Lexington Chair Co.

National Labor Relations Board - Board Decisions

Jan 28, 1965

150 N.L.R.B. 1328 (N.L.R.B. 1965)

1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lexington Chair Company and United Furniture Workers of
America, AFL-CIO. Cases Nos. 11-CA-2289 and 11-CA-2392.
January 28, 1965
DECISION AND ORDER
On November 13, 1964, Trial Examiner Harold X. Summers issued
his Decision in the above-ehtitled consolidated proceeding, finding
that the Respondent had engaged in and was engaging in certain,
unfair labor practices within the meaning of the National Labor
Relations Act and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's Decision and briefs
in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases 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
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in these cases, and adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
Pursuant to, Section 10 (c) of the National Labor' Relations Act,
as amended, the Board hereby adopts, as-its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Lexing-
ton Chair Company, Lexington, North Carolina, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, with the following addition :
Add the following to paragraph 2(a) of the Trial Examiner's
Recommended Order :
"Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application 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."
TRIAL EXAMINER'S DECISION
This case was heard upon two complaints 1 of the General Counsel of the National
Labor Relations Board, herein called the Board , alleging that Lexington Chair Com-
'The complaint in Case No . 11-CA-2289 was issued March 27, 1964; the charge
initiating the proceeding was filed October 31, 1963. The complaint in Case No. ,
11-CA-2392 was issued May 19, 1964; the charge initiating that proceeding was filed
March 27, 1964.
150 NLRB No. 126.
LEXINGTON CHAIR COMPANY 1329
pany, herein called Respondent , had engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a) (1) and (3) of the National Labor Rela-
tions Act, herein called the Act. Respondent's answers to the respective complaints
admitted some of their allegations and partially admitted or denied others; in effect,
it denied the commission of any unfair labor practices . Pursuant to notice , a consoli-
dated hearing on the two complaints was held before Trial Examiner Harold X.
Summers at Lexington, North Carolina, on June 22, 23, and 24, 1964, at which,
among other things, the General Counsel was permitted to withdraw all reference in
the complaints to the alleged unlawful discharges of two of the eight individuals
originally named. All parties were afforded full opportunity to examine and cross-
examine witnesses, to argue orally, and to submit briefs. Briefs filed by the General
Counsel and by Respondent have been fully considered.
Upon the entire record of the case, including my evaluation of the witnesses based
upon the evidence and my observation of their demeanor, I make the , following:
FINDINGS OF FACT
1. COMMERCE
'Respondent, a North Carolina corporation wholly owned by Thomason Enter-
prises, Incorporated, also a North Carolina corporation, operates its only plant at
Lexington, North Carolina, where it is engaged in the manufacture of bedroom and
dining room furniture . During the 12 months - preceding the issuance of the instant
complaints, which period is representative of all times material herein, Respondent
produced and caused to be transported, outside the State of North Carolina from its
Lexington plant finished products of a value in excess of $50,000; and, during the
same period , it caused goods and materials of a value of excess of $50 ,000 to be
shipped directly to its Lexington plant from points and place- outside the State of
North Carolina. '
I find that Respondent is an employer engaged in commerce within the meaning
of the Act.
II. THE UNION
The Charging Party, United Furniture Workers of America , AFL-CIO, hereinafter
called the Union , is a labor organization within the meaning of the Act..
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The setting
Respondent employs some 200-plus nonsupervisory production and maintenance
employees. This case arises out of acts alleged to have been performed by represen-
tatives of Respondent in reaction to an organizing campaign conducted among these
employees by the Union.
Although (as-I find from the credible testimony) the Union' s campaign covered
the period from at or about June 1963 through at least March 1964,-the alleged
unfair labor practices are divided into two time periods, coinciding roughly with the
periods covered by the two original charges herein. For example (according to
allegations;in the complaints), there were a number of instances of acts of interfer-
ence, restraint, or coercion and three unlawful discharges during September and
October 1963; while, thereafter, at least until late March 1964, there were other,acts
of interference , restraint , and coercion and five more unlawful discharges.2. In
between, on or about November 6 or 7, 1963, the Union gave to Respondent written
confirmation of the fact that the campaign was being actively pressed and furnished
a list of the Union 's "organizing committee."
It should be noted that, while the Union's campaign was going on, a countercam-
paign was being waged; leaving aside for the moment the degree, if any, of Respond-
ent's involvement therein, it is clear, and I find, that support, financial and otherwise,
was being solicited among Respondent's employees on behalf of a drive to counteract
the Union's efforts.
Finally, no petition for the investigation of a representation question concerning
the employees here involved has been filed.
2 At the hearing , a motion by the General tCounsel to amend his complaint by dropping
all reference to two of these discharges was granted.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Chronology of events 3
1. On or about December 5, 1962, Respondent posted a list of rules and regulations.
Listed were 23 activities , for engaging in any of which , the notice said , "employees
will be subject to disciplinary action , which may mean discharge , in proper cases'..:'."
The 21st forbidden activity was "Distributing or posting literature of any kind in the
plant."
2. Prior to its closing in early June 1963, the "Sun Glow plant" 4 at Logan, Ohio,
was a customer of products manufactured by Respondent and was itself a manufac-
turer of articles of furniture . Before the closing-in April-union representatives
there made it clear to John E. Adams, general manager of Respondent 's' plant, that
an organizational attempt would be made among Respondent 's employees.
At or about the middle of May-before any such organizing attempt evinced it-
self-Adams communicated with Respondent 's employees on the subject . In groups
of 15 to 25 they were called to the main office , where they found "literature" 5 and a
picture of the Sun Glow plant. Adams, in the presence of Lloyd Carlton , personnel
manager and purchasing agent , told them that they could expect calls from union
organizers , reminded them what "had happened" at Sun Glow ,6 stated that Respond-
ent had plenty of business and hoped it would continue , and expressed the opinion
that there was no necessity for a union "here."
3. Shortly after he delivered these talks to employees , General Manager Adams
decided to "get this house in order" and he passed the word down . The sole step
taken , insofar as the evidence in this record reveals, is the posting of a new list of
rules and regulations early in June? The rules were identical to those described in
Chron. 1 (in fact , they were dated December 5, 1962 ), with the following exceptions:
Inserted as new forbidden employee activity No. 8 was "Criticizing Company rules
and policies so as to cause confusion or resentment between employees and manage-
ment"; the old rule No. 8 became No. 18; and the old rules Nos. 18 through 23,
unchanged , were now renumbered 9 through 24.
4. The Union 's campaign to organize Respondent 's employees began in June. It
first took the form of mail and home contacts by a union representative , then of
personal employee -employee solicitations , and finally, in mid-September , of the first
meeting of employees . Thereafter , literature was distributed and periodic meetings,
attended by 10 or 15 employees , were held. -
5. One day in mid -September , employee Maston Turner (who had been active in
the union campaign and whose subsequent discharge is discussed infra ) was pushing
an empty truck through Respondent 's No. 2 warehouse when he encountered Adams,
Carlton , and Hughes Ward , plant superintendent , walking through the plant. At a
distance of 8 or 10 feet from them , he heard Ward say to Adams , "There goes one,
John . They call him Turner," and he saw Adams make a penciled notations
6. The proffered testimony does not establish that, on or about September 25, 1963,
Joe Bruff, cabinet room foreman and a supervisor within the meaning of the Act,
interrogated any employees concerning their union sympathies or desires or informed
8 My findings of what occurred-or did not occur-as recited in this section will not
be repeated elsewhere in this Decision . Subsequent reference to items in this section
will take the form of the abbreviation "Chron ," followed by the item number or numbers
being alluded to.
This record contains no more precise name of that company.
No details as to the nature of the literature appear in this record . In context, I
find that it concerned itself with the disadvantages of unionism.
"No specific details of what was said about Sun Glow figured in testimony here Con-
sidering subsequent references to the Sun Glow closing-for example, see Chron. 9-it
is clear, and I find, that the tenor of his remarks was that that plant was going out
of business because of union interference.
7 The General Counsel contended that the new rules were posted in October, after
the Union began an open organizing campaign ; however, he failed to present evidence
to overcome testimony of Respondent 's witnesses which I have here adopted
8 This finding is based on Turner's credited testimony. Adams did not testify about
the incident , and Ward did not testify at all. Carlton , testifying , did not recall any
such statement He did recall an occasion in the spring of 1964 ( when Turner was no
longer employed by Respondent ), going through the plant with Adams and Ward carry-
ing a list, but explained that only the realignment of machines was being discussed ;
I do not regard this testimony as contradicting , or responsive to, Turner's.
LEXINGTON CHAIR COMPANY 1331
them that Respondent's plant would close if the Union should be successful in its
organizing effort.9
7. On October 2, 1963, employees Lloyd Robinson and Edwin Tollie were dis-
charged. (Their discharges, alleged to be in violation of Section 8(a) (3) of the Act,
will be discussed in detail infra.)
8. There is no credible evidence to support the allegation (found in the complaint
in Case No. 11-CA-2289) that Joe Bruff, on-or about October 14, 1963, informed
any employee that the plant. would close. if the Union' s organizing attempt were
successful.
9. On October 15, 1963, Respondent sent its employees the first of, a series of
letters concerning the Union's campaign. It said, in pertinent part:
We understand that the Union organizers are making the rounds these days,
stopping you on the streets and coming to your homes to try to persuade you
to sign up. Many of you have come'forward to tell us about Union threats and
promises. The Union people are telling you [if you sign up] all your problems
will be solved . . . Of course, you will be expected to pay Union dues [etc.]
but you will never have to worry about anything else . . .
. They are telling you that [Respondent] is not building its warehouse; Sun
Glow is building it. They are saying we are putting a conveyor in the warehouse
so we can fire a bunch of people. They are also telling our folks what big wages
the Sun Glow workers got up in Ohio.
Let us go directly to the truth of these falsehoods . . . . Lexington Chair is
building the warehouse . one reason is that we are now doing a lot of work
[formerly] done by Sun- Glow . . . . Instead of firing people because of the
conveyor, we are actually going to have to put on more people because there will
be more work for everyone . What wages are the Ohio people getting
now? . The -Ohio plant is closed down, and the workers were let go, and
most of [their] production . . . is now made by us, and Sun Glow is buying
from us ...
Do you remember the old fashioned medicine show, where they sold
snake oil, guaranteed to cure everything . . . . It sounds to us like the Union is
selling snake oil ....
We think a lot of you have- seen trouble first hand in Thomasville, High Point,
Henderson and other places. We think you know that arguments, quarrels,
-strikes and other troubles seem to move in with a Union . . . . If you want to
-let these people come into your houses and peddle their snake oil, you can do
so, but if you want to tell them you like your job security ... better than the
Union-type security that meant nothing at all to the Ohio people, then you can
tell them you do not want them in your homes and you are not interested in their
snake oil.
It's all up to you . You have just as much right to talk to your friends
about how you feel as the Union people do, and you have just as much right to
discuss these matters openly, at the plant and other places, as the Union orga-
nizers do.
We will have more to say later, but in the meantime, if you have any ques-
tions don't hesitate to ask us.
Very truly yours
(S) John E. Adams
10. On or about October 23, 1963, employee Maston (Buddy) Turner was dis-
charged and, on the following day, Harold Myers left his job. (Turner's discharge
is alleged to be violative of Section 8(a) (1). Both terminations are discussed, infra.)
11 a. At or about this time, the antiunion campaign earlier alluded'to was launched.
Its originator, insofar as this record reveals, was Kenneth Kepley, whose disputed
supervisory status is discussed below; and, at all times thereafter, he and Jack Fritts-
whose supervisory status is also at issue herein-were the most active among Respond-
ent's employees in'this movement. They, along with others (the group sometimes
calling themselves the antiunion committee), engaged in activities designed to achieve
the objective of the program-to keep the Union, or any union, out of the plant.
D I make this negative finding only because the complaint in Case No. 11-CA-2289
alleged that he did engage in such conduct. Employee Howard Bates, called by General
Counsel, testified that Bruff "said something or another about [the Union] and I told
him I didn't know about it, who was in the Union or what . . . . I don't remember how
he did bring it up-something another about did I know anything about It." I can
base no finding on this vague testimony.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The activities, throughout the period in question, took three basic forms: procuring
signatures of employees to "antiunion petitions" or "pledges" to avoid union entangle-
ments; to soliciting voluntary donations to cover costs of preparing antiunion litera-
ture; and distributing antiunion material to employees, usually keyed in time and in
content to union leaflet distributions. In addition, the antiunion committee had at
least one "meeting," addressed by "-`some fellow from [a nearby town]" on the subject
of keeping or getting a union out of a plant.
11 b. The first "petition" was circulated in October 1963. One of those who helped
to procure signatures was Frank Rogers, an ex-employee of Respondent called as' a
witness by the General Counsel. Kenneth Kepley called him to the office of Harry
Hayes,11 foreman over both of-them, and gave him the petition for the purpose of
procuring signatures. Rogers secured between 30 and 40 signatures and returned the
petition to Kepley. -
A corollary finding here is that Harry Hayes, the foreman, was not involved in the
incident. Thus, in the face of contradicting testimony, I do not credit Rogers' testi-
mony that he was called to Hayes' office by Kepley and Hayes, that Hayes played a
role in giving him the petition, and that Hayes instructed him to keep out of his
sight while procuring signatures.12 I find that Hayes' office was used by many
employees in the course of their duties (official and otherwise) and that, even when
he was present, as on occasion he was, he did not necessarily know what was going on.
There is evidence in the record that he scrupulously avoided becoming involved in
the antiunion movement and that those working on its behalf scrupulously avoided
their activities coming to his attention; and there is no credible testimony supporting
the General Counsel's contention that this was untrue or his implied alternate con-
tention that, if true, it was by unlawful design. -
llc. At or about this time, James Helpler, whose disputed supervisory status is
separately treated herein, approached employee Shuford Smith and asked him to
sign a petition, explaining, he said, that the petition was designed "to keep the Union
out of the plant" and that Smith would be "in better standing" if he signed it. Smith
affixed his signature and Helpler went on to other employees.13
Later that day, Smith saw Helpler showing something that looked "exactly" like
the petition-two white sheets with a bluish tint, and a sheet of carbon paper be-
tween-to Joe Bruff and Plant Superintendent Hughes Ward.14 Other than this, there
is no support for the General Counsel' s allegation in the complaint in Case•No. 11-
CA-2289 that, on or about October 24, 1963, Joe Briiff either circulated and requested
employees to sign an antiunion petition or informed employees that the signing of
such a petition would "put them in good standing ." (There is no parallel allegation
concerning Ward.) -
12. Respondent sent a second letter to its employees on October 28, 1963. Among
other things, it said:
..• . Almost every day some of our folks tell us that the Union dues-collectors
came to their homes to talk about [what the Union] is going to do for the poor
unhappy mistreated folks at [Respondent]. Many ... have repeated what they
told the Union organizers: that they want no "help" from the same Union who
"helped" at Logan, Ohio.... -
1u According to the evidence herein, these signed documents-theee appear to have
been from three to five during the period in question-were displayed from time to time
to employees, presumably to maintain and stiffen antiunion attitudes ; when they were
"worn around the edges," they would be thrown away. ,
"Foreman of the finishing department ; on the basis of the pleadings and testimony
herein, I find him to be a supervisor for Respondent.
12 Rogers was a confused and confusing witness. Making due allowances for the nor-
mal dimming of recollection with the passage of time, and a natural tendency to confuse
details when there are a number of similar incidents, I have difficulty even in construct-
ing a chronology from Rogers' testimony. Furthermore, in evaluating his testimony, I
take note of the fact that, although he first testified that he voluntarily quit, in May 1964,
on good terms with everyone, he subsequently said he had a falling-out with Kepley (for
reasons unconnected with unionism). For what it may be worth, I find that Rogers,
during his employment with Respondent, was an, active member of the antiunion group
in the plant, and that since then-he voluntarily quit in May 1964-he has become
disenchanted with that movement.
l-This finding is based on Smith 's credited testimony . Helpler did not testify.
14 This too is based on Smith's credited testimony. Bruff did not testify about this
incident and Ward was not called as a witness.
LEXINGTON, CHAIR COMPANY 1333
We in the management ... are proud of the close, friendly relationship of
everyone connected with the Company. In many plants, the Union organizers
sign up a lot of employees before the management knows anything about it. This
usually happens simply because even the folks who don't want to, sign Union
cards, keep their mouths shut and say nothing. Maybe we have a different kind
of folks at Lexington Chair. Maybe they feel a little close to their company.
Maybe they, realize that when trouble starts in one small spot, it can spread like
a disease. Whatever is the reason, we are proud that our folks have come forward
in the open to try to stop these Union wheelers and dealers before they get too far.
We have seen the pamphlet recently put out by a group of employees. They
laid it on the line, quoted facts, and we are glad that they have taken an active part
in this campaign. After all, it is the employees who have to pay the dues ...
who are called. out on strike .'.. who end up in the middle whenever Union trouble
starts. - `
. We might like to make plain . . . . First: A couple of folks signed
Union cards, not because they wanted to join, but simply because they were not
given all the facts. We have told them that the cards are not just election re-
quests , but . . '. are turned over to the government agents who consider each
card as a request for a Union [regardless of what the signer] had in mind.
Second: Three men asked us the other day who actually runs a Union when it
gets in . . . In almost every case, the boys who are doing the loudest talking
for the Union, end up being the Union officers and Shop Stewards .. . Look
around and see who are the big-shots right now doing all of the Union talking.
They are the ones who would take over your affairs . . . . That is the way
Unions work, and we told our friends about it.
The Union is desperate . . . They are losing men . . . that means losing
money . . . . When six furniture plants close . . . the Union,big shots tell
the little shots to get busy and sign up new members.
We [at Lexington] don't owe the Union one cent. Why should you risk your
jobs and wages to keep money in Union Headquarters? . . . get mixed up in
strikes and shutdowns, to rescue the Union from hard times? They admit pub-
licly that members-won't pay dues without a check off . .. but still they tell you
that you need a Union.
While [preparing] this letter, [an employee] brought us a new [Union] leaflet
[criticizing working conditions here]. . If they think 'our working condi-
tions are not decent . . . why in the world don't they quit and go somewhere
else. .
. We cannot make promises to try to keep you from voting for a Union.
However, [we pledge] that if you do your best to turn out good furniture, we
will do our best to sell it . . . so that [we] will have good steady work... .
This is the best type of job security. -
13a. On or about November 6 or 7, 1963, Maston Turner (no longer an employee-
see Chron. 10) handed Personnel Manager Carlton the earlier-mentioned list of
those on the Union's organizing committee. (The list actually handed Carlton was
a carbon copy, not an original. For no apparent reason, he made a photostatic
copy of the document and destroyed the copy given him.) I here reproduce the list,
the accompanying bracketed remarks being appended by ,me for the sake of clarity.
Maston E. Turner [already discharged, on October 23-see Chron. 10]
Fred H. Tollie [still employed]
James Lee Cross [name subsequently crossed off list-see Chron. 13b; still
employed]
S. W. Anderson [name subsequently crossed off list-see Chron. 13b; still
employed]
Shuford Smith [employment subsequently terminated on March 24, 1964-see
Chron. 26]
Raymond Jarvis [employment subsequently terminated on November 15-see
Chron. 18]
Winford Love [quit same day, November 6 or 7]
Freddie L. Lester [subsequently quit]
L. C. Woods [still employed]
Larry Surratt [still employed]
Kent Owens [employment subsequently terminated on March 24, 1964-see
Chron. 26]
Lloyd Robinson [already discharged on October 2-see Chron. 7]
Edwin Jesse Tolley [sic] [already discharged on October 2-see Chron. 7]
Louis Llanza [employment subsequently terminated on March 24, 1964-see
Chron. 26]
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13b. On a date indeterminate, but shortly after November 7, 1963, S. W. Ander-
son approached Carlton, asked him if he had a list from the Union, and said he
would like to remove his name. Carlton handed the (photostated) list to Anderson,
who crossed out his name and returned it.
At or about the same time, James Cross approached Carlton with the same mission
in mind. Like Anderson, he crossed his name off.
I find that Carlton, other than handing the list to the two upon request, did not
inspire, solicit, or otherwise play a part in Anderson's and Cross' actions, nor did he
engage in any interrogation in connection with the incident.15
13c. On or about November 12, 1963, Frances Kepley, rank-and-file employee and
wife of Kenneth Kepley,16 told Shuford Smith (see Chron. 11c and 13a) that she
heard that some of the union committee members had dropped out of the Union and
asked him if he had decided to do likewise. He told her he did not know, and she
left. A few minutes later he saw her speaking to Joe Bruff. In 10 minutes, Kenneth
Kepley approached him and asked him if he would go talk to "the man," otherwise
unidentified. When Smith insisted he would not talk to "the"man" unless he knew
his identity, Kepley said he was speaking of Personnel Manager Carlton. Thereupon,
Kepley took him to Carlton's office and asked him to sit down while he (Kepley)
went to look for Carlton. In a few minutes, Kepley returned with Carlton and then
left them 17
Carlton opened the conversation, "I understand you want to talk to me." Smith
answered, "No, sir, the way I understand it is you want to talk td me." Carlton's
rejoinder: "Well, just relax, and we will talk." Then he told Smith he was surprised
to see his name on the union committee list-he knew "all along" most of those
"mixed up with" the Union, but he had no idea that Smith was one of these. The
conversation was conducted at a low-tension level; Carlton gave no indication (other
than might be inferred from the words above reported) of animosity toward or dis-
pleasure with those whose names appeared on the list. Nor did he ask any questions
about any employees' union sympathies or desiresls
14. Meanwhile, a few days after the union list was given Respondent, employee
Raymond Jarvis was passing out union literature at one of Respondent's parking lots.
He had just disposed of his last pamphlet when Adams and Carlton came toward him
from the plant office. Adams told him that it was against company rules to give out
pamphlets or literature, a fact of which Jarvis said he had been unaware. Adams
asked if Jarvis had another pamphlet. Jarvis said he did not but that he would get
one; procuring one from a fellow employee who was' distributing 'them at another
location, he gave it to Adams. Adams looked at it briefly, said, "I've read the damn
thing," wadded it up, and threw it at Jarvis' feet. Then he and Carlton turned and
went back to the plantla
' 15. On or about November 12, 1963, Kenneth Troutman, then an employee in the
cabinet room, was getting glue from the glue barrel when Joe Bruff, his foreman, asked
15 Neither Anderson nor Cross testified. - '
16 The General Counsel does not attack any action of Frances Kepley as an unfair labor
practice by Respondent. .
17 The findings in this paragraph are based on the credited; testimony of Smith.
Kepley, called as a witness by Respondent, did not testify about this incident, and
Mrs. Kepley was called by no one. -
18 This finding is based on Smith's credited testimony, as against ^Carlton's version-
that Smith came to his office, said he would like to talk to Carlton about the list, and
gave assurances that, although his name was on it, he was in no way active in the
Union. Carlton (Irrelevantly) denied he had asked Smith why he signed the list, but
testified he did not recall saying he was surprised to see Smith's name there. I was
impressed by Smith's apparent candor and lack of interest in the outcome (Originally
an alleged discriminatee herein, his case was dropped by the General Counsel for per-
sonal reasons on Smith's part) Carlton, on the other hand, was a nervous witness , on
occasion, he "snapped back" at the questioner. As I see the incident in question, Smith
went to Carlton's office at the latter's direct invitation or his ratification of Kepley's
invitation, then indulged in the "fencing" above reported in the hope that Smith would
follow the lead of Anderson and Cross.
19 This finding is based on Jarvis' credited testimony, as substantially corroborated
by Adams. (I have omitted the remark, attributed by Jarvis to Carlton as the latter
departed, "We are against the Union." Without contextual explanation, my credulity is
strained to be asked to believe that a personnel manager spoke these words to one
distributing union literature. At best, I regard this as Jarvis' intorpretation of Carlton's
actions )
LEXINGTON CHAIR COMPANY 1335
him if Raymond Jarvis had been pressuring or bothering him about the Union . Trout-
man answered in the negative and he reaffirmed this upon Bruff 's asking him if he
was "sure." 20
16. On November 12, 1963, Respondent , through Adams, put out a third letter
to its employees . Commenting on a recent union handbill ("Several of our employ-
ees brought us copies ...... ) and stating that a list of union names had been given
Respondent, it expressed a desire to keep the employees informed:
We have told you the background of the Union , and its efforts to get you to
sign up and pay dues ... they 're trying to stir up any trouble they can . During
the past few weeks we had to discharge several employees . One of them walked
off his job without punching out; two others left their department without author-
ization and were seen smoking in a restricted area. We thought this was reason
to let them go and that is what we did . The Union has charged us with
"Unfair Labor Practices ...." We will fight this in any court , because we think
we were just in letting them go.
Now the Union has written us a letter giving the names of fourteen employ-
ees. . . We know perfectly well what they have in mind . The Union thinks
no matter what these employees do, we won't dare let them go.
Union or no Union , we expect every man to do his job, and we have the
right to discharge anyone who violates the plant rules ... nobody is going to get
more favorable treatment ... just because he joins the Union....
We have always heard that signing a Union card was confidential but now it
looks like the Union has no hestitation in telling anybody anything which they
think will get more Union dues.
17. There is no evidence that, on or about November 15 (according to the com-
plaint in Case No. 11-CA-2289), Joe Bruff informed employees that Respondent
would close the plant if the Union came in.
18. On November 15, 1963, Raymond Jarvis was discharged in violation , the com-
plaint in Case No. I1-CA-2289 alleges , of Section 8(a) (3). (The discharge will be
discussed later.)
19. There is no evidence that, on or about December 18, 1963 (according to the
complaint in Case No. 11-CA-2289 ), Joe Bruff interrogated employees concerning
the giving of evidence to Board representatives. On the other hand , Bruff credibly
testified , and I find, that several (unnamed ) employees told him they had been inter-
viewed by a Board agent and volunteered information as to what he had asked them.
20. There is no evidence that, during the month of December 1963 ( according to
the complaint in Case No. 11 -CA-2289 ), Ted Wallace , one of Respondent 's super-
visors, interrogated any employees about union activities , sympathies, or desires.
21 a. On the morning of February 19 , 1964 , as employee Kent Owens (on the union
committee list-see Chron . 13a) was punching in, Jack Fritts said he wanted to speak
to him . While they walked together to the shipping department , Fritts commented
that Owens was well liked and did his job well; that he wanted to see if he could not
get him ( Owens ) on "our side"; and that the few who were left in the Union had
been so loyal that he wanted them on our side-in short, he said he would like Owens
to "switch over ." Owens replied that he thought he would stay with the Union.
21b. On the same day, between 9:30 and 10 a.m., Fritts called Owens from the
boxcar in which he was working and invited him to join Fritts , Kenneth Kepley,
Shuford Smith , and Louis Llanza ( the latter two listed on the union committee-see
Chron . 13a) at lunch later that day. Owens accepted.
21c. At lunchtime , the five met in Owens' automobile. After some preliminary
conversation about the source of his ( antiunion ) literature , Fritts said he wanted to
form a committee to handle grievances , a committee composed of three or four from
each department ; that he thought they-Owens , Smith, and Llanza-would make
good representatives because they had "stuck to" the Union ; and that, if the commit-
tee "didn't work out" in 6 months , he and Kepley "would call in the Union and sign
up everybody in there." Concluding , Fritts said that "we know Adams will back
it." The three said they would give their answer on the following Monday.
Next day-a Thursday-Kepley asked Owens, Smith , and Llanza , as they were
eating their midday meal, if they had made up their minds yet . Their,answer was no.
21d. On the next day, Plant Superintendent Hughes Ward called Owens from the
job he was performing and took him around the corner behind the office. Their
20 This is based upon Troutman's credited testimony,
as opposed to Bruff's generalized
denial that he had ever questioned an employee about union activities.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation , as depicted in Owens' testimony ,21 is somewhat confused but (leaving
aside at this moment the legal effect ) I find it to have been substantially as follows:
Ward said he had heard that Owens had made a few remarks about him ; Owens con-
ceded that he had, including a criticism of the elimination of the smoking break in
the shipping department . In passing , he commented that Kepley had given him
permission to smoke. Ward asked if Kepley had made any ' "promises" to Owens,
Owens said he had not except to tell him to go ahead and smoke. Ward told Owens
to pay no attention to Kepley's orders about smoking; on the other hand, he said, he
could not be ' with the employees every minute , and if they could smoke without
being caught they should go ahead-in fact ( he continued ) he had told Willie Over-
cash ( a shipping employee whose supervisory status is in dispute here ) to take care
of his boys and to give them a "break " if they needed one. At this , Owens called
Ward's attention to the fact that Tollie and Robinson ( see Chron . 7 and infra) had
been discharged for smoking even though their foreman had given them permission
to do so. Said Ward, "I had to do that , what I did in the cabinet room. A thing like
that would close the entire plant down."
22a. At or about'the middle of March 1964, Kenneth Kepley, in the office of
Foreman Harry Hayes, gave employee Frank Rogers a handful of paper slips, each
bearing the statement that the signer opposed labor organizations and would exert
efforts to keep them out of the plant. Rogers was instructed to solicit signatures,
keeping out of Hayes' sight . Rogers procured about 30 signatures over a period of
2 days and returned the signed slips to Kepley.22
22b. So that the record will be clear , I here find that the antiunion campaign alluded
to in Chron. 11 was waged continuously at least from October 1963 until the opening
of this hearing ; that Kenneth Kepley and Jack Fritts were, at all times pertinent , active
on its behalf , assisted from time to time by James Helpler, Frank Rogers, and, per-
haps, others ; but that, unless specifically found herein, there is no evidence of par-
ticipation by any other named person.
23. On March 17, 1964, as he was punching out for the day, Kent Owens was
called over by Jack Fritts : Fritts said he wanted to give Owens one more chance to
get out of the Union; he was asking as a friend or he was going to have to start step-"
ping on Owens ' toes. "We can 't," he continued , "let you three boys hold us up like
you are doing . Every time the Company makes improvements the Union takes
credits for it. I have no choice, I don't want to do it, but I am going to have to make
it hard on you. . :. The Union put out a leaflet on Mr . Adams and it wasn't very
nice and Mr. Adams didn 't like it . We are going to have to fight fire with fire." Owens
said he was going to stay with the Union , that he had started and was going to finish
with it; and he added that he was "tired of being pushed around in the furniture fac-
tories and seeing other people pushed around-" 23 the Union was the only way he
knew how to stop it. -
24. There is no evidence that, on or about March 19, 1964 ( as alleged in the com-
plaint in Case 'No. 11-CA-2392), Joe Bruff promised employees economic benefits
if they ceased supporting the Union and threatened employees with physical harm if
they communicated with union representatives.
25: On Friday, March 20, 1964, during the lunch hour , employee Jerry Shaw was
soliciting the signature of a fellow employee on a union authorization card. Charles
Flemming, whose disputed supervisory status is discussed hereinbelow , came up be-
hind him, saying , "Shaw, I don 't want ' you to be telling these boys any lies ' about this
now." Shaw said that he was not-that he believed he was telling "what the best
thing . is." Flemming , smiling, said , "You know better than that," and walked off.24
21 Ward did not testify
22In so finding, I, credit Kepley and Hayes as against Rogers, who testified that Hayes
gave him the slips, telling him to get signatures but keep out of his sight and to return
them to a drawer iii Hayes ' desk ," with which instructions he (Rogers ) complied, and
that , shortly thereafter , Hayes and Kepley were seen studying the slips. I have pre-
viously commented on Rogers ' apparent reliability as a witness
28 Owens was referring ( he testified ) not only to the problems at this plant but to those
at others : he had left one employer because he had not received a promised raise , and
had been discharged by another because he had refused a transfer to a job he could not
perform because of the dust.
24 This finding is based on the undenied testimony of Shaw as corroborated in sub-
stantial detail by Kent Owens Shaw went further , adding that "later" Flemming and
two others whose supervisory status is at issue here stood talking about 15 feet away
from him , looking back at him all the time , but I omit this from my finding as too vague
to serve as the basis for deriving any meaning.
LEXINGTON CHAIR COMPANY 1337
26. On or about March 24, 1964, employees Kent Owens and Jerry Shaw were
laid off along with others, and the employment of Shuford Smith and Louis Llanza
was terminated. (All four actions were alleged to be violations of Section 8(a)(3)
herein, but, at the hearing, all references to Smith's and Llanza's terminations were
deleted.) Further details will be found infra.
27. During the first week in June 1964, a "new," undated set of rules and regula-_
tions was posted at Respondent's plant. The rules were the same as those described
in Chron. 1, as revised in the manner described in Chron. 3, with one additional revi-
sion: The old rule 21, subsequently renumbered 22, was changed from "[Employees
will be subject to disciplinary action for] Distributing or posting literature of any kind
in the plant" to ". . Distributing or posting literature of any kind in the plant on
company time." [Emphasis supplied.] r
C. The supervisory issues
On this record, it is clear, and I find, that John Adams, general manager; Hughes
Ward, plant superintendent; George Baity, assistant superintendent; Lloyd Carlton,
personnel manager and purchasing agent; Joe Snyder, machine room foreman; Gilmer
Crotts and Ted Wallace, foremen in the "rough end" section; Joe Bruff, cabinet room
foreman; Harry. Hayes, finishing foreman; and Grady Rhodes, packing and shipping
foreman; were and are supervisors of Respondent within the meaning of the Act.
There is, however, serious dispute as to the supervisory status of others. The General
Counsel has alleged, and Respondent has denied, that James Helpler, Kenneth Kepley,
Jack Fritts, Charles Flemming, Willie Overcash, and George Swicegood, at relevant
times, also were supervisors within the meaning of the Act.
James Helpler, at all material times, worked in the cabinet room.
Foreman Joe Bruff was in general charge of the cabinet room.- Under him were
three men-at this hearing sometimes referred to as bosses or foremen-Helpler, Max
McKinley, and June Worley; 25 each of these along with a crew of men 26 performed
a particular function. The task of Helpler 27 and the crew under his direction was to
maintain stocks of components for the different assembly operations, and it was their
job to see that necessary parts were gathered and ready for processing. In the course
of their work, they, and Helpler, physically lifted and moved materials.
The credible evidence establishes that, on occasion, Bruff transmitted orders through
Helpler; also, there were a number of spasmodic incidents in which Helpler granted
employees time off, presumably without checking with higher authority. On the
other hand, persons in the department seeking raises would go to Bruff rather than
to Helpler or the other "bosses."
On these facts, I conclude that the General Counsel has not established that Helpler
was a supervisor within the meaning of the Act. His authority, to the extent he has
exercised it, appears to be of a routine nature, not requiring the use of independent
judgment. -
Kenneth Kepley, at all material times, was classified as an inspector in the finishing
department.
The General Counsel's attack upon Kepley's alleged nonsupervisory status is cen-
tered not only upon the nature of the work he was performing but upon his own rela-
tive freedom from supervision.28 Harry Hayes, foreman of the department, spent
almost 100 percent of his time in the finishing room,- where 51 individuals were
employed. Kepley worked in the filler room, a separate enclosure where 20 employ-
ees sprayed unassembled pieces with a filler fluid and wiped them down. Kepley
checked the work done in this room, basically for defective spraying or wiping; when
necessary, he would have the sprayers/wipers take remedial action. Occasionally, he
spotted defects in workmanship not attributable to the filler room; in such cases, he
would mark the defects, for ultimate correction at the direction of Hayes, who would
check with Kepley every 30 or 40 minutes.
On the available evidence, I discern in Kepley none of the attributes of a super-
visor within the meaning of the Act. -
-For at least part of the period involved, Worley was not working regularly because
of a heart attack.
26 The record contains no figures as to the number of employees in each group.
There
were 60 to 65 in the department, excluding alleged supervisors. _
n Classified by Respondent as a stock clerk.
Also emphasized is the extent of working time Kepley spent away from his job, but
I do not regard this as the measure of one's supervisory status. (I have taken it into
consideration in connection with Respondent's alleged responsibility for Kepley's actions-
discussed infra.)
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jack Fritts, Charles Flemming, Willie Overcash , and George Swicegood , at all mate-
rial times , worked in the packing and shipping department , of which Grady Rhodes
was general foreman.
The problem here appears to arise out of the fact that Rhodes spent practically all
of his time "upstairs" in the packing room where chairs produced by Respondent
were wrapped either for shipment or storage , while Fritts, Flemming, Overcash, and
Swicegood were responsible for operations performed elsewhere . Indeed, rank-and-
file employees who worked with these four exhibited what I find to be a genuine
unawareness that Rhodes had been their foreman ; as far as they were concerned, he
was a "boss" who worked "upstairs" in packing and only visited their working areas
on rare occasions , such as during inspection tours by "the wheels."
Swicegood was classified by Respondent as a leadman in the subpacking room, lo-
cated "downstairs" on the shipping floor. With him "lining up the works," he and a
crew of 12 to 15 wrapped and boxed furniture in addition to making certain repairs
thereon. The same crew would move the packed goods to the warehouse.
It was credibly testified that , on at least one occasion , Swicegood granted an
employee time off without checking with higher authority ; on anotheroccasion, he
told his crew that, from then on , any of them who were absent would have to call in.
In my opinion , based on these facts, the performance of Swicegood 's job did not
call for the exercise of authority requiring the use of independent judgment; he was
not a supervisor within the meaning of the Act.
The other three-Fritts , Flemming , and Overcash-each had a desk in the shipping
office.
Flemming spent his time making up bills of lading . The bills he prepared may
have initiated action by one or another group in shipping-he had no crew of his
own-but they did not constitute the exercise of authority requiring the use of inde-
pendent judgment . I find that Flemming was not a supervisor within the meaning
of the Act.
Respondent 's personnel manager labels Willie Overcash , at pertinent times, a ship-
ping clerk . He and a crew of 8 or 10 loaded trucks and boxcars for shipments out.
His own physical participation in the loading process was minimal , if there was any;
in essence , he checked the goods being loaded. When , as it happened , he was away
from the loading operation at his office (desk ), he would designate someone to do
the checking in his stead.
On one occasion , insofar as is revealed by this record , Overcash called his crew
together and told them they would be working extra hours for an indefinite period.
On another, he was the one who informed two employees they were being laid off;
in so doing , however, he made it clear that it was not his doing but higher
management's.
In my opinion , the proffered evidence falls far short of demonstrating that Over-
cash was a supervisor within the meaning of the Act, and I so find.
According to Respondent 's personnel manager , Jack Fritts, at all times material,
was classified on the payroll as a stock clerk in the warehouse . Fritts calls himself
an inventory clerk; he regards his job as having been a part neither of packing nor
shipping ("just strictly inventory [of] the goods placed in the warehouse and those
goods going out for sale to customers"), but, it is clear , and I find, that his work fell
within the jurisdiction of the packing and shipping department and under the general
supervision of its foreman , Grady Rhodes.
Fritts spent a substantial part of his time on record -maintenance and another sub-
stantial portion checking stock in one or another of the warehouses 29 In the course
of his work he had official access to any part of the plant looking for shortages. To
the extent that the physical handling of goods was involved-stacking and pulling
merchandise in the warehouse (s)-this was done by a crew of 8 to 12 30 pushing
small handtrucks , under Fritts' direction . He regularly instructed this crew where
to place goods 31
In response to rather vague testimony that he would grant time off to men in his
crew, Fritts testified, and I find , that any such act on his part was confined to his
letting off a man for a few minutes when he could be spared or could be replaced by
At present , Respondent uses four warehouses , three on and one off the premises
Until recently , it had 12 warehouses in and about the area.
80 Normally, 12 after the installation of a conveyor belt in the spring of 1964 ; prior
thereto, 8.
3 11 do not credit his testimony that the placement was determined "by mutual
agreement."
LEXINGTON. CHAIR COMPANY 1339
Fritts himself. On the other hand, on his own testimony, if any of his crew would
have refused to follow one of his orders-this has never happened-he would have
reported this to Rhodes, saying he "would like to get rid of" the person. Moreover,
Rhodes would take Fritts' word as to who put in working time not recorded on a
timecard; in fact, on occasion-for example, see section III, H, infra-he himself has
"corrected" employees' timecards. Finally, because his was the only plant telephone
open in the early morning, he would receive calls concerning those who were not
reporting for work that day.
On at least one occasion (in July 1963) Fritts was introduced to a new employee
by Plant Superintendent Ward as that employee's "boss." But this is not dispositive
of the question to be decided here-was he a supervisor within themeaning of the
Act?
The case of Jack Fritts is a much closer one than that of the others whose super-
visory status is in question. But, on balance, I find that Fritts plays no real part -in
initiating or implementing personnel actions, nor is the authority he exercises over
his crew of more than a clerical or routine nature. The General Counsel has not
demonstrated by the preponderance of the credible evidence that Jack Fritts is a
supervisor within the meaning of the Act.
-D. Respondent's responsibility for nonsupervisor's conduct
The General Counsel, in these complaints, alleged that Helpler, Fritts, Flemming,
Overcash, and Swicegood, in addition to being supervisors of Respondent, were its
agents as well. In further explication, the General Counsel took the position at the
hearing and in his brief that, even if these individuals were not supervisors, the anti-
union conduct of one or more of them in the events leading up to this case was
attributable to Respondent under ordinary principles of agency. Respondent denied
in its answers to the complaints and denied at the hearing that the persons in question
acted as its agents with respect to any pertinent acts.
The General Counsel's support, such as it is, comes from a number of factors:
(1) The "encouragement" found in the last paragraph 32 of Respondent's letter of
October 15, 1963 (see Chron. 9), and the "approval" implicit in the third paragraph 33
of its letter of October 28 (Chron. 12).
(2) The "study" by admitted Supervisors Ward and Bruff of what appeared to be
antiunion material being circulated by Helpler (Chron. 11c).
(3) Kepley's role in summoning Shuford Smith, active unionist, to the office of
the personnel manager for a talk with the personnel manager (Chron. 13c).
(4) Kepley's statement to union activists that "we know [General Manger] Adams
will back- [an independent grievance committee]" (Chron. 21c).
(5) Respondent's "tolerance" of Kepley's taking time off to promote his antiunion
objectives 34
The General Counsel cites a number of cases 35 in support of his position, each of
which cases I find distinguishable from the instant situation in at least one respect:
In the cases cited, the employers, by one method or another, took affirmative steps
to convey to employees that the nonsupervisors in question were speaking for man-
agement; here, Respondent did not. Giving full consideration to the "encourage-
ment" and "approval" of their acts found in management's letters to employees, and
to Kepley's role in summoning an employee to the personnel manager for a talk about
as The pertinent matter reads as follows:
It's all up to you . . . . You have just as much right to talk to your friends
about how you feel as the Union people do, and you have just as much right to discuss
these matters openly, at the plant and other places, as the Union organizers.
as The pertinent matter reads as follows:.
We have seen the pamphlet recently put out by a group of employees. They laid
it on the line, quoted facts, and we are glad that they have taken an active part in
this campaign . . . .
34 Kepley spent a great deal of time in this activity, no inconsiderable part being
company time He conceded, in his testimony, that he did use company time as well
as his own'but made every attempt to conceal the fact from his supervisor, Harry Hayes.
On at least one occasion he was warned by Hayes about leaving the job
International Association of Machinists, Tool and Die Makers Lodge No 35 (Serrick
Corp) v. N.L.R B., 311 U S. 72 ; Macon Textiles, Inc , 80 NLRB 1525 ; Union Twist
Drill Co., 88 NLRB 1361.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions; 36 to the animus toward the Union hereinbelow found on the part of Respond-
ent; and to the striking parallels between the acts of some of these nonsupervisory
employees and the objectives of Respondent as displayed through undisputed super-
visors' conduct found herein-in short, looking at the entire picture painted by the
evidence, I find that Helpler, Kepley, Fritts, Flemming, Overcash, and Swicegood, to
the extent they performed acts relating to the Union's organizing campaign, were not
doing so under authority, either actual or apparent, conferred upon them by Respond-
ent, whether in advance or by subsequent ratification. I do not, therefore, hold
Respondent responsible for such acts.
E. The Company's awareness of union activity and its reaction
As above found, Respondent was aware of the imminence of a union campaign
several months before it commenced, and its general manager began giving employ-
ees arguments against unionization a month before the Union came on the scene
(see Chron. 2).
The campaign began in June. Although Respondent's general manager testified
that he first heard of the campaign in October,37 I find that Respondent was aware of
the Union's activities at least as early as mid-September. At that time, company
officials, with little or no attempt at concealment, took special note of Maston Turner
(Chron. 5); with no other explanation, I find that they can only have been alluding
to his union proclivities. In his October 18 letter to employees, General Manager
Adams, pointing out that "many of you have come forward to tell us about union
threats and promises" [emphasis supplied], expressed an awareness that union orga-
nizers were making the rounds, stopping employees on the streets, and coming to their
houses (Chron. 9). As the General Counsel points out, Respondent itself boasted
that almost every day employees reported to management that union agents had
visited their homes. "In many plants, the Union organizers sign up a lot of employ-
ees before the management knows anything about it. This usually happens simply
because even the folks who don't want to sign Union cards keep their mouths shut
and say nothing. Maybe we have a difficult kind of folks at Lexington Chair. Maybe
they feel a little close to their company." 38 Finally, we have Personnel' Manager
Carlton's own word for it, expressed on November 12, that he knew "all along" most
of those "mixed up with" the Union (Chron. 13c).
There is no necessity to dwell at length on management's reaction. Even before
the Union's campaign began, Respondent adopted an antiunion line (see Cliron. 2);
afterward, it clearly displayed its aversion to the Union and its hope that the union
campaign be unsuccessful (Chron. 9, 12, 14, and 16). At the hearing, its general
manager, explained what he meant when he used the expression "when trouble starts
in one small spot" in one of his letters to the employees, said, "Small spots could be
one apple in a barrel-and it could be a cancer." Aside from unfair labor practices,
if any, which may have been committed, I find that Respondent, through its agents,
assumed a position in active opposition to the organization of its plant by the Union.
F. Independent interferences, restraint, or coercion
I have found that, on and after March 31, 1963,39 Respondent promulgated and
maintained a rule against its employees', distributing or posting literature of any kind
"I draw no inference unfavorable to Respondent by virtue of testimony that Bruff
and Ward were seen looking at what appeared to be an antiunion petition (because of
vagueness) ; or Kepley's statement that management was behind his urgings (because
this was a statement of agency made by the purported agent) ; or Respondent's alleged
tolerance of Kepley's taking time off to campaign against the Union (because I am' not
convinced they were aware of the fact).
37 Called by the General Counsel pursuant to rule 43(b) of the Federal Rules of Civil
Procedure, he first said he did not remember the date.. Then a question was put to him
by Respondent's counsel on cross-examination-"Was [your hearing about. the union
campaign] In June or July or August or not up until the fall9" Although an objection
to the question on the ground of "leadingness" was sustained and the question refrained,
the damage was already done. I accordingly accord the answer little probative value.
38'Since the references in the letter quoted could only have been to nonsupervisory
employees visited by union representatives, I do not credit General Manager Adams'
testimony that his only sources of information were supervisors.
'*That Is, beginning at least 6 months prior to the filing of the original charge in
Case No 11-CA-2289 The commencement date alleged in the complaint is Octo-
ber 9, 1963.
LEXINGTON CHAIR COMPANY 1341
in the plant ( Chron. 1 and 3 ). The rule was broad enough to include union literature
and it was not confined to working time.40 I have found further that the rule was
cited , early in November 1963, to an employee circulating union literature on
Respondent 's parking lot (Chron. 14).
I have found (see Chron . 3) that , on and after a date early in June 1963, Respond-
ent promulgated and maintained a rule against employees ' criticizing company rules
and policies so as to cause confusion and resentment between employees and man-
agement . Coming as it did upon the heels of the opening of an antiunion campaign
by Respondent , I find that it was designed to combat the anticipated expression of
union sympathies (and consequent criticism of company working conditions) by
employees 41
I have found that on or about November 12, 1963 , Personnel Manager Lloyd Carl-
ton told an employee he.was surprised to find that employee 's name on the Union's
list of committee members although he knew "all along" the names of most of the
Union 's adherents ( Chron. 13c). In the context in which the conversation occurred,
I find that Carlton was seeking to have that employee follow the lead of two others
who had withdrawn their names from the union list42
I have found that , on or about November 12, 1963, Joe Bruff asked an employee
if another had been pressuring or bothering him about the Union ; and, upon receiv-
ing a negative answer, pressed the point by asking if the employee was sure of his
answer ( Chron. 15).
In the light of the timing of these actions and the context within which they
occurred , giving full consideration to Respondent 's union animus, I find that the
above conduct constituted instances of independent interference with , and restraint
and coercion of, employees in the exercise of their self-organizational rights.
I do not find other conduct to constitute interference , restraint , or coercion by
Respondent:
(1) Any acts of Kenneth Kepley, Jack ' Fritts, James Helpler, or Charles
Flemming.43
(2) Certain alleged acts of Foreman Joe Bruff-interrogation and a threat on
September 25, 1963; a threat on October 14; circulating and requesting employees to
sign an, antiunion petition on October 24; a threat on November 15; interrogation of
employees as to the giving of evidence to a Board agent on December 18; and prom-
ises and threats on March 19, 1964.
( 3) Alleged interrogation by Foreman Ted Wallace in December 1963.
(4) A request to sign and to circulate an antiunion petition , allegedly made by
Foreman Harry Hayes on March 20, 1964.
G. The terminations of Robinson and Tollie -
Lloyd Robinson and Edwin Tollie were hired by Respondent in January 1963 and
on or about February 1, 1963 , respectively . Neither, during his period of employ-
ment with Respondent , had received any complaints about his work; Robinson had
received a wage increase several months after his hire and Tollie received one in
early September.
On October 2, 1963 , both were working in the cabinet room under Foreman Joe
Bruff. Shortly before their normal quitting time, 3:45 p .m., along with a number
of others in the department,44 they were , asked if they would, put in some overtime
that day; they agreed.
The 3:45 horn sounded . As usual-and this aspect is discussed in detail infra-
they walked off the working floor for a soft drink and a cigarette , with Robinson
slightly in the lead. Bruce Brookshire was 6 to 10 feet behind them.
Robinson had procured a Coca-Cola from the vending machine and had started
to move toward the stairs leading down to , the plant exit and Tollie was at the
su I have noted ( Chron 27 ) that the rule was revised during the first week in June 1964
to restrict its,application to company time.
41 Thus, I do not reject Personnel Manager , Carlton's explanation that he"learned of
the rule at a personnel seminar he attended ; but, in the absence of any other cogent
explanation of its purpose-and he gave none-I do reject his testimony that the new
rule had nothing to do with the subject matter of Adams' recent speeches
42 The pertinent allegation in the complaint was that this constituted interrogation by
Carlton. I find that it did not. But the act of solicitation found above was fully litigated.
11 There were no allegations of unlawful conduct by Willie Overcash or George
Swicegood.
" James Helpler , Howard Bates , and Bruce Brookshire.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine itself , when they became aware that James Helpler45 had caught up to
Brookshire and was talking to him . Tollie heard him tell Brookshire to go back to
work-that he could take a smoke break later.
Brookshire went back with Helpler , and Robinson and Tollie proceeded down the
stairs and out the plant door at street level. They sat against the fence near the
corner of the plant flush on the sidewalk and lit cigarettes . They were halfway
through when Robinson noticed that Plant Superintendent Hughes Ward had come to
the plant exit 25 to 30 feet away and was looking at them. He told this to Tollie,
adding, "I smell a frame."
After about a minute Ward , having said nothing, disappeared into the doorway.
The two finished their cigarettes , by which time Tollie came to agreement with Robin-
son that they might be the subjects of a frameup . They decided to go in and punch
out, in the hope that , so doing, they might avoid what they considered to be ahead
of them-discharges.
The two went upstairs to the timeclock at the top of the stairs . Before punching
their cards , they informed Helpler, who was close by, of their intention . He asked
whether Ward had seen them smoking, and they said he had . He then told them to
go back to their jobs and go to work-"You fellows who work overtime need a smoke
after 8 hours." •
As the two started toward their workplace they noticed Ward waiting for the
elevator. Just then Joe Bruff called them over from across the main aisle of the
room . With what was described as a grin on his face, he told them that Ward had
caught them smoking away from the job and had fired them. When Tollie asked
how it was that they were being discharged for doing something he (Bruff ) had told
them they could do, he said that he couldn't help it-he was in the middle-he had to
do what Ward directed.
Bruff pulled their timecards and the three went to the waiting room of the person-
nel office. (Ward was entering the personnel office as they arrived. ) They waited
for the clerk there to prepare their paychecks , during which time Ward came out of
the office and left. (As he passed-wearing a smile-Tollie , muttering, aimed an
obscenity at him , but Ward showed no sign of having heard it.) The two were given
their paychecks and layoff slips bearing the notation , "Smoking on the job." 46
That evening , Tollie visited Bruff's home. Again he expressed his surprise at losing
his job over something for which Bruff had given permission . Bruff said the dis-
charge was Ward's responsibility. He then suggested that perhaps the smoking inci-
dent was being used as an excuse to get rid of Tollie and Robinson-had they been
doing anything at the plant of which Bruff was unaware9 Tollie answered "in the
negative . When he said he had a family and needed the job, Bruff suggested he go
to the plant in the morning and talk to Ward-if he'd "tell him everything " he might
get his job back . Tollie asked what he meant ; the answer , "You know better than
that ." Tollie said he might ask for a "hearing ," to which Bruff said he wished Tollie
would not do that-"I'd have to lie for the Company." 47
'6 Helpler's disputed supervisory status has been discussed.
de The above account of the discharges Is based upon the credited testimony of'Robin-
son and Tollie , uncontradicted in relevant detail.
*7 The findings in this paragraph are based on Tollie's credited testimony.. Bruff's
version deviates in a number of respects : he did not advise Tollie to see Ward next day,
but he did say, If anything were to be done, it would have to be done by Ward , since he
(Bruit ) was "in the middle" ; he did not say he would lie for Respondent-explaining
(at this hearing ) that he did not have to lie for Respondent , since the two had been
caught smoking . Tollie made a favorable Impression as a witness , while Bruff did not.
He was evasive and he testified with a chip on his shoulder . The transcript does not
accurately reflect an interchange taking place at the hearing, which error I hereby
correct. Page 545, from line 13 to line 22, inclusive , should read as follows:
.
Q. (By Mr . WILLIAMSON .) All right, sir. Now do you have any expla
t
nation as to
why Mr . Jarvis' work was so bad? _
A. (By Mr. BRUirw.) Yes, sir, he had his mind on too many other things and not
his job.
Q. Was that the union?
A. On that particular job you cannot talk. I don ' t know what he had on his mind
Q. Can you tell what I have got on my mind? _
A. Yes, sir.
Q. You can ' I can ' t tell what is on your mind.
A. [Sotto voce ] If you could, you'd be running.
This explains the reprimand I issued at page 546.
LEXINGTON CHAIR COMPANY 1343
Next morning Robinson and Tollie went to the plant . After a short wait, Wardreceived them in his office. Tollie once again asked why they could be discharged
for doing something for, which Bruff had given them permission . Ward said that
Bruff had no authority to give such permission and that he, Ward , had the right todischarge a man for smoking . By now, Personnel Manager Carlton joined the trio
and, in his presence , Robinson posed the hypothetical question-was it not permissible
for an employee to smoke if his immediate supervisor had said it was all right.
Neither Ward nor Carlton answered . Tollie said he was going to try to get a "hear-
ing" on his discharge ; he said they could produce witnesses that permission had been
given . Ward's reaction : "Damn the hearing and damn the witnesses ! I can get six
for every one you get." 48
The General Counsel contends that the .reason for their discharge was Robinson's
and Tollie's union activities (about which , see infra ). - Respondent , on the other
hand , states that they were discharged for being away from the job, smoking-not for
smoking as such, nor for creating a fire hazard , but specifically for being away from
their work without permission , on paid ( time-and -a-half) time.
I have indicated that Robinson and Tollie suspected that the situation leading to
their discharge was a "rigged " one. Their reasons: ( 1) they had been active -in the
Union ; (2) an (unnamed ) employee discharged earlier that day warned them that
they would be next ; ( 3) inexplicably , Brookshire had been prevented from going out
to smoke with them ; and (4 ) Ward suddenly appeared in the doorway as they smoked.
In contrast .with dhe information available to them at the time , I have the benefit,
not only of hindsight, but of additional information brought out by the testimony.
On the basis of this hindsight and the circumstances revealed by the credited testimony,
I find that the reason for discharges assigned by Respondent lacks plausibility, to say
the least.
It is clear, and I find , that , when employees of the cabinet room were asked to
work overtime, they habitually took a smoke -and-Coke break at the end of the reg-
ular shift before commencing their overtime work . Bruff had , on more than one
occasion ,49 signified his assent to the custom ; at any rate, in view of the frequency of
its occurrence , he could not but have been aware of it . (Among those who engaged
in the practice was James Helpler , the employee through whom Bruff often trans-
mitted orders .) And, since it was not an activity engaged in surreptitiously , others
were aware of it . Those who smoked were in plain view of all who cared to look;
employees departing at the end of the regular shift , according to credited testimony,
knew of the practice . I find on these facts , that it was no secret from higher manage-
ment officials 50
I find that, prior to October 2, 1963 , there had been no discharges for this offense 51
Available records indicate that there had been earlier discharges for unauthorized
absences from workplaces and for smoking on the job , but Tollie 's and Robinson's con-
duct did not fit either description . Indeed , I perceive no serious argument by Respond-
ent that there would have been any discharges if (as I have found ) Tollie and
Robinson were doing what they were doing with the permission of their supervisor
and knowledge of management:
But this case goes further than deviation from normal practices . Thus, just before
the horn sounded on October 2, Assistant Superintendent George Baity told Bruff he
wanted Brookshire and Howard Bates to come back to work with him. Bruff trans-
mitted the order to Helpler , who intercepted Bates going for a smoke in one direction
and Brookshire going in another ; in both cases Helpler told them to work now, smoke
later . Minutes later, Ward appeared at the plant doorway to witness Robinson and
-The findings in this paragraph are based on the credited testimony of Robinson
and Tollie , who differed only as to , minor detail . Ward did not testify and Carlton
made no reference to the conversation:
49I do not credit his denials in the face of the testimony of the number of credible
witnesses on the point . In response to.questions at this hearing , he said he did not know
whether his job would be jeopardized if management learned he had permitted men to go
out and smoke when he had no authority to do so; this may serve to explain why he
testified as he did, but it does not bolster his credibility.
eo Personnel Manager Carlton conceded that it had been reported to him that "certain
people were given permission to do , certain things " He testified that, if permission to
take the smoke break had been given , it came as a suprise "to some extent."
sz The practice-of taking the smoke break between regular and overtime work-
ceased after Tollie and Robinson were discharged . At least one person has been dis-
charged thereafter for "smoking outside without permission."
775-692-65-vol. 150-86
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tollie smoking ; from there , he went up to the cabinet room and told Bruff to discharge
the two. On this timing , I am convinced that Ward and Baity , knowing of the smoke
custom, set up a situation which would find Robinson and Tollie, and only Robinson
, and Tollie, vulnerable to a charge of being away from the job.
In short , I find that the assigned reason for the discharges was not the real one.52
Robinson and Tollie had been active on behalf of the Union since early in its
campaign . In mid-June , upon Robinson 's expression of interest , a union organizer
.had visited his house ; starting then , Robinson procured the signatures , on bargaining-
authorization cards, of seven or eight employees in the cabinet room. Tollie, having
signed and mailed an authorization card to the Union in mid -June, signed another
card ( for Robinson ) 3 days later; thereafter, he spoke to fellow employees about join-
ing the Union-at their homes and in Respondent 's parking lots-and he procured
the signed union authorizations of three cabinet room employees . _ ,. _•
I am convinced , and find, that Respondent kriew.'of these activities . As earlier
indicated , Respondent made no secret of the fact that employees regularly reported
on attempts made to solicit their support of the Union . I find that Robinson's and
Tollie's activities were brought to the attention of management 53
Upon the entire record and on the basis of what 1 am convinced is a fair prepon-
derance of the credible evidence ( giving full consideration to the other unfair labor
practices here found , Respondent 's animus toward the Union , the implausibility of
the reason assigned for Robinson's and Tollie's discharges , their union activities and
Respondent 's knowledge thereof, and the timing of the discharges relative to the sur-
rounding circumstances ), I conclude and find that Respondent 's underlying reason
for discharging Lloyd Robinson and Edwin Tollie was their interest in and activities
on behalf of the Union ; and that, by such discharges , Respondent not only interfered
with, restrained , and coerced employees in the exercise of rights guaranteed them in
Section 7 of the Act, but also discouraged membership in a. union in violation of
Section 8 (a)(1) and (3) of theAct54
H. The termination of Turner
Maston Turner was hired by Respondent on July 8, 1963, for work in the packing
and shipping department. He was discharged on October 23 or 24, allegedly because
of his membership in or activities on behalf of the Union.
On or about September 1 he became aware of the Union's organizing campaign
when he was given an authorization card. A union organizer (not an employee of
Respondent) made contact with him, and, on five or six evenings per week during the
next month or so, he accompanied the organizer on rounds of employees' homes in
an effort to persuade them to sign union cards. In September he visited 20 to 30
homes. During the 3 weeks following the discharge of Edwin Tollie on October 2
(supra), he visited another 20 or 30 homes in Tollie's company.
Meanwhile, in mid-September (see Chron. 5), he was involved in an incident
which-as I have earlier found-displayed an awareness by Respondent of his union
activities.
Shortly after 7 a.m. on Tuesday, October 22, Plant Superintendent Ward took
Turner and Harold Myers, a fellow employee in shipping, to the so-called rough-end
section of the machine room.55 There, Ward turned them over to, Ted Wallace,
6a In so finding, I place no reliance on the General Counsel's contention that no over-
time work was necessary on the day in question. ' The evidence presented in support
thereof was unconvincing.
53 Knowledge of union activity may and often of necessity must be based upon-reason-
able inference drawn from circumstantial evidence. See, e g , N L.R B v Link-Belt
Company, 311 U.S. 584, 602; N L.R.B. v. Radcliffe, et al., d/b/a Homedale Tractor
& Equipment Company, 211 F. 2d 309, 315 (C A. 9) Also see F W. iWoolworth Com-
pany v. N.L.R.B., 121 F. 2d 658, 660 (C A. 2)-; Hickory Chair Manufacturing Company
v. N.L.R.B., 131 F. 2d 849, 850 (C.A 4) ; Angwell Curtain Company, Inc. v. N.L.R.B.,
192 F. 2d 899, 903 (C A! 7)
cs To a certain extent, I am fortified in arriving at this conclusion by the statement
of Plant Superintendent Ward, made 41/ months later in response to a suggestion that
Robinson and Tollie had been discharged for smoking although their foreman had given
them permission to do so; "I had to do that, what I did in the cabinet room A thing
like that would close the entire plant down" (see -Chron. 21d).
es I find, on the basis of credible evidence, that, in part because of, the installation
of machinery, there was a temporary need for help in rough-end. , -
LEXINGTON -CHAIR COMPANY 1345
remarking, in effect, "Here are two men. Put them to work." Also present was one
Gilmer Crotts.56
Since the supervisory situation in the-rough-end room at the time in question is a,
critical factor in a consideration of Turner's termination, it will be considered at
this time.
Ted Wallace, a supervisor and agent•of Respondent at all relevant times, was, on
Tuesday, October. 22, 1963, working. in the rough-end room; there also was Gilmer
Crotts (likewise a supervisor for and agent of Respondent at all relevant times).
Once again in the employ of- Respondent after a 5- or 6-year absence, Crotts had
reported on the previous day, Monday, the 21st. It was Respondent's plan that Crotts
should become foreman of the day shift in mill-end and that Wallace, day-shift fore-
man up to then, would work with Crotts until he "got him straight" and then become
foreman on the night shift. Wallace eventually made the change-the date does not
appear in this record-but during the workweek from October 21 through 25 he was
still on the day shift. During the first several days Crotts was present, Wallace, mak-
ing the rounds, introduced rough-end employees to him 57 and generally acquainted
them with the plan to shift foremen. During the workweek in question, I find both
men supervised the operations of rough-end.
As I have said, Turner and Myers were "turned over to"- Wallace on Tuesday,
October 22. No introductions were necessary-Turner and Wallace were old friends-
and both Turner and Myers knew Wallace as rough-end foreman. Crotts was not
introduced to them, either then or later.58 During the next 2 days, during which they
worked in rough-end, I find that they became aware of the presence of Gilmer Crotts
and, in view of the work-he was doing-walking around and giving directions, that
he was a "boss." But, I further find, they were not told and were not aware of the
plan to supplant Wallace with Crotts;'I find this understandable, since they were con-
sidered and they considered themselves there only temporarily.
On the morning of Tuesday, the 22d, Wallace (not Crotts) assigned Turner and
Myers to a ripsaw, the former feeding and the latter tailing; during that and the next
day, Wallace (not Crotts) gave his friend Turner help when it was needed. In Wal-
lace's words, taken from his testimony, ". . . [W]e was low on help and had borrowed
these fellows to come over here from another department to work for me . . . . I
needed [help] bad .. . . They were to remain with me until they hired some men
for me." [Emphasis supplied.]
On that first day (Tuesday), Turner and Myers left the workfloor at 3:45 p.m., the
end of 8 hours. Although about two-thirds of the rough-end men worked an extra
hour, the two had not been told that they were to work overtime. They went to their
own timeclock 59 but, finding it locked,60 they went home. -
Next morning (Tuesday, October 23) Turner and Myers punched in at the shipping
room clock. They explained to Jack Fritts, their regular leader,91 why they had not
punched out the night before, and they asked where they were, to work today. Fritts
said he would "fix up" their cards 62 and told them again to report to rough-end.
The two reported at rough-end and, again, Wallace (not Crotts) sent them to the
saw they had worked the day before.63 They had not been working long when they
heard (from fellow employees) that the room would work 9 hours that day. Since it
had been arranged. between them that Turner was going to look for a stove that late
afternoon and Myers was going to drive Turner in his car, Turner, during the morn-
ing; asked Wallace for permission.for them to leave at 3:45. Wallace-somewhat
" So runs the testimony of Turner and Myers. Crotts-whose status will be discussed
shortly-testified that, with Wallace alongside him, the men were introduced and turned
over to him Wallace; a witness for Respondent, testified that Ward told him to put
them to work. I believe Turner, Myers, and Wallace, particularly in view of my find-
ings-infra-as to the supervisory situation then extant.
37 He already knew most of them from his prior period of employment with Respondent.
63 Thus, although I credit Wallace's and Crotts' generalized testimony that the latter
was introduced to personnel in the room, I also credit Turner's and Myers' denials that
they were introduced.
' Shipping room employees used a different timeclock from those in rough-end.
w Respondent's timeclocks are kept locked except for a few minutes before and after
punching time. On this day, the shipping room employees were working an extra hour.
8- Hereinbefore found not to be a supervisor.
63 This was a normal procedure when timecards' needed correction. Normally, a fore-
man did the correcting but, on occasions, Fritts has performed the task.
,-:031n the absence•^of contradiction, I credit Crotts' testimony that, during that morn-
ing, he told Turner and Myers they should have punched their cards the night before.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cryptically-said they could go as far as he was concerned.64 Later that day, perhaps
because Wallace's earlier answer had been disturbingly uncertain, Turner, in Myers'
presence, repeated his request of the morning. This time, Wallace told them to go
ahead.65
According to Crotts, Myers (but not Turner) did ask him for permission to leave
early,(i.e., at the close of the regular shift) that afternoon-a request which, he testi-
fied, he granted. Myers denied having made any such request of Crotts; even at this
time, he testified, he was unaware that Crotts was his boss and, moreover, the desired
permission had already been granted by Wallace. I credit Myers, who appeared the
more disinterested in the outcome, and I find that no such request was made of Crotts.
At any rate, at 3:45 p.m. Turner and Myers left the floor. Once again they found
their timeclock locked, and they left the plant.66
A few minutes later, "someone" from the shipping room told Crotts that the two
had left without punching out. He thereupon pulled Turner's card from the timeclock
and took it to Plant Superintendent Ward; between them, either that evening or next
day, they decided to discharge him, assigning the reason that he had walked off the
job without permission and had failed to punch out.
On Thursday morning, the 24th, Turner was ill. His wife called the plant and told
Jack Fritts he would not be in.
Myers did report for work and (having again had his previous evening's timecard
corrected by Fritts) went to rough-end once more. Crotts "chewed him out" for
leaving early the night before without asking him,67 and Myers claimed that Wallace
had given permission. (When Wallace denied this, Myers reminded him he had twice
given the permission.) 68 Then he was assigned to a saw, with a new "feeder." 69
Turner was still sick on Friday, October 25, and he visited a doctor. On the same
day-which was payday-he stopped at the plant for his paycheck. Instead of receiv-
ing one check, he was given two, covering his last day worked; from this, he correctly
concluded that he had been discharged. On Monday, the 28th, he went to the plant
and asked Ward for a discharge slip. After a short discussion of Respondent's obliga-
tion to give such a slip-in the course of which Turner charged that he had been fired
because of his union activities and Ward exclaimed, "Damn the damned Union!"-
Ward explained to Turner that he had been laid off for leaving the job without
authority and without punching out. Turner protested that Wallace had given him
permission to leave and that the timeclock was locked when he left, upon which Ward
summoned Wallace to the office. When he arrived, Ward asked him to say what he
had told Turner on Wednesday; and Wallace said he had told Turner three or four
times 70 that only Crotts could let him off and that Turner had said, To hell with
Crotts." This ended the interview.71
64 Based on Turner's and Myers' credited testimony. Wallace said he received no such
request that morning. I credit Turner and Myers, basically because their version better
comports with the happenings of these 2 days.
°6 Wallace, conceding that this request was made, testified that his answer was that
he was not their foreman and that the request should be addressed to Crotts ; and he
testified further that Turner's expressed reaction was "To hell with [Crotts]." In
view of the fact that, as I have found, Wallace was a supervisor at the time, and in
view of his relationship over the past 2 days with the two, I find this version difficult
to believe; moreover, if indeed Wallace gave the answer he said he gave, the reaction
attributed to Turner, who after all had good cause for the permission he sought, sur-
passes understanding.
88 That evening they went to see about a stove.
87 Note the inconsistency between this fact and Crotts' claim that Myers had asked
him for permission and that he gave it-supra.
81 Based on Myers' credited testimony. Asked on the witness stand whether this
occurred, Wallace said it did not-"not as I know of."
°B After 35 to 45 minutes, because he was disgusted with the speed with which the
work was being fed him, Myers left the floor and told Fritts he was quitting. His
termination is not attacked as unlawful by the General Counsel.
70 Contrast that with his prior insistence that Turner asked him for permission to leave
once, not twice.
71 In the face of Turner's denial, I do not credit Wallace's further testimony that
Turner admitted to Ward what Wallace said. Wallace was vague on details of the
incident' ("Well, it could have been something else, it has been a long time ago, I don't
know just how it came up . . ."). Ward was not called as a witness, and Personnel
Manager Carlton, who Wallace believed was present, did not refer to this conversation
in his testimony.
LEXINGTON CHAIR COMPANY 1347
I have found that Wallace, during Turner's and Myers' short period of assignment
in rough-end, acted as if he was and was considered by them to be their supervisor;
that he gave them permission to leave at 3:45 on Wednesday, October 23; and that,
in reliance thereon, they did leave at that time. Assuming, without finding, that
Crotts was in fact the "top" supervisor in rough-end at the time, the question finally
boils down to whether Turner's leaving, in reliance on Wallace's permission, was the
real reason for his discharge.72 I cannot believe that, on these circumstances alone,
Respondent would have discharged Turner. Significantly, they did not discharge
Myers. I find the assigned reason to have been a pretext for something else.
Upon the entire record, and on the basis of what I am convinced is a fair pre-
ponderance of the credible evidence (giving full consideration to the other unfair
labor practices here found, Respondent's animus toward the Union, the pretextual
nature of the reason assigned for Turner's discharge, his union activities 73 and
Respondent's knowledge thereof, and the timing of the discharge relative to the sur-
rounding circumstances), I conclude and find that the underlying reason for discharg-
ing Maston Turner was his interest in and activities on behalf of the Union: and that
by such discharge Respondent not only interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed them in Section 7 of the Act, but
also discouraged membership in a union, in violation of Section 8(a)(1) and (3) of
the Act.
I.'The termination of Jarvis
Raymond Jarvis, who worked in the cabinet room, was discharged on November 15,
1963. The General Counsel alleges that the discharge resulted from his union
sympathies and activities; denying this, Respondent attributes the action to Jarvis'
continuing to put out bad work after being warned.
There is no doubt that Jarvis was active on behalf of the Union 74 or that Respond-
ent was aware of such activities: His name appeared on the union committee list
given Respondent on November 6 or 7 (see Chron. 13a), and, a few days later, while
engaged in a pamphlet distribution on Respondent's parking lot. he was spoken to by
a member of management (Chron. 14). Moreover, on November 12. 3 days before
his discharge. his foreman asked a fellow employee whether Jarvis had been pressur-
ing or bothering him about the Union (Chron. 15), an act earlier found violative of
Section 8 (a) (1) of the Act 75
In his testimony, Jarvis originally claimed to have received no complaints or
warnings about his work. (Indeed he pointed to the facts-which I find to be true-
that he received wage increases 9 months and 5 months, respectively, before his dis-
charge.) Subsequent testimony, both by him and by others, convinces me, and I find,
that this is something less than the full story. On a number of occasions in the past-
oredating Resnondent's receipt of.the union committee list and predating the parking
lot incident-Jarvis, among others, had been the target of criticism by Foreman Bruff
for trying to force poor-fitting spindles into chair seats, resulting in split seats.76 On
or about November 8, 1963-after Respondent's receipt of the union list but before
the narking lot incident-Jarvis and another employee were criticized by Bruff for
the faulty sanding of certain moldings; at the time. although Jarvis himself regarded
the job as just as adequately performed as any he had done in the past-the job did
not have to be redone-he accepted the reprimand without comment. In at least
these two respects, then, I find Jarvis' work record to have been vulnerable to attack.
'19 Although the assigned cause includes his failure to punch out, I do not believe
that Respondent seriously urges this as playing any significant part in the discharge
In this case , as was customary In other cases , punchcards were "correctable.".
"Note that Myers was not Involved In union activities so far as this record reveals.
'+* Early In June he signed and mailed In a union card A union organizer , visiting
his home several times , persuaded him to take further action He attended union meet-
ings, signed up as a member of the union committee , and passed out union literature at
Respondent 's parking lots.
76I do not , however, place any reliance in arriving at my conclusions herein upon
Jarvis' volunteered testimony that fellow employee Clyde Wray told him that Foreman
Brute had similarly asked Wray If Jarvis had been trying to slow him down or to talk
to him about the Union.
7e The problem was a common one, resulting from moisture , dryness , or other factors
not attributable to the employees. But the solution was simple : a willingness to co-
operate by laying aside ill-fitting pieces for possible reworking rather than taking chances
by "forcing."
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Jarvis and Bruff testified to a change which occurred during Jarvis' last days
of employment. The former testified that, immediately' following the parking lot
incident (which itself occurred only a few days after Respondent's receipt of the
union list), Bruff began to "make it hard" on him: he would stand around and watch
Jarvis, would shift him from job to job and from place to place, and would try to
find fault with his work; he would not furnish help when Jarvis fell behind, as he
would for anyone-in like circumstances in the past; and he assigned Jarvis to jobs at
which he had little -or no experience. For example, for a few days before his dis-
charge, Jarvis was assigned to a so-called "bed-clamp" job; a "hard" job which Jarvis
had performed but once or twice before; and, just before his discharge, to a task he
had never performed. Bruff, on the other hand, testified that he treated Jarvis no
differently from any of the others; and I do find that, at this plant, it was common, to
shift men from job to job. Bruff further testified that the quality of Jarvis' work
drastically and inexplicably fell during his last 5 weeks, particularly during the last 2,
but-other than the molding-sanding job described above and the job leading to his
discharge, described below-he offered no supporting details. I reserve for-the
moment my findings as to Jarvis' work-quality and Bruff's attitude toward- Jarvis
during Jarvis' last days.
On the morning, of November 15, Jarvis started working on the bed clamp. --About
an hour after he had commenced work, over his protest that he knew nothing about
the iob, he was assigned to knocking up or assembling bedboards. (As the name
implies, this involved making up the headboard or footboard by bringing together
the main structure, two-posts, and a rail.) His-"boss," Max McKinley,77 showed him
how to put a headboard together, then left him. Jarvis spent-the next hour-and-a-half
assembling, working slowly and (according to his testimony) finishing no more than
15 to 20 boards. During this period, because he suspected that Foreman Bruff was
"out to get" him, he asked June Worley 78 four or five times if he was assembling
correctly; the answer-yes. - - -
At the end of the life-hour period, Bruff told Jarvis that a number of his beds were
bad and, at his request, took him to the inspecting lines, where he showed 'him some
defective work. (Panels, sanded on one side only and clearly marked, were facing
the wrong way.) Jarvis, to the extent he was able to note identifying marks, did not
believe these were his work, and he said so. Bruff thereupon decided to- dismiss
Jarvis, and he pulled his card. Jarvis asked to see -the 'defective beds again, in
response to which Bruff threatened to "call in the law" if'Jarvis did not leave.79
The General Counsel urges, in effect, that the defective pieces-were not Jarvis' and
that Bruff knew it. When Paul Long, the inspector who called Bruff's attention to
the defective boards, started working that -morning at 7 o'clock, he was "caught up"
on his work; there was nothing to inspect. Beds; which move in loads of 30, started
to come to him at 7:15 a.m. In the first load, he found 20 beds with the panels facing
backward. Having called this to Bruff's ' attention, he waited approximately 30
minutes; bad work was still coming in, and be went to Bruff to ask him who was
assembling bedboards. It was at this time that Bruff went to Jarvis-and brought him
to the inspecting line for a confrontation Making due allowances for errors in
estimating time, it seems obvious to me, and it must have been obvious to Bruff, that
the defective bedboards were not Jarvis'. Even if Jarvis underestimated the time lie
worked on the bed clamp, it must have been close to 8 a.m. before he started assem-
bling beds: and even if Long underestimated the time he waited for the first batch of
defective bedboards, they must have come to him by 7:30; and the additional bad
work must have come to him by 8 o'clock. The work which was inspected by Long
up to this time could not have included the 15 or-20 headboards which I find Jarvis
assembled after 8 o'clock. I find, in short, that the defective work was not done by
Jarvis and that Bruff, who knew all these facts, was well aware of this.
Upon the entire record, and on the basis of what I am convinced is a fair'prepon-
derance of the credible evidence (giving full consideration to.the other unfair labor
practices here found, Respondent's animus toward the Union, the absence of a basis
for the reason assigned for Jarvis' discharge, his union activities and Respondent's
knowledge thereof, and the timing of the discharge relative to the surrounding- cir-
77 McKinley's supervisory status is not an issue herein ; however,. it appears that his
function in the cabinet room was roughly equivalent to that of James Helpler, who
,has been found to be a nonsupervisory employee.
78 June Worley, Jarvis' regular "boss" (the equivalent -of Ilelpler and McKinley), then
unable to work due to a heart attack, was- visiting the plant that day. , -
79 The findings in the last two paragraphs are based on Jarvis' credited testimony
except that I purposely leave for consideration in the next paragraph the number of
headboards assembled by Jarvis. -
LEXINGTON CHAIR " 'COIVII'ANY 1349
cumstances ), I conclude and find that Respondent 's underlying reason for discharg-
ing Raymond Jarvis was- his interest in and activities on behalf of the Union; and
that by such discharge, Respondent not only interfered with, restrained, and coerced
employees in the exercise of rights guaranteed them in Section 7 of the Act, but also
discouraged-membership in a union, in violation of'Section 8(a)(1) and (3) of
the Act 8° - -
(This finding , contributing as it does to the total picture , assists in the resolution
of a question earlier reserved. I now find, on the basis of the testimony earlier
described and in the light of the circumstances of the actual discharge, that Bruff in
fact did "make it hard" on Jarvis during the latter's last week or so of employment
with Jarvis; that, although Jarvis took more 'precautions than he traditionally had to
insure that the quality of, his work should not deteriorate, Bruff did, without justifica-
tion and more than was normal, watch him; shift him from assignment to assignment,
and criticize him. But, lest-I be charged with circular reasoning, let me make clear
that my finding with respect to the discharge itself, as described in the preceding
paragraph, does not depend on this finding; rather, it is the other way around.)
J. The' terminations of Owens and Shaw
The complaint in Case No. 11-CA-2392 alleges that Respondent discharged Kent
Owens and- Jerry Shaw on or about March 24, 1964, and thereafter failed and refused
to reinstate them because' of their membership in and activities on behalf of the
Union and because they engaged in other protected concerted activities. Respondent,
in denying the allegation, takes the position that: (1) For reasons dictated by eco-
nomic necessity -and unrelated to union considerations, a plan for the contraction of
its work force at or about this date was devised by Respondent; (2) the plan called
for the layoff (not discharge) of 8 or 10-employees at or about the date indicated,
with more layoffs to follow; (3),the bases-for the selection of those to be laid off
were such criteria as attendance records, job attitudes, and others unrelated to union
considerations; and (4) among others, Owens and Shaw were selected for layoff,
(a) the reason for Owens' selection being that he was a new-man, and an unsatis-
factory employee due to his constant quarreling, arguing, and voicing objections
to assignments, and (b) that for Shaw's selection being his record of excessive
absenteeism. - - - -
By reason of disagreement between the parties, the basis'for the reduction in force-
union-related or -otherwise-is- an issue herein. The credible testimony establishes,
and I find, that, on or about March 1, 1964, his study of the daily and monthly
reports of Respondent's operations convinced General Manager Adams that labor
costs were rising unduly in relation to net sales. In his opinion, work efficiency was
dropping although the work force was growing; action was needed to remedy the
situation. He conveyed these ideas to Personnel Manager Carlton, Plant Superin-
tendent Ward, and Assistant Plant Superintendent Baity, with instructions that they'
draw up plans for a personnel cutback, including specific optimal departmental per-
sonnel quotas. Within days,si those three presented him with their plans, setting
forth specific desired goals in each department.82
In addition to what was regarded as sheer inefficiency, two other factors entered
into management's thinking which dictated a manpower cut. The centralization of
warehouse space and the installation of a conveyor belt system in the shipping ware-
house section each contributed to the cut in labor costs which Respondent had in
mind. The latter factor alone, in the opinion' of management, permitted a decrease
of approximately 15 employees in shipping over a period of time.
As a matter of fact, there were layoffs, at or about March 24, of 10 to 17 employ-
ees. The layoffs of two of these, Owens and Shaw, both shipping employees, were
directly attributable (by Respondent) to the new conveyor belt. -
The General Counsel offered testimony designed to demonstrate that, whatever
might be the basis, if any, for other cutbacks, a two-man curtailment in the shipping
area on or about March 24,1964, was not called for as urged by Respondent. Such
80 Subsequent to the discharge, on a date uncertain but prior' to Janukry 9, 1964,
Bruff told employee Kent Owens, in the course of -a conversation between them-see
section III, J, infra-that "people think I'm trying to get rid of people; they think
I tried to get rid of Jarvis, but I had to do that."
81 Records giving specific details as to 'personnel surpluses or 'shortages,' prepared by,
Carlton and used by him in, testifying, were dated March 24, 1964; I understand, how-
ever, that these were merely summarizing conclusions of decisions already reached.
82 The "targets " in most departments involved cutbacks ; in at least one, it called for
an increase in personnel.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony took a number of forms: (1) the conveyor belt was not yet in operation at
that time; (2) overtime hours were worked by shipping employees as late as March 23
and according to an announcement by a (nonsupervisory) leader, would be the
order of the day for some time to come; (3) overtime hours were in fact worked
during the period subsequent to March 24; and (4) in a letter sent to employees 5
months earlier (see Chron. 9), Adams had announced that the warehouse conveyor
being built, rather than displacing men as charged by the Union, would result in more
jobs. Crediting such testimony and accepting these as findings of fact, I nevertheless
am not persuaded that the presumption arising from the evidence that the cut was
called for has been rebutted. The conveyor belt did go into operation early in April;
the existence of past overtime and the anticipation of continued overtime must be
viewed as a then current situation subject to the changes called for by management's
decision to raise efficiency; subsequent overtime is explained, I find, by the irregular
demands placed upon Respondent-it would be necessary even if the optimum work
force were attained; and, finally, I accept Adams' explanation that, by saying the
installation of the conveyor belt would create rather than destroy jobs, he meant that,
in the long run, the increased volume of business made possible by the conveyor
(and by any other improvements) would create a need for more employees. It is not
for the Board to substitute its business judgment for Respondent's; the most it can
do in this direction is to measure whether the asserted business judgment is, in the
light of all surrounding circumstances, pretextual. Giving full consideration to
Respondent's union animus as earlier found, I cannot say that the shipping room cut
was motivated by union considerations.
The remaining question is whether the selection of Owens and Shaw-which selec-
tion was made, according to Adams, by Personnel Director Carlton and Owens' and
Shaw's foreman-was bottomed on union considerations.
Owens, assignedly, was selected because he was a new man and an unsatisfac-
tory employee due to his constant quarreling, arguing, and voicing objections to
assignments.
According to Owens' testimony, which I credit, he was hired in August 1963 in the
cabinet room; he became active in the union campaign in September, his name appear-
ing on the union committee list transmitted to Respondent in November; after a
temporary 2-day transfer to shipping in January 1964 when that section was short-
handed, he volunteered to take and was given a permanent transfer there, with a
wage increase; his union activities continued thereafter, with his participation in
house-to-house solicitation; and he was the target in antiunion solicitation by Fritts
and Kepley (described in Chron. 21a to 21c), in the conversation with Superintendent
Ward about "promises" by Kepley (described in Chron. 21d), and in the incident of
"threats" by the nonsupervisory Fritts (described in Chron. 23), all within a few days
of his layoff. Further, I credit his testimony that he was unaware and was never
told of any dissatisfaction with his performance, either in the cabinet room or in
shipping, by virtue of quarrelsomeness, argumentativeness, or the undue voicing of
objections. I find the General Counsel to have presented a prima facie case in con-
nection with Owens' layoff.
The prima facie case becomes a preponderance of the evidence in view of Respond-
ent's failure to present any evidence in support of its asserted reasons for selecting
Owens for layoff. Upon the entire record, and on what I am convinced is a fair
preponderance of the credible evidence (giving full consideration to the other unfair
labor practices here found, Respondent's animus toward the Union, the absence of a
basis for the reason assigned for Owens' layoff, his union activities and Respondent's
knowledge thereof, and the timing of the layoff relative to the surrounding circum-
stances), I conclude and find that the underlying reason for laying off Kent Owens
was his interest in and activities on behalf of the Union; and that, by such layoff,
Respondent not only interfered with, restrained, and coerced employees in the exer-
cise of rights guaranteed them in Section 7 of the Act, but also discouraged member-
ship in a union, in violation of Section 8(a) (1) and (3) of the Act.
Shaw, assignedly, was selected for layoff because of his poor attendance record.
Credible testimony was presented on the basis of which I find that Shaw was absent
on 20 workdays between January 1 and March 25,83 1964, sometimes without calling
in. I credit Respondent's personnel manager's assertion that, even absent the installa-
tion of the conveyor, "something would have been done" about Shaw. I find that the
General 'Counsel has presented no preponderating evidence in support of the allega-
tion of the complaint respecting Shaw's layoff.
83 He was laid off on the 25th rather than the 24th as alleged in the complaint. The
1-day delay resulted from his absence from work on March 24.
LEXINGTON CHAIR COMPANY
IV. THE REMEDY
1351
Having found that Respondent has engaged in certain unfair labor practices , I shall
recommend that it be ordered to cease and desist therefrom 84 and to take certain
affirmative action in order to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the hire and tenure
of employment of Lloyd Robinson, Edwin Tollie, Maston Turner, Raymond Jarvis,
and Kent Owens , I shall recommend appropriate action . I shall recommend that
Respondent offer each of them full and immediate reinstatement to his former or
substantially equivalent position , without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss of earnings suffered by him
because-of the discrimination. Each of them shall be made whole by payment to him
of a sum of money equal to the amount he would have earned from the date of his
discharge or layoff to the date of Respondent 's offer of reinstatement , less his net
earnings during said period . Backpay shall be computed on a quarterly basis in the
manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, with
interest, at the rate of 6 percent per annum computed quarterly.
As the unfair labor practices committed by Respondent are of a character striking
at the roots of employee rights safeguarded by the Act, it will also be recommended
that Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the foregoing factual findings and conclusions , and, upon the entire record
in the case , I come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of Lloyd Robinson, Edwin
Tollie, "Maston Turner, Raymond Jarvis, and Kent Owens, by terminating their
employment on or about October 2, October 2, October 24, and November 15, 1963,
and March 24, 1964, respectively„ and failing and refusing to reinstate them there-
after, because of their interest in and activities on behalf of a union , Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act.
4. By the foregoing conduct , by the promulgation , maintenance , and enforcement
of a rule forbidding employees to circulate union literature on company property
-whether or not on working time, by promulgating and maintaining a rule forbidding
employees to engage in concerted activities which involved criticism of company
policy, by soliciting employees to withdraw from participation in certain union activ-
ities, and by interrogating employees with respect to the organizing activities of other
employees , Respondent has interfered with , restrained , and coerced employees in the
exercise of rights guaranteed them in Section 7 of the Act, in violation of Section
8(a)(1) thereof.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
6. Except for the above, Respondent has not engaged in unfair labor practices
as alleged in the complaint herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby rec-
ommend that the Respondent, Lexington Chair Company, of Lexington, North Caro-
lina, its officers, agents , successors , and assigns , shall:
1. Cease and desist from: "
(a) Discouraging membership in any labor organization by discriminating in
regard to hire, tenure; or other conditions of employment.
"There is evidence in this record that the "no-solicitation rule" herein found to be
unlawful has been revised. I agree with the General Counsel that this does not moot this
aspect of the case because •(.1) there may be a recurrence, and (2) this record does not
give any basis for, a determination that permitting literature-distribution outside of
"company time" is equitable with permitting it outside of "working time ." I shall there-
fore, recommend that remedial action be ordered to the extent such action has not already
been taken.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Promulgating , maintaining , and enforcing a rule forbidding employees to
circulate union literature on company property or nonworking time ( to the extent
it has not already taken such remedial action).
(c) Promulgating and maintaining a rule forbidding employees to engage in con-
certed activities which involve criticism of company policies.
(d) Soliciting employees to withdraw from participation in certain union activities.
(e) Interrogating employees with respect to the organizing activities of other
employees. -
(f) In any other manner interfering with , restraining , or coercing its employees
in the exercise of their rights to self-organization , to form labor organizations , to join
or assist any labor organization , to bargain collectively through representatives -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 and all such
activities. -
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Lloyd Robinson , Edwin Tollie , Maston Turner , Raymond Jarvis, and
Kent Owens each reinstatement to his former position even though this may necessi-
tate displacement of a present incumbent (or if his former position no longer exists,
to a substantially equivalent position ), without prejudice to his seniority or other
rights and privileges.
(b) Make Lloyd Robinson , Edwin Tollie , Maston Turner, Raymond Jarvis, and
Kent Owens each whole for any loss of earnings suffered by reason of the discrim-
ination against him , in the manner set forth in the section above entitled "The
Remedy."
(c) Preserve and upon request, make available to the Board or its agents , for exam-
ination and copying , all payroll records, social security payment records, timecards,
personnel records and reports, and all other reports necessary to analyze the•amount
of backpay due and the right of reinstatement. '
(d) Post at its place of business at Lexington , North Carolina , copies of the
attached notice marked "Appendix ." 85 Copies of such notice , to be furnished by the
Regional Director for Region 11, shall , after being duly signed by an authorized rep-
resentative of Respondent, be posted immediately upon receipt thereof, and be main-
tained by it 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 such notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 11, in writing, within 20 days from
the date of the receipt of this Decision ,' what steps the Respondent has taken to
comply herewith.86 <
It is further recommended ' that the complaints be dismissed insofar as they allege
violations of the Act by Respondent not heretofore remedied in this Recommended
Order. -
85 If 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 will 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."
81 If this Recommended Order is adopted by the Board , this provision shall be modified
to read : "Notify the Regional Director for Region 11, In writing , within 10 days from
the, date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we notify our employees that:
WE WILL NOT discourage membership in UnitedFurniture Workers of Amer-
ica, AFL-CIO, or any other labor organization , by discriminating as to the hire,
tenure, or any other term or condition of employment of any of our employees.
LOCAL 181 , INT'L OPERATING ENGINEERS 1353
WE WILL NOT maintain or enforce any rule against employees ' circulating
union literature on nonworking time; or maintain or enforce any rule forbidding
employees to engage in self-organization activities which may involve criticism
of company policies.
WE WILL NOT solicit employees to withdraw from participation in union activ-
ities; or ask employees about the union activities of other employees.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to organize , perform , join, or assist a
labor organization , bargain collectively through a bargaining agent chosen by
themselves , engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any such
activities.
WE WILL offer Lloyd Robinson , Edwin Tollie , Maston Turner, Raymond Jarvis,
and Kent Owens their former or substantially equivalent jobs (without prejudice
to seniority or other employment rights and privileges ) and WE WILL pay , them
for any loss suffered because of our discrimination against them.
All our employees are free to become or remain members of any labor organization.
LEXINGTON CHAIR COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NoTE-We will notify the above-named employees if 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 discharge from the Armed Forces.
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, 1831
Nissen Building, 310 West Fourth Street , Winston-Salem , North Carolina , Telephone
No. 723-2911 , if they have any questions concerning this notice or compliance with
its provisions.
Local Union No . 181, International Union of Operating Engi-
neers, AFL-CIO and Service Electric Company. Case No.
9-CD-69-1. January 28, 1965
DECISION AND ORDER
On December 14, 1964, Trial Examiner George J. Bott issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
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 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
Trial Examiner 's Decision , the exceptions and brief , and the entire
150 NLRB No. 128.