Newport Furniture Mfg. Corp.

National Labor Relations Board - Board DecisionsFeb 5, 1963

140 N.L.R.B. 1083 (N.L.R.B. 1963)

NEWPORT FURNITURE MFG. CORP. 1083 organization, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities, except to the extent that such right may be affected by the proviso to Section 8(a)(3) of the Act. WE WILL offer Earl F. Docekal immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. A. P. GREEN FIRE BRICK CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 4459 Federal Building, 1520 Market Street, St. Louis, Missouri, Telephone No. Main 1-8100, Extension 2142, if they have any question concerning this notice or com- pliance with its provisions. Newport Furniture Mfg. Corp . and Truck Drivers' Union, Local #170, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America . Case No. 1-CA-3862. February 5, 1963 DECISION AND ORDER On November 27, 1962, Trial Examiner Alba B. Martin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of such allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a reply 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 [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in the case, including the Gen- eral Counsel's exceptions, and the briefs, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner, with the following modification. The Trial Examiner recommended, inter alia, that the Respondent be ordered to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. As we are not persuaded that the Respondent's conduct reveals an attitude 140 NLRB No. 102. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of general opposition to the purposes of the Act, we shall order the Respondent only to cease and desist from engaging in the Section 8 (a) (1) violation found, and from in any like or related manner in- fringing upon the rights of employees guaranteed in Section 7 of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Newport Furniture Mfg. Corp., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their activities, affilia- tions, and sympathies concerning Truck Drivers' Union, Local #170, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its em- ployees, in a manner violative of Section 8(a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized by Section 8 (a.) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (,a) Post at its plants in Milford, Massachusetts, copies of the at- tached notice marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Board's First Region (Boston, Massachusetts), shall, after being duly signed by an au- thorized representative of the Respondent, be posted by the Respond- ent and maintained by it for 60 consecutive days thereafter in con- spicuous places, including gall places in both plants where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respond- ent has taken to comply herewith. I In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " NEWPORT FURNITURE MFG. CORP. APPENDIX NOTICE TO ALL EMPLOYEES 1085 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union activities, affiliations, and sympathies concerning Truck Drivers' Union, Local #170, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our employees, in a manner violative of Section 8(a) (1) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the above-named Union or zany other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. All our employees are free to become or refrain from becoming members of the above-named or any other labor organization. NEWPORT FURNITURE MFG. CORP., Employer. Dated---------------- By------------------------------------- (Repre'entative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly With the Board' s Regional Office, 24 School Street, Boston, Massachusetts, Telephone No. Lafayette 3-8100, if they have any question concerning this notice or if they have information that its provisions are being violated. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding , with the General Counsel and the Respondent represented, was ,heard before Trial Examiner Alba B. Martin in Milford , Massachusetts, on Septem- ber 19, 1962, an complaint 1 of the General Counsel and answer of Newport Furni- 1 The charge, by Local #170, was filed June 25, 1962 The complaint was issued July 30, 1962. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture Mfg Corp , Respondent herein. The issues litigated were whether Respondent unlawfully discharged truckdriver Herbert Paine and whether Respondent unlawfully interrogated employees concerning their union activities , affiliations , and sympathies. After the hearing Respondent and the General Counsel filed briefs which have been carefully considered. Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Newport Furniture Mfg. Corp., herein called Respondent , a Massachusetts corpora- tion with its principal office and place of business in Milford , Massachusetts, is en- gaged in the manufacture , sale, and distribution of furniture and related products. Respondent receives directly from outside Massachusetts large quantities of wood, fabrics, and related products used by it in the manufacture of furniture , having an annual value exceeding $50,000 Respondent ships directly from Massachusetts to points outside Massachusetts its products having an annual value exceeding $ 50,000. Respondent did not contest the Board 's jurisdiction . Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Truck Drivers' Union Local # 170, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Normally at its Milford plant Respondent employed two truckdrivers , but for the 10 months prior to the hiring of Herbert Paine it employed only one-John Cooper. When Cooper was hired about 4 or 5 years before the events herein , Cooper told Respondent 's president , Benjamin C . Newman, in substance that he was a mem- ber of Teamsters Local No. 25 in Boston . Milford was not within the jurisdiction of Local 25. 1. Herbert Paine worked for Respondent as a truckdriver from April 16 until June 1, 1962. He was discharged June 2. Thus he worked for Respondent only some 7 weeks. His principal job was to drive a truck and make deliveries of furni- ture in the New England States. He was paid a weekly salary and was not paid for overtime . Although he was an experienced truckdriver , he was not an experienced furniture deliverer . Respondent needed an experienced furniture deliverer. From the very beginning Paine's work was not satisfactory and Respondent's treasurer and co -owner, Louis Weinberger , complained to the shipping supervisor, James Desautels , and Superintendent Jackson about it . Also those two complained to Weinberger about Paine's work. Paine would return to the plant without finishing his deliveries , he would make deliveries but leave some of the pieces on the truck- such as delivering a bed but forgetting to leave the bed rails, delivering a dresser but forgetting to leave the mirror. About May 1, after he had worked for Respondent some 2 weeks , Paine told Superintendent Jackson that he was quitting because his last trip took too many hours. Jackson talked him into staying with the assurance that Paine would not have to start in the morning before 7 or 8 o'clock. Immediately thereafter Weinberger sought a replacement for Paine. First he hired one Arthur McNeil, who worked for Respondent from about May 4 to May 12, 1 week, when he was discharged because of accidents and because his work was generally unsatisfactory . Then he hired one Santoro , whose performance was also unsatisfactory , and who lasted only about a week . During this period Weinberger also sought , but without success, to attract back to his employ to replace Paine one Rubin Spielberg. a former satisfactory employee who was an experienced furni- ture deliverer . Spielberg came over twice and talked with Weinberger about return- ing, but finally stayed with his present employer. Respondent knew that Spielberg was a member of the Teamsters Union. Weinberger never considered Paine to be a satisfactory worker. Neither did Desautels , the shipping supervisor . Weinberger testified that from about the sec- ond week onward he had conversations with Desautels about Paine's inefficiency and inability to make his deliveries . Desautels was a very honest and credible wit- ness who, when his desire to remain uninvolved in this dispute went unfulfilled, testified carefully, accurately , and articulately on both direct and cross -examination. Desautels testified that discussions about Paine's work were not necessary , that his NEWPORT FURNITURE MFG. CORP. 1087 work was "self-explanatory," that bills of lading "come back if the load wasn't finish . . If a load isn't completed and a job isn't done-and there were oc- casions, of course, that the load was completed and a few occasions when it wasn't completed." Desautels testified in substance that Weinberger was never satisfied with Paine's work, that Weinberger thought Paine had a "negative attitude and . . . wasn't trying his best to accomplish the job and do the work." In the opinion of Desautels also, Paine, on "a few occasions" had a negative attitude and was not extending himself on the job. Desautels testified further that Cooper and Spielberg exerted maximum effort on the job but that Paine did not. 2 Sometime prior to May 15 Paine contacted Teamsters Local # 170, the Charg- ing Party herein, at its headquarters in Worcester, Massachusetts, obtained applica- tion-for-membership cards, got John Cooper to sign one and signed one himself, and returned these two cards to Local # 170. At that time Paine and Cooper were the only two truckdrivers. On May 15, Local #170 filed a petition for an election among Respondent's truckdrivers with the Board's Boston Regional Office. The parties stipulated that Respondent received a copy of this petition by May 21 3. Respondent's president, Benjamin C. Newman, credibly testified in substance that his receipt of the petition was the first he knew the Teamsters' Worcester Union, Local #170, claimed an interest among his employees. Thereupon he asked his shipping supervisor, Desautels, if he had heard of any discussion of bringing the Teamsters Union into the plant. Desautels replied that he had heard some talk of it and that he had heard that the one who was trying to get the Teamsters in was Arthur McNeil, a truckdriver who had worked for Respondent but no longer did. Desautels had previously asked Paine who was bringing the Teamsters in and the latter had replied that Arthur McNeil had. Desautels credibly testified that prior to Paine's discharge he had no idea Paine was organizing for the Teamsters, and that he, Desautels, never told Superintendent Jackson, President Newman, or Treasurer Weinberger, that he suspected that Paine was active for the Teamsters According to the undenied and credited testimony of Paine, during this period Desautels asked him if he would vote for the Teamsters and Paine replied that he would Desautels credibly testified that he never told his higher-ups in the Company anything about how Paine would vote Desautels also told Paine that "the front office was all shook up about the Union getting in there." During the conversation between President Newman and Desautels mentioned above, according to the credited testimony of Desautels (not remembered but not denied by Newman), President Newman told Supervisor Desautels that if there was a chance of the Teamsters Union coming into the factory "then business would probably fold on the trucking end of it; he would have to sell the trucks-as he put it, `make a go of it ' " About this same time President Newman asked truckdriver John Cooper rather gruffly if that Teamsters Union from Worcester had been around bothering him and asking him questions. Cooper replied, "No." This interrogation reasonably tended to interfere with the rights guaranteed in Section 7, Respondent thereby violating Section 8 (a) ( I ) of the Act. By Desautels' asking Paine who was bringing in the Teamsters and whether Paine would vote for the Teamsters, Respondent further reasonably tended to interfere with the rights guaranteed in Section 7, Respondent thereby further violating Sec- tion 8 (a) (I) of the Act 4. The record contained much testimony concerning Paine's last crucial week of work, the last week in May. Wednesday of this week was May 30, Memorial Day, a holiday, so Paine worked only Monday, Tuesday, Thursday, and Friday On Sat- urday he was discharged. Late Monday morning Paine left the plant with a completely full load intended to be delivered at about 30 stops. At his second or third stop, some 30 to 40 miles from Milford, the purchaser, Milot's TV and Furniture Company, refused to take any of its order because the delivery was not complete. Paine was then faced with what to do with the Milot order of 10 pieces including 7 rather large pieces: two cabinets, two desks, two chests, and a double dresser. There was no room on the trailer because of its fullness, for a driver of Paine's experience to "tie off" the Milot order on the side of the trailer and continue with his delivery A more ex- perienced furniture man probably would have. Paine could have gone on to his next stop, unloaded the Milot order temporarily in order to get that order off, and then presumably "tied off" the Milot order and continued with his other deliveries Although he had had no specific instructions to telephone the factory for directions in these circumstances, Treasurer Weinberger and Supervisor Desautels both felt that Paine or any driver should have called in. Instead of either of these alterna- 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives Paine followed a third course; he returned to the factory with the load. He arrived about 3 p.m. As he and Desautels were unloading the Milot order, Wein- berger came by, and told Paine next time to call in The following morning, the day before the holiday, Paine took off with the load minus the Milot order. The evidence was in sharp dispute as to what happened that day. Respondent's evidence, which is credited, showed that during the early after- noon Paine was in Pawtucket, Rhode Island, where his truck (boosted while going over a curb stone) broke a traffic light, that he returned to the plant about 3 p.m. and said that the stores in Providence (which is adjacent to Pawtucket) were closed because the following day was a holiday. Weinberger considered this an untruth and had this confirmed by a telephone call from his salesman in the Providence area who assured him that the stores were open until 6 and some of them until 9 p.m. Weinberger considered this lie the "last straw" and decided to discharge Paine at the end of that week. Paine was not a reliable or credible witness. His memory on dates was admittedly very weak or nonexisting. He told the Board's original investigator in this situation that the events of this big load occurred a month before his discharge. To him the Milot order of 10 pieces was an order of about 30 pieces. He suggested that it took about 2 hours for him and Desautels to unload the Milot order upon his return to the plant, whereas it could not have taken more than a few minutes. He had al- most no remembrance of the delivery of this big load, of how many days it took and where he went each day. So I do not credit his testimony that the day before the holiday he returned to the plant late; around 6 or 7 o'clock. To be noted is that Paine admitted that the traffic light incident occurred in Pawtucket when he was trying to get to a furniture store to make a delivery, and that on that day he returned to the plant before the office girls left. On the entire record I conclude that this was the day before the holiday, that Paine was in the Providence-Pawtucket area that day, and that he returned to the plant early and related (although he denied it) that the stores in that area closed early because of the holiday. I make this finding on the entire record although the credible Desautels, who thought he was absent from the plant Tuesday afternoon, did not corroborate some of it. Weinberger may have placed some conversations with Desautels which in fact took place with Superin- tendent Jackson, who did not testify (he was no longer with the Company). As a witness Weinberger answered readily and almost too loosely, but I believe his testi- mony was basically honest. Wednesday was the holiday. Thursday Paine finished delivering the big load Desautels testified that it was unusual for a driver to take 3 days to make 30 drops; in fact, to his remembrance it had never happened before during his period as shipping supervisor. Thursday evening Weinberger complained to Desautels about Paine's having taken 3 days on this one load. 5. Friday, Newman and Weinberger told Desautels that Paine was being discharged that evening. Newman said that "We asked him to pull out early this morning on a load and he did not do it; he did not pull out until about 8 o'clock." Weinberger said that Paine had taken 3 days to finish one load, which is too long; and also referred to "everything else he was doing wrong." One of them referred to Paine's having had an accident. The reference to "everything else" clearly referred to Paine's general inefficiency, his repeated returning to the plant with undelivered pieces and orders, and his fabrication about the early closing of the stores on Tuesday. According to Paine's testimony, which was not fully credible, Friday evening Desautels told Paine that he was told to discharge him but that he had refused The record did not establish that Desautels was instructed to discharge Paine. On Saturday in discharging him Superintendent Jackson allegedly told Paine, according to Paine, that "they told me to tell you that you were incapable of doing your work." Desautels' alleged reluctance and Jackson's alleged phraseology are not persausive that the conclusion reached below upon the entire record is wrong. Nor do I credit Paine's testimony that a few nights after his discharge Desautels admitted that Paine was discharged "because of the union activities." Although Weinberger appears never to have communicated to Paine his general dissatisfaction with his work this may have been to avoid discouraging Paine. In fact, Weinberger testified that Superintendent Jackson and Desautels "wanted to discharge him too soon"-several weeks before-and that Weinberger decided to give him another chance. Another reason Weinberger never warned Paine may have been that Weinberger was having a hard time finding a replacement for him. Although a week or two before the discharge President Newman revealed Teamsters NEWPORT FURNITURE MFG. CORP. 1089 animosity to Desautels, he was given to understand that McNeil, who was no longer an employee, had taken the initiative toward the Teamsters. There was no proof that either Newman or Weinberger or Superintendent Jackson or Desautels had any knowledge or suspected that Paine was the one who had taken the initiative. For all they knew it might have been Coopei, who to their knowledge was a Teamsters member. To be noted in this connection is that Rubm Spielberg, whom Weinberger was seeking to entice back, was known to Respondent as a Teamsters member. So I conclude that Respondent had no knowledge or suspicion of Paine's union activities. Despite his Teamsters hostility President Newman gave his attorneys authority to enter into a consent-election agreement with Local # 170, an act seemingly inconsistent with an intent to defeat Local # 170 by illegal means. The General Counsel urged that Respondent discharged Paine during the pendency of the petition with the intent of reducing the two-man unit which the Board holds to be an inappropriate unit. There was no proof that Respondent's officers had any knowledge of this practice by the Board. This theory was not urged in the complaint or put in issue until late in the hearing; indeed such issue could scarcely be said to have been litigated. 6. Upon the entire record considered as a whole i believe and hold that Paine was discharged for cause; for general inefficiency, for not working hard enough, for returning too often with undelivered merchandise, for taking too many days to deliver the big load his last week, for using poor judgment in the Milot TV incident, and for resorting to an untruth with management on the afternoon before the holiday. Upon the entire record considered as a whole I hold that the General Counsel has failed to prove a contrary conclusion by a preponderance of the sub- stantial evidence. Therefore I shall recommend that the complaint be dismissed as to the discharge of Paine. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Laving found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The violations of the Act committed by Respondent are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is to be anticipated from the Respondent's conduct in the past and President Newman's attitude toward Local #170. The preventive purposes of the Act will be forfeited unless the order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Newport Furniture Mfg. Corp. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers' Union, Local #170, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(g) of the Act. 3 By unlawfully interrogating employees concerning their union activities, affilia- tions, and sympathies, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act 4 The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication ]