The L. C. Phenix Co.

National Labor Relations Board - Board Decisions

Oct 13, 1938

9 N.L.R.B. 181 (N.L.R.B. 1938)

In the Matter of LEROY C. PHENIX, DOING BUSINESS AS THE L. C.
PHENIX COMPANY and FURNITURE WORKERS UNION, LOCAL No.
1561
Case No. C-720.-Decided October 13, 1938
Furniture Manufacturing Industry-Settlement : stipulation providing for rein-
statement and back pay-Order: entered on stipulation.
Mr. David Persinger, and Mr. Charles M. Brooks, for the Board.
Mr. Ben C. Cohen, of Los Angeles, Calif., for the respondent.
Mr. Langdon West, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and an amended - charge duly filed by Furniture
Workers Union, Local No. 1561, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director' for the Twenty-first Region (Los Angeles, Cali-
fornia), issued its complaint dated December 1, 1937, against LeRoy
C. Phenix, doing business as the L. C. Phenix Company,' Los Angeles,
California, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act,'49 Stat. 449,
herein called the Act. Copies of the complaint and notice of hear-
ing thereon were duly served upon the respondent and the Union.
Concerning the unfair labor practices the complaint alleged, in
substance, that the respondent terminated the employment of and
refused to reinstate four named employees because they joined and
assisted the Union; that the respondent, by the aforesaid acts and by
warning his employees not to join or assist the Union, interfered with,
restrained, and coerced his employees in the exercise of their rights
guaranteed in Section 7 of the Act.
1 The charge, as amended, and the complaint incorrectly designated the respondent as
L. C. Phenix Company, a Corporation. At the hearing it was stipulated between counsel
for the respondent and counsel for the Board that these pleadings were to be deemed
corrected.
9 N. L. R. B., No. 28.
1 81
182 NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held on December 10, 1937, at
Los Angeles, California, before Clifford D. O'Brien, the Trial Ex-
aminer duly designated by the Board. The Board and the respondent
participated in the hearing and were represented by counsel. The
Union was not represented. During the hearing the respondent filed
his answer in which he denied the allegations concerning the corpo-
rate structure of the business and affirmatively pleaded that he was
an individual doing business under a trade name. In his answer
the respondent also denied the' allegations concerning the nature and
scope of his business and the allegations of unfair labor practices.
After the jurisdictional facts had been established by testimony, the
hearing was adjourned indefinitely ,by' agreement of- counsel, to be
resumed upon notice.
On May 19, 1938, the Unioii filed with the Regional Director a
second amended charge against the "respondent, alleging the dis-
criminatory discharge of two additional employees. On the same
day the Board, by the said Regional Director, issued an amendment
to, the complaint in order to allege the'discriminatory discharge of
these two additional employees. Copies of the amendment to the
complaint and a notice that the hearing would be reconvened were
duly served upon the respondent and the Union. On May 23, 1938,
the said Regional Director duly served upon the parties his amended
notice of hearing extending the date of the hearing to June 13, 1938.
Pursuant to notice, the hearing was reconvened on' June 13, 1938,
at Los Angeles, California, before Jesse E.. Jacobson, the Trial Ex-
aminer duly designated by the Board. After a short discussion the
hearing was adjourned to be reconvened upon 5 days' notice. On
June 20, 1938, the respondent, the Union, and counsel for the Board
entered into a stipulation setting forth the facts concerning the
nature and scope of the respondent's business and the terms of a
consent order which the Board could enter in the case upon its
approval of the stipulation. On June .22, 1938, the hearing was
reconvened and the aforesaid ' stipulation was received in evidence
without objection. All parties expressly waived the requirement
of a 5-day notice to reconvene the hearing. Thereupon the hearing
was closed. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. , During the course of the hearing the Trial
Examiner, made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On September 22, 1938, the parties entered into an amended
stipulation which included the provisions of the original stipulation
and corrected certain technical defects contained in the original.
DECISIONS AND ORDERS 183
The above-mentioned amended stipulation provides as follows :
IT IS HERESY STIPULATED by- and between the National Labor
Relations Board, L. C. Phenix Company, Respondent herein,
and Furniture Workers'Union, Local No. 1561, for the purpose
of settlement of the above-entitled matter, and without admission
of liability on the part of the respondent for any of the acts
charged in the complaint or the amendment thereto, as follows :
1. Respondent is a sole proprietorship owned by L. C. Phenix
doing business under the fictitious firm name and style of the
L. C. Phenix Company, and has been in the business of manu-
facturing furniture in the City of Los Angeles, State of Cali-
fornia at all times mentioned in the complaint and amendment
thereto in this matter. All raw materials purchased by respond-
entduring the year 1937 and during the first five months of
1938 were purchased within the State of California, said raw
materials consisting generally of lumber, textiles, filling mate-
rials, springs, paint, varnish, etc. During the- first five months
of 1938 there was sold and shipped to dealers within the State
of California merchandise aggregating $72,810.00, and outside
the State of California $11,329.00 making total sales $84,139.00,
the percentage of sales within the state being 86.5, and outside
shipments 13.5 per cent and that for the year 1936 the total
sales amounted to $205,743; and of that amount $172,109 were
sold within the State of California; however, $48,436 was deliv-
ered outside the State, which makes the sales outside the state
equal to approximately 15 per cent of gross sales, but deliveries
outside of the state equal. to approximately 23 per cent of the
gross sales; and that for the year 1937 the percentages remained
approximately the same.
2. That upon the record herein and upon this Stipulation, the
National Labor Relations Board may enter an order that said
respondent, L. C. Phenix, an individual, doing business as L. C.
Phenix Company, its officers, agents, successors, and assigns cease
and desist from :
(a) Discouraging membership in Furniture Workers Union,
Local No. 1561, or in any other labor organization of its em-
ployees, by discriminating in regard to hire or tenure of em-
ployment or any term or condition of employment.
(b) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, and assist labor organizations, to
bargain collectively, through representatives of their own
choosing, and to engage in concerted action for the purpose
of collective bargaining, or other mutual aid and protection,
184 NATIONAL LABOR RELATIONS BOARD -
as guaranteed in Section 7 of the National Labor Relations
Act.
3. That upon the record herein and upon this stipulation the
National Labor Relations Board may enter an order that re-
spondent will take the following affirmative action to effectuate
the policies of the National Labor Relations Act :
(a) Offer to George DePew, without prejudice to his senior-
ity rights and other rights and privileges, reinstatement to
some position within Respondent's plant not later than July
15, 1938 at the rate of pay paid to employees performing
similar work, and as soon thereafter as the, work is available
to reinstate said George DePew to a position equivalent to the
work that he was performing prior to September 1, 1937 at
the rate of pay regularly paid for that job.
(b) Pay to the following named persons the stated sum
of Eighty-three dollars and Thirty-three. cents, ($ 83.33) in
settlement for loss of pay they have suffered:
(1) George DePew
(2) J. C. Church
(3) Dave M. Acree
(4) Calvin Church
(5) Charles, R. Hicks
(6) Lee Church
(c) Post immediately notices to its employees in conspic-
uous places in its plant at Los Angeles, California stating :
'(1) That respondent will cease and desist in the manner
aforesaid from the acts hereinabove referred to.
(2) That respondent's employees are free to join or assist
any labor organization.
(3) That respondent will not discourage membership in
Furniture Workers Union, Local No. 1561, or in any other
labor organization of its employees, by discriminating in
regard to hire or tenure of employment or any term or
condition of employment.
(d) Respondent further agrees to maintain such notices
for a period of at least thirty (30) consecutive days from the
date of said posting, said posting' to be made immediately
upon the approval of this stipulation by the National Labor
Relations Board.
4. That an enforcement order embodying the terms of the
order to be made by the National Labor Relations Board herein-
above referred to may be entered by the United States Circuit
Court of Appeals for the Ninth Circuit, further notice of the
DECISIONS AND ORDERS 185
application for said enforcement from said court being hereby
expressly waived.
5. That this stipulation is made subject to the approval of the
National Labor Relations Board.
On June 30, 1938, pursuant to Article II, Section 37, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
the Board issued its order approving the original stipulation and
transferring the proceeding to the Board for the purpose of entry
of a decision and order by the Board pursuant to the said stipula-
tion. On October 3, 1938, the Board approved the amended stipu-
lation and made it a part of the record in the case.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is an individual doing business under the name
and style of the L. C. Phenix Company. He is engaged in the manu-
facture of furniture in Los Angeles, California. During the year
1937 and the first five months of 1938 he purchased all raw materials,
consisting of lumber, textiles, filling materials, springs, paint, and
varnish, within the State of California. During the year 1936 the
respondent's total sales of furniture amounted to $205,743, of which
approximately 23 per cent were shipped to points outside the State
of California. During the year 1937 the percentage of out-of-State
shipments remained about the same. For the first five months of
1938 13.5 per cent of the total sales of $84,139 were shipped outside
the State.
We find that the above-described operations constitute a continuous
flow of trade, traffic, and commerce among the several States.
ORDER
Upon the basis of the above findings of fact and stipulation and
the entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that LeRoy C. Phenix, doing business as the L. C.
Phenix Company, Los Angeles, California, and his agents, succes-
sors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Furniture Workers Union,
Local No. 1561, or in any other labor organization of his em-
ployees, by discriminating in regard to hire or tenure of em-
ployment or any term or condition of employment;
186 NATIONAL LABOR RELATIONS BOARD
(b) In any other manner, interfering with, restraining, or
coercing his employees in the exercise of their rights to self-
organization , to form, join , and assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted action for the purpose of col-
lective bargaining , or other mutual aid and protection, as
guaranteed in Section 7 of the National Labor Relations Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act :
(a) Offer to George DePew, without prejudice to his senior-
ity rights and other rights and privileges , reinstatement, to
some position within the respondent 's plant not later than
July 15, 1938 , at the rate of pay paid to employees performing
similar work , and as soon thereafter as the work is available
reinstate the said George DePew to a position equivalent to
the work that he was performing prior to September 1, 1937,
at the rate of pay regularly paid for that job;
(b) Pay to the following-named persons the stated sum of
eighty-three dollars and thirty-three cents ($83.33 ) in settle-
ment for loss of pay they have suffered :
(1) George DePew
(2) J. C. Church
(3) Dave M. Acree
(4) Calvin Church
(5) Charles R. Hicks
(6) Lee Church
(c) Post immediately notices to his employees in conspicu-
ous places in his plant at Los Angeles, California , stating :
(1) That the respondent will cease and desist in the manner
aforesaid from the acts hereinabove referred to; (2) That the
respondent's employees are free to join or assist any labor
organization ; (3) That the respondent will not discourage
membership in Furniture Workers Union, Local No. 1561, or
in any other labor organization of his employees , by discrimi-
nating in regard to hire or tenure of employment or any term
or condition of employment;
(d) Maintain the aforesaid notices for a period of thirty
(30) consecutive days from the date of posting.
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Decision and Order.