Hibriten Chair Co., Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1951

95 N.L.R.B. 1242 (N.L.R.B. 1951)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By such conduct and by other interference with, restraint, and coercion
of his employees in the exercise of rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. Respondent has not violated Section 8 (a) (3) of the Act by discharging
Lillian Higa and Thomas Baatz.
[Recommended Order from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National
Labor Relations Board and in order to effectuate the policies of the National
Labor Relations Act, as amended, I hereby notify my employees that :
I WILL NOT by means of interrogation or threats or in any other manner
interfere with, restrain, or coerce my employees in the exercise of their
right to self-organization, to join or assist INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL
946, AFL, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in a
labor organization.
I WILL designate a negotiator who will be available at all reasonable times
to act in my behalf in respect to matters of collective bargaining in dealing
with the above-named union concerning employees in the appropriate unit.
The appropriate unit consists of all employees excluding clerical employees,
guards, professional employees, and supervisors.
All my employees are free to become or remain, or refrain from becoming
or remaining, members of the above-named union or any other labor organiza-
tion, except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act.
SPUD 'S LAUNDRY,
By P. L. Murphy, Owner
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
IIIBRITEN CHAIR CO., INC. and INTERNATIONAL WOODwoRKER i OF
AMERICA , CIO. Case No. 34-CA-161. August 22, 1951
Decision and Order
On May 3, 1951, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
95 NLRB No. 168.
HIBRITEN CHAIR CO., INC. 1243
Respondent 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the Respondent filed exceptions to
the Intermediate Report.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.'
The Trial Examiner's rulings are affirmed. The Board has consid-
ered the Intermediate Report, the exceptions, and the entire record
in the case, and adopts the findings, conclusions, and recommendations
of the Trial Examiner.
The Trial Examiner properly refused to dismiss the complaint on
Respondent's motion, which alleged that Section 9 (f), (g), and (h)
of the Act had not been complied with, and properly denied Respond-
ent's request for permission to show such noncompliance. The records
of compliance maintained by the Affidavit Compliance Branch of the
Board show that the charging Union, International Woodworkers of
America, came into compliance on November 5, 1947, and the Congress
of Industrial Organizations, with which it is affiliated, came into com-
pliance December 22, 1949. Since those dates the charging Union and
its parent organization have maintained continuous compliance, and
thus were in full compliance at the time the Board's complaint issued
on October 6, 1950.3
The Respondent excepts to various findings of the Trial Examiner
on the ground that he erred in crediting the testimony of certain wit-
nesses and in refusing to credit the testimony of other witnesses. The
Board attaches great weight to the Trial Examiner's credibility find-
ings, insofar as they are based on demeanor, and accordingly will not
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Houston and Reynolds].
2 The Respondent excepts to the Trial Examiner 's denial of its motion to strike certain
paragraphs of the complaint on the ground that such portions of the complaint are not
supported by the charge . We find that the charge phrased in the statutory language is
sufficiently specific to support the complaint. Consumers Power Co. Y. N. L. R. B., 113 F.
2d 38 , 42 (C. A . 6) ; Kansas Milling Co . v. N. L. R. B ., 185 F. 2d 413 , 415 (C. A. 10).
Nor is there merit in the Respondent 's contention that the Trial Examiner erred in
denying its motion , made at the close of the General Counsel 's case , to strike testimony on
the ground that it was beyond the scope of the bill of particulars furnished to Respondent
by the General Counsel. The record shows that all the facts and issues introduced by
the General Counsel were fully litigated by the Respondent and that at no time during the
hearing did the Respondent claim surprise or ask for a postponement. N. L. R. B. v.
Premier Worsted Mills, 85 NLRB 985, enforced 183 F. 2d 256 (C. A. 4).
N. L. R. B. v. Red Rock Co., 187 F. 2d 76 (C. A. 5), certiorari denied 341 U. S. 950;
N. L. R. B. v . Greensboro Coca Cola Bottling Co ., 180 F. 2d 840 (C. A. 4) ; N. L . R. B. V.
Wiltse, 188 F. 2d 917 (C. A. 6).
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overrule a Trial Examiner's resolution of credibility "without a very
substantial preponderance in the testimony as recorded," N. L. R. B. v.
Universal Camera Corp., 28 LRRM 2274,at.2275, 190 F. 2d 429 (C. A.
2) 4 No such conclusion is warranted in this case. The Board there-
fore adopts the Trial Examiner's credibility findings and his findings
of fact based thereon. I
The Trial Examiner found, and we agree, that Kenneth Pope, Gran-
ville Clarke, and Ray B. Beane were discriminatorily discharged in
violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
The layoff and discharge of Kenneth Pope and Granville Clarke,
under an ostensible plan to remedy the Respondent's falling volume
of production by selected layoffs, clearly constituted discrimination
in violation of Section 8 (a) (3) and (a) (1) of the Act. The rec-
ord shows that both men were experienced workers, and both had been
praised for the quality of their work. Pope had worked in the indus-
try for 10 years and for the Respondent a year and a half. Clarke had
been in the industry 14 years and had worked for Respondent approx-
imately 6 or 7 years. Neither, however, was offered work although
both were willing to accept jobs other than those they had held pre-
viously and new workers have since been employed. The men were
not informed of the reason for their discharge other than through the
information appearing on the unemployment compensation slip fur-
nished each of the men by Respondent and indicating "work not avail-
able." The Board considers significant the Respondent's antiunion
conduct and, specifically, the fact that both men were threatened with
discharge because of their union activities. Foreman Wade Sturgill
told Pope that "I am liable to fire you for just anything but it would
still just be for the Union." Respondent's intention to discharge
Clarke is also revealed in Foreman Luther Miller's statement to Pope .
that "there is a bunch of men in here that they want to get rid of
and . . . Granville Clarke is one of them." 5 When Clarke returned
to the plant seeking reemployment, Joe Minton informed him that
he would like to reemploy him as he needed a man, but that "they
won't let me put you back."
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Hibriten Chair Co., Inc., its officers,
agents, successors, and assigns, shall:
' See also Standard Dry Wall Products, Inc., 91 NLRB 544, enforced 188 F. 2d 862
(C. A. 3) ; General Electric Company, 94 N. L. R. B. 1260.
® The Trial Examiner found that R. C. Robbins said to Granville Clarks that " if this
union goes over, some of your fellow workers out there will suffer, for I have no intention
of running this show under a union." The record discloses a typographical error in that
the word "show" should read "shop." The statement is corrected to conform to the
record.
HIBRITEN CHAIR CO., INC. 1245
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, CIO, or in any her: labor organization of its employees,,
by discharging, laying.off, or refusing to reinstate any of them because'
they have. become members of or, have been active, on behalf of any
labor organization, or by discriminating in ,any. other manner in re-
gard to hire and tenure of employment or 'any term or condition of
employment.
(b) Interrogating employees concerning their own or other em-
ployees' or prospective employees' union membership and activities,
threatening to discharge or lay off or "blackball" employees or to
shut down plant operations or to deprive. employees of established
employment conveniences because of union membership and activi-
ties, offering bribes to employees to desist from union membership and
activities, or in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist International Wood-
workers of America, CIO, or any other labor.organization, to bargain
collectively through representatives- of their own choosing, and to
engage in concerted activities 'for the purposes of collective bargain-
ing or other mutual aid or protection, or to ref rain from any or all
of such activities except to the extent that such rights may be affected
by an agreement requiring membership' in a labor organization as a
condition of employment, as.,authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which the Board finds will :
effectuate the policies of the Act :
(a) Offer to Ray Beane, Kenneth Pope,.and Granville Clarke im-.
mediate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority or other rights and
privileges, and make them whole for, any loss of pay they may have
suffered by reason of the Respondent's discrimination against them,
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) 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 amount of back pay due and the right
of reinstatement under the terms of. this Order.
(c) Post at its plant in Lenoir, North Carolina, copies of the notice
attached as an Appendix to the Intermediate Reports Copies of
'Said notice , however, is amended by striking from line 3 thereof, : the words "The
Recommendations of a Trial Examiner," and substituting in lieu thereof, the words, "A
Decision , and Order." In the event that this Order is enforced by a decree of a United
States Court of Appeals , there shall be inserted before the words "A Decision and Order,",
the words , "A Decree of the United States Court of Appeals Enforcing."
1246 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
said notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted immediately upon receipt thereof and be maintained by
it for sixty (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 such
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges discriminatory discharges or layoffs of Wade McGee, Azor
Austin, D. B. Francis, and Frank Lovins.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International Woodworkers
of America, CIO, herein called the Union,' the General Counsel for the National
Labor Relations Board, by the Regional Director for the Fifth Region (Balti-
more, Maryland), issued an amended complaint dated December 6, 1950, alleg-
ing that Hibriten Chair Co., Inc., herein called the Respondent, discriminatorily
discharged seven named employees and otherwise engaged in other specified
conduct in violation of Section 8 (a) (1) and (3) and Section 2 (6) and (7)
of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the
Act. Copies of the amended complaint and charges were duly served upon the
Respondent. The Respondent filed an amended answer denying that it had
committed the unfair labor practices alleged in the amended complaint.
Pursuant to notice, a hearing was held from January 3 until January 9, 1951,
at Lenoir, North Carolina, before the undersigned Trial Examiner. The Gen-
*ral Counsel and the Respondent were represented by counsel and the Union
by a representative. The parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues.
The Respondent moved to dismiss the proceeding on the ground that the
Congress of Industrial Organizations, with which the Union is affiliated, is
not in compliance with Section 9 (f), (g), and (h) of the Act, and it requested
permission to show such noncompliance. The undersigned denied the motion
and the related request. J. H. Rutter-Rea, Manufacturing Company, Inc., 90
NLRB 130. Another preliminary motion by the Respondent was directed at
striking a portion of the complaint which it claimed to be unsupported by the
charges. This motion was denied. See Cathey Lumber Company, 86 NLRB
157, 158-162, enforced 185 F. 2d 1021 (C. A. 5) ; Ferro Stamping and Manu-
facturing Co., etc., 93 NLRB 1459. The Respondent also moved to dismiss the
complaint on the merits after the General Counsel presented his case-in-chief.
The undersigned denied the motion at that time and hereinafter disposes
of such a motion on the basis of the entire record in the case. The Respond-
ent also moved to strike certain testimony allegedly beyond the scope of the
I Another CIO affiliate, United Furniture Workers.of America, is also referred to in this
Report as the Union.
HIBRITEN CHAIR CO., INC. 1247
General Counsel's response to an order directing that certain information and
particulars be submitted to the Respondent. No objection on this basis was
made at the time the testimony in question was offered, and the Respondent
stated it was not claiming any surprise respecting this testimony. The under-
signed denied the motion to strike.
All parties were granted opportunity to present oral argument before the
Trial Examiner and to file briefs and proposed findings of fact and conclusions
of law.
Upon the entire record in the case, and from his observation of the demeanor
of witnesses, the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Hibriten Chair Co., Inc., is engaged in the manufacture and sale of furni-
ture at Lenoir, North Carolina. In 1950 the Respondent purchased raw mate-
rials valued in excess of $100,000, of which 25 percent was purchased outside
North Carolina ; the same year, the Respondent sold. finished products valued'
at more than $200,000, of which more than 50 percent was sold and delivered
outside the State.
I find that the Respondent is engaged in commerce within the meaning of
the Act.
II. TIIE ORGANIZATIONS INVOLVED
International Woodworkers of America and United Furniture Workers of
America, both affiliated with the CIO, are labor organizations within the meaning
of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Introduction
Lenoir is a furniture manufacturing center with some 19 concerns engaged
there in that line of production. The employees of only 1 of these firms (not
the Respondent) are organized and recognized for purposes of collective
bargaining, and this but recently.
R. C. Robbins is president and active head of the Respondent. George C.
Robbins, the vice president, is R. C.'s assistant ; Orrin R. Robbins is the Re-
spondent's secrett.ry and treasurer. The plant superintendent during the period
material in this case was, and still is, Clarence Braswell. Under Braswell
in charge of various departments are foremen who hire and fire and otherwise
exercise supervisory authority.
The Union filed a representation petition (34-RC-140) on April 28, 1949, for
a Board election among the Respondent's employees. An election was held on
August 25, 1949, the Union failing to obtain a certification by reason of an equal
number of votes being cast for and against the Union. On July 17, 1950, an-
other representation petition was filed (34-RC-210). The Union lost in an
election held on September 7, 1950, this time a majority of the ballots being cast
against it. The alleged discrimination set forth in the complaint allegedly oc-
curred in July and September 1949 and in September and October 1950. The
other interference described in the complaint allegedly was contemporaneous
with the organizational activity incidental to the afore-mentioned elections.
This case involves some sharp conflicts in testimony. In resolving these mat.
ters, I have considered the testimony of each witness separately and in relation
to that of all other witnesses. And, in this connection, I have also attempted
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to evaluate the demeanor of witnesses insofar as this factor might relate to
ascertaining what the historical facts are. The facts set forth below are based
on testimony I credit.
Alleged discrimination in 1949„
Kenneth Pope was employed as a cutoff man in the Respondent's machine
room from January 1948 until July 13, 1949, there being two cutoff men during
this period. His foreman was Wade Sturgill (sometimes referred to in the
record as Sturgiss), except for the last 2 weeks when Luther Miller replaced
Sturgill. Pope has worked at least 10 years in the industry and can perform
various machine room operations. The other cutoff man was Henry- Hendricks,
who was Pope's employment senior and who has continued on the job since
July 13, 1949. The Respondent has not replaced Pope in the cutoff position,
Hendricks doing all the cutoff work on a permanent basis since that time.
Conceding that Pope was a good workman, the Respondent asserts that it laid
him off for lack of work ; that it selected Pope for layoff rather than Hendricks
because of the latter's job seniority; and that it has not recalled Pope because
of the unavailability of any job paying as high a rate as Pope had earned in
the cutoff position, which wage condition the Respondent further claims Pope
,to have required. The General Counsel contends that Pope was discriminatorily
terminated in July 1949, but not, apparently, on the basis of unlawful selection
between him and Hendricks.
Pope joined the Union when it began organizing the Respondent's employees
in the fall of 1948; in addition to other related activities, he became a member
of the organizing committee in the machine room. Several months after these
activities began, Yard Foreman Gurney Watson and Cabinet Room Foreman
Dillo Reichard each asked Pope how the Union was _ "getting along," and in
March 1949 Foreman Sturgill similarly interrogated Pope and also told Pope
and employee George Powell that "I am liable to fire you for just anything
but it would still just be for the Union."
On Wednesday, July 13, 1949, Superintendent Braswell advised Pope that
he was then laid off for a few days "until we make a change" and that Pope
could return that Friday when Braswell would "talk to you some more."
Braswell did not tell Pope what "change" he had in mind. Returning on Fri-
day, Pope was sent to Braswell's office by Foreman Miller. Braswell asked
Miller in Pope's presence whether Miller had ever made the "change," Miller
replying he had not, whereupon Braswell asked Miller if lie knew when he
(Miller) was going to make the "change," Miller again replying "No," and Bras-
well walked away. Pope then asked Miller for some explanation, the so-called
"change" not having been explicated to him, to which Miller replied that "it is
all mixed up, I don't know what it is all, about . . . [but] there is a bunch of
men in here that they want me to get rid of and ... Granville Clarke is one
of them." Pope then sought an explanation from R. C. Robbins. Robbins stated
to Pope that a change was probably due,on Monday, July 18, occasioned, Rob-
bins advised Pope, by someone quitting on the glue reel; an operation in the
machine room.
Pope returned to the plant on Monday, July 18, to be separately informed by
Braswell and Miller that the "change" 8 had not yet been made. Pope again
2 Miller testified that he hired one Story on the glue reel before Pope's layoff ; Braswell
testified he did not know whether Story was hired before or after this event ; and Robbins'
testimony is to the effect that Story was hired afterward.
I Braswell testified that he spoke with Pope concerning a "change," but that he had
"no particular change in mind" other than normal employee turnover ; Miller testified the
"change" was one in supervision.
HIBRITEN CHAIR CO., INC. 1249
visited the plant the week of July 25. Miller advised Pope that no "change"
had been made , whereupon Pope took up the matter with Joe Minton (or
Menton). Minton informed Pope that "I ain't done you no harm, but there
ain't a damn man in here I can't fire when I get ready." ( As discussed herein-
after, I hold the Respondent liable for Minton 's conduct .) Pope once again
visited the plant sometime later but without success so far as obtaining employ-
ment was concerned. At no time was he offered any other job with the Re-
spondent although the Respondent has since employed other men in the machine
room, and the record otherwise indicates ample plant turnover.
It. C. Robbins was absent from the plant from May until early July 1949.
He testified that on his return he found that production had fallen off substan-
tially during his absence, that there was a great deal of confusion in the plant
and the Respondent was losing money although there were ample orders on hand,
and that this situation "had gone back several weeks" from his return but
had not existed when he left in May; that his remedy for the situation which
action he took, in order to turn out a great volume of production, was to re-
organize the plant by laying off more than half of the personnel in August and
E'-.eptember in the cabinet and machine room and recalling them as needed
although Braswell did not agree with this method at the time but has since
acknowledged its efficacy. Robbins further testified in effect that he initiated
this plan with Pope's layoff, claiming that there wasn't enough work for two
cutoff men, that he didn't know anything of Pope's ability as a workman, and
that he did not know Pope was a union member. Robbins also testified that
the hiring is done "mainly by the foreman, in conjunction with the
superintendent."
Braswell testified, however, that the plant confusion had existed even before
he became superintendent early in 1949, and he did not recall any discussion
with Robbins concerning the alleged plan to build up production through layoffs
as Robbins had testified. Foreman Miller testified that he was not even con-
sulted in connection with the decision to lay off Pope.
Granville Clarke, the individual mentioned by Foreman Miller to Pope on July
15, as recounted above, had been in the Respondent's machine room from 1942
or 1943 until August 1949. During this period Clarke served under a succession
of foremen including Minton, Sturgill, and Miller. He has had about 14 years'
experience in the furniture industry during which period he has performed
many machine-room operations, mostly, however, on the variety saw which he
was regularly operating in August 1949. Clarke performed other operations
when his own work was current and also during the absence of the other regular
operators. He had been complimented on occasion by management representa-
tives. Only 1 of the approximately 30 employees in the machine room had greater
seniority than Clarke ; this was Johnny Marley who was also a variety sawyer.
The Respondent asserts that it laid off Clarke for lack of work, claiming that
Marley has since been the only regularly employed variety sawyer and that
Clarke has never been replaced. The General Counsel, on the other hand, al-
leges that the Respondent discriminatorily terminated Clarke. As in Pope's
case, I do not understand the General Counsel to predicate the claimed discrim-
ination on the basis of selection between Clarke and Marley.
Clarke was a charter member of the Union ; he became an organizing com-
mitteeman in the machine room about 2 months before the 1949 election and
otherwise engaged in related organizational activities, such as attending meet-
ings, soliciting members, and distributing literature. (Marley was also a coin-
mitteeman although not an active one.) Several times shortly before the August
1949 election, Foreman Miller approached Clarke concerning his union activities.
Among other things, Miller asked Clarke whether he was a union man and
.1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated, when Clarke replied he was, that . "you fellows better think this thing
over ...." and that Robbins would shut down the plant "before he would run
under a union ." Miller told Clarke that he "was just too hard a union worker
in there" and asked Clarke whether he. "would sell out and get out of the
Union." . During this preelection period and while Miller was foreman , Minton
requested Clarke to ask employee Ray Beane-as to whom the General Counsel
alleges , a discriminatory discharge in 1950-"how much he [Beane] would take
,to sell . out and get out of that Union and stay away from there until after.the
election ." R. C. Robbins also summoned Clarke to his office several times during
this period , inquiring concerning Clarke's union membership and stating that "if
.this Union goes over , some of your fellow workers out there will suffer , for I have
no intention of running this show under a Union."
The election was. held on August 25 , 1949, and , as stated above , Clarke was
no longer employed a week later.
On Tuesday , August 30 , Foreman Mill .'r laid off Clarke under Braswell's in-
structions but told him to return the following Monday. However , on Friday,
September 2, Miller sent Clarke's check through another employee with the
instruction not to return . Clarke nevertheless returned on Monday , September
5, and spoke with R. C. Robbins , the latter advising Clarke that Robbins 'had no
knowledge of the layoff by Miller. Clarke then discussed the matter with Miller
who advised Clarke that Robbins had directed his layoff and that Miller did not
know how long the layoff period would be. The Respondent gave Clarke no
reason for the layoff ; however, on September 5 Clarke received an unemploy-
ment compensation slip from the Respondent stating unavailability of work as
the reason.
Clarke returned to the plant seeking employment several times after his lay-
off. On one such occasion Marley asked Minton why he didn ' t give Clarke a
job, Marley stating at the time "I can't keep up both these variety saws ," where-
upon Minton informed Clarke that he needed a man and would like to reemploy
Clarke but that "they won't let me put you back."
R. C. Robbins testified that Clarke 's layoff was part of the mass layoff at the
time, occasioned by the reorganization mentioned above; and although Robbins
also testified that Clarke was unable to perform many of the machine-room
operations Clarke had testified he could perform , the record shows to my satis-
faction that Robbins did not know at the time and still does not know what
Clarke could do. According to Braswell , Clarke was laid off because of the dis-
continuance of a particular line of production which in turn reduced the need
for variety saw operators , and Braswell also testified that he did not 1know
what other operations Clarke could perform, stating in this connection that he
never had ascertained this matter as Clarke had not been "too satisfactory" on
his regular job. (Clarke , it is recalled , had been in Respondent 's employ about
.6 or 7 years at the time.)
Miller testified that he had not been consulted in the decision to lay off Clarke;
he also testified that Braswell had directed the layoff but that no one directed
him (Miller ) to advise Clarke not to return on Monday.
Frank Lovins has been a "bender" in the machine room for 4 years, the only
employee regularly employed in this capacity by the Respondent . He was laid
off for a 2-week period in September 1949 shortly after the first election, and has
been steadily employed since his return . The Respondent asserts that the reason
for this temporary layoff, which the General Counsel alleges to be discrimina-
tory, was that Lovins had been caught , up in his work and there was no need
for his services during this layoff period.
Lovins was chairman of the union organizing committee for the town of
Lenoir and was actively engaged in the activities associated with such position,
14IBRITEN CHAIR CO., INC. 1251
including the organization of the Respondent's employees. Before the 1949
election, Respondent's official, Orrin Robbins, told Lovins "that even if the Union
came into their plant down there . . . he didn't think it would help any because
they would not sign any contract." Following an incident before the 1949
election during which Lovins discussed plant working conditions with other
employees, R. C. Robbins called Lovins to his office. Robbins told Lovins that
he understood Lovins to be an "agitator" and that he "didn't like agitators
around." According to Lovins' credible testimony, Robbins "went on to ask
was I a member of that Church [a local Baptist Church] and I told him I was,
and he said well it is mostly supported by the working class of people, isn't it,
and I told him I thought so, and he said well if the Unions would happen to
come in and enforce the factory to close down, he said it would make it pretty
hard for that Church, wouldn't it, and I told him that I didn't know, it might
do it."
Also during the 1949 preelection period, Minton offered Lovins a sum of money
to vote against the Union; Minton further told Lovins that the Union would
cause the plant to shut down and referred to the murder of a police officer in
alleged connection with union activities in another town ; and Minton also
told Lovins, "You know you are blackballed all over this town, if you were
going to lose your job here you couldn't get a job at another shop; . . . [but]
if you tell me that you will be against this Union . . . I will tell Mr. Robbins
and have that blackball listed from against you."
On Wednesday, September 7, 1949, Foreman Miller asked Lovins whether the
latter was caught up on his job. Lovins replied he was, whereupon Miller asked
Lovins whether he was able to operate several other specified machines, Lovins
replying that he had never done so. Miller then laid off Lovins and that same
day Superintendent Braswell informed Lovins that the layoff would last only
a day or two. Lovins had never before been laid off while the shop was running,
even though lie had been caught up "lots of times," as he testified.
Lovins returned to the plant on September 9 at which time Miller mentioned
something to him to the effect that because Lovins had made Braswell "mad"
in connection with "signing up," Miller could not then recall Lovins for work
the following Monday, September 12, although he might otherwise have done so.
Lovins thereupon called up Braswell who denied to Lovins that he was "mad,"
and Braswell testified that he was unaware of any such situation. The record
does not clearly explain this reference to "signing up." However, I assume
that Lovins' testimony concerns an unemployment insurance form which Lovins
had signed after requesting such form from Braswell the day of the layoff.
Braswell indicated no displeasure to Lovins in connection with this request, at
least so far as this record is concerned.
Miller testified that he himself made the decision to lay off Lovins but that
when he did so he received instructions to recall Lovins when needed. Miller
recalled Lovins about 2 weeks later and, as indicated above, Lovins has remained
in the Respondent's employ since that time.
Wade McGee was hired by the Respondent in February 1947, and discharged by
Foreman Reichard on September 14, 1949, on which latter date he was employed
as a stockman. The Respondent's claimed reason for discharging McGee was
that he damaged valuable stock.
McGee joined the Union in November 1948 and thereafter attended "quite a few"
meetings. He did not otherwise engage in any organizational activities on
behalf of the Union. Sometime after McGee joined the Union, Foreman Reichard
spoke to McGee concerning his membership, asking him whether he had joined
and why he did so. Reichard told McGee that R. C. Robbins would shut down
the plant if the Union came in and that those who had joined the Union would
961974-52-vol. 95-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise "wish they never had seen any Union." In the plant the day before
the 1949 election, McGee had a conversation with Orrin Robbins and Rob Smith,
the latter a foreman in a nearby plant. of another employer. Robbins asked
McGee whether he had changed his mind about "voting;" McGee replying be
had'not;, and Smith then told McGee, in Robbins' presence, "McGee, you had
better go against this thing if you know what is good for you, or this thing will
close down `tighter than hell."' (Under these circumstances I find the Respond-
ent responsible for Smith's statement.)
McGee's duties as a stockman included the removal of pieces of wood stock
from racks which stood between 6 and 7 feet high. His practice for 2i/ years
had been to climb up on the racks and to "pitch" the wood stock to the floor.
Foreman Reichard had previously observed this procedure without comment.
Nor had anyone else criticized this practice. On the' day of his discharge, he
was thusly' removing from the racks some pieces of wood stock 18 inches long
and consisting partly of mahogany. (Mahogany is a soft wood and compara-
tively expensive within the price range of the Respondent's production line.)
Later that day, according to Tom Trexler (a witness for the General Counsel),
Trexler called Reichard's attention to the "beat up" condition of these mahog-
any pieces. Reichard then took up the matter with McGee charging him with
damaging the stock. McGee admitted throwing the stock to the floor, whereupon
Reichard discharged McGee. While his final check was being prepared, McGee
told Superintendent Braswell, according to Braswell's uncontradicted testimony,
that he was being discharged because "I did the most foolish thing a while ago
I have ever done." McGee and Trexler stated at the hearing that the wood
stock in question was in poor condition even before removal from the racks
and that the wood had been in the racks at least 6 months and theretofore had
been run over by hand trucks in the basement of the plant.
Alleged discrimination in 1950
Azor Austin had been employed by the Respondent as an upholsterer for ap-
proximately 22 years when he was discharged in September 1950. He was a
competent workman and probably the fastest upholsterer in the department, pro-
ducing more than any of the other employees similarly engaged. Austin's work
had been criticized on occasion, but so had that of other employees in the de-
partment, and Austin had not been particularly singled out for such adverse
comment. The Respondent asserts that Austin was discharged because of the
manner in which he upholstered a certain item of furniture.
Austin joined the Union before the 1949 election but did not otherwise partic-
ipate in organizational activities at that time. In connection with the 1950
election, however, Austin testified that he signed up many employees. A day or
.two before this second election R. C. Robbins had a conversation with another
employee in Austin's presence during the course of which Robbins remarked
that Austin was a "good union man."
On Monday, September 18, 1950, Austin told his foreman, Thomas Melton,
that he was ill and asked Melton's permission to leave early. Melton said he
could, but that he first should finish the chair he was upholstering at the time,
Melton also informing Austin that the particular chair might be scheduled for
shipment that same day. Austin completed the job, only to have it returned by
the inspector, Earle Miller. This rejection was itself not an uncommon oc-
curence, many chairs failing to pass inspection, and, moreover, more than the
usual production difficulties had been involved in upholstering the particular
style of chair on which Austin then was working. In returning the chair to
Austin, Miller suggested how the particular job should be redone. Miller again
HIBRITEN CHAIR CO., "INC. 1253
inspected the chair after Austin 'had reupholstered it, to find that Austin had not
done the job in accordance with Miller's suggestion. Miller still considered the
chair unsatisfactory and showed it to Foreman Melton. Both Miller and Melton
testified in effect that Austin had done a sloppy job in reupholstering the chair,
claiming that Austin•knew better and particularly `iii view of his'failuie to follow
Miller's instructions in the matter. Austin"hd'placed some nails in the chair
in such a way as to make them noticeable and' which, claimed both Miller and
Melton, ruined the cover on the chair and made it unacceptable for sale in that
condition. The chair was not -irrepairable, however, for Melton had it redone
by another upholsterer, Austin having left the `plant for the day, whereupon
the chair was shipped into trade.
Austin returned to work. on, Wednesday, September 20, at which time Melton
informed him he was discharged because of his Work on the chair mentioned
above.
D. B. Francis had-been employed in the Respondent's cabinet room about 6
years when he was discharged by Foreman Reichard on October 30, 1950. There
is no question but that Francis was a capable workman, as the Respondent con-
cedes. Reichard testified that he discharged Francis for "laying off."
Francis was a charter member of the Union, joining it at the first meeting in
October 1948 and thereafter attending practically all meetings, approximately
30 or 40, of which were held at Francis' home in 'the following 2-year period.
Francis, Ray Beane (an alleged discriminates), .and employee Dennis >Craig
were instrumental in reviving organizational activities after the 1949 election,
and Francis also signed tip ,many of the employees in connection with the 1950
election; About 4 days before the election in 1949, Joe Minton told Francis to
stop "talking Union to that kid [another employee], you know you are black-
balled all over town, and you would not want him in the same shape," where-
upon Francis replied that he had not been "talking Union" to the other employee,
but that "if I have been, it is for his own good." Several weeks before the 1950
election, R. C. Robbins stopped at Francis' work site in the plant and remarked
to Francis that "there were eight men in there that took a big leading hand in. the
Union" and that "you [Francis] were, one of them." Robbins further stated that
"if we want to get rid of a man for Union activity, we just watch him, no. man
is so perfect but what, if you will watch him;; you will catch him slipping some-
where." "That," replied Francis, "is a very,pore way to catch a fellow." Fran-
cis commented on his discharge that "I reckon.I slipped."
Francis had been suffering incapacitating illnesses which resulted in absences
from work. From January through October 1950 Francis was absent on 19 such
occasions totalling approximately. 40 workdays. At work on Friday, Qctober 27,
1950, Francis told Reichard that he was not feeling well, he was suffering: from
hemorrhoids at the time, and during the same day Reichard mentioned to
employee Dennis Craig that Francis "is in pretty bad shape." Francis `was..
unable to report for work on Monday, October.30, because of his physi'cal.con-
dition. His wife attempted to calf the Respondent by telephone that morning,
but: did not complete the call. Meanwhile, Reichard; pulled Francis' card: on
.October 30, thereby effecting his discharge. Francis' illness kept him ,confined
all that week.
Francis reported for work the following Monday or Tuesday , the week of
November 6, and his . credible account of his convei ,sations with Reichard and
Braswell is as follows
Q."When you went back , whom did you seep
A. I seen Dillo,Reichard , the Foreman.
Q. What did he say?
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A.. I said, "I see I haven't got a card out there,. Dillo?" What is the
trouble.; And he said , "I guess you are fired," and sorter grinned ; and I said
well, who done that for me? He said, "I did," and I talked on to him a little
and he said, "You didn't call up and notify us you were sick or any thing,"
and he just supposed I had quit. I says, "well, Dillo, you know I made
you, a promise that, if I ever decided to quit, I would work a notice and I
said I intend to make my word good that far; and he said, "I know you told
me that," and I says, "Well, was my work satisfactory, did you have any
kicks on that ?" He said, "I never had a kick on your work at all ." I said,
"well, who will I see from here out ?" and he said , "Mr. Braswell , I guess."
I went down to the office and talked with Mr. Braswell.
Q. And what did he say?
A. About the same thing that Reichard told me. He 'lowed I had quit
and had not called in and after we got through talking I said there is one
thing a fellow is not certain of and that was : He couldn't be sure he would
never be sick , and 'then I left.
Francis had been absent more frequently than any other employee , and the
record shows that he had called in on only half of these occasions. Reichard
testified , and Francis denied, that Francis had been laid off for absenteeism
about 4 years before the events in question . ( I am unable to resolve this
particular conflict; I am of the opinion, however, that it is not determinative
of the ultimate issue.) Sometime before the discharge under consideration,
Braswell had discussed Francis' absenteeism with Reichard and had directed
that Francis ba informed to be more regular in his attendance, and about this
time Reichard instructed Francis to call in whenever he was absent. This
frequent absenteeism , claim Braswell and Reichard , was detrimental to efficient
plant production and such consideration motivated the Respondent to dismiss
Francis on October 30 , particularly as Francis failed to call in that day and
also because Francis' machine was behind in operations at the time, which
latter testimony is undenied.
Ray B. Beane was in the Respondent 's employ, except for a 5-week period,
from July 1945 until September 1950, practically all of this time in the cabinet
room of which Reichard was foreman in September 1950, at which time Beane
was engaged in sanding operations . Beane had quit his employment in March
1950 and returned 5 weeks later at Foreman Winkler's request. Winkler told
Beane at the time that Braswell didn ' t want to rehire Beane, but that Winkler
had told Braswell it was better to hire an experienced man than train an
inexperienced one.
Beane joined the Union at its first organizational meeting in October 1948
and became chairman of the organizing committee in the Respondent 's plant.
A week before the representation election in 1949, Superintendent Braswell
told Beane, among other things , that as a result of union activities "some of you
boys will probably lose your jobs" and that "with the attitude you [Beane]
are taking towards this Union and working for this Union, if you should happen
to lose your job here, that I will personally see to it that you don 't get another
job in this town ." Also before this election , according to Beane's credible
testimony :
A. Mr. Menton called me out at noon on the Railroad siding and he told
me, he said, "I would like for you to get out of this Union , the Union can't
help you ; there is nothing the Union can do that Mr. Robbins can't." and
he said , "if you boys work for this, win or lose , you will be damn sorry of
it, I am your neighbor and I am thinking of the welfare of Your children."
HIBRITEN CHAIR CO., INC. 1255
Q. How many children do'you have?
A. I have five.
Q. Go ahead.
A. He said, "I would like to see your children make a decent living, and
with the intention you have'tdward this electibn, I am afraid there will be
some hardships brought on ybiii•'children."
Minton also requested Granville , Clarke to ask Beane "how much he [Beane]
would take to sell out and get out of that Union and stay away from there
until after the election ." Immediately after the first election , Reichard twice
asked Beane whether he intended to remain active in the Union . R. C. Robbins
summoned Beane to his office . sometime before the.,second election and asked
Beane to name some of the leaders working for the Union in the forthcoming
election; and Robbins also remarked at the time that smoking periods and soft
drink machines might be "cut out" should the Union win the election and obtain
a contract . Robbins also told employee Tom Trexler on the day of the 1950
election that Beane had "good foreman qualifications" and had promised
Robbins he would "have nothing todo with that, Union . . . [but that] if be
[Beane ] gets mixed up with this thing, gets his name on the list . .. . he was,
about done here."
Beane was out of town on a motor trip the entire workweek of September 25,
1950. The Respondent replaced him on September 26, his card having been.
pulled on Monday , the first day of his absence. Reichard testified that he had,
pulled the card because Beane was :absent without permission . Beane claims,
however, that he had received such, permission.
Beane testified that during the week of September 13; some friends asked him
to accompany them on a motor trip ; , that being undecided about the matter on
Friday, September 22, he asked , Reichard that day . if he , could be absent the
following week for the purpose of this trip, and whether , if he decided to go,
he could notify Reichard to that effect the following day (Saturday ), Reichard
replying that such arrangement was satisfactory ; and that he accordingly sent
such word to Reichard on Saturday . Beane further testified that upon his
return from the trip Reichard- told him on Sunday , October 1 , that Braswell
had directed Beane's card to be pulled and that Reichard said he did not remem
her their September 22 arrangement regarding the leave of absence ; that on
Monday, October 2 , he again took up the matter with Reichard , after being
advised to do so by R. C. Robbins, and that Reichard "denied at first remember-
ing me saying anything about being off; then, later on he said it did seem like
be remembered something about it, but he didn 't remember what" ; that the
conversation continued with Braswell ' and R .' C. Robbins , Braswell accusing
Beane of telling him before the election that Beane ,was against the Union ; that
Braswell then said that he was installing another sanding machine which he
hoped to have ready by Wednesday on which date Beane should return, to
which Beane replied that it was "too much trouble" to return every day to the
plant ( Beane lived about 5 or 6 miles from the plant ) and that Braswell should
send for Beane when the job was ready ; and that in the latter part of December
1950 employee Roy Hollar informed Beane that Reichard had told Hollar to
call Beane to work during the week of October 2 and that Hollar had so in-
formed ,one of Beane 's children ; ages 12 and 5, but the child , whichever one it
was, did not accordingly advise Beane.
According to Reichard 's version of the incident , there was a "little misunder-
standing." He testified that Beane had previously . mentioned looking for work
out of town and that Beane merely asked Reichard* whether the latter would be
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at home on Saturday, September 23, and that Beane stopped at Reichard's
home and notified one of Reichard's children that Beane would not be in the
following week and that Reichard's child so informed Reichard ; that Reichard
had never given Beane permission to be away from work that week; that he,
Reichard, discussed the situation with Braswell on Monday morning (September
25), stating to Braswell that he needed a man at once on Beane's machine, and
that pursuant to this conversation a new man was hired on Tuesday (September
26) ; that "we" (Braswell and Reichard) decided on Monday (October 2) that
it was "all a mistake and all confused up" and told Beane to report for work
on Wednesday and that there was a "definite understanding" with Beane at the
time that Beane would so return and that the Respondent would have other work
for Beane if the new machine was not yet set up ; that Beane did not appear
on Wednesday, whereupon Reichard requested Hollar to get in touch with Beane,
lest there be further misunderstanding regarding Beane's return to work,
and that one of Beane's children advised Hollar that Beane was already em-
ployed elsewhere ; and that Beane has not returned to the plant since Monday,
October 2.
Braswell's testimony is similar, in effect, to Reichard's : namely, that Reichard
told Braswell on Monday, September 25, that Beane had sent word of his absence
that week without receiving permission therefor and that Reichard believed
that Beane had left Lenoir to accept employment elsewhere; that Braswell
suggested a replacement for Beane; that R. C. Robbins said, after the latter's
conversation with Beane, that there may have been a misunderstanding between
Reichard and Beane as to which Robbins decided to give Beane the benefit of
any doubt in the matter, whereupon Braswell told Beane to come to work on
Wednesday and that it was understood that Beane would return that day ; that
Hollar reported back that Beane had obtained other employment and that under
the circumstances Braswell felt no necessity of further attempting to reach
Beane.
Other related matters
The record contains other credible testimony relating to the Respondent's
attitude and conduct respecting the union activities of its employees . Thus it
appears, among other things, that before the first election, R. C. Robbins told
employee J. W. Crenshaw, after calling Crenshaw to his office, that he "had
always taken care of his men" and that "the Union was not doing us no good."
And before the election in 1950, Robbins summoned employee Fred Reece to his
office-Robbins had similarly called many if not practically all other employees
to his office before both elections to discuss the Union with them-and told
Reece he had heard Reece "was signing up men for the Union" ; Robbins further
told Reece, "I thought we were rid of all them ring leaders, but I reckon there
were a few of them left." The day following the second election, employee F. W.
Melton (whose brother was a foreman in the plant) informed Robbins that he
was leaving the Respondent's employ. Robbins remarked, according to Melton's
credible testimony, that "I am glad you are leaving. It is sorter hard your
working here for the Union and your brother, a foreman, working against the
Union" ; ` and Robbins also stated at the time that "there would be a lot more see
[sic] that door during the year" and that he "was just not going to fool with
that Union at all, be bothered with it every year." Several months before the
hearing in the present matter, Foreman Albert Winkler told employee John
a Robbins testified that he and Foreman Melton preferred not having a Union in the
plant and that it would be "embarrassing" to Foreman Melton having his brother a union
leader in the plant.
HIBRITEN CHAIR CO ., INC. 1257
Small that he was considering hiring one Burr Walker , in connection with which
Winkler asked Small whether Walker was a union member.
Notwithstanding the various - intimidating statements and other conduct of
R. C. Robbins and other supervisory employees set forth in this Report , Robbins
also told employees that it was for them to decide whether or not they desired
a union and that he would not penalize them whatever such action they would
take. And while Robbins also testified in this connection that he had instructed
his. entire supervisory staff not to make any threats or promises to employees
in connection with their organizational activities and that he never has heard
of any failure to comply with these instructions , Foreman Miller denied receiving
such instructions.
There is also the matter of the Respondent 's responsibility for the statements
and other conduct of Joe Minton described above while Minton was a "utility
man." The Respondent contends that as a utility man Minton was not a super-
visor and that his conduct may not be attributable to it.
Luther Miller was the machine ' room foreman from about June 1949 until
Joe Minton succeeded him in ' that position in September that same year. Miller
testified that this job was not to his liking and that he asked the Respondent to
be relieved of the foremanship within a week or so after assuming the position.
The Respondent offered testimony to the effect that the machine room was in a
"mess" at the time, with stock disorganized , etc., and that it engaged Minton in
or about July 1949 as a utility man to assist Miller in restoring order in the
department . Miller had formerly been employed by the Respondent in a super-
visory capacity.
There had not been a utility man in the machine room for at least a year or
two before Minton occupied such position there , and no utility man succeeded
Minton in that capacity. Of the approximately 35 employees in the machine
room at the time, only Miller and Minton were on a salary basis; the Respondent
contends in this connection , however, that inspectors and a utility man in
another department also are salaried but not supervisory.
Before Minton resumed employment in July, as''stated above , Minton told
one James Triplett that R. C. Robbins had been hiring him back there to kill
that Union ." ( Robbins - denies informing Minton to this effect or hiring him
for such purpose. ) ( It should be recalled that the first representation petition
was pending at the time .) A few weeks later, after Minton had returned,
Minton solicited Triplett to quit his job with another employer and to come to
work for the Respondent . Triplett thereupon served notice on his then employer
and shortly afterwards reported to Minton . Minton told Triplett, however,
that he could not take him on at the time because of the turmoil caused by the
layoff of men in the Respondent's machine room, whereupon Triplett instituted
an action at law against the Respondent . The Respondent settled this action
amicably with Triplett and asserts in this connection that such settlement does
not constitute an admission of liability for Minton's conduct respecting Triplett.
It is a bit difficult to ascertain from the record exactly what work Minton was
performing during his utility-man period. The Respondent asserts, as stated,
that Minton was, in any event , riot empowered with supervisory authority. It is
clear , however, that among other things during this period Minton did much
walking about the plant and talking to employees, that some employees regarded
him as a foreman , that he ordered employees Ned Winkler and Steele Sturgill
what to do and even threatened to run off Sturgill because of the manner of the
latter's work performance , that Minton told employee Pope there wasn't anyone
he couldn 't fire, that Foreman Miller and Minton each told employee Clarke that
Minton had actually taken over as foreman, and that Minton accused employee
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lovins of talking to other employees, whereupon Lovins protested this conduct
of Minton to R. C. Robbins.
The election was held on August 25. Minton replaced Miller as foreman the
following month.
I cannot say with certainty that Minton was hired to "kill" the Union, as he
had told Triplett, although I strongly suspect this to be the case for he acted
the part. (Minton, incidentally, did not testify at the hearing.) However, I am
satisfied and find that Minton, openly and with the Respondent's knowledge,
exercised supervisory authority during the period in question, and that his
conduct in combatting the Union is the Respondent's liability.
Conclusions
The individual cases of alleged discrimination have given me many soul-
searching hours. First there was the matter of credibility, a decisional problem
whose difficulties in resolution were far from simple in many instances. Once
having reconstructed the facts, however, and finding, among other things, the
evidence of strong antiunion-mindedness of the Respondent as described earlier
in this Report, the ultimate questions still remain, namely, whether the Re-
spondent was actually moved by such antiunion considerations in laying off or
discharging the individuals involved. (In resolving these questions I am aware
of the Respondent's statement to employees that union membership and the like
were for the employees themselves to decide, without penalty from the Respond-
ent. The Respondent's entire conduct, however, completely nullifies this lip
service to legality.) The presence of antiunion bias, particularly where specifi-
cally directed against alleged discriminatees , is a telling circumstance. It is
nonetheless only a circumstance , and in each of the alleged discriminatory cases
the Respondent offers other alleged circumstances to support a contrary inference.
An employer is not denied the right to discharge or lay-off an employee for
reasons unrelated to union activities, merely because it also would be pleased
to be rid of that employee for union reasons. The burden of proof is the General
Counsel's, and he must show by a preponderance of the evidence that the dis-
charges or layoffs are attributable to such union activities.
For purposes of analysis the instances of alleged discrimination should be
viewed altogether in the organizational'setting described above, and yet each
case must also be seen in the focus of its own particular facts. Mindful of these
considerations in each instance, I resolve the cases as follows :
Lovins. I do not find a preponderance of the evidence supporting a conclusion
of discrimination.
Francis. His record of absenteeism is an impressive one and in view of his
failure to notify the Respondent concerning his absence as he had been directed
to do, I am unable to say that the Respondent's explanation for the discharge
is neither reasonable nor true, reasonableness being important only insofar as it
assists in ascertaining the truth of the ultimate contention.
Austin. Inspector Miller and Foreman Melton impressed me as trustworthy
witnesses and I find no cogent reason for not accepting their stated motivation
for the discharge, particularly as their version of the incident is without substan-
tial credible contradiction.
McGee. Here the Respondent discharged an employee for something he had
been doing for a long time without criticism. This, together with the antiunion
background, raises a strong suspicion of discrimination. Yet it was one of the
General Counsel's own witnesses who. had called Reichard's attention to the
"banged up" condition of the wood in question. Moreover, McGee did not deny
Braswell's testimony relating to McGee's afore-mentioned statement of doing a
HIBRITEN CHAIR CO., INC. 1259
"foolish thing." I do not believe a preponderance of evidence supports a finding
of discrimination.
Beane. I am satisfied that'Bearie'sarrangemen't for a leave of -absence with
Reichard was as Beane testified it was=and that ' theRespondent was well aware
of the fact that he was to return November 2.' There was, in my opinion, no
"misunderstanding" concerning the matter, as Richard would have it, except
of the Respondent's own deliberate making. Considering the Respondent's
antiunion feeling and its attempts to dissuade Beane from union activities, I am
of the opinion that the Respondent pulled Beane's card on the first day of his
absence-after more than 5 years' service in its employ-because of Beane's
union membership and other active participation in organizational activities in
the plant. The fact that the Respondent had reemployed Beane after the 1949
election is of course a contravening circumstance. `However, it does not over-
come the evidence preponderating in support of discrimination, particularly as
such rehiring was not only more desirable economically than engaging an un-
trained employee, as Foreman Winkler advised Beane, but also because it
occurred 6 months after the first election and several months before the second
petition was filed, at a time, therefore, when the Union was a dead issue so far
as the Respondent was concerned. . R. C. Robbins had employees such as Beane
in mind when he told F. W. Melton after the second election, as mentioned above,
that he was not going to "be bothered with it [the Union] every year" and that
"there would be a lot more see that door during: the year."
Nor do I accept the Respondent's testimony that on October 2, 1950, it made
a definite offer of reemployment to. Beane to begin on October 4, 1950. It is
immaterial in this connection, that the Respondent's emissaries may have at-
tempted but failed to reach Beane later that week. The Respondent's obligation
to restore Beane to employment was incurred when they terminated him dis-
criminatorily and is not to be abated by leaving a message with a young child.
Pope and Clarke. The circumstances surrounding the layoffs or discharges
of these employees impel me to find discrimination in both cases. I refer, in this
connection, not only to the Respondent's strongly evidenced antiunion position
and to the specific evidence of such animus with respect to Pope and Clarke,' but
also to the air of mystery with which the Respondent beclouded their termina-
`tions after they had served the Respondent for periods of 11/2 and 6 years,
respectively. In both cases the°employees were originally advised to return
in a :few days. When Pope did 'return he was "confronted with the unexplained
"change," as to which the Respondent offered varying'testimony, and Clarke was
.advised not to return at all. The record does not satisfactorily explain, if it
explains at all, what supervening economic necessity arose in the day or two
immediately following the layoffs, which was not present when the layoffs were
made, to require the layoffs to be turned into virtual' discharges. In the case of
Clarke, for example, Foreman Miller had orders'to get rid of him as early as
July 15. It is also of significance, in my opinion, that Miller was not even con-
sulted regarding the decision to terminate either Pope or Clarke.
That the Respondent has not obtained regular' replacements for Clarke or
Pope is of little moment under all circumstances.. Nor is it significant in re-
solving the question' of discrimination that there were other employees known to
-the Respondent as active union members whom the, Respondent did not 'also lay
off or discharge. Pope and Clarkehad been warned concerning their organiza-
tional activities. Their price, for ignoring these warnings was their permanent
layoff or discharge as I find it to be.
I conclude that the Respondent discharged Pope on July 13, 1949, Clarke on
August 30, 1949, and Beane on October 2, 1950, because of their membership
1260 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and activities on behalf of the Union and. because of their participation in other
related organizational efforts of the Respondent's employees ; and I find that
the Respondent thereby discriminated in regard to hire and tenure of employ-
ment, discouraging membership in the Union, and that by such conduct the
Respondent also interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act. This conduct violates
Section 8 (a) (3) and 8 (a) (1) of the Act. I find, as well, that the Respondent
did not discriminatorily lay off or discharge McGee, Austin, Francis, and Lovins.
I further conclude that by the following conduct the Respondent also has
interfered with, restrained, and coerced its employees in the rights guaranteed
under Section 7 of the Act, thereby also violating Section 8 (a) (1) of the Act:
(a) Interrogating employees concerning their own and other employees' and
prospective employees'.union membership and activities.
(b) Threatening to discharge or lay off employees, to shut down plant opera-
tions, and to deprive employees of established employment conveniences because
of their union membership and activities.
(c) Offering to bribe employees to desist from union membership and activities.
(d) Threatening to "blackball" employees because of their union membership
and activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described in Section III, above , occur-
ring in connection with the Respondent 's operations described in Section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to constitute
unfair labor practices 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 certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
I shall recommend that the Respondent offer to Ray Beane, Kenneth Pope,
and Granville Clarke immediate and full reinstatement to their former or
substantially equivalent positions' without prejudice to their seniority or other
rights and privileges and-make them whole for any loss of pay suffered by them
as a result of the discrimination by payment to them of a sum of money equal
to the amount they would have earned from the dates of their respective dis-
charges or layoffs to the date of offer of reinstatement less their net earnings'
to be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other such period. It
will also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of
back pay due.'
In view of the nature of the unfair labor practices committed, I shall also
recommend that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
' The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
a Crossett Lumber Company, 8 NLRB 440, 497-8.
7 F. W. Woolworth Company, supra.
HIBRITEN CHAIR CO., INC. 1261
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. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1)4nd'(3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning, of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Rela-
tions Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify; out employees that
WE WILL NOT discourage membership in, or activities on behalf of, INTER-
NATIONAL WOODWORKERS OF AMERICA. CIO, or in any other labor organization,
by discriminating in regard 'to hire or tenure of employment or any term
or condition of employment.
WE WILL NOT interrogate employees concerning their own or other em-
ployees' or prospective employees' union membership and activities.
WE WILL NOT threaten to discharge or lay off or "blackball" employees or
to shut down our plant or to deprive employees of employment conveniences
because of their union membership and activities.
WE WILL NOT offer to bribe employees to drop' their union membership
and activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist INTERNATIONAL WOODWORKERS OF AMERICA,
CIO, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities. for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of the
Act.
WE WILL OFFER to the following named employees immediate and full
reinstatement to their- former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges enjoyed and make
them whole for any loss of pay suffered as a result of the discrimination
against them, :
Ray Beane
Kenneth Pope
Granville Clarke
HIBRITEN CHAIR Co., INC.,
Employer.
Dated---------------------------- By--------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
hot be altered, defaced, or covered by any other material.