Supreme Bedding and Furniture Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1951

93 N.L.R.B. 1616 (N.L.R.B. 1951)

1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPREME BEDDING AND FURNITURE MANUFACTURING COMPANY, INC..
and UPHOLSTERERS ' INTERNATIONAL UNION OF NORTH AMERICA,
AFL. Case No. 15-CA-210. April 23, 1951
Decision and Order
On November 20, 1950, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. The Board has re-
viewed the rulings made by the Trial Examiner at the hearing and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board 1 has considered the Intermediate Report, the
exceptions and briefs, and the entire record in this case and hereby
adopts the findings 2 and conclusions of the Trial Examiner with the
additions and modifications set forth below, but overrules the Trial
Examiner's conclusions and recommendations.
1. We disagree with the Trial Examiner's conclusion that the testi-
mony of employee Herbert E. Antley discloses no conduct by the Re-
spondent which is violative of the Act. Antley testified, without
refutation, that on July 12, 1949, Superintendent Homan interrogated
him as to his union views, and that on the following day, after the
Respondent's employees had held their union meeting at the Labor
Temple, Homan remarked to him, "Herb, I didn't think you was going
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Murdock and Styles].
2 The Trial Examiner concluded that it is Improbable that Homan , the Respondent's
superintendent , inquired of employee Rube B Thorne just after the latter was laid off,
"Rube , what advantage do you think the Union will be to you here?" In forming this
conclusion the Trial Examiner appears to have relied upon ( a) his preliminary finding
that Thorne ' s layoff was not discriminatory and (b ) his opinion that Homan is "alert,"
"intelligent ," has "considerable knowledge of law," and that a person with such
"perspicacity" would not likely have so "needlessly disclosed the Respondent 's motivation"
[ i. e., had Thorne ' s layoff been discriminatory ]. We disavow the foregoing reasoning.
The Board does not consider the existence of independent 8 (a) (1) interrogation
dependent upon a finding of 8 (a ) ( 3) discrimination , involving the employee to whom
the interrogation allegedly was directed . We, moreover , do not subscribe to the Trial
Examiner's generalization that persons with Homan's attributes would be more or less
likely to disclose motivation for unlawful conduct. In any event , the record does not
establish that Homan is an expert in labor law, but, on the contrary , shows that by his
own admission his knowledge of labor law and rights under the Act was "very hazy."
The Trial Examiner also concluded that the foregoing interrogation , even if made, was
only an isolated incident and, hence , not coercive . We disagree , in view of our other
findings of unlawful conduct herein, that this was an isolated incident . We find it
unnecessary, however, because of our other 8 (a) (1) findings herein, to make a factual
determination as to this incident , and shall not make a finding of unlawful conduct
based thereon.
93 NLRB No. 270.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC.1617
to vote for the union." We find that such interrogation and comment
by Homan are per se violative of Section 8 (a) (1) of the Act.,'
2. The Trial Examiner found that employee Rube B. Thorne was
laid off, as contended by the Respondent, for economic reasons. We
disagree with this finding. The General Counsel's proof established
(a) the leadership by Thorne and employee Winfred H. Hackworth
in the union movement at the Respondent's plant; (b) the Respondent's
awareness of the Union's progress and the activities of Thorne and
Hackworth; (c) the Respondent's opposition to the Union as evidenced
by Homan's "water cooler" address to the employees,4 Homan's 8 (a)
(1) interrogation and comment to employee Antley, and his attempt to
curb the union activities of Hackworth, as more fully explained here-
inafter; (d) Thorne's precipitate layoff without any advance notice;
and (e ) the timing of Thorne's layoff to coincide with the height of
the union drive, and its occurrence within 5 days from the start of the
Union's organizing activities. The persuasive evidence of discrimi-
nation thus adduced by the General Counsel established a strong prima
facie case of discrimination, and the duty of going forward with pro-
bative evidence to show, from information in the Respondent's posses-
sion , that the layoff was not discriminatory but for cause, thereby
shifted to the Respondents •
The sole evidence introduced by the Respondent to support its claim
that Thorne's layoff was an economic measure necessitated by lack of
business consisted of the oral testimony of Homan and Respondent's
Exhibit 1, which merely contains payroll records for the period begin-
ning May 24 and ending August 31, 1949. By neglecting to produce
business records,, such as production schedules and orders which would
have reflected current and future production demands, the Respondent
failed sufficiently to go forward with evidence in its possession neces-
sary to support its defense.? The Trial Examiner should have so
found.
We do not agree with• the Trial Examiner 's conclusion that Re-
spondent's Exhibit 1 corroborates Homan's testimony." Thorne was
8 Standard - Coosa-Thatcher Company, 85 NLRB 1358.
4 Hackworth testified that Homan had told the employees on this occasion that he
personally favored a union but that the Respondent was opposed to a union . Homan,
in his testimony as a witness for the Respondent , stated that he had announced to the
employees that he and the Respondent were neutral , but that he did not think it was
then a "good time to have a union."
i Sioux City Brewing Company, 82 NLRB 1061 ; Universal Camera Corporation, 79
NLRB 379 , enf 179 F 2d 749 (C. A 2), reversed on other grounds , 71 S Ct. 456.
6 Respondent is a small furniture manufacturing concern in Monroe, Louisiana, which
sells almost its entire output to a retail store in the same locality which is owned by
the Respondent's president.
J J Stanton, 35 NLRB 1100
The Trial Examiner found additional support for Homan's claim that the Respondent's
business was slackening in Hackworth ' s testimony to the effect that he knew that business
was bad we do not agree with the Trial Examiner that Hackwoith 's testimony in this
respect related to a period material to the events herein. Moreover , there is nothing
943732-51-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off on July 15, 1949. Respondent's Exhibit 1 reveals the follow-
ing significant data : During the period from June 1 to June 21, 1949,
the Respondent's employees worked an average of 1,109 hours per
week, with average weekly payroll costs of approximately $888; in
the ensuing 3 weeks, June 22 to July 13, 1949, these employees worked
an average of 1,179 hours per week, with average weekly payroll costs
of $915. To the extent that number of hours worked and payroll costs
reflect busy or slack business periods, these statistics clearly indicate
that the Respondent was busier during the 3 weeks preceding Thorne's
layoff than during the corresponding period immediately before then.
Moreover, Respondent's Exhibit 1 indicates that during the period
following Thorne's layoff the Respondent was even busier than before.
Thus, during the 6-week period before the layoff, the Respondent's em-
ployees worked an average of 1,142 hours per week, with average
weekly payroll costs of approximately $902. In the corresponding
period following Thorne's layoff, the weekly average number of hours
worked was 1,167 and the average weekly payroll costs were approxi-
mately $904.
In our opinion, the foregoing statistics do not in any respect
corroborate Homan's testimony that the Respondent's business had
fallen off, but appear directly to contradict his testimony. The Trial
Examiner's opposite conclusion is based on his observations that the
Respondent employed 30 employees during the week ending July
13, 1949, as compared with 27 employees for the week ending August
31, 1949; less hours were worked in the upholstering department,
where Thorne had been employed, after Thorne's layoff than before;
and no employee was hired to replace Thorne. We perceive no spe-
cial significance in the Trial Examiner's comparison of numbers of
people on the payroll. Had he selected for this purpose the payroll
for any week covered by Respondent's Exhibit 1 preceding the week
ending July 13, he would have found that there were no more than
28 employees listed. Had he selected from the exhibit the payroll for
any week after Thorne's layoff except the week ending August 31,
he would have found that there were 28 or 29 employees listed. We
therefore cannot rely upon the Trial Examiner's comparison, espe-
cially in view of the more revealing picture furnished by a con-
sideration of the exhibit as a whole. We also cannot accept the
Trial Examiner's conclusion as to the number of hours worked in
the upholstering department. His computation excludes a considera-
tion of the additional time worked in this department after Thorne's
in the record to show that Ffackworth, who had been a production worker in the
Respondent ' s plant , possessed firsthand information which would have enabled him to
form an independent judgment concerning the status of the Respondent 's business
Accordingly , any opinion he may have expressed on this subject was hearsay and without
probative value.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC.1619
layoff by Homan and employee Richmond, although Homan testified
that he worked at upholstering after Thorne's layoff, and the record
shows that Richmond, who had formerly worked only part time as
an upholsterer, worked full time as an upholsterer after Thorne left.
The Trial Examiner also mistakenly concluded that Thorne was.
not replaced. Although he noted that employee Foster was advanced
from spring-up to upholstering work following Thorne's layoff hee
did not construe Foster to be a replacement. We disagree with his
construction, for a laid-off employee may be as effectively replaced,
as here, by the transfer of an employee to perform his duties as
he would be by the hiring of a new employee for this purpose.
We further are unable to credit, as did the Trial Examiner, Homan's
testimony that Thorne was laid off because his pay with overtime was
one of the highest on the payroll, and that Thorne would not have
worked without overtime. In crediting this assertion, the Trial Ex-
aminer does not mention Thorne's testimony that on July 13, 1949,
he had been informed by Richmond, on orders from Homan, that he
was not to work any more overtime. Neither Homan nor Richmond
denied the issuance and communication of this order to Thorne. Thus,
2 days before Homan laid off Thorne because of his alleged belief
that he would not work without overtime, Homan had already or-
dered the elimination of Thorne's overtime, and Thorne had not re-
signed. Accordingly, we are convinced that Thorne's overtime was-
not considered by Homan as a factor in the layoff.9
In view of all the foregoing circumstances, we conclude that the,
Respondent has failed to establish by probative evidence that Thorne's.
layoff was for cause, and further find that the evidence on the whole-
record preponderates in favor of the conclusion that Thorne's employ.
ment was terminated because of his union sympathies and activities,
and that the Respondent thereby violated Section 8 (a) (1) and
8 (a) (3) of the Act.10
3. The Trial Examiner found that Winfred H. Hackworth was
lawfully discharged for nondiscriminatory reasons. We disagree.
We could reach a conclusion of nondiscrimination only by ignoring
the strength of the prrima facie case of discrimination established by
the evidence, by disregarding certain cogent facts clearly established
0 Further doubt is cast upon the reliability of Homan's testimony in this respect by the
fact that several weeks before Thorne 's layoff, he had ordered Thorne' s overtime reduced
to a maximum of 5 hours per week . Thorne did not resign then despite this drastic
curtailment of overtime.
10 In concluding that Thorne was laid off for economic reasons the Trial Examiner
stated, "The apparent willingness of the Respondent to employ Thorne as an upholsterer
at some time thereafter, conduces to negative the idea he was laid off because of his.
union activities ." We find no probative evidence to show such "apparent willingness"
by the Respondent to reemploy Thorne. The only evidence in the record bearing ow
this circumstance is Thorne's testimony to the effect that he had heard that Homan
had stated to the Board's field examiner that he would reemploy Thorne. Such testimony
provides no legal basis for the foregoing conclusion by the Trial Examiner.
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the evidence, and by crediting certain implausible testimony ad-
duced by the Respondent in explanation of the circumstances leading
up to Hackworth's discharge.
As noted above, Hackworth and Thorne were the leaders of the
union movement among the Respondent's employees. Of the two,
Hackworth was the more outspoken advocate for the Union, and its
most vigorous campaigner. His discharge on July 15, 1949, was vir-
tually simultaneous with Thorne's discriminatory layoff.
The record shows that Hackworth had on several occasions before
the start of the union campaign on July 11, 1949, criticized employees
Parnell and Scarborough because of their overtime work. Parnell in
turn had complained to Homan on two or three occasions that Hack-
worth was "nagging" him about his overtime, and Scarborough had
complained about this once several months before July 11. Signifi-
cantly, Homan had not considered these complaints of sufficient con-
sequence to reprimand Hackworth or even to discuss them with him.
On July 14, however, after he had received complaints against Hack-
worth from employees Parnell, Embry, and Eppinette, Homan held a
meeting in his office attended by 25 of the approximately 28 Respond-
ent's employees. After confronting Hackworth before the as-
sembled employees with a charge that there were complaints against
him, Homan warned him that he would be discharged if the situation
were not corrected. At the same time Homan suggested to Hackworth
that he should resign because of the ill feeling on the part of other
employees toward him. Because of their intimate connection with
Hackworth's discharge, we believe that the circumstances surrounding
the July 14 meeting, the events which transpired on this occasion, and
the aftermath of the meeting warrant close scrutiny.
Homan did not testify as to the substance of the complaints made
by Parnell, Embry, and Eppinette just before the July 14 meeting.
He admitted, however, that the Union had something to do with them,"-
and that the complaints were more numerous after the start of the
union drive than before. It is noted that these employees, as well as
Scarborough, were all opposed to the Union, a fact of which Homan
was cognizant.- Homan's testimony was not explicit as to what was
"Parnell testified that he had complained to Homan that Hackworth was "nagging"
him about the overtime. Embry had complained that Hackworth had called him "yeller"
and a "company man." Epplnette had died before the hearing and no testimony concern-
ing the nature of his complaint was available Although Homan indicated that Scar-
borough was not one of the employees who had complained at that tine ; Scarborough
testified that he had complained to Homan that Hackworth had tried to solicit his mem-
bership in the Union while lie and Hackworth were drinking on a Friday afternoon at a
bar to which they had gone to cash their checks
32 Homan's awareness of this circumstance is established by the complaints voiced by
these employees before and during the July 14 meeting , Homan ' s knowledge of Embry's
open opposition to the Union at the Labor Temple meeting , and his admission that he
knew of the fear of some of the employees about losing their jobs if the plant were
unionized.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC.1621
said by all persons at the meeting, but he specifically recalled a remark
by Embry that Hackworth "had been telling around the plant that he
[Embry] was yellow, that he was a company man, that he was scared
or something . . ." The testimony of other witnesses as to what was
discussed at the meeting is even more revealing. Embry testified that
he had stated that Hackworth had called him "yeller," and that Par-
nell and Eppinette had commented that "He [Hackworth] had been
talking about the Union and agitating them too." Hackworth testi-
fied that Eppinette had remarked to him, "We are old people; we can't
get a job like you can. You are young if the Union comes in
here all these old people will be out of work." Hackworth is corrobo-
rated in this respect by the testimony of employee Jackson,13 who
appeared as a witness for the Respondent, and by employee Antley.
It is clear from the foregoing that the.complaints against Hack-
worth came from a group of employees who were opposed to the Union,
and that their complaints were fundamentally directed against Hack-
worth's union activities and only in part, if at all, against any con-
duct by Hackworth which was not related to his union activities. It
is also evident that the real nature of the complaints against Hack-
worth was manifest to Homan before he called the July 14 meeting.
We believe, therefore, in view of Homan's awareness of these facts,
his past indifference and inaction following the complaints against
Hackworth made before the advent of the Union, and the unusual pro-
cedure of thrashing out what was claimed to be a personal matter be-
tween Hackworth and four employees in the presence of virtually the
entire working force, that Roman's purpose in holding the meeting
was to counter the Union's progress. This was done by discrediting
its leader in the presence of all the employees, and by curbing his union
activities, for, when Homan threatened to discharge Hackworth for
continuing his past conduct, his injunction necessarily was directed to
the union activities about which the complaints were made 14 Thus,.
Homan further disclosed his opposition to the Union and his hostility
toward Hackworth because of his union activities.
Parnell testified that immediately after the meeting Hackworth
threatened to assault him if he were to complain again. Although
Parnell reported this threat to Homan at once, Homan did not discuss,
the matter with Hackworth or take any action against him that day.
- 19 Jackson was specifically credited by the Trial Examiner.
14 we do not agree with the Trial Examiner's observation that Hackworth ' s "petulance"
In expressing himself in favor of the Union justified Homan ' s warning that he would
be discharged if he did not discontinue such conduct The only evidence to support the
Trial Examiner ' s characterization of Hackworth ' s prounion arguments , is the name-
calling to which he resorted. We do not consider the language employed by Hackworth
on these occasions to have been so obnoxious as to warrant the disciplinary measure
invoked by Homan. Employees in an industrial plant do not always resort to polite,
parlor room language during the course of a heated union campaign . Majestic Metal
Specialities, Inc., 92 NLRB No. 265.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following morning, July 15, Parnell reported for work in a
nervous and weak condition and attributed his infirmities to worry
over Hackworth's threat. Homan thereupon communicated by tele-
phone with Durrett, the Respondent's president, and, following his
conversation with Durrett, laid off Thorne and discharged Hackworth
in that order.
Homan related in his testimony that when he spoke to Durrett,
who had just returned from a 2-week trip to Chicago, he demanded
Durrett's permission to discharge Hackworth, and threatened that if
such permission were not given that he would resign and discharge
his "key men." 15 Durrett's version of their conversation is that Ho-
man had informed him about the Union's organizing activities, and
that Hackworth was "arguing, fussing, and going on with different
employees, old employees . . . , and had gotten Mr. Parnell sick, .. .
and he [Homan] didn't know what to do." Durrett testified that he
then directed Homan to discharge Hackworth.
Assuming, arguendo, that Hackworth had threatened Parnell and
that the latter was affected as he indicated, Members Murdock and
Styles are nevertheless convinced that Hackworth was not discharged
for that reason, but for his union activities, and that the threat to
Parnell was used as a pretext by the Respondent to obscure the real
reason for his discharge. The record shows conclusively that the
Respondent left the entire management of its plant to Homan and
that he had absolute authority to discharge employees. According
to Homan he had once before summarily discharged Hackworth for
a reason considerably less serious than the asserted flaunting of the
July 14 order and warning of discharge for its breach. Had Homan
therefore intended to discharge Hackworth for threatening Parnell, i
it is reasonable to believe that he would have done so directly after
Parnell's report which came on the heels of Homan's order. More-
over, had Homan resolved to discharge Hackworth upon observing
Parnell's condition on July 15, it is likely that he would have done
so on his own initiative and without bargaining for Durrett's consent
by putting his own job in the balance, as well as the jobs of his key
men. We are impressed with the improbability of Homan's testi-
mony, and are satisfied that Homan had not decided to discharge
Hackworth for his threat to Parnell before communicating with Dur-
rett. We are also persuaded from Homan's and Durrett's accounts
of their conversation that Homan was not so much concerned with
Hackworth's treatment of Parnell as with his desire to appease the
antiunion employees by discharging Hackworth in order to defeat the
Union.16
3o Apparently, Homan referred to employees Parnell, Embry, Eppinette , and Scarborough.
18 Homan's intention in this respect is demonstrated by his unqualified testimony that
he was determined to get rid of Hackworth to avoid losing his key men.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC. 1623
In our opinion Hackworth's discharge was the outcome of an agree-
ment reached by Homan and Durrett to terminate Hackworth's em-
ployment because of his union activities and particularly because of
the pressure exerted upon Homan by the Respondent's antiunion
employees. We believe that Thorne's discriminatory layoff and Hack-
worth's discharge, were integral elements of a single' plan to defeat
the Union by ridding the Respondent's plant of both of the ring-
leaders in the union movement. We base our opinion upon a con-
sideration of the discriminatory nature of the Respondent's action
against Thorne more fully described above and the occurrence of this
action immediately after Durrett was apprised for the first time of
the Union's activities ; the unexplained precipitate layoff of Thorne
at that precise time; the close sequence of Thorne's layoff and Hack-
worth's discharge; Homan's opposition to Hackworth's union activi-
ties as evidenced by his conduct in connection with the July 14 meet-
ing; Homan's unexplained passivity on July 14, following Parnell's
report of Hackworth's threat, and the inherent improbability of his
testimony relative to the circumstances of Hackworth's discharge.
In view of the foregoing and upon the entire record in this case, we
conclude that Hackworth was unlawfully discharged because of his
union activities and sympathies and that the Respondent thereby
violated Section 8 (a) (1) and 8 (a) (3) of the Act?7
The Effect of the Unfair Labor Practices upon Commerce
The activities of the Respondent, set forth above, occurring in
connection with the operations of the Respondent described in Section
I of the Intermediate Report, have a close, intimate, and substantial
relation to commerce and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
The Remedy
Having found that the Respondent has engaged in unfair labor
practices , we shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the
Act.
37 In so finding, we are convinced that Hackworth would not have been discharged were
It not for the Respondent ' s discriminatory motives found herein. We are satisfied that
by Its action against Hackworth , the Respondent ' s real target was the Union , and not
Its desire to discipline Hackworth for his threat to Parnell . Accordingly , it is immaterial
that this incident may have been an added consideration which may have contributed
to the Respondent 's decision to discharge Hackworth . Carl L. Norden, Inc., 62 NLRB
828; Ridge Tool Company, 58 NLRB 1095 ; and Brown Paper Mill Company, Inc.,
36 NLRB 1220, enf. 133 F 2d 988 (C A. 5).
Chairman Herzog dissents from the conclusion concerning the discriminatory character
of Hackworth 's ultimate discharge , and would not direct his reinstatement . Had Hack-
worth been discharged or forced to quit at the meeting of July 14, the Chairman would
liold otherwise . He believes, however, that Hackworth 's Intervening threat to "beat
the bell out of Parnell" was the reason for the Respondent 's action In dismissing him
on the following day.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall order the Respondent to offer Rube B. Thorne and Winfred
H. Hackworth immediate and full reinstatement to their former or
substantially equivalent positions,'' without prejudice to their seniority
or other rights or privileges. We shall also order the Respondent
to make whole each of them for any loss of pay he may have suffered
by reason of the Respondent's discrimination against him.
In accordance with our practice, the period from the date of the
Intermediate Report to the date of the Order herein will be excluded
in computing the amount of back pay to which these individuals are
entitled, because of the Trial Examiner's recommendation that the
complaint be dismissed.
Consistent with the Board's new policy of computing back pay,19
the loss of pay shall be computed on the basis of each separate calendar
quarter or portion thereof during the period from the Respondent's
discriminatory action to the date of a proper offer of reinstatement.
The quarterly periods, hereinafter called "quarters," shall begin with
the first day of January, April, July, and October. Loss of pay shall
be determined by deducting from a sum equal to that which these
employees would normally have earned for each quarter or portion
thereof, their net earnings,20 if any, in other employment during
that period. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other quarter.
We shall also order the Respondent to make available to the Board,
upon request, payroll and other records to facilitate the checking of
the amount of back pay due.21
The unfair labor practices committed by the Respondent, in our
opinion, disclose a fixed purpose to defeat the attempts by its employ-
ees at self-organization and its objectives. Because of the Respond-
ent's unlawful conduct and its underlying purpose, we are convinced
that the unfair labor practices found herein are potentially related
to other unfair labor practices proscribed by the Act and that a danger
of their commission in the future is to be anticipated from the Respond-
ent's past conduct. The preventive purpose of the Act will be thwarted
unless our order is coextensive with the threat. In order, therefore,
to make effective the interdependent guarantees of Section 7 and thus
"In accordance with the Board's consistent interpretation of the term the expression
"former or substantially equivalent position" is intended to mean "former position
whenever possible, but if such position is no longer in existence then to a substantially
ecuivalent position." See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827.
'OF. W Woolworth Co., 90 NLRB 289.
20 By "net earnings" is meant earnings less expenses such as for transportation, 1omn,
and board incurred by an employee in connection with obtaining work and working
elsewhere which would not have been incurred but for the unlawful discrimination and
consequent necessity of seeking employment elsewhere Crossett Lumber Company, S
NLRB 440. Monies received for work performed upon Federal, State, county, municipal, or
other work-relief projects shall be considered as earnings. Republic Steel Corporation v.
N.L R B,311U.S.7.
21 F. W. Woolworth Co., supra.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC.1625
to effectuate the policies of the Act, we shall order that the Respondent
cease and desist from infringing in any manner upon the rights guar-
anteed by Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record
in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Upholsterers' International Union of North America, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the Respond-
ent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Rube B. Thorne and Winfred H. Hackworth, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the 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, Supreme Bedding and
Furniture Manufacturing Company, Inc., Monroe, Louisiana, its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from:
(a) Discouraging membership in Upholsterers' International Union
of North America, AFL, or in any other labor organization of its
employees, by discharging, laying off, or refusing to reinstate any of
its employees, or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of
employment.
(b) 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, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in any other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of
the Act.
i
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Rube B. Thorne and Winfred H. Hackworth im-
mediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights or
privileges.
(b) Make whole Rube B. Thorne and Winfred H. Hackworth in
the manner set forth in the section entitled "The Remedy" for the loss
of pay they may have suffered by reason of the Respondent's discrimi-
nation against them.
(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
records necessary to analyze the amount of back pay due and the right
of reinstatement under the terms of this Order. '
(d) Post at its plant in Monroe, Louisiana, copies of the notice
attached hereto and marked Appendix 22 Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by a representative of the Respondent, be
posted by it immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter on conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notice are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Appendix
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions 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, AFL, or any other labor
organization of our employees, by discharging or refusing to
reinstate any of our employees, or by discriminating in any
other manner with regard to their hire and tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT interrogate our employees in any manner con-
cerning their union affiliation, activities, or sympathies.
" In the event this Order is enforced by a Decree of the 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."
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC .1627
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist UP-
HOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL,
or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination :
Rube B. Thorne Winfred H. Hackworth
All our employees are free to become or remain members of the
afore-mentioned union, or any other labor organization, or to refrain
from such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a)
(3) of the Act. We will not discriminate in regard to hire or tenure
of employment or any term or condition of employment against any
employees because of membership in or activity on behalf of any such
labor organization.
SUPREME BEDDING AND FURNITURE
MANUFACTURING COMPANY, INC.,
Employer.
Dated------------ By ---------------------------------------
(Representative ) ( Title)
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
Charles A. Kyle, for the General Counsel.
Theus, Grisham, Davis and Leigh by Roland L. Davis, Esq., of Monroe, La.
for the Respondent.
Mr. Claude Nankervis, Mr. D. H. Woodall, Regional Directors, UIU-AFL, for
the Union.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a charge filed September 15, 1949, by Upholsterers' International Union
of North America, AFL, herein called the Union, the General Counsel for the
National Labor Relations Board, herein called the General Counsel and the
Board, respectively, by the Regional Director of the Fifteenth Region (New
Orleans, Louisiana), issued his complaint dated September 6, 1950, against
Supreme Bedding and Manufacturing Company, Inc.,' herein called the Re-
spondent, alleging that the Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the Labor Management Relations Act,'
61 Stat. 136, herein called the Act. Copies of the charge and the complaint,
together with a notice of hearing, were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleged in substance,
that the Respondent: (1) on or about July 13, 1949, discharged Rube B. Thorne
and Winfred H. Hackworth and thereafter failed and refused to reinstate them
for the reason that they joined or assisted the Union or engaged in other con-
certed activities for the purposes of collective bargaining or other mutual aid or
protection; and (2) did from on or about July 11, 1949, until the present inter-
fere with, restrain, and coerce its employees in the exercise of their rights guar-
anteed by Section 7 of the Act by certain acts and conduct including, but not
limited to, interrogation as to their union affiliations, by asking them what they
thought of the Union, what advantage they thought the Union would be to them
and why they did not quit if they wanted the Union.
On September 15, 1950, the Respondent filed its answer, denying the commis-
sion of any unfair labor practice and also filed a motion for a bill of particulars
which was referred by the Regional Director to a Trial Examiner for ruling.
,On September 21, 1950, David F. Doyle, the Trial Examiner designated by the
Chief Trial Examiner to rule upon the motion, granted it in part. Thereafter
on September 27, 1950, the General Counsel specified that the alleged acts of
interrogation were committed by J. D. Homan.
Pursuant to notice, a hearing was held at Monroe, Louisiana. from October
10 to 13, 1950, inclusive, before Stephen S. Bean, the undersigned Trial Ex-
aminer duly designated by the Chief Trial Examiner. The General Counsel
and the Respondent were represented by counsel, the Union by its Regional
Directors, and all participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties.
A motion to sequester witnesses, made by the General Counsel, was allowed
without objection and enforced throughout the hearing. The General Counsel's
motion made during the direct examination of the first witness to be called,
to amend paragraph VII of the complaint by adding after subsection (c) thereof
the words "and by telling employees they didn't think the Company would want
to have a union and probably would close down the plant before they would
have a union" was allowed over the objection of the Respondent. Prior to
the close of the hearing, the General Counsel's motion to conform the pleadings
to the record as to formal matters was granted without objection. None of
the parties desired to argue orally. The t;iine for filing briefs was duly extended
by the Chief Trial Examiner to November 13, 1950. Briefs received from the
General Counsel and the Respondent have been considered.
Upon the entire record and from my observation of the witnesses, and at a
view of the Respondent's plant taken in company with the General Counsel-
1 It is agreed that the correct name of this company is Supreme Bedding and Furniture
Manufacturing Company, Inc.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INc.1629
and counsel for the Respondent upon the motion of the latter, I make the fol-
lowing :
FINDINGS OF FACT'
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Louisiana corporation operating a plant in Monroe, Louisi-
ana, where it is engaged in the manufacture of living room suites, sofas, beds,
mattresses, and other similar products. Over a period of 12 months, before
the hearing, during the course of operating its business, as aforesaid the Re-
spondent caused to be purchased, transferred; and delivered to its plant, various
raw materials which amounted to approximately $118,000 in value, of which
amount approximately 75 percent was purchased outside the State of Louisiana
and shipped to the Respondent's plant from States other than the State of
Louisiana; (luring the same period the Respondent manufactured in Louisiana
and sold and distributed finished products amounting to approximately $200,000
in value of which approximately 15 percent was sold for distribution outside the.
State of Louisiana.
The Respondent admits, and I find, that it is engaged in commerce within the,
meaning of the Act.,
If. THE LABOR ORGANIZATION INVOLVED
Upholsterers' International Union of North America, AFL, is a labor organiza-
tion admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
This case centers around occurrences that took place between noon Monday,
July 11, 1949, and noon Friday, July 15, 1949. At noon, July 11, 1949, Douglas
H. Woodall, at that time general organizer for the Union, appeared at the,
shipping door of the Respondent's plant and after a short talk with several
employees, stated he would return the following noon to find out if and when
the employees desired to hold an organizational meeting At this interview,
Buford Richmond, who worked as an upholsterer and a shipper for the Respond-
ent, and contended by the General Counsel to have been a supervisory employee,
expressed opposition to the Union, his belief that the plant would be closed
down if a union were established and that the Respondent's employees would
be walking the streets as had employees at another plant which had been struck
from March 8 to June 24, 1949, while Woodall would continue to ride around
in an automobile and have his salary go on. Between the 11th and the following
noon the employees decided to attend a meeting at 5 p. in. on the 12th, and
Woodall was so informed. This meeting was held at the Labor Temple in
Monroe, presided over by Woodall and attended by 21 of the approximately 28
employees of the Respondent. At the start of the meeting Woodall asked Rich-
mond if he was a supervisory employee. Upon Richmond giving an evasive
answer, Woodall told him he, as a supervisory employee, should leave the
meeting. Employee Rube B. Thorne, an upholsterer, stated he was in favor
2 Findings have been made upon substantial credited evidence Whatever testimony as
may appear to be in conflict with the findings has been rejected as not credited or of
questionable probative value. For the sake of brevity other testimony which appears=
to be immaterial to a determination of the issues is not discussed.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union, but as far as he was concerned Richmond could remain. Other
employees acquiesced in Richmond remaining and he stayed. Employee Winfred
H. Hackworth, also an upholsterer, spoke in favor of the Union and employee
Albert Lee Embry voiced his opposition. All employees present, with the excep-
tion of Richmond, participated"in a secret ballot. The result was 11 in favor
of and 9 against unionization e Following announcement of the result, about
half of the employees left the meeting and the others signed union application
cards. Woodall requested Thorne to try to secure signatures upon applications
for union membership from those who had left the meeting or who had not
been in attendance. Hackworth volunteered to help Thorne. General Manager
J. D. Homan admittedly became aware of events that had occurred up to this
point.
On either July 11 or 12 Homan called all the employees together in the vicinity
of the water cooler and told them that a union had both advantages and dis-
advantages, that employees had the right to join or not to join a union, that
employees would not be discriminated against for joining a union. He also
advised the upholsterers that since they worked only on cheap merchandise, to
think over the possibility they might be classified by a union as apprentices
rather then journeymen, with a resultant adverse effect upon their wages.' At
this time Homan also told the employees they should not take time away from
their work during working hours arguing about union matters, and that it
probably was not a propitious time to attempt to start a union as business was
slowing off.'
For several months before July, Hackworth, a robust youth of 24, and employee
T. W. Parnell who worked on a job of putting legs and panels on furniture, had
frequently interchanged clumsy witticisms concerning their supposed relationship
with Negroes. Both men apparently accepted this dull bantering in good spirit.
Parnell, who appears to be at least,10 years older than the 56 years to which he
admits, endeavored to remain on friendly terms with his fellow workers. How-
ever, in addition to indulging in jocular raillery, Hackworth frequently criticized
Parnell for working overtime. Hackworth's base pay was $48 a week ; Parnell's
was $34 a week. The complete payroll record of the two men from the first of 1949
is not in evidence. Yet it does appear that during the seven pay weeks ending
July 13, 1949, Hackworth received a total of $10.80 overtime. During the same
period, Parnell received $145.98 overtime pay. On the average, Parnell's gross
wages during this sample period were $6.85 per week higher than Hackworth's.
The latter made it very clear that he resented Parnell making more money, despite
the fact that Hackworth's weekly base pay was $14 greater than Parnell's.
Parnell was indignant at what he considered Hackworth's unjustifiable intrusion
into his personal affairs. He complained to General Manager Homan two or
3 On July 15, Organizer Woodall requested the Respondent 's president , Joe G . Durrett,
to recognize the Union He was referred to Homan who stated that the Respondent
would not grant recognition, absent a Board-conducted election.
4 This finding is made on the credited testimony of Homan and employees Edward B.
Jackson, Harry Foster, and Earnest E. Scarborough.
5 This fact has some support in credible portions of the testimony of Hackworth whose
wife worked for the auditor of the Respondent's main sales outlet, Monroe Furniture
Company, of which Joe G. Durrett was also president. He testified that business was
bad, that the plant did not have any orders and he knew the Company was not making
any money. True, in redirect examination, Hackworth testified that there were "plenty
of orders" in July 1949 . I am not satisfied , however, in view of all the testimony and
the reasonable inferences to be drawn therefrom that this apparent afterthought truly
represents the condition of the Respondent 's business at the time of Hackworth's and
Thorne's separations.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC.1631
three times before July 1949 e On these occasions, Homan attempted to appease
Parnell by telling him to disregard Hackworth's fault-finding.
On the morning of July 13 or 14, Parnell again complained to Homan about
Hackworth continuing to "nag" him about overtime and in substance told Homan
he would quit his job unless something was done to cause Hackworth to stop
"bothering" and "tormenting" him. About the same time, Wilbur Eppinette,
another employee in the sere and yellow leaf, complained to Homan about Hack-
worth and indicated that he would quit if Hackworth did not cease doing some-
thing objectionable to Eppinette. Eppinette is deceased and the evidence does
not disclose the precise nature of his complaint against Hackworth. That the
animosity between the two men was engendered by something more than either
Eppinette espicglerie or heavy-handed Hackworth humor, is manifested by the
latter's wrath. A younger employee, Albert L. Embry, also told Homan on either
July 13 or 14 that he was getting tired of being called "yellow" by Hackworth and
if something were not done about it, he was going to quit. For some time before
July, Hackworth had found fault with employee Earnest E. Scarborough for
working overtime and chided him for currying favor. Scarborough, no less
impervious to Hackworth's barbs than the other three, had also complained to
Homan about this "nagging."
Homan considered Parnell, Eppinette, and Embry as keymen whose services
the Respondent could ill afford to lose and when their complaints against Hack-
worth were made or renewed about July 13 and 14, he called a general meeting
of all employees on July 14. At this assembly, Homan in substance told Hack-
worth that several employees had complained about him and his conduct and that
unless he stopped bothering his fellow workers he would be discharged. Homan
also told Hackworth that were it he (Homan) personally, he would quit where
there was so much ill will toward him. Hackworth countered by stating in
substance he was being asked to quit because of his union activities. Homan
replied that the Union had nothing to do with it, that it was a personal matter,
having to do with Hackworth's relations with his fellow employees. Hackworth
demanded to know which employees were opposed to him and upon learning,
in a discussion which ensued during the course of which Eppinette became
exceedingly angry, that three employees who had complained about his conduct
were Parnell, Eppinette, and Embry, announced he would not quit when ap-
parently only three employees were against him.
After the meeting broke up, Hackworth came back to where Parnell was work-
ing and told him never to speak to Hackworth again and that "if he heard
anything as (sic ) I told Mr. Homan he would beat the hell out of me" Parnell
reported this threat to Homan. That night Parnell was so nervous that he
slept very little. Although ill, he went to the plant the next morning, July
15, 1949. When he arrived at the door he was too weak to pick up a little
block of ice which had been left there. He went inside and _sat on a chair
waiting for Homan. When the latter arrived, Parnell told him he was unable to
work, that he could not stay on the job "being tormented in such a way" and
that he was nervous and afraid that he would have an encounter with Hack-
worth. Homan noticed that when Parnell 'got up from the chair he was tottery,
6 Parnell testified, "Hackworth was always on to me because I worked overtime when
my job required overtime . . . everytime nearly that I would work overtime, the next
day he would dump on to me about it, so I went to Mr. Homan before that and told
Mr. Homan I couldn't, the way he was doing me, I couldn't work and do my work right
with somebody nagging at me all the time. That was before anybody ever came down
there That part of it was several months before . . . I just got to the place where
I couldn't do my work and do it like it should be done with somebody nagging at me
about it. So I told Mr. Homan there would have to be something done or I would
have to go."
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he leaned against the wall and held onto it with his hands, that his speech
was affected, his thoughts were disconnected, and that he was violently agi-
tated. As it was apparent that Parnell was in no condition to work, Homan
sent him home.
Homan then telephoned the Respondent's president, Joe G Durrett, what had
occurred. Durrett instructed Homan to fire Hackworth Homan immediately
discharged Hackworth, telling him in' substance that his conduct had made
Parnell sick. Later that morning Hackworth went to Parnell's home in company
with Union Organizer Woodall and Thorne, told Parnell he had been fired on
his account, and that if anything he had done had made Parnell sick, he would
apologize.
I now revert to a time following the meeting that was held at the Labor
Temple at 5 p. in, July 12, at the conclusion of which Thorne, the other alleged
discriminatee, was appointed or requested to procure signatures on union mem-
bership application forms On July 13, Thorne presented a card to employee
Charles A. Batten, an upholsterer, who had not attended the meeting. Batten
declined to sign. He also dropped a card in the purse of employee Pearlie
Perry, a seamstress in the cutting room, and gave a card to employee Joe
Smith, a sweeper. He offered a card to employee Mamie Gains after giving her
a ride to town. Gains refused the card In addition he gave a card to em-
ployee H. E. Antley who worked in the mill room, and talked about the Union
to employee Edward B. Jackson but (lid not offer him a card.
On Friday, July 15, 1949, Thorne arrived at work later than usual, and was
called into Homan's office before he punched "l;he time clock. Homan told
him that due to poor business and no orders he was obliged to reduce the up-
holstering force, that since Thorne was the last upholsterer hired, he would
have to be laid off and that Homan thought some more would have to be laid
off. Thorne had worked for the Respondent several years before and had
returned to its employ during the workweek ending January 12, 1949, after
an absence of about 4 years. He drew Homan's attention to the fact that
employee Batten, an upholsterer, had been rehired since Thorne had reentered
the Respondent's employ in January 1949 but stated he felt better that he was
laid off than if Batten, who was undergoing expense because of his wife's ill-
ness, had been laid off, and that Thorne thought he could pick up some extra
work. Batten had worked previously for the Respondent. At that time he
had been troubled by tacks hurting his teeth and was considering buying a
bakery products distribution route Fearing that his venture might not be a
success, he asked Homan for, and was granted, a leave of absence until such
time as either he was successful in business or should return to the factory-
Apparently Batten's worst hopes were realized, for he returned to work under
this arrangement.
Thorne had asked for and been given considerable overtime work since his
employment in January 1949. In addition to his base pay of $48 a week, he
had received approximately $350 overtime pay between January 12 and July
13, and had made more money than any other upholsterer in the plant. Homan
testified that slow work, the fact that Thorne had told him he could not work
unless allowed some overtime, the highness of Thoine's earnings with over-
time, and his belief he had the least seniority among the upholsterers, were
the factors causing Thorne's 'selection for layoff.
B. The alleged discriminatory disclaaiges of Winfred H. Hackworth and
Rube B. Tho)ve
Hackworth had previously been employed by the Respondent and was dis-
charged in August 1948 for having left work without permission. He was
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC.1633
rather reluctantly rehired by Homan in December 1945 after the two men had
been together on a fishing trip His pay was advanced in January 1949 from
$1.10 an hour to $1.20 ($48 per week). Homan regarded Hackworth and
Thorne as the two most capable -upholsterers in the plant The facts lead-
ing up to Hackworth's discharge and Thorne's layoff on July 15, 1949, require
no repetition. Hackworth had been annoying Parnell, an old and trusted
employee, as well as Scarborough, for some months before the start of any
union activity. These employees had complained about Hackworth to Homan,
who in the apparent hope that the situation would rectify itself, did not dis-
cuss it with Hackworth. The situation did not correct itself ; rather Hack-
worth's petulance toward his fellow workers increased in its intensity during
the first 2 or 3 days beginning July 11 when he expressed himself as being in,
favor of a union and other employees argued against unionization At this
time, employee Parnell renewed his complaints and Eppmette and Embry
made complaints to management against Hackworth and about his conduct
toward them and made it clear to Homan that if the situation were not cor-
rected they would quit their jobs. In such a state of affairs, I consider that
Homan was entirely justified in warning Hackworth that if he did not discontinue'
his abuse of fellow employees lie would be discharged. Indeed, it would have been'
an act of remissness on Homan's part had he not taken this action to retain
valuable employees, to maintain the morale of the Respondent's employees,
and keep the plant running unimpeded by Hackworth's disrupting influence.
I have no doubt that Hackworth, whose demeanor I had the opportunity of
observing during. the 4 days of the hearing, was pugnaciously defiant during
the meeting at which, in front of practically all of the Company's employees,
Homan told him to mend his ways on penalty of being discharged. Neither
have I any doubt that, instead of discontinuing his objectionable conduct, Hack-
worth immediately after Homan's warning perversely and belligerently ap-
proached the feeble-appearing Parnell and threatened-him with bodily harm.
Thereafter Homan had no alternative other than to request Durrett's per-
mission to carry out his warning, and discharge this intractable employee.
I find that Winfred H Hackworth was discharged, with notice and prior
warning, for lawful and justifiable disciplinary reasons.
I am unable to convince myself that there is substantial basis in the evidence
for discrediting Homan's evidence that Rube B. Thorne was laid off because
business was poor. The General Counsel produced no records to the contrary.'
The Respondent produced its Exhibit 1 which has been discussed at length in the
brief of the General Counsel. This exhibit contains no evidence to show that
any employees were hired to take over Thorne's job after his layoff or Hack-
worth's work after his discharge During the pay week ending August 31, 1949,
there were 27 employees on the payroll. During the pay week ending July
13, 1949, there were 30 employees on the payroll. During the week ending July
27, 1950, the Respondent hired Billy McCrary at $28 per week, and Harold W.
Parnell and Clyde Duschene, Jr, at $24 per week. McCrary worked on finishing
and putting on cushions for about 2 months until he was discharged for falsifica-
tion of his time card. It does not appear what kind of work was performed by
either Duschene or Harold Parnell The inference is strong that neither
Duschene nor Parnell at $24 a week filled the places left vacant by Thorne or
Hackworth whose base pay was $48 a week. In addition to Thorne and Hack-
worth, the following employees were dropped from the payroll during the period
As pointed out in footnote 5 Hackworth's testimony tends to support the fact that
business was poor.
943732-51-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the pay week ending June 1, 1949, to the payroll week ending August 31,
1949: Robert Clarke, Albert E Simpson, Lelan B. Caples, Frankie D. Jones, Clyde
Duschene, Jr., and D. W. Dismer, Jr. It does appear that in addition to McCrary
who was discharged, the Respondent's working force was reduced by the death
of Eppinette and the resignation of Batten,' both previously mentioned, after
Thorne's layoff.
Although, as I analyze it, the Respondent's Exhibit 1 does not completely,
substantiate the Respondent's contention that Thorne's layoff was, due to
economic factors, it does nevertheless embody convincing corroborating evidence
supportive of its claim. True, it indicates that after Hackworth and Thorne
were separated, the two remaining full-time upholsterers (Batten and Scar-
borough) on the average worked longer hours during a period of a few weeks
after July 15 than during a period of similar length before that date. However,
it is not surprising that some overtime was required partially to compensate
for the work previously performed by the two leading and fastest operatives
in the Respondent's full-time upholstery crew. With Hackworth and Thorne
gone from this group, only Batten and Scarborough remained. Foster was
advanced from spring-up to upholstery work. It is manifest from the fact that,
even after his two raises, he received $16 a week less base pay than Hackworth
or Thorne, that Foster did not approach their capacity in quantity or quality
of production. The Respondent does not claim its business had fallen completely
flat. But it is apparent that subsequent to July 15, substantially less man
hours were worked in the upholstery department than before July 15. Thus,
a fair average of total hours put in weekly by the four full-time experienced
upholsterers (Hackworth, Thorne, Batten, and Scarborough) before July 15,
was 167; whereas, accepting the General Counsel's computation, the average of
total hours worked by the two full-time experienced upholsterers and the
one full-time inexperienced upholsterer (Batten, Scarborough, and Poster)
after July 15, was 143 plus.
Scarborough testified he worked some overtime cleaning up around the build-
ing and cutting grass away from the outside. Whether he did more of this work
and less upholstering before July 15 than he did after July 15 or less outside
work and more upholstery after July 15 than he did before July 15, is left to
utter surmise. When one considers the ability and speed of Hackworth and
Thorne as contrasted with that of Batten, Foster, and Scarborough (and assum-
ing that Scarborough after July 15 worked his full average 52 hours solely as
an upholsterer), it immediately becomes clear that production among the up-
holsterers decreased considerably more than the approximately 15 percent
represented by the purely statistical figures. In dealing with this phase of the
case, I do not consider that Richmond's time records should be regarded as
a factor. He was not a full-time upholsterer. The record does not reveal the
proportionate amounts of time he devoted to upholstery, to shipping, or to per-
forming errands. To say the four additional hours per week he worked were
occupied by upholstering rather than by shipping would be purely conjectural.
In three of the weeks during the period June 1 to July 13, Richmond made less
than $60. In two of the weeks between July 13 and August 30 he also made less
than $60. The higher average for the latter period is largely accounted for
by two "big weeks" when he earned $75 90 and $76 35. How much, if any, of
these earnings were allocated to upholstery work is entirely speculative.
8 It may well be that the position offered Thorne through the Board field examiner
became available at the time Batten quit There is not direct evidence on this point,
however, and it is not felt it would be necessary to make a finding thereon even though
the evidence were sufficient.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC. 1635
The number of hours worked by Parnell before and after July 15 shows slight
variance. He is not an upholsterer. As in the case of Scarborough, some of
Parnell's overtime is accounted for by work performed outside the plant, cutting
grass and cleaning up about the building. How many overtime hours after July
15 were involved in this work or in the work of attaching legs and panels of fur-
niture, is mere surmise.
Sometime after the charge had been filed on September 15, 1949, Homan In-
formed a Board field examiner that there was work for Thorne at the Respond-
ent's plant! This information came to Thorne but he did not seek the work.
When asked at the hearing if he would accept his old position if it were offered
him, Thorne stated he did not know except that he would not take orders from
Richmond.
In my opinion, there is no substantial basis for finding that Thorne was laid
off for other than economic reasons, unless that basis be that the layoff was timed
to be coincidental with his union activities which have been described above.
While fully recognizing that in situations of this character direct evidence of
antiunion motivation is rarely encountered, I am not satisfied that the General
Counsel has sustained the burden of proving that in laying off Rube B. Thorne
on July 15, 1949, the Respondent violated the Act or that since that time Re-
spondent has discriminatorily refused to reinstate him.
In summary, I conclude and find that it has not been established by a pre-
ponderance of the evidence that Winfred H. Hackworth and Rube B. Thorne were
discharged, or that the Respondent refused to reinstate them, in violation of
Section 8 (a) (3) of the Act.
C. Interference, restraint, and coercion
A preliminary question is whether Buford Richmond was at the time of the
events around which this case is centered, a supervisory employee within the
meaning of the Act. From my observation of Richmond as a witness, he
appeared to be a type of individual who would undoubtedly like to be considered
a person of authority and would be happy to have his associates believe he
possessed the right to exercise some control over them. But no matter what he
may have told others about his status, it is elementary that an agency rela-
ionship usually can not be shown through the statements of an alleged agent.
Richmond, Durrett, Sr., and Homan categorically testified that Richmond
possessed none of the attributes of a supervisory employee. Other witnesses such
as D. H. Moore, Jr., Henry Florsheim, Frederick de Hart Stoler, Joe G. Durrett,
Jr., and employees Parnell, Embry, and Scarborough testified Richmond had no
power of direction. He, as an assistant to Homan in the shipping room, had
occasion to collect orders. This required him to tell other workers what par-
ticular work should be made ready for shipping. The errands he performed in
picking up work or time slips and taking them to the office was work that could
be performed by any messenger. The transmission of instructions from Homan
to other employees and the bringing of material into the upholstery area from
the cutting room was also done, although to a lesser extent, by such employees as
Hackworth, Parnell, and Embry. Richmond was paid on the same hourly basis
as were Hackworth and Thorne. There is no evidence that Richmond had any
authority to hire or fire employees or to effectively recommend such action or
indeed any action concerning the employees' working conditions or conditions of
employment. Although it may be felt that Homan undertook to do too much in
reserving to himself sole and complete control and at the same time performing
See footnote 8.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a considerable amount of manual work, it is not within the scope of these proceed-
ings to call into question the efficiency of the internal management of the Re-
spondent's business . The fact remains that Homan did choose alone to carry-
the entire burden of the management of the plant and the supervision of its
employees. The record establishes and I find that Richmond was merely a rank-
and-file employee. Minneapolis Knitting Works, 84 NLRB 826.
Morowebb Cotton Mills Co , 75 NLRB 9'87, and James R. Kearney Corporation,
81 NLRB 26, relied upon by the General Counsel, involve much larger plants than
the Respondent's and are otherwise clearly distinguishable.
In view of this finding, it becomes unnecessary to decide whether whatever
Richmond may have said to his fellow employees at the time Union Organizer
Woodall first talked to them on July 11 or at any other time constituted inter-
ference, restraint, and coercion.
At the "water-cooler" meeting on July 11 or 12, there is abundant testimony
and I find that Homan clearly stated that employees had the right to join or not to
join a union. He did instruct the employees not to take time away from their
work during working hours standing around talking about union matters. At the
same time he assured them that neither he, Durrett, nor the Respondent "would
release or discharge anyone because they were pro or con on the union." I recog-
nize that the Board and the courts have held that the prohibition of discussion
of union affairs on an employer's premises in the employees' own time may con-
stitute interference with the basic rights guaranteed to employees by Section 7
of the Act. But here, as appears from Hackworth's and employee Herbert E.
Antley's testimony, Homan told the employees they could talk about the Union
all they wanted to at noon and after they finished work. There was no prohibi-
tion of discussion of union affairs at the Respondent's plant by employees on
their own time. A request not to stand around discussing union affairs during
working hours when accompanied by statements that employees are free to join
or not to join a union, that they would not be discriminated against if they should
join, and that they are free to talk about union matters on company prop-
erty while they are not working, is, under the circumstances disclosed by the
testimony in this case, not violative of the Act.
The General Counsel contends that Homan's statement relative to the effect
of unionization upon the status of the upholsterers is discriminatory and that
Homan made a definite assertion that if the Union became their bargaining
representative the upholsterers would suffer a reduction in pay. I do not agree.
In the first place, as has already been found, Homan's statement was in the nature
of advice to the effect that there should be considered the possibility that up-
holsterers who work on cheap merchandise might be classified as apprentices
with a resultant reduction in earnings . This was attested to by all the witnesses
who were present at the meeting and Hackworth, himself, at one point testified
he remembered that Homan said he might be classified as an upholsterer but
might be classified in a lesser degree. For aught that appears in the record,
Homan's statement was a sound bit of precaution. In the second place, it is
apparent that Homan's conduct at this meeting was confined to allaying qualms,
an appeal to reason and prudence and noncoercive prophesying as to the result of
organization. His prophecy of economic difficulties in the event of unionization
was at the utmost a mere prediction rather than a threat the Respondent would
use its economic power to make the prophecy come true. Statements which
clearly advise employees of possible results of organization are to be distin-
guished from statements which, either directly or subtly, threaten employees
with economic reprisal if they join a union, or promise employees benefits if
they do not join.
SUPREME BEDDING AND FURNITURE MANUFACTURING CO., INC.1637
. Assuming, arduendo, that Homan, as testified by Thorne, said to the latter
:after he had been laid off, "Rube, what advantage do you think the Union will
be to you boys here?"," it is manifest that such an isolated inquiry did not
attain the stature of a coercive interrogation. Under other circumstances if
made to a person while still in one's employ a question of this character could be
,considered within the periphery of proscribed conduct. If Homan did bring up
the subject of a union shortly after he laid off Thorne an inference of antiunion
motivation for the layoff might well be drawn. It has been found, however, that
the Respondent did not violate the Act by laying off Thorne or declining to rein-
state him, and upon consideration of the entire record, I should be unable to
find that the alleged remarks, if uttered, were discriminatory. As has been
pointed out, Batten, an upholsterer whom Homan considered had more seniority
than Thorne, quit sometime after July 15, 1949. The apparent willingness of
the Respondent to reemploy Thorne as an upholsterer at some time thereafter,
conduces to negative the idea he was laid off because of his union activities.
The record contains testimony of Billy McCrary, a short term employee, and
James W. Hackworth, a brother of employee Winfred H. Hackworth, concerning
a question asserted to have been asked and a statement alleged to have been
made by Homan after July 15. 1949 From my observation of McCrary, who
was discharged from the Respondent's employ for falsification of his time card,
I conclude that he is an unreliable witness Hackworth's testimony is in-
herently incredible. If true, it would prove little. In the face of Homan's
denial, I find he did not make the inquiries testified to by McCrary nor the
statements testified to by James W. Hackworth. Nothing brought out in the
direct testimony or cross-examination of employees Herbert E. Antley, and
Harry Foster, called as witnesses by the General Counsel, or of employees Par-
nell, Richmond, Embry, Scarborough, Louise Boykin, Clara Miisick, Pearlie
Perry, Mae Clower, Florence Turner, and Edward B Jackson, called by the
Mespondent, discloses any conduct which in may opinion warrants a finding that
the Respondent violated the Act by interfering with, restraining, and coercing
its employees in the exercise of their rights guaranteed in Section 7 of the Act.
I am persuaded and conclude that the General Counsel has not adduced such
clear and substantial evidence as is necessary to show that the Respondent
coerced its employees in the exercise of their rights guaranteed by Section 7
of the Act thereby violating Section 8 (a) (1) of the Act.
I therefore find, in conclusion, that the Respondent has not violated the Act
as alleged in the complaint and will recommend that the complaint be dismissed
in its entirety.
CONCLUSIONS OF-LAW
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 Supreme Bedding and Furniture Manufacturing Company, Inc., Monroe,
Louisiana, is engaged in commerce within the meaning of Section 2 (6) and
(7) of the Act.
2. Upholsterers' International Union of North America, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
10 It is highly improbable that Homan made this gratuitous and perhaps incriminatory
post facto inquiry
He is an alert and intelligent person. He has considerable knowledge of labor law.
Testing Thorne's testimony by inverse dialectic, even if his discharge had been grounded
upon union activity, it is altogether unlikely that a general manager of Homan's
perspicacity would have so needlessly disclosed the' Respondent's motivation. Purely
with palpable pains and prodding was Thorne enabled to recall possibly making reply
to this question which, if asked , so obviously called for an answer.
0
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The aforesaid Supreme Bedding and Furniture Manufacturing Company,
Inc., has not engaged in unfair labor practices within the meaning of the Act.
[Recommended Order omitted from publication in this volume.]
RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1179, AFL and
GAMBLE-SKOGMO, INC., D/B/A WESTERN AUTO SUPPLY COMPANY.
Case No. 2O-CC-77. April 03,1951
Decision and Order
On January 23, 1951, Trial Examiner William E. Spencer issued
his Intermediate Report, finding that the Respondent engaged in un-
fair labor practices within the meaning of Section 8 (b) (4) (C) of
the Act, as alleged in the complaint, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent filed exceptions to the Intermediate Report, 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 [Members Houston, Reynolds, and
Styles].
The Respondent's request for oral argument is hereby denied, as
the record, including the exceptions and brief, in our opinion ade-
quately present the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and brief, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner'
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Retail Clerks International
Association, Local 1179, AFL, and its officers, representatives, succes-
sors, assigns, and agents, shall :
1. Cease and desist, during the effective period of the certification
issued by a Regional Director of the National Labor Relations Board
on October 6, 1950, in Case No. 20-RC-1043, or any other certification
I See Oppenheim Collins & Co., Inc., 83 NLRB 355, where the Board found a violation
of Section 8 (b) (4) (C) of the Act.
93 NLRB No. 272.