Gillcraft Furniture Co.

National Labor Relations Board - Board Decisions

Feb 27, 1953

103 N.L.R.B. 81 (N.L.R.B. 1953)

GILLCRAFT FURNITURE COMPANY 81
WE WILL NOT in any like or similar manner restrain or coerce employees
of AIR REDUCTION COMPANY, INC. AIR REDUCTION SALES COMPANY DIVISION,
or of any other employer , in the exercise of the right to self -organization ; to
form , join or assist labor organizations ; to bargain collectively through rep-
resentatives of their own choosing ; to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection ; and to
refrain from any or all of such activities ; except to the extent that such right
may be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment , as authorized in Section 8 (a) (3) of
the National Labor Relations Act.
WE WILL jointly and severally with AIR REDUCTION COMPANY, INC. AIR
REDUCTION SALES COMPANY DIVISION make JOHN M . O'NEnx whole for any
loss of pay he suffered as a result of discrimination against him.
LOCAL 375, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL
(Labor Organization)
By ------------------------------------------------
Dated --------------------
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced , or covered by any other material.
WILMA M. MORAN , R. L. MASON AND STEWART MASON , A PARTNERSHIP,
D/B/A GILLCRAFT FURNITURE COMPANY and FURNITURE WORKERS,
UPHOLSTERERS AND WOODWORKERS UNION , LOCAL 576, INDEPENDENT.
Cases Nos . d1-CA-1381 and '?I-CA-142,5. February 27, 1953
Decision and Order
On October 3, 1952, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that,
except for certain activities of Cecil Chacon, the Respondent had not
engaged in the unfair labor practices alleged in the complaint. With
respect to certain of Chacon's activity, the Trial Examiner found
that the Respondent had engaged in and was engaging in unfair labor
practices and recommended that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter the General Counsel and the
Union filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Houston, Murdock, and Styles].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
103 NLRB No. 5.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs of the Union and the General Counsel, and the
entire record in the case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations except as follows.
Like the Trial Examiner, the Board finds that Foreman Chacon on
one occasion stated that R. L. Mason, a member of the respondent
partnership, had threatened to close or move the plant if the Union
won the election. Although these remarks were untrue, the Board
agrees with the Trial Examiner that they constituted interference,
Iestraint, and coercion within the meaning of Section 8 (a) (1) of
the Act. The Board finds, however, that because of the isolated char-
acter of the remarks and the absence of any other acts of interference
with the employees' rights, it would not effectuate the policies of
the Act, under these circumstances, to issue an order based on this
incident. Accordingly, the Board will dismiss the entire complaint.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondents, Wilma M. Moran, R. L. Mason and Stewart Mason,
a partnership, d/b/a Gillcraft Furniture Company, Los Angeles,
California, be, and it hereby is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the Furniture Workers, Up-
holsterers and Woodworkers Union, Local 576, Independent, a labor organization
designated in this report as the Union, the General Counsel of the National Labor
Relations Board, in the name of the Board, caused the Regional Director of its
Twenty-first Region, at Los Angeles, California, to issue a consolidated complaint
on July 17, 1952, against Wilma M. Moran, R. L. Mason and Stewart Mason, a
partnership doing business as Gillcraft Furniture Company, designated herein as
the Respondent. The consolidated complaint alleged that the Respondent en-
gaged and has continued to engage in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, as amended and reenacted by
the Labor-Management Relations Act of 1947, 61 Stat. 136, designated herein as
the Act. Copies of the amended charges, the Regional Director's order that the
cases be consolidated, the consolidated complaint, and a notice of hearing were
duly served upon the respondent employer.
With respect to the unfair labor practices, the consolidated complaint, as
amended at the hearing, alleged in substance that: (1) The Respondent, on or
about February 1, 1952, refused and continues to refuse to bargain collectively
with the Union as the exclusive representative of its employees in a unit appro-
priate for the purposes of collective bargaining; (2) the Respondent discharged
Armando Rosas and Cecil Chacon on or about May 23, 1952, and now refuses to
GILLCRAFT FURNITURE COMPANY 83
reemploy them because they engaged in "concerted activities with other employees
for the purposes of collective bargaining and other mutual aid and protection"
as defined in the statute; (3) the Respondent, on or about January 30, 1952, and
thereafter, interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed by the Act, by various acts and statements; and (4) the
Respondent's course of conduct, as described, involved unfair labor practices
affecting commerce within the meaning of the Act, as amended.
The Respondent's answer, duly filed, admitted the jurisdictional allegations of
the complaint, but denied the status of the Union as a labor organization under
Section 2 (5) of the statute, and further denied the commission of any unfair
labor practices. With respect to its alleged refusal to bargain, the Respondent
conceded the propriety of the unit alleged to be appropriate for the purposes of
collective bargaining but denied that the Union had ever requested that negotia-
tions begin at the time alleged in the complaint, and denied any refusal, on its
part, to honor a proper request. With respect to the discharges characterized
as discriminatory, the Respondent asserted that Rosas had been laid off for lack
of work and was subject to recall ; its answer also denied that Chacon had been
an employee, asserting that he had been dismissed as a foreman, not subject to
the Act, as amended. With respect to the alleged interference, restraint, and
coercion, the Respondent requested a bill of particulars.
On August 12, 1952, Trial Examiner Irving Rogosin granted the Respondent's
motion, as noted ; a bill of particulars was supplied on the 15th of August, there-
fore, pursuant to the order.
Pursuant to notice, a hearing was held at Los Angeles, California, between
August 25 and 28, both dates inclusive. The General Counsel was represented
by an attorney, the Union by its business agent, and the Respondent by a labor
relations consultant ; all of the parties were afforded full opportunity to partici-
pate, to be heard, and to introduce evidence pertinent to the issues. At the outset,
the General Counsel's representative moved to amend the complaint in certain
technical particulars, including an amendment of the case caption ; the motion
was granted. The Respondent's representative moved for full compliance with
its previous request for a bill of particulars, and also moved that the complaint
be dismissed because the Union was not fully qualified to invoke the Board's
process. Both motions were denied. At the close of the General Counsel's case,
a motion on the part of the Respondent that the complaint be dismissed in its
entirety, for failure of proof, was granted in part and partially denied. A decision
with respect to a similar motion, presented at the close of the hearing, has been
reserved. It is disposed of in this report. The parties reserved the right to
present some additional evidentiary matter by stipulation and motion, but no
such matter has been submitted to date Each of the parties reserved the right
to file a brief or memorandum of points and authorities. In accordance with the
reservation, a memorandum has been received from the General Counsel ; no brief
was filed by Respondent's representative.
FINDINGS OF FACT
Upon the entire record in the case, and upon my observation of the witnesses, I
make the following findings of fact :
1. THE RESPONDENT COMPANY
Wilma M. Moran, R. L. Mason and Stewart Mason, a partnership doing busi-
ness as Gillcraft Furniture Company, is engaged in the manufacture and sale of
furniture at its plant in Los Angeles, California. During the 12 months which
ended on July 1, 1952, the enterprise shipped finished furniture, valued in excess
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of $25,000, to destinations outside the State. The Respondent concedes, and I
find, that it has, at all material times, been engaged in commerce within the
meaning of the statute. In accordance with established Board policy, it is further
found that the assertion of the Board's jurisdiction in this case is warranted to
effectuate the statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
Furniture Workers, Upholsterers and Woodworkers Union , Local 576, Inde-
pendent, hereinafter designated as the Union , is, I find , a labor organization
within the meaning of Section 2 (5) of the Act, which admits employees of the
Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The representation case
Organizational activity on behalf of the Union at the Respondent's plant began
in January 1952. A number of cards designating the Union as the representative
of the Respondent's employees were signed at the outset of the Union' s campaign ;
others were executed early in February.
On January 31, 1952, coincidentally with the distribution of an organizational
leaflet, the Union filed at the Board's Regional Office a petition for certification
as the exclusive representative of the Respondent's employees within a unit
which it alleged to be appropriate for the purposes of a collective bargain. In
connection with the petition-docketed as Case No. 21-RC-2379-the Union
claimed to represent "more than 51 percent" of the employees within the alleged
appropriate unit.
Thereafter, on the 14th of February the parties met, at the suggestion of a
Board agent, to confer informally with respect to the issues raised by the petition.
Insofar as the record discloses, this conference marked the first occasion upon
which representatives of the Union and the Respondent ever dealt with each
other directly. The record shows, and I find, that the Respondent's represen-
tatives rejected the Board agent's suggestion that it agree to the Board's "con-
sent" procedures, and insisted upon the designation of the Union in a formal
Board-ordered election.
A formal hearing in the representation case was convened, therefore, on
February 27, 1952; while the hearing was in progress, I find, it was stipulated
for the representation case record that the Respondent had refused to accord
recognition to the Union in the absence of a certification.
In due course, and pursuant to established procedures, an election was or-
dered ; the Regional Director scheduled it for the 4th of April. One day before
the scheduled election, however, on April 3, 1952, Gus Brown, the Union's busi-
ness agent, advised the Respondent by letter that its "interference" with the right
of the employees to engage in the "free selection" of a union to represent them
had impelled the Union to request recognition and immediate negotiations. The
Respondent was advised that the Union had previously been designated by a
majority of its employees in an allegedly appropriate unit, as their representa-
tive for the purposes of collective bargaining, and the firm was formally re-
quested, therefore, to recognize and bargain with the Union on the basis of its
alleged status as the designated representative of the employee majority.
At or about the time the letter was dispatched, the Union filed the first of the
unfair labor practice charges involved in the instant case. As a result of the
discussion which followed-in the course of which the Union and a Board agent
GILLCRAFT FURNITURE COMPANY 85
sought , unsuccessfully , to persuade the Respondent to cooperate in an election,
with the ballots to be impounded pending the outcome of any unfair labor
charges-the election was deferred . No formal reply to the Union 's demand for
recognition without an election has ever been received by that organization from
the respondent employer.
B. The Respondent's oamapaign
No complete recital of the events which impelled the Union to file its unfair
labor practice charge has been offered for the present record. Certain events,
however, which occurred between the date as of which the original representa-
tion petition was filed and the date of the scheduled election are alleged to have
involved unfair labor practices attributable to the Respondent. These events
are discussed below :
1. On February 1, 1952, a Friday-and, coincidentally, 1 day after the Union's
representation petition was filed-six of the Respondent's employees (Axel
Berglund, Louie Buster, Sid Robinson, Hazel Paiz, Leonard Louie, and Raymond
Beard) were notified that they would receive wage increases, in varying amounts,
effective as of February 4, the first work day in the following pay period. On
February 8, 56 of the approximately 80 employees then on the Respondent's
payroll were notified that they would receive raises effective as of February 11
and payable on the 15th-the following payday. Four of the six employees whose
wages had previously been increased as of February 4 received additional raises
effective as of the 11th of the month. (When questioned as to why these em-
ployees had received their raises in two installments, R. I. Mason, a member of
the Respondent partnership, testified, in effect, with respect to three of the em-
ployees, that the increases given on February 4 were deserved increases which
had been deferred previously for economic reasons, and that the second "in-
stallment" was bottomed upon their participation in the plantwide increase on
the basis of demonstrated merit. With respect to the fourth employee, Axel
Berglund, he testified flatly that an additional amount was awarded on the 11th
because the Respondent had determined that the increase given on February 4
had been inadequate.)
The testimony of R. L. Mason indicates, and I find, that the Respondent's de-
cision to grant the increases cited had been reached on January 28, 1952, under
circumstances to be detailed elsewhere in this report; that the increases given
effective as of February 4, 1952, had been announced immediately thereafter
as "emergency raises" to allay dissatisfaction among certain key employees over
the Respondent's delay in allowing previously promised increases ; and that
the other raises were specifically authorized on the 6th of February, after the
return of Mr. Mason from a business trip.
2. On March 17, 1952, Cecil Chacon, a leading union adherent and the in-
itiator of the Union's organizational activity-as noted elsewhere in this re-
port-was designated to act as the foreman of the Respondent's assembly de-
partment. Thereafter, on at least one occasion in March, prior to the
Board-ordered representation election, Chacon is alleged to have informed
employees Armando Rosas, Josepha Garcia, and Leandro Pino, in substance, that
R. L. Mason had threatened to close the plant or move it to another location if
the Union were victorious in the election. Rosas, Garcia, and Pino testified in
substantial accord with respect to the statements made by Chacon, and the
latter, when called as a witness by the General Counsel, admitted that he had
in fact attributed such a statement to the Respondent's partner. None of the
witnesses could date the conversation; the best available evidence indicates,
257965-54-vol. 103-7
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, that it occurred sometime the latter part' of March, subsequent to
Chacon's appointment as a foreman . In the light of the entire record, which
contains no evidence to warrant a contrary conclusion, I find that the statements
under discussion were made. R. L. Mason's version of the circumstances which
preceded and may have impelled it, will be detailed elsewhere in this report.
3. Early in March of 1952, on a date which the witnesses were unable to
specify, Tom Takata, the Respondent's bookkeeper, while on his way through
the finishing department, en route to another section of the plant, is reported
to have made an observation with respect to the Respondent's reaction to the
Union's organizational tactics which the General Counsel, in this case, alleges
as an unfair labor practice.
The available evidence with respect to the bookkeeper's statement is sharply
at variance. According to Leandro Pino, a spray painter in the finishing depart-
ment, Takata said that all of the employees would be "out of a job" if the
Union won the election. Armando Rosas, also employed as a spray man, re-
called Takata's statement as an observation that the Masons would close or
move the plant if the Union were designated as the representative of the em-
ployees. Takata himself, when called as a witness for the Respondent, gave the
following version of the incident : The Union, in the course of its organizing
campaign, had distributed to the employees a leaflet which contained the state-
ment, among others, that the Union would press for wage increases of 40 per-
cent for all the employees if it achieved designation as their exclusive repre-
sentative. This leaflet came to the bookkeeper's attention. According to Takata's
testimony, his familiarity with the Respondent' s financial situation, arising out
of his status as its bookkeeper, impelled him to the conclusion that a wage in-
crease of 40 percent across-the-board would raise the Respondent's costs to
such an extent as to force it out of business. Takata admitted that he had
made a statement of this general tenor to Rosas and Pino. He testified, em-
phatically, however, that his statement had been conditional-i. e., that he had
said that the Respondent would be forced to close if required to raise wages
by 40 percent over existing levels-and that he had made no statements with
respect to such an eventuality in the event of a union victory at the polls.
Upon the entire record, I credit Takata' s version of the incident, as summarized
here.
4. The General Counsel, in his bill of particulars, asserts that the Respondent
should be considered liable for certain additional acts and statements , prior to
the scheduled Board-ordered election, which were alleged to constitute illegal
interference with, restraint, and coercion of its employees within the meaning
of the statute.
Among the statements and conduct thus characterized were: (a) Alleged
threats that the plant would be closed if the Union were successful, attributed
(1) to R. L. Mason in a conversation with Cecil Chacon after his appointment
as a foreman , (2) to a plant employee by the name of Ishizawa, and (3) to a
Mr. Woodard, the owner of the "parking lot" adjacent to the building in
which the Respondent's plant is located; (b) alleged surveillance of union
activity on the part of R. L. Mason and Foreman Chacon ; and (c) an
alleged statement by R. L. Mason to Chacon after the appointment of the
latter as a foreman that he would never sign a contract with the Union. Upon
the Respondent's motion to dismiss at the close of the General Counsel' s case,
previously noted, I found the evidence with respect to these allegations insuffi-
cient, in some cases , to establish that the statements were made or the conduct
undertaken ; in other cases I found the evidence insufficient to warrant attribu-
GILLCRAFT FURNITURE COMPANY 87
tion of the statements to the Respondent as unfair labor practices . With re-
spect to the matters specified , therefore , the complaint , as supplemented by the
General Counsel 's bill of particulars, was dismissed.
The record does show that the Respondent , during the preelection period,
circularized its employees with leaflets which disparaged the Union as Com-
munist-dominated , and its business agent, Gus Brown , as a Communist Party
member or sympathizer. These activities of the Respondent have not been
challenged as unfair labor practices , and I find nothing in the leaflets which
would support a conclusion that their distribution involved illegal interference,
restraint , or coercion.
C. The Respondent 's conduct after the election
On a date not set forth clearly in the record , but described as approximately
11/2 months prior to the layoff of Armando Rosas, which occurred on May 23,
1952, R. L. Mason called Rosas and employee Garcia to the Respondent 's office.
The testimony of Rosas on direct examination with respect to the conversation
that ensued reads as follows :
Well, Bob Mason opened the conversation , told us that our work was not
satisfactory . But then , after that he said that was beside the point; he
really wanted to talk to us about too much union activity going on .. .
Well, he showed us some leaflets there that he had received from Senator
Knowland and Congressman Yorty and Jackson , that they were going after
Gus Brown for his Communist activities . . . Oh, he also stated that his
company always gave vacations , and after one year of employment there
was one week , and two weeks after five years of employment , and he also
told us that he could fire me, but he would not do it, he said . And he also
said that Josepha Garcia , he could fire her, but he would not do it , because
he needed us bad . He also stated that he had been well, running that
business for a long time and that he didn 't need any union or Gus Brown
to help him run his business . . . Oh, yes. He stated that the company was
losing money, that's why he could not afford to pay us overtime.
In cross-examination , I find , the tenor of this testimony was significantly modi-
fied. Rosas admitted that Mason said that he had called them in to speak
about the fact that there was "too much talk " about the Union during working
hours. The employee conceded that Mason had expressed the opinion that
the extended talk interfered with their work , that he had said only that he
would have to fire them if they stood around "talking," and that he had not
said that he would discharge them for union activity . In describing the docu-
ments which Mason had shown during their discussion , Rosas admitted that
they had also been shown a financial statement in support of the Respondent's
assertion that it was losing money . Rosas testified additionally , I find, that
Mason had told him to "stay away " from Gus Brown and other union sympa-
thizers; and he refused to concede that Mason's remarks had been couched in
the form of a warning not to talk with "outsiders" during working hours,
but admitted that Mason had said he did not care if Rosas belonged to a union.
The record reveals a final admission by Rosas that Mason had cautioned him
against any union activity during working hours, and that the employer had
characterized him as a "good man" who ought to stay at work.
As modified in cross-examination , the testimony of Rosas, with respect to
the general tenor of Mason 's remarks , is substantially in accord with the
testimony of the latter . Upon the entire record , therefore , I find that Mason's
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarks on this occasion were calculated only to "tick off" Rosas and Garcia
for excessive talk about a subject of general interest-the Union's organizational
campaign-during working hours, that he did not threaten to discharge them
because of their interest in self-organization, and that his remarks about the
nature of the Union, and the Respondent's financial situation, involved nothing
more than the presentation of argumentative material.
D. The discharges
1. Armando Rosas
Rosas had been employed by the Respondent for approximately 5 years.
For the last 41 years of his service he had been employed as a "sprayman"
in the Respondent's finishing department.
At the time with which this report is concerned, there were four persons in
the Respondent's employ qualified to spray stain , sealer, or lacquer, as required-
Henry Schaefer, William Badura (the department foreman), Rosas, and Leandro
Pino. Schaefer and Badura were the senior employees assigned to this work
on a full- or part-time basis. Rosas stood next in the line of seniority, and Pino
last.
Rosas had been one of the first to sign a union designation card. He had also
prepared and received signed cards from employees Jose Torres and Leandro
Pino, and the record warrants an inference, I find, that he had taken an active
part in the general talk, among the employees, with respect to the merits of
union organization. The remarks of Mason to Rosas and Garcia at their
April conference, previously noted, fully warrant an inference that the Re-
spondent knew, at all material times, of the interest shown by Rosas in self-
organization. I so find.
On May 23, 1952, Rosas received three checks, in conformity with the regular
procedure of the Respondent in cases of layoff or termination. The testimony
of Rosas shows, and I find, that Foreman Badura, in presenting the checks,
said, "Well, Armando, you got it this time" ; that Rosas questioned him as to the
reason for the layoff ; and that he was told there was no work available. Rosas
testified that he went to the Respondent's office, thereafter, to get a corrected
check-one of his checks having been issued in an incorrect amount-but that
he had not protested the layoff.
Approximately 3 weeks later, Rosas visited the plant. His testimony, which
has not been denied, establishes that he observed Pino spraying lacquer (his
old job) in the booth which he had formerly occupied, and that Henry Kubicki,
an employee who had done spray work and worked part time as a sander, was
doing "spray work" in the booth which Pino had previously used.
On August 21, 1952, Rosas received a reemployment offer from the Respondent,
through the mail and by wire. He admitted on the witness stand that he had not
replied; he is now employed elsewhere and does not wish to return.
2. Cecil Chacon
Cecil Chacon became an employee of the Respondent in September of 1950 as a
drawer fitter and repairman. The evidence warrants an inference, and I find,
that his work involved a greater degree of skill in cabinetmaking than would
be required of an ordinary assembly worker. Prior to his employment with the
Respondent, Chacon had had 32% years of experience as a cabinetmaker ; at
various times within the last 20 years of that experience he had served as a
leadman, assistant foreman, and foreman.
GILLCRAFT FURNITURE COMPANY 89
The testimony of Chacon, which has not been denied, establishes that he became
interested in self-organization in December of 1950, and that he then "investi-
gated" a number of unions active in the furniture field, in order to find one worthy
of support. At some undetermined date, he apparently decided to become an
adherent of the union involved in this case. The evidence establishes that it was
he who requested Gus Brown, the Union's business agent, to supply the designa-
tion cards and the leaflets needed to support an organizational campaign.
Insofar as the record shows, Chacon was the principal proponent of unioniza-
tion at the Respondent's plant. He distributed a number of the organization's
designation cards during the month of January 1952 and collected them after they
had been signed. The cards were, apparently, retained by Chacon until a sizable
"bunch" had been accumulated ; they were then turned over, personally, to Brown.
A second "bunch" was submitted, in similar fashion, to the Union's business agent
within the week. Both "bunches"-each of which involved an indeterminate
number of cards-were picked up by Brown before the 31st of January, on which
date the Union's representation petition, previously noted, was filed. Severall
additional cards-four in number-were mailed to Brown on the 14th and 15th
of February.
On February 29, 1952, Louis Wright, the Respondent's assembly department
foreman, resigned ; Mark Finken, the Respondent's superintendent, designated
Tarao Nakamura, the department's most effective production worker, to serve
as acting foreman. Nakamura held the position for slightly more than 2 weeks, at
which time he was demoted to his previous post as a production worker for
reasons not material to this case. Pursuant to the recommendation of Assistant
Superintendent Al Koesters, the Respondent then selected Chacon for the post.
His appointment became effective on March 17, 1952.
Subsequent to his designation as a foreman, Charon had several talks with
R. L. Mason which dealt with the subject of the Union's organizational activity.
The first of these occurred on a Friday, March 21, 1952, 1 week after Chacon's
designation as a foreman. Charon and R. L. Mason were the only participants.
The testimony of the foreman is sharply at variance with that of Mason as to the
nature of the conversation. According to Chacon, he was called to Mason's office
approximately 5 minutes before the end of the working day. After some pre-
liminary conversation about the job, Mason advised the foreman, according to
his testimony, that he was now a "company man," that he would not be eligible
to vote, and that he could be fired at any time because of his foremanship. And
the Respondent's partner, it is alleged, informed Chacon that he had known how
he would "vote" as an employee, but that he was no longer sure of his sympathies
after his elevation to foremanship. (Chacon denied that Mason had said merely
that he would be subject to discharge if he engaged in union activity while a
foreman.)
Mason , according to Chacon, then showed him a number of "papers" and
"books" about Gus Brown and the Union, which described it as a Communist-
dominated organization. (Chacon insisted that he did not read the material,
and that its contents were thus summarized by Mason.) According to Chacon's
testimony Mason said that he wanted his foreman to be on the side of the com-
pany and to "work" for the company against the Union. The foreman replied,
according to his testimony, that he would think it over and might "play ball"
with the respondent employer. At the end of their talk, Chacon asserts, Mason
said that he felt much better because of the indication that the foreman would
be on the "side" of the company.
Mason's version of this conversation differs in a number of significant respects.
According to Mason, who admitted that he had asked Chacon to meet him in
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's mill office, the conversation began with a reference to his
recent promotion. In the light of several reports previously received from
Plant Superintendent Finken, Mason assertedly felt it necessary to inform
Chacon that he expected him to do his best to keep the employees at work, and
to help the Respondent maintain and increase production.
Mason's testimony would indicate that he had warned Chacon not to engage
in union activity, in view of his new status as a foreman. Chacon was informed
that he could lawfully be discharged for engaging in union activity ; the Re-
spondent's partner advised him, however, that he had no wish to take such
action. According to Mason, Chacon reported that his only observations with
respect to the Union since his elevation to the foremanship had been remarks
directed against the Union ; Mason replied, allegedly, that union activity by a
foreman would not be required by the Respondent, and that no statements on the
subject, pro or con, were desired.
Mason testified that he had spoken of the company's need to produce efficiently
and to make a profit ; that he had exhibited a profit and loss statement to the
foreman which showed how the firm was losing money ; that he admonished
Chacon to halt any talk among the employees which might delay production ;
that Chacon had said he would keep his department at work ; and that Mason
hail then observed, for the first and only time, that he was glad Chacon was on
his "side" in the matter.
Mason admitted that he had shown the foreman certain marked newspapers
and pamphlets bearing upon the alleged domination of the Union by Communists
and that he had discussed some discrepancies and errors in the Union' s organi-
zational leaflets. Chacon, according to Mason, had made no particular comment.
Mason, as a witness, justified his conduct on the ground that the entire incident
bad been arranged to inform Chacon with respect to the Respondent's problems,
to persuade him to stay in his department and to maintain or increase production,
and to insure his "loyalty" as a supervisory employee. According to Mason,
Chacon had at first been reticent and had said, initially, merely that he would
"play ball" with the firm but had later given an impression that he would try
to do his work well.
Upon the entire record and my observation of the witnesses, I credit the account
of this conversation given by R. L. Mason. It was clearly and convincingly
given and upon reflection, I believe it to be the most logical, coherent, and in-
ternally sound version of what actually occurred.
On the morning of the following day, a Saturday, Chacon visited R. L. Mason
and Stewart Mason at the Respondent's office. According to his testimony, he
asked R. L. Mason what the Respondent had to offer the employees. He was
advised that the Respondent would be unable to offer raises, and raised a ques-
tion as to the possibility of paid holidays. Stewart Mason, Chacon testified,
suggested-despite a negative comment by R. L. Mason-that the Respondent
might be willing to establish the Fourth of July as a third paid holiday. It was
at this point, according to Chacon, that R. L. Mason said, allegedly, that if the
Union ever "got in" he would close the plant and move it elsewhere, taking only
the "loyal" employees.
Stewart Mason , according to Chacon, added that the Respondent expected to
build a new plant when its lease expired a "couple of years" later. (The fore-
man, as a witness, insisted that R. L. Mason's threat to move the plant had had
no relation to Stewart Mason's comments about the Respondent's desire to build
a new plant elsewhere.)
Chacon also testified that Mason had said he knew those employees who were
most active in behalf of the Union, and that he had referred to the employees in
GILLCRAFT FURNITURE COMPANY 91
the finishing department and two in the Respondent's upholstery department ;
in the course of the conversation, however, according to Chacon's testimony,
Mason had said that he would not discriminate against any employee.
Mason 's version of this conversation again reveals significant differences in
emphasis. According to Mason, Chacon had opened the conversation with the
statement that he had "thought over" their conversation of the previous day,
and that since he had been a leader of the union adherents before his appointment
as a foreman, he would be at a loss to explain to them why he was no longer
interested in the Union's campaign. Mason testified that Chacon then asked
if the Respondent contemplated any employee benefits of which he might inform
them-presumably as a "justification" of his alteration in attitude. Mason,
according to his testimony, replied that the Respondent would be unable to give
any raises until the pending representation issue was settled. The Respondent's
partner reaffirmed the testimony of his foreman that the latter then suggested
paid holidays, and that he had been told the Respondent would be willing to
establish one paid holiday. Mason insisted, however, that Charon was clearly
told the Respondent would be unable to announce any such employee benefit dur-
ing the pendency of the representation case. According to the Respondent's
partner, Chacon then agreed to drop the matter.
The testimony of R. L. Mason indicates that Stewart Mason had discussed the
holiday issue. His testimony also indicates that Stewart Mason had recapitulated
the substance of R. L. Mason's remarks on the previous day, and that he had
emphasized the fact that the Respondent partnership wished to get the enterprise
on a paying basis so that they would be able to build a new plant when their
lease expired after 2 years. The physical disadvantages of the Respondent's
present location were, according to R. L. Mason, explained in detail.
Mason categorically denied that he had ever told Chacon, or anyone else, that
he would close the plant if the Union won the election ; he also denied, em-
phatically, that he had ever said he would move the plant and retain only "loyal"
employees.
In the light of the entire record, I again credit Mason. His account of the
conversation was much more coherent, logical, and integrated. The difference
between his testimony and that of Chacon seems to be due, however, not to any
mendacity on the part of the foreman, but to an inadequate or understandable
biased recollection. Mason's account, in my opinion, more closely approximates
the facts.
On the Monday after this conversation, Chacon, in a further conversation
with Josepha Garcia, reported that Mason had described the Respondents'
Mexican workers as the Union's principal adherents. (Chacon, as a witness,
admitted that his remarks to Garcia had not involved an accurate quotation
of Mason , but had embodied merely his own inference as to the significance of
Mason 's remark that the finishing department employees and two employees
in the upholstery department were the principal union supporters . Most of
the workers in the finishing department, and two of the upholstery department
employees were Mexican.) A fellow worker, Gustavo Garza, who overheard
the remark, upbraided Chacon as a "traitor" because of it. (Garza's intent,
when he used this epithet, is not made clear in the record. He could have been
implying in the alternative, that Chacon was a "traitor" (a) because his remark
could be construed as involving a misrepresentation with respect to the attitude
of the Mexican employees toward the Union, or (b) because it could be con-
strued as involving a misrepresentation of Mason's attitude toward the Mexican
employees.) An altercation resulted, and Garza went to Assistant Superintend-
ent Koesters almost immediately thereafter with a complaint that Chacon was
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
planning to discharge him. After seeing Koesters, Garza also made a full
report of the incident to R. L. Mason when the latter arrived at the plant.
Although this incident, considered in isolation , might appear to be irrelevant
to the issues raised in the complaint, it has been detailed, substantially in accord-
ance with Chacon's testimony, primarily because of its significance as "back-
ground" in connection with the next conversation between Chacon and Mason,
and also because of the significance with which it may be invested in connection
with the resolution of credibility issues.
Shortly after Garza had presented his complaint, Chacon hailed R. L. Mason,
then passing through the plant, and requested an opportunity to give his version
of the incident. Mason agreed to meet the foreman in the Respondent's mill
office. (Each of the men proceeded by different routes. According to Chacon,
this procedure was suggested by Mason, presumably to prevent the employees
from becoming aware that he and the foreman were conferring. According to
Mason different routes were used at the suggestion of Chacon. This conflict in
the testimony is, in my opinion, immaterial ; no attempt has been made to
resolve it.)
In the office Chacon, according to his testimony, told Mason that he had only
repeated to the employees what Mason had said with respect to the centers of
union strength, and admitted that he had added the observation that the em-
ployees to whom Mason had referred were Mexicans. (In cross-examination,
the foreman insisted that he hadn't really meant to imply that Mason had
attributed the union activity to his Mexican employees ; he insisted also that
he had said the same thing to his employer.) Mason, according to Chacon,
replied with the observation that he had not mentioned any "race" when making
the statements at issue. (And Chacon, as a witness, admitted that this was
true.) According to the foreman, the conversation then turned into a general
discussion of the Union, its prospects, and Mason's attitude with respect to it.
Chacon's testimony indicates that Mason referred to a recent union leaflet which
he characterized as "untrue" and that a considerable amount of time was spent
in discussing it. The foreman also attributed to Mason the statement that he
did not want "any part of" Gus Brown or the Union and that he would fight
the organization until he was held in contempt of court, and would then liquidate
his business. In discussing the election, according to Chacon, Mason said that
he wanted the Union to receive only five votes. Chacon, according to his
version of the incident, replied with a question, "Why not twenty?" to which
Mason replied that five was all that he wanted the Union to receive.
Again, R. L. Mason's version of the conversation differs sharply from that of
the foreman. According to Mason, Chacon's explanation was that he had been
talking "against" the Union and that Garza had called him a "traitor" for that
reason. Mason testified that he had warned Chacon forthwith that a foreman
was not supposed to engage in union organizational activity. He admitted that
he had called two union leaflets to Chacon's attention and that he had discussed
certain errors and "discrepancies" in them ; but he denied all of Chacon' s testi-
mony which suggested that he had said that he would "fight" the Union. His
remarks with respect to the outcome of the election, as repeated by Chacon,
were explained as a mere expression of hope, grounded in the opinion that a
poor showing by the Union would dispel the issue of unionization and enable
the Respondent's employees to give their undivided attention to production.
Much of Chacon's testimony with respect to his talks with Mason appears to
be based upon the "impressions" he received, and what he thought Mason
"meant" by his remarks. As in the case of previous conflicts between the testi-
mony of Chacon and Mason, I have accepted the version of this conversation
offered by the latter, for reasons already cited.
GILLCRAFT FURNITURE COMPANY 93
Five minutes before the end of the day on June 13, 1952, Superintendent
Finken came to Chacon and reported that he had "bad news" for him and Don
Cress (Chacon's foster son and a rank-and-file employee). He offered Chacon
his termination checks, with a statement that the Respondent had to cut down
the number of its employees and would probably have to reduce its staff by
50 percent. Chacon was not offered reemployment as a drawer fitter or repairman.
He has not been employed by the Respondent partnership since his dismissal.
Conclusions
1. Interference, restraint, and coercion
The consolidated complaint in this case, as originally issued, contained the
allegation that the Respondent, by its officers, agents, and employees, had inter-
fered with, restrained, and coerced its employees in the exercise of rights guaran-
teed to them under the statute by various unspecified acts and statements. This
generalized allegation was supplemented and rendered more specific, as previ-
ously noted, before the General Counsel opened his case, in a bill of particulars.
And, at the close of the General Counsel's presentation, in response to a motion
to dismiss, I made a determination that no prime facie case had been made out
against the Respondent in support of the specific allegations that interference,
restraint, and coercion, attributable to the Respondent, derived from any state-
ments of employee Ishizawa, the statements attributable to the Respondent's
landlord, or the surveillance allegedly conducted by R. L. Mason or Chacon,
during his tenure as a supervisor. I have reconsidered these determinations in
the light of the entire record, and I am still of the opinion that the record is
insufficient, in fact and law, to warrant a conclusion that the statements or
conduct cited involved any unfair labor practice.
With respect to the wage increases of the 4th and 11th of February, the
General Counsel contends, apparently, that their announcement, after the
representation petition was filed, involved an attempt to undermine the Union
and to convince the employees that its intercession as their exclusive representa-
tive would be unnecessary. I find no merit in this contention. The Respondent
has produced considerable evidence, and the record as a whole shows, that
"general" wage increases at the plant, within the past 3 years at least, have
always followed the semiannual furniture "markets" in Los Angeles and San
Francisco; and that they have been granted at such times, on the basis of merit,
to a substantial number of the Respondent's employees-usually more than a
majority-if the orders taken at the show involved a substantial rise in sales
volume. (In the July-October period of 1949, for example, 20 out of 34 em-
ployees received increases ; 37 out of 39 workers received them during a com-
parable 1950 period.) A preponderance of the evidence in the record estab-
lishes, and I find, that the orders received by the Respondent after the 1951
summer markets did not meet its expectations, and that the number of wage
increases given in the late summer and early fall of 1951 affected fewer em-
ployees than those given during a comparable period in earlier years. (Small
raises were given to only 25 workers out of 54 eligible, I find.) The Respondent
also adduced evidence to show, and I find, that its sales volume immediately
before and on the first day of the January "market" in Los Angeles, which began
on the 28th of the month, was comparatively high. R. L. Mason testified-
credibly, in my opinion-that the Respondent partnership determined to grant
certain increases, previously promised but deferred, and to institute a program
of plantwide increases on the basis of merit, on the first day of the January
market, 3 days before the Union's petition was filed. (According to Mason, a
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
program of increases was needed to enable the Respondent to match recent
increases in the A. F. of L. union scale, and to enable it to retain its employees.)
The Respondent's action certainly appears to have been a considered one ; there
is credible testimony by R. L. Mason, undenied, that the Respondent sought and
received advice, before it acted, to the effect that its wage-increase program
would be permissible under the so-called "self-administering" regulations of the
National Wage Stabilization Board, and I so find. The dates on which increases
were announced, it is true, did follow the date on which the Union's petition
was filed, and the motivation of the announcements is thus, necessarily, some-
what suspect. A preponderance of the evidence, however, in my opinion, would
support the conclusion that the increases did not involve a hasty or unconsidered
reaction to the supposed "threat" of employee organization, and that they were
based, in fact, upon economic considerations customarily regarded as controlling
before the Union's advent. They did not, therefore, I find, involve illegal inter-
ference, restraint, or coercion of the Respondent's employees, in their effort to
achieve self-organization.
The available evidence with respect to the remarks attributed to Tom Takata,
the Respondent's bookkeeper, has been detailed elsewhere in this report. I have
credited Takata's version of the incident. Upon the entire record, I am of the
opinion that his remarks did not involve interference, restraint, or coercion
within the meaning of the statute, as those terms have been administratively
and judicially defined. The bookkeeper's statement was made in response to a
"propaganda" promise embodied in a union leaflet. It was, I find, specifically
conditioned to indicate that the Respondent, if ultimately required to meet such
a union demand, would find itself in sufficiently straitened financial circum-
stances to require that the plant be closed. Such a remark, in my opinion, is
sufficiently hedged about with contingencies to warrant the conclusion (a) that
it was not calculated to interfere with, restrain, or coerce employees in the
exercise of their statutory rights, and (b) that it could not reasonably be said
to tend to that objective.
In any event, I am satisfied , additionally, that Takata's remarks , regardless
of their tenor, should not be attributed to the Respondent partnership. He was
not, in my opinion, sufficiently identified with the management to warrant any
conclusion on the part of employees that he spoke on the subject of the Union
at the instigation of the Respondent' s partners or with their approval. Com-
pare Eva-Ray Dress Manufacturing Company, Inc., 88 NLRB 361, 372. I find
no merit in the contention, therefore, that the incident in issue involved an
unfair labor practice attributable to the Respondent employer.
It is contended by the General Counsel that the promotion of Chacon in
mid-March involved interference, restraint, and coercion within the meaning
of the Act (a) because it was a sham, and (b) because it was motivated by a
desire on the part of the Respondent to remove Chacon from the appropriate
collective bargaining unit, and to neutralize or eliminate his influence as a
union supporter. This contention deserves little more than passing mention.
Chacon assumed his duties as the Respondent' s assembly department foreman
on or about the 17th of March. He assumed those duties upon the express
condition that his authority would be supreme in the department, and that none
of his superiors in the Respondent's hierarchy would issue orders to assembly
department employees except through him. His conditions , in this connection,
were accepted by the Respondent's plant superintendent at the time of his
appointment ; and he served as the department' s foreman , with all of the pre•
rogatives and responsibilities of a supervisor , until he was terminated by the
Respondent . Chacon had been offered the foremanship ; there is no indication
GILLCRAFT FURNITURE COMPANY 95
whatever that he had been "ordered" to take it. I find no merit , therefore, in
the contention that his appointment involved a fiction.
Chacon did not receive his appointment immediately after the resignation of
Louis Wright, the incumbent foreman. The Respondent, according to the
record, turned, at first, to a well-regarded production worker; and it restored
the latter to his production assignment only after a "trial period" which re-
vealed that his services as a production worker would be of greater value to the
firm. It is clear, and I find, that Chacon was selected for the position, there-
after, on the basis of a personal recommendation by the Respondent's assistant
superintendent, who had known him in the course of his previous employment.
There is no indication in the record that the assistant superintendent's recom-
mendation had been grounded in considerations other than merit, or that the
Respondent partnership, in acting upon it, was motivated in any way by the
thinking which the General Counsel suggests. It is true that R. L. Mason
instructed Chacon, as a foreman, to eschew any conversation about the Union
or its organizational activity, and that he sought to persuade the foreman that
the Union was worthy of the Respondent's opposition. In view of Chacon's
newly acquired supervisory status, however, Mason's instructions were obvi-
ously proper. In the light of the entire record, therefore, I find the evidence
insufficient to establish that Chacon's promotion was motivated by a desire on
the part of the Respondent to interfere with the Union's campaign , or that it
involved improper interference with the efforts of the employees to achieve
self-organization.
The substance of Mason's several conversations with Chacon, subsequent to
his appointment as a foreman, has been set forth, in detail, elsewhere in this
report. Upon the entire record, I have concluded that Mason's remarks with
respect to the Union, as detailed in his testimony, did not exceed the limits of
the "free speech" permitted under Section 8 (c) of the statute. And a contrary
conclusion, even if it could be justified by an objective appraisal of the record,
would, in any event, be insufficient to sustain any ultimate conclusion that an
unfair labor practice had been committed. The Masons and Chacon spoke
privately; there is no contention that any of their conversations were over-
beard by any employee; and the record will not warrant a determination that
either of the partners expected or desired Chacon to communicate their senti-
ments to the employees as a representative of management.
In my determination of the Respondent's motion to dismiss the complaint, at
the close of the General Counsel's case, I granted dismissal , as previously noted,
with respect to those allegations of the complaint which could be construed to
involve a contention that Mason's remarks to Chacon, under the circumstances,
involved an unfair labor practice. Upon reconsideration, and for the reasons
now set forth at length, my previous determination is hereby reaffirmed.
In the light of established precedents, however, it would seem to be clear that
a different decision is required with respect to the remarks attributed to Chacon,
in his talks with former fellow workers, in regard to Mason's attitude toward
the Union and its organizational activities. The record establishes, without
dispute, that Chacon, on at least one occasion, had reported a determination by
R. L. Mason to close the plant if the Union won designation as the exclusive
representative of the employees in the scheduled election. In the light of the
record as a whole, there can be no doubt that Chacon, when he attributed such
sentiments to It. L. Mason , did not do so for the purpose of furthering the Re-
spondent's admitted campaign to disparage the Union. Whatever his motives
may have been, however, there can be no doubt that Chacon's attribution to
Mason of the sentiments described was reasonably calculated to interfere with,
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrain, and coerce the employees of the Respondent in their exercise of the
right to self-organization. Cf. Beatrice Foods Company, 84 NLRB 493, 494.
I so find.
My conclusions with respect to the substance of Mason's remarks to Rosas
and Garcia, in mid-April, have been detailed elsewhere in this report. In the
light of those conclusions it would seem clear, and is found, that the comments
properly attributable to Mason did not involve illegal interference, restraint,
or coercion.
2. The alleged refusal to bargain
a. The appropriate unit
The complaint alleges, the Respondent admits, and I find, that all of the
production and maintenance employees, including shipping department em-
ployees, at the Respondent's Los Angeles, California, plant, but exclusive of
professional, office employees, guards, and supervisors as defined in the Act, as
amended, constituted at all times material herein, and now constitute, a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the statute.
b. The Union's majority status
In the absence of a certification derived from the election originally scheduled
pursuant to the Board's Decision, the Union, in this case, necessarily rests its
claim to designation by a majority upon the authorization cards executed in
the course of its organizational campaign. As previously noted, that campaign
reached a climax in the latter part of January, sufficient to persuade the Union
to file a petition for certification as the exclusive representative of Respondent's
employees, and to claim, as of the date on which the petition was filed, that
it represented more than a majority of the workers involved. The petition
having been filed on the 31st of January, and the Respondent having been no-
tified "presumably" on the following day, the General Counsel has sought to
establish that the Union represented a majority of the employees as of the
date on which the employer would, in the normal course of events, receive
notice that a petition had been filed. As of February 1, 1952, however, the
Union held an indeterminate number of designation cards executed by em-
ployees within the appropriate unit-80 in number on that date. Thirteen of
the cards submitted at the hearing in support of the Union's majority claim are
undated. Since three other cards were dated in February and since all three
were postmarked as late as February 14 and 15, there can be no presumption,
certainly, that the undated cards were executed in January before the petition
was filed. If they were, the Union could be said to have achieved its majority
status before the 1st of February-but the record, as it stands, will not support
such a factual conclusion.
As of February 27, 1952, when the representation case bearing was held,
there were 82 persons on the Respondent's plant payroll. Of the 49 designation
cards previously collected in the name of the Union, and transmitted by it
to a Board agent in support of that organization's representation petition, 45
bore the names of workers on the payroll during the period which included the
27th of the month.
On the 3rd of April, as previously noted, the Union abandoned its efforts to
achieve a certification and demanded immediate recognition as the exclusive
representative of the Respondent's employees. The Respondent, on that date,
had 84 persons on its payroll within the unit alleged and found herein to be
GILLCRAFT FUR,NTr'URE COMPANY 97
appropriate for the purposes of a collective bargain . Only 41 of these employees,
however, were numbered among these who had previously signed union des-
igaati+oa cards. (Tffie reed contains no evidence of any attempt by an em-
i>loyee to cancel or wlt'l raw a previous designation of the Union as his rep-
resentive for the purposes of a collective bargain . The decline in the number
of union adherents on the Respondent 's payroll appears, therefore , to have
been due 'entiieely to ,employee turnover .) Though analysis of the figures cited
might, (conceivalhly , support an inference that the turnover between February
27 nail April 3 had been confined exclusively to union adherents , the General
(7ouusel ma'lm no con'teenticm that the turnover was due to a layoff policy dis-
^crimffiatorily motivated or'calculated to destroy the Union 's majority status.
ft flhiis posture ,of the record , then , I am unable to find that the Union had
been designated as the collective -bargaining representative of a majority od'
the 1@espondentrs employees within an appropriate unit, as of the date on which,
the Union 's petition was filed . And, as of the date on which the Union made
Its first formall , written demand for recognition, without regard to the course
of the representation election scheduled to follow, the Union, I find , had lest
its majority status ender circumstances which do not establish the commission
tuff any unfair labor practice as an operative factor.
Upon the entire record , however, I can and do find that the Union, as of
Wbrvary 27, 1952, had been designated by a majority of the employees within
a unit appropriate for the purposes of a collective bargain , to act as their rep-
reserstative . Under Section 9 (a) of the statute, the Union was entitled on
that 'date to claim recognition as the exclusive representative of the Respond-
.ent's plant employees in the unit found herein to be appropriate for the pur-
poses of collective bargaining with respect to rates of pay, wages , hours of
employment and other terms and conditions of employment , and I so find.
c. The alleged refusal to bargain
Under the Act, it is well established that a demand upon an employer, by the
accredited representative of his employees , that he bargain collectively is nor-
mally a prerequisite to any conclusion that the subsequent conduct of the em-
ployer , in a particular case, amounted to a refusal to bargain. N. L. R. B. v.
Columbian Enameling and Stamping Co., Inc ., 306 U . S. 292 ; Barlow-Many
Laboratories , Inc., 65 NLRB 928 ; Collins Baking Co., 90 NLRB 895.
Since the Union , in this case , no longer represented a majority, as of the date
on which it presented a written demand for recognition and the commencement
of contractual negotiations , that demand must be considered , in the instant case,
as one of no legal consequence . We are, therefore, impelled to consider whether
the course of events at the formal hearing in the representation case, which
occurred on February 27, 1952 , could be said to involve any union demand for
recognition and a refusal to bargain on the part of the respondent employer.
The General Counsel , apparently, contends that the Union 's representation
petition should be construed as a demand that the Respondent bargain-or at
the very least as a demand for recognition . ( It included, as noted elsewhere
in this report , a specific claim that the Union represented a majority of the
Respondent 's employees.) Upon the entire record , however , I find no merit
in this contention . Prior to the date on which the petition was filed, insofar
as the record shows, the Respondent had given no indication of its attitude with
respect to the Union or its organizational campaign . That organization, in the
absence of any prior suggestion by the Respondent , then filed the petition upon
which the General Counsel now relies . In it the Union expressly requested
certification under Section 9 (a) and ( c) of the Act , as amended . And in the
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
light of the available precedents , I cannot conclude that the mere presentation
of such a petition , under the circumstances , should properly be construed as a
bargaining demand , within the requirements of Section 8 (a) (5) of the statute.
Cf. The Solomon Company , 84 NLRB 226 , 227; Wan'ord Cabinet Company, 95
NLRB 1407 , 1408; Donahue Motors, 28 LRRM 1046 ( order adopting examiner's
findings and conclusions , May 3 , 1951 ). If this conclusion is sound , as I believe
it is, the colloquy at the hearing on the petition , to which the Board 's attention
has been directed , in which the Respondent acknowledged its refusal to recognize
the Union prior to Board certification , adds nothing to the case , and should not
be considered equivalent to a refusal to bargain . In context , the stipulation to
which the General Counsel now refers was not predicated upon any prior demand
for recognition , explicit or implicit ; it was merely intended to confirm the
existence of a question concerning representation . And I so find.
In support of a contrary contention the General Counsel argues , in substance,
that the specific circumstances here present-the Respondent's early campaign
to disparage the Union , and the remarks attributable to Foreman Chacon-
reveal that a request by the Union for the Respondent to bargain collectively
would have been a "useless gesture" and that a specific demand was therefore
unnecessary . Cf. Old Town Shoe Company , 91 NLRB 240 , 241; Unique Ven-
tilation Co., Inc., 75 NLRB 325, 334 . While the Respondent 's course of conduct,
when studied in the round, does give unmistakable evidence of its disinclination
to deal with the Union , the firm 's distribution of material critical of the Union
and Gus Brown has not been challenged as an unfair labor practice . The wage
increases given early in February , whatever their incidental effect may have
been, did not, as I have found , involve illegal interference , restraint, or coercion.
A similar ultimate conclusion , bottomed upon other considerations , has been
reached with respect to the statements attributable to the Respondent 's book-
keeper. And the statements attributable to Foreman Chacon, found herein to
constitute an unfair labor practice , were not made in February , or at any time
proximate to the hearing in the representation case. I find nothing in the
present record , in short, to justify the suggested conclusion that a specific demand
for recognition and collective bargaining , on or before the 27th of February,
would have been a futile gesture. There having been no bargaining demand
by the Union, then , on or before the 27th, I find that the Respondent , on that
day, did not refuse to bargain.
3. The discharges
a. Armando Rosas
Upon the entire record, I do not believe that a preponderance of the evidence
will support the conclusion that Armando Rosas was laid off to discourage union
membership. He was, it is true, an active proponent of unionization and was
known as such to R. L. Mason who, on at least one occasion in March, lectured
him about too much union "talk" during working hours, and sought to dis-
parage the Union and its business agent. I do not find in this conversation,
however, persuasive evidence that the Respondent had selected Rosas for dis-
criminatory treatment as an object lesson for other employees. Every logical
inference, on the basis of the record, would compel a contrary conclusion.
Rosas was not warned to eschew union activity-in fact, his right to continue
as an active union supporter was specifically affirmed. I have concluded, after
a reconciliation of the available testimony, that Rosas and Garcia were merely
warned to avoid extended "talk" which would interfere with production.
Mason's remarks about the Union and its business agent involved no threat of
GILLCRAFT FURNITURE COMPANY 99
reprisal or promise of benefit. They appear to have fallen within the ambit of
statutorily protected "free speech" and I have so found. Assuming, for the
sake of argument, that the Respondent intended to discharge Rosas for dis-
criminatory reasons, those reasons, assuredly, would have been stronger in
March than they were in May, yet the Respondent reassured the employee, in
March, that he would not be discharged if he did his work . And the record
does not show that anything occurred in May to suggest that a discharge, at
that time, might have been discriminatorily motivated. Production schedules
were tapering off ; the bulk of the work derived from the Respondent' s January
"market" orders would appear to have been completed, and reorders were not
"coming in" very well. Rosas was the 29th person laid off after the Respondent's
staff reached its peak. A number of other layoffs in the department had pre-
ceded or accompanied that of Rosas, and there is no contention that any of these
layoffs were discriminatory. A decline in the volume of the Respondent's work,
and the consequent need to reduce the staff required at earlier stages in the
Respondent's productive process, might very well have impelled the Respondent's
decision to lay off 1 member of its 4-man "spray booth" crew at the time. No
new employees have been hired as sprayers. And the fact that a "new man"
was assigned to the work thereafter cannot, in itself, impugn the motives of the
Respondent ; there is some testimony, I find, but no substantial, probative evi-
dence that he was assigned to "spray work" on a full-time basis. Absent such
evidence, it cannot, in my opinion, be contended that the Respondent's "lack
of work" excuse for the termination of Rosas was a pretext.
Nor does the selection of Rosas for layoff appear to have been discriminatory.
He was third in seniority among the qualified spray men. Although required,
in the main, to spray lacquer, a highly skilled operation, Rosas, according to
his own testimony, was never required or permitted to devote himself exclusively
to that work. Pino, another union supporter, had also done it upon occasion,
changing booths with Rosas when he did so. And the difference in seniority
between Rosas and Pino was not, in my opinion, so great as to require the Re-
spondent to explain, in detail, why it was disregarded, particularly since there
is no conclusive evidence that the Respondent customarily considered seniority
as the "controlling" factor in the selection of persons for layoff. (Rosas ap-
pears to have been selected for layoff by the finishing department foreman ; the
record shows that he had been criticized for "loitering" while at work, and ac-
cording to Mason, the foreman had reported his work to be "sloppier" than that
of Pino, his fellow worker.) I find that the layoff of Armando Rosas, on May
23, 1952, did not involve discrimination in connection with the tenure of his
employment, to discourage membership in the Union or any other labor
organization.
b. Cecil Charon
During the period immediately prior to his appointment as a foreman , Chacon
had been exceptionally active as a proponent of unionization ; he appears to have
been the Union's most active supporter. And his activities in that regard were,
it would seem, known to the Respondent's active partners. Despite the knowl-
edge thus imputable to them, the partners selected Chacon, in March, to serve as
their assembly department foreman. Their action, I have found, involved a
genuine promotion. Such antiunion pressures as were brought to bear upon
Chacon thereafter, in my opinion, were motivated by R. L. Mason's legitimate de-
sire to assure himself that Chacon would no longer serve as a proponent of union-
ization . I find nothing in the Respondent's treatment of Chacon, in short, to
suggest that he was being subjected to discrimination or reprisal because of his
prounion activities while a rank-and-file employee.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His activities as a foreman , and the Respondent 's reaction to them, present
a slightly different issue. Such intimations as may be found in the record with
respect to Chacon 's interest in the Union after his appointment as a foreman
are certainly insufficient to warrant any conclusion that he engaged in extensive
activity , either against , or on behalf of, the Union . There can be no doubt, how-
ever , as I have previously found , that Charon did , on at least one occasion, com-
municate to some rank-and-file employees his conception of certain statements
made by R . L. Mason with respect to the Union 's organizational activity and the
Respondent 's reaction to it . ( Chacon did state, as a witness , that he believed
himself free, outside of the shop and outside of working hours, to express his
personal views with respect to unionization and to advise the rank -and-file em-
ployees in regard to the Union 's campaign .) Under the circumstances , I regard
it as immaterial that Mason 's conception of the extent to which Chacon remained
active in the Union 's organizational campaign may have been an exaggerated
one. It is clear , and I find , that Mason believed his foreman to be guilty of an
improper interest in the Union 's activities , and that his belief had at least some
foundation in fact.
The evidence establishes that Charon, when dismissed , was told by Super-
intendent Finken that his services were being terminated in connection with a
general layoff . The Respondent made no effort at the hearing , however, to defend
the superintendent 's statement to Chacon as correct , or to support it in any way.
(If issue had, in fact, been joined on this contention , I would certainly have found
the discharge of a foreman for "lack of work" incredible , unless the evidence
showed that the entire department involved , or most of it, had also been closed
for that reason .) The Respondent , instead , has asserted that Foreman Chacon
was discharged , in the words of the plant superintendent , because he was not
"running" the department in the way that a foreman should , and because he as-
sertedly did not have the "interests " of the Respondent at heart . The immediate
cause of his dismissal appears to have been his tolerance of an unauthorized
visitor (a nonempioyee ) in the assembly department.
Several other incidents allegedly indicative of Chacon 's inattention to his
duties, and the responsibilities incidental to the achivement of eff icient operation,
were detailed at length in the present record. I find it unnecessary to discuss
them specifically . Insofar as the record shows, they appear to have involved
some relatively simple errors in judgment , or carelessness , which the Respondent
certainly could have considered indicative of Chacon's inability to function
effectively as a foreman . The Respondent chose to dispense with his services
rather than to restore him to his previous position as a repairman , according
to the record , because the Masons had "lost confidence" in him . While this
assertion , considered in isolation , might , in some circumstances , warrant an
inference that the Respondent had acted arbitrarily , and thus cast doubt
upon its motivation , Mason 's attitude cannot be described as inherently un-
reasonable . The General Counsel endeavored , rather successfully I thought,
to establish that the incidents cited against the foreman were isolated and
relatively minor in character-incidents which would not, in and of themselves,
have justified discharge . Whatever conclusions in this regard might be war-
ranted by objective judgment , however , the fact remains that the Respondent
claims to have acted on the basis of these considerations . The General Counsel
made no effort to show that similar errors, carelessness , or deficiencies of
judgment had been glossed over in the case of other foremen , and that the
Respondent , therefore, was acting discriminatorily . In the light of the entire
record , I could not, in any event, find merit in such a position.
GILLCRAFT FURNITURE COMPANY 101
If the record establishes anything at all, in support of the General Counsel's
case, it establishes only that Chacon may have been dismissed, in the final
analysis, because the Respondent suspected him, with some justification, of a
continued interest in the success of the Union's organizational drive. Such an
interest on the part of a foreman, even absent an objective manifestation, is not
a protected interest under the statute. I find the record barren of any testimony
sufficient to warrant an inference that Chacon's discharge was calculated to
interfere with, restrain, or coerce rank-and-file employees of the Respondent in
their exercise of the rights guaranteed by the Act, as amended. And upon the
entire record, therefore, I find no merit in the contention that Chacon's termina-
tion involved an unfair labor practice.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent set forth in section III, above,
which occurred in connection with the operations of the Respondent described
in section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom, and that
it take certain affirmative action designed to effectuate the policies of the Act.
Specifically, it having been found that the Respondent engaged in certain acts
of interference, restraint, and coercion through Cecil Chacon, a foreman, it will
be recommended that the Respondent cease and desist from such conduct.
Since a preponderance of the evidence, however, in my opinion, will not
sustain a conclusion that the Respondent engaged in the other unfair labor
practices alleged in the complaint, it will be recommended that the complaint,
in all other respects, be dismissed.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the entire record in
the case, I make the following conclusions of law :
1. Furniture Workers, Upholsterers and Woodworkers Union, Local 576, In-
dependent, is a labor organization, within the meaning of Section 2 (5) of the
Act, as amended.
2. All of the production and maintenance employees of the Respondent at
its Los Angeles plant, including shipping department employees, but exclusive
of professional, office employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of a collective bargain,
within the meaning of Section 9 (b) of the Act, as amended.
3. The Respondent has not, by any failure or refusal since February 1, 1952,
to bargain collectively with Furniture Workers, Upholsterers and Woodworkers
Union, Local 576, Independent, as the exclusive representative of its employees
in the above-described unit, engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (5) of the Act, as amended.
4. The Respondent has not, by its discharge of Armando Rosas on May 23,
1952, or by its discharge of Cecil Chacon, on June 13, 1952, engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act,
as *fheuded.
257965-54-vol. 103-8
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By the statements of Cecil Chacon, its foreman, the Respondent has inter-
fered with, restrained, and coerced its employees in their exercise of the
rights guaranteed in Section 7 of the Act, and has thus engaged in an unfair
labor practice within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practice is an unfair labor practice affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organizations, to
join or assist FtRNITURE WORKERS, UPHOLSTERERS AND WOOD WORKERS
UNION, LOCAL 576, INDEPENDENT, or any other labor organization, to bargain
collectively through representatives of their own free choice, and to engage
in other concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, as amended.
All of our employees are free to become or remain members of Furniture
Workers, Upholsterers and Woodworkers Union, Local 576, Independent, or any
other labor organization , or to refrain from such membership.
Wilma M. Moran, R. L. Mason and Stewart. Mason,
d/b/a GILLCRAFT FURNITURE COMPANY
-------------------------------------------
(Employer)
Dated -------------------- By -------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
UNITED AIRCRAFT CORPORATION , PRATT & WHITNEY AIRCRAFT DIVISION
and INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL, PETITIONER.
Case No. 1-RC-0889. Fehruary 27, 1953
Decision, Order, and Direction of New Runoff Election
On October 9, 1952, pursuant to a Stipulation for Certification
Upon Consent Election executed August 14, 1952, an election by
secret ballot was conducted among certain of the Employer's em-
ployees under the direction and supervision of the Regional Director
for the First Region. As neither the IAM nor the other labor or-
103 NLRB No. 15.