimony of Weeks, the
General Counsel 's witness.
Jeanes testified that McCurtis came by while the Provincial chairs were broken
down on the loading dock , and he called McCurtis ' attention to them , saying, "Ted,
I thought you told me these chairs were finished ," to which McCurtis replied , "I did.
They are finished ." Pointing to the chairs , Jeanes said , "How come they fell apart;
if they are finished," and McCurtis replied , "I don 't know . I finished them last
night ." McCurtis denied that Jeanes spoke to him about the matter or that he
observed the chairs on the loading dock . I do not credit his denial.
Jeanes testified concerning the actual discharge:
So I went to Eddie Neuberg and I told him what had been going on, and
about some marbles that he [McCurtis ] had broken . I told him there was a lot
of guys around here that thought they could get away with almost anything.
He said , "Like who?"
I said, "Like Ted McCurtis , for one."
He said , "Why?"
I said , "Well, a case like this here ." [Apparently referring to the chair assem-
bly.] I said , "I can 't put up with this any more."
So he said, "Do what you have to do."
I said, "I am going to let him go."
He said , "Go ahead."
McCurtis ascribed the delay in assembling the chairs to the fact that he was
assigned other duties by Neuberg and that the electric screwdriver was in use on
another and more important operation . Jeanes denied that he was assigned to
duties which would conflict with his assignment on the chair assembly, and Weeks'
testimony appears to indicate that while the electric screwdriver was required for
the final assembly on the Danish chairs , a hand screwdriver would do on the Italian
Provincial chairs. Jeanes admitted that the electric screwdriver was faster . McCur-
tis testified that when he left the plant all the chairs had been assembled ; apparently
not all had had the screws tightened , however, for he further testified , "Al Weeks
was tightening screws. He had about three more chairs to tighten the screws on."
He denied that Jeanes asked him if the chairs were ready to be loaded and that he
replied in the affirmative . Weeks testified that when he was assigned to the job
near his quitting time, there were about 20 chairs which had been assembled but
which had not yet had the screws installed . "I was the only one going through the
whole line there ," he testified on direct examination , "I checked them all, and I felt
like that was my responsibility, being I was doing the final assembly" on the job,
"And as far as I could see they were all complete ." On cross-examination, he
testified , "I believe most of the white ones [Italian Provincial ] were done, I did
check a few out . I didn 't check them all out . No, I checked about eight of them,
I guess. I don 't know. They seemed to be all complete ." He was not questioned
by Respondent following the collapse of the Italian Provincial chairs on the loading
dock , although he himself considered that the final phase of the assembly was his
responsibility.
Turner testified that on the day McCurtis and Carter were discharged , Neuberg
stopped where Turner was at work . Turner testified , "He stopped and he told me
that he fired McCurtis and Carter , and he told me that he didn 't want to do it but
he had to . He said that McCurtis was-didn 't finish the chairs he was supposed to
have finished , and he said that things were leaving through the back door, and him
and Carter had something to do with it, and that is another reason why he fired him.
He said it had nothing to do with what McCurtis said to him . He said McCurtis
gave some sly accusations to him , but he said that had nothing to do with it. He
said McCurtis was incompetent , and he fired Carter because Carter followed him
around all day." Further, according to Turner, the week prior to the hearing in
this proceeding, Neuberg told him he had no objection to a union . "He said all he
wanted was his production , and he said McCurtis was collaborating with another
union and this union at the same time, and they found out about it and fired him."
McCurtis admitted that he had been reprimanded for his handling of the forklift
while he was still employed at Gardena , and that he was removed from this opera-
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion when he came to the Huntington Park plant. I assume that Respondent devel-
oped this evidence to show that aside from the chair assembly incident, McCurtis
was an unsatisfactory employee. Smoking in restricted areas was another complaint
against McCurtis, testified to by Jeanes. Neither of these matters was mentioned to
McCurtis at the time of his discharge.
With respect to Carter, Jeanes testified that on occasions at Gardena , as well as
Huntington Park, he had reprimanded the former for "continuous wandering around"
away from his job station, and that Carter would respond to these reprimands "in
a sarcastic way" and then walk off, shaking his head and mumbling, "Blue-eyed
devil." He testified that on the day of the discharge, after the decision on McCurtis
had been made, he encountered Carter some 300 feet away from his work station
talking to employee Turner. When Jeanes questioned him about being away from
his work, Carter gave various excuses with respect to needed supplies, all of which,
according to Jeanes , were already available to him at his work station. After leaving
Carter, Jeanes saw Neuberg and told him, "I see no reason why we don't get rid of
Carter, too. I just caught him back there wandering around again . He was talking
to the line this time, assembly line . . . I think I will let him go, too." Neuberg
agreed and the discharge followed.
Carter testified that on his job it was necessary for him to go to different areas
in the plant to get needed supplies, and that on the day of his discharge he was
instructed by Neuberg to pack some marble. "Marble is in one place in the plant;
cardboard boxes you put them in is in the back of the plant," Carter testified.
"We had just moved in . I was working to assemble stuff. I packed about 50 pieces
of marble that day before lunch. Lunch time, I went out to the catering truck to
get me some lunch, and Mr. Neuberg met me at the door with my check, and just
gave it to me and he gave McCurtis his, too ... McCurtis asked him, `What are you
firing him for? What are you firing me for?' He said, `Because you didn't finish
some chairs you were supposed to last night,' and, he said, `Him, he walks around
all day.' " Carter denied that he had been reprimanded or warned about being
away from his job during working hours.
D. Conclusions on the discharges
Out of the welter of half-truths, whole-truths, and no-truths of the testimony in
this proceeding, a few facts emerge with clarity. McCurtis was, and to Respond-
ent's knowledge was, the outstanding employee leader in getting the employees to
sign up with Confederated and, a few weeks later, in getting them to attempt to
repudiate that union as their bargaining representative. Respondent was upset by
this attempted repudiation , opposed it vigorously, and tried to retaliate by with-
drawing the 10-cent wage increase granted under its agreement with Confederated.
Respondent held McCurtis primarily responsible for this volte-face by the employees.
McCurtis' closest associate was Carter; they lived together and were leaders in the
union movement both for and against Confederated. I have no doubt Respondent
had knowledge of their close association. McCurtis and Carter were discharged on
the same day and in the midst of the dissention over Confederated . It is not estab-
lished to my satisfaction that Respondent , at the time of the discharges, knew that
they had led the employees into signing up with a rival union, and I accordingly
discount this element in the General Counsel' s case .5 Neuberg had made the threat
that without a union contract a number of employees would be discharged. I do
not credit McCurtis' testimony that he said, "I might just fire the whole plant, and
you too, baby," or otherwise named McCurtis specifically as one who faced discharge
if Confederated's contract was repudiated. The vernacular was McCurtis', not Neu-
berg's, but that is a matter of little significance aside from credibility. In making
the threat to McCurtis, Neuberg would understand and intend that McCurtis would
apply that threat to himself. About all the foregoing I have little doubt, and the
General Counsel, in his brief, appears to think that this is sufficient to support the
allegations of unlawful discharge. I think that no amount of threats or threatening
gestures would foreclose the Respondent from discharging its employees for cause,
though the asserted cause in such circumstances would necessarily have to undergo
close scrutiny.
That the Italian Provincial chairs on which McCurtis was engaged on the day
prior to his discharge, collapsed on the loading dock because of not having been
screwed together after assembling , is established to my satisfaction. McCurtis
51 can place no reliance on Carter's testimony that he overheard one Maybelle Bugge
say to Neuberg, "That was Ted [McCurtis] over there with them, meeting with that
union," as establishing company knowledge of employee activity in United.
CARLSON FURNITURE INDUSTRIES, INC. 177
assembled these chairs but did not complete the assembly, and I do not credit his
excuse that this was attributable to his failure to obtain use of the electric screw-
driver. He apparently thought that Weeks, who was much more experienced in
this job, would complete the operation, whereas Weeks apparently thought it was
already completed when he made his so-called final inspection. I am convinced by
Weeks' admissions on cross-examination that he never made a final check on all the
Provincial chairs. In sum, cause existed for McCurtis' discharge, but was it the
whole cause, part cause, or just pretext? I think and find that it was not the whole
cause.
Jeanes, as he testified, may have known that McCurtis worked on the Provincial
chairs, but he also knew that other employees were assigned to the job, among them
Weeks, an experienced assembler, and if he knew so much about McCurtis' part in
the operation he must have known that Weeks completed the final operation of
seeing that the screws were fastened down tight. But he did not question Weeks or
any other employee that was engaged on the assembly job, except McCurtis, whom
he chose to hold wholly responsible. Surely if there had been no discriminatory
element in his action, he would have made some inquiry of his most experienced
employee on chair assembly before resorting to the drastic measure of discharge.
His action in discharging Carter, McCurtis' closest associate, at the same time as
McCurtis, further deepens my conviction that the discharge action cannot reason-
ably be completely dissociated from a discriminatory element. Assuming that Car-
ter, contrary to his testimony, had been previously reprimanded by Jeanes for absent-
ing himself from his job while wandering about the plant, it seems a little too pat
that just at this juncture, with McCurtis' discharge decided upon, that Jeanes had
come upon Carter once more absent from his duties in the plant, and then and there
decided to discharge him also. I was not impressed with Jeanes' testimony at this
point. Carter's testimony on his job activities on the day of his discharge convinces
me that he was not found by Jeanes to be wandering idly about the plant In short,
in my opinion, the timing of Carter's discharge is not accounted for by any derelic-
tion in the performance of his duties on the day in question, but is reasonably
accounted for by his close association with McCurtis and concerted activities with
McCurtis and others in seeking a repudiation of existing union representation. Of
course, I am aware that an accumulation of complaints against these two employees
may have been brought to a head by incidents occurring on the day of their dis-
charge, but I am also aware that by ridding itself of McCurtis and his close asso-
ciate, Carter, Respondent might well hope to curb the dissention over Confederated's
representation of its employees and restore harmony and normal production to its
plant. And I am convinced, by what I consider to be a preponderance though not
a great preponderance of the credible testimony, that this latter motivation tipped
the scales and accounted for the timing of the discharges. The activity of the
employees in attempting to unseat their existing bargaining representative, though
it may reasonably have caused the Respondent grave concern because of its effect,
or what the Respondent not unreasonably believed to be its effect on production
and harmonious employee relationships, was, in my opinion, protected union and
concerted activity, and discharges resulting from such protected activity would
inevitably tend to encourage continued fealty to Confederated and discourage any
attempts to shift allegiance to another labor organization. Accordingly, I find that
the Respondent's discharge of McCurtis and Carter violated Section 8(a)(1) and
(3) of the Act.6
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 the Respondent as 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 com-
merce and the free flow of commerce.
6In reaching this conclusion, I do not rely on Turner's testimony that, in the week
preceding the hearing in this matter, Neuberg told him that it was because McCurtis was
"collaborating with another union" that he fired McCurtis This is entirely inconsistent
with Turner's testimony on what Neuberg said to him about the matter on the day of
McCurtis' discharge, and I think it is highly improbable that at a much later date and
immediately preceding this hearing, Neuberg would make such a damaging admission In
this, as in all the other numerous resolutions of credibility required of me herein, the
demeanor of the witnesses, while testifying, has been a dominant factor.
7 9 G-0 2 7-G G-v o f 153-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent unlawfully discharged Theodore McCurtis and
James Carter, I shall recommend that it offer them immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges.
It is further recommended that Respondent make said McCurtis and Carter whole
for any loss of pay suffered by reason of the discrimination against them by payment
to them of a sum of money equal to that amount of wages they would have earned,
but for said discrimination from the date of discharge to the date they are offered
reinstatement , together with interest thereon. Isis Plumbing & Heating Co., 138
NLRB 716. The loss of pay shall be computed in accordance with the formula and
method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289.
The nature and scope of Respondent 's violations of the Act are such as to require
a broad cease -and-desist order commensurate with the potential threat of further
violations.
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. The Respondent is, and has been at all times material , an employer within the
meaning of Section 2(2) of the Act, and is, and has been, engaged in commerce
and a business affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Confederated and United are, and at all times material have been , labor orga-
nizations within the meaning of Section 2 ( 5) of the Act.
3. By discriminating in regard to the hire and tenure of employment and the
terms and conditions of employment of Theodore McCurtis and James Carter,
thereby encouraging membership in Confederated and discouraging membership in
any other labor organization , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By the aforesaid discrimination , by threatening its employees with discharge
and reduced benefits and protection because of their concerted and union actiivties,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby ordered that Respondent, Carlson
Furniture Industries , Inc., its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Encouraging membership in and support of Confederated or any other labor
organization , by discharging , or in any other manner discriminating against any
individual in regard to his hire or tenure of employment or any other term or con-
dition of employment , except as authorized in Section 8(a)(3) of the Act.
(b) Threatening its employees with discharge and reduced benefits and protec-
tion because of their concerted and union activities , and in any other manner inter-
fering with , restraining , or coercing its employees in the exercise of rights under
Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Theodore McCurtis and James Carter immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges , and make them whole for any loss of pay
suffered by them as described in the section of this Decision entitled "The Remedy."
(b) Preserve and , upon request, make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act of 1948 , as amended , after discharged from the Armed Forces.
CARLSON FURNITURE INDUSTRIES, INC. 179
. (d) Post at its offices in Huntington Park , California , copies of the attached notice
marked "Appendix." 7 Copies of this notice, to be furnished by the Regional Direc-
tor for Region 21, shall, after being duly signed by a representative of Respondent,
be posted by Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be taken
by Respondent to insure that such notices are not altered , defaced , or covered by
any other material.
(e) Notify the aforesaid Regional Director , in writing, within 20 days from the
date of this Decision , what steps Respondent has taken to comply therewith .8 Unless
Respondent so notifies the said Regional Director , it is recommended that the Board
issue an Order requiring Respondent to take the aforesaid action.
7If this Recommended Order is 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. If the Board's Order Is enforced by a decree of a United States Court of Appeals,
the notice shall be further amended by the substitution of the words "a Decree of the
United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order".
8 If this Recommended Order is adopted by the Board , this provision shall be modified
to read : "Notify the Regional Director for Region 21, in writing , within 10 days from the
date of this Order, what steps 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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT encourage membership in and support of Local 886 of the
International Union , Confederated Industrial Workers of America , or any other
labor organization of our employees, by discriminating in any manner in regard
to hire , tenure, or any other term or condition of employment , except as author-
ized by Section 8 (a) (3) of the Act.
WE WILL NOT threaten our employees with discharge or reduced benefits and
protection , or in any other manner interfere with , restrain , or coerce our
employees in the exercise of the right to self-organization , to form labor organi-
zations, 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 engaging in any or all such activi-
ties, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment in con-
formity with Section 8(a) (3) of the Act.
WE WILL offer Theodore McCurtis and James Carter immediate and full
reinstatement to their former or substantially equivalent positions without prej-
udice to any seniority or other rights and privileges , and make them whole for
any loss of pay suffered as a result of the discrimination against them.
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of any labor organization of their choice , except as such right
may be affected by an agreement requiring membership in a labor organization as a
condition of employment in conformity with Section 8(a) (3) of the Act.
CARLSON FURNITURE INDUSTRIES, INC.,
Employer.
Dated------------------- By------------------------------------------_(Representative ) ( Title)
NOTE.-We will notify the above-named employees , if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date of posting, and must
not be altered, defaced , or covered by any other material.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any
questions concerning this notice or compliance with its provisions.
Plastilite Corporation and Mable Kuklinski , Nancy S. Manzer,
Isola ,A. Morris, Dorothy R. Vosburg , Gerald W. Morris, Clara
Schlotfeld , Janet Manzer, Myrtle Marshall, Frances Richard-
son, and Dorothy Smith , Individuals
Plastilite Corporation and Sheet Metal Workers ' Local Union
No. 3, affiliated with Sheet Metal Workers ' International Asso-
ciation , AFL-CIO. Cases Nos. 17-CA-2367 and 17-CA-2425.
June 21, 1965
DECISION AND ORDER
On September 25, 1964, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Decision and a
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following amplification :
Respondent's principal argument against the Trial Examiner's
8 (a) (1) and (3) findings is that the complainants' strike of Decem-
ber 12, 1963, was unprotected. However, the evidence shows that the
strike was due to the discharge of Max Lucore on the morning of
December 12, and that he was discharged because of a dispute regard-
ing his hours of employment. Although Lucore was a minor super-
visor, the discharge was not related to the manner in which he per-
formed his supervisory functions."
'The dispute which precipitated Lucore' s discharge arose because Lucore objected to
being on 24 -hour call in case the machines for which he was responsible had to be reset.
153 NLRB No. 7.