Toccoa Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 13, 1963

141 N.L.R.B. 389 (N.L.R.B. 1963)

TOCCOA MANUFACTURING COMPANY 389
Toccoa Manufacturing Company and Upholsterers ' Interna-
tional Union , Local 188. Case No. 10-CA-5068. March 13, 1963
DECISION AND ORDER
On December 14,1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled case, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provision of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the excep-
tions and brief, and hereby adopts the findings, conclusions,' and
recommendations 2 of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner 3
I We do not agree with the Trial Examiner that employee Childs' account of Supervisor
DeFoor's conversation with respect to the Union was without specific contradiction. As
noted by the Trial Examiner in his Intermediate Report, DeFoor testified contrary to
Childs that the only conversation he had with Childs in reference to a union was whether
or not Childs belonged to a union when he worked at Doraville However, we are satisfied
that the findings of fact by the Trial Examiner are based on his observations of the
witnesses before him and are supported by the record as a whole. Standard Dry Wall
Products, 91 NLRB 544, 545, enfd. 188 F. 2d 362 (C.A. 3).
2 Member Rodgers, for the reasons expressed in his dissent in Isis Plumbing & Heating
Co, 138 NLRB 716, would not award interest on backpay.
3 The notice appended to the Intermediate Report is hereby amended by inserting im-
mediately below the signature the following paragraph:
NOTE-We will notify any of the above-named employees 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 after discharge from the Armed
Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an original charge filed on July 31, 1962, and an amended charge filed on
August 27, 1962, by the above-named labor organization, the General Counsel of
the National Labor Relations Board on August 31, 1962, issued his complaint and
notice of hearing. An answer was received from the above-named Respondent on
September 17, 1962. The complaint alleges and the answer denies that the Respondent
has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended. Pursuant to notice, a hearing
141 NLRB No. 36.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was held on October 30, 1962, in Toccoa, Georgia, before Trial Examiner C. W.
Whittemore.
At the hearing all parties were represented and were afforded full opportunity
to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from the Respondent and General Counsel.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Toccoa Manufacturing Company is an Illinois corporation with office and place
of business in Toccoa, Georgia, where it is engaged in the manufacture and sale of
furniture. During the 12 months before issuance of the complaint the Respondent
sold and shipped products valued at more than $50,000 from its Toccoa plant to
customers located outside the State of Georgia.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
Upholsterers' International Union, Local 188, is a labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The chief issues raised by the complaint stem from the Respondent's dismissal
in May 1962 of three employees: Bonnie Sue Westmoreland, Jasper Chastain, and
Joe Vickery, all within a period of about a week and shortly after Local 188 began
organizing the more than 450 plant workers.
It is undisputed that these dismissals occurred at a time when the Respondent's
hostility toward such organization was openly expressed by management representa-
tives. For example, the testimony of former employee Childs is without specific
contradiction by Lamar DeFoor, foreman of the cabinet shop, to the effect that on
May 14 the latter came to him with a list of some eight names, told him he had been
given the list at the office, and asked if Childs had taken part in any of the union
activities or had signed a card. Childs denied participation and asked where he got
the idea he had taken part. DeFoor replied that he had been given the names and had
to find out. The foreman declared that one employee, Chastain, had been fired
"for participating in the union," and added that Reinhold, owner of the plant, had
said that "if the people there wanted a job they would leave the union alone" and
that before he would let the plant "go union" he would "take the manufacturing
out of Toccoa." I
It is also undisputed that on May 17 DeFoor asked employee Gaines, in the
presence of other employees, if he had seen anyone passing out union cards. Gaines
answered that he had not. DeFoor than asked the employee to "let him know" if
he did and he would make it "worth my while." 2
Although Plant Superintendent Paletto denied that he had any reports of union
organization at the plant until after Chastain had been "let go," other candid testimony
by him detracts from the weight of such denial. He said that there were "quite a
few" employees who "definitely" would let him know if "anything had been going
on" and that these people "are the type that if you do things for them, they appreciate
it." Further doubt upon Paletto's credibility is made manifest by the testimony of
Toccoa's Chief of Police Troy Simmons, who said that he was called to the plant,
shortly after the employee's discharge, and asked by Paletto to have Chastain removed
from the plant parking lot because he was "talking union" to the employees.
B. The discharge of Westmoreland
Bonnie Sue Westmoreland had worked for the Respondent a total of about 4
years (although not in continuous service) when she was suddenly and without
1 As noted, Childs' detailed testimony was not specifically denied. DeFoor was only
asked if he had "had any conversations" with Childs "with reference to the union "
DeFoor replied: "The only conversation I had with Joe Dan Childs In reference to a
union was whether or not he belonged to a union when he worked at Doraville."
2 As a witness DeFoor only said he did not "recall" any such conversation with Gaines.
TOCCOA MANUFACTURING COMPANY 391
prior notice laid off by Foreman DeFoor on May 17. She was given no layoff
slip, and was merely told by DeFoor that she was being laid off because of "lack of
work."
It does not appear that Westmoreland was especially active in the union campaign,
but she had signed a union card early in May and had talked with another employee
about it at the time of signing.
The same day of her layoff her husband, J. L. Westmoreland, who is still an em-
ployee at the plant, telephoned DeFoor and asked why his wife had been fired.
According to Westmoreland the foreman declined to talk with him about it over
the telephone. According to DeFoor he told Westmoreland that he had laid her
off because of unsatisfactory work, and that after some further conversation he had
refused to discuss it more . The Trial Examiner cannot accept DeFoor's version.
It is undisputed that he had told Westmoreland that her layoff was due to "lack of
work," and as a witness the foreman made no claim that he had ever reprimanded
or warned her regarding her work .3
The day after her discharge her husband met DeFoor on the street and asked
the same question. DeFoor finally admitted that her layoff "could have been on
account of the Union," and said that she would not work for him again as long as he
was there .4
A few days later Plant Superintendent Paletto called Westmoreland into his office
and asked why he was trying to find out why his wife had been laid off. Westmore-
land indicated that he thought his curiosity as a husband was natural. He told
Paletto what DeFoor had said that she should have let the Union alone and would
never again work for him. It is undisputed that Paletto told him, "Well, she won't
work with DeFoor any more. I don't know whether she will work any more in the
plant. She should have let the union alone."
In view of the uncontradicted facts that: (1) On the same day of Westmoreland's
layoff the same foreman had promised Gaines to make it worth his while to give
him union information; (2) 3 days earlier the same foreman had told employee
Childs that he had a list of eight names to inquire about in connection with the
Union; and (3) a few days after the dismissal the plant superintendent himself told
her husband that she should have let the Union alone, the Trial Examiner concludes
and finds that management knew or believed she had participated in the organization,
and that it discriminatorily discharged her to discourage union membership and
activity.5 Such discrimination interefered with, restrained, and coerced employees
in the exercise of rights guaranteed by the Act.
C. The discharges of Chastain and Vickery
Employees Jasper Chastain and Joe Vickery were discharged on May 9 and 10,
respectively, by Marvin Powell, assistant foreman of the "filler" line. They worked
on the same production line in the finishing room.
Both Chastain and Vickery actively participated in the union campaign, soliciting
signatures to cards.
On May 9, according to Chastain's credible testimony, Powell told him that Paletto
and Meinert, the latter being general foreman of the department, had "pulled his
card." Chastain asked why. Powell said he did not know. Chastain asked for his
check. Powell said he would get it at the office. At the office he was directed to
Meinert. Meinert declined to answer the employee's question as to why he was
fired but told him his check had been sent on to Powell The employee finally
obtained his pay and started to pick up his personal belongings. Paletto and Rein-
hold, the plant owner, came out and ordered him from the premises.
Later the same day Chastain came back to the plant in his car to pick up his
cousin. Apparently while he was waiting in the company parking lot Paletto called
3 Not until queried by General Counsel on cross-examination did DeFoor claim her "un-
satisfactory work" consisted of keeping "inaccurate production records " No such records
were brought forward to support this belated claim
4 Although DeFoor denied that he told Westmoreland on this occasion that his wife was
laid off because of union activities, he did not deny having told him that she should have
let the Union alone and would never work for him again. And as noted in the next find-
ing, it is undisputed that a few days later Paletto also told Westmoreland that she should
have let the Union alone.
5 The Trial Examiner finds as utterly lacking in merit any claim that her layoff was a
reduction in force. It is undisputed-in fact is admitted by DeFoor-that shortly after
her discharge a new employee was hired who thereafter performed the same work, and
that she is still employed at the plant.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the police. As noted above, according to the police chief's credible testimony he
was told by Paletto that he wanted "the fellow" off his property, and that he was
"talking union" to the employees.6 Chastain had left the lot by the time the police
arrived.
The next day, according to the employee's credible testimony, Vickery was told by
Powell that Paletto and the general foreman had instructed that he be laid off. The
only reason Powell gave him was "just a general cutback." This reason, however, is
clearly invalidated by the fact that the same morning a new employee, Pritchard, had
been hired to do the same work on the line.
In mid-June Powell sent another employee to Vickery's home to tell him that if he
wanted work to report the next morning. Vickery came and started to work.
Within a few minutes Paletto sent for him. It is undisputed that Paletto told him "I
haven't got anything for you now and won't have. You have got messed up in this
union and you could have worked here as long as you wanted to if it hadn't been
for this."
Of additional bearing upon the discharge of these two employees is the undisputed
fact that a few days after the dismissals Foreman DeFoor told employee Childs, as
noted above, that "they" had fired Chastain for "participating" in the Union, and that
the plant owner had said that "if the people there wanted a job, they would leave the
Union alone."
In view of such uncontradicted facts which plainly establish the unlawful nature
of the two dismissals, it appears unnecessary to review the extravagant and obviously
untrustworthy claims advanced by the Respondent for its action. For an example
of the obvious unreliability of Powell's testimony, had there been any truth in his
contention that he told Vickery when firing him that his work was unsatisfactory, or
had it in fact been unsatisfactory, then the record is without reasonable explanation
for his later act in recalling him.
In short, the Trial Examiner concludes and finds that both Chastain and Vickery
were discharged to discourage union membership and activity, and that thereby the
Respondent interfered with, restrained, and coerced employees in the exercise of
rights guaranteed by the Act.
And in final summary, it is concluded and found that the Respondent further vio-
lated Section 8(a) (1) of the Act by: (1) DeFoor's conduct in querying Childs, tell-
ing him that Chastain had been fired because of his union participation, and quoting
the owner as threatening economic reprisals unless employees let the Union alone;
and (2) DeFoor's interrogation of employee Gaines and promising him to make it
worth his while to keep him informed about union matters.
IV. 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, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent offer employees Westmoreland,
Chastain, and Vickery immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings they may have suffered
by reason of the discrimination against them, by payment to each of a sum of
money equal to that which he or she would have earned as wages, absent the dis-
crimination, from the date of the discrimination to the date of the offer of reinstate-
ment, in the manner prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289.
The backpay obligations of the Respondent shall include the payment of interest
at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing &
Heating Co , 138 NLRB 716.
e The Trial Examiner can place no reliance upon Paletto's absurd quibbling in his testi-
mony. He admitted having called the police to "get him off the property" but said he only
told them that "if Mr. Chastain was trying to organize the union, which we didn't know,
that I didn't want him on the property." Even If his version is accepted, his motive was
nonetheless unlawfully discriminatory, although General Counsel conceded that he does
not seek to have the incident found to be a violation of the Act
TOCCOA MANUFACTURING COMPANY 393
In view of the serious and continued nature of the Respondent 's unfair labor
practices , it will be recommended that it cease and desist from in any manner in-
fringing upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Upholsterers' International Union, Local 188, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating as to the tenure of employment of Bonnie Sue Westmore-
land, Jasper Chastain, and Joe Vickery, thereby discouraging membership in and
activity on behalf of the above named labor organization, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record, the Trial Examiner recommends that Toccoa Manufacturing Company,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union activities in a manner vio-
lative of Section 8(a) (1) of the Act.
(b) Directly or by implication threatening employees with economic reprisals,
or promising them benefits, to discourage union membership and activity.
(c) Discouraging membership in Upholsterers' International Union, Local 188,
or in any other labor organization, by discharging, laying off, or refusing to reinstate
any of its employees because of their union membership or activities, or in any other
manner discriminating in regard to hire or tenure of employment or any term or
condition of employment.
(d) In any other manner interfering with, restraining, or coercing 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 collectively
through representatives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Offer employees Bonnie Sue Westmoreland, Jasper Chastain, and Joe Vickery
immediate and full reinstatement to their former or substantially equivalent posi-
tions, and make them whole for any loss of pay they may have suffered by reason
of the discrimination against them, in the manner set forth in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due and the right of reinstatement under this Recommended
Order.
(c) Post at its plant in Toccoa, Georgia, copies of the attached notice marked
"Appendix." 7 Copies of said notice, to be furnished by the Regional Director for
the Tenth Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon receipt thereof, and
be maintained for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
In the event that this Recommended Order 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 decree of a United States Circuit Court of Appeals, the words "Pursuant to a Decree
of the United States Court of Appeals , Enforcing an Order" shall be substituted for the
words "Pursuant to a Decision and Order."
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steps shall be taken to insure that said notices are not altered , defaced , or covered by
any other material.
(d) Notify the Regional Director for the Tenth Region , in writing , within 20
days from the date of the receipt of this Intermediate Report , what steps the Re-
spondent has taken to comply therewith.8
s In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify the said Regional Director , In writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
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 National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership of any employee in Upholsterers ' Inter-
national Union , Local 188 , or in any other labor organization , by discharging
or laying off any employee , or in any other manner discriminating against any
employee in regard to hire, tenure of employment , or any term or conditions
of employment , except as authorized by Section 8 (a) (3) of the Act.
WE WILL NOT interrogate employees regarding their union activities in a
manner violative of Section 8 (a) (1) of the Act.
WE WILL NOT threaten employees with economic reprisals or promise them
benefits to discourage membership in any labor organization.
WE WILL NOT interfere with , restrain , or coerce employees in any manner,
in connection with 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 collectively through representatives of their own free choice, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities.
WE WILL offer Bonnie Sue Westmoreland , Jasper Chastain , and Joe Vickery
immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority and other rights and privileges, and
will make them whole for any loss of pay suffered by reason of our discrimina-
tion against them.
All our employees are free to become, remain , or refrain from becoming or
remaining members of any labor organization.
TOCCOA MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must be 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, 528 Peach-
tree-Seventh Building, 50 Seventh Street, N.E., Atlanta 23, Georgia , Telephone No.
Trinity 6-3311 , Extension 5357 , if they have any question concerning this notice or
compliance with its provisions.
Dominic J. Calabrese t/a United Store Fixture Mfg . Co. and
Furniture and Allied Workers Union Local No. 37, Upholster-
ers' International Union , AFL-CIO. Case No. 4-CA-f2688.
March 13, 1963
DECISION AND ORDER
On December 31, 1962, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
141 NLRB No. 39.