Burton-Dixie Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1943

48 N.L.R.B. 621 (N.L.R.B. 1943)

In the Matter of BURTON-DIXIE CORPORATION and FURNITURE, BED-
DING & ALLIED TRADES WORKERS UNION, LOCAL 92, UNITED FURNI-
TURE WORKERS OF AMERICA, C. I. O.
In the Matter of BURTON-DI%IE CORPORATION and FURNITURE, BED-
DING & ALLIED TRADES WORKERS UNION, LOCAL 92, C. I. O.
Cases Nos. C-2456 and R-3071, respectively. Decided March 26, 1943
Jurisdiction : bedding and furniture manufacturing industry.
Unfair Labor Practices
In General: employer found responsible for activities of non-supervisory em-
ployees who acted at its request,- and made an-ti-union statements in its pres-
ence without repudiation.
Interference, Restraint, and Coercion: inspiring and disseminating rumor con-
cerning wage increase and party contingent upon defeat of the union, insti-
gating or approving anti-union "activities of employees, permitting anti-union
signs to remain on its bulletin board, and giving party on respondent's time
and property to celebrate the defeat of the union at the polls.
Remedial Orders : cease and desist unfair labor practices.
Practice and Procedure : election Sset aside ; petition dismissed without prejudice
in view of the length of time which had elapsed since the election.
DECISION
AND
ORDER
Pursuant to a Decision and Direction of Election of the Board 1
an election was held on November 5, 1941, among the employees of
the respondent at its Newark, New Jersey, plant, to determine
whether or not the Union was the majority representative of the em-
ployees for the- purposes of collective bargaining. Having lost the
election, the Union, on or about November 13, 1941, filed objections
with the Regional Director alleging that the respondent had engaged
in certain unfair labor practices which had affected the outcome of
the election. The Regional Director investigated the objections and
reported to the Board that they raised substantial and material issues
and recommend that a hearing be held. On February 5, 1942, the
Union filed charges with the Board alleging that the respondent had
1 36 N. L. R. B. 322.
48 N. L . R. B., No. 75.
621
1\
622 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
engaged in unfair labor practices. On July 31, 1942, the Board issued
an order consolidating the above proceedings and directing that a
hearing on the objections and on the charges of unfair labor practices
be held.
. On De6ember'19, 1942, the -Trial--Examiner issued his Intermediate
Report, finding that (the respondent had engaged in and. was engag-
ing in certain unfair labor practices and .recommending that it cease
and desist therefrom and take certain affirmative action as set out
in the copy of- the Intermediate Report-attached hereto. No excep-
tions to the. Intermediate Report, were -filed by the respondent. The
Board has considered the rulings of the Trial Examiner at the hear-
ing and finds that no' prejudicial' error- was committed. The rulings,
are hereby affirmed. -The Board has considered the Intermediate
Report and the entire record in the case, and hereby adopts the find-
ings, conclusions and recommendations of the Trial Examiner, except
in the respects noted below.
1. The Trial Examiner found that Frank Salvatore was a super-
visory employee and that for this reason his activities were attribu-
table to the respondent. We do not agree with,this finding. Although
Salvatore was "in charge of a gang" . of -from 2 to 10 men, in our
opinion the evidence is -insufficient to .establish that his duties were of
such a nature that the employees would be warranted in believing, or
that they did in fact believe, him to be identified with the management.
However, upon all the evidence, particularly 'the fact that plant super-
intendent, Mathew Denardo, also stated that there would be a wage
increase if the Union lost the election, we concur in the conclusion of
the Trial Examiner that Frank 'Salvatore was acting' at the request
of the respondent in circulating the rumor concerning a wage increase
and a party in the event of a defeat of the Union, and that for this
reason the respondent is responsible for his activities in this respect.
2. Nor do we believe that it is necessary to determine whether or
not the respondent would ordinarily be responsible for the activities
of Carl Colucci, a shipping clerk. - The Trial Examiner found, and
we concur in this finding, that Colucci-thanked the three employees
for engaging in anti-union activities, in behalf,-.of the respondent.
Officials of the respondent, who were present at the party, failed to
repudiate this 'statement. In such circumstances, the respondent must
accept responsibility for the statements made by Colucci. -
Since the record establishes that the respondent engaged in* unfair
labor practices prior to the election, we find that the election was not
an expression of-the free will of-an uncoerced majority and therefore
should be set aside. We shall so order. However, in view of the
length of time which has elapsed since the election, we shall dismiss
BUR7`ON=DIXIE CORPORATION ' - 623
the petition for an investigation and 'certification without prejudice
to the right of the Union to file a ,new petition if it so desires.
ORDER
Upon the, entire, record in the case,, and pursuant to Section 10 (c)
of the National Labor Relation Act, the National Labor Relations
Board hereby orders that the respondent, Burton-Dixie Corporation,
Newark, New Jersey, its officers, agents, successors, and assigns shall :
1. Cease and desist from in any manner interfering with, restraining,
or coercing its employees in the. exercise of the right to self-organiz,--
tion, to form, join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to- engage in con-
certed activities for the purposes' of collective bargaining, or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
- (a) Post immediately in conspicuous places throughout its Newark,
New Jersey; plant, and maintain for a period of at least sixty (60)
consecutive days from. the, date of posting, notices to its, employees
stating that, the respondent ,will not engage in the conduct from which,
it is ordered to cease and desist in paragraph 1 of this Order;'
(b) Notify the Regional Director' for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
AND IT Is FURTHER ORDERED that the election held on November 5,
1941, among the employees of the Burton-Dixie Corporation, at its
Newark, New Jersey, plant, be, and it; hereby is, set aside; -and that
the petition for an investigation and certification of representatives
be, and it hereby is, dismissed., '
INTERMEDIATE' REPORT
Mr. Sidney Reitman, for the Board.
Mr. Otto A. Jaburek, of Chicago, Ill., for the respondent.
STATEMENT OF THE CASE'
Upon 'a second' amended charge duly, filed by Furniture; Bedding & Allied
Trades Workers Union, Local 92, United Furniture Workers of America; C. I. 0.,2
herein called the Union,,the National Labor Relations Board; herein called the
Board, by its Regional Director for the Second Region (New York City),, issued'
its complaint, dated August 25, 1942, against Burton-Dixie Corporation, Newark,
New Jersey, herein called the respondent, alleging that the respondent had
2 This is the same organization as that known by the shorter name, Furniture , Bedding
& Allied TraOes Workers Union, Local 92, C. I. 0.
624 DECISIONS OF.::NATIONTAL LABOR , RELcATIIONS , BOARD
engaged and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and Section 2 (6) and (7) of the National,Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and
notices of hearing thereon were duly served upon the respondent and the Union.
In respect to the unfair labor practices, the complaint, limited to the plant of
the respondent located at Newark, New Jersey, alleged, in substance, that from
approximately November 3, 1941, the respondent expressed disapproval of` the
Union ; urged and persuaded its employees to, refrain from membership, in. the
Union and to vote against that organization in a secret ballot election, conducted u
on November 5, 1941, pursuant to a direction of election of the Board ; and circu-
lated rumors that a wage increase and a party would be given if the employees
voted against the Union at the election The complaint further alleged that by
the foregoing conduct the respondent interfered with, restrained, and coerced'
its employees in the exercise of the rights guaranteed-in Section 7 of the Act.
• In its answer to the complaint, dated September 4, 1941, the respondent denied-
that it had engaged in the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held on November 21 and 23, 1942, at New
York City before the undersigned, Samuel Edes, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the, respondent were'repre-
sented by counsel. The Union did not appear and was not represented. The
Board and the respondent 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. At the close of the hearing, the under-
signed, without objection, granted a motion by counsel for the Board to conform
the pleadings to the proof adduced at the hearing in minor particulars. At the
conclusion of the hearing, oral argument, in, lieu of written briefs, was had on,
the record before the undersigned , .
. Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following: I ,
FINDINGS OF- FACT
I. THE BUSINESS OF THE RESPONDENT
Burton-Dixie Corporation is it Delaware' corporation having-its principal offices
in Chicago, Illinois. It maintains plants for the manufacture, sale, and distribu-
tion of bedding, mattresses, iron springs, studio couches,, pillows, comforters,
furniture-upholstery supplies, and related products at Chicago, Illinois ; Newark,
New Jersey ; Brooklyn; New York ; Kansas City, Missouri ; Memphis, Tennessee ;
Detroit, Michigan; and Blackburg, South* Carolina.
The present proceeding involves only the.plant at Newark, New. Jersey. The
principal raw materials used at the Newark plant consist of feathers, down,
cotton cloth, rayon, and celanese cloth. During, the period from January 1, 1942,
to July 30, 1942, substantially all such raw materials, amounting to approximately
450 tons, were shipped to the Newark • plant from points outside the State of
New Jersey During the same period approximately 400 tons of finished products,
consisting principally of pillows, were manufactured at the Newark plant,,approxi- .
mately 90 percent of which was shipped to points outside the State of New Jersey.
The respondent, has registered with the United States Patent Office. the following
trademarks: Vanity Fair, Slumberon, Izolin, and Ortho-Flex.
' The respondent admits.that it is engaged in commerce.within the meaning of-
the Act •
:,-xBURT0 ;DIXIE CORPORATION, :.: 625
U. THE ORGANIZATION INVOLVED
Furnitiiie, BeddingA Allied Trades Workers Union, Local 92, United Furni-
ture )Vorkers of America, is a labor organization affiliated with the Congress of
Industrial Organizations. It admits to membership employees of the respondent.,
Ill. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion-
- Pursuant'to a Decision and Direction of Election of the Board,issued October
21, 1941,,,a, secret ballot election was conducted on November 5, 1941, to ascertain'
whether the Union was the majority representative of the employees for,the pur-
poses of collective bargaining with the respondent at its Newark plant. Shortly
prior to the election, the evidence shows, the respondent undertook to influence
its employees to vote against the Union. About a week before the election, accord-
ing to the testimony of Joseph Cocuzza,, an employee of the, respondent,in this
period, Frank Salvatore,, a supervisor, approached him during working hours in
the plant and, after. asking him whether he knew of a rumor to that effect, told
him that the respondent intended, to, grant a 10 per cent wage increase, if the,
Union lost the election , Salvatore advised,Cocuzza not,to join the Union,because
he would'.be "better. off" with the increase In addition, Salvatbre requested'
Cocuzza to pass word' of the increase around to the other workers. Thereafter,
Cocuzza mentioned this' conversation to Thomas Freeman, a fellow employee.
Freeman told- Cocuzza that Salvatore had already spoken to him in like fashion.
Cocuzza further. testified that a'few.days before the'election Salvatore again spoke'
to him, stating that there was a rumor current that there would be a, party in
the recreation room of the plant if the Union was defeated at the polls, and asking
that he "pass the word around again". ,
At the hearing, Salvatore denied having engaged in the foregoing conserva-
tions with Cocuzza. The undersigned, based upon his observation of the witness
and upon all of the circumstances in the case including the facts, hereinafter
detailed, respecting the wage increase granted by the respondent and the recrea-
tion room party held immediately after the results of the election were-an-
nounced, does not credit Salvatore's denial. The undersigned finds that Salva-
tore did engage Cocuzza in conversations prior to the election and did make
the statements to him substantially as testified to by Cocuzza.
The respondent asserts, however, that it cannot in any event be held responsible
for the conduct of Frank Salvatore. George Gartz, plant manager in full charge
of the respondent's Newark operations, ,testified that Salvatore was not a super-.
visory employee, but was merely "considered a sort of straw boss" having no
authority even to reprimand the employees working under him. Gartz admitted,
however, that in a letter to a field examiner of the Board, dated June 22, 1942,
he described Salvatore as being "in charge of from two to ten men in a supervisory
capacity". Salvatore, himself,'indicated at the hearing that he "had charge of"
employees in the feather department of the plant which was under the full super-
ision of Matthew Denardo, plant. superintendent. Although testifying that be
had no disciplinary authority, Salvatore stated that those men in the depart-
ment who did not take orders directly from .Denardo were subject to his instruc-
tions as to what to do and that it was his duty to see to it that the work was
° Matter of Burton-Dixie Corporation and Furniture, 'Bedding & Allied Trades Workers
Union, Local 9E, C. I. 0_ Case No. R-3071, 36,N. L. It. B. 322.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
done. In these circumstances,' it is clear that the employees at large would,
because of his position and duties , reasonably look upon Frank Salvatore as an
authorized representative of the respondent and would view his conduct as
reflecting the wishes of the management. • Moreover, the record, viewed in its
entirety, amply indicates that Salvatore was acting at the direct behest of the
respondent, not in any personal capacity, in fostering and disseminating the
rumors concerning a wage increase and party contingent upon defeat of the
Union. The undersigned finds that the statements and conduct of Frank Salva-
tore in this connection are attributable to the respondent.`
On the morning of the election, according to Cocuzza's testimony, Cocuzza be-
came apprehensive that the respondent might believe he was a union adherent:
Accordingly, he questioned Frank Salvatore on this score. Salvatore suggested
that he discuss the matter with Denardo. Cocuzza went to Denardo and asked
whether there was going to be a wage increase. Denardo replied, "Well, there is
if the shop wins ,and if the shop loses * * * there won't be." Cocuzza then
told Denardo : "I am for the shop. I just wanted you to know about it."
Denardo approved, stating, as Cocuzza testified, "Well, I am glad to hear it."
Denardo did not deny having a conversation with Cocuzza in this period. How-
ever, Denardo's version of what occurred was substantially different from that
of •Cocuzza. According to Denardo, Cocuzza entered his office and commenced'
to tell him that he was for the shop and against the Union, but before he could,
get any further Denardo cut him off with the statement, "Joe, I don't want to'
hear, nothing ,about that. I don't want to get mixed up in any of your affairs at
all. Just forget about it." For reasons sufficiently set out hereinafter, the
undersigned finds that Denardo was not a trustworthy witness. The undersigned)
does not credit his testimony of what, occurred on this occasion, but finds that
the conversation as detailed,by Cocuzza is substantially what occurred in' fact.'
On the morning of the election, according to the further testimony of Cocuzza,
two employees, Matilda Petrillo and Hazel McKee, who worked in the comforter
department on the second floor of the plant, spent from 45 minutes to an hour in
the pillow department on the third floor of the plant. In this period Cocuzza
observed Petrillo and McKee approach various of the employees in the depart-
ment during working hours and overheard them telling-one group that there wasi
going to a 10 percent wage increase' and that they should not be foolish but should.
vote for the respondent and against the Union Joseph Salvatore, foreman of
the pillow department," could not testify that Petrillo and McKee did not engage
in such activity. The pillow department is distributed among all four floors of
* In so finding the undersigned has fully considered the fact that Salvatore was permitted
to vote at the election and that his ballot was not challenged. This, in the view of the
undersigned , is not a material ' consideration . Salvatore was eligible to vote since the
appropriate collective bargaining unit found by the Board upon stipulation of the parties'
included "working. foremen". See Matter of Burton-Dixie' Corporation and Furniture,'
Bedding it Allied Trades Workers Union, Local 92, C. I. 0., Case No R-3071, 36 N L. R. B.
322, 324. Further, the record shows that Carl Colucci, admittedly. head of the shipping
department and. having authority to discharge, was also permitted to vote at the election.
The respondent may not avoid responsibility' for the conduct of its supervisory staff based
upon a distinction between "working" and "non-working" supervisors . The former no
less than the latter may, because of their status as supervisors , be viewed as management
,representatives, the conduct of iihom is binding upon their employer.
5It is significant to note that either version of this incident tends to discredit Frank
Salvatorels denial that he engaged in the, conversations with Cocuzza detailed above. Had'
no such conversations occurred, indicating hostility of the respondent toward the Union`
and a propose to defeat it at the election, it'is not likely that Cocuzza Would have entered
the office of the plant superintendent and; lacking any apparent reason ,' have announced'
that he was on the side of the management in the forthcoming contest at the polls.
Joseph Salvatore is the father of Frank Salvatore , referred to above
BURTON'-DIXIE CORPORATION 627
the plant and Salvatore , as he indicated , may have been on another floor ' at,the
time. Salvatore merely testified that he did not see Petrillo or McKee on the
third floor and that no one reported their presence to him that morning. Neither
Petrillo nor McKee were called to testify . The undersigned credits the testi-
mony of Cocuzza as to this matter and finds that Petrillo and McKee - did spend
from 45 minutes to an hour in the comforter department on the morning of the
election circulating the rumor of a wage increase and urging the employees to
vote against the Union . Rachael Collatrella , an employee of the respondent in
this period , testified that on the morning of the election Petrillo during working
hours in addition walked through the comforter department on' the second floor
wearing a prominent sign on her back bearing the statement "Vote No". The day
before, Collatrella testified another employee , Marion Miller, passed through the
department to the adjacent sewing room during working hours wearing a similar
sign which stated "Vote No Tomorrow ". The evidence demonstrates that the
foregoing activity of Petrillo , McKee, and Miller , was inspired by or , at the least,
approved by the respondent It does not seem likely that the widespread activity
of these employees on company time and property was not known to their supe-
rior, William McKenna, foreman of the comforter department . No steps were
taken to halt this activity McKenna was not called to testify In addition, as
hereinafter found , at the party held in the respondent ' s recreation room after the
election to celebrate the defeat of the Union , Carl Colucci , head of the respondent's
shipping department , openly thanked Petrillo, McKee , and Miller for their work on
behalf of the respondent in securing the repudiation of the Union The under-
signed, in all of the circumstances , finds that Petrillo , McKee , and Miller engaged
in the activity described above, and that in doing so they acted at the instance of,
or, at the least , with the full approval of the respondent . In either event, the
undersigned finds , the conduct of these employees is attributable to the respondent.
Prior to the election, in addition , according to the testimony of Collatrella,
signs urging the employees to vote against the Union and comparing the Union
with Hitler, appeared on the bulletin board in her department She testified
that these signs were put up by girls in her department The respondent,
admittedly , did not permit its bulletin boards to be used for any purpose not
approved by it The anti -union signs , however, were not removed Gartz and
Denardo testified that no such signs were posted . The undersigned , in all of the
circumstances ,, does not credit their testimony , and finds that such notices were
posted to the knowledge and with the approval of the respondent.
The election directed by the Board was held on November 5, 1941 , between
12 and 1 p . in at a designated polling place situated near the plant At 1 p. in
the-ballots were counted; the Union had lost by a vote of 34 to 97. The "rumors"
concerning a wage increase and party if the Union lost the election at once
materialized In Cocuzza 's department , according to hns^ testimony , Denardo
entered, advised Joseph Salvatore in a loud voice that "the shop won," and told
Salvatore that there was going to be a party in the recreation room and that
he should so advise the employees . Salvatore did so In Collatrella 's depart-
ment, according to her testimony , as soon as the election results were announced,
the employees, because of the widely current rumor that there would be a party
in the recreation room, left their places and went to the recreation room` Some
of the girls proceeded to the office of Plant Manager Gartz to congratulate him.
In short order , all the employees assembled in the plant recreation room There,
according to both Collatrella and Cocuzza , the employees gathered about in groups,
talking, dancing to the music of the radio , and drinking coca cola, beer and,
whiskey which Denardo distributed. Collatrella testified that she saw Denardo
give one of the employees some money and heard him instruct the employee to
521247-43-vol. 48-41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go out and purchase some whiskey and beer'; shortly thereafter the employee
returned with a carton of cans of beer and 2 or 3 bottles of whiskey. While
in the recreation room, the employees were addressed by Gartz According to
Collatrella, Gartz stated that he had had a'wage increase for the employees in
mind for about 3 weeks but had'refrained from putting it in effect for fear that
the Union might charge him with an effort to influence the election. Now that
the election was over, Gartz stated, he desired to announce that the employees
would receive a wage increase of 10 per cent. • Gartz then thanked the employees
for their loyalty to the management and stated that lie knew the identity of
all but two of the workers who had voted for the Union. Sarah Freeman, an
employee, corroborated Collatrella s testimony in this connection. She testified
that Gartz "thanked all the ones that voted for the shop," and stated that lie
"could count the ones that voted for the union and the ones that voted for the
shop." Collatrella testified that, in addition, Denardo also thanked the employees
for their loyalty to the company Collatrella, Freeman, and Maggie Tucker, an-
other employee, also testified that Coluccr announced, in effect, that he desired
to thank Petrillo, McKee and Miller for the fine work they had done for the
respondent in helping to win the election ; these employees were stood upon a'
table and applauded by the assemblage The reci eation room was kept open
for the employees that afternoon until about 4 o'clock ; by that time all of the
employees had left. The workers thereafter were paid for a full day, although
none had worked the afternoon of the election.
The. foregoing testimony as to what occurred immediately after the announce-
ment of the election results was sharply disputed by the respondent's witnesses.
Gartz and Denardo admitted that the employees were gathered in the recreation
room that afternoon, that they were addressed by Gartz, that no work was
accomplished, and that they were thereafter paid for a full day. However,
according to the further testimony of these officials, the respondent was in no
way responsible for these events. Denardo testified that shortly before 1 o'clock,
when the employees were due to return to work, all but about 20 of the 130
workers employed at the time were gathered in the recreation room He there-
upon directed them to get to work, but, as he testified, "it didn't do much good "
Thereupon, Denardo asserted, he went to the boiler room and blew the factory
whistle. When he returned to the recreation room, he testified, the workers
were still there. He again ordered them to go to work but, he asserted, they
literally laughed in his face and told him they did not want to work; he was
successful in persuading only about a dozen workers to -return. Thereafter,
until about 1. 30 p. in., Denardo did nothing more As he put it, "Well, then I
just stod there and done the best I could to keep them orderly * * y'." ' At
about 1 • 30 p in., undisputedly, Gartz entered the recreation room. According
to Gartz, the first indication he had that the employees were not at their work
was at about this time when he heard noises coming from the recreation room.
Accordingly, he testified, he left his office, which was situated nearby, entered
the recreation room, and asked Denardo why the employees were not at work.
Denardo stated that he was unable to get the employees to work According
to Gartz and Denardo, Gartz instructed Denardo to call the employees who
were then in the plant down to the recreation room so that he could address the
entire force in a body and persuade them all to return to work ' Denardo denied
that he told any of the foremen to send their employees to a party in the recrea-
tion room. In this he was joined by Joseph Salvatore Denardo testified that
at Gartz's direction he merely instructed the foremen to send the employees
who were in the plant down to the recreation room When this was done, Gartz
addressed the employees. According to his testimony he merely thanked the
BURTON-DIXIE CORPORATION 629
employees for the orderly manner in which the election had been conducted,
told them that he had withheld a contemplated wage increase because he did
not want the Union to charge that he was trying to influence the voters, but now
that the election was over he desired to announce that there would be an increase
of from 8 to 10 percent effective the following week, and directed them to return
to work immediately because of the urgency of filling government contracts.
Gartz denied-thanking the employees for their loyalty or making any statement
that he knew who had voted for the Union. Gartz testified that the reason he
announced the wage increase was that he thought he could persuade the employ-
ees to return to work as a result of such announcement. Colucci denied thanking
Petrillo, McKee, and Miller for their work in securing the repudiation of the
Union
The undersigned, in all of the circumstances, is unable to credit the testimony
of the respondent's officials. It is unrealistic to believe that the employees, without
inspiration from their employer, would spontaneously decide to stage a party in
the recreation room after the election or that, if they did so decide, that the
respondent's officials would not have been able, if so disposed, to get the workers
back to their jobs.' In the view of the undersigned, it is too much to expect of
.sheer coincidence that the rumors of a wage increase and a party contingent upon
defeat of the Union should materialize with such exactness unless so deliberately
planned and executed by the respondent Moreover, the record affirmatively
indicates the improbability and untrustworthy character of the testimony of the
respondent's officials. Thus, for example, no explanation was offered by Denardo
why, as he testified, he commenced urging the employees to return to work even
before 1 o'clock, when they were due to start. According to Denardo, he could
not even have had any suspicion at that time that they planned to hold a party,
since he was not then aware of any rumor or other indication that there would be
a party Denardo admitted that on no prior occasion did he urge employees to
return to work before the factory whistle blew. On all prior occasions, he
,testified, "I didn't care if they gathered [in the recreation room] before the
whistle blows " Denardo's testimony, indeed, leaves little doubt that in fact he
made no effort to return the employees to their work. Denardo testified that`he
had never before had any difficulty getting the employees to_obey him, and that
they always respected and followed his orders He admitted that on this occasion
he made no effort to turn the'radio off, to turn the lights out, or to threaten to
close the recreation room. Further, although lie testified that the employees
-deliberately and openly defied his instructions to return to work and that he shortly
found himself unable to cope with the situation, he admitted that he made no
effort to call his superior, Gartz Although Gartz sought to have it appear that
lie had no indication before about 1: 30 p. in. that there was anything amiss, he
testified that he met Denardo prior thereto and, as he put it, "I could tell there
wasn't very much work going on." Yet, it clearly appears that Gartz made no
effort to investigate or otherwise indicate any concern about the matter Further.
Gartz, after testifying that he addressed the employees in order to get them to
return to work, admitted on cross-examination that "the main purpose was to
tell them about the increase." Denardo, too, while purporting to be concerned
with the failure of the employees to return to work, testified that the "only" part
of Gartz's speech in which he was interested was the announcement relating to
the wage increase In addition, while Gartz testified that after his speech he
returned to Denardo the job of getting the employees back, Denardo testified that
following the speech he made no effort to do so. ' It is significant, moreover, that
the'respondent did not call a single employee to testify that its officials took any
steps to get the employees to work that afternoon.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was not disputed that coca, cola was served in the recreation room. Denardo
denied, however, that beer and whisky were distributed at his instance. He
admitted that he may have seen some of the employees with' a bottle of whisky
and that he took no action in regard to this, although liquor was not permitted in
the recreation room or in any part of the respondent's premises . In this general
connection the testimony of Gartz is additionally illuminating. In the face of. the
employees' purported defiance of his orders to return to work, Gartz testified that
he nevertheless issued instructions thereafter to open the coca cola ,vending
machine to permit them to obtain bottles of coca cola without the necessity of
depositing a coin.
Denardo in other ways demonstrated his unreliability as a witness. He denied
that there was or could have been a rumor current about a wage increase. He
testified that he did not himself have any knowledge that there would be a wage
increase until Gartz told him about it a few minutes before the speech in which
the announcement was made to the employees. Although lie was in charge of
hiring and firing, he testified, Gartz never consulted with him in respect to generalJ
wage increases . At a later point, however, Denardo admitted that Gartz had
discussed with him beforehand the last general wage increase granted in
April 1941.
In respect to the payment of the employees for the afternoon of the election,
Gartz and Denardo testified that no decision was made to pay the workers
for the time lost until the following day, when demands were made by the
employees for such payment. The explanation is not credible. It is scarcely
likely that employees who, according to Gartz and Denardo, voluntarily and
contrary to the directions of their superiors refused to work would make
demands for payment for the time, not worked. Nor is it at all likely that
the respondent's officials would, in the circumstances described by them, have
acceded to any such request. I
In all the circumstances, the undersigned credits the testimony of the wit-
nesses of the Board as to what occurred on the afternoon of the election and
finds that the employees were. invited to the recreation room by the respond-
ent on the afternoon of the election, that the respondent, in accordance with
the rumors theretofore fostered and inspired by it, gave the employees a
party in the recreation room in order to celebrate the defeat of the Union
at the polls, that the respondent thanked the employees for their loyalty to
it ae the election and particularly expressed thanks to Petrillo, McKee and
Miller for their efforts in achieving this end, that the respondent served whis-
key, beer, and coca cola at the party, and that, in accordance with plan, the
employees were paid for the time spent at the party.
The undersigned finds that by its conduct prior to the election in inspiring
and fosteripg the dissemination of the rumors concerning the wage increase
and party contingent upon defeat of the Union, its instigation or approval of
the activity of Petrillo, McKee, and Miller, and its donation of a plant bulle-
tin board for the posting of anti-union signs, and by its conduct following the
election, as found above, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7 of the Act.
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 com-
merce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
'BURT'ON=DIXIE CORPORATION
V. THE REMEDY
631
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act
.Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undesigned makes the following:
CONCLUSIONS of LAW
1. Furniture, Bedding & Allied Trades Workers Union, Local 92, United
Furniture Workers of America, C. I. 0., 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 exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Burton-Dixie Corporation, New-
ark, New Jersey, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization to
form, join, or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid and protection, as guaran-
teed in Section 7 of the National Labor Relations Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places in its plant at Newark, New
Jersey, and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices stating: (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 of these recommendations; and (2) that the respondent's
employees are free to become or remain members of Furniture, Bedding &
Allied Trades Workers Union, Local 92, United Furniture Workers of America,
C. I. O. ; '
(b) Notify the Regional Director for the Second Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the e respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of
the National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of
the order, transferring the,case to the Board, pursuant to Section 32 of Article
II of said Rules and Regulations, file with the Board, Shoreham Building,
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Washington , D. C., an original and four copies of a statement in writing set-
ting forth such exceptions to the Intermediate Report or to any other part of
the record or proceeding ( including rulings upon all motions or objections)
as he relies = upon, together with an original and four copies of a brief in
support thereof . As further provided in said Section 33, should 'any party
desire permission to argue , orally before the Board, request therefor , must ° be
made in writing to the Board within ten ( 10) days from the date of the- order
transferring the case to the Board.
SAMUEL EDES.
Trial Examvner.
Dated December 14, 1942.