Rowe Furniture Corp.

National Labor Relations Board - Board Decisions

Jan 21, 1964

145 N.L.R.B. 1175 (N.L.R.B. 1964)

ROWE FURNITURE CORPORATION 1175
tive of its employees, or to force or require the employees of the
aforesaid Company to accept or select us as their collective-
bargaining representative. ,
LOCAL 345, RETAIL STORE EMPLOYEES UNION,
RETAIL CLERKS INTERNATIONAL ASSOCIA-
TION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Fourth Floor, the 120 Building, 120 Delaware Avenue, Buffalo,
New York, Telephone No. TL 6-1782, if they have any question con-
cerning this notice or compliance with its provisions.
Rowe Furniture Corporation and Upholsterers' International
Union of North America, AFL-CIO. Case No. 5-CA-2378-
January 21, 1964
DECISION AND ORDER
On September 27, 1963, Trial Examiner Jerry B. Stone issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the Respondent's exceptions and brief, and the en-
tire record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
145 NLRB No. 116.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
'The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the, National Labor Relations Boaid hereby orders
that Respondent, its officers, agents, successors, and assigns, shall
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on February 18, 1963, April 10, 1963, and May 20, 1963,
by Upholsterers ' International Union of North America , AFL-CIO herein called the
Union ), the General Counsel of the National Labor Relations Board, by the Regional
Director for the Fifth Region Baltimore , Maryland ), issued his complaint dated
May 31, 1963 , against Rowe Furniture Corporation (herein called the Respondent).
In substance the complaint as amended at the hearing alleged that Respondent had
engaged in and was engaging in conduct proscribed by Section 8(a)(1) and (3)
of the National Labor Relations Act (herein called the Act ) and that such conduct
affected and was affecting commerce as set forth in Section 2(6) and ( 7) of the Act.'
Respondent 's answer admits many of the facts pleaded in the complaint , but denies
the commission of any unfair labor practices
Pursuant to appropriate notice , a hearing was held before Trial Examiner Jerry
B. Stone at Roanoke , Virginia , on July 17 and 18, 1963. All parties were rep-
resented at and participated in the hearing , and were afforded the right to present
evidence , to examine and cross -examine witnesses , to offer oral arguments, and to
file briefs.
Upon the entire record in this case and from my observation of the witnesses,
the following findings of fact, conclusions of law, and recommendations are made.2
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Based upon the pleadings, it is found that Rowe Furniture Corporation (the
Respondent) is and has been at all times material to this proceeding, a Virginia
corporation engaged at Salem, Virginia, in the manufacture and sale of upholstered
living room furniture
Respondent, during a representative 12-month period, in the course and conduct
of its business operations, manufactured, sold, and shipped finished products valued
in excess of $50,000 directly from its plant in Salem, Virginia, to points outside
the Commonwealth of Virginia. It is found that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that in connection with
the acts described in section III of this report, it will effectuate the policies of the
Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Based upon the pleadings , it is found that Upholsterers' International Union of
North America, AFL-CIO, is a labor organization with the meaning of Section
2(5) of the Act.
'At the hearing, after allowing General Counsel's amendment to the complaint, the
Trial Examiner told Respondent that atter the General Counsel had presented his evi-
dence, if the Respondent needed additional time in presenting his defense such time would
be granted The Trial Examiner then asked for opening statements The transcript at
page 7, line 14, is hereby corrected to so reflect At various places in the transcript an
employee is named as ` Rakeline" , the record is hereby corrected in such instances to re-
flect the emploi ee s name as "R-ifkhne "
2 All credibility resolutions are based in whole or in part on my observation of the wit-
nesses' demeanor Some of the witnesses were credible as to part but not as to all of their
testimony
ROWE FURNITURE CORPORATION 1177
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharge of James E Conner
1. The operation of production line No. 5 3
The mode of operation of production line No. 5 4 may be described in the follow-
ing manner. On production line No 5 there were 10 stations with each station
containing approximately 7 feet of working space on the line At each station, the
employee assigned thereto completed one operation (e g., the attachment of an arm
to the chair being produced) The sum effect of the 10 operations was the finished
object (e.g., a chair). The object to be produced (e.g., a chair) was first placed on
a buck hooked to a chain (similar to a conveyor belt) and the initial operation was
commenced at station 1. The succeeding operations progressed through stations 2
through 10. The chain (conveyor type) was set at a certain rate of speed which
allowed the employee at each station a certain stated time (e.g., 5 minutes) to
complete his operation on the object (e g., a chair) being produced before the
object was passed to the next station. The conveyor line was set at different speeds
for the various jobs being produced based upon engineered studies. In practice
the speed was adjusted in accordance with the ability of the production line as a
while to maintain the pace.
If an employee on the line could not maintain the pace set, the line could be
cut off temporarily, the speed adjusted, or a utility man or other employee could
assist the employee who was behind. Absent such assistance as indicated above,
if an employee got behind, on station 9 for example, it naturally followed that the
employees working at subsequent stations commenced their work operations later,
and that their total production for the day suffered as compared to their production
if their fellow employees maintained their pace It also followed that the ultimate
adjustment of speed of the line lowered the total production of all empoyees.
On those occasions when an employee on station 9 could not keep up with the
time pace set,5 and when assistance was not available, items of furniture with
completed operations 1 through 8 had to be taken off the hook on the chain and set
in such space as was available If a number of such items of furniture were set off,
this crowded the work space of the employee at station 9, and on occasions the
work space of the employee at station 10. On some occasions, when the employee
operation on an item of furniture at one station had been completed, it would be
taken off the conveyor line and pushed by hand to the next station.
Normally the speed of the line was set in accordance with the time determined
by engineered studies for the style of the item of furniture being produced If a
new type item of furniture were placed on the line for production, and if a large
number of the new items of furniture were to be produced, the speed of the line
was adjusted in accordance with the engineered speed time designated for the new
item of furniture. If only a small number of the new items were to be produced,
and if the speed variance were relatively small, the speed was not adjusted. In
general the speed adjustments were made in an attempt to cause a smooth flow of
production
2. James E. Conner employment period 6
James E Conner'i commenced work for the Respondent in 1955 and continued
in Respondent's employ until he was discharged on January 4, 1963. Employee
Conner was on the Union's organizing committee and the Respondent was notified
of this on October 30, 1962, by virtue of a telegram sent by the Union to the
Respondent 8 In addition to being a union committeeman, employee Conner engaged
in other union activity during his last 2 or 3 months of employment at the Re-
i Based upon a composite of the credited testimony of James E Conner, Hill, Kindred,
Jamey R Conner \Vntz, and Moore
The line on which James E Conner worked
As an example. on those occasions when the employee on station 9 had not completed his
operations on the item of fnrmtuie upon which he was workinc, and additional items of
furniture (with operations for stations 1 through s having been completed) awaited his
operation at his station.
GBased on the credited testimony of James E Conner whom I found to be a frank,
forthright, and honest witness
Employee James E Conner', immediate foreman was James R Conner In this report
reference will be made therefore to employee Conner and to Foreman Conner
s The union telegram listed nine employees as union committeemen including the two
alleged discrnninatees (8(a) in this case, James E Conner and James E. DeBoard
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent including ( 1) attending union meetings, ( 2) passing out union authoriza-
tion cards , ( 3) distributing union handbills , and (4 ) contacting fellow employees at
their homes concerning the Union.
Shortly after receipt of the aforementioned telegram, Respondent 's personnel
manager, Kindred, spoke to his assembled supervisors , including line foremen, read
off the names of the union committeemen , and made statements of things and actions
that the supervisors could do and could not do legally.9
3. Events of November 7, 1962 10
On November 7, 1962; Department Supervisor Sam Fromille and Line Foreman
James R Conner spoke to employee James E Conner concerning employee Conner's
work. Employee Conner, on this occasion, had several items of furniture at his sta-
tion (No. 9) awaiting the completion of his particular operation." Department
Supervisor Fromille told employee Conner that he was going to have to keep up
production or something would have to be done. Employee Conner told Depart-
ment Supervisor Fromille that if he thought it was his fault that he would quit;
Fromille stated that if employee Conner wanted to quit, he could go down and get
his card. Employee Conner told Fromille that other employees were shoving the
furniture together and that he did not have room to work. Department Supervisor
Fromille stated that this was no excuse.
4. Fromille's conversation with employee Wickline around November 7, 1962 12
Shortly after November 7, 1962, Fromille told employee Wickline, while talking
about employee Conner, "to stir the men up, get them complaining, and complain
about him being behind.13 If we get enough on him and get it dated so that it will
show he was holding up production, then we can fire him and we won't have to worry
about him." Around this time Fromille also told Wickline that he (Wickline) did
not have anything to worry about, that he (Fromille) would take care of him.
Fromille told Wicklme to give the union men a hard time and if the union men
bothered him to let the Company know. Fromille told Wickline not to hit (with re-
ference to fighting ) the union men back , if they hit him.
Q The General Counsel's witness Mines' testimony appears to have been offered for the
purpose of establishing that the supervisors were told to watch the committeemen closely,
and if the committeemen gave the supervisors any reason at all, the supervisors were to
discharge the committeemen From my observation of Hines in his testimony on direct and
cross-examination , the leading nature of some of the General Counsel ' s questions and the
total meaning of all of Hines' testimony, I am convinced that Hines' testimony to the
effect that the supervisors were told to watch the committeemen closely, and if the
committeemen gave the supervisors any reason at all, the supervisors were to discharge
them, is his oiin interpolation and conclusion of what was meant, and not what was said
I thus do not credit his testimony to this effect Personnel Manager Kindred credibly
testified to the effect that the supervisors were not told to engage in a close watch of
anyone
10 Based upon the credited and uncontradicted testimony of James E Conner
"As best gathered from employee Conner's credited testimony his operation on this
particular item of furniture was connected with work on the arm of a chair. On this
occasion employee Conner, in addition to the furniture he was curiently working on, had
other items of furniture (having operation 1 through 8 completed) awaiting operation 9
Thus he was behind in his work. The exact number of operations lie was behind was not
established. The only testimony or evidence on the point was that of employee Conner
himself. He testified that lie did not believe he was behind eight operations, but that he
might have been
12 Based on the credited uncontradicted testimony of Wickline. Wickline, although
appearing a little eager in his testimony , impressed me on both direct and cross-examination
as attempting to tell the truth I have carefully considered all of his testimony and his
demeanor, and except for several minor variances between Wickline's version and the
versions of facts testified to by Kindred and Division Foreman Tingler, I find Wickline's
testimony reliable and so credit
13 Shortly after the union campaign started in October 1962, Ernest Wickline sought out
Department Supervisor Sam Fromille and voluntarily related to Fromille information
that he had leained from some of the union committeemen . Fromille, after Wickline had
related his information , asked additional questions concerning the union and union
activities Fromille told Wickline that there was nothing to worry about, that it would
take sonie time but that "we ' ll get rid of all of them ," Wickline thereafter continued to
make reports concerning union activities to Department Supervisor Fromille
ROWE FURNITURE CORPORATION 1179
5. Wickline's other actions 14
Thereafter Wickline complained to the men on production line 5 that James E.
Conner was holding up production. Wickline also harassed and annoyed some of
the union committeemen. On one occasion Wickline's harassment resulted in Union
Committeeman Robert Altice and Wickline shoving each other. On about three
occasions the union committeemen harassed by Wickline complained to Division
Foreman Tingler. On these occasions Tingler called Wickline into his office and
told him that he was being too rough on the men, and warned him to be careful,
that the Respondent had to treat him the same as any other employee, that he
(Wickline) had to follow the rules on company property, but what he did off com-
pany property was his own personal business. Tingler told Wickline that it would
be a feather in the Union's cap if he were discharged.
On several occasions Wickline contacted Personnel Manager Kindred in the
latter's office. On one occasion Wickline carried a union handbill into Kindred.
Kindred credibly testified that Wickline asked if there was not some way he could
help the Company get rid of employees Charles Field and Clyde Brown, and, ac-
cording to Kindred's credited testimony, Wickline "posed the question if he would
get them into a fight would we see that he'd get his job back." Kindred told Wick-
line that the answer was "no."
6. The January 4 discharge of employee Conner 15
On January 4, 1963, employee Conner was unable to keep up with the production
pace of the line, and received help from other employees on several occasions. On
one occasion he was four operations behind. At the end of the day Foreman Conner
told employee Conner that he was going to have to let him go, that Wickline and
Hill had complained about his holding up production.
Shortly after James E. Conner was discharged on January 4, 1963, allegedly for
failure to be able to keep up with production, Foreman Fromille told Wickline, "I
told you I'd get rid of him."
7. Miscellaneous concluding facts and conclusions is
Production line employees, in general, from time to time needed assistance to
maintain this work at the pace set for the production line. Production line em-
ployees, in general, also have difficulties in maintaining the pace set for the produc-
tion line on the occasions of style changes. Since his employment in 1955, during
the time prior to the advent of the Union (circa October 30, 1962), and thereafter,
James E. Conner had more difficulty than the other employees on his production line
in maintaining the pace for the line.
The General Counsel's apparent contention is that Respondent was motivated
in its discharge of James E. Conner by its desire to rid itself of a union adherent.
Respondent's contention on the other hand is that it was not motivated by union
considerations but by the fact that James E. Conner was unable to keep up with
the production pace.
Respondent's foreman, James R. Conner, testified to the effect that he was
motivated and discharged James E. Conner because of his inability to keep up
with production. I did not find Foreman Conner to be a credible witness in this
regard On direct examination Foreman Conner testified in effect that Department
Supervisor Fromille had nothing to do with the discharge action on January 4, 1963.
On cross-examination he admitted that Fromille participated in some of the dis-
cussion on January 4, 1963, concerning James E. Conner's discharge.
I am convinced from the foregoing and from my careful observation of Foreman
Conner's demeanor as a witness that he attempted to hide the fact that Fromille
participated in the discussions on January 4, 1963, concerning James E. Conner's
discharge, that he otherwise did not frankly and forthrightly testify as to the effect of
the setting of various speeds on the line, and that he did not frankly and forthrightly
testify as to James E. Conner's efficiency at work. Neither Foreman Conner, nor
14 Based on a composite of credited testimony of Wickline, Tingler, and Kindred.
15 Based upon a composite of the credited testimony of James R. Conner and James E.
Conner Employee Hill testified that James E. Conner was behind three operations
James E Conner testified that on this occasion he was working on one "panel" and there
were three other panels in the stall I find Foreman Conner's testimony that James E
Conner was four operations behind to be reliable and so credited.
10 Based on a composite of the credited testimony of James E Conner and Hill.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's other witnesses, Wirtz, Moore, Duffy, or Stewart, compared James E.
Conner's efficiency at work on the new "thin-line" style furniture with his efficiency at
comparable style-change times. I do not find Foreman Conner to be a reliable witness
and discredit his testimony as to the reason for James E Conner's discharge and as
to his efficiency. I do not find value in Wirtz', Moore's, Duffy's, or Stewart's testi-
mony as to James E. Conner's getting more and more behind, inasmuch as their
testimony does not reveal that it touches upon a comparison of his ability at other
style-change times.17 I am convinced that James E. Conner was a truthful witness
and credit him to the effect that he was improving in his work on the "thin-line"
style furniture. It is also clear from Hill's credited testimony that other employees
on the line were having some problem with the new thin-line style at the time of
James E Conner's discharge
In conclusion I find that Respondent's motivating reason for James E. Conner's
discharge is highlighted by Fromille's statements to Wickline,18 both before and
after Conner's discharge. Thus, shortly after Respondent had gained knowledge
of Conner's union adherence, Department Supervisor Fromille told Wickline that they
would get rid of the union adherents, and asked Wickline in effect to help build
a record against James E Conner so that he could be discharged. After Conner was
discharged, Fromille told Wickline in effect that he had accomplished what he had
set out to do, the discharge of Conner. I thus find and conclude that James E
Conner was discharged because of his union adherence but on the pretext of inability
to keep up with production, a problem Respondent had lived with since 1955 19 I so
find and conclude that Respondent discriminatorily discharged James E. Conner on
January 4, 1963, in violation of Section 8(a)(3) and (1) of the Act.
B. The discriminatory discharge of James E. DeBoard 20
James E. DeBoard, who had been continuously employed by the Respondent
since April 20, 1953, was discharged by the Respondent on February 5, 1963.
DeBoard was one of the union committeemen listed on the telegram sent to Re-
spondent by the Union on October 30, 1962. On December 19, 1962, DeBoard
was a "minute" late in returning to his work station after a coffee break. Line
Foreman McClure told DeBoard that he wanted DeBoard to get back on the line
and did not want him late any more, that he was tired of DeBoard's being late.21
Several weeks before February 5, 1963, Department Supervisor Fromille told
Wickline to strike up a conversation on the job with Union Committeeman De-
Board, that he would attempt to overhear the conversation, and that the Respondent
would have something on DeBoard. Wickline thereafter went to DeBoard's work
station and tried to talk to DeBoard about the Union DeBoard told Wickline
that he could not talk about the Union on the job, that if he wanted to talk about it,
to see him after work While Wickline was attempting to talk to DeBoard, Depar-
ment Supervisor Fromille had approached close to DeBoard's work station, and
was looking in the direction of the work station
Thereafter on January 17, McClure told DeBoard that his work was no good.
that he was building nothing but , that he was in trouble, and that DeBoard
was going out the door if he did not straighten up 22 Again on January 29, 1963,
It is clear , however, with the increased production of "thin -line" style furniture
toward the end of his employment that his production compared unfavorably with produc-
tion immediately prior thereto on the style with which lie was familiar
18Fromille ' s statement concerning DeBoard and the other union adherents lends addi-
tional weight to this conclusion
'IT see no merit to Respondent ' s apparent contention that the employee who replaced
employee Conner was more efficient Respondent had put up with the inefficiency of em-
ployee Conner since 1955 and as found discharged him for union considerations and
not for any other reason
20 Based upon the credited testimony of James E DeBoard and Wickline
i The credited testimony of DeBoard reveals that 'McClure ' s conversations on Decem-
ber 19 , 1962 , January 17 and 29 , 1963, were more pungent and of a more ribald nature
than described herein In essence McClure used terms describing DeBoard's posterior, and
described the type of work being performed in a term sometimes descriptive of human
waste products
22 McClure ' s complaints on January 17 and 29 and February 4 and 5, 1963, were to the
effect that DeBoard had left "ears" in the upholstered material "Ears" described the
irregular hunching of cotton , creating an irregular shape The record reveals that on the
occasions that McClure criticized DeBoard "ears" existed I credit DeBoaid ' s testimony
to the effect that he was performing his work as he always had and am convinced under
ROWE FURNITURE CORPORATION 1181
McClure spoke to DeBoard about his work, told him that he was in trouble and
was going out the door. DeBoard told McClure that he was glad he had told him,
that he would see what the Labor Board could do. McClure made a statement,
and DeBoard told him that he did not need to do that because there was a witness
to what had been said. On February 4, McClure again spoke to DeBoard in the
same manner about his work. On February 5, McClure told DeBoard to "regulate"
"ears" on two pieces of furniture, and brought a third piece of furniture to DeBoard
for reworking.23 DeBoard placed the items of furniture on the line and while wait-
ing for the furniture to move on the production line to his work station continued
work on his regular operation. McClure came to DeBoard and stated that he was
tired of getting chewed out over him,24 that he (DeBoard) had caused him to get
such "chewings" more than any other man. DeBoard told McClure that he was
going to do what he (McClure) had told him to do, and that he wanted McClure to
quit riding him McClure stated that he had been riding DeBoard and was going
to continue to ride him. DeBoard told McClure that this was all right, that he
knew where McClure hung out. McClure told DeBoard that he could have fired
him 3 years ago. DeBoard told McClure that if he had fired him he would have
done him a favor.
Later that day, around 9 a.m., Personnel Manager Kindred went into Division
Foreman Tingler's office. Line Foreman McClure, Tingler, and Fromille weie
present. McClure, who apparently had been leaving, turned back and there com-
menced a discussion concerning DeBoard. McClure reported what had happened
that morning with respect to DeBoard.25 McClure was told by Tingler, Kindred,
or Fromille to write a statement summarizing what he had reported. His statement
is herein set out:
2-5-63 Line 3
9.00 AM
6090 Dav had wrinkles in ear DeBoard had regulated it and left holes in it.
He said I was picking on him had been on him five times already. I told him
I was going to stay on him until it was right. He said he wouldn't quit but if
he lost his job he knew where I hung out, and that he would get me.
He also said I had told him what was wrong and to shut up.
B. D. MCCLURE.
Around 3:30 Department Supervisor Sam Fromille called DeBoard into his office
and asked what had happened between McClure and DeBoard that day. DeBoard
related his version of what had happened. Fromille stated that this was going to
cost DeBoard his job. DeBoard asked if he were fired and Fromille said yes, that
he was.
DeBoard then went to see Kindred and asked to speak to Plant Superintendent
Strubler, and subsequently saw Strubler. DeBoard told Strubler his version of what
had happened. Strubler stated that Fromille had said that DeBoard had threatened
McClure and told him to shut up. DeBoard told Strubler that he had not threatened
McClure and had not told him to shut up. Strubler stated that he did not think
there was "too much" he could do, asked DeBoard (who had gotten up to leave),
to sit back down. Strubler left for a moment, returned and stated that McClure
and Fromille had said that DeBoard had threatened McClure and had told him to
shut up. DeBoard again denied threatening McClure and telling him to shut up.
On the same day, or shortly thereafter, Department Supervisor Fromille spoke to
Wickline about the discharge of DeBoard. Fromille said, "I told you we'd get rid of
him. That's one less that we have to fool with . . I said I would get rid of
him a long time ago when we had a little argument Now I have got rid of him."
Wickline asked who was going to be next. Fromille would not tell Wickline but
said, "We'll get them."
The Respondent contends that DeBoard was fired for insubordination Personnel
Manager Kindred testified that the Respondent was surprised that Line Foreman
the circumstances, that McClure was being more attentive in his supervision as a result of
having been told on October 30, 1962, about the union campaign, the union committeemen,
and the course of action he could and could not take
J As to all incidents, except the last DeBoard regulated the "cars
21 The credited testimony of DeBoard reveals McClure's language to have been more
pungent and ribald
25 Kindred, the only witness who testified as to McClure's report, testified that McClure
said DeBoard had said "that lie knew where he (McClure) hung out." Kindred's testimony
was not to the effect that he heard McClure state that DeBoard said that "lie would get
him" (McClure) but was to the effect that the written statement so reflected.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McClure had not fired DeBoard on the spot . Kindred testified to the effect that
around 9 a .m. on February 5, McClure reported the incident with DeBoard, and
that there were conferences between McClure, Tingler, Fromille , and himself and
later between Tingler, Fromille , Strubler, and himself. Kindred's testimony reflected
that he only knew generally what was said , and he revealed a hesitancy to be specific
as to what was said, but as to some of the facts testified to what McClure's written
report stated 26 I am convinced that Kindred's testimony as to the conference is
not complete , and in view of his hesitancy to verify the statements in McClure's
written report as having been said , I can find little basis to rely on the written report,
except to the extent that the report reflects that McClure reported that DeBoard had
said that if he (McClure ) kept riding him, and if he lost his job , he knew where
McClure hung out. In view of Fromille 's active attempt with Wickline to trap
DeBoard into a discharge situation, I am also convinced that such investigation as
Respondent made through Fromille concerning the DeBoard -McClure incident was
not made in good faith but was made with the idea of finding a pretext to discharge
DeBoard for his union activity . Although Kindred testified that the Respondent was
surprised that McClure had not discharged DeBoard on the spot , it went through the
motions of an investigation . As to Respondent 's evidence of employee discharges
for cases of clear insubordination in the past I do not see that such evidence sup-
ports its position herein . Tingler's verbal warnings , after repeated incidents to Wick-
line concerning Wickline's harassment of union men reveals that the warnings to
Wickline were surface warnings , and of little real meaning and thus that union con-
sideration currently constituted a factor in discipline . In addition , although De-
Board 's statement to McClure does imply a threat to get McClure , the Respondent's
report by McClure revealed that it was to the effect that if McClure continued
to ride him (DeBoard ), and if he ( DeBoard ) lost his job , he knew where McClure
hung out. Under all the circumstances , I am convinced that Department Supervisor
Fromille had finally found the necessary pretext to discharge DeBoard , and so dis-
charged him for his union activity , but on the pretext that he had been insubordinate.
I conclude and find that Respondent discriminatorily discharged James E. DeBoard
on February 5, 1963, in violation of Section 8(a)(3) and ( 1) of the Act.
The Events of May 28, 1963 27
On May 28, 1963, Division Foreman Tingler asked employee Wickline if he were
going to the union meeting that night . Wickline stated that he had given the idea
some thought. Tingley stated that "we thought we might get a couple of guys to
go." Later Tingler asked Wickline to work some overtime. Around 5 p.m. Su-
perintendent Tingler approached Wickline and wanted to know if he would "take and
go to the meeting that night ." Wickline stated that he would if he could have some-
one to go with him. Tingler asked if Wickline could get someone to go with
him and Wickline replied that he could not. Division Foreman Tingler then talked
to an employee named Stewart Saunders . Thereafter Saunders and Wickline, who
were supposed to work until 6:30 p .m. asked if they could get off work at 6 p.m.
and they got off work at 6 p .m., went to their homes, cleaned up, and later went
down to where the union meeting was being held. The union organizer would not
allow Wickline and Saunders to attend the meeting . Wickline and Saunders then
went to Tingler 's home and reported what had happened . Respondent 's Division
Foreman Tingler stated that he could not understand what had happened since the
union pamphlets stated that it was an open meeting . Wickline and Saunders named
some of the employees they had seen there. One of the employees named was
Calvin Wirtz . Tingler stated that he had asked employee Wirtz earlier that day to
go out but that Wirtz had said he was feeling "kind of bad" and did not know whether
he would make it or not 28
In connection with Wickline's known propensity of relating to the Company var-
ious facts relating to union activity , I conclude and find that by the foregoing,
"811IcClure and Fromille did not testify at all in this proceeding , and Strubler and
Tingler did not testify as to the incident
"'Based on W ickline's credited testimony . Tingler did not testify specifically to this
event although he did testify that he followed company policy as set out by Personnel
Manager Kindred . To the extent that his testimony may be intended to contradict Wick-
line ' s testimony , I discredit Tingler.
28 Wirtz was not examined as to a specific conversation with Tingler. He did, however,
testify that he did not go to the meeting at the request of the Company I credit Wickline
to the statement concerning Wirtz attributed to Tingler However, I credit Wirtz to the
effect that this was not the motivating reason he went to the union meeting
ROWE FURNITURE CORPORATION 1183
Respondent urged and requested employees to attend the union meeting on
May 28, 1963, for the purpose of having said employees inform the Respondent
concerning the union activities of its employees and of union action related thereto.
This conduct constituted interference with the right of the employees to engage in or
to refrain from engaging in concerted activity for their mutual aid and protection,
in violation of Section 8 (a) (1) of the Act 29
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that Respondent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a) (3) and (1) of the Act by
the discharge of James E. Conner and James E. DeBoard, it is recommended that
Respondent offer to each of them immediate and full reinstatement to their former
or substantially equivalent position, without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of earnings they may have
suffered by reason of such discrimination by payment to each of them a sum of money
equal to that which they normally would have earned as wages from the date of
their discharge to the said offer of reinstatement, less their net earnings during such
period, with backpay computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Co., 90 NLRB 289, 291-294, and with interest thereon
as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the Respondent were of a character
which go to the very heart of the Act, it shall be recommended that the Respondent
cease and desist therefrom and cease and desist from infringing in any other manner
upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Upholsterers' International Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of their
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. By discriminating in regard to the hire and tenure of employment of James E.
Conner and James E. DeBoard, thereby discouraging membership in or activities
on behalf of a labor organization, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 30
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, it is recommended 31 that Respondent, Rowe Furniture
Corporation, its officers, agents, successors, and assign, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Upholsterers' Inter-
national Union of North America, AFL-CIO, or in any other labor organization of
its employees, by discharging or otherwise discriminating in regard to the hire or
29 Southern Coach & Body Co , Inc , 135 NLRB 1240.
ao In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order "
11 In the event that this Recommended Order be adopted by the Board, the word "Ordered"
shall be substituted for the word "Recommended."
1184 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
tenure of employment or any terms or conditions of employment of any of its
employees.
(b) Urging or requesting its employees to attend union meetings for the purpose
of informing the Respondent of union activities or union action taken by its em-
ployees or by Upholsterers' International Union of North America, AFL-CIO.
(c) In any other manner interfering with, restraining, or coeicing its employees
in the exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection as guaranteed by Section 7 of the Act, and to refrain
from any and all such activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer to James E. Conner and James E. DeBoard immediate and full rein-
statement to their former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges.
(b) Make whole James E. Conner and James E. DeBoard for any loss of pay
they may have suffered by reason of the discrimination against them, by payment
to each of them of a sum of money equal to the amount they normally would have
earned as wages from the date of his discharge to the date of the Respondent's offer
of reinstatement in the manner set forth in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents,
for examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records relevant or necessary
to the determination of the amounts of backpay due and to the reinstatement and
related rights provided under the terms of this Recommended Order.
(d) Post at its premises in Salem, Virginia, copies of the attached notice marked
"Appendix " 32 Copies of said notice, to be furnished by the Regional Director for
the Fifth Region, shall, after being signed by the Respondent's representative, be
posted by Respondent immediately upon receipt thereof and maintained by it for 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 Fifth Region, in writing, within 20
days from the date of this Recommended Order, what steps the Respondent has
taken to comply herewith.33
39 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order "
1' In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read. "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent Chas taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL offer James E. Conner and James E. DeBoard immediate and full
reinstatement to their former or substantially equivalent positions without prej-
udice to their seniority and other rights and privileges and make them whole for
any loss of pay they may have suffered by reason of the discrimination against
them
WE WILL NOT discourage membership in or activities on behalf of Upholster-
ers' International Union of North America, AFL-CIO, or in any other labor or-
ganization of our employees by discharging or otherwise discriminating in re-
gard to their hire or tenure of employment or any term or condition of
employment of any employee
WE WILL NOT urge or request our employees to attend union meetings for the
purpose of informing us of union activity or union action of our employees or
of the Upholsterers' International Union of North America, AFL-CIO.
AZTEC CERAMICS CO., A DIV. OF THE TEXSTAR CORP. 1185
WE WILL NOT in any other manner interfere with, restrain, or coerce any
of our employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection as guaranteed
by Section 7 of the Act, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of Upholsterers' International Union of North America, AFL-
CIO, or any labor organization.
ROWE FURNITURE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provisions.
Aztec Ceramics Company, a Division of the Texstar Corpora-
tion and International Brotherhood of Operative Potters,
AFL-CIO. Case No. 23-CA-1270. January 21, 1964
SUPPLEMENTAL DECISION AND ORDER
On September 28, 1962, the Board issued its Decision and Order in
the above-entitled proceeding I in which it found, in agreement with
the Trial Examiner, that the Respondent had engaged in certain un-
lawful conduct and ordered an appropriate remedy. The Board also
agreed with the Trial Examiner that the record did not establish that
Respondent had discriminated as alleged with respect to the layoff
and recall of employee Ortega and ordered dismissal of the complaint
with respect thereto.
Thereafter, on June 13, 1963, the U.S. Court of Appeals for the
District of Columbia Circuit handed down its decision enforcing the
Board's Decision and Order with respect to the unfair labor practices
found, but vacating the Order as to Ortega and remanding that
portion of the case "for consideration of the claims as to Ortega's
reinstatement" in light of certain record evidence. Accordingly, we 2
have reviewed the record and particularly the evidence referred to
by the court.
1138 NLRB 1178.
2Pursuant 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 [Members Leedom, Fanning,
and Brown].
145 NLRB No. 106.
734-070-64-vol. 145-76