The Los Angeles Spring Bed Co.

National Labor Relations Board - Board Decisions

Jun 10, 1940

24 N.L.R.B. 528 (N.L.R.B. 1940)

In the Matter of THE Los ANGELES SPRING BED COMPANY and
UNITED FURNITURE WORKERS OF AMERICA, LOCAL 576, C. I. O.
Case No. C-1351.-Decided June 10, 1940
Furniture Manufacturing Industry-Interference, Restraint, and Coercion :
anti-union statements by supervisory employees, indicating respondent's hostility
to outside organizations-Discrimination: charges of, sustained; 15 employees,.
including union leaders, allegedly laid off for lack of work, found to have been.
discriminatorily discharged because . of union activity-Reinstatement: dis-
charged employees-Back Pay: awarded-Unit Appropriate for Collective
Bargaining: no controversy as to ; all production employees excluding office
and clerical employees, and supervisory employees not working at the trade--
Representatives : proof of choice ; authenticated list of membership applications;
not contested-Collective Bargaining : meeting with union representatives with-
out treating or recognizing the Union as the exclusive representatives of em-
ployees constitutes refusal to bargain ; respondent ordered to bargain upon
request.
Mr. David Sokol, for the Board.
Mr. Robert F. Chapman, Mr. James S. Wollacott, and Mr. William
A. Moeller, of Los Angeles, Calif., for the respondent.
Mr. Ernest Marsh, of Los Angeles, Calif., for the United.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by United Furniture Workers
of America, Local 576, herein called the United, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Twenty-first Region (Los Angeles, California), issued its
complaint, dated June 1, 1939, against The Los Angeles Spring Bed
Company, Los Angeles, California, herein called the respondent, al-
leging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, herein called the Act.
Concerning the unfair labor practices, the complaint, as amended
at the hearing, alleged in substance that the respondent discouraged
24 N. L. R. B., No. 51. -
528
LOS ANGELES SPRING BED COMPANY 529
membership in the United by discharging and/or laying off and
refusing to reinstate the 15 persons listed in Appendix A' because
they had joined and assisted the United, refused to bargain col-
lectively with the United as the exclusive representative of the
respondent's employees within an appropriate unit, and by the fore-
going acts and` refusals and by other acts interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Copies of the complaint and accompanying notice of hearing were
served upon the respondent and the United. On June 15, 1939, the
respondent filed its answer to the complaint denying the allegation
of unfair labor practises but admitting that appropriateness of the
bargaining unit as alleged therein.'
Pursuant to notice, a hearing was held on June 15, 16, and 19,
1939, at Los Angeles, California, before Thomas H. Kennedy, the
Trial Examiner duly designated by the Board. The Board was
represented by counsel, and the respondent and the United by their
respective representatives; all participated in the hearing. Full op-
portunity to be heard; to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all
parties. Several rulings upon motions and objections to the ad-
mission of evidence were made by-the Trial Examiner at the hearing.
The Board has reviewed the rulings of the Ti•ial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On August 31, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were served upon all the parties, wherein
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and.Section 2 (6) and (7) of the Act.
He recommended that the respondent cease and desist from its un-
fair labor practices, reinstate with back pay the 15 persons listed
in Appendix A, and, upon request, bargain collectively with the
United. Exceptions to the Intermediate Report were thereafter
filed by the respondent.
Pursuant to notice, and upon request of the respondent, a hearing
was held before the Board in Washington, D. C., on January 23,
1940, for the purpose of oral argument. The respondent appeared
by a representative and participated in the argument. The Board
has fully considered the exceptions of the respondent and the argu-
1 Pursuant to the terms of a stipulation entered into by the respondent and counsel
for the Board , the amended charges and the complaint were amended at the hearing
by adding the name of Robert M. Edwards to the list of employees alleged therein to
have been discriminatorily treated.
Counsel for the Board waived objection to the respondent 's delay in Ming its answer.
530 DECISIONS OF NATIONAL- LABOR RELATIONS- BOARD
ment advanced at the . hearing before the Board and, in so far as
the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Los Angeles Spring Bed Company is an Ohio corporation
duly licensed to transact business in the State of California. Its
principal office and its factory where the respondent manufactures
spring and metal beds, day beds, cots, coil springs, and wire-bed
products are in Los Angeles, California. During 1938 the respond-
ent purchased raw materials, consisting principally of steel, steel
wire, rivets, and paint, valued at approximately $161,000. Approxi-
mately 50 per cent of such raw materials originated outside the State
of California. During the same period the respondent sold products
aggregating $293,548 in value, of which approximately 12 per cent
were shipped to, purchasers outside the State of California. The
respondent employs approximately 70 production workers in its
factory. It stipulated that it is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE ORGANIZATION INVOLVED
United Furniture Workers of America, Local 576, is a labor or-
ganization affiliated with the Congress of Industrial Organizations.
It admits to membership all production employees of the respondent
except office and clerical employees, and supervisory employees not
working at the trade.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
Fernando Gonzales, one of the employees named in the instant
complaint, started to work for the respondent in July 1936. When
Gonzales applied for employment Moeller, the respondent's vice
president and general manager, asked him whether he belonged to
a union. Gonzales replied in the negative and Moeller hired him.
When Roger Johnson, another alleged victim of discrimination in
the instant case, applied to Moeller for employment in September
1937 the latter asked him whether he had been a member of the
LOS ANGELES SPRING BED COMPANY 531
union at his former place of employment . Johnson, too , was hired
after answering this question in the negative.
Alfred Bauer, a night foreman in the respondent's employ, on
several occasions prior to the advent of the United in January 1939,
stated to employees who were discussing unions that if a union
organized the respondent 's plant all the employees would have to
obtain employment elsewhere.
We find that the respondent , by Moeller 's interrogation of Gonzales
and Johnson concerning their union affiliations , and by Bauer's in-
timidatory remarks to the employees regarding the consequences of
union organization in relation to their continued employment , inter-
fered with, restrained , and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
In the first week of January 1939, Ernest Marsh, an organizer for
the United , began a membership campaign at the respondent 's plant.
Between January 3 and 13 Marsh distributed leaflets in, front of the
plant and held several meetings during lunch periods in a vacant
lot across the street from the plant and on the railroad tracks in the
rear of the plant. These meetings were well attended by the re-
spondent 's employees; by January 13 several had joined the United.
Moeller , the respondent 's vice president and general manager, ob-
served these activities and read one of the leaflets which had been
distributed.
On January 16, 1939, between 30 and 40 of the respondent's em-
ployees attended a meeting of the United held at the home of its
president, and a substantial number of them signed application
cards. At this meeting a shop committee was established for the
respondent 's plant, with Fernando Gonzales as chairman and Gordon
Lovell and Ernesto Guerrero as members.
On the morning of January 18 the United intensified its member-
ship campaign. Additional employees signed applications upon
solicitation in front of the plant and union buttons were distributed
to employees and were worn by many at work. We find that these
activities , too, were observed by Moeller.
During the course of the membership campaign of the United
the respondent indicated , through anti -union statements of General
Manager Moeller and Foremen Higgins and Davis, that it was hostile.
toward union organization among its employees . We shall set forth
a few examples of such statements , basing our findings in this respect
upon uncontradicted testimony of witnesses called by the Board.
On or about January 14, 1939, Moeller, in a conversation with
Guerrero, stated that he did not want any union at the plant and
that a union would not benefit the employees as the respondent was
already paying higher wages than a union would demand.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after Ashton Moore, an employee, joined the United on
January 18, 1939, Foreman. Higgins told him that a "company
union" was the only type of organization that had a chance at the
respondent's plant. In a subsequent, conversation with Moore, Hig-
gins asked the latter whether he belonged to the United. When
Moore failed to reply, Higgins said that it vas .obvious that Moore
was a member. Higgins then admonished Moore for joining the
United and told him that he had nothing to gain from his union
affiliation as he was already earning as much as he could expect to
receive at the plant. When Moore retorted that he needed a union
to protect his job as several employees had already been discharged,
Higgins asserted that the law did not prohibit a continuous lay-off
which would discourage the employees so much that they would vol-
untarily leave the respondent's employ. Higgins concluded the con-
versation with an anecdote concerning an alleged unpleasant expe-
rience of his wife with a union.
Foreman Davis asked William W. Verburg, an employee, whether
the latter was the union leader who was urging the respondent's
employees to join. Verburg replied in the negative. Davis stated
that Moeller wanted the information and that if it was true that
Verburg was the person responsible he could be dismissed. Verburg
thereafter personally informed Moeller that he was not engaged in
union activities, whereupon Moeller stated that he was glad to hear
it as unions were destructive.'
Davis told Gordon Lovell, an employee, that Moeller was not in
favor of unions, and expressed concern over the security of his own
job as well as that of his brother, Frank Davis, in the event the
United should organize the plant.
Davis asked Reuben Mirandi, an employee, what Marsh was doing
in front of the plant. When Mirandi replied that Marsh was solicit-
ing members for the United, Davis nodded his head and "said it
wouldn't do."
When asked why he had advised the employees to hide their union
buttons Davis replied, in the presence of Robert M. Edwards, an
employee, that he was afraid Moeller would be angry, and that he
did not want the employees who wore union buttons to lose their jobs.
We find that the respondent, by the anti-union statements of
Moeller, Higgins, and Davis, above set forth, interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
8 Foreman Davis and Verburg are deaf-mutes who communicate with each other in sign
language. Statements herein attributed to Davis were made either in writing or by a
sign code.
LOS ANGELES SPRING BED COMPANY 533
B. The discharges
Between January 16 and 31, 1939, at the height of the membership
campaign of the United, the respondent terminated the employment
of 12 of the 15 persons named in the complaint. Two of the remain-
ing three were dismissed in April, and the last in June. The re-
spondent contends that all were laid off for lack of work. Inasmuch,
however, as the respondent asserts that it has adopted the policy of
refusing to reemploy laid-off employees, the terminations are tanta-
mount to discharges. We shall briefly consider each individual case.
Roger Johnson was first employed by the respondent in September
1937 as a helper at 35 cents an hour. He was discharged on January
16, 1939. At time of his discharge Johnson ranked high in seniority,
and was earning 45 cents an hour. Johnson joined the United on
January 12, 1939, attended its meetings in front of the plant, and
solicited members for it. On January 16 Foreman Allen informed
Johnson that he was laid off for an indefinite period. When Allen
failed to give an explanation of the purported lay-off which was
satisfactory to Johnson, the latter spoke to Moeller, who assigned
lack of work as the reason, stating that he was reducing the
personnel.
Marvin Gharet was first employed by the respondent in July 1936
as a riveter at 35 cents an hour. He was discharged on January 16,
1939. At the time of his discharge Gharet was earning 45 cents an
hour. During his employment he worked in several different de-
partments. On one occasion, shortly before Gharet was transferred
to the night shift, Foreman Chiara told him that any of the em-
ployees who joined the union .would be discharged. Gharet joined
the United on January 13 and thereafter encouraged other em-
ployees to join.
Finding his card out of the rack on the morning of January 16,
Gharet asked Cragin, a foreman, for an explanation. The latter
stated that Gharet was laid off because there was a scarcity of work,
and suggested that he seek employment elsewhere. Gharet applied
for reinstatement on several occasions after his discharge but was
told each time that there was no work.
Fernando Gonzales was first hired by the respondent on July 30,
1936, as a "knotter" at 35 cents an hour. Later he was transferred
to the coil machine at 47 cents an hour. He also performed certain
other general work.
Joining the United on January 12, Gonzales became an active
member. On January 16 he was elected shop-committee chairman,
a, fact well known in the plant. Two days later, on the afternoon of
January 18, Foreman Allen laid Gonzales off indefinitely. When
283035-42-vol. 24-35
534 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
Allen and Moeller both told him that lack of work was the reason
for his lay-off, Gonzales reminded them of the respondent's practice
of sharing work during slack periods, and stated that he knew that
work was available; whereupon Moeller or Allen said, "Well, there
is no work and' conditions have changed." Thereafter, Gonzales
applied for work wearing his union button, but was refused
reinstatement.
Joseph Morris was hired by the respondent in August 1936 as a
painter at 40 cents an hour. He was discharged on January 18, 1939.
At the time of his discharge Morris had the highest seniority among
the painters and was earning 57 cents an hour. During slack periods
he used to help in other departments.
Morris joined the United on January 18 and wore his union button
at the plant. Later on the same day Foreman Cragin told Morris
that Moeller had instructed him to lay Morris off because of lack of
work. Cragin suggested that Morris seek employment elsewhere and
offered to give him a letter of recommendation. When Foreman
Davis was told of Morris' lay-off he expressed surprise, stating that
the respondent did not usually lay off painters. He added, however,
that Moeller was not in favor of unions.
Edgar Anderson, a deaf-mute, was first hired by the respondent on
September 8, 1938, as a helper in the assembly department. On about
January 11, 1939, Foreman Davis laid Anderson off, allegedly because
of slack business, but informed him that he could work alternately
each week with Vickers. Foreman Davis had previously told Ander-
son's mother that her son, Edgar, would be laid off temporarily and
that the men were fools to join the union. The record does not show
whether Anderson was aware of this statement by Davis. Anderson
joined the United on January 16. Two days later, on January 18,
Anderson returned to the plant for work wearing his union button .4
Foreman Davis inquired whether Anderson had joined the union.
When the latter replied in the affirmative, Davis said, "Don't come
back."
Ashton Moore was first employed by the respondent in 1931 as an
assembler. He was discharged on January 23, 1939. During his em-
ployment Moore also worked in the paint department, drove a truck,
and finally was placed in the shipping department where he was work-
ing at the time of his discharge. He had seniority over two other
persons in that department.
Moore joined the United on January 18, first wearing his union but-
ton at the plant on January 23. On the latter day after lunch, Fore-
4 The complaint alleges that Anderson was discharged on January 26, 1939. The Trial
Examiner, however, found that the discharge occurred on January 18, and the respondent
did not except to that finding.
LOS ANGELES SPRING BED COMPANY 535
man Higgins, after first telling Moore that he would not pay the union
for the privilege of wearing a button, informed Moore that he would
not need his services for the remainder of the week as.business was
slow, but that he should report Monday. When Moore returned to
the plant the Friday following his lay-off for his pay check, Higgins
told him not to report for work Monday as business was still slow.
Nevertheless Moore, returning to the plant on Monday, asked Moeller
whether his lay-off was temporary or permanent; whereupon Moeller
replied that it was permanent, stating that since business was slow
Higgins could also perform Moore's work. Moore then requested to
drive the respondent's truck, which he had formerly done, but Moeller
refused, stating that he did not like to demote an employee and that
since Moore had been at the plant a long time, the latter might want
to look for another job.
William W. Verburg,5 a deaf-mute, was first employed by the re-
spondent in July 1929 at 50 cents an hour. He was discharged on
January 26, 1939. At the time of his discharge Verburg was earning
between 60 cents and 70 cents an hour as an assembler, and had the
highest seniority among the assemblers. We have found above that
prior to his joining the United on January 16, in response to interro-
gation by Foreman Davis, Verburg denied to Davis.and Moeller any
participation in union activity. However, after joining the United,
Verburg wore his union button and indicated his approval of the
union to other deaf-mutes employed by the respondent. On January
26 Foreman Davis laid Verburg off without assigning a reason.
When Verburg requested an explanation of the lay-off from Moeller,
he stated that there was no work available.
Ernesto Guerrero was first hired by the respondent in 1936 as an
assembler at 35 cents an hour. He was discharged on January 26,
1939. At the time of his discharge Guerrero was working in the
assembly department where his earnings averaged between 70 cents
and 80 cents an hour.
Guerrero was one of the first employees to join the union movement
at the plant. He joined the United on January 12, was elected to the
shop committee, wore his union button at the plant, attended all union
meetings, and recruited many union members. Although he had
previously been warned, as found above, that Moeller did not want a
union in the plant, Guerrero continued his union activity until his
discharge.
On January 26 Foreman Davis laid Guerrero off, stating that there
was no work and that there would be none for a long time in the
future. On February,2 when Guerrero sought employment at the
5 Referred to as William W. Verberg in the complaint.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, Foreman Davis told him to look for another job as he would
not be reemployed by the respondent.
Frank Davis, a deaf-mute, was first hired by the respondent on
July 19, 1936, as an assembler at 35 cents an hour. He was discharged
on January 26, 1939. At the time of his discharge Davis was earning
between 50 cents and 70 cents an hour. Prior thereto Davis was
warned by his brother, Foreman Davis, that he would be discharged
if he joined the union. However, on January 18 Davis joined the
United and wore a union button at the plant. On January 26 he was
laid off by Foreman Davis allegedly because of lack of work.
Gordon Lovell was first hired by the respondent in August 1934 as
a helper in the assembly department at 30 cents an hour. He was dis-
charged on January 26, 1939. At the time of his discharge he had
seniority over four other employees and was earning approximately
$20 a week as an assembler.
Although Lovell had been warned, as found above, of Moeller's
hostile attitude toward the union, he nevertheless joined the United
on January 16 and was elected to the shop committee. He acted as
interpreter for the deaf-mutes at union meetings. On January 24
Lovell first wore his union button at the plant, and on January 26
Foreman Davis notified him that his services would not be needed that
morning. In response to an inquiry whether the lay-off was perma-
nent or temporary, Davis informed Lovell that he would be called
back when business improved. By the time of the hearing Lovell had
not been reemployed by the respondent.
Frank Risely was first employed by the respondent in 1928 or 1929
as a riveter at 40 cents or 45 cents an hour. He was discharged on
January 26, 1939. During his employment he worked in several de-
partments, including the punch-press department where he was em-
ployed at time of his discharge. Risely was then earning 65 cents an
hour and ranked high in seniority in several departments.
Risely joined the United on January 19, wore his union button at the
plant, and was elected to the shop committee as a delegate from the
punch-press department. On January 26 Foreman Cragin laid Risely
off, failing to assign a reason for the lay-off. Thereafter, Risely, after
reminding Moeller that he was an old employee who had previously
worked during slack periods, asked the latter why he had been laid
off ; Moeller replied that "things had changed."
Veir Anderson was first employed by the respondent in February
1934 as a riveter at 40 cents an hour. He was discharged on January
31, 1939 6 At the time of his discharge he was working at the punch
press and earning 65 cents an hour. Joining the United on January
" The complaint alleges that Veir Anderson was discharged on January 27, 1939.
LOS ANGELES SPRING BED COMPANY 537
18, he was elected to the shop committee and was subsequently elected
its chairman. A few days thereafter, on January 31,. Foreman
Cragin laid Anderson off indefinitely, assigning lack of work as the
reason for the lay-off. Thereafter Anderson, without success, ap-
plied for'work'on several occasions.
Reuben Mirandi was first hired by the respondent in April 1936 as
a wire straightener at 25 cents an hour. Thereafter, he was utilized
as a general handy man. He was discharged on April 2, 1939. At
the time of his discharge Mirandi was earning 45 cents an hour.
He joined the United on January 12, attended its meetings, en-
couraged the deaf-mutes to join, and wore a union button at the plant.
On April 2 Foreman Davis, after stating that he was having trouble
with work of the newly hired employees at the plant, laid Mirandi
off without explanation, stating that "he hated to see [Mirandi] go
as he liked [Mirandi] there as a handy man." Thereafter, Mirandi
sought reinstatement without success.
William C. Stickan 7 was first employed by the respondent in
September 1936 as an assembler at 35 cents an hour. He was dis-
charged on April 21, 1939. Stickan joined the United on January
18, encouraged other employees to join it, and wore his union button
at the plant. On March 25 he was elected shop-committee chairman.
On the morning of April 21 Stickan distributed new union buttons
among the employees at the plant and on the afternoon of that day
Foreman Davis laid Stickan off, stating that Stickan's services were
satisfactory and that he personally disliked to lay him off. There-
after, Stickan unsuccessfully sought reemployment.
Robert M. Edwards was first employed by the respondent in 1930
at 35 cents an hour. He was discharged on June 2, 1939. During his
employment he worked in the painting and assembling departments
and, finally, in the shipping department. At the time of his dis-
charge he earned 68 cents an hour.
Edwards joined the United on January 18, 1939, attended meetings
and spoke in favor of the union. Upon seeing Edwards wearing a
union button at the plant, Higgins inquired, "Did they get you in
there, to and when Edwards replied, "Yes, sir," Higgins "just
shook his head and walked away."
On June 1 Edwards was subpenaed to testify at the hearing in
this proceeding. The next day Higgins approached Edwards and
said, "Well, Red [Edwards], I got to do something that I hate to
do-I have got to lay you off." When pressed by Edwards for a
reason for the lay-off, Higgins said that the respondent was going
7 Referred to in the complaint as William C. F. Stickan.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get a man who could keep books." Shortly thereafter, when
Edwards asked Moeller about reinstatement, Moeller replied that he
was going to put another man in Edwards' place. Edwards then
reminded Moeller that he had previously said that he would try to
take care of all the old men, whereupon Moeller said, "Well, men
change and times change."
The record shows that none of the above-mentioned employees had
been reinstated by the respondent or had obtained other regular and
substantially equivalent employment. All expressed a desire to
return to work for the respondent.
C. Conclusions regarding the discharges
As we have stated, the respondent contends that the 15 men named
in the complaint were discharged solely for lack of work. It ex-
plains its failure to rehire any of them by asserting that for many
years it has had a "definite policy of not rehiring anyone once re-
leased from the payroll." It contends, further, that it was unaware
of the identity of members of the United and was therefore incapable
of discharging employees for membership or activity therein.
Finally, to show the non-discriminatory nature of its lay-off policy,
it asserts that in the period from January to June 1939, it "released"
29 persons in all from its employ.
While it is true that the respondent's business was slack during
January 1939, the record indicates that it thereafter improved and
that between March of that year and the time of the hearing in June
the respondent hired 24 new employees. The new men so hired did
the same general kind of work as was previously performed by the
discharged employees. Prior to the advent of the United, moreover,
the respondent had pursued the policy of sharing available work in
preference to laying off employees during slack periods.
The respondent's assertion that it had for years refrained from
rehiring laid-off personnel is completely contrary to the record. Not
only did a number of the persons named in the complaint testify
without contradiction that they had, in the past, been laid off and
rehired,9 but the respondent itself informed the Regional Director
by letter dated June 22, 1936, that "Whenever business gets dull and
we are forced to lay-off help, we no doubt are willing to hire back the
wellworthy deserving ones who are experienced before we hire new
help to be broken in when business picks up." 10
8 The respondent did not assign inability to keep books as the reason for Edwards'
lay-off or introduce evidence showing that knowledge of bookkeeping was necessary
to perform the duties connected with Edwards' job.
9 Johnson, Gharet, Morris, Moore, Guerrero, Lovell, Veir Anderson, and Stickan.
]U This letter was written in connection with charges alleging discrimination on the
part of the respondent which were filed with the Regional Director in 1936.
LOS ANGELES SPRING BED COMPANY 539
Thus as to 12 of the men named in the complaint it appears that
the respondent, in discharging them at the height of a union organ-
izing campaign abruptly departed from its earlier practice of sharing
work during slack periods, and that the respondent explains its sub-
sequent employment of new men in their places by reference to a
policy, allegedly of long standing, but which appears in fact to be
an innovation. Of the remaining three men, Mirandi and Stickan
were discharged in April, and Edwards in June. Their discharges
occurred when the respondent's business was on the increase, so that
as to them the allegation of lay-off for lack of work is entirely with-
out support. As regards the method of the selection of any of these
men for termination, the respondent offered no evidence save general
and unsupported testimony by Moeller to the effect that Gharet,
Johnson, and Morris were poor workmen.
We have considered and must reject the contention of the respond-
ent that it was incapable of discrimination because it was unaware of
the identity of United members. Moeller and, other supervisory
employees of the respondent, notably Foremen Higgins and Davis,
engaged in a number of anti-union statements and interrogations
indicative of the respondent's hostile interest in the progress of the
United. The activities of the adherents of that union were openly
conducted, meetings were held near the plant, employees wore union
buttons to work. A number of the discharges occurred shortly after
the employee in question had joined the United, had first worn his
union button in the plant, or had engaged in some conspicuous union
activity. We are convinced that the respondent, was aware of the
identity of those of its employees who were actively engaged in self-
organization."
Of the 29 men allegedly "released" by the respondent between Jan-
uary and June 1939, 15 are named in the complaint, 4 more are mem-
bers of the United as to whom no charge was filed, and 10 are
non-union employees. Inasmuch as the record does not indicate
whether the 14 men not named in the complaint were discharged or
laid off, or quit voluntarily, no inference can be drawn from these
figures.
Upon the entire record we are of the opinion and we accordingly
find that the respondent discharged and thereafter refused to reinstate
the employees listed in Appendix A because of their membership and
activities in the United, and that it thereby discriminated in regard
to their hire and tenure of employment, discouraged membership in
the United, and interfered with, restrained, and coerced its employees
in. the exercise of the rights guaranteed in Section 7 of the Act.
'We note in this connection that the respondent discharged three successive shop-
committee chairman ( Gonzales, Veir Anderson , and Stickan ), as well as two other shop
committeemen (Lovell and Risely).
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The refusal to bargain
1. The appropriate unit
The complaint, as amended, alleges, and the respondent admits in
its answer thereto, that all the production employees of the respond-
ent, excluding office and clerical employees, and supervisory employees
not working at the trade, constitute an appropriate unit. We see no
reason to deviate from this unit.
We find that all production employees of the respondent, excluding
office and clerical employees, and supervisory employees not working
at the trade, at all times material herein constituted and that they
now constitute a unit appropriate for the purpose of collective bar-
gaining, and that such unit insures to the employees of the respondent
the full benefit of their right to collective bargaining and otherwise
effectuates the policies of the Act.
2. Representation by Local 576 of a majority in the appropriate unit
The complaint, as amended, alleges that on or about January 21,
1939, and at all times thereafter the respondent has refused to bargain
collectively with the United. The respondent's pay roll for the week
ending January 25, 1939, lists 67 production employees, including
6 foremen or assistant foremen not properly in the unit. However,
five 1:2 employees whom we have found to have been discriminatorily
discharged prior to that date were within the unit although not named
on the pay roll. We accordingly find that on January 21, 1939, there
were 66 employees in the unit we have found appropriate.
The United introduced in evidence a list of the respondent's
employees who had signed membership applications, together with
the date upon which each signed. The respondent's representative
checked and compared this list with the original application cards
signed by the respondent's employees and did not challenge the
majority representation of the United as reflected by the cards and
the list. According to this list the United had, on or before January
21, 1939, been designated by 52 of the respondent's employees within
the appropriate unit as their exclusive representative for the purpose
of collective bargaining. The record discloses that the designation
of the United by a majority in the appropriate unit continued through
April 12, 1939, and at oral argument the respondent admitted that
the United still represented a majority of its employees.
We accordingly find that on January 21, 1939, and at all times
thereafter, and on April 12, 1939, the United was and has been desig-
12 These employees are : Johnson , Gharet, Gonzales, Morris, and Edgar Anderson.
LOS ANGELES SPRING BED COMPANY 541
nated and selected by a majority of the employees in the unit above
found to be appropriate as their representative for the purpose of
collective bargaining, and pursuant to Section 9 (a) of the Act, was,
on January 21, 1939, and at all times thereafter, and on April 12,
1939, the exclusive representative of all the employees in such unit
for the purposes of collective bargaining with the respondent in
respect to rates of pay, hours of employment, and conditions of
employment.
3. The refusal to bargain
Marsh testified in detail in regard to attempts on his part to nego-
tiate with the respondent on behalf of the United. James S. Wolla-
cott, to whom the respondent delegated full power to act on its behalf
in its dealings with the United,, failed to testify. The findings below
are based on the uncontroverted testimony of Marsh which we accept
as being substantially true.
On January 21, 1939, Marsh informed Moeller by telephone that
he represented the United which had been designated by a majority
of the respondent's employees as their representative, and requested
a, meeting to negotiate an agreement and discuss the reinstatement
of certain employees who allegedly had been discriminatorily dis-
charged. Moeller replied" that the respondent had delegated full
authority in this matter to Wollacott, and that it would be necessary
for Marsh to see him.
Marsh communicated with Wollacott and on January 24 they met
with one Muir, a Field Examiner employed by the Board, at the
Board's Regional Office. When Wollacott stated at this meeting that
the respondent admitted the United's majority, Marsh proposed that
the respondent reinstate the discharged employees, recognize the
United as the employees' exclusive representative, enter into nego-
tiations for a contract, and post notices that the respondent would not
indulge in further discriminations. Wollacott then replied that
Moeller would not reinstate the employees and that the controversy
would have to go to a hearing. He did agree, however, to submit
Marsh's proposal to Moeller.
At another conference between Wollacott and Marsh on January
26 at the Regional Office of the Board, Wollacott stated that he had
presented Marsh's proposal to the respondent, but the "company
didn't care to do anything about it." Wollacott then tendered a
written , statement setting forth the respondent's position which
stated in effect that until after the furniture "Mart" the respondent
could not exactly determine its manufacturing program for the early
part of 1939, or the number and type of employees it would need; that
the employees who had been previously laid off were selected "on the
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis of proper reduced working conditions"; and that changes in
"style and class 'of merchandise" will require "reorganization and
changes in personnel," and possibly a further personnel reduction
As the conference concluded Wollacott stated that "the company was
a tough outfit, and it would be necessary to hold a hearing."
On January 30, in a conversation relating to another alleged dis-
criminatory discharge which occurred prior thereto, Wollacott told
Marsh that the respondent felt justified in "letting the men go" and
that the "matter" would have to be decided by the Board.
Upon the request of Chapman, an associate of Wollacott, Marsh by
letter dated April 5 set forth certain facts concerning the discrimina-
tion allegedly practiced by the respondent. Chapman informed
Marsh by telephone that, he had received the letter and was taking
the matters raised therein under advisement. Marsh heard nothing
further from Chapman.
On April 12 a final conference was held at the Board's Regional
Office to attempt informally to settle this case. Wollacott, Marsh,
Sokol, an attorney for the Board,13 and Risely, a discharged union
employee of the respondent, were present. When Sokol asked Wolla-
cott if there was any way the case could be settled, Wollacott replied.
that there was no way to avoid a hearing; that "Moeller had made up
his mind in January that he was not going to deal with the union
and the company still had the same opinion"; that the respondent felt
justified in releasing the men and would not consider reemploying
them; and that the respondent would not negotiate a contract with
the United.
The record clearly shows that although the respondent, without
requesting proof, acknowledged the United's majority representation
at the first conference on January 24, it has refused, upon request, at
all times between January 21 and April 12 to treat and bargain with
the United as the exclusive representative of the production em-
ployees. The record fails to disclose any justification for this ada-
mant position of the respondent. At oral argument the respondent
contended that it as well as the United refused to enter into negotia-
tions for a contract until the United's charges of discrimination had
first been settled. This contention is not supported by the record.
The respondent's position during these negotiations may best be
epitomized by the statement of Wollacott who stated at the April 12
conference that Moeller had made up his mind in January not to
"deal" or negotiate a contract with the United. We think it clear,
from the fact set forth above, that the respondent did not on January
21 or at any time thereafter intend to bargain collectively with the.
United.
23 Sokol represented the Board at the hearing.
LOS ANGELES SPRING BED COMPANY 543'.
We find that the respondent on January 21, 1939, and at all times
thereafter , and on April 12, 1939 , refused to bargain collectively with
the United as the representative of its production employees in
respect to rates of pay , wages, hours of employment , and other con-
ditions of employment , and that it thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action which we deem necessary to effectu-
ate the policies of the Act.
We have found that the respondent refused to bargain collectively
with the United. We shall order it, upon request, to bargain col-
lectively with the United as the exclusive representative of its em-
ployees within the unit which we have found to be appropriate.
We have found that the respondent discriminatorily discharged
and refused to reinstate the 15 employees named in Appendix A.
We shall order the respondent to offer these employees immediate
reinstatement to their former positions and to make them whole for
any loss of pay they have suffered by reason of the respondent's dis-
crimination by payment to each of them of a sum of money equal
to the amount which he would have normally earned as wages from
the date of the termination of his employment to the date of the
respondent's offer of reinstatement, less his net earnings 14 during
said period.
'k By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his unlaw-
ful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and. Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N . L. R. B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work -relief
projects are not considered as earnings , but as provided, below in the Order, shall be
deducted from the sum due the employee and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work -relief projects.
544'. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon: the. foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, Local 576, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to hire and tenure
of employment of the 15 employees listed in Appendix A, and
thereby discouraging membership in United Furniture Workers of
America,. Local 576, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
3. The production employees of the respondent, excluding office
and clerical employees, and supervisory employees not working at
a trade, at all times material herein constituted and now constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
4. United Furniture Workers of America, Local 576, was on Jan-
uary 21, 1939, and at all times since has been, the exclusive repre-
sentative of all employees in such unit for the purposes of collective
bargaining,, within the meaning of Section 9 (a) of the Act.
5. The respondent, by refusing to bargain collectively with the
United Furniture Workers of America, Local 576, as the exclusive
representative of its employees in an appropriate unit, has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act.
6. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the
Act, has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that The
Los Angeles Spring Bed Company, and its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Furniture Workers of
America, Local 576, or any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees or in
LOS • ANGELES SPRING BED COMPANY' ._545
any other manner discriminating in regard to hire or tenure of
employment; -
(b) Refusing to bargain with United Furniture Workers of
America, Local 576, as the exclusive representative of ahl its pro-
duction employees, excluding office and clerical employees, and
supervisory employees not working at a trade;
(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 labor organizations, to bargain collectively
through representatives of their -own -choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or 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 the 15 persons listed in Appendix A immediate and
full reinstatement to their positions without prejudice to -their
seniority or other rights and privileges;
(b) Make whole the persons listed in Appendix A for any loss of
pay they may have suffered by reason of the respondent's discrimi-
nation in regard to their hire and tenure of employment by payment
to each of them of a sum of money equal to that which each would
normally have earned as wages during the period from the date of
such discrimination against him to the date of the respondent's offer
of reinstatement, less his net earnings 15 during said period; provided
that the respondent. shall deduct from the amount otherwise due to
each of the aforesaid persons a sum equal to that received by him for
work performed upon Federal, State, county, municipal, or other
work-relief projects during the period for which the back pay is
due him under the terms of this Order, and shall pay any such
amount deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(c) Upon request, bargain collectively with United Furniture
Workers of America, Local 576, as the exclusive representative of all
its production employees, excluding office and clerical employees, and
supervisory employees not working at a trade;
(d) Post immediately in conspicuous places in its plant at Los
Angeles, California, and maintain for a period of at least sixty
(60) consecutive days from the date of posting notices to its em-
ployees, stating: (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a), (b), and (c) of this Order; (2) that the respondent will take
15 See footnote 14, supra.
,546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the affirmative action set forth in paragraphs 2 (a), (b), and (c) of
the Order; and (3) that the respondent's employees are free to
become or remain members of United Furniture Workers of America,
Local 576, and the respondent will not discriminate against any
employee because of membership or activity in that organization;
(e) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
APPENDIX A
Roger Johnson
Marvin Gharet
Fernando Gonzales
Joseph Morris
Edgar Anderson
Ashton Moore
William W. Verburg
Ernesto Guerrero
Frank Davis
Gordon Lovell
Frank Risely
Veir Anderson
Reuben Mirandi
William C. Stickan
Robert M. Edwards