Stanley Manufacturing Co.

National Labor Relations Board - Board Decisions

May 28, 1964

147 N.L.R.B. 169 (N.L.R.B. 1964)

STANLEY MANUFACTURING COMPANY 169
project during this same period 2 Such out-of-State purchases of
Amoskeag and Costigan combined constitute sufficient direct and in-
direct inflow to meet the Siemons nonretail standard and, in accord
with established Board precedent, to warrant the assertion of juris-
diction over Costigan, the primary employer, and the secondary em-
ployers, including Amoskeag, affected by the Petitioner's activity,
whether or not such activity is in fact violative of Section 8(b) (4)
of the Act.'
Accordingly, the parties are therefore advised, under Section 102.103
of the Board's Rules and Regulations, Series 8, as amended, that, on
the allegations submitted and the assumptions made herein, the com-
merce operations of the primary employer, Costigan, and those of the
secondary employers, including Amoskeag, at the Mount St. Marys
Seminary High School project in Nashua, New Hampshire, the loca-
tion affected by the Petitioner's secondary conduct, are such that the
Board would assert jurisdiction with respect to labor disputes cog-
nizable under Section 8 or 10 of the Act.
z Further, we note that the Petitioner 's picketing also affected that part of the $17,337
direct and indirect out-of-State purchases of materials made by Amoskeag for use in con-
nection with the school project during the period between January 1 to February 29, 1964.
For purposes of this decision we have assumed that $7 , 395.27 or more of Amoskeag's
direct and indirect out-of -State purchases of materials were made in connection with the
school project and were affected by the Petitioner 's picketing of that project.
8 See cases cited in footnote 1, supra.
Stanley Manufacturing Company and Upholsterers ' Interna-
tional Union of North America , AFL-CIO. Cases Nos. 16-CA-
1867, 16-CA-1933, and 16-RC-3408. May 28, 1964
DECISION AND ORDER
On March 27, 1964, Trial Examiner Thomas N. Kessel issued. his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Decision. Thereafter,
the General Counsel filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with' these cases to a' three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
. The Board has reviewed the rulings made by' the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
147 NLRB No. 22.
170 DECISIONS' OF 'NATIONAL LABOR-RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the De-'
cision, the exceptions, and the entire record in this case, and hereby
adopts the findings, conclusions, and the recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its offi-
cers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On May 17, 1963, Upholsterers' International Union of North America,
AFL-CIO , herein called the Union , filed a petition in Case No. 16-RC-3408 seek-
ing certification as the exclusive bargaining representative of a unit of employees
employed by Stanley Manufacturing Company, herein called the Respondent. Pur-
suant to a consent agreement a representation election was held , on June 5, 1963,
in which a majority of the employees voting therein rejected the Union • as -their
representative . On June 10, 1963, the Union filed with , the Regional Director for
the Sixteenth Region timely objections to conduct affecting the results of the
election . Objected to was the discharge before the election of two employees,
Raymond C . Hodges and Jack N. Flowers, assertedly because of their union ac-
tivities and various other acts attributed to Clarence Wenzel, the , -Respondent's
plant manager , which it was claimed , restrained and coerced employees in the ex-
ercise of 'a free choice in the election . On June 12 , 1963, the Respondent filed with
the Regional Director an answer to the objections denying that the aforementioned
employees were discharged for union activities and claiming they had been laid
off for economic and other justifiable reasons. The misconduct attributed to Plant
Manager Wenzel was denied.
On June 6, 1963, the Union filed a charge in Case No . 16-CA-1867 against the
Respondent claiming, in effect, that the conduct set forth in the objections to the
election was violative of the Act. Based on this charge the Regional ' Director issued
a complaint dated July 19 , 1963, against the Respondent alleging violations of
Section 8 (a) (3) and ( 1) of the Act . The Respondent 's answer denied these allega-
tions. Thereafter , on August 12, 1963 , the Regional Director issued an Order
consolidating cases and notice of hearing in Cases Nos. 16-CA-1867 and 16-CA-
3408 . The hearing in the latter case was to resolve the questions - of fact brought in
issue by the Respondent 's denial of the Union 's objection to conduct affecting the
June 5, 1963, election.
On September 11, 1963 , the Respondent executed with the Union and the Regional
Director a stipulation that the election held in Case No . 16-RC-3408 be set aside
and that a new election be held. On the same date the Regional Director issued a
Supplemental Order severing Cases 16-CA-1867 and 16-RC-3408 indicating as
reason therefor the entry of a settlement agreement providing for the withdrawal
of the complaint in Case No. 16-CA- 1867 and the entry of the foregoing stipula-
tion for a new election . The settlement agreement, dated September 11, 1963, pro-
vided for payment of backpay to employees Hodges and Flowers and the posting
of a notice that reinstatement had been offered to them on a "make whole basis"
and also - declared that the Respondent would refrain -from commission of the
various acts of coercive conduct attributed to it in the complaint in Case No.
16-CA-1867 . The agreement further stipulated that it shall not be construed as
an adimssion by the Respondent that it had committed any unfair labor practice.
On September 11, 1963, following the execution of the settlement agreement and
the stipulation for a new election and the issuance of the Regional Director 's Order
for the withdrawal of the complaint and directing a new election , the Respondent
laid off employee Jessie M . Burgess. On September 16, 1963 ; the Union filed a
charge in Case No. 16-CA-1933 claiming that the termination of this employee's
employment was violative of the Act . On October 29, 1963 , the Regional Director
notified the Respondent that his investigation of the Union's charge disclosed merit
STANLEY MANUFACTURING COMPANY 171
and that the .Respondent's action was violative of the terms of its settlement agree
ment. On October .30, 1963,,,xhe Regional,Director' issued `^a consolidatcd com-
plaint-and notice`^of hearing in Cases Nos. "16-CA-1867, 16-CA-1933, and
16-RC-3408. In the same document the Regional Director 'vacated his Supple-
mental Order severing Cases Nos. 16-CA-1867 and 16-RC-3408, his order setting
aside the election in Case No. 16-RC-3408, and his direction of a second election in
that case. The Regional Director further' ordered that following a hearing in these
consolidated proceedings and decisions therein by the Trial Examiner conducting
the hearing and deciding the cases, that Case No. 16-RC-3408 be severed and re-
manded to the Regional Director for further action in accordance with Section
102.62(a) of the , Board's Rules and Regulations. The Respondents answer to
the foregoing complaint denied the allegations of statutory violation therein. Copies
of the complaint, the charges, and a notice of hearing were duly served` upon the
parties. Pursuant to said notice, a hearing was held before'Trial Examiner Thomas
N. Kessel at Fort Worth, Texas, on December 2, 1963. All parties were represented
at the hearing by counsel or other representative. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence was afforded all
parties. After the close of the hearing the General Counsel and the Respondent
filed briefs which have been duly considered. The General Counsel further moved
for correction of- the record in two particulars where typographical errors were
made. This motion is granted and'the corrections have been made in the transcript.
On the entire record in the case, and from my observation of_ the witnesses, I
make the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that the Respondent is a Texas
corporation having its principal office and place of business in Fort Worth, Texas,
where it is engaged in the manufacture, sale, and distribution of upholstered office
furniture and related products; that in the year preceding issuance of the complaint
the Respondent manufactured, sold, and shipped from its plant finished products
valued in excess of $50,000 to points outside the State of Texas. I find from the
foregoing facts that the Respondent is engaged in interstate commerce within
the meaning of the Act and -that the purposes of the Act will be effectuated by the
Board's assertion of jurisdiction in this case over its operations.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership they Respondent's
employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Supporting- the allegations of Section 8(a)(1) misconduct the General Counsel
presented the following testimony:
Employee Jessie M. Burgess testified that on April 23, 1963, during the Union's
organizational campaign, she was approached at work by Plant Manager Wenzel
and told "it was time" they "had a talk." Burgess' husband was -the president of
the Union's branch at another plant. She had been actively campaigning for the
Union, attending its meetings and soliciting employee signatures on authorization
cards. Just before Wenzel approached her, she had returned to the plant from a
luncheon engagement with James J. Johns, the Union's representative. In Wenzel's
office there ensued the following conversation lasting about an hour. Wenzel said
he did not like the recent talk and the things which had occurred in the plant in the
preceding week. He said they had to stop ; that the Respondent did not want
a union in the plant; that the plant was too small to be unionized . He asked
how many authorization cards were needed to obtain a representation election.
Burgess informed him the required amount was 51 percent. He stated that
this number of employees had expressed to him that morning their opposition
to the Union. He _ declared that W. F. Starnes , the Respondent's president, was
opposed to the Union and would close the plant to prevent its unionization; that
Starnes had sufficient other income and did not need the plant . Wenzel -ob-
jected to the Union because it would interfere with the Respondent's flexibility-in
transferring employees from one department to another. He told Burgess he failed
to understand her affiliation with the Union. She revealed her husband's official
connection with the Union and stated her loyalty to its principles. - Wenzel debated
the good the Union had done at her husband's plant. He informed-her she would
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not get "any more consideration from the Company." He directed her not to speak
to other employees about the Union as it upset them. He warned that if the talk
was not stopped in the plant he would have to let her go. ` She construed this as a
blanket order not to speak to employees about the Union and not just a directive to
refrain from speaking about the subject during her working time particularly as she
had not engaged in such activities while working.
Employee Raymond C. Hodges testified that in early May 1963, Wenzel said to
him he had heard he was working for the Union. Hodges told him this was untrue.
On May 15 Wenzel called Hodges to his office. He there told him two or three re-
liable persons had reported his activities for the Union. He admonished him to think
more of his family and the Company than the Union. He asked what the Union
wanted. Hodges told him to consult the Union. Wenzel revealed that he had dis-
cussed the matter with employee Arthur Curry and had told him the same thing.
Employee William T. Waits testified that in early May 1963 Wenzel asked him
how he felt about the Union. Waits disclaimed any sympathy for it. Later that
month Wenzel requested him to secure someone in his department to attend the
Union's meeting soon to be held and to report who was there and what took place.
Wenzel explained he needed this information so he could "eliminate the people who
were causing trouble." Waits later informed Wenzel he could not find a person for
the requested purpose, whereupon Wenzel asked him to undertake the mission.
Waits agreed. The morning following his attendance at a May meeting Waits re-
ported to Wenzel the names of employees who had been present and what was said.
He specifically revealed that employees Flowers, Hodges, and Burgess were the
"leaders" at the meeting. He attended a second union meeting a few days before
the June 5 election. Before then Wenzel gave him a handwritten note with instruc-
tions to read it at the meeting. The note, in evidence, defined economic strikers
and stated the right of an employer during a strike permanently to replace them.
Waits related an incident when Wenzel laughingly informed him he had found union
authorization cards in a pocket of employee Arthur Curry's work apron and that he
had stapled the cards to the apron. On May 28, 1963, the Respondent laid off
several employees. Waits testified that just before this date Wenzel had asked him
whether employee Wendell Capers 1 was for or against the Union. Waits replied
he did not know. Wenzel declared he would find out himself and added he was con-
sidering getting rid of some union adherents while he had the opportunity. The
morning after the layoffs, according to Waits, Wenzel informed him that Hodges
and Flowers had been laid off with two other employees and asserted that he had
studied "the law books or something" and had not overlooked anything which would
give them cause to file unfair labor practice charges against him.
Employee Clarence W. Capers testified that Wenzel asked him in the spring of
1963 whether he had received an authorization card from the Union. Capers ac-
knowledged that he had such a card but that it was at home. Wenzel asked him to
bring it to him. Capers promised to do, but when Wenzel asked for the card the
next day he informed him that he had forgotten to bring it. Capers related he over-
heard Wenzel tell Waits he was going to find out who was behind the Union and get
rid of him. He also heard Wenzel tell Waits that he had spoken to Hodges and
Curry and did not believe their denials of union activity. Capers further testified
that just before the May 28 layoffs Waits repeated to him Wenzel's remarks con-
cerning Capers, as above related. Thereupon Capers went to Wenzel to assure him
he was not for the Union. Wenzel asked him whether he had attended the Union's
meetings. Capers acknowledged he had done so but merely to obtain information.
Later that day Wenzel told him he had planned to lay him off but would not do so
because he was convinced Capers was not for the Union. According to Capers,
Wenzel also told him, just before the layoffs, that President Starnes had plenty of
money and that if employees would only think about it they would realize that he
did not have to keep the plant open. This comment was made directly after Capers
had suggested to Wenzel that in a small plant the employer could do more for the
employees than a union. In the morning of the day following the May 28 layoffs
Wenzel remarked to. Capers and Waits that he had consulted some kind of law book
and had covered all the angles.
Wenzel acknowledged an hour's conversation with Burgess about the Union in
May 1963 shortly after the distribution to employees of the Union's authorization
cards. He conceded interrogating her about her union activities but related this
occurred in the course of an exchange of views concerning the Union. He denied
threatening to terminate her employment if she continued her union activities. He
i I assume this is the same employee who testified at the hearing and identified himself
as Clarence W. Capers.
STANLEY MANUFACTURING COMPANY 173
recalled asking her what the employees were trying to accomplish and arguing that
the Respondent could accomplish more without the Union 's help . He could not re-
call other aspects of the conversation.
Wenzel admitted receiving information from Waits about the union activities of
employees, but denied that he had asked Waits.to secure this information for him.
He claimed Waits had voluntarily supplied 'him with this information. He ad-
mitted he was the author of the note concerning the right of an employer to replace
economic strikers which Waits had read at a union meeting, but maintained he had
written the advice and given it to Waits at the latter's request to answer a specific
question which employees had raised in discussion with him. Wenzel further denied
he had threatened Hodges'with dismissal for his union activity.
President Starnes testified.that after the union campaign started in the plant he
had posted a notice on the bulletin board declaring his opposition to the Union in
the plant but not against unions generally . Included in the notice was assurance
that there would be no reprisals against employees "either way" and that they, were
free "to see as they please." Starnes denied that he had ever threatened to close
the plant or that he had told Wenzel he was considering closing it.
In large measure the testimony by the foregoing General Counsel's witnesses con-
cerning things said by Wenzel is uncontradicted. Thus, the only challenge to
Burgess' detailed recollection of Wenzel's comments in his hour long discussion with
her is his denial of the threat to discharge her if she persisted in her support of the
Union. Concerning Hodges' account of the various remarks and inquiries by Wenzel,
the latter claimed only he had not threatened Hodges with discharge for his union
activities . Regarding Waits' 'delineation of 'his discussions with Wenzel , the only
contradictions are his claim that he had been procured by Wenzel to act as his spy,
and that the written note read by Waits at the union meeting was Wenzel's idea and
not-Waits'. Capers' testimony was wholly uncontradicted.
No sufficient reason has been presented for the rejection of the uncontradicted
testimony of the General Counsel's witnesses. I have considered Waits' 1962 felony
conviction for which he received a suspended sentence as a factor weighing against
his credibility. This circumstance is not enough to warrant disregard of his undenied
testimony, particularly as the evidence of his several wage increases by the Respond-
ent after his suspended sentence reflects his rehabilitation . Moreover, Waits' testi-
mony in several respects is. corroborated by Capers whose testimony is wholly
credited. I credit not only the uncontradicted testimony of the foregoing witnesses
but the fragments denied by Wenzel. Having resorted to the measures shown by
the uncontradicted proof to prevent the unionization of the plant, I am not per-
suaded that Wenzel stopped short of the threat of reprisal ascribed to him by the
General Counsel's witnesses or that he did not engage Waits to furnish him with in-
telligence. I find, as alleged by the complaint, that Wenzel (a) interrogated em-
ployees concerning their union activities and attitudes and coupled these extensive
interrogations with warnings of reprisal against employees who supported the Union,
(b) warned employees that the Respondent would close its plant to prevent its
unionization , and (c) requested and secured an employee to .engage in surveillance
of the union activities of employees.
The Respondent's brief suggests that when the foregoing acts were committed,
Wenzel, who had recently been elevated to his managerial post, was motivated
merely by a desire to make good by impressing employees with his new authority
rather than by his intention to prevent them from engaging in union activities.
Assuming the accuracy of this suggestion, it is nevertheless immaterial to a finding
that Wenzel's conduct unlawfully tended to interfere with, restrain, and coerce em-
ployees in the exercise of their statutorily guaranteed right to engage in union
activities . By the foregoing conduct of its agent, Wenzel , the Respondent violated
Section 8(a) (1) of the Act.
The illegality of Wenzel's conduct is not mitigated by the fact, related by President
Starnes, concerning the posting of a notice to employees on the plant bulletin board
assuring them of their freedom to engage in union activities without fear of reprisal.
If such notice had been intended as a disavowal of Wenzel 's misconduct it should have
been more specific and direct to have been effective . Moreover, from the generality
of Wenzel 's misconduct during the 2 months. preceding the June 5 election, em-
ployees ' must reasonably have concluded that the bulletin board notice was merely
an empty gesture.
B. Discrimination
The layoffs of employees Flowers and Hodges on May 28 , 1963 , were prima facie
unlawfully motivated by the Respondent 's discriminatory intent . Each, as shown,
had actively supported the Union . Wenzel not only was informed of their activities
174 DECISIONS OF NATIONAL LABOR RELATI6NS BOARD
but was told by his intdlligence agent, Waits,; that they along, with Burgess-'Were the
leaders or outstanding 'supporters of the Union. The Respondent's -hostility to the
Union and Wenzel's unlawful activities to,defeat its campaign,to become- collective-
bargaining representative are amply revealed-in the findings of Section 8(a) (1) vio-
latidn heretofore made. Included-in these findings are Wenzel's threats-to get rid of
the troublemakers whose identity he sought to establish through his informer. Obvi-
ously,thesse troublemakers were the- leaders of, the union movement. That he in-
tended to utilize the layoff as a means of getting rid of Flowers and Hodges is clearly
shown by his remarks to Waits that he was considering ridding himself of union ad-
herents while he had' the opportunity, and his notification of Capers that the latter
had been saved from the layoff because- he had convinced him he was not for the
Union. To these circumstances must be added the greater seniority of Flowers and
Hodges than other employees performing identical duties who- were retained, the
timing of the layoffs which occurred 1 week before the June 5 representation elec-
tion, and the unconvincing explanations for the selection of Flowers and Hodges for
layoff.
The Respondent defends the layoffs of Flowers and Hodges chiefly on the ground
that declining business necessitated a- reduction in force and that their selections
were impelled by their poor productivity and for other reasons I shall mention.
There is doubt that the Respondent's proof satisfactorily establishes any need for a
layoff on May 28. I shall not dwell on this point for whether a layoff was economi-
callynecessitated is immaterial. What matters is whether Flowers and Hodges would
have been selected for layoff rather than other employees had they not been in the
forefront of the union movement as reported to Wenzel. Assuming that the Re-
spondent's business conditions warranted the May 28 reduction in force, I am not
convinced by the Respondent's explanation that Flowers and Hodges were selected
for layoff for the reasons advanced in this case rather than their union- activities.
The Respondent's claim that these employees were poor producers is not sup-
ported by any proof. In fact Wenzel admitted that the Respondent keeps no records
by which individual employee production may objectively be measured, and that all
he knows about any employee's productivity is learned from looking at him once
in a while to see whether he is on the job. There is no evidence that Flowers and
Hodges were not on the job any time Wenzel may have looked at them. No-fore-
man directly over them was produced to complain about their lack of diligence or
ability to produce. Wenzel did say that Hodges was an "excessive" talker while he
worked, but did not show that, this held up his production. He conceded he had
never warned Hodges that he must not talk while working, and at most "generally"
mentioned this to him on a couple of widely spaced occasions. Hodges flatly re-
butted Wenzel's claim he had ever mentioned his talking on the job. I do not have
to resolve this conflict for I do not believe Hodges' talkativeness had anything to
do with his layoff.
There is puzzling testimony by President Starnes that Wenzel alone had selected
Flowers and Hodges for layoff and that he had told him he had made his selections
on the basis of "production and the seniority involved." Wenzel testified that these
employees had been chosen for layoff because of "a variation of seniority and
production." What makes this testimony seem strange is the unrefuted testimony
of both Flowers and Hodges that they had greater seniority than other employees
in their departments rand the concession by President Starnes that at the time of
the layoffs there were no "hard and fixed rules" about, seniority and nothing "nailed
down" about this subject. As a matter of fact the first time that anything was put
in writing about seniority and brought to the attention of employees was in Sep-
tember 1963 just before Burgess was laid off and then the only seniority rules
established had to do with the rights of employees to recall after a layoff. Obviously
any reliance upon the subject of seniority as an explanation for the layoff of Flowers
and Hodges in May 1963 is either misleading or confusing and of no value as
a defense in this case.
Another justification advanced by the Respondent for Hodges' layoff is a telephone
call he made in March 1963 from the plant for employment with another employer.
Hodges testified that he had at the time been performing two duties, upholstering
furniture and stuffing cushions. He had been irked by the, fact that he was shuttled
between these duties in circumstances where he could not keep up with both and
there was a resultant accumulation of cushions to be stuffed. He thereupon told his
foreman he could perform only one duty or the other and not both. At lunchtime
STANLEY MANUFACTURING COMPANY 175
that day he called the other employer and was promised a job if he-left the-Respond-
ent. Theo next morning Hodges related to Wenzel the circumstances- of his refusal
to perform the duties of two jobs- Wenzel told him he did not like, the way the
foreman was handling -things and that he did not blame Hodges for his refusal to
perform the double duties. Wenzel did not refute Hodges' version of the incident.
Afterward Hodges received a wage raise. Apart from Wenzel's testimony- that he
had learned of Hodges' call, to the other employer for a job, his awareness of
Hodges' refusal, to stuff the cushions, his claim that it is necessary in the interest
of plant efficiency for employees sometimes to perform more than one duty, and
that he regarded Hodges'-refusal to stuff cushions "as important to his employment,"
there is nothing-to show that the incident was so seriously regarded by the Respond-
ent that Hodges was selected for layoff in May because of it. No word of criticism
was uttered by Wenzel who, according to Hodges, agreed with him there was
justification for his actions, and Hodges subsequently was rewarded with a raise in
pay. I am satisfied that Wenzel regarded the incident as trivial and that it had
nothing to, do with his decision to lay off Hodges.
I"am satisfied that the record heavily preponderates in favor of a finding that
the Respondent laid off Flowers and Hodges on May 28, 1963, only because of
their union activities. I so find.
Burgess' employment with the Respondent began in 1956: She voluntarily left
in 1960, returned a year later, and worked continuously thereafter until she was
laid off on September 11, 1963, allegedly for her union activities. The Respondent
maintains her layoff was necessitated by an insufficiency of work`in 'the sewing and
cutting departments where she was employed and that she was selected for layoff
because she had the least seniority of any employee in these departments.
Like Flowers and Hodges, Burgess had been recognized by Wenzel as a leader
of the union movement in the plant. This he had learned from his informant, Waits.
In his long interrogation of Burgess concerning her union activities Wenzel also had
learned of her hubsand's official position in the Union and her consequent greater
dedication to•its principles. I am satisfied, as explicated in connection with the
findings pertaining to Flowers and Hodges, that Wenzel was as much determined
to get rid of Burgess as any other, "troublemaker" and that he merely awaited an
opportune time to terminate her when he could do so with the appearance that
it was for a reason other than her union activities. This is convincingly shown
by the undenied testimony of Fred Nims. The latter is no longer associated with
the Respondent, but until April 1963 had been its plant manager and appears to
have been Wenzel's predecessor in that post. He testified that about a month or
two after he became the Respondent's sales representative in April 1963 he discussed
the advent of the Union in the plant with Wenzel. Burgess, along with other em-
ployees known to be active for the Union, was discussed and was referred to as a
"troublemaker" because of her activities. Nims suggested the discharge of Burgess
for her union activities but Wenzel demurred on the ground that from his legal
research the Respondent would get into trouble if it took this action. Wenzel added,
however, concerning Nims' suggestion, that "he would just have to put it in abeyance
until another time."
The validity of the Respondent's explanation for Burgess' layoff is dependent
upon whether the Respondent's business conditions necessitated the layoff when it
occurred. Had such necessity existed I would not be critical of her selection for,
in fact, she had no more continuous seniority 2 in the sewing and cutting departments
where she worked than other employees in these departments. and, though her work
performance appears to have been acceptable, the record does not establish that she
was superior to or more valuable to the Respondent than other employees who were
retained. The proof, however, does not weigh in favor of a finding that the layoff
was attributable to the Respondent's business conditions.
In a plant with 8 or 9 departments employing 35 to 40 employees'all of whom
contributed to the manufacture of the same products Burgess was the only employee
laid off on September 11, 1963. No one had -been laid off from the time the plant
resumed operations in mid-August following the summer vacation until Burgess'
2 As in the case of Flowers and Hodges, the Respondent had no seniority system or policy
governing the selection of employees for layoff when Burgess was terminated. Even in the
absence of such system or policy I would regard an, employer's reliance upon seniority as
a factor determining who was to be laid off as a normal industrial practice. It should be
noted, however, that Flowers and Hodges had been laid off in disregard of their seniority.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination. The Respondent's business was :increasing 3' and the Respondent had
advertised in the newspaper on September 1 for additional help. All employees
who in this period had voluntarily left had been replaced and two or three additional
employees had been hired. Nevertheless, according to Wenzel, there was a surplus-
age of labor in the sewing and cutting departments where Burgess then worked
which required the layoff of one employee.
Wenzel gave the following explanation for the overstaffing of the foregoing
departments. He claimed that because of the easier type sewing on the styles of
furniture which were then being produced on order the seamstresses were able to
proceed at a faster pace than employees in the other plant departments. As a result
only two of the three seamstresses then employed were needed to keep up with the
work of their department. Moreover, there was less need for Burgess' services in
the cutting department where she had spent about one-third of her time. A skilled
cutter, Louise Goldsmith, had been granted sick leave at the end of May 1963 and
had returned to her job in mid-August. Upon her return .the sewing and cutting'
staffs were manned with five employees whereas only four were needed . In these
circumstances, according to Wenzel, Burgess was laid off.
There is no doubt that in September 1963 the sewing and cutting departments
had caught up with their orders and were at a more advanced stage in their work
than the other plant departments. Burgess herself acknowledged this fact. But
what is also true is that these departments had operated in the past with five em-
ployees when there was insufficient work to keep them busy and no one was laid
off nor so far as is shown was a layoff in these circumstances ever contemplated
by the Respondent. Goldsmith, who claimed familiarity through a semisuper-
visory status with the work of the sewing department, testified for the Respondent
that in months when the employees were not busy she would find something for
them to do such as cutting "swatches." Despite an apparent reluctance to testify
that in the early months of 1963 the sewing and cutting employees were dot•fully
occupied with work on current orders as in September of that year, she finally
acknowledged that "February and March are usually slow but our Company has
been very nice to us. They hold us a lot of times when they don't need us." Ac-
cepting this summation of the Respondent's policy as its normal approach to em-
ployee retention in slow periods, the question necessarily arises, why did the Re-
spondent vary from its norm in September 1963 and lay off Burgess. The answer
is readily furnished by the record of the Respondent's union hostility and its demon-
strated resolve to get rid of all leading proponents of the Union as shown by the
unlawful discharges of Flowers and Hodges. To this must be added the significant
timing of the layoff to coincide with the date of the signing of the settlement agree-
ment and its direction of a second election. The Respondent's opposition to the
Union during the first election was not shown to have abated and doubtless was
just as intense in September as it had been in June. The layoff of Burgess was
reascnably to be construed by the plant employees as signalizing that notwith-
standing the Respondent's settlement agreement and the promises to employees in
3 The Respondent's healthy business condition at the time of Burgess' layoff is easily
visualized from the statistics furnished by the Respondent. As orders are received the
Respondent makes a judgment as to the amount of time and labor required to produce
each piece of furniture to be manufactured. An objective system of point valuation for
each item to be produced has been devised by the Respondent for this purpose . The Re-
spondent's experience indicates that for optimum efficiency and economy it should schedule
work for a particular week not exceeding 60,000 points or units of work. The following
statistics of work points scheduled at various times in 1963 graphically reveal that
whereas during the early part of 1963 the Respondent was unable to maintain its desired
scheduling goals, in September and for a substantial period thereafter it reached and
maintained its goals.
Week ending:
Points of work
scheduled
Points of work
Week ending scheduled
January 4----------------- 52,990 May 24 --------------------- 53, 841
January 11---------------- 21,600 May 31-------------------- 60, 363
January 18---------------- 57,670 June 7-------------------- 52,124
January 25 ---------------- 53,571 June 14------------------- 51,339
February 1---------------- 50,440 September 13--------------- 55,317
February 8---------------- 50,724 September 20--------------- -56, 108
.February 15--------------- 48,856 September 27_______________ 61,185
February 22--------------- 48,154 October 4------------------ 60,863
May 5--------------------- 60,329 October 11----------------- 60,855
May 17-------------------- 59,673 October 18----------------- 60,868
STANLEY MANUFACTURING COMPANY 177:
the notice required to be posted-by the agreement not to violate their statutory rights
under the Act these promises should not be taken seriously. Burgess' layoff re-,
vealed to them what might befall other leaders of the Union who actively cam-
paigned in its behalf in the forthcoming election.
I find that Burgess' layoff was the fruition of Wenzel's longstanding decision' to
get her out of the plant, and that he took this action against her when he felt he
could opportunely give it the appearance of legitimacy. The return of Goldsmith
and the fact that the seamstresses and cutters were caught up with current work
was utilized by him as a pretext to cloak the real reason for her layoff, namely, her
union leadership. Her layoff for this reason by the Respondent was violative of
Section 8 (a)( 3 ) of the Act.
IV. CONDUCT AFFECTING THE RESULTS OF THE JUNE 5, 1963, ELECTION
Having found that the Respondent before the'June 5, 1963, representation elec-
tion in Case No. 16-RC-3408 committed acts of interference, restraint, and coercion
in the exercise by employees of their statutory rights guaranteed by Section 7 of
the Act, and that the Respondent discriminatorily discharged employees in violation
of Section 8(a)(3) of the Act for engaging in union activities, I further find that
Respondent's employees were thereby prevented from freely expressing their choice
in that election and the results- thereof should be set aside and a new election ordered
at the earliest possible date consistent with administrative convenience.
Pursuant to the Regional Director's Order, set forth in the Order Vacating Sup-
plemental Order, etc., and consolidated complaint in these proceedings, Case No.
16-RC-3408 is hereby severed and remanded to the Regional Director for further
action in accordance with Section 102.62(a) of the Board's Rules and Regulations,
Series 8, as amended.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the-Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, initmate, and substantial relation to trade, traffic, and commerce among the
several. States and tend to lead to labor disputes burdening and obstructing the free .
flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act. I shall further recommend that the Respondent be ordered to offer
immediate and full reinstatement to Jessie M. Burgess to her former or substantially
equivalent position without prejudice to her seniority or other rights and privileges
as an employee. As it appears in the record that the Respondent has already of-
fered reinstatement to employees Jack Flowers and Raymond C. Hodges no recom-
mendations for such action is, required. However, because the record does not
show that the Respondent ,made them whole for loss of earnings suffered because
of the discrimination against them, I shall recommend that the Respondent make
them and Burgess whole for any losses they may have suffered because of the Re-
spondent's discrimination against them by payment to them of such sums of money
as they normally would have earned as wages absent the discrimination. Backpay
for Flowers and Hodges shall be computed from May 28, 1963, until the date of
offer of reinstatement to them. Backpay for Burgess shall be computed from
September 11, 1963`,' until the date of offer of reinstatement. Deductions shall be
made from backpay payments to these employees of interim earnings on a quarterly
basis in the manner provided by the Board in F. W. Woolworth Company, 90
NLRB 289, to which shall be added interest at the rate of 6 percent per annum. -
-Because the Respondent by its conduct violated fundamental employee rights
guaranteed by Section 7 of the Act, and because there appears from the manner
of commission of this conduct a disposition to commit other unfair labor practices,
it will therefore be* recommended' that the Respondent cease and desist in any
manner from' infringing the rights guaranteed employees by Section 7 of the Act.
'Upon the basis of the-foregoing findings of fact and upon the entire record-in the
case, I make the following:
CONCLUSIONS OF LAW
1. Stanley Manufacturing Company is an employer within .the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
756-236-65-vol. 147--13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Upholsterers' International Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning their union activities and
sympathies, by warning them of reprisals for supporting the Union, by warning
them that it would close its plant to prevent its unionization, and by requesting and
securing an employee to engage in surveillance of the union activities of em-
ployees Respondent'has engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of em-
ployees Jack Flowers, Raymond C. Hodges and Jessie M. Burgess the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that Stanley Manufacturing Com-
pany, Fort Worth, Texas, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Upholsterers' International Union of North
America, AFL-CIO, or any other labor organization of its employees, by discriminat-
ing in regard to the hire and tenure of employment of its employees.
(b) Coercively interrogating employees concerning their union activities and sym-
pathies, warning employees of reprisals for supporting the Union, warning them that
it would close its plant to prevent its unionization, and requesting and securing em-
ployees to engage in surveillance of the union activities of employees.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist Upholsterers'
International Union of North America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing , and to engage
in concerted activity for the purpose of collective bargaining or other mutual aid or
protection or to refrain from engaging in such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer to Jessie M. Burgess full reinstatement to her former or substantially
equivalent position and make her and Jack Flowers and Raymond C. Hodges whole
for any loss of earnings suffered as a result of the discrimination against them in
the manner described in the section above entitled "The Remedy."
(b) Post at its plant in Fort Worth, Texas, copies of the attached notice marked
"Appendix." 4 Copies of said notice, to be furnished by the Regional Director for
the Sixteenth Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by it immediately upon receipt thereof, and maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Upon request, make available to the Board or its agents, for examination or
copying, all payroll, social security, and personnel records and timecards necessary to
determine the amount of backpay due.
. (d) Notify the Regional Director for the Sixteenth Region, in writing, within 20
days from the receipt of this Decision and Recommended Order, what steps it has
taken to comply herewith.5
A In the event that this Recommended Order shall be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
6 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of receipt of this Order, what steps the Respondent
has taken to comply herewith."
WONDER STATE MANUFACTURING COMPANY 179
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their rights to engage in or to refrain from engaging in union activities by
coercively interrogating them concerning their union activities and sympathies,
by warning them of reprisals for supporting Upholsterers' International Union
of North America, AFL-CIO, or any other labor organization as their collective-
bargaining representative, by warning our employees that we will close our plant
to prevent it from becoming unionized, or by requesting and securing any em-
ployee to engage in surveillance of union activities of our employees.
WE WILL NOT discourage membership in Upholsterers' International Union
of North America, AFL-CIO, or any other labor organization of our employees,
by discriminating in any manner with regard to hire, tenure, or any term or
condition of employment.
WE WILL offer immediate and full reinstatement to Jessie M. Burgess to her
former or substantially equivalent position without prejudice to her seniority or
other rights and privileges and make her and employees Jack Flowers and Ray-
mond C. Hodges whole for any loss of earnings resulting from our discrimina-
tion against them as provided in the Decision issued by the Trial Examiner of
the National Labor Relations Board.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain col-
lectively through represgntatives of their own choosing and to engage in other
concerted activities for the purpose of collective bargaining or mutual aid or
protection, or to refrain from engaging in any or all such activities.
All our employees are free to become, or remain, or to refrain from becoming or
remaining, members of any labor organization.
STANLEY MANUFACTURING COMPANY,
Employer.
Dated-------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone
No. Edison 5-4211, Extension 2131, if they have any questions concerning this
notice or compliance with its provisions.
Wonder State Manufacturing Company and Lodge 1568, Inter-
national Association of Machinists, AFL-CIO. Case No. 26-
CA-1539. May 28, 1964
DECISION AND ORDER
44
On November 5, 1963, Trial Examiner Lee J. Best issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
147 NLRB No. 23.