Paoli Chair Co., Inc.

National Labor Relations Board - Board Decisions

Oct 8, 1974

213 N.L.R.B. 909 (N.L.R.B. 1974)

PAOLI CHAIR COMPANY, INC. 909
Paoli Chair Company , Inc. and United Furniture
Workers of America, AFL-CIO. Case 25-CA-5888
October 8, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On March 29, 1974, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order, as modified.
The Administrative Law Judge found, and we
agree, that Respondent committed several indepen-
dent violations of Section 8(a)(1) of the Act 2 and also
committed three violations of Section 8(a)(3) of the
Act.
In affirming the Administrative Law Judge's find-
ing that Respondent did not violate Section 8(a)(1) by
i We do not rely on the finding made by the Administrative Law Judge
that Rutherford is a supervisor or that Respondent , through Rutherford,
received notice trom Bradley of withdrawal of his intention to leave
Respondent 's employ , because such a determination is unnecessary to our
conclusion that Respondent discharged Bradley in violation of Sec 8(a)(3)
and (I) of the Act
We find that certain inadvertent errors in the Decision of the Administra-
tive Law Judge require correction Thus , in sec ill, A, par . 3, second sen-
tence , change "activities" to "activists", in sec III, C. 1, par 3 , seventh
sentence , change 'Owen" to "Cook", in sec 111, C, 1, par 9, first sentence,
change "25" to "24", in in 16, change the first word, "Respondent," to
"General Counsel ", in sec III, C, 1, par 14, fifth sentence , change "Bradley"
to "Laird "
2 Chairman Miller disagrees with the findings of the Administrative Law
Judge and the majority that Respondent violated Sec. 8(a)(1) of the Act by
polling its upholstery department employees as to their choice for department
supervisor Although Respondent had not previously allowed the upholstery
department employees to participate in the selection of their supervisor, the
record evidence establishes that Wulfman , the new owner and chairman of
the Respondent , had used this polling technique in furniture companies with
which he had been connected in the past The Chairman notes that the
polling was conducted absent any mention of the Union or indication that
it was precipitated by the latter's campaign, and that the Respondent 's failure
after the election to poll the employees in the mill department can be attribut-
ed to the fact , as Wulfman's testimony establishes , that an experienced and
qualified former foreman of the Company was available for the job and came
strongly recommended In these circumstances, the Chairman is not persuad-
ed that the polling of the upholstery department employees was designed to
induce them to withdraw their support from the Union, as found by the
Administrative Law Judge and Members Jenkins and Kennedy herein
raising the incentive rate on the "303 chair," we note
that the abnormally large increase was given after
employees complained vigorously that the rate then in
effect was too low for a chair which was as difficult
to produce as the "303 chair." Raising the incentive
rate to $3 per unit on an announced temporary basis
had the effect of enabling the employees to earn close
to their normal hourly rate, thus resolving an emer-
gency situation, while the problems incurred in pro-
ducing the "303 chair" could be investigated. An
independent consulting firm was then hired to study
Respondent's incentive rate system and to make rec-
ommendations regarding increased production and
efficiency. The consulting firm recommended that the
unit rate be cut to $2.02. Respondent, after this objec-
tive study, cut the rate to $2.30 per unit. Under these
circumstances, we do not find any evidence which
would show that Respondent was acting in derogation
of its employees' Section 7 rights even though the
incentive rate increase was given shortly before the
election.3 The increase was given to meet a crisis situa-
tion. The later decrease was the result of an indepen-
dent study which recommended an even larger
decrease.
We disagree, however, with his finding that Lumber
Inspector Brown is a supervisor and that Brown's in-
terrogation of employee Bradley regarding employee
Cook's union sympathies was a violation fo Section
8(a)(1).
Brown inspects lumber that is eventually used in
the manufacture of furniture and he measures it for
size arid grade. He performs this work in
Respondent's lumberyard which is approximately 100
yards from Respondent's plant at its farthest point,
although it is not connected to the plant. In perform-
ing his work, Brown receives instructions from the
overall supervisor, Wellman, who either personally
goes to the yard or sends another employee. Brown
relays instructions to the other three employees who
work in the yard and guides them in their work. The
guidance, however, is of a routine nature. Brown does
not hire, fire, or discipline personnel, nor does he
effectively recommend such action. Unlike
Respondent's supervisors who are salaried, Brown is
3 Contrary to the Administrative Law Judge, Member Jenkins finds that
Respondent violated Sec 8(a)(I) of the Act by raising the incentive rate on
the "303 chair" from $2 to $3 per unit just 9 days before the election and
revoking 70 cents of this dollar raise less than 4 weeks after the election In
so finding , Member Jenkins notes that these employees, although they had
complained in the past about the incentive rate paid for other items, were
never before given either an opportunity to treat with high company officials
concerning their complaints or a rate increase remotely approaching the
magnitude of the increase summarily granted here Coupled with
Respondent 's insistence on reminding employees that the rate increase was
"temporary"-a reminder that clearly conveyed the suggestion of 'a fist
inside the velvet glove"-these factors are persuasive evidence, in Member
Jenkins' view, that the rate increase constituted interference with the exercise
of Section 7 rights in the upcoming election N L R B v Exchange Parts Co,
375 U S 405 (1964)
213 NLRB No. 121
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hourly paid, although his hourly rate is higher than
that of the other yard employees. Finally, Brown does
not attend the meetings of supervisors.
Based on the above facts, we conclude that Brown
neither responsibly directs other yard employees in
the performance of their work, nor does he possess
any other indicia of supervisory status. We therefore
find that Brown is not a supervisor within the mean-
ing of the Act. We further find that Respondent did
not, through Brown's interrogation of Bradley, violate
Section 8(a)(1) of the Act.
As noted above, we agree with the remaining find-
ings of the Administrative Law Judge, including the
finding that Respondent violated Section 8(a)(1) of
the Act by Supervisor Laird's interrogation of Brad-
ley. We thus note that the Administrative Law Judge's
"Conclusions of Law" do not require correction. His
recommended Order and notice, however, will be ap-
propriately modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the recom-
mended Order' of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
Paoli Chair Company, Inc., Paoli, Indiana, its offi-
cers , agents , successors , and assigns , shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following paragraph 1(a) of the
Administrative Law Judge's recommended Order:
"(a) Coercively interrogating employees concern-
ing their union sympathies; granting benefits to em-
ployees for the purpose or with the effect of inducing
said employees to refrain from engaging in union ac-
tivities and to repudiate the Union; and instituting
warning systems for the purpose of retaliation against
employees for engaging in union activities and in or-
der to discourage employees from engaging in said
activities."
2. Substitute the following for paragraph 2(a):
"(a) Offer Charles Bradley and Robert Owen im-
mediate and full reinstatement to their former job or,
if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and
make each whole for any loss of earnings each may
have suffered by reason of the discrimination against
him in the manner set :orth in the section of this
Decision entitled The Remedy."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT coercively question you concern-
ing your union sympathies and activities.
WE WILL NOT grant benefits to you in order to
induce you, or have the effect of inducing you, to
abandon your loyalty to the United Furniture
Workers of America, AFL-CIO, or any other
labor organization of your choosing.
WE WILL NOT introduce new systems of warning
you with regard to any violations of plant rules
with the purpose or with the result of inducing
you to abandon your union activities or to retali-
ate against you for engaging in such activities.
WE WILL NOT discourage membership in, or ac-
tivities on behalf of United Furniture Workers of
America, AFL-CIO, or any other labor organi-
zation of your choosing, by discriminating
against any of you with regard to your hire or
tenure of employment or any term or condition
of employment. And WE WILL NOT issue written
warnings to you for that purpose.
WE WILL offer Charles Bradley and Robert
Owen immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, and WE WILL make them whole for any
losses they may have suffered as a result of our
discrimination against them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to form, join, or assist, or to be repre-
sented by, the above-named Union, or any other
labor organization, to bargain collectively
through representatives of your own choosing, or
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.
PAOLI CHAIR COMPANY,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
PAOLI CHAIR COMPANY, INC.
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, ISTA Center, Sixth Floor, 150 West
Market Street, Indianapolis, Indiana 46204, Tele-
phone 317-633-8921.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Administrative Law Judge: Upon
a charge filed on October 17, 1973, by United Furniture
Workers of America , AFL-CIO, herein called the Union,
the Regional Director for Region 25 of the National Labor
Relations Board , herein called the Board , issued a com-
plaint on December 19, 1973, on behalf of the General
Counsel of the Board , against Paoli Chair Comapny, Inc.,
herein called the Respondent or the Company, alleging that
the said Respondent had violated Section 8 (a)(1) and (3) of
the National Labor Relations Act. In its duly filed answer,
the Respondent , while admitting certain allegations of the
complaint , denied the commission of any unfair labor prac-
tices.
Pursuant to notice , a hearing in this proceeding was held
before me at Paoli , Indiana , on February 5 and 6, 1974. All
parties were represented and were afforded full opportunity
to be heard , to introduce relevant evidence , to present oral
argument , and to file briefs . Oral argument was waived by
all parties . Beefs were filed by counsel for the General
Counsel and the Respondent . Upon consideration of the
entire record herein and upon my observation of each wit-
ness appearing before me , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Indiana corporation, maintains its
principal office and plant at Paoli, Indiana, where it is en-
gaged in the manufacture, sale, and distribution of furni-
ture, more specifically, principally chairs. During the year
immediately preceding the issuance of the complaint herein,
a representative period, the Respondent manufactured,
sold, and shipped from its Paoli, Indiana, plant, finished
products of a value in excess of $50,000 directly to points
outside the State of Indiana. It is admitted, and I find, that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find , that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
911
A. Background and Issues
The-Respondent, for many years a manufacturer of furni-
ture specializing in the production of chairs, was purchased
in January 1973, by Joseph C. Wulfman, and another indi-
vidual. Wulfman became chairman of the board and execu-
tive officer upon the completion of the purchase. Shortly
thereafter, in approximately the beginning of April 1973,'
the Union began an organizing campaign among the
Respondent's employees who prior to that time had not
been unionized. Thereafter in June the Union filed a repre-
sentation petition and upon a Stipulation for Certification
Upon Consent Election Agreement, dated July 17, an elec-
tion was held by the Board on August 23, which election the
Union lost.
The complaint alleges that during the union campaign the
Respondent took various actions allegedly directed to the
Union's organizing efforts for the purpose of discouraging
the employees from supporting the Union. These various
actions, according to the complaint, constituted violations
of Section 8(a)(1) of the Act. The complaint further alleges
that subsequent to the election the Respondent discharged
Charles Bradley and Robert Owen, two union activitists, in
retaliation for their having engaged in activities in support
of the Union and, further, that the Respondent has failed
and refused to reinstate the said employees for like reason.
The answer denies the alleged 8(a)(1) violations and also
the alleged discriminatory discharges in violation of Section
8(a)(3), the Respondent contending that either the incidents
alleged did not occur or were necessitated by production
problems and were taken for valid, nondiscriminatory busi-
ness r°a.sons. Insofar as the discharges of the two union
activities are concerned, the Respondent contends that their
discharges were brought about by the fact that they had
stated that they were quitting the Respondent's employment
and, at that particular time, the Respondent required a sta-
ble labor force in order to solve production problems.
Thus the issues are: (1) did the Respondent engage in acts
of interference, coercion, and restraint in violation of Sec-
tion 8(a)(1)? (2) Did the Respondent discharge and refuse
to reinstate employees Bradley and Owen for discriminato-
ry reasons?
B. Interference, Coercion, and Restraint
1. The events
The first occurrence which the complaint alleges and the
General Counsel contends was violative of the employees'
Section 7 rights took place on or about the middle of June.
On this occasion, the experienced upholsters in the uphol-
stering department who worked on lines 1, 2, and 3 were
requested to go to the sample room of the Respondent's
facility. When they arrived there they were addressed by
Chairman Wulfman and Plant Manager Strange. Wulfman
informed the employees present that it had become neces-
All dates herein are in 1973 unless otherwise specified.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary to create a new position, that of foreman over the
upholstery department. He further told the employees as-
sembled that he would like to give them an opportunity to
voice an opinion as to who they would like to be made
foreman. No electioneering or speeches were made nor was
the Union mentioned, but the employees were given slips of
paper upon which each was to separately make his individu-
al desire known. After the employees wrote down the name
of the individual each desired to have as foreman, the slips
were gathered by Strange and Wulfman who took them to
another room. Shortly thereafter they came back and an-
nounced to the men that they had not made up their minds
and that the employees would be informed in due time. The
employees then went back to their stations.
In testifying, Wulfman emphasized that he did not prom-
ise the employees that their choice would definitely be the
choice of management in making the appointment and no
promises to that effect were made. However, he did tell the
employees that if the vote was overwhelming for one person
management might be able to tell the employees who the
foreman would be on that date. But, if the vote was close
they would have to take the matter under consideration and
discuss it and talk to the people involved. The vote was very
close . Therefore, Wulfman and Strange told the employees
that they were going to have to consider the matter. Later
that day, they called into their office employee Donald R.
Laird and after discussion with him appointed him fore-
man. Laird up to that point had been an upholsterer on one
of the upholstery lines in the upholstery department.
It was admitted by Respondent' s witnesses that this was,
indeed, the first time that any employees had been asked to
express their opinion with regard to the choice of a supervi-
sor. However, according to Wulfman, he had used this
method in other plants in the furniture industry with which
he had been associated for a number of years and he found
by experience that this resulted in harmony and increased
efficiency.
Wulfman further explained, in testifying, that the uphol-
stery line had been a bottleneck in the Respondent's pro-
cesses for some time and that management came to the
conclusion that one of the reasons might be that the supervi-
sor of the upholstery department up to that time, Dale Ken-
dall, who was also the supervisor over a number of other
departments, was spread too thin and was unable to give the
attention to the upholstery line that the upholstery process
required for maximum efficiency. Accordingly, according
to Wulfman, supported by Strange, this step of creating the
new position of foreman over the upholstery department
was taken.
In connection with the requested opinions of the uphol-
stery department employees with regal a to the selection of
a foreman , Wulfman admitted that some time after the
union election in August, a new position of foreman of the
mill department was created. In that instance , the Respon-
dent did not request the opinion of the millroom employees
but, instead, selected a foreman from outside the
Respondent's plant. Wulfman testified that this selection
was different than the selection in the upholstery depart-
ment in that there was no outstanding individual in the
millroom whom management thought would be eligible and
qualified to perform the foreman's duties. Furthermore,
there were 80 people in the millroom from whom selection
would have to be made whereas in the upholstery depart-
ment here were no more than a dozen to 15 individuals
employed. Additionally, the man selected for the millroom
had formerly worked for the Company as a foreman and
Strange had assured Wulfman that the man had the ability
and was available. Accordingly, Wulfman went along with
this recommendation and hired the individual.
A series of Respondent's actions which occurred soon
after Laird was made supervisor are alleged by the com-
plaint to have been taken for the purpose of discouraging
union activites and in retaliation for employees' union activ-
ities. According to the complaint, commencing in July the
Respondent, by Laird, announced and initiated a system of
issuing employees written warnings for violation of plant
rules. The testimony offered by General Counsel in support
of this allegation was given by Charles Bradley who, as set
forth above, is alleged to have been discriminatorily dis-
charged. According to Bradley's testimony, Laird called
Bradley into his office and told Bradley that the latter had
broken some plant rules. Bradley questioned Laird about
this statement and asked Laird to prove it. Laird told Brad-
ley that the latter broke the rule about loitering in the rest-
room and another rule about holding up production. Cited
were rules no. 4 and no. 26.
There is no question that these rules had been published
for some time and had been posted by the Respondent long
before the advent of the Union. However, rule no. 4 is a rule
against using abusive language to fellow employees or su-
pervisors and rule 26 would seem to probably fit into what
Laird allegedly told Bradley, namely interfering with pro-
duction by remaining overly long in the men's restroom.
Although Bradley was asked by Laird to sign the written
warning slip, Bradley refused because he told Laird that he
was not guilty of anything.
Bradley further testified that prior to that time he had
never received any warnings for violation of plant rules nor
had he received any verbal warnings or reprimands. Ac-
cording to Bradley the only time he had had any dis-
agreement with any other employee was when Rutherford
had ordered him to do somthing out of the ordinary such
as tearing down a chair and redoing it because, in
Rutherford's opinion, it was not done properly. At those
times, although Bradley might have argued to a certain
extent, he ultimately followed Rutherford' s instruction.
Rutherford, according to the complaint, was and still is a
supervisor in the upholstery department.
About a week after the above incident, Bradley asked
Laird how many warning slips he would get before he would
be discharged and what kind of action would be taken
against him . Laird told Bradley that if the latter received
three warnings he could be discharged. Bradley testified
that he was unaware of any rule of the Company which
indicated that three such warnings could result in discharge.
Bradley had never seen such a rule posted on the board and
no one had ever told Bradley that such a rule existed prior
to Laird's telling him.
Introduced into evidence by General Counsel were two
small notebooks which purported to be copies of written
warnings issued by Dale Kendall, the individual who pre-
ceded Laird as foreman of the upholstery department, and
PAOLI CHAIR COMPANY, INC. 913
by Laird. One of these notebooks was a warning book for
violating the written rules, which also were introduced into
evidence. The second notebook was a record of written
warnings issued to employees who either reported late to
work or left without permission.
In connection with these booklets, Laird testified that
when he became a supervisor and foreman of the upholstery
department he learned about these books from Kendall who
instructed him in how to make out a warning. Some of the
written warnings contained in these books were dated as
early as 1970. Almost all the warnings were signed by Ken-
dall and of course, after Laird became supervisor, by Laird.
They were almost uniformally witnessed by Rutherford,
whom the Respondent called a working foreman or lead-
man.
Thus, it is established that the written warning system did
exist prior to the Union's initial contact with the
Respondent's employees. However, whether this system
also involved a procedure whereby an employee was liable
for discharge in the event he received three such warnings
is a question which must be decided hereunder.
In connection with this warning system and the issuance
of written warnings for violations of shop rules, the exhib-
its heretofore described reveal that Laird issued seven writ-
ten warnings to six employees in the upholstery depart-
ment in violation of 12 different plant rules after Laird
became supervisor. Moreover, Laird discharged one em-
ployee for repeated violations of shop rules. Written warn-
ings were issued by Laird to other employees both before
and after the written warning was issued to Bradley. In fact
some warnings were issued after Bradley was discharged?
Additionally, Plant Manager Strange testified, again
without contravention, that the three warning-discharge
system had been in effect for some time prior to the advent
of the Union although it had never been published. He
admitted, however, that it is very possible that the only
employees who were made aware of this system were those
who were fired for three or more written warnings and were
told about the system at the time of their discharge.
According to the complaint, in early July, the Respon-
dent granted to transferred employees, contrary to past
practice, higher than normal rates and the purpose of this
action was to induce the employees to refrain from union
support or giving assistance in any manner to the Union. In
testifying as an adverse witness, Wulfman admitted that in
July Respondent sought to set up an auxiliary apprentice
upholstery line and that they brought in employees from
other parts of the plant who they thought would qualify to
do upholstery work. Some of these might have been employ-
ees from the mill department. Wulfman admitted that the
Respondent's employees who are on piece work normally
make more on piecework or on an incentive basis than they
do on the guaranteed hourly rate. However, because there
was a shortage of qualified upholsters and because the Re-
spondent unsuccessfully sought through various outside
means to bring in possible future upholsters as learners, the
transfer of mill department employees was made. Wulfman
further testified that upholsters are very valuable employees
and that to make a qualified upholsterer who can earn a
good rate for both himself and the Company takes a lot of
training. Accordingly, and admittedly during the union
campaign, the Respondent told employees on the new lines
that Respondent would give them the amount of money
they averaged in the mill department, or in other depart-
ments before they were transferred into the upholstery de-
partment, for an indeterminate period because the
Respondent's officials did not know how long it would take
for these employees to become adept enough to earn enough
money on an incentive rate system to equal what they were
making in the other departments before they were transfer-
red. Wulfman further admitted that some of these transfer-
red employees who were working on the new upholstery line
were making more on an average than some of the experi-
enced upholsters working in the department.
Admitted in evidence is a statement of Respondent's em-
ployee policies. Policy no. 6 requires that new employees,
unless their individual skills and experience indicate other-
wise, will start at $1.60 per hour. Admittedly, the employees
transferred, as noted above, were making far in excess of
that. Additionally, at a meeting with employees held some
time before the election, the exact time being very vague as
related in Bradley's testimony, Bradley asked the reason for
the increase to these newly transferred employees and why
they were making as much money as they were. At that
time, Wulfman stated, if Bradley's testimony is accepted,
that they dust could not hire upholsters at $2 an hour.
Another incident with regard to raising rates over those
which had theretofore prevailed occurred in late July when
some of the upholsterers, who had skills which could be
used in other departments, were needed in those depart-
ments at a time when the upholstering line was not busy and
these were about to be laid off for a short period. These
employees were needed for these other skills in a hurry. Up
to that time the Respondent had paid 70 percent of their
average wage to employees who were willing to voluntarily
transfer temporarily rather than take time off because their
department was slow. However, at the time in question,
because their skills were needed in other departments imme-
diately, and because the employees in the upholstery de-
partment who were not needed in that department stated
that they would rather go home than work for 70 percent
of their normal earning rate, Wulfman and Strange decided,
in order to induce these employees to stay on and work at
their other skills in other departments, that they would pay
these employees 90 percent of their average rate. It would
seem from the testimony, that since that time, this average
rate of 90 percent has been paid to employees temporarily
transferring from one department to another. Of course, the
initial raise from 70 to 90 percent did come at the height of
the union campaign.3
The complaint alleges a further violation of Section
8(a)(l) of the Act in the Respondent's raising the incentive
rate on a chair known as 303. This rate applied to the skilled
employees in the upholstery department. The 303 chair had
been designed and introduced after Wulfman and his part-
ner had taken over the Respondent's firm in late January
2 From written exhibits which I accept as truthful and from uncontrovert-
ed testimony of Laird.
3 All of the foregoing from credited portions of the testimony of Bradley,
Wulfman , and Strange
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973. At that time , after a study was made by Strange and
others by timing the upholstery work on a model chair
performed by selected individuals of the upholstery depart-
ment, the incentive rate was set on that chair at $2 per unit.
That is, the employees on each line were paid at the rate of
$2 for the entire line for each chair completed.
The chair went into regular production and the uphol-
stery work proved to be quite difficult even for the more
skilled employees, Bradley and Owen among them. Finally,
by the first week in August, the employees were very unhap-
py because they could not turn out enough chairs to make
sufficient money at the $2 incentive rate. Accordingly, they
asked Laird to do something about getting a rate increase.
As a result, on August 14, Foreman Laird told Wulfman,
who was meeting with Superintendent Strange in
Wulfman's office, that there was trouble on the upholstery
line and that the upholsterers had stated that they could not
run the 303 chair at the $2 rate. Upon receiving this infor-
mation , Wulfman, Laird, and Strange proceeded to the up-
holstery department to talk to the employees on the
upholstery line. According to the testimony of Superinten-
dent John Strange , when they arrived at the upholstery
department, employee Wyman stated that the $2 rate on
chair 303 was too low and that the upholsterers could com-
plete only five to five and a half chairs in an hour on their
line. This was something Wyman felt needed immediate
attention.
According to Strange, Strange made some quick mental
calculations and figured that for the employees to average
$4 to $5 an hour, which was the average the Respondent
felt the employees should make, they would have to change
the incentive rate to as much as $3.30 per unit at the produc-
tion rate of five to five and a half chairs an hour. Wulfman
then asked if the 303 chair had been a troublesome matter.
Strange answered that it had been ; that they had never had
the upholsterers in a frame of mind to run this chair and give
it a chance. With that Wulfman stated "All right if it's a
problem it's a problem right now. Temporarily let's make
the rate $3 a chair unit." He also said that they would try
it and see what would happen. At the time that he set the
$3 rate, Wulfman, according to Strange, told the employees
that the $3 incentive rate was strictly temporary. According
to Strange , Wulfman stated "Now I want you to understand
this is not permanent. You say you have a problem. We'll
set this and let's give it a try." However, Strange did admit
that there were no more complaints raised about the 303
chair than about other chairs that had gone through the line
and had been complained about. In testifying, Wulfman
also emphasized that the raise from $2 to $3 on the rate for
the 303 chair was only temporary.
To back up its assertion that the raise in the rate of the
303 chair was a necessity and that it was only temporary,
introduced into evidence was a worksheet which reflected
the workup of the various materials and labor that would
go into the 303 chair and which originally set the incentive
rate at $2. However, that same document shows in Strange's
handwriting, that on or about August 14, after the protest
of the employees, Wulfman temporarily raised the rate to $3
per unit.
On the other hand, Bradley testified that it was true that
the upholsterers thought the $2 rate was inadequate and
that the men had timed themselves and discovered that they
could not run more than five or at the most six chairs an
hour. Bradley further testified, without contradiction by the
Respondent's witnesses, that in the past when the employees
have voiced complaints over chairs they thought were un-
derrated, they did get increases in rates. However, such
increases were normally somewhere from between 5 to 30
cents per unit. According to Bradley, never in the past had
the upholsters received as much as a dollar raise in the rate
of any chair after complaining about it. Moreover, accord-
ing to Bradley, no high official of the Company had ever
personally spoken to the employees in the upholstery de-
partment about the rates.
In connection with all the foregoing, it should be noted
that this raising of the 303 chair incentive rate to $3 an hour
took place just days before the Board-conducted election.
Because the employees' incentive rates were a problem
more or less throughout the plant, the Respondent, in Sep-
tember, after the Board election, retained an industrial con-
sulting firm to study the operations in Respondent's plant
and to make a report on the Respondent's piecework incen-
tive rate system. Wulfman, because the 303 chair was espe-
cially troublesome, directed the firm to study the piecework
incentive rate on the 303 chair. The firm did so and issued
a report in which it recommended a piecework incentive
rate on the 303 chair of $2.02 an hour." Thereafter, after
consulting with Strange, Wulfman adjusted the rate to $2.30
a unit for the 303 chair. This final change in rate was made
on September 19, 1973. This, of course, was after the elec-
tion which the Union lost.
The complaint additionally alleges acts of unlawful inter-
rogation on the part of supervisors.' According to Bradley,
approximately 3 to 6 weeks before the election he went to
the Respondent's lumberyard and spoke to Chester Paul
Brown, the lumber inspector. Brown asked Bradley how
things were going. Bradley answered that it looked pretty
good, that they had approximately 80 percent of the people
signed up and that the Union also had 100 percent of the
upholsterers signed up. Brown then asked Bradley whether
upholsterer Jim Cook had signed up. Bradley answered that
Cook had signed. Brown then volunteered, "Well, I don't
think he'll vote for the Union because he quit and then came
back and got his job back." 6
Another alleged incident of interrogation occurred, ac-
cording to Bradley, about 3 or 4 weeks before the election
and some time after Laird had become a supervisor. Before
Laird became a supervisor, Bradley visited Laird's home
with Wilhite, a union organizer, at which time Laird signed
a union designation card.
The allegedly unlawful conversation, which Bradley
° The portion of the outside firm's report which applied to the 303 chair
was introduced into evidence and supported the claim that the recommended
piecework rate by the outside firm was $2.02 an hour.
5 The complaint also alleges certain acts of surveillance upon employees
union activities mainly upon the activities of Owen and Bradley in distribut-
ing union literature. However, at the hearing , at the close of the General
Counsel's case these allegations were dismissed. The General Counsel in his
brief moves that the decision made at the close of his case to dismiss these
surveillance allegations be reversed and that it be found that the Respondent
did engage in unlawful surveillance of its employees' union activities. Howev-
er, a careful search of the record reveals no reason to reverse this decision.
6 Bradley's uncontroverted testimony in this regard is credited.
PAOLI CHAIR COMPANY, INC. 915
placed as having occurred 3 or 4 weeks before the election,
possibly started by Laird's inquiring of Bradley about a
freezer which Bradley had for sale. At that time, according
to Bradley, Laird asked Bradley if the latter had changed his
feelings about the Union. Bradley answered that his feelings
had not changed, that he felt the same way but that he knew
what Laird's feelings were regarding the matter. I accept
Bradley's version of this conversation despite Laird's denial
of this version. In testifying, Laird gave a different version.'
The last alleged incident of interrogation also involved
Foreman Laird on the day of the election. According to the
undenied and uncontroverted testimony of former employ-
ee Cook, on the day of the Board-conducted election, Laird,
who had a number of "Vote No" signs in his hand, ap-
proached Cook and asked the latter if he wanted a sign.
According to Cook, the incident occurred just before Cook
was scheduled to cast his ballot. No further conversation
ensued after Cook refused the sign and Laird walked away
and left Cook. It should be noted that, in testifying, Laird
did not deny this incident.
2. Concluding findings regarding the allegations of inter-
ference, restraint, and coercion
Counsel for the General Counsel contends that the most
telling factor illustrating that the action of the Respondent
in polling the employees for the selection of a supervisor in
the upholstery department is the undeniable fact that prior
to the advent of the Union the employees of the Respondent
had never been permitted to voice an opinion as to who
should be selected as their supervisor. I agree. Accepting the
testimony of Wulfman that he had experienced in his for-
mer position with other companies better working condi-
tions and more efficiency of production where the
employees had some voice in choosing supervisors, and ac-
cepting the fact that the production in the upholstery de-
partment of the Respondent's plant had been a bottleneck,
nevertheless, the grant of the benefit of having a voice in the
selection of a supervisor constitutes unlawful interference.
Even assuming that the participation of the employees in
the selection of a supervisor was not intended by the Re-
spondent to induce the employees to withdraw their support
of the Union, nevertheless, such action on the part of the
Respondent tended to have the effect of so inducing the
employees. Moreover, the fact that after the election anoth-
er department required a new supervisor who was selected
by the Respondent from outside the plant with the employ-
ees not participating in the selection, tends to support the
finding that the earlier participation of the employees in the
selection of Laird as supervisor in the upholstery depart-
7 Laird testified that it was Bradley who stated to him that Laird's attitude
toward the Union had changed since Laird had become a supervisor He
denied that he in any way asked Bradley what Bradley's feelings toward the
Union were The Respondent contends that Laird's testimony is the more
reliable in that Laird had willingly signed a union designation card before
he became a supervisor and that he was, therefore , not antiunion However,
as hereinafter set forth, Laird did campaign against the Union after becom-
ing a supervisor and, moreover, the conversation was brought out in Laird's
direct testimony by a series of leading questions to which Laird gave hesitat-
ing and, I felt, evasive answers, He had at first denied the entire conversation
and then later, upon being pressed, gave his version Accordingly, I do not
credit Laird in this regard
ment had the effect which is prohibited in Section 8(a)(1) of
the Act.
In coming to the foregoing conclusion I have considered
the argument of the Respondent to the effect that this action
on the part of the Respondent took place almost 2 months
before the election, and, therefore, could not have had the
effect of influencing the employees. However, the fact re-
mains that the action took place subsequent not only to the
inception of the union campaign but subsequent to the filing
of the petition by the Union for a representation election.
Accordingly, I find and conclude that the polling of the
employees, even though perhaps not the deciding factor in
the selection of Laird, was nevertheless a grant of benefit
during the pendency of a representation election which had
the effect or tended to have the effect of inducing employees
to withdraw their support of the Union or withhold the
same . Such action is violative of Section 8(a)(1) of the Act.
With regard to the complaint allegation that the Respon-
dent, through Foreman Laird, announced and initiated a
system of issuing to employees written warnings for viola-
tions of plant rules and implemented the warning system to
discourage union activity and in retaliation for employees'
union activities, I find and conclude that the wntten warn-
ing system was initiated long before the advent of the Union
and long before Wulfman and his associate purchased the
controlling interest in the Respondent's business. This is
clearly established in the General Counsel's own exhibits
which demonstrate that such warnings were given employ-
ees at least as early as 1970.
Thus, the question remains as to whether the implementa-
tion of the system in the case of Laird with regard to
Bradley's alleged violations of company rules was violative
of the Act. The evidence with regard to this matter is the
testimony of Bradley to the effect that some time after he
received a written warning for alleged violation of plant
rules, he asked Laird how many such warnings would be
required for Bradley to receive before Bradley would be
liable for discharge. Laird replied that if Bradley received
three such warnings he could be discharged. Bradley further
testified that he had never before heard of such a system and
certainly had never been told that three wntten warning
slips were sufficient to warrant discharge. The foregoing is
the testimony upon which the General Counsel bases his
contention that the Respondent initiated the system to dis-
courage union activity and in retaliation for such activity.
The Respondent, in order to rebut this testimony, points
to the testimony of Strange who stated that he knew of a
three-step warning system subjecting employees to dis-
charge but did not know whether it had ever been pub-
lished. However, Strange, who was the only Respondent
witness who had been in the Respondent's employ long
enough and in a position high enough to know of such
matters, did not testify to a, specific single other instance
where such a three-step warning system had been applied.
When asked how the employees knew of such a system,
Strange replied that an employee would not know of such
a system until he had received three such warnings and
would be told about it upon his discharge. Again he cited
no specific instance where such a discharge had occurred.
In view of all of the foregoing evidence, I cannot accept
Strange's explanation of the situation. True, some written
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warning system for violation of plant rules had been in
affect. It is likewise true that such a warning system had
existed for some years. However, I find and conclude that
the three-step-and-out system described by Laird to Bradley
had never been used prior to the advent of the Union's
campaign to organize the Respondent's employees or before
the petition for representation was filed by the Union. Ac-
cordingly, I find and conclude that Laird, either on his own,
or by instruction from someone of higher authority, initiat-
ed this system which had the effect alleged in the complaint,
and therefore, violated Section 8(a)(1) of the Act.
We come next to the complaint allegation that the Re-
spondent in early July promised and granted to transferred
employees higher than normal rates, contrary to past prac-
tices. As noted above, these increases were also made in
connection with production in the upholstery department.
I accept as true the claim by Respondent that production
in the upholstery department constituted a bottleneck in the
Respondent's operations. As testified by Wulfman and
Strange, the obtaining and training of upholsterers is a
lengthy process and not all individuals are adept in master-.
ing the required skills. Wulfman testified at some length as
to the difficulties in obtaining upholsterers both from the
outside and from within the plant as transferees from other
departments. Therefore, when, after an attempt made to
recruit individuals from the outside resulted in something
less than success in obtaining promising apprentice uphol-
sterers, the decision was made to select individuals, princi-
pally from the mill department, to transfer into the
upholstery department in an attempt to teach these individ-
uals to perform upholstery work. I accept the fact that Wulf-
man had brought to the Respondent a wealth of experience
from similar operations with which he had been connected.
Accordingly, I find acceptable the claim that Wulfman had
to experiment in order to man the upholstery department
with individuals who could produce in such a fashion that
the upholstery department would no longer be a bottleneck
in the production processes. Accordingly, when Wulfman
transferred employees from the mill department to the ap-
prentice upholstery line, he set a rate which was equivalent
to their average earnings in the mill department which they
had received before their transfer. It is certainly reasonable
to accept the production principle that employees cannot
produce and will not enthusiastically apply themselves to
their work if they are transferred from a position where they
earn more money than in the position to which they are
transferred. Accordingly, this guarantee to these new em-
ployees in the upholstery department I accept as valid even
though , as testified by General Counsel 's witnesses and as
argued by General Counsel , in some instances the transfer-
red employees were making more money and earning more
than some of the older hands in the upholstery department
who were working on an incentive rate basis. Therefore, I
find that the Respondent in guaranteeing these rates did not
in any way seek to induce the employees in the upholstery
department to abandon their adherence to the Union or to
retaliate against them for their union support.
The other instance of alleged inducement to employees
by increasing rates to transferees is, perhaps , a little less
clear in its result but, nevertheless I find and conclude that
this also was not inducement or interference with employ-
ees' Section 7 rights. In this instance, the production in the
upholstery department had slowed down and some of the
employees were temporarily without work. It had been a
practice in the plant, and the testimony with regard to this
is uncontroverted, that when employees were transferred
temporarily, from one department to another, purely on a
voluntary basis, they were guaranteed 70 percent of their
average earnings in the department from which they were
temporarily transferred. On the particular occasion that
brought about the increase in rates, the Respondent had
employees in the upholstery department who were well qua-
lified to perform work that required immediate perfor-
mance in other departments. These employees were given
the opportunity of either temporarily transferring to other
departments or being temporarily laid off for a short period
of time. However, when given this choice, the employees
involved indicated that they would not transfer for 70 per-
cent of their earnings in the upholstery department and
would prefer to go home. Accordingly, faced with the neces-
sity of either not having the work performed in the other
departments which these individuals were qualified to per-
form, or to let the employees go home, and therefore have
a slowdown or breakdown in production in these other
departments, it was decided by Respondent's officials to
give these employees 90 percent of their earnings. The Re-
spondent has since maintained for all temporary transfers
this 90-percent rate.
I find and conclude that under all of the foregoing cir-
cumstances, the increase of the rate from 70 to 90 percent
for temporary voluntary transfers did not constitute inter-
ference, coercion, and restraint within the meaning of Sec-
tion 8(a)(1) of the Act.
Perhaps the most controversial of all of the actions of the
Respondent and that which developed the greatest amount
of testimony and documentary evidence introduced at the
hearing was the increase in the incentive rate granted to the
employees on the upholstery line with regard to the produc-
tion of the chair known as "No. 303." As noted above, the
303 chair was introduced into the Respondent's catalog as
a new product by the new management after Wulfman be-
came associated with the Respondent. It proved to be a
difficult production problem on the upholstery line. Be-
cause of this, at the outset of the production of the 303 chair,
the employees on the upholstery production lines were paid
the equivalent rate of what they had averaged during the
quarter preceding the introduction of the 303 chair. After a
study was made by Strange and others, the rate was set at
$2 per unit. However, after the chair had been in production
for some time at the $2 rate, and at approximately the first
of August, 1973, the employees who were assigned the 303
chair were complaining that they could not produce the
chair in sufficient numbers because of the difficulties of
production to earn a sufficient amount to ensure them of a
return of $4.50 per hour which was the amount the Respon-
dent ideally set for them. As noted above, on the day in
question, Foreman Laird reported to Strange and Wulfman
that the employees were unhappy and indicated that they
could not work on the chair at the rate that had been set,
namely $2. Without further ado, Wulfman and Strange to-
gether with Laird, proceeded to the upholstery department.
Upholsterer Jack Wyman stated to Wulfman and Strange
PAOLI CHAIR COMPANY, INC 917
that the upholsterers could produce only five or five and a
half 303 chairs in an hour and that, therefore, the $2 rate on
the chair was insufficient to assure them earnings of $4.50
per hour. Superintendent Strange did some quick figuring
and stated that with production of only five or five and a
half chairs per hour, the employees would have to be paid
a rate of $3.30 per unit to realize $4.50 per hour. Wulfman
asked whether the chair had been troublesome. Strange re-
plied that it had. Faced with the dilemma of a failure of
production or, possibly, a refusal of the employees to pro-
duce the 303 chair at a time when it was difficult to obtain
upholsterers, Wulfman, on the spot, agreed to pay the em-
ployees, temporarily, the incentive rate of $3 per unit. How-
ever, he also emphasized the fact that this rate was only
temporary.8
In September, the Respondent engaged an outside con-
sulting firm for the purpose of surveying its incentive rate
system and making recommendations for any changes
which could produce increased production and efficiency in
the plant. Because of the difficulties with the 303 process on
that chair and, as a result, the consulting firm recommended
a rate of $2.02. After some discussion among top manage-
ment, Wulfman decided to set the rate at $2.30. This, of
course, was after the election that the Union had lost.
General Counsel contends that the setting of the rate at
an amount much greater than any increase in rates that had
ever been given before the advent of the Union, and setting
it as a temporary rate, and the ultimate reduction after the
Union lost the election amply demonstrates that the Re-
spondent was using this method as a carrot and a stick in
order to induce its employees to vote against the Union by
telling them, within a short time before the election, that it
would give them an abnormally large increase in incentive
rate . This, according to the General Counsel's theory, con-
stituted inducement to the employees to vote against the
Union and, moreover, demonstrated that they did not need
the Union in order to obtain increased benefits. General
Counsel contends this constituted an unlawful grant of ben-
efit and was, therefore, interference with the employees'
Section 7 rights. The Respondent, on the other hand, con-
tends that it was faced with a crisis, in effect, upon which
it had to act or suffer loss of production. General Counsel,
however, further argues that the amount of the increase,
being so much greater than any which had ever been grant-
ed before when the employees complained with regard to
incentive rates indicates that the Respondent was seeking to
induce the employees to vote against the Union in the up-
coming election. Moreover, the General Counsel contends
that the temporary nature of the increase is a prime example
of "the fist inside the velvet glove." 9
However, inasmuch as the Respondent was faced with an
immediate production problem and inasmuch as the Re-
spondent granted the increase only after an indication that
production of the 303 chair was imminently in danger of
being stopped, I find and conclude that, under the circum-
s I find no real contradiction between the testimony of Strange and Wulf-
man with regard to this matter and the testimony of Respondent's witnesses
as to the incident Accordingly, I accept the version of the incident as stated
above
9 See NLRB v. Exchange Parts Co, 375 U S 405 (1964)
stances, Wulfman had no alternative but to grant an in-
crease in the incentive rates With regard to the amount of
the increase, there is a more difficult problem. There is no
evidence in the record to the effect that such a large increase
percentage-wise or dollar-wise had ever been granted be-
fore. However, consideration must be given to the fact that
the decision was made without any study or any previous
thought being given to it and, moreover, the decision was
made in what was almost a crisis situation. Accordingly, the
fact of the unusual size of the increase under these circum-
stances, does not indicate that the increase was given as an
inducement to vote against the Union. Moreover, although
the General Counsel contends that the temporary nature
was an example of the fist in the velvet glove, the stressing
that it was merely temporary is further indication, in my
opinion, that because the rate was set in a hurry without any
study being made with regard thereto, it would have been
unlikely and unreasonable for Wulfman to tell the employ-
ees that the rate set was a permanent rate. Certainly, the
employees could deduce that further study would have to be
made into the rate considering the circumstances under
which the rate was increased. Moreover, when the rate was
reduced in September, it was reduced not by any arbitrary
action on the part of the Respondent to withdraw a previ-
ously given benefit because it was satisfied that the Union
had been defeated in the election but, rather, was the result
of an objective study made by an objective, outside agent.
Accordingly, under all of the circumstances, although the
matter is not completely free of doubt, I find and conclude
that, in balance, the increase of the incentive rate from $2
to $3 was not given for, nor did it have the effect of, induc-
ing the employees to vote against the Union and, therefore,
did not interfere with the employees' Section 7 rights in
violation of Section 8(a)(1) of the Act.
The remaining alleged violations of Section 8(a)(1) in-
volve three alleged incidents of interrogation, two of which
involve Supervisor Laird, and one of which involves alleged
Supervisor Brown. I find without necessity for further dis-
cussion that Laird's questioning of Bradley as to whether
the latter's feelings with regard to the Union had changed
constitutes unlawful and coercive interrogation within the
meaning of Section 8(a)(1) of the Act.
However, I do not conclude that Laird's offering employ-
ee Cook a "Vote No" sign on the morning of the election
was an interference in the nature of unlawful interrogation.
The General Counsel recites the case of Farah Manufactur-
ing Company, Inc., 204 NLRB 173 (1973), as authority for
the finding of such an incident as coercive interrogation.
However, a reading of that decision shows that the supervi-
sor who asked the employee to wear an antiunion button
persisted when the employee refused and asked the employ-
ee why the employee refused to accept and wear such a
button. The facts in the instant case are quite different.
Here, there was no interrogation as to why Cook refused to
accept the "Vote No" sign. It was merely offered, and when
Cook declined to accept, that was the end of the incident.
I find dispositive of this incident the case of Jefferson Stores,
Inc., 201 NLRB 672 (1973), in which the Board stated:
Where, as here, the distributed material and the man-
ner in which it is distributed unaccompanied by threats
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or prorruses of benefit is not coercive, there is no inter-
ference with the election.
It is true that this was not alleged in the instant case as an
interference with the election but as a violation of the Act.
The quantum of proof with regard to election interference
is not nearly as great as the quantum of proof necessary to
find a violation of the Act. Moreover, there is no doubt that
the offer of the "Vote No" sign was unaccompanied by any
threat, any interrogation of Cook, or any promise of benefit.
Accordingly, I find that this incident did not constitute a
violation of Section 8(a)(1) of the Act.
There remains for disposition the alleged interrogation of
Bradley by Lumber Inspector Brown some time during the
campaign period after the Union had filed the petition for
an election. As argued by the General Counsel, Brown's
interrogation of Bradley concerning employee Cook's union
sympathies constitutes the type of interrogation uniformly
found by the Board to be violative, in that inquiries con-
cerning employees' union sympathies, or of their fellow em-
ployees constitutes coercion within the meaning of Section
8(a)(1) of the Act. However, in the case at bar, the Respon-
dent contends that Brown is not a supervisor but rather a
rank-and-file employee and, accordingly interrogation by
Brown cannot be a violation of the Act attributable to the
Respondent.
Brown's principal duties are the grading and inspecting of
lumber used in the manufacture of furniture. His work is
performed in the lumberyard which is situated away from
the main plant but contiguous therewith. Brown testified
that for the greater part of the day he works with the three
other employees in the lumberyard without any supervisor
actually present except for a period of perhaps an hour each
day when either an employee named Hutsler, whom Brown
describes as a leadman, or Doc Wellman, an admitted su-
pervisor, come out to instruct Brown as to the work to be
performed by Brown and the other three employees. Ac-
cording to Brown, he then passes on these instructions to the
other three men in the lumberyard. Brown testified further
that he has no authority to hire, fire, discharge or discipline
or to recommend the same. If an employee in the yard
desires time off or asks for a raise, Brown passes such re-
quests on to either Hutsler or Doc Wellman or, in some
instances, to Superintendent Strange. Brown also testified
that he is hourly paid, as contrasted with the Respondent's
other admitted supervisors who are on salary. Brown re-
ceives a wage of $3.29 an hour compared to $2.62 per hour
received by other yard employees. Brown has never been
told by management that he has authority to decide how the
employees in the yard are to perform their work. Admitted-
ly, he does, upon occasion, instruct new employees on how
to perform their work but for the most part the work is
routine and the men know what to do. Brown has never
attended any supervisory meetings. Upon occasion Brown
has passed out paychecks when, for some reason, Hutsler
has asked him to do so or in Hutsler's absence. Brown
normally receives a Christmas bonus of $25 as do all other
rank-and-file employees. Brown does not keep records of
"hour work" data which is necessary for an employee to
receive credit for the computation of wages. When addition- , ,
al help is needed in the yard, Brown admits he asks Hutsler See F Strauss & Son, Inc , supra
or Wellman for the additional employees. In the main, the
foregoing constitutes the evidence upon which the Respon-
dent relies to demonstrate that Brown is not a supervisor.
However, on the other hand, employee Bradley testified
that when he was first employed he worked in the lumber-
yard with Brown. He testified that at one time Brown grant-
ed him time off without consulting any higher authority.
Also, Brown told the men what to do and when and where
to do it. Additionally, Bradley testified that on an occasion
6 years before the hearing, he was temporarily reassigned to
the lumberyard and Brown was performing the same work
that Brown had performed and the same authority he had
exercised at the time Bradley had worked in the lumberyard
before the events herein.
The General Counsel argues that because the lumberyard
is situated away from the plant proper, and because there
is no other supervisor actively engaged in the lumberyard
operations most of the time, Brown must therefore have
some authority which would make him a supervisor. If,
according to the General Counsel Brown is not a supervisor
the result is an incredible situation of four employees work-
ing away from the main facility without any supervision.
General Counsel further argues that since Brown guides
the yard employees in their daily work, no matter how rou-
tine the work, Brown must responsively exercise indepen-
dent judgment, absent any other close supervision.10
The Respondent, on the other hand, points to other testi-
mony of Brown in which Brown states that he voted in the
election. Furthermore, there is testimony in the record by
Strange to the effect that Hutsler is really a plant clerical
who relays instructions to Brown from Wellman who is the
overall supervisor of several departments including the lum-
beryard. Futhermore, the Respondent argues, as testified by
Brown , that Brown voted in the election that was held and
that his name was on the so-called "Excelsior" list as a
rank-and-file employee. Accordingly, Respondent urges the
conclusion that Brown possesses no indicia of supervisory
authority as related by Brown, and that Brown is not and
cannot be considered a supervisor.
Although I found Brown to be a most candid witness and
accept his testimony, I find that despite this testimony
Brown does possess supervisory authority for the following
reasons. Although the work in the yard is somewhat routine,
for a period of most of the workday in the yard, no other
supervisor is in the yard to direct the employees in their
work. As contended by the General Counsel, I find that
Brown therefore'must guide the lumberyard employees in
their daily work even though the work is, for the most part,
routine. Therefore, I find that Brown must exercise some
independent judgment absent any additional close supervi-
sion ." Moreover, the fact that Brown asked for and gets
additional help in the yard when he finds such necessary
indicates that the Respondent has vested him with sufficient
authority to regulate and oversee the work in the lumber-
yard. This, from Brown's own testimony. Moreover, I find
merit in the counsel for the General Counsel's contention
that inasmuch as the yard is separated from the main plant,
the result would be a situation of four employees working
10 See F Strauss & Son Inc 200 NLRB 812 (1972)
PAOLI CHAIR COMPANY, INC. 919
away from the main facility without any close supervision
if it were to be determined that Brown is not a supervisor. 12
Accordingly, I find that Brown 's interrogation of Bradley
with regard to Cook's union sympathies constituted a viola-
tion of Section 8(a)(l). This is so even though Bradley and
Brown may have been on very friendly terms.13
C. Alleged Discriminatory Discharges
1. Charles Bradley
Bradley was employed by the Respondent in January
1963. He held various jobs in various departments and at
the time of the events herein he was an upholsterer. His
average incentive rate at that time was $4.54 an hour.
On May 8, 1973, Bradley was given a union designation
card by a fellow employee, which card Bradley immediately
signed. He attended most of the campaign meetings during
the campaign. Additionally, Bradley distributed union au-
thorization cards during the campaign and signed up be-
tween 25 and 30 employees. Bradley also handed out leaflets
at the gate of the plant and was observed in this activity by
Wulfman. Bradley also talked to fellow employees inside
the factory during breaks and the noon hour and accompa-
nied union representatives to people's homes to induce them
to sign union cards and to support the Union. Additionally,
Bradley's picture appeared, among a number of other em-
ployees' pictures, in the local newspaper as part of a union
advertisement in which Bradley, as were the other employ-
ees, was quoted with regard to his reasons for supporting the
Union. Additionally, for a day or two before the election
Bradley wore a T-shirt bearing the Union' s insignia, while
working. Finally, Bradley was an observer for the Union at
the election.14
Whatever Bradley's relationship with Laird as a fellow
employee had been before Laird was made a supervisor, it
is apparent that from the date of Laird's appointment, the
relationship between the two became somewhat strained.
Thus, according to credited, uncontroverted testimony of
employee Cook who was called as a witness by the General
Counsel, when it was learned that Laird was to be the super-
visor of the upholstery department, Bradley told Cook,
"Well, I don't want to work for him." Sometime later that
same day, when Laird returned to the department, Cook
told Laird that it looked as though some of the men were
against Laird. Cook further told Laird that the latter was
going to have to "do things right" or Laird would not get
12 See the The Bama Company, 145 NLRB 1141 ( 1964), Sturgeon Electric
Company, Inc, 166 NLRB 210 (1967)
17 See Arkansas Grain Corporation , 160 NLRB 309 (1966 ). Respondent
argues that in disposing of challenges to ballots in the representation election,
the Charging Party and the Respondent stipulated that Brown and another
employee , Rutherford, were rank -and-file employees and their ballots were
counted as a result Respondent contends that this, in and of itself, makes
it unethical at this time for the General Counsel to contend that Brown and
Rutherford are supervisors However, the Regional Director was not a party
to the stipulation nor, did General Counsel, by the Regional Director, or the
Board decided in any way after litigation that either of these individuals were
rank-and-file employees . Accordingly, I find no merit in this contention of
the Respondent
14 All of the foregoing from uncontroverted testimony of Bradley which I
credit
cooperation from the employees. Cook also told Laird that
"in fact one guy told me that he didn't want to work for
you." Laird then asked if that man was Bradley. Owen
answered in the affirmative. Laird then stated, "Well, he just
may not be working here much longer anyway."
As set forth heretofore, 2 or 3 weeks after Laird became
supervisor he gave Bradley a written warning for alleged
violations of plant rules. The rules that were allegedly bro-
ken were rules 4 and 26 and the charge against Bradley was
that he had loitered in the restroom thereby holding up
production and had used abusive language toward fellow
employees. Rule 4, cited above, pertains to the use of abu-
sive language and rule 26. pertains to interfering with pro-
duction. Bradley testified that he had never, to his
knowledge, loitered in the restroom or slowed down produc-
tion on a production line. Nor did he ever use abusive
language to his fellow employees or supervisors. Bradley
refused to sign the warning slip because he felt he had not
broken any rule.
The next encounter between Bradley and Laird took
place about a week after Bradley received the written warn-
ing. Bradley asked Laird how many warning slips he could
receive before he was liable to be discharged.
About 3 or 4 weeks before the election the conversation
between Bradley and Laird took place in which Laird asked
Bradley if the latter had changed his feelings toward the
Union.
About a week before the election the upholsterers were
summoned to a meeting in the plant's sample room . During
that meeting Bradley asked Wulfman why they had "cut
one new line of upholsterers." Wulfman answered they
could not hire upholsterers who would work for $2 an hour.
Then Wulfman asked Bradley if the latter was for the Union
and Bradley answered that he was for the Union.15
As noted above, Bradley acted as an observer for the
Union at the election.
According to Laird, on August 25, the day after the Boara
conducted election , the upholsterers were starting work on
a new model chair. Bradley told Laird at that time, that the
"puce" of the chair was not right and that he did not have
to work for that "price." He then told Laird that Laird
should tell Dale Kendall that Bradley was giving 1 week's
notice as of that date and that he was quitting. Bradley did
not work that afternoon nor did he ever file an excuse for
not working with Laird. Bradley, in testifying, denied that
he gave notice to Laud at that time but admitted that he did
not work that afternoon. According to Laird's testimony,
Bradley returned to work on the following Monday, August
27, and at that time Bradley informed Laird that he was not
leaving on the 31st as he had planned. Laird testified that
Bradley stated that he did not have another job, that he was
looking for another job and would be leaving as soon as he
found another job. I am convinced from the detail of Laird's
testimony as contrasted with Bradley 's denial , that, in this
instance , Laird's testimony is the more reliable.16
is From credited testimony of Bradley I do not credit Wulfman 's denial
that it was Bradley who spoke out. According to Wulfman it was Owen who
spoke out I believe that in this instance Wulfman 's recollection was imper-
fect.
16 Respondent contends that because Laird additionally stated that pattern
Continued
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event, early in October, Bradley did tell Laird that
he was going to quit as soon as he could find another job.
He told Laird that he had a possibility of another job and
as soon as the other job opened up Bradley would be going.
According to Bradley, Laird asked Bradley what date the
latter planned to leave. Bradley answered that he could not
give an exact date because the man that was hiring Bradley
did not know when the new factory would start. According
to Bradley, Laird answered, "Well, I'm glad you told me this
because we got the work for you to do, and I'm glad you're
going to work up to the time that you'll going to go to your
new factory." I credit this testimony of Bradley.
About a week after Bradley gave the above notice, Brad-
ley overheard a conversation between Laird and employee
Wayne Wilson, in which Laird told Wilson that the latter
should come to Laird's office, that Laird wanted to speak
to him. At that point Bradley broke in and asked Wilson
"What are you going to get, a white slip or a pink slip?"
With that, Laird asked Bradley to come to his office. When
he arrived there, Bradley was told by Laird that if Bradley
did not keep his mouth shut he was not going to work until
his time was up at the chair factory. When Bradley asked
why, Laird answered to the effect that Bradley did not have
any business saying anything to Wilson, that Bradley was
aggravating Wilson.
About the same time another incident occurred involving
Vern Rutherford and Bradley. According to Respondent
Rutherford is a leadman and not a supervisor. General
Counsel contends that Rutherford is a supervisor.
Rutherford's status will be discussed below. On the particu-
lar day in question, Bradley was engaged in a conversation
with some of the ladies in the upholstery department and
told them "If I thought the Union would come in the next
time, I would go ahead and try and get the Union in." One
of the ladies said "Well, you got to keep quiet, Vern Ruther-
ford is standing behind you." With that Bradley turned
around and saw Rutherford behind him. He then told Ruth-
erford, as he had told the ladies, that he would stay and help
if he thought the Union would come in the next time and,
in that event, he would not quit."
Although Rutherford testified that he possessed none of
the attributes of a supervisor, Bradley testified that the em-
ployees in the department considered Rutherford a fore-
man. Moreover, Bradley cited incidents on the production
line when Rutherford came back to Bradley and instructed
the latter to redo a chair that was not properly upholstered.
Additionally, Rutherford was required to witness the writ-
ten warnings given to employees. This is evident from the
warning books introduced into evidence. The warnings in
the upholstery department were uniformly witnessed by
maker Grimes was standing alongside Laird when Bradley told Laird on
August 24 that he was leaving , Respondent's failure to call Grimes as a
witness to support Laird's testimony gives rise to an inference that if Grimes
was called to testify he would testify adversely to the interest of the Respon-
dent. I do not agree in this instance . Although I have not credited Laird in
other instances , and have credited Bradley over Laird in those instances, it
should be noted that it has been held that to the extent that a judge credits
a witness only in part , he may do so upon the evidentiary rule that it is not
uncommon "to believe some and not all of a witness' testimony ." N.L.R.B.
v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2, 1950).
17 From the credited testimony of Bradley.
Rutherford. Accordingly, I find that Rutherford is a super-
visor within the meaning of the Act. However, even if Ruth-
erford is not a supervisor, because of the fact that he is the
witness to these warnings , and because of the fact that he
can instruct upholsterers to redo chairs, I find that he at
least is an employee who occupies a special category or
position and that the employees in the department had and
have a reasonable basis to believe that Rutherford was and
is a conduit to and from the upper level of supervision of
the Respondent.18 Accordingly, I find and conclude that the
conversation between Bradley and Rutherford with regard
to Bradley's withdrawal of his desire to quit if he thought
he could get the Union in was notice to the Respondent of
Bradley's statement.
On October 12, 1973, Bradley and Owen were discharged,
although Laird, in testifying, insisted on calling it a perma-
nent layoff. It is conceded that the discharges of Bradley
and Owen were the first ever experienced on the upholstery
line at Respondent's facility. Additionally, former employee
Cook, who quit the Respondent's employ in November
1973, testified credibly that sometime in August, just before
or just after the election, he informed Foreman Laird that
he was unhappy with the situation at the Respondent's plant
and on the upholstery line and that he was going to look for
another job and as soon as he found one he would be
leaving. Laird then told Cook that he did not want the latter
to leave the chair factory, that they needed him. Bradley
also informed Cook that he had already received notice
from "2 other guys" that they were going to be quitting later
on. He stated that he did not want Cook to go, that he was
the only one that he would ask to stay. He also added that
the Company would probably be better off without those
other guys. Although Cook was somewhat vague about the
date of this conversation, he was very specific about the
details, did fix a date either just before or just after the
election.
2. Robert Owen
Owen worked for the Respondent from September 1962
until he was "permanently laid off," October 12, 1973. He
was transferred to the upholstery department from the web-
bing department in the spring of 1966 and from that time
worked in the upholstery department until his employment
with the Respondent was severed. At the time of his dis-
charge, Owen's rate of pay was $4.50 per hour on an incen-
tive pay basis. Owen's activity on behalf of the Union
closely parallelled that of Bradley. He served on the orga-
nizing committee, distributed union literature at the plant
gate and in the plant during breaktime and before and after
work, solicited the signing of cards by visiting the homes of
some of the employees, his picture appeared in the local
paper in the advertisement referred to above, he wore a
union T-shirt before the election and, in fact, helped distrib-
ute the shirts to employees as they entered the plant on the
morning of the election. Although he did not act as an
observer for the Union at the election, he did sign, along
with a number of other employees, a letter to the Respon-
dent dated May 9, 1973, informing the Respondent that the
18 See Harrison Sheet Steel Co., 94 NLRB 81 (1951).
PAOLI CHAIR COMPANY , INC. 921
employees were engaged in legitimate union activity.
Owen credibly testified that on August 22, the day before
the election, the Respondent held a meeting of the employ-
ees in the upholstery department. At that meeting, Wulfman
stated, "Well, we saw your pictures in the paper and we saw
your picture in there, Rocky." "Rocky" is a nickname by
which Owen is known. Owen answered Wulfman by stating,
"I'm proud of it and people know how I feel." Wulfman
stated , "If you want a union, get a good union." Owen asked
if Wulfman was volunteering the information on a good
union. Wulfman answered that there was no good union.
Owen further testified that after the election, Owen in-
formed a number of employees that he might be quitting.
Sometime around the first of October, on the production
line in the upholstery department, Owen asked Laird what
length of time the Company required for notice of quitting.
Laird answered the Company required 2 weeks' notice.
Thereupon, Owen told Laird that Owen would be quitting
in the future but he did not give him any definite date as to
when he would be quitting. Laird stated that "On your
release papers, I will not put down the date that you give me
for a notice to quit." Laird further stated that "We will leave
it open and since you're nice enough to tell us you're going
to quit we'll leave it open and in that way we will be square."
On October 12, at the same time that Bradley was perma-
nently laid off, Owen was permanently laid off. At that time
Bradley asked if they were fired and Laird answered, "You
may say that." Laird told Owen at that time that it was out
of his hands that he had to do what he was told to do.
Laird testified, with regard to Owen informing Laird that
Owen was planning to leave Respondent's employ, that
about the first of September, Laird first heard Owen was
possibly planning to leave Accordingly, at that time Laird
questioned Owen about the matter. He told Owen that he
had heard that Owen was leaving and asked Owen if the
latter was leaving. Owen answered in the affirmative. Owen
said he did not mind telling Laird that he would be leaving
about the middle of October. Laird spoke to Owen a num-
ber of times thereafter on the line about the same matter and
each time he spoke to Owen, Owen said the same thing. In
fact, Owen told Laird that Owen was going to work for
former employee George Giles at a new factory in Mitchell,
Indiana. Giles had left Respondent's employ on September
7.
I do not necessarily find any conflict between the testimo-
ny of Owen and the testimony of Laird with regard to the
information that Owen was leaving Respondent's employ
about the middle of October. I find that Owen did inform
Laird early in September that Owen was planning to leave.
I find, therefore, that as early as the first part of September,
the Respondent had knowledge that Owen and Bradley
were both planning to leave.
3. The Respondent's defense to the allegations of dis-
criminatory discharge
Throughout the entire above-related course of events,
there was woven the claim by the Respondent that the pro-
duction in the upholstery department was extremely trou-
blesome, that upholsterers were difficult to obtain and that
the efficiency in the upholstery department was not very
high. It is uncontested that, in September, three of the
Respondent's experienced upholsters did quit their jobs
with the Respondent. This left 12 experienced upholsters in
the department who were, at that time, manning 3 uphol-
stery production lines. Five experienced upholsters were
working on upholstery line one, four experienced upholsters
were working on upholstery line two, and only three experi-
enced upholsterers were working on upholstery line three.
The testimony of Wulfman and Strange relating to the
solution of this problem follows. On October 10 Wulfman
asked Superintendent Strange "What about our upholstery
lines? Why have we lost units?" Strange thereupon ex-
plained to Wulfman that the uneven composition of the
experienced upholstery lines placed Respondent "in a poor
position for good efficient work." As a result of this conver-
sation, Upholstery Department Foreman Laird was called
down to the meeting. The three met not only on that date
but intermittently for 3 days to discuss what should be done
about the upholstery lines and the inability to procure expe-
nenced upholsterers. Finally, out of these discussions they
devised a plan whereby they would consolidate the three
lines of uneven numbers to two lines of five a piece. Accord-
mg to Strange, they finally made this decision out of their
experience as to what would be the most efficient and "more
or less by the seat of their pants " They determined that if
10 experienced upholsterers could be positioned on 2 uphol-
stery lines, greater efficiency would result and production
would increase. The question then arose as to what they
would do with the two surplus upholsterers. If they consoli-
dated their lines to two lines of five men each, there would
be two surplus upholsterers. At that point Laird reminded
Strange and Wulfman that Charles Bradley and Rocky
Owen were planning to leave. Accordingly, it was decided
that inasmuch as Owen and Bradley were planning to leave
anyway, they would be the ones to be laid off. Accordingly,
Laird was instructed to lay off Bradley and Owen.
To support all of the foregoing testimony of Strange and
Wulfman, the Respondent introduced into evidence a docu-
ment prepared by Strange which purported to demonstrate
that the two five-man line produced more earnings for each
man than did the three uneven lines. Thus, it showed that
for the 2 weeks before October 15, 1973, the three lines
combined worked for 830 man-hours and earned a com-
bined total of $3,718.94. The dollars earned per man-hour
totaled $4.48. The same chart showed that for the 2-week
period following October 15, the date of the installation of
the two five-man lines, there was a total number of hours
worked of 787.5, for a total dollars earned figure of
$3,850.60. The dollars earned per man-hour were $4.89.
This chart, if accepted, would indeed demonstrate that the
two five-man line were more efficient than the three uneven
lines . Additionally, it shows that the total dollars earned was
somewhat more, approximately $132 more than the dollars
earned on the uneven line. Strange testified that this shows
that the more dollars earned per man-hour, since the em-
ployees are on an incentive pay basis, clearly demonstrates
that the Respondent operated more efficiently under the
new system. However, Strange was asked by counsel for the
Respondent whether that necessarily means that more
pieces of production items were produced during the period
after October 15 Strange answered, "No."
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In contrast to the foregoing, Bradley testified that for at
least a year and a half before the event of October 12, the
Respondent had successfully operated four-man lines. Re-
spondent did not put in any figures showing the efficiency
of three four-man lines as contrasted with the efficiency of
two five-man lines. In fact, Wulfman admitted upon exami-
nation by counsel for the General Counsel that there were
times when a four-man line was more efficient than a five-
man line.
General Counsel also relies on the testimony of
Respondent's witnesses to the effect that in November, after
the five-man line had been utilized for some time, the Re-
sponden: hired two other upholsterers. Respondent, howev-
er, explained this through testimony of Strange who stated
that, as noted heretofore, employee Cook left the
Respondent's employ early in November. Accordingly, the
Respondent had to hire an employee to replace him. The
Respondent was fortunate enough to obtain an employee
who was experienced on upholstery lines and who was able
to take Cook's place. The other employee hired after the
date of the layoff of Bradley and Owen, was a man who was
placed, not on one of the two five-man experienced uphol-
stery lines, but on the apprentice line. He quit after only 1
day. I accept this testimony inasmuch as there is nothing in
the record to controvert it.
General Counsel sought testimony to show that the five-
man line did not produce enough merchandise to meet de-
mand and did not produce as much as three four- man lines
would have produced. However, Strange testified that the
only overtime work that was required was performed just
before Christmas when there was an unusual demand for
the Respondent's merchandise.
4. Discussion and concluding findings
Counsel for the General Counsel contends that the
Respondent's adoption of the five-man line was a subter-
fuge and a pretext in order to eliminate two very active
union adherents from its employ. He points to all of the
events that occurred from the time the Union began its
organizing drive up to the date of the discharge with regard
to both Bradley and Owen to show that the Respondent not
only was aware of Bradley's and Owen's very active partici-
pation in the Union's campaign, but, moreover, that the
Respondent, through Laird, was harassing Bradley from the
inception of Laird's appointment as foreman of the uphol-
stery department. He bolsters these arguments with the tim-
ing of the discharge which he contends is extremely
suspicious in that it followed by only a short time the date
of the Board-conducted election.
The Respondent, on the other hand, contends that the
discharge, or "permanent layoff," of Bradley and Owen was
the result of two coinciding factors. These were the quitting
of three skilled upholsterers in September which resulted in
the unbalanced production lines and the giving of notice by
Owen and Bradley that they intended to quit when they
were able to find other jobs. Accordingly, argues the Re-
spondent, it was only logical and good business to lay off,
upon deciding about the consolidation of the production
lines, employees who had informed the Respondent that
their tenure with the Respondent was temporary and would
last only until such time as they obtained employment else-
where.
In further support of its contention, Respondent argues
that from the date of the consolidation of the lines to date,
the Respondent has not reinstated the three-line system of
four men apiece and that this is because it has been amply
demonstrated that the method of operation adopted on Oc-
tober 15 proved to be the most efficient.
However, General Counsel points out that employee
Cook also, prior to October 12, announced to Laird that he
was dissatisfied with his job and that he would be leaving
as soon as he could find other work. As a matter of fact,
crediting Laird with his testimony to the effect that both
Owen and Bradley gave him notice around the end of Au-
gust or the beginning of September, Cook also gave notice
at approximately the same time as did Bradley and Owen
and therefore, it would seem that there must have been
other reasons why Owen and Bradley were selected for
layoff. Even assuming that the two five- man balanced lines
were adopted for nondiscriminatory reasons and for the
purpose of increasing efficiency on the upholstery produc-
tion lines, the question still remains as to why Owen and
Bradley were selected as against Cook and Bradley or Cook
and Owen or Cook and other employees.
Not heretofore related was the introductions into evi-
dence of two separate documents which were purportedly
objectively filled out by Laird regarding the separation of
Owen and Bradley and which contained, in addition to the
reasons therefor, a profile of each employee which, accord-
ing to Respondent' s witnesses , is made out for each employ-
ee who leaves the Respondent's plant. These profiles, called
"Foreman's Report of Unemployment" list a number of
employee attributes such as cooperation, quality of work,
and quantity of work, which the foreman grades as out-
standing , above average, average, below average and unsat-
isfactory. With regard to Owen, Laird graded the latter
below average in cooperation and in conduct. With regard
to Bradley, Laird graded Bradley uncooperative and unsat-
isfactory in that phase of his work. When pressed by the
General Counsel as to why Bradley and Owen were selected
for layoff, Wulfman and Strange both contended that the
reasons were purely the fact that they had been given notice
of quitting by the two and Respondent had decided to con-
solidate the lines. However, when asked why Bradley and
Owen were not recalled when openings appeared in the
production line after Cook quit, Wulfman at first testified
that that was because they had quit and had not asked to
return . Wulfman also testified that Respondent did not con-
tact Bradley and Owen because they were violent, exhibited
by their yelling and shouting at their foreman. However,
Wulf man admitted that he was not present when the alleged
violence occurred and there was no other testimony in the
record with respect to this alleged violence. Also, Wulfman
originally testified that the alleged deficiencies in Laird's
supervisory reports or profiles on Bradley and Owen were
not the reasons for Respondent not recalling Bradley and
Owen. Later, however, Wulfman changed his mind and said
he placed reliance upon those reasons and asserted that if
Respondent had considered recalling Bradley and Owen,
which it did not, those reasons would have been considered.
However, Laird could not really substantiate, in my opin-
PAOLI CHAIR COMPANY , INC. 923
ion, that Bradley and Owen really were uncooperative and
unsatisfactory employees . This despite Laird 's characteriza-
tion of Bradley , in testifying , as the worst employee in the
department . Laird failed to testify to a specific example as
to why he felt this was so. Moreover , Bradley testified that
the Respondent used Bradley 's ability to produce sample
chairs for potential customers . Certainly , I find and con-
clude , that the worst employee in the department would not
have been selected for this work.
Additionally , the Respondent relies on the fact that all of
the employees (with the exception of a few who quit) who
signed the letter in May which Owen also signed informing
the Respondent that they were engaged in lawful union
activity , were still working in the plant at the date of the
hearing. Furthermore , the Respondent argues that Owen
and Bradley were certainly not the only employees who
engaged openly and actively in support of the Union. Addi-
tionally, the upholstery department employs approximately
25 employees , whereas the Respondent's employee comple-
ment is somewhere nearer 300 . Respondent contends that,
therefore , it would be very peculiar if the Respondent were
to discharge only union activists in the upholstery depart-
ment in retaliation for their union activity and not do the
same to union supporters in other departments . Respon-
dent , lastly, argues that Owen and Bradley announced they
were quitting ; they abandoned their jobs and thereby lost
the protection afforded by the Act . However , as noted
above, Cook also gave notice but the Respondent did not
consider that Cook had abandoned his position with the
Respondent.
Therefore , I find that the contentions of the General
Counsel have merit . Accordingly , I find and conclude that
the Respondent discharged Bradley and Owen for their ac-
tivity on behalf of the Union . In coming to the foregoing
conclusion , I rely upon such factors as (1) the timing of the
discharges soon after the Union lost the election , (2) the
statement by Bradley to Rutherford that if he thought he
could bring the Union in again he would not quit, (3) the
growing enmity between Laird and Bradley which , I find,
was due in part from Laird 's changing his support of the
Union as an employee to his support of the Respondent
after his appointment as a supervisor as demonstrated,
among other things , by his interrogation of Bradley and his
distribution of the "Vote No" signs , (4) the fact that the
Respondent did not consider Cook for discharge , although
he, like Bradley and Owen , had notified the Respondent
that he too would quit when he could find other employ-
ment, (5) the statement by Wulfman at the meeting of em-
ployees shortly before the election to the effect that there are
no good unions , (6) the vacillation of Wulfman in testifying
insisting that the only reason the Respondent discharged
Owen and Bradley was that they had given notice and yet,
upon being pressed , Wulfman stated that he would not
rehire them because of the fact that the report written by
Laird when these individuals were let go showed that they
were unsatisfactory employees , (7) the unsubstantiated alle-
gation by Wulfman that Respondent would not rehire Brad-
ley and Owen because they were violent and , finally, (8) the
fact that Respondent normally, in a layoff , tried to employ
laid-off employees in other parts of the plant and did not
do so with Bradley and Owen , although both of these em-
ployees had skills which the Respondent needed in other
parts of its plant.
Thus, even assuming that the consolidation of the pro-
duction lines in the upholstery department was the result of
a valid and nondiscriminating business judgment , the selec-
tion of Bradley and Owen for layoff was, by reason of all
of the foregoing , discriminatory and violative of Section
8(a)(3) and ( 1) of the Act. The fact that the Respondent
retained the two five -man lines after the tryout period may
bolster the Respondent 's argument somewhat , but never-
theless, I find that by reason of all of the foregoing, the
credible evidence preponderates in favor of a finding that
the discharges and refusal to reinstate Bradley and Owen
were discriminatory.
I also conclude that the reasons Laird gave for the warn-
ing slip given to Bradley by Laird in July, allegedly because
Bradley remained overly long in the men's restroom and
because Bradley used abusive language to his fellow em-
ployees, remain unsubstantiated on the record . I find that,
in the light of all the other circumstances of this case, the
warning was given Bradley for the discriminatory purpose
of discouraging union membership and that the issuance of
the warning therefore constitutes a violation of Section
8(a)(3) and ( 1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activity of the Respondent set forth in section III,
above , occurring in connection with the operation of the
Respondent described in section I, above , have a close,
intimate, and substantial relationship 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
Having found , as set forth above , that the Respondent
has engaged in certain unfair labor practices , it will be rec-
ommended that it cease and desist therefrom and take cer-
tain affirmative action , as set forth below , designed to
effectuate the policies of the Act.
It having been found that the Respondent, by unlawful
interrogation, grants of benefits and initiating a new appli-
cation of its system of warnings , has restrained and coerced
employees and interfered with their Section 7 rights in viola-
tion of Section 8(a)(1) of the Act , I shall recommend that
the Respondent cease and desist therefrom.
It having been found that the Respondent discriminatori-
ly discharged and has refused and is refusing to reinstate
Charles Bradley and Robert Owen , I shall recommend that
Respondent offer them immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges. In
addition , I shall recommend that the Respondent make
each whole for any loss he may have suffered by reason of
the discrimination against him by payment to each a sum
of money equal to that which each would normally have
earned from the date of his discharge , less net earnings
during said period . Backpay shall be computed with interest
on a quarterly basis in the manner described by the Board
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in F. W. Woolworth Company, 90 NLRB 289, 291-295
(1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The 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 unlawfully interrogating its employees, by granting
benefits which have the tendency to induce employees to
vote against the Union or abandon the Union or refuse to
support the Union, and by instituting a new application of
its system of warnings during the union campaign, the Re-
spondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed said em-
ployees in Section 7 of the Act and thereby Respondent has
engaged in, and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By discriminatorily discharging its employees Charles
Bradley and Robert Owen, the Respondent has violated
Section 8(a)(3) and (1) of the Act.
5. By discriminatorily issuing a written warning to
Charles Bradley, the Respondent has violated Section
8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(b) of
the Act, I hereby issue the following recommended: 19
ORDER
Respondent, Paoli Chair Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sympathies and activities and the union sympathies
and activities of other employees; granting benefits to em-
ployees for the purpose or with affect of inducing said em-
ployees to refrain from engaging in union activities and to
repudiate the Union; instituting warning systems for the
purpose of retaliation against employees for engaging in
union activities and in order to discourage employees from
engaging in said activities.
19 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
(b) Discouraging membership in United Furniture
Workers of America, AFL-CIO, or any other labor organi-
zation, by discharging or giving unwarranted written warn-
ings to any employee for engaging in union or other
protected concerted activities or discriminating against em-
ployees in any other manner in regard to their hire or tenure
or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to form,
join, assist, or be represented by United Furniture Workers
of America, AFL-CIO, or any other labor organization, to
bargain collectively with representatives of their own choos-
ing or to engage in other concerted activities for the purpos-
es of collective bargaining, or other mutual aid of
protection, or to refrain from any and all such activity ex-
cept to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment as authorized under Section
8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Charles Bradley and Robert Owen immediate
and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make each
whole for any loss of earnings each may have suffered by
reason of the discrimination against him in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination copies of all payroll
records, social security payment records and reports, and all
other reports necessary to analyze the amount of backpay
due under this Order.
(c) Post at its facility in Paoli, Indiana, copies of the
notice attached hereto marked "Appendix." 20 Copies of
said notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60 consecu-
tive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be dis-
missed insofar as it alleges violations of the Act not found
herein.
20 In the event that the Board's Order is enforced by a Judgment of a
United Stated Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board.