Virtue Bros. Mfg. Co.

National Labor Relations Board - Board Decisions

Dec 30, 1949

87 N.L.R.B. 1518 (N.L.R.B. 1949)

In the Matter of VIRTUE BROS. MFG. CO. and TEXTILE WORKERS
UNION OF AMERICA, CIO
Case No. 21-CA-9305.-Decided December 30, 1949
DECISION
AND
ORDER
On September 21, 1949, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in- certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, 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. The Trial Examiner also found that the Respondent
had not violated Section 8 (a) (1) and (3) in certain other respects,
and recommended that those allegations of the complaint be dismissed.
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief.
The Board 1 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 Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications :
1. The Trial Examiner found that the Respondent discharged
Charles Augustus because of his union activity and thereby violated
the Act. The Respondent denies that Augustus' union activity
prompted the discharge and argues further that, even if this were
found to be so, his discharge was nevertheless justified because he
violated the posted shop rules.z
As we are satisfied that the known union activity of Augustus, as
fully set forth in the Intermediate Report, was an operative factor in
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this proceeding to a three-member panel [ Chairman Herzog and
Members Houston and Murdock].
2 The rules provided, insofar as here relevant , that no business other than the Respondent's
business be transacted during working hours.
87 NLRB No. 162.
1518
VIRTUES BRO'S'. MFG. CO. 1519
Augustus' discharge," we shall direct our attention to the defense to-the
discharge based on the posted shop rules. In our opinion, that de-
fense is untenable. Thus, at no time during the several months of
Augustus' union activity at the plant did the Respondent call Augustus'
attention, either by reprimand or otherwise, to the alleged violation
of the rules. Nor did the Respondent mention the alleged violation of
the rules at the time Augustus was discharged. Moreover, we note
that this defense was first seriously urged in the Respondent's brief.
In these circumstances, we conclude that this defense is a mere after-
thought and that the alleged violation of the posted rules played no
part in the discharge. And we conclude further, as did the Trial
Examiner, that the discharge of Augustus violated Section 8 (a) (3)
and 8 (a) (1) of the Act.
Nor do we find merit in the Respondent's further contention that
such activity by Augustus renders his reinstatement improper. Mis-
conduct of the type alleged by the Respondent does not render an
employee unfit for further employment. We shall therefore order that
Augustus be reinstated with back pay from the date of his discharge,
as recommended by the Trial Examiner. Of course, the Respondent
is not thereby precluded from disciplining or discharging Augustus
for any possible future misconduct or for any reason other than
"concerted union activities.4
2. We have found that by its discharge of Charles Augustus, the
Respondent violated Section 8 (a) (1) and (3) of the Act. Such a
discharge "goes to the very heart of the Act," s and convinces us that
the danger of the commission of other unfair labor practices is to be
anticipated from the Respondent's conduct in the past. In like cases,
we have held that the preventive purpose of the Act will be thwarted
unless our order is coextensive with the threat.° Accordingly, in order
to make effective the interdependent guarantees of Section 7 and thus
effectuate the policies of the Act, we shall order the Respondent to
cease and desist from in any manner infringing upon the rights of
employees guaranteed by the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor-Relations Act, as amended, the National Labor
8 In this connection , we adopt the reasoning of the Trial Examiner, except that we find
it unnecessary to adopt the Trial Examiner's finding that the Respondent was motivated by
a "deep-rooted opposition" to unionization of its plant.
4 Cf. Paull Valley Milling Company, 82 NLRB 1266 , and cases cited therein at foot-
note 17.
6N. L. R. B . v. Entwistle Manufacturing Company, 120 F. 2d 532 (C. A. 4).
6 See, for example , Augusta Chemical Company, 83 NLRB 53; Tri-State Casualty Insur-
ance Company, 83 NLRB 828.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Virtue Bros. Mfg.
Co., and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in the Textile Workers Union of
America, CIO, or any other labor organization of its employees, by
discharging any of its employees, or in any other manner discrimi-
nating as to their hire or tenure of employment, or any term or con-
dition of their employment;
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist Textile Workers Union of
America, CIO, 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 mutual aid
or protection, or to refrain from any or all of such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Charles Augustus immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges;
(b) Make whole Charles Augustus for any loss of pay he may
have suffered as a result of the Respondent's discrimination against
him by payment to him of a sum of money equal to the amount he
normally would have earned as wages from the date of his discharge
to the date of the Respondent's offer of reinstatement, less his net
earnings during said period;
(c) Post at its plant in Los Angeles, California, copies of the
notice attached hereto, marked Appendix A.7 Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered
by any other material;
"In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words "A DECISION AND ORDER," the
words "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
VIRTUE BROS. MFG. CO. 1521
(d) Notify the Regional Director for the Twenty-first Region
in writing, within ten (10) days from the date of this order, what
steps the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that'the complaint be, and it hereby
is, dismissed insofar as it alleges that the Respondent violated Sec-
tion 8 (a) (3) of the Act with respect to the terms and conditions
of employment of Charles Augustus.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in TEXTILE WORKERS
UNION OF AMERICA, CIO, or any other labor organization of our
employees, by discharging any of our employees, or in any other
manner discriminating as to their hire and tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist TEXTILE WORK-
ERS UNION OF AMERICA, CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such
right be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer to Charles Augustus immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to any seniority or other rights and privileges
previously enjoyed; and we will make him whole for loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become or remain members of
this union, or any other labor organization.
VIRTUE BROS. DIFG. CO.,
Employer.
By ---------------------------
(Representative ) ( Title)
Dated--------------------
877359-50-vol. 87-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Jerome Smith, for the General Counsel.
Howlett and Elson, by Mr. Elmer H. Howlett, of Los Angeles, Calif., for the
Respondent.
STATEMENT OF THE CASE
Upon a charge filed by Textile Workers Union of America, CIO, herein called
the Union, the General Counsel, by the Regional Director for the Twenty-first
Region (Los Angeles, California), of the National Labor Relations Board, herein
called the Board, issued his complaint dated November 23, 1948, against Virtue
Bros. Mfg. Co., herein called the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair 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, 1947, 61 Stat. 136, herein called the Act.
Copies of the complaint and the charge, together with notice of hearing thereon,
were duly served upon the Respondent and the Union.
With respect to unfair labor practices, the complaint alleged in substance
that the Respondent refused to grant a certain production bonus and refused
to pay the proper rate for certain split-shift work to Charles Augustus and
thereafter on or about August 16, 1948, discharged him because of certain con-
certed activities. The Respondent's answer denies the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held on February 1, 2, 3, and 4, 1949, at Los
Angeles, California, before the undersigned, the Trial Examiner designated by
the Chief Trial Examiner. The General Counsel and the Respondent were
represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
the parties. The parties waived oral argument at the close of the testimony,
but submitted briefs.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE RESPONDENT
The Respondent, a California corporation, is engaged in the manufacture
and sale of chrome furniture at Los Angeles, California. The Respondent's
purchases of raw materials consist of plywood, lumber, steel, and other metal
products. For the 12-month period preceding February 1949, these purchases
exceeded $200,000 in value, approximately one-half of which was shipped directly
to the Respondent's plant from outside the State. During the same period, the
Respondent manufactured and sold chrome furniture valued in excess of $300,000,
approximately 30 percent of which was shipped to points outside the State of
California. The Respondent concedes, and the undersigned finds, that it is
engaged in commerce within the meaning of the Act. '
If. THE ORGANIZATION INVOLVED
The Textile Workers Union of America, CIO, is a labor organization admit-
ting to membership employees of the Respondent.
VIRTUE, BROS. MFG. CO.
III. THE UNFAIR LABOR PRACTICES
The discrimination against Charles Augustus
1523
Charles Augustus, the employee involved in the complaint, was hired by the
Respondent in August or September 1945. At the time he was discharged, on
August 17 , 1948, he had been working as a trainee or as an assistant tube mill
operator for about a year. Prior to this assignment and beginning about May
1947 he had worked as a cut-off operator at the tube mill.
In the spring of 1947, the United Furniture Workers Union began a cam-
paign at the Respondent's plant. The Furniture Workers abandoned its ef-
forts after about 6 months and the charging union undertook its organizational
drive. In February or March 1948 , Anthony Ramuglia , international repre-
sentative of the Union, contacted Augustus upon the basis of information he had
received from some of the employees that Augustus had been active in the
Furniture Workers' campaign. Ramuglia enlisted Augustus' aid on behalf
of the Union and Augustus functioned in this campaign much the same way
as he did in the campaign of the prior union. For example, Augustus helped
to write leaflets and called at employees' homes. He also distributed authoriza-
tion cards at the plant during rest periods and other times when he had an op-
portunity. He kept unsigned cards and, on occasion, signed cards in the desk
where Charles L. Baker, the tube mill foreman, kept production records. When
employees who were organizing in other departments ran out of authorization
cards, they would come to Augustus for a supply; Augustus would hand them
cards over the desk, sometimes in Baker's presence. At Augustus' instructions,
most of the employees who were organizing in other departments returned their
signed cards to Augustus. This also occurred, on occasion, in Baker's presence.
These card transactions were frequent occurrences. Augustus would in turn
deliver the signed cards he received to Ramuglia. Several times Augustus
handed the signed cards to Ramuglia through a car window as be rode out
of the plant driveway, sometimes bringing about traffic tie-ups and the sound-
ing of horns" when the car stopped for the transaction. Ramuglia distributed
union literature at the plant gate..
Foreman Baker and Augustus were on friendly terms. They discussed, among
other things, matters which touched upon unionism-a contract with another
company which Baker had had in his possession and the significance of a union's
leadership. Early in the relationship, about May 1947, Baker pointed out than
Vice-President J. A. Virtue did not tolerate unions and that he wanted to be the
only one to run his plant. Baker also inquired of Augustus why the Furniture
Workers gave up their campaign. Augustus would, when he arrived in the
morning, volunteer that he or the Union had gotten a certain number of cards
signed. Baker never warned Augustus of his union activities during working
time.'
1 Assistant Plant Superintendent Joseph Miles , however , enforced a plant rule against
transacting business other than the Respondent ' s business on working time and upon
complaint did threaten an employee with discharge it he continued to distribute cards
and solicit signatures on the Respondent 's time.
The findings in the text , except that which reflects upon Virtue 's attitude are based
upon Baker ' s admissions . The nonadmitted material is founded upon a resolution of
Augustus ' and Baker's conflicting testimony in connection with which a relative appraisal
of the witnesses and the inherent consistency betweeh the admitted friendliness and the
disclosure was taken . into consideration.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union's organizational drive continued for several months, and on May 7,
pursuant to a consent election agreement, an election was held among the
Respondent's employees. Shortly before the election, Assistant Plant Super-
intendent Joseph Miles stated to a group of employees in the plastic department
as they were having lunch that if the Union were successful at the election,
the Respondent would call off the picnic which they had been discussing, that
the plant might be shut down, and that he did not know what the Respondent
might do about it.'
On the day of the election as Augustus left work to go to the polls, Baker
remarked, "I wish you luck on the outcome of the election, but if you don't
win the election you had better start looking for another job." The Union lost
the election by a narrow margin, the tally of the ballots showing 111 votes cast
for, and 128 votes cast against the Union. The next working day after the elec-
•tion Augustus remarked to Baker, "Well, we lost the election. What do you
'think my outcome will be?" Baker replied, "Well, Chuck, feeling the way you
do about the company, the way you feel about the whole thing, I don't believe I
would wait to see."' A few days later, the Union filed a protest to the election.
Thereafter, the Regional Director issued his report overruling the protest. The
Respondent received a copy of the report on August 7. On August 17, Augustus
was discharged.
About a month before Augustus was discharged, in about the middle of July,
Daniel L. Knox, warehouse foreman, had informed Stanley Nicholson, one of his
employees, that there was a possibility of an opening at the tube mill, that
Augustus was not working 'out right and that Augustus might be let go.
Nicholson had indicated at'that time that he would accept the job if it were
offered to him. During the latter part of July, Assistant Plant Superintendent
Ernest Rhoades had also told Nicholson of the possibility of an opening at the
tube mill, that Augustus was not working out right, and that Baker had stated
that he would like to try out Nicholson if the opportunity arose. Rhoades had
closed the conversation by stating that there was nothing definite and that
Nicholson should not say anything about it to anyone. About a, week before
Augustus' discharge, Baker had inquired of Nicholson if Rhoades had spoken to
him and Nicholson replied that he had. One 'day about a week or a few days
before the Augustus discharge, while there was spare time in Nicholson's de-
partment, his foreman had sent Nicholson to observe the operation of the tube
mill. The day after Augustus was discharged, Nicholson was transferred to
the tube mill.'
The General Counsel urges that Augustus' discharge and that the Respondent's
failure to pay Augustus a production bonus and a shift differential at an opera-
2 This finding is based upon the mutually corroborative and credible testimony of
former employees Doris Jean Boone, Effie Jane Giles, and Pauline Hallgren. Miles
admitted a discussion about a picnic but denied the remainder.
D The remarks found to have been made by Baker on the day of the election are, for
reasons already given in the prior resolution of conflicting testimony between Augustus
and Baker, based upon Augustus' credible testimony. The conversation after the election
'is based upon Baker's admission. It is noted, in addition, that the conversation which
Baker admitted 'having had' is what would, under the circumstances, be expected as a
sequel to the prior conversation which he'denied.
4 The findings involving the Respondent's supervisors are based upon employee Nichol-
son's credible testimony. Nicholson's transfer to the tube mill constituted a promotion.
Should Augustus be reinstated to his former position, it would presumably result in
Nicholson's demotion. ' The Respondent's version is at variance with these findings ; the
explanation offered was that an increase in production was being contemplated at the
time.
VIRTUE BROS . MFG. CO. 1525
tor's pay constitute violations of the Act. The Respondent entered a general
denial in its answer and alleged as a separate defense:
1. That said Charles Augustus did on or about, the 17th day of August,
1948 refuse to accept and perform the work assigned to him by respondent ;
that by reason of said refusal of said Charles Augustus to accept and per-
form said assigned work his services terminated on or about August 17, 1948.
2. That prior to August 17, 1948 said Charles Augustus in violation of
the shop rules of respondent, advertised and sold new chrome furniture
manufactured by respondent ; that at the time Charles Augustus terminated
his services with the respondent this matter was under investigation by
respondent.
During the hearing, the Respondent amplified its position, stating that the
furniture matter was not a cause of discharge, but that Vice-President J. A.,
Virtue did not in to keep Augustus from being discharged or did not
intercede to retain Augustus in employment because the furniture matter was
under consideration. The resale of furniture to ultimate purchasers, the Re-
spondent explained further, was in competition with it and contrary to its
interests. The Respondent also took the position at the hearing that Augustus
was temperamental, very difficult to get along with, and would not take orders
many times, and that these characteristics were additional considerations in the
discharge.
Concerning the circumstances of his discharge, Augustus testified that on
Tuesday, August 17, before working time 5 he talked with Plant Superintendent
Mac T. Munnell about a 10-cent raise or differential, such as the night shift
was getting, for a new assignment of hours (10 a. m. to 7: 30 p. in., instead of
7 a. m. to 4: 30 p. in.) which Augustus had been told on the prior Monday that
he was to begin on Wednesday. When Augustus had been told on Monday of
the new assignment he had indicated his displeasure as he had done during
the prior week when he bad heard of the new shift. Munnell stated that there
was some point to Augustus' request and that he would discuss it with Virtue.
Later that morning Baker called Augustus aside and stated to him, "I hate to
tell you this, Chuck, but the company wants you to quit." Augustus inquired
",by the Respondent wanted him to quit, and Baker replied that Augustus had
been causing a disturbance in working conditions. Augustus stated that he
would not quit, and Baker then pointed out the advantages of quitting in
terms of getting another job. Baker also informed Augustus that his request
for a 10-cent differential in pay had been turned down by Virtue. That after-
noon at about 2 or 3 p. m. Baker told Augustus to pick up his checks that
evening. At no time, according to Augustus, did he state that he would not
accept the new assignment.
Baker was not asked to testify about Augustus' testimony describing Baker's
efforts to get Augustus to quit the Respondent's employ. Baker's and Munnell's
testimony relating to the circumstances of the discharge is essentially as follows.
According to Mundell, on the morning of August 17, Augustus asked Munnell for
an increase in pay :for the special shift. Munnell replied that the new arrange-
ment should not be considered as a special shift but rather as a staggering of
hours, and that there would not be a raise for that reason. He told Augustus
that in any event he would have to see his foreman about the raise. Munnell
also told Augustus, as Munnell expressed himself at the hearing, that if
5 Augustus did not punch his time clock that morning . This and another incident
occurring the night before will be discbssed at a later point in this Report.
1526 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
Augustus "would get in and work a little harder and get along with his foreman
a little better learning his trade, why, he would be in a better position to
demand more money."
According to Baker, when he discussed the new assignment with Augustus,
explaining that it was for the purpose of getting needed production, Augustus
stated that he would not accept the assignment unless he got a raise. Baker
stated that the new arrangement would give Augustus an opportunity to get
additional experience (operating the mill in Baker's absence for the last 3
hours of the shift) which Augustus needed badly and that eventually Augustus
would be compensated for the time. Augustus replied that he could not live
on promises. It is not clear as to when Baker intended to place this conversa-
tion. On direct examination he apparently placed it as having occurred on the
day before the discharge; on cross-examination, on the day of the discharge;
and in his affidavit, which he executed about a month after the incident, on
the day of the discharge.6 According to Baker's further testimony, during the
morning of August 17, he and Augustus discussed the new assignment and
Augustus refused to accept it without the differential pay. At Augustus'
request Baker went to see Munnell about the pay increase. Baker told Munnell
that Augustus was dissatisfied with the new shift and refused to take it unless
he got a 10-cent wage increase. Munnell replied that there was to be no-raise and
that he could not see that any was necessary. Nothing was said about dis-
charge. Baker then returned to the mill and informed Augustus that there
would be no raise and that he would have to accept the new arrangement or
something else would have to be done. Augustus replied that he would not
accept the shift unless he got an increase. Baker declared that there was no
alternative and that Augustus should pick up his checks that night. Augustus
thereupon asked whether he could have another chance and stated that he would
accept the assignment, but Baker replied that the damage had been done. This
occurred, according to Baker, at about 10 a. in. The version of this incident
which Baker gave in his affidavit is as follows. Baker told Augustus that he
would try to get a raise for Augustus. When Baker went to see Munnell,
Munnell agreed to take the matter up with Virtue, and thereafter informed
Baker that the increase could not be granted. When Baker reported the
result to Augustus, he stated he had tried to get the raise for Augustus. Augus-
tus replied that the Respondent was too cheap to give him a raise, and Baker
told Augustus that he would have to get someone else if Augustus would not
be happy about the job at the old rate. Baker then had the personnel manager
make out Augustus' checks.
On the afternoon of August 17, according to Munnell, Baker informed him that
Augustus had refused to accept the new shift without an increase in pay and
that he had discharged Augustus. Munnell merely stated that he would arrange
for Augustus' checks and that he would get another man.
The undersigned accepts Augustus' version of the circumstances of his dis-
charge. In addition to a relative appraisal of the witnesses and other testi-
mony concerning the reasons for the discharge, which will be set forth later,
the following was considered in this resolution of credibility : Baker's refusal-
by his own testimony-to rescind the discharge when Augustus, upon being told
he was discharged stated that he would accept the new arrangement without a
wage increase although the Respondent's professed reason for the new shift
9 This affidavit was introduced into evidence by the Respondent. It was executed before
counsel for the General Counsel on September 28, 1948.
VIRTUE BROSi. MFG. CIO. 1527
was a need for increased production and it would take about a year to train a
replacement for Augustus who occupied a position which the Respondent con-
sidered a fairly important one ; and Baker 's affidavit which showed no refusal by
Augustus to accept the assignment at the time of the discharge, but showed only
Baker's declaration at the time, after he had tried unsuccessfully to get Augustus
an increase in pay, and that he would have to get someone else if Augustus would
not be happy about the job at the existing rate of pay. The Respondent's ex-
planation of its separate defense relating to furniture dealings' and that Virtue
had not intervened to keep Augustus from being discharged or had not inter-
ceded to retain Augustus because the furniture matter was under consideration,
also reflects upon Baker's testimony that Augustus refused to accept the assign-
ment. It is accordingly found that the discharge occurred substantially as
described by Augustus and that Augustus had not refused the new assignment.
Additional testimony was given at the hearing concerning the reason for
Augustus' discharge. It appears that late in the afternoon .of August.17 Augustus
asked Munnell why he had been discharged. Munnell admitted in his testimony
that he replied that (1) Augustus was not getting along with his foreman too
well, (2) Augustus would not accept the new shift, and (3) Augustus did not
get along too well in other departments. Munnell also admitted telling Au-
gustus that he would be much better off if he went elsewhere and forgot about
the "whole deal," and that he should take his checks and leave. That night or
the next night Augustus called at Munnell's home and again asked why he had
been discharged. Munnell admitted at the hearing that the reasons he gave
Augustus at that time were that (1) Augustus did not get along with his fore-
man too well, (2) Augustus seemed dissatisfied with his wages, and (3) Augustus
refused to take the new shift. Augustus thereafter asked Munnell whether he
had been discharged for his union activities. According to Augustus, Munnell
replied, "Yes and no." When Augustus asked what Munnell meant by the an-
swer, Munnell explained that Virtue had told him that Augustus' union activi-
ties along with other reasons had entered into the discharge. At the hearing
Munnell denied having made this admission to Augustus involving Virtue and
testified that during that part of the conversation he explained the discharge
to Augustus as having been based upon (1) Augustus' refusal to accept the
new shift, (2) Augustus' unhappiness on the job, and (3) Augustus' dissatis-
faction with the pay. Upon further examination Munnell testified, however,
that not getting along too well in other departments was not a reason for the
discharge; that Augustus' work at the tube mill was satisfactory; that it was a
fairly common thing at the plant for employees to want more money, and that
being dissatisfied with one's wages is not a ground for discharge at the plant.
Munnell also stated, contrary to his prior testimony, that the only reason he
gave Augustus for the discharge was Augustus' refusal to take the shift, and
that the remainder of his remarks was merely conversation to make' Augustus
feel better.
Baker testified at first that he discharged Augustus only because Augustus
refused to accept the new shift assignment without an increase in pay. There-
after he testified that Augustus was a dissatisfied worker and that that, possibly
I Notwithstanding the Respondent 's published rules, it was not unusual for employees
to buy furniture at the plant for the use of others . Except for two chairs which
Augustus , at the request of an investigator employed by the Respondent, bought to add to
a set he had already had for his own use, Augustus made no purchases of furniture for
the purpose of resale.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
along with the refusal , was the explanation for the discharge . Baker explained
that the dissatisfaction he referred to related to the way the Respondent operated
its business and the wages Augustus received . Upon further examination of these
constituent elements Baker admitted that the dissatisfaction was not a factor in
the discharge . Baker also admitted that he did not discharge Augustus because
Augustus argued with him. In his affidavit Baker further admitted that Augustus
was a "fair employee , but not A 1 , as he was too reluctant to receive orders."
In view of these admissions by Baker, Munnell 's admission that Augustus'
work was satisfactory , Virtue 's admission in an affidavit of October 20, 1948, that
Augustus was discharged solely for his refusal to accept the new assignment
and that his work had been ' satisfactory , it is found on the basis of the credible
testimony that the Respondent did not substantiate the position it took at the
hearing that Augustus was temperamental , very difficult to get along with, and
would not take orders many times and that these matters entered into the
discharge. .
There appears also to be no merit to the Respondent 's contention that Augustus
quit or might have had in mind to quit the Respondent 's employ . In support of
this contention , the Respondent relies upon the fact that Augustus did not punch
his time card the morning of the discharge and upon certain testimony by em-
ployee Doyle Epperson , who was also subject to the new assignment. Epperson
testified that at the close of work the night before the discharge he and Augustus
were discussing the split shift, and , upon Augustus ' inquiry, Epperson stated that
he did not like the arrangement but he did not see what they could do about it.
Augustus remarked , according to Epperson , "Well, if you say so, we will just tell
them to shove it." Epperson responded that he did not see how that would
benefit them . Augustus denied making the quoted remark. This testimony would
show a dislike by both employees of the new time arrangement and a suggestion
by Augustus to quit if Epperson would agree to act with him. Epperson, by his
version, rejected the suggestion , and there the matter ended. In explanation of
Augustus ' failure to punch the time clock , it was shown that this had occurred be-
fore. It is, moreover , uncontested that Augustus did work on the day of his
discharge.
It is accordingly found in view of Augustus ' known union activities and the
Respondent 's deep-rooted opposition to the unionization of its plant, the discus-
sions which were had with employee Nicholson weeks before the discharge, the
Respondent 's efforts to get Augustus to quit his employment , and the unconvincing,
unsubstantiated , and conflicting reasons given for the discharge that the pre-
ponderance of the evidence shows that when it became clear that the Union
had lost the election and it could apparently not wield its economic force, Augustus
was discharged for his union activities-the reason which Augustus ' credible
testimony shows Munnell admitted to him shortly after the discharge. It is not,
however , found that Augustus was discriminated against in any other respect
alleged. Augustus ' testimony shows that he rejected the production bonus plan
offered because he did not understand it and did not know what his earnings would
amount to under the plan. While it is true that employees who worked irregular
shifts at the plant were paid a wage differential , it does not follow, and the under-
signed is not persuaded , that the Respondent 's refusal to grant Augustus a dif-
ferential was illegally motivated . It will, therefore , be recommended that the
complaint be dismissed insofar as it alleges discrimination against Charles
Augustus regarding his terms and conditions of employment , and it is found
that Charles Augustus was discharged on August 17, 1948, in violation of Section
8 (a) (1) and ( 3) of the Act.
VIRTUE BROS. MFG. CO. 1529
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
.The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
The General Counsel having failed to establish by a preponderance of the
evidence that the Respondent discriminated against Charles Augustus with re-
gard to his terms and conditions of employment in violation of Section 8 (a) (3)
of the Act, the undersigned will recommend that the complaint be dismissed
in that respect. Having found, however, that Respondent has violated Section
8 (a) (1) and (3) of the Act with regard to Charles Augustus' hire and tenure
of employment, the undersigned will recommend that it cease and desist there-
from and that it take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the Respondent discriminatorily discharged Charles
Augustus because of his union activity. It will therefore be recommended that
the Respondent offer him immediate and full reinstatement to his former or
substantially equivalent position ;8 without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay which he may
have suffered by reason of the Respondent's discrimination against him by pay-
ment to him of a sum of money equal to that which he normally would have
earned as wages from the date of his discharge to the date of the Respondent's
offer of reinstatement, less his net earnings e during said period.
On the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Charles
Augustus, thereby discouraging membership in Textile Workers Union of
America, CIO, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By said conduct, interfering, restraining, and coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not violated Section 8 (a) (3) of the Act in regard
to the terms and conditions of employment of Charles Augustus.
RECOMMENDATIONS
Upon the above findings of fact and conclusions of law, upon the entire record
in the case, and pursuant to Section 10 (c) of the Act, the undersigned recom-
8 The Chase National Bank, 65 NLRB 827.
9 Crossett Lumber Co ., 8 NLRB 440 , 497-98.
1530 DECISIONS OF„NATIONAL LABOR RELATIONS BOARD
mends that Virtue Bros. Mfg. Co., Los Angeles, California, its officers, agents,
successors, and assigns shall:
1. Cease and desist from discouraging membership in the Textile Workers
Union of America, CIO, or any other labor organization of its employees by in any
manner discriminating in regard to their hire and tenure of employment or any
term or condition of employment.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Offer to Charles Augustus immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges, and make him whole in the manner set forth in Section
V, above, entitled "The remedy."
(b) Post at its plant at Los Angeles, copies of the notice attached hereto
marked Appendix A. Copies of said notice, to be furnished by the Regional
Director for the Twenty-first Region, shall, after being duly signed by the Re-
spondent's representative, be posted by the Respondent upon receipt thereof and
maintained by it for a period of sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or' covered by any other material; and
(c) Notify the Regional Director for the Twenty-first Region in writing within
twenty (20) days from the date of this Intermediate Report and Recommended
Order what steps the Respondent has taken to comply therewith.
It is also recommended that the complaint be dismissed insofar as it alleges
that the Respondent violated Section 8 (a) (3) of the Act in regard to the terms
and conditions of employment of Charles Augustus.
It is further recommended that, unless the Respondent shall within twenty (20)
days from the receipt of this Intermediate Report and Recommended Order notify
said Regional Director in writing that it. will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date of
service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions of
the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties of
all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46 should any party desire per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
VIRTUE BROS. MFG. CO. 1531
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 21st-day of September 1949.
MAX M. GOLDMAN,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, 1947, we hereby notify our employees that:
WE WILL NOT in any manner discriminate against any of our employees
and thereby interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organizations, to join or assist
the TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL OFFER Charles Augustus immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of discrimination.
All our employees are free to become or remain members of the above-named
union, or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
VIRTUE BROS. MFG. Co.,
Employer.
By ----------------------------
(Representative ) ( Title)
.Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.