Otis L. Broyhill Furniture Co.

National Labor Relations Board - Board Decisions

Jun 26, 1951

94 N.L.R.B. 1452 (N.L.R.B. 1951)

1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBERS HOUSTON and REYNOLDS took no part in the consideration
of the above Supplemental Decision and Certification of Repre-
sentatives.
OTIS L. BROYHILL FURNITURE COMPANY and UPHOLSTERERS' INTER-
NATIONAL UNION OF NORTH AMERICA, A. F. OF L. Case No.
3If-CA-154. June 06, 1951
Decision and Order
On February 5, 1951, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report atached hereto. Thereafter the Respondent
filed exceptions to the Intermediate Report; the General Counsel filed =
a brief in support of the Report.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.3 The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications'
1 The Respondent ' s request for oral argument is hereby denied because the exceptions,
brief , and record , in our opinion , adequately present the issues and positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Houston and Reynolds]'
After the oral testimony had been completed , but. before official closing of the hearing,
the General Counsel moved to delete the name of Walter Rash from any back -pay order,
because of his failure to obey a subpena issued at the request of the General Counsel.
The Trial Examiner denied the motion , because there was no evidence in the record that
the subpena had in fact been served on Rash or that he had refused to honor it. The
Respondent , but not the General Counsel, has excepted to this ruling . Rash , an employee
of the Respondent for about 5 years , had been active in behalf of the Union. He was
among those laid off on June 8, 1949. This mass layoff was, as we find below, discrimina-
tory. Hence , even without Rash's testimony the proof sustains the allegation of discrimi-
nation against him. Under all the circumstances, the Trial Examiner ' s ruling denying
the motion to delete Rash's name from the remedial order was proper . Cf. American
Laundry Machinery Company, 45 NLRB 355; Atlanta Flour and Grain Company, Inc.,
41 NLRB 409.
4 On page 1468 , line 38 of his Intermediate Report, the Trial Examiner ascribes to Beach
the statement that orders did not begin until late June . The record shows, and we find,
that Jump made this statement . The reference to Beach in footnote 18 is similarly
changed to Jump.
Line 47, the sentence beginning with "If ," page 1468 , and ending with "week 20 " line 4,
page 1469 , of the Intermediate Report is also corrected to read as follows :
If, as Jump testified , the Respondent was on a 24 -hour, 3 -day week before the layoff
that would indicate that for the first week of the June 2-15 pay period the Respond-
ent's . approximately 230 employees worked a total of 5,520 regular man-hours.
Since a total of 12 ,948 man -hours were worked during the full pay period, this would
94 NLRB No. 232.
OTIS L. BROYHILL. FURNITURE COMPANY .1453
1. We find that by Superintendent Jump's interrogation of em-
ployee Howard Anderson as to how he felt about the Union, Foreman
Isaac's statement to employee Donald Williams that "a man that fools
with the union won't be able to get a job anywhere around here and
... that is what has happened to the other fellows," and the sur-
veillance of union meetings by Superintendent Jump and his assist-
ants.,'the Respondent interfered with, restrained and coerced employees
in violation of Section 8 (a) (1) of the Act .5
Although the Respondent may have instructed its supervisors not
to interfere with the organizational activities of the Union, these
instructions were never communicated to the rank-and-file employees.
It is fully responsible, therefore, for the unlawful conduct of its
supervisory staff.'
2. We agree with the Trial Examiner that the layoff of June 8,
1949, was discriminatorily motivated. Accordingly, we find that the
Respondent thereby violated Section 8 (a) (3) and (1) of the Act.
The evidence upon which we base this finding is as follows :
The layoff followed by 1 day the notification from the Union that
it represented a majority of the Respondent's employees, and by only
a few days the extensive surveillance of union meetings by Superin-
tendent Jump, his assistant Bartlett, and two foremen. Of those laid
off, approximately 70 percent had signed union-authorization cards,
whereas only about 25 percent of the total number of employees had
signed such cards. In the layoff were many of the most active union
members. This disproportionate treatment of union and nonunion
employees, when considered in the light of the sequence of events, and
Respondent's 'other conduct violative of Section' 8 (a) (1), is very
persuasive evidence of discrimination.7
mean that the approximately 208 employees remaining after the layoff worked a
total of 7,428 man -hours, or about 35 hours per individual , roughly a little more
than a 4 -day week.?"
201f the Respondent included its supervisors and office workers in making its com-
putations there would be about 250 employees before the layoff. On a 24-hour week,
they would have worked 6,000 man hours . For a second week, therefore, the
remaining 238 employees would have worked 6,948 man-hours or roughly a 30-hour
week.
In making this finding, we adopt the Trial Examiner's resolutions of credibility, which
were based in considerable part on his observation of the witnesses . The Board
customarily adopts a Trial Examiner's resolutions as to credibility except where the
clear preponderance of all the relevant evidence convinces us that his resolutions were
incorrect . No such conclusion is warranted in this case . Standard Dry Wall Products,
Inc., 91 NLRB 544, enforced 188 F. 2d 362 (C. A. 3).
We do not rely on Marvin Atkins ' statement to employee Orville Wright, about 2 months
before the June 8 , 1949, layoff, to "better let that Union alone, because it was going to
get us all in `Dutch.' " We are not convinced that under the circumstances of this case,
the statement was coercive . We therefore find it unnecessary to decide whether , as found
by the Trial Examiner , Marvin Atkins was a supervisor. -
" N. L. R. B. v. Bird Machine Co ., 161 F. 2d 589 (C. A. 1).
I N. L. R . B. v. Electric City Dyeing Co., 178 F. 2d 980, 982 (C. A. 3) ; N. L. R. B. v.
Sifers Candy Co., 171 F. 2d 63, 66 (C A. 10) ; N. L. R. B. v. Sandy Hill Iron & Brass
Works, 165 F . 2d 660 , 663 (C; A. 2) ; N. L. R. B. v. Bachelder, 120 F. 2d 574, 578 (C. A. 7).
1454 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
The Respondent's professed economic reasons for the layoff are.
not convincing enough to rebut the inference of discrimination. We
consider the following as being especially significant in discrediting-
that explanation :
(a) After carrying the laid-off employees through the slack period,.
the Respondent suddenly laid them off on the eve of the busy season.
Immediately after the layoff, the plant went on a 4-day week and in
the week following to a 5-day week. In view of Superintendent
Jump's statement that he was then scheduling work 2 or 3 weeks in
advance, the Respondent must have known about the schedule of'
increased production at the time of the layoff.
(b) Although other plants of the Respondent had a smaller back-
log of orders at the end of May than the Marion plant, no similar
sharp cutback in personnel was made. at these plants at this time.s-
(c) The changeover from Borax to modern furniture was not so,
abrupt as fully to explain the wholesale layoff.
(d) Although the Respondent ascribed the layoff in part to a
sharp rise in labor costs preceding the layoff, the Respondent's wit-
nesses admitted that this rise in costs may have been due to the ex-
tensive manufacture of samples,9 and to the unfamiliarity of em-
ployees with the manufacture of new products, both temporary
factors.
(e) Superintendent Jump's explanation of the individual layoffs
was in many cases unconvincing. The Trial Examiner rejected
Jump's comparative evaluations of the abilities of the men laid off
and retained. We perceive no reason for overruling the Trial Ex-
aminer's evaluation of the testimony of Jump on this point.
The Remedy
We agree with the finding of the Trial Examiner that an adequate
offer of reinstatement was made to Caleb Hogan but not to Paul
Sisk.
We do not agree with the Trial Examiner's findings that such offers
were not made to Lloyd Poteat and Joel Scott. The Trial Examiner
refused to credit Superintendent Jump's testimony about the offers
to Poteat and Scott, on the ground that it was hearsay and that his
other hearsay testimony was inaccurate. However, he overlooked
the fact that Foreman Ellis Barber, under whom Poteat had worked,
testified to the personal making of this offer which was rejected by
Poteat. Barber's testimony is not denied. We credit his testimony.
Jump's testimony as to the offer. to Scott is not in hearsay form.
8 Three of the Respondent's six plants showed a slight increase in the number of
employees from May to June ; two showed decreases of from 2 . 6 to 3.0 percent. The
Marion plant, the one involved in this proceeding , showed a decrease of 9.0 percent.
The cost of manufacturing samples was added to labor costs, but the value of. the
samples so produced was not added to the value of goods produced.
OTIS L. BROYHILL FURNITURE COMPANY 1455
He testified that, "I offered Joel Scott his job back; he did not want
to accept it." Scott, who was a witness before Jump gave this testi-
mony, was not recalled.. As Jump's statement was not denied, we
credit it.' Accordingly we find that about October 1949, the Re-
spondent made adequate offers of reinstatement to Lloyd Pateat and
Joel Scott; which were rejected by them.
The following laid-off employees have been reinstated to their jobs
Henry Radford, Walter Rash, Robert Shehan, and John Gurley, Sr:.
A reinstatement order as to them is not necessary.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)'
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Otis L. Broyhill Furniture
Company, Marion, North Carolina, and its officers, agents, successors,.
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Upholsterers' International Union
of North America, A. F. of L., or in any other labor organization of its
employees, by laying off or discharging any of its employees, or in any
other manner discriminating against them in regard to their hire or
tenure of employment, or any term or condition of employment.
(b) Interrogating employees as to how they feel about the Union,,
threatening them with loss of employment for engaging in union ac-
tivities, and engaging in surveillance of union meetings.
(c) 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 Upholsterers' International Union
of North America, A. F. of L., or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and 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 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 each of the following immediate and full, reinstatement
to his former or to a substantially equivalent position without preju-
dice to his seniority and other rights and privileges : Howard Ander-
son, James Donald- Brewer, Raymond Brubaker, Ed Hooper, John C.
Noblitt, Hugh Sisk, Paul Sisk, Clarence Williams, Henry O. Wright,
and Walter Workman.
(b) 'Make whole the following in the manner provided in the Inter-
mediate Report under the heading "The Remedy," for any loss of pay
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they may have suffered by reason of the Respondent's discrimination
against them : Howard Anderson, James Donald Brewer, Raymond
Brubaker, John Gurley, Sr., Caleb P. Hogan, Ed Hooper, John C.
Noblitt, Lloyd E. Poteat, Henry C. Radford, Walter M. Rash, Joel J.
Scott, Robert L. Shehan, Hugh Sisk, Paul Sisk, Clarence Williams,
Henry O. Wright, and Walter Workman.
(c) 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 rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this Order.
(d) Post at its plant in Marion, North Carolina, copies of the notice
attached hereto and marked "Appendix A." 10 Copies of such notice,
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and 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 said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fourth Region, in writing,
within ten (10) days after the date of this Order, what steps the Re-
spondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE, WILL NOT discourage membership in UPHOLSTERERS' INTER-
NATIONAL UNION OF NORTH AMERICA, A. F. OF L., or in any other
labor organization of our employees, by laying off or discharging
any of our employees, or in any other manner discriminating
against them in regard to their hire and tenure of employment, or
any term or condition of employment.
WE WILL NOT interrogate our employees as to how they feel about
any union, or threaten them with loss of employment for engaging
in union activities, or engage in surveillance of union meetings.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
11 In the event this Order is enforced by 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."
OTIS L. BROYHILL FURNITURE COMPANY 1457
tion, to form labor organizations, to join or assist UPHOLSTERERS'
INTERNATIONAL UNION OF NORTH AMERICA, A. F. OF L., or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer immediate and full reinstatement to the follow-
ing individuals, without prejudice to seniority, and other rights
and privileges :
Howard Anderson Hugh, Sisk
James Donald Brewer Paul Sisk.
Raymond Brubaker Clarence Williams
Ed Hooper Henry C. Wright
John C. Noblitt Walter Workman
WE WILL make whole the following for any loss of pay suffered
as a result of the discrimination against them :
Howard Anderson
James Donald Brewer
Raymond Brubaker
John Gurley, Sr.
Caleb P. Hogan
Ed Hooper
John C. Noblitt
Lloyd E. Poteat
Henry C. Radford
Walter M. Rash
Joel L. Scott
Robert L. Shehan
Hugh Sisk
Paul Sisk
Clarence Williams
Henry O. Wright
Walter Workman
OTIS L. BROYHILL FURNITURE COMPANY,
Employer.
By -------------------------------------------
(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.
Intermediate Report and Recommended Order
Messrs. John K. Pickens and Miles J. McCormick, for the General Counsel.
Mr. W. S. Blakeney, of Charlotte, N. C., for the Respondent.
Mr. Douglas H. Woodall, of Thomasville, N. C., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on August 8, 1949, as amended by a third amended charge,
filed on September 27, 1950, by Upholsterers' International Union of North
953841-52-vol. 94-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, A. F. of L., herein called the Union, the General Counsel for the
National Labor Relations Board (the former, including his representatives,
being here called the General Counsel, and the latter being here called the
Board ), by the Regional Director for the Fifth Region, including the Thirty-
fourth Subregion (Winston-Salem, North Carolina), issued a complaint, dated
October 2, 1950, alleging that the Respondent had engaged in, and was engaging
in, unfair labor practices within the meaning 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 complaint, charge, and amended
charges were duly served upon the Respondent.
On a date which does not appear in the record, but before hearing, the Respond-
ent filed a motion for a bill of particulars. On October 12, 1950, Trial Examiner
Allen MacCullen issued his order , granting said motion in part and denying
it in part. Thereafter, under date of October 16, 1950, the General Counsel
complied with said order and served a copy of his bill of particulars on the
Respondent.
With respect to the unfair labor practices, the complaint alleged in sub-
stance that since about February 8, 1949, the Respondent had interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act by threatening loss of employment, reprisal or force, or
promising benefits to induce the employees to refrain from assisting, becoming
or remaining members of the Union, or engaging in concerted activities for the
purpose of collective bargaining or other mutual aid or protection ; by question-
ing employees concerning their membership in, sympathies with, and activities
on behalf of the Union and other labor organizations ; by threatening that the
plant would be closed down or moved to a different locality should the Union
succeed in organizing its employees ; by keeping union meetings and organi-
zational activities under surveillance, and by interfering with, and prohibiting,
the. distribution of union literature and discussion of union activities upon its
property during its employees' nonworking time. The complaint further alleged
that the Respondent on or about June 8, 1949, discharged and thereafter refused
to reinstate 17 named employees because of their real or suspected sympathy
with, membership in, . or assistance to, the Union or because they or others
engaged in, or were suspected of having engaged in, concerted activity for the
purpose of collective bargaining or other mutual aid or protection. By its
answer, filed on October 16, 1950, the Respondent denied the commission of all
unfair labor practices.
Pursuant to notice, a hearing was held on October 24 to 27 and November
1 to 3, 1950, at Marion, North Carolina, before me, the undersigned Trial Ex-
aminer. The General Counsel and the Respondent were represented by counsel
and the Union was represented by its regional director. All participated in the
hearing and were afforded opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues.
At the opening of the hearing, the Respondent moved to dismiss paragraph
5 of the complaint on the ground that the general allegation of violation of Sec-
tion 8 (a) (1) of the Act in the charge was insufficient to support the allega-
tions of the complaint. The motion was denied.' When the General Counsel
rested his case-in-chief he did so on condition that he be permitted to take the
testimony of one then-unavailable witness before the close of the hearing and that
he have an opportunity to enforce a subpena against one Rash, an allegedly
unwilling witness.
1 See Stokely Foods, Inc., 91 NLRB 1267.
OTIS L. BROYHILL FURNITURE COMPANY 1459
After the Respondent had rested and the General Counsel had put in his
rebuttal evidence, the latter moved to conform the pleadings to the proof in
respect to'names, places, and dates. Ruling was reserved thereon in contem-
plation that further testimony would be produced. The motion, renewed after
the close of the hearing, is now granted? The hearing was then continued
without a day.
Thereafter, the General Counsel notified me that the parties had been able
to stipulate to what Rash would testify, if called, and as to certain matters in
the transcript of a representation hearing involving the same parties, that such
stipulation would thereafter be filed, and thereupon moved that the hearing be
closed. Accordingly, an order was issued by me closing the hearing as of Decem-
ber 11, 1950.
On January 17, 1951, I received from General Counsel a motion, accompanied
by a stipulation, that said stipulation be received in evidence. That motion is
hereby granted. At the same time the General Counsel made a motion "that the
name of Walter Rash be stricken from the provisions of any back pay order
entered in the above entitled case because of Walter Rash's refusal to obey the
subpena issued at request of General Counsel, which subpena was never quashed
or revoked. . . .. Because there is no evidence in the record that such subpena
was served (the affidavit of service not being offered) or that said Rash refused
to honor it if served (all that appears is that Rash was not a witness at the
hearing), and because the motion, irregularly, is not to strike Rash's name from
the complaint but only from the provisions of a back-pay order, if any, I deny
the motion. A brief was received only from the General Counsel.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
0
The Respondent is a North Carolina corporation , having its plant at Marion,
North Carolina , where it is engaged in the manufacture and sale of bedroom
furniture . During the year preceding October 1, 1950, the Respondent purchased
raw materials of a value in excess of $100,000, of which more than 50 percent
was received from points outside the State of North Carolina . During the same
period the Respondent manufactured finished products valued at more than
$100,000, of which approximately 50 percent was sold and shipped to points
outside the State of North Carolina. I find on these facts that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Upholsterers' International Union of North America, A. F. of L., is a labor
organization admitting to membership employees of the Respondent.
2 The transcript and exhibits received in evidence are at variance in the spelling of
names . In such cases I have followed the spelling given in the exhibits . In one instance,
the spelling in the transcript is so at variance with the name obviously intended and with
the spelling in my notes that I now note that wherever the name Caleb Hawkins or,just
Hawkins appears in the transcript, other than the name Hawkins as appearing in the
testimony of the witness Noblitt, the name should be Caleb Hogan, or just Hogan, and I
have so read it.
- 1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
Considerable testimony was given on behalf of the General Counsel concerning
statements and conduct of supervisors or alleged supervisors either to show
interference, restraint, and coercion of employees or in some cases to show
knowledge on the Respondent's part as to who was a union adherent for the pur-
pose of establishing motivation for selecting certain men for layoff, and, on the
other side, the Respondent called witnesses to refute most of such testimony.
Much of the testimony on both sides was, in my estimation, honest and reliable,
some was honest but mistaken, some was, in the main, not consciously dishonest
but was somewhat stretched in detail, and some was, I am satisfied, a complete
fabrication. In the interest of brevity, I omit a detailed account of my reasons
for crediting or discrediting each witness. In general, in making my findings, I
have taken into consideration the demeanor of each witness on the stand, his man-
ner of testifying, his willingness to accept suggestions in questions of counsel, the
existence of reasons for bias or animosity, the apparent freshness or weakness of
his memory, th'@ consistency of his testimony with that of others or with records
or undisputed facts, the consistency of his testimony with facts of such common
knowledge that judicial notice may be taken of them, and a myriad of other signs
from which deductions may be drawn.
In early June, according- to the testimony of Joel Scott, Foreman Woodrow
Isaacs commented to a group of employees at lunch time behind the finishing
room that they would all be better off without any union. Although this is
no more than a statement of opinion and not a violation of the Act, Isaacs denied
having made it. I believe Scott was mistaken that Isaacs was the one who made
the statement, and I credit the latter's denial.
Donald Williams testified that, in about October 1949 and after the June 8
layoff in which his father's services were terminated, although his were not,
Foreman Isaacs called him over and told him to tell his father to stay out of the
factory and quoted Isaacs as adding that "you know he has got a family and
needs to work and a man that fools with the union won't be able to get a job
anywhere around here and . .. that is what happened to the other fellows." 3
He further quoted Isaacs as saying that the Union was "rotten as dirt." On
cross-examination young Williams testified for the first time that, in that con-
versation, Isaacs said that he once belonged to the Union at Lenoir, that it
broke up, that it "liked to fixed him," that he was not going to fool with it, and
that it did not pay a working man to fool with it. Although Williams testified
that he reported his conversation with Isaacs to his father and, at his father's
direction, wrote it down at the time, this last part does not appear in the pur-
ported memorandum. Isaacs admitted that he told Williams to tell his father,
Clarence Williams, to stay out, that he was bothering the men, coming in entirely
too often. Counsel for the Respondent, after quoting what Williams had testified
.on direct examination that Isaacs had said, asked Isaacs if he had had such
a conversation with Williams. Isaacs answered in the negative. Counsel did
not ask Isaacs if he had made the statement quoted by Williams on cross-
,examination about Isaacs' having been a member of the Union at Lenoir. Isaacs
'was asked what, if anything, he had said about the Union, and he answered that
he had said nothing about the Union. Although Donald Williams' testimony
cannot be described as punctilious , and although he was no doubt biased in favor
8 JJe later altered this by saying that Isaacs said that was the reason the men got laid off.
0
OTIS L. BROYHILL FURNITURE COMPANY 1461
of his father, his testimony did not sound like fabrication. The record is blank as
to whether Isaacs had ever worked at Lenoir and if so whether he had belonged
to the Union there at one time. Isaacs would not be prevaricating if he had made
such statement to someone but not directly to Donald Williams in a conversation
with him. Williams may have overheard the denied portions of the quotations
before or even after Isaacs had spoken to him to ask him to tell his father not
to come into the factory. The quotation given by Williams on cross-examination
was spontaneous. If Isaacs had never worked at Lenoir or been a union member
there he could easily have refuted Williams' testimony. I find that Isaacs made
statements substantially as quoted by Williams.
Howard Anderson testified that on May 11, 1949, he applied to Superintendent
Jump for a job, that Jump asked him how he. felt about the Union, that he
replied that he could work with or without the Union, and that Jump then
said that he did not want a union, that it would cause trouble. Anderson had
worked under Jump at another furniture factory some years before and was
remembered by Jump. The latter gave a different version of the interview.
He testified that Anderson had applied several times for work ; that, on the
occasion of his hiring Anderson, he told the latter that there was a man talking
of quitting and that he might be able to give him a job for a while ; that he
then asked Anderson where he had been working since he got out of the Army,
that Anderson had replied that he had been drawing his GI rights of $20 per
week, that this payment was about to run out and he had to go to work some-
where ; that he had then asked if Anderson had been back to his for rer em-
ployer, and that Anderson had answered, "No, I don't want to go back up
there, they've got that damned Union up there and I don't want to get mixed
up in it, I perefer to go to work here, this is my wife's home." Jump further testi-
fied that this was the only mention of the Union made by either. As Anderson
was a member of the Union at his place of former employment, having joined in
1940, and having been a member "most of the time" since, his own version is
much more probable. Of course, it may be that he was trying to create the
impression that he was not then a union member. On the whole, Anderson ap-
peared to be testifying conscientiously and honestly. Much of Jump's testi-
mony, on the other hand, 1 found distorted in favor of the Respondent. Although
the conversation may have run in part as Jump testified, I do not credit the
latter's testimony that no other mention of the Union was made in the related
conversation, and I find that Jump expressed himself substantially as quoted by
Anderson. By so questioning Anderson, the Respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Anderson also testified that he met Yard Foreman Ed Holland in town one
night sometime between June 8 and October 8 or 10, and that Holland told him
Jump did not think Anderson was a union man and would take him back next.
Holland testified. that he did not know Anderson, . would not know him if he
saw him, and that he did not make the statement attributed to him. Jump
testified that in the latter part of October 1949 he told Anderson's foreman [Ellis
Barber] that there was work for Anderson. There is no evidence, however, that
Holland was ever so told, and there is no reason why he should have beer.
Perhaps someone made such a statement to Anderson about his being taken
back, but I believe that he was mistaken that it was Holland. I credit Holland's
denial.
Orville Wright testified to a statement by his "assistant foreman," Marvin
Atkins, which, if found and if binding upon the Respondent, would be a violation
of the Act. The Respondent took issue with the claim of the General Counsel
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Atkins was a supervisor within the meaning of the Act . Atkins had been
a foreman from June 1947 to June 1948 but was discharged because of his
unexplained disappearance for a period of time. About a month later, when the
Respondent hired Ralph Atkins, Marvin's brother , as a foreman , the latter
induced Jump to rehire Marvin. Jump gave Marvin a job which he identified
as head shaperman , and he remained in the Respondent 's employ until the time
of his second discharge in August 1949. Marvin Atkins testified that "part of
my job was just a machine man and part was foreman or lead man at the
shapers and ravelers [ routers?]." The evidence indicates that he did setup
work, assigned work to the employees , saw that they did it right , and sometimes
worked on machines himself. He himself testified that he discharged one man
and that he recommended one for hiring, but he did not say when. Because of
his indefiniteness about dates , I. infer that these instances may have occurred
during the period when he was foreman in 1947-8. From other available
evidence I deduce that the recommendation for hire was made at least as early
as 1947, as the man recommended , Henry Orville Wright, was hired then. He
further testified that he attended foremen's meetings , but again was vague about
the date. The time may be fixed, however , by the fact that at one meeting he
attended , Otis L. and L. E. Broyhill were present and, according to Atkins ' testi-
mony, L. E. Broyhill "told us not to discuss the union , as far as the Company
was concerned . If we wanted to discuss our own opinion that was up to us as
individuals but he definitely told us not to discuss it as a Company proposition."
I find hat this meeting occurred between April and June 1949.
Atkins also testified that in 1949, on instructions of his brother , Ralph, and
of Arthur Bartlett , Jump's assistant , he laid men off. But he further testified
that they told him which men to lay off, so it does not appear that he exercised
any independent judgment .' Other setup or lead men, sometimes called assistant
foremen, were not regarded by the employees as supervisory . However, there is
no evidence that other assistant foremen ever attended foremen's meetings, as
Atkins did.
There were 48 employees in the finishing department under Ralph Atkins as of
June 1, 1949 . There is evidence that Marvin Atkins directed the work of men
on shapers and routers , but the number of men under his direction does not
appear, except that it was more than four or five. Marvin Atkins, himself,
testified that there was another man doing the same work he was doing. The
evidence is not definite as to what kind of work he meant or as to what authority
the other man had. As Jump himself identified Atkins as head shaperman, I
infer that Atkins had final say in his jurisdiction and that he did not share his
authority . I also infer that the title of "head shaperman " does not adequately
describe Atkins' position . There is other evidence that "head " means a kind
of lead man , more experienced than the others on the same kind of machines.
Atkins testified that an employee named Gaddy was head shaperman. Gaddy
was a machine operator in no sense in the same position as Atkins . On all the
evidence , I find that Atkins was a supervisor and that his statements are attribut-
able to the Respondent.
Orville Wright testified that about 2 months before the layoff of June 8, 1949,
Atkins "told me we had better let that Union alone, because it was going to get
us all in 'Dutch.'" Atkins preceded Wright to the stand and was not asked
about the incident,. but Wright 's testimony appeared to me to be honest and
4 As it appears that the men selected for the June 8, 1949, layoff were in many instances
selected because of their union activities or affiliation , the situation was not a case of an
ordinary layoff, in which Atkins might have had some part in the selection of men.
OTIS L. BROYHILL . FURNITURE COMPANY 1463
reliable and I credit it. On another occasion shortly before the layoff, when
Wright and James Brewer were waiting for their turn in the men's room, Atkins
stuck his head in the door and told them that they had better move- their union
headquarters elsewhere. I do not find this latter remark to constitute inter-
ference, restraint, and coercion, although I do find the admonition to leave the
Union alone was coercive. However, the rest-room remark at least indicates
knowledge on the part of the Respondent that Wright and Brewer were union
men, and both were laid off on June 8, 1949.
Three witnesses for the General Counsel, men who were laid off on June 8,
1949, testified to utterances by Arthur Bartlett, allegedly violative of the Act.
Lloyd Poteat testified that he went to the office about 2 months after his layoff
to see about a job, and spoke to Bartlett. He quoted Bartlett as saying, "I
thought you were working for the Union, why don't you make them pay you off?"
Poteat testified that he replied, "I am not working for no union." Robert Shehan
testified that about 2 or 3 weeks after his layoff he saw Bartlett about reem-
ployment, and that Bartlett "asked me, he thought I was working with the Union
and didn't I get any money for that." Bartlett denied the statement attributed
to him by Poteat. On the other hand, Bartlett did not allude to Shehnn's testi-
mony but admitted that he saw Shehan passing out union leaflets after the layoff.
Poteat was not an active union man and there was no reason for Bartlett to
think that Poteat was working for the Union. From my observation of the
witnesses I find that the incident did not occur. I was favorably impressed by
Shehan's testimony and credit it. However, assuming for the sake of argu-
ment that Bartlett's statements were attributable to management, I interpret
Shehan's testimony to mean that Bartlett commented on his knowledge gained
by his having seen Shehan working on behalf of the Union in passing out leaflets
and that he merely asked if Shehan did not receive pay therefor. Under the
circumstances here, I would infer that this inquiry was not unlike a question as
to whether an unemployed person was unable to get funds to keep him going.
There is no evidence that the remark was made sarcastically. As Bartlett
already knew that Shehan had passed out leaflets, there would be no apparent
reason to ask the question to ascertain if Shehan were engaging in work for
the Union. Under the circumstances, I do not find that Bartlett's statement
and question were coercive even if the Respondent was responsible for Bartlett's
statements.°
B. The discriminatory layoffs
1. Business conditions in late 1948 and 1949
There are two large markets in the furniture industry, one in January and
one in July, held simultaneously in Chicago and New York, at which the Re-
spondent displays models. A smaller market at High Point, North Carolina,
follows the large ones by a week or two. The Respondent also had premarket
exhibits at Lenoir, North Carolina, which resulted, in June 1949, in orders ahead
of the market. Normally, a slack period or a falling off of orders precedes the
January and July markets.
The Broyhill interests include four other furniture factories, two veneer
mills, and a sales organization. The factories are under a common production
manager and the sales organization acts for all.
" A purported quotation of Bartlett by the witness Ed Hooper was too vague and
confused to be considered.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the latter part of 1948, unfilled orders at the Marion plant decreased be-
tween the end of August and the end of December from $477,000 to $33,000.e
Although unfilled orders customarily drop off before the market months of
January and July, this was an exceptionally low backlog . A low backlog of
orders does not necessarily reflect the actual production ratio, however, be-
cause the Respondent sometimes manufactures in anticipation of orders. In
December it would have been anticipating orders in the January market.
Consequently the drop in production at the Marion plant actually was only
from $211 ,900 during August 1948 to $170,800 in December 1948. During the
first half of 1949, business continued slow. Unfilled orders after the market
in January rose to $307 ,000 but declined from there on to $69,000 by the end
of May.7
When business is poor, the Respondent sometimes makes a complete line of
new samples , starting 2 or 3 months before the next big market. Orders at the
January 1949 market proved disappointing and the demand appeared to be for
modern design ; so the Respondent decided to change its line from a very ornate
type of furniture , known as Borax, to a simple, modern type. The change-over
was made gradually during the first half of 1949. The new line was displayed
at the premarket exhibit in the sales department at Lenoir , North Carolina, as
the samples were completed from February on. By May 1949 the Respondent
was making an equal quantity of Borax and of modern.
2. The beginning of union activity
The Union began organizational activities in the latter part of March 1949.
It held a meeting on March 28 and frequently thereafter, mostly at the Marion
Tourist Court. A few of the employees obtained union authorization cards
from an organizer, passed them out, and returned those that were signed to the
organizer. Among the employees who were more active in this connection were
Clarence Williams, Hugh Sisk, Paul Sisk, Henry Radford, James Brewer, and
Ed Hooper. Several others, including Orville-Wright, were active to some de-
gree in one way or another.' By June 8, 1949, the date of the layoff in question,
the Union had authorization cards of about 68 of the 228 employees.
3. The winter layoffs
In December 1948, the Respondent began to trim its staff with 9 layoffs. It
did not lay off a greater number because it expected an increase in orders in
G This compares with a drop in unfilled orders from $2,400,000 to $206,000 at. all
Broyhill factories.
Y Unfilled orders fell lower in December 1948 than in June 1949.
Comparative unfilled order figures for 1948 and 1949 are :
August 31, 1948___________ $477,000 February 28, 1949_________ $231,000
September 30, 1948________ 239, 000 March 31, 1949____________ 155, 000
October 30, 1948___________ 177, 000 April 29, 1949 _____________ 83, 000
November 30, 1948_________ 121, 000 May 31, 1949_____________ 69,000
December 31, 1948_________ 33, 000 June 30, 1949_____________ 120,000
Comparative production figures for 1948 and
August 1948_______________ $211,900
September 1948____________ 259, 400
October 1948______________ 209,600
November 1948____________ 189,500
December 1948____________ 170,800
1949 are :
January 1949______________ $134,000
February 1949_____________ 92,600
March 1949_______________ 151,900
April 1949________________ '83;900
May 1949_________________ 104,000
June 1949_________________ 93,300
All those named were included in the June 8 layoff.
OTIS L. BROYHILL FURNITURE COMPANY 1465
the January market. When orders in January proved disappointing, the Re-
spondent made a further reduction, laying off 8 more. In February 1949, it laid
off another 16.9 No more were laid off until June. To avoid making further
layoffs, the Respondent went on a 4-day week early in 1949 and to a 3-day week
in about April 1949. Superintendent Frank Jump testified that the reason for
reducing hours was that "we did not wish to tear up our organization if we
didn't have to, and we tried to hold them intact as long as possible."
4. The events of late May and early June
Two union organizers were present in Marion in April and May 1949, arrang-
ing for meetings and organizational activities. They passed out leaflets during
the lunch periods outside the plant. One or two of the employees assisted.
Jump became aware of the Union's appearance from seeing leaflets distributed,
although he denied having seen employees doing so before the layoff.
At one of the foremen's meetings during the period of the Union's campaign,
J. E. Broyhill, general manager for all the plants, sat in, and the subject of the
Union was brought up. Broyhill at that time told the foremen that they knew
the law, that the men had a right to join or not to join, and that they should not
interfere. During early June, the organizer, spoke to a gathering of employees
under a maple tree on the unfenced plant grounds. On two or three occasions
Superintendent Jump and his assistant, Arthur Bartlett, asked the organizers
to remain at the street when passing, out leaflets,10 but he did not ask them to
leave when they were addressing the employees under the maple tree. It does
not appear why the Respondent would tolerate the organizer's presence at the
meetings under the maple tree but would draw a line at the street when it came
to distribution of literature. However, there is no showing that the employees
would have been inaccessible from the street for distribution of literature,
especially in the morning and evening. Consequently, I find no violation of the
Act in such requests."
In early May, according to a stipulation received in evidence, a representa-
tive of the Union telephoned the Respondent to request a conference. It does
not appear whether or not one resulted. In late May or early June, the Union's
representative discussed with the Respondent a matter pertaining to compensa-
tion payments to an employee. On about June 7, according to the same stipula-
tion, a union representative telephoned an officer of the Respondent and said that
the Union claimed to represent a majority of the Respondent's employees. The
stipulation is uncertain as to whether the representative actually requested
recognition and negotihtion, but at least the Respondent's officer understood
that the representative desired to talk with him. The stipulation is silent as
to the Respondent's reaction to this.
9 Counting all terminations and hirings , there was a net reduction of 16 in December
1948, 16 in January 1949, and 22 in February. In March there was a net gain of 4,
April a net loss of 1, May a net gain of 4. This trend parallels the rise and fall in
production figures , although not in the same percentage . The Respondent normally has
a fairly high turnover in labor.
10 Paul Sisk gave a different account from Jump regarding the manner in which this
occurred. According to Sisk, Klein, the organizer, had started to speak to the employees
under the maple tree when lump came up and asked Klein to get back to the -street if
he was going to pass out leaflets. Jump testified that he never interfered with the
meetings under the maple tree, but admitted that he had, near the plant, requested Klein
to stay at the street when passing out leaflets . Jump's reference to passing out leaflets
appears even in Sisk ' s testimony . I find that Jump ' s requests were limited to distribution
of literature , but I find that Jump was closer to the location of the gathering than he
testified.
11 Newport News Children 's Dress Co ., 91 NLRB 1521.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 7 and 8 at the noon meetings under the maple tree, the organizer pro-
posed that the employees for each department elect committeemen to represent
them in union matters. Nominees were elected by hand vote at these meetings.
Some of the employees who had collected signed authorization cards delivered
them to one of the organizers about the time and place of these meetings.
During the two or three days preceding the June 8 layoff, Superintendent
Jump stood at a point 75 to 100 feet from the noon maple tree meetings watching
the gathering. He also instructed his assistant, Arthur Bartlett, and Foreman
Dave Green and Von Davis to watch these meetings. Bartlett did so from
the platform by the plant. There is little or no evidence on the location of
the foremen. Jump and Bartlett testified that the purpose of this observation
was to watch for violence. Bartlett testified that if violence had occurred he
would have called the police. There had been no violence there before this
time," and the only reason for anticipating any was, according to Jump, that
when leaflets were passed out he saw men arguing heatedly, or, as testified by
Beach, Jump reported that he had noticed some of the men showing a little re-
sentment by taking union leaflets, balling them up and throwing them at the
ground. Bartlett testified that he was out on the platform only during that week
and then only for 3 or 4 days. I infer from this that the "watching for violence"
was discontinued after the June 8 layoff.11 Although Jump and Bartlett denied
having acquired any knowledge regarding any employee's union attitude or
activity, I deem it improbable that anyone could watch the employees, some
20 to 25 in number, at these gatherings and fall to notice which ones came
in close contact with the organizer, fail to notice which employees appeared
to be more outspoken, even if what they said was not heard, fail to see
them raise their hands in voting or observe any of the other ways that might in-
dicate an employee's interest in, or participation in, the Union's activities. I do
not credit the denial of Jump and Bartlett that they acquired no knowledge
concerning which employees were prounion and which were not by watching such
gatherings. Furthermore, the reason given for watching the meetings was not
convincing. Bartlett testified that if violence had occurred he would have called
the police. If that was the purpose of watching, why should it be necessary
for four men to watch when one man could observe violence and notify the
police? And if Jump expected his watchers to take personal action to subdue
any violence, why should he not have alerted all supervisors instead of just the
ones he did? Taking into account the number of active union protagonists who
were laid off on June 8 in conjunction with all the other evidence, I conclude and
find that Jump and his three assistants engaged in surveillance, and thereby the
Respondent interfered with, coerced, and restrained its employees in the exer-
cise of their rights guaranteed in the Act.
5. The layoff
At the close of the work day on Wednesday, June 8, 1949," the. Respondent
laid off 22 of a total of 228 employees. Of the 22, 16 had apparently signed union
authorization cards and another had joined the Union at his place of last em-
12 Some kind of violence occurred at a neighboring plant, according to Beach and Jump,
but they were not sure whether it was before or after the layoff of June 8. If such
violence at the neighboring plant had prompted Jump to take precautionary steps, I am
sure he would have remembered it. I find that he was not so prompted.
18 This could mean either that there were no further gatherings or that, although there
were gatherings, Jump felt there was no further need to watch them after the layoff.
The evidence is inconclusive on the point.
14 This was the end of the workweek, but not the end of the pay period.
OTIS L. BROYHILL FURNITURE COMPANY 1467
ployment. A number of the most active union employees were included in this
group. There is some evidence in the record that the Respondent might have
suspected one or two, in addition to the 16, of union connections.
The Respondent claimed the layoff was one dictated by economic necessity and
that the men least needed were the ones selected for layoff.
6. Analysis of Respondent's explanation
Findings of fact concerning motivation for the layoff have been rendered
difficult by conflicting testimony of witnesses, by inconsistencies in the testi-
mony of witnesses, by variances between the testimony of witnesses and exhibits,
and by inconsistencies sometimes in the exhibits themselves." I cannot accept
in full the self-serving testimony of Respondent' s witnesses as to business con-
ditions and the economic necessity for a layoff because of the tendency of its
witnesses to distort the facts in favor of the Respondent.
According to the Respondent's evidence, orders had been falling off, inven-
tories had risen, and labor costs had been rising to such a point in 1949 that,
by June, they were "getting out of hand" and steps had to be taken to reduce
the cost of production.16 Clarence Beach and J. E. Broyhill, respectively pro-
duction manager and general manager for all the factories, according to Beach's
testimony, discussed the matter and decided to lay off some men . Beach, so his
testimony goes, went to Marion and talked to Jump and Otis Broyhill on or
after June 2," and Jump was instructed to check through each department and
eliminate every man he could do without.
In view of the Respondent's reluctance to lay off any more employees after
the February layoff because of its desire to hold its organization together for
future production, the decision to make such a sharp reduction in force in June
coincidentally with the Union's overt meetings for selection of committeemen
requires close scrutiny. Without question, the amount of unfilled orders on hand
at the end of each month was reduced between January and the end of May.
However, this is a natural trend, since orders are placed in large volume prin-
cipally during the January and July markets. The Respondent knew, from
the January market, that the modern type of furniture would be in greater
demand than its former line, and it began preparations as early as February to
meet this preference. It professed to have no hope of improved orders in the
July market. But without hope of increased orders, it was nevertheless bulging
its warehouses with manufactured furniture. It is implausible that the Re-
spondent was overproducing only to keep its employees working. Although
the Respondent had, at the end of April, $83,000 in unfilled orders, it produced
during May $104,000 worth of furniture. This would indicate an optimism based
on anticipated orders, if new orders did not themselves account for the increase.
Jump testified that.for a month or so before the:layoff there had been insufficient
work and that men had been kept on nonproductive work, leaning on broom
handles. But the Respondent hired 11 employees in May and lost only 7; a
15 For example Beach, presumably testifying from records, gave the total production
for June 1949 as $93,300, but in response to my request for a breakdown of production
figures for the payroll periods of the last half of May and for the two June pay periods,
the Respondent supplied an exhibit ( not a record ) showing production for the first half
of June as $23,584 .43 and for the second half as $55 , 847.95. That these do not total
$93,300 is obvious. No explanation was made of the apparent conflict. As the exhibit
was not supported by sworn testimony, I do not accept it as accurate.
16 For reasons hereafter stated, I do not credit this.
14 Beach was not certain of the date , and there is reason to believe it was later, perhaps
as late as June 7.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
net gain of 4. For the payroll period ending May 4, the Respondent's records
show that it operated 12,569 regular manhours, for the payroll period ending
May 18 it operated 13,273 regular man-hours and for the payroll period ending
June 1, it operated 13,709 man-hours. The May production was up $21,000
over the April production. In the light of the records I find Jump's testimony
wholly at variance with the facts. The eleven employees certainly would not
have been hired to lean on broom handles. The increased hours would certainly
not have been required to permit employees to lean on broom handles, and the
increased production would not have resulted if men had been so unoccupied
as Jump would have it believed. Yet it was on the facts as they were seen up
to June 1, according to Beach, that the Respondent determined to make a layoff.
Further, one man was hired on June 6. If it had been decided on June 2 to
effect a reduction in force for economy's sake, it is difficult to understand why
the Respondent would hire a' man thereafter and so sobn before the expected
layoff.
Beach testified that the dip in orders for all plants was lower than at Marion
as of May 31, but any sharp reduction in force that took place at other plants
preceded by a month the layoff at the Marion plant, according to figures sup-
plied by the Respondent.
The high cost of production which, according to Beach's original testimony,
was the factor necessitating the layoff, was not, so far as the facts known to
the Respondent at the time of decision was concerned, much out of line with
other high points in the cost of production reached at several times during 1949.
Although Beach indicated that it was the trend over a period of time rather than
the high point reached which was taken into account, he admitted that the rise
in cost-in early June could have been accounted for in part by the manufacture
of sample furniture, the cost of which was added to the cost of labor but not
to the value of goods produced. Jump confirmed this. He also indicated that
unfamiliarity with new designs would slow up production. As the Respondent
was engaged in making a considerable quantity of sample furniture to put on
display, the cost-of-production figures prove little or nothing. In times of
increased production, the unit cost of production is decreased. There was every
reason to expect that, even if the July 1949 market should prove as unproductive
of orders as the January 1949 market had proved, there would, as in January,
be some increase in orders in July with attendant increase in production and
attendant reduction in unit cost. As a matter of fact, orders began coming
in ahead of the market, although Beach testified that these did not begin until
late June.18 In the light of all the evidence, it is difficult to believe that the
prospects were so poor as the Respondent would have it believed-bad enough
to result in a complete reversal of its policy of holding its organization together
even if it meant operating on a 24-hour week.
In spite of the loss of 22 men in the middle of the first pay period in
June, the Respondent found enough work for 12,948 regular man-hours during
the pay period ending June 15, and the number steadily increased thereafter.19
For the period from June 16 to 29, without adding more men, the Respondent
worked 17,040 man-hours. Overtime hours also increased steadily from May
4 on, the period including the layoff not excepted. If, as Jump testified, the
Respondent was on a 24-hour, 3-day week before the layoff, that would indicate
that for the first week of the June 2-15 pay period the Respondent' s 228• em-
1
18In view of the tendency to put the time of stepped-up production as later than was
proved by the record, the time of such orders may likewise have been estimated by
Beach to be later than they were.
19 The week containing July 4 only excepted, and this was likely a 4-day week.
OTIS L. BROYHILL FURNITURE COMPANY 1469
ployees worked a total of 5,472 regular man-hours. Since a total of 12,948 man -
hours was worked, during the full pay period , this would mean that the 206
remaining employees after the layoff worked a total of 6,996 man-hours or
roughly a 34-hour week, something over a 4-day week 2° This may explain
Jump's testimony that after the layoff the Respondent went first to a 4-day
week and then to a 5 -day week, although he would have had it believed that the
step-up was not immediate , for he testified , after supposedly having checked
the records , that "along the latter part of June we stepped up to a four day
a week, and was on four days for approximately six weeks ; then we went to a
five-day week ." The Respondent 's records belie this ; the factory was on a 40-
hour week each of the 2 weeks preceding June 29.
Jump testified that , when orders are received , they are turned over to hi&
office to break down the number of workdays required to produce the number
of pieces ordered and that, although it was customary to schedule 8 to 12 weeks
in advance ordinarily , the Respondent was scheduling at the time of the, layoff
only 2 or 3 weeks in advance. If Jump's testimony that he was then scheduling
2 to 3 weeks ahead is accepted , this step-up in hours right after the layoff
either was anticipated before the layoff or was unexpectedly sudden. A large
order received "right after" the layoff , which carried the Respondent through
July and could account for the step-up in hours in mid -June, was acknowledged
by the Respondent , but it professed timidity to rehire its staff for fear that the
few "spurt" orders did n9t indicate a trend.21 As a practical matter, if the
order came in right after the layoff, it is difficult to believe that it was not
anticipated by several days, as an order would , in normal business practice , result
after a buyer had inspected the samples , sought information on when delivery
might be expected if an order were placed , and intimated that a written order
would follow . Hence, it is not at all unlikely that such order was anticipated
before the layoff; but in reaching my conclusions I do not rely on such a sup-
position as a fact.
Although not abandoning the explanation that the layoff was necessitated by
economic circumstances , Jump justified the layoff , especially as to individuals,
on the ground that the change-over in production from Borax to the modern
type of furniture resulted in the elimination of certain operations and that
those employees who had been working on such operations were among those
selected for the layoff . Jump 's testimony to support this explanation was not
entirely consistent . At one point in his testimony , Jump testified that before
early June 1949 the Respondent 's production had been about 90 percent Borax,
and that the big change-over came in June, so that after the early part of June
about two-thirds of the Respondent 's production was on the modern designs.
However, on the next day of the hearing, Jump testified that the change-over
had been gradual from January on , that by May 1949 about half of the pro-
duction was on modern , and that by July and August of 1949 the Respondent
was still producing about one -third Borax . If this be true, it would indicate
a production change of not more than one-sixth between May and July. This
was not such a sharp change as to call for a wholesale layoff. Although the
justification for the layoff of certain employees was that the work was running
out for them because of the change -over, nevertheless toward the end of the
20 If the Respondent included its supervisors and office workers in making its computa-
tions there would be 248 employees before the layoff. On a 24-hour week they would:
have worked 5,592 man -hours . For the second week, therefore , the remaining 226 would
have worked 6,996 man-hours or roughly ' a 31-hour week.
21 Coming in advance of the July market , where orders could be expected in greater
volume, the June orders could reasonably be interpreted to presage a strong July' market..
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year when the Respondent's production of Borax was only about 10 percent
as compared to 331/3 percent in June, some of these very men were taken back
on the same jobs or were offered their former positions. In justifying the reten-
tion of some employees in preference to these laid off, Jump gave diversity of
skills as one of the reasons. Yet, although he testified that the change-over to
the modern type of furniture had practically eliminated inlay work, he listed
inlay transfer work as one of the diverse experiences that could be performed
by certain men retained.
The majority of the jobs eliminated by the change-over were in the machine
room, according to Jump, but only a minority were laid off from that depart-
ment. During the layoffs in the winter of 1948-49, the Respondent had made an
effort to retain married men with dependents. This factor was apparently given
no consideration in the June layoff ; nor did seniority seem to play any consistent
part in the June layoff. In some instances, men who had been with the Re-
spondent for a number of years were laid off, while men who had been with the
Respondent for a few days, or weeks, or months, were retained. There is evi-
dence of the employment tenure of only 15 of the 22 employees laid off in June.
Of those 15, 7 had been with the Respondent since their last hiring (exclusive
of periods of prior service with the Respondent) for more than 1 year. Of
the 7, 2 had been employed for more than 5 years, and 2 had been employed
between 4 and 5 years .22 An inspection of exhibits showing the payroll for the
period covering January 27 to June 15, reveals that of those not laid off on June
8, 5 did not appear on the payroll. until the payroll period ending April 6, 1949;
5 appeared for the first time on the payroll during the period ending June 1,
1949, and 1, Millard Williams, s appeared for the first time on the payroll during
the period ending June 15, 1949. But although retaining such new employees,
the Respondent gave shortness of tenure as the reason some were laid off. Ray-
mond Brubaker, who had signed a card for the Union and who had formerly
been a member of another union at another place, was one such case. In justi-
fying the layoff of Brubaker, who was employed in late May 1949, Jump gave as
the reason only that he had been there a short time and, as far- as the Re-
spondent knew, he was of limited experience?` There is evidence that certain
men of recent employment who were retained had little or no previous ex-
perience.
To explain .the increase in the number of hours in the latter part of June
without a rehiring of the men laid off, Jump testified that the expectation of a
steady increase in production was not certain, and furthermore that in view
of the change-over in design it was cheaper to run one man on a machine over-
time than it was to tool up new jigs and take on more men. However, the
change-over was not as abrupt as Jump would have it believed, and when
additional help was hired, it did not reduce the amount of overtime. More-
over, if may be noted that in July when production was increasing, the Re-
m The Respondent's choice of older and more experienced men for layoff is a factor to
be considered in the over-all picture in determining the bona fides of the Respondent's
action. Industrial Metal Fabricators, Inc., 63 NLRB 46.
n Clarence Williams testified that his second- cousin, Lester Williams, was hired by the
Respondent on June 6, 1949. No Lester Williams appears on the payroll. Lester Williams
was mentioned by other witnesses, however, including Jump. I note that the Respondent's
records did not always carry both Christian names of employees. For example, Henry
Orville Wright was carried on the records as Henry Wright, but he was known by his
fellow workers as Orville Wright. I infer that Lester is the same . as Millard Williams,
who is the only one hired between June 2 and 15, 1949.
24I do not credit testimony on behalf of Geneial Counsel that Isaacs saw Brubaker
,showing his union membership card to other employees. If the Respondent learned of
f3yubakCer 's union membership , it did so In another manner.
OTIS L. BROYHILL FURNITURE COMPANY 1471
spondent did not first rehire the men laid off. In July it hired 8 new employees,
and rehired only 4, but only 2 of the 4 were men laid off in June. In a number
of instances the Respondent had told employees laid off that it would get in
touch with them when it needed them, but it did not do so when it began to
hire employees. Between August and the end of January 1950, the Respondent
employed 45 new employees and rehired 21. But of those laid off in June, only
2 were rehired in July ( one was a nonunion man; the other had signed a union
card but was not active in the Union) ; an active union man was rehired in late
August ; another was rehired in late October ; and 2 union men were rehired
in November, a total of 6. The work done by some of the men who were laid
off was skilled work, and if there was any volume of production at all their
services would have been useful. Yet few of those with skill were reemployed.
There were a number of jobs in the factory which the average workman could
have learned in a few days' time. In one instance the Respondent justified the
layoff of a man, Henry Radford, an active union man, on the ground that his
regular work ran out and he had already been shifted to other work. This man
had been doing machine sanding, a fairly skilled type of work and was trans-
ferred to a less skilled type of work. Obviously, he was capable of doing it.
A few weeks before the layoff he had been loaned by his foreman, Barber, to
Foreman Barlow for hand sanding. When the layoff came, Barber told Radford
he was laid off. Barlow had already told him to come back in the morning %
and Radford so told Barber. Barber replied merely, "I said for you to be off."
Radford had worked for the Respondent for 4 or 5 years, was married, and had
children. Jump testified that it could not pay the rate of skilled employees to
do the less skilled work. But, according to Jump's testimony, it is apparent
that men were shifted around on jobs even after the layoff. For example, he
testified that Hugh Sisk and Robert Shehan (both active union men) were the
only ones who had been cleaning up (hand sanding) cases. Both were laid off
on June S. 'After the layoff, according to Jump, their work was done by "various
ones as they were caught up on their higher skilled job they were doing."
Of the 5 nonunion employees who were laid off, 3 were later reemployed, 1
was, according to Jump, offered employment and refused, 1 had gone to another
place and was unavailable for reemployment. Of the 17 union men who were
laid off, in addition to the 4 reemployed, 4, according to Jump's testimony,'
were offered reemployment and refused . An analysis of this testimony will be
made hereafter, but I find only one of the 4 men was, in fact, offered employment.
In justifying the retention of the one lean hired in the payroll period ending
June 15 (the date of which hiring I fix as June 6 by the unrefuted testimony of
Clarence Williams), Jump testified that this employee was "a little more experi-
enced than Scott in various work . . . he had had more diversified experience
in that department." Joel Scott, an experienced shade sprayer, had been em-
ployed since November 1946. Lester Williams, whom Jump testified as the one
with more diversified experience, although he had been in the plant only 2 or 3
days at the time of the layoff, was described by Scott as a boy. One of the jobs
'° From this it might be inferred that it had been decided to work at least some of
the men 4 days during the very week of the layoff. From evidence that the plant went
to a 4 -day week before going to a 5-day week and evidence that it went to a 5-day week
the week following the layoff , I find that it went on a 4-day week during the calendar
week of the layoff.
20 Joel Scott and Lloyd Potent , two of the four named by Jump, were not questioned
about the offer of reemployment , or their desire therefor , while on the stand. Paul Sisk,
another , testified to a conversation with his foreman in which the foreman made an
exploratory inquiry rather than a clear offer. The fourth , Caleb Hogan , testified that
he was offered his job back but that he refused it when he learned that he would be.
expected to do more work than before.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
which Jump testified that Lester Williams could do was transfer work, a type
of work which he, himself, had-previously testified there was very little of after
the change-over to modern styles. In view of Jump's tendency to bend his testi-
mony favorably to the Respondent, in view of his inconsistencies and the general
unreliable nature of his testimony, I reject his testimony making comparative
evaluations of the abilities of the men laid off and retained 2' I further reject
his testimony of the amount of work available for the men laid off.
Jump testified that he made personal observations of the men in the shop,
that he discussed them with the foreman, and that he instructed the foremen
on June 8 to lay the men off on that day. He did not say whether or not he told
the foremen on June 8 which employees to lay off. Marvin Atkins, the assistant
foreman in the finishing department at the time of the layoff, testified that he
laid off certain men at the instruction of Arthur Bartlett, Jump's assistant, and'
of his brother, Ralph Atkins, who was foreman. According to Marvin Atkins'
testimony, Bartlett handed him a list with about nine names on it, told him that
he was to lay off three men, Gurley, Brewer, and Wright, that they were union
men, and that Atkins was to see if there were any others on the list who were union
men. Atkins in fact did lay off two of the three indicated and his brother Ralph
laid off the third.26 He (lid not lay off any of the others on the purported list.
Bartlett denied that he had given Atkins a list of names and Jump denied having
given Bartlett any list in writing.
Atkins' testimony was at times so confused that it appeared he had an entirely
different incident in mind. His testimony also vacillated, depending largely
upon who was asking him questions. Having been discharged by the Respondent,
he had reason for bias against it. Yet his attitude toward the Respondent
appeared at times sycophantic. On cross-examination by Respondent's counsel,
Atkins had a tendency to modify his testimony and even to change it to eliminate
the portions damaging to the Respondent which appeared to me to result from
a disposition on his part to be ingratiating to the Respondent's officials. On
the subject of the list of names, however, his testimony was so confused even
when he answered questions of the Trial Examiner that I regard it as unreliable,
and I make no finding thereon. I note, however, that, although Gurley had not
signed an authorization card for the Union, Atkins testified in a way that in-
dicated he thought he was prounion. Further, he testified that Gurley had a son
who had been affiliated With a union "before the Union even came down here in
the South, and his son was tailing the moulder up in the plant where I did work ;
and he lost his Union card out there in the plant; and well, you know, naturally
that made a little bit of ill feeling . . . between the men that was depending on
that plant for a living." It would not be surprising that such a story had reached.
the ears of management. I -
The Respondent's evidence of its justification for the June layoff is so riddled
with inconsistencies and evasiveness and its logic so questionable in many
respects that the purity of the Respondent's motives in effecting the layoff is
rendered suspect. On all the evidence, it is fairly deducible, and I find, that if
the Respondent had not sought to check the momentum of the Union's organiza-
tional drive, it would have continued to put its desire to "hold the organization
together" ahead of the comparatively minor saving accomplished by a temporary-
21 On direct examination for the Respondent, Jump testified that Howard Anderson, a
anion man at his place of former employment, who was included in the June 8 layoff,
had been on the job a short time and that he was a fair worker. But on cross-examination
he admitted that he lost a 'skilled man in losing Anderson.
28 Atkins testified that he laid the three off. Two of the three confirmed this, but
Gurley testified that he was laid off by Ralph Atkins.
OTIS L. BROYHILL FURNITURE COMPANY 1473
reduction in force ; and this seems even more probable in view of the fact that
the period of time before the next big market, a normally slack period, was fast
reaching an end. The very timing of the layoff itself, coming in the midst of an
accelerating union organizational campaign, would naturally have a dampening
effect upon the employees' enthusiasm for a union, regardless of the proportion
of union men laid off or the prominence of those individuals in union activities..
However, it could be expected to have a much greater effect if a disproportionate.
number of union men were laid off, especially if, among those union men there
were a number of the more active union members. As already pointed out, not
only was the layoff here made at a time when the union activity, to the Respond-
ent's observation; was becoming more successful and only one day after the
Union's claim of a majority, but so disproportionate a number.of union men
were included in the layoff that an inference is warranted that the large .pro-
portion, of union men was not accidental.2' Although it is possible that the
Respondent took fortuitous advantage of the general layoff to dispose of the
services of a few employees for reasons not connected with the Union, it is im-
possible to separate the Respondent's motives as to individuals." Without regard
to possible discrimination by the Respondent against particular employees because
of their union membership and activity, I find that by the layoff of June 8, 1949,
the Respondent sought to discourage union membership by discriminating in
regard to the hire and tenure of employment of its employees. It is immaterial
that in carrying out its unlawful purpose the Respondent may not have known
that certain employees were and certain ones were not union proponents 31
The Respondent took the position that Clarence Williams, one of those laid
off on June 8, was discharged rather than laid off and that they took the oppor-
tunity to dispense with his services at the time of the layoff so that he would
be in a position to draw unemployment compensation inasmuch as he was a man
with a large family. The reasons given for Williams' discharge were, first, that
he was obstinate and not cooperative with his foreman and his fellow workers
and, second, that he constantly cursed. Foreman Isaacs testified that when
Williams was first employed he was a "fairly good worker. He could not catch
on to things fast . . . but be did fair; on occasions his temper would flare up
and I would caution him about it. . . ." Isaacs testified that Williams had to go
to the hospital or sanatorium, and that he was away for five or six months 32 and
that "during that time we kept in contact with him, naturally, and when he came
back Clarence was not the same workman any more. He became ill and would
not obey orders and he could not get along with his fellowman-fellow workers."
Isaacs also testified that several times he asked Jump for permission to fire Wil-
liams, but that Jump "kept putting me off and he would not let me let him go
[at] first. He said maybe you have not tried thoroughly enough. . . . " Isaacs
testified that on another occasion when he had gone to Jump, the latter. said to
him that perhaps Isaacs was not talking to Williams right and told Isaacs to com-
pliment Williams on his work ; so Isaacs went back and "tried that type psychol-
ogy and it did not work... .
21 F. W. Woolworth Company, 25 NLRB 1362 (at 1373) enfd. as modified, 121 F. 2d 658:
Harold W. Baker Co., 71 NLRB 44; N. L. R. B. v. Chicago Steel Foundry, 142 F. 2d 306
(at 308) ; Brown's Tie and Lumber, 66 NLRB 637.
30 It rests upon the tort -feasor to disentangle the consequences for which it is chargeable
from those from which it is immune . N. L. R. B . v. Remington Rand, Inc. , 94 F. 2d 862,
at p. 872 (C. A. 2).
"American Rolling Mill Company, 43 NLRB 1020 (at 1049) ; Cowell Portland Cement
Company, 40 NLRB 652 (at 679), enfd. 148 F. 2d 237 (C. A. 9) ; N. L. It. B. v. National
Garment Co., 166 F. 2d 233 (C. A. 8), cert. den. 334 U. S. 845.
12 Williams testified that he was out sick for 4 or 5 months in 1947.
953841-52-vol. 94-94
14 .74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Isaacs testified that one of Williams' faults was that the latter did not under-
stand the necessity for "balancing the load." It was Williams' job to load furni-
ture on the conveyor belt to move it to the sanding and spray-painting depart-
ment. Isaacs testified that he would tell Williams to start loading a particular
thing and Williams would say that he would as soon as he got a few pieces of
other furniture out of the way. Isaacs testified that Williams' failure to load
the particular pieces he had designated immediately worked a hardship because
of the fact that the furniture had to be loaded on the conveyor to reach the
spray-painting department in the order in which the furniture was to be sprayed.
I deduce from all the evidence that difficulties would be encountered occasionally
when the paint department would run out of a certain type of spray and would
have to start in on another kind, and that that would necessitate a change in
the order of loading furniture on the conveyor belt. I also deduce that the
furniture which would then be required would be behind the type of furniture
which had first been loaded for spraying and that it was necessary to clear
the way in order to get at the new type of furniture. I conclude that Williams
was not deliberately going counter to Isaacs' instructions, but was trying to
make it feasible to carry them out.
Isaacs also testified that the safety committee had condemned the practice
of putting Coca Cola bottles on the floor and around in the windows and that he
worked out a plan for the employees to put the Coca Cola bottles on the conveyor
and instructed Williams to take the Coca Cola bottles off. Isaacs testified that
Williams did not take them off and that he spoke to him two or three times and
that Williams on the last occasion replied, "I didn't drink the damn things
and I'm not going to take them off." Williams was not then discharged.
Isaacs testified with respect to Williams' cursing that he had complaints from
employees that "on many occasions he [Williams] had cursed them; he cursed
the stain man and one of the men who pushed the furniture down to him. . . ."
Both Isaacs and Jump tended to paint the picture blacker than it actually was.
The Respondent called several witnesses to corroborate Isaacs' testimony. One,
Virgil Schism, testified that when furniture came on the conveyor belt to the
finishing room for sanding, one of the men there would mark imperfect furniture
as culls. Culls would be left on the conveyor belt and it was Williams' job to
remove it when he saw the mark. Schism testified that Williams would mutter
and growl about it and that he would "come back. and curse about it." Schism
testified that Williams had cursed over a period of at least 2 years; that he
had become used to it and didn't pay any attention to it. He further testifl,'d
that he had not complained to the foreman about Williams' cursing. Another
witness called by the Respondent to testify about Williams was Charles Loftis,
who prepares the stains and fillers and keeps the sprays going. Loftis testified
that he once ran out of wash coat and changed the pump to another color ; that
he told Williams to stop loading the kind of furniture that he was loading, but
that Williams kept on loading it; so Loftis went over again and told Williams that
they were out of wash coat and "he got mad and commenced cursing me." Asked
what Williams said when he had cursed him, LQftis testified that Williams said,
"There is no damn fun loading this chain and then have to unload it." A third
witness called by the Respondent, Hicks Allison, testified that Williams would
"fuss and growl" if he had to take furniture off the conveyor. On cross-exam-
ination he testified that the kind of things that' Williams would say 'would be
"something about taking `the damn things 'off the chain- all the time, coming
around culled.'" Asked if Williams ever used strong language, Allison testified
that "that was about all I heard him say."
OTIS L. BROYHILL FURNITURE COMPANY 1475
Williams was one of the most active union men, if not the most active. He
signed a union card about the middle of May 1949 and got 15 to 20 cards from
the union organizer which he handed out mornings before work and during the
lunch period and he talked extensively in favor of the union. At the time of the
layoff Isaacs told Williams the reason for the layoff was that the Respondent
had to curtail production. When he returned to seek reemployment, Jump told
him the plant was still curtailed. At this time his job was being performed by
Earsel Smith. Jump confirmed this. Employment records indicate that Smith
appeared on the Respondent's payroll records for the first time during the pay
period ending June 1, 1949, and that he worked to sometime in the latter part
of July. At no time was Williams notified that there was work for him.
Williams was an employee of nearly 6 years' standing. Although he may be
conceded to have had faults, the Respondent apparently regarded them as venial,
because it retained his services despite knowledge of his faults. Thus, the Re-
spondent was content to keep a grumbler in its employ provided the grumbler
was not a union advocate. On all the evidence, I conclude and find that Wil-
liams was laid off on June 8, 1949, not merely because of the fact that he was a
victim of a general layoff effected to check the union's organizational drive, but
because he was discriminatorily selected for layoff, and that his layoff was
made for the purpose of discouraging union membership and activity. At no
time before the hearing did the Respondent indicate that Williams had been dis-
charged. I strongly suspect that the Respondent thought up the discharge
theory long after the layoff because it would lave been impossible to show
that the job Williams was on was not a necessary and continuous one. The
excuse that there was not enough work could be given for Williams, as the
conveyor operated at all times that the plant operated. But whether this be the
case or not, I find that the reasons given were not the real reasons why Williams
was laid off and not thereafter reinstated. His union activities were open and
apparent. All the evidence points to the fact that the Respondent knew that
he was an active proponent of the Union and that he was included in the layoff
for that reason, and I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection 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'
As it has been found that the Respondent has engaged in and is engaging
in unfair labor practices, it will be recommended that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of
the Act. It has been found that the Respondent has discriminated in regard
to the hire and tenure of the employees listed in Appendix A, attached hereto,
by laying them off on June 8, 1949, and thereafter failing and refusing to rein-
state certain of them. Some of those laid off the Respondent did reemploy.
Of those named in the complaint, Jump testified that the Respondent also offered
to reemploy Lloyd Potent, Joel Scott, Paul Sisk, and Caleb Hogan.
Jump did not testify that he person.glly made the offers, and it is apparent
that, in some cases, that which Jump designated as an offer of reemployment
was made by someone else. I infer therefore that, except when Jump may
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have testified that he himself talked to an employee, he was testifying merely
fiom hearsay, and I find that his testimony is not adequate to establish a clear
offer and refusal of employment. In the case of Paul Sisk, Foreman Joe Sowers
testified that Sisk came to him," not specifying the date, and asked if Sowers
had any work other than what he was taken off of, that Sowers replied he had
not, but said he had a job if Sisk wanted it right then, and that Sisk had'
replied that he did not want it as he had something better than that, Sisk's
testimony with regard to his conversation with Sowers was clearer and more
detailed. He testified that, on one of the occasions when he went back to the
plant, he walked up to Sowers, patted him on the shoulder, and asked how he
was getting on. After a few words had been exchanged, Sowers asked if Sisk
was working anywhere, and Sisk told him that he was driving a cab. Sowers
asked if he could make a pretty good living driving a cab, and if he liked it.
Sisk told him that it was fair. At another place in his testimony Sisk testified
that he told Sowers that the job he had was about as good as the hot-press job
he had been on at the plant, but he denied that Sowers had ever offered him a
job or that he had refused it. From his credited testimony I conclude that
Sowers felt Sisk out on the question of his current employment with a possible
view to determining whether Sisk would accept reemployment if it was offered to
him. This I do not consider sufficient to constitute an offer of reinstatement.
Jump sent for Caleb Hogan in November 1949 and offered him' his former
job on condition that he would stop complaining of the amount of work he had to
do. His job was called "tailing the chute," or taking cores coming from the
reels. Hogan and Jump agreed substantially in regard to what was said.
Hogan asked if the Respondent'was running two or three reels, as he had heard
that they were going to increase the amount of the load that he would have to
handle. Hogan testified that he had never had to handle more than two reels
without a helper. Jump told him' that they would soon be going into 3 reels,
and that he would expect Hogan to handle it without help. Hogan replied that
he (lid not feel equal to handling three alone. Jump testified that in Lenoir one
man takes the stock off the chute from 4 reels and that the man on Hogan's job.
is now handling three reels. Jump testified that Hogan was in declining health.
and would at times feel low and seem unable to keep his job up without help.
Hogan did not appear to be too robust a man, and I judge that he would not be
capable of doing the same amount of work as a younger or stronger man. I find
that the offer of reemployment to Hogan was adequate and that the Respondent's
responsibility to him ended at the time of making that offer.
Jump testified that Respondent offered employment to Lloyd Poteat in October
1949, but that Poteat refused it, saying he had just arranged for GI farm
'rights. Jump does not say that he personally talked to Poteat, and when
Poteat was on the stand the Respondent did not question him about the offer
of employment. Because I found Jump's' other hearsay testimony was in-
accurate and because Poteat was not questioned, I find the evidence inadequate
to prove that the Respondent offered reinstatement to Poteat. For the same
reasons I likewise find it inadequate as to Joel Scott.
That the unfair labor practice committed by the Respondent by laying off
the 17 men named in the complaint be remedied, it will be recommended that
the Respondent offer to each, other than Hogan and those already reemployed,.
immediate and full reinstatement to his former or substantially equivalent
position," without prejudice to his seniority and other rights and privileges,.
33 The only evidence of the date of this conversation is given in Jump's testimony which.
fixed it in early 1950.
"The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,.
65 NLRB 827.
PALMER MANUFACTURING CORPORATION 1477
-discharging, if necessary, employees hired subsequent to the layoff of June 8,
1949. It will be recommended that as to those already reemployed the Respond-
ent extend to them retroactively all rights and privileges, including seniority
and bonuses, from June 8, 1949, to the date of their reemployment. It will
further be recommended that the Respondent make whole each of the employees
named in the complaint whose services were terminated on June 8, 1949, for any
loss of pay he may have suffered as a result of the Respondent's discrimination
against him by the payment to each of them of a sum of money equal to that
which he would have earned as wages from June 8, 1949, to the date of his re-
instatement or the Respondent's offer to reinstate him, less his net earnings," if
any, during said period.
The activities herein found to constitute unfair labor practices on the part
.of the Respondent reveal an opposition to the objectives of the Act so funda-
mental that I infer and find that the commission of further unfair labor practices
-lay be anticipated from the Respondent's past unlawful conduct. The pre-
ventive purpose of the Act may be frustrated unless the Respondent is enjoined
from the commission not only of the acts herein found to be unfair labor prac-
tices but of other conduct proscribed by the Act. It will therefore be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees in respect to the exercise of the
Tights guaranteed in the Act.
CONCLUSIONS OF LAW
Upon the foregoing findings of fact and upon the entire record in the case, 1
make the following conclusions of law :
1. Upholsterers' International Union of North America, A. F. of L., is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discouraging membership in a labor organization, by discriminating in
regard to the hire and tenure of its employees named in Appendix A, attached
hereto, the Respondent has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in 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 foregoing 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.]
sa See F. W. Woolworth Company, 90 NLRB 289; Crossett Lumber Company, 8 NLRB
440, 497-8; Republic Steel Corporation v. N. L. R. B., 811 U. S. 7.
FALZ\IER MANUFACTURING CORPORATION and INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, DISTRICT LODGE x$49. Case No. 21-CA-895.
June 26, 1951
Decision and Order
On February 5, 1951, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
94 NLRB No. 230.