Custom Chair Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 19, 1968

170 N.L.R.B. 454 (N.L.R.B. 1968)

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Custom Chair Mfg. Co. and Upholsterers ' Interna-
tional Union of North America, Local No. 15,
AFL-CIO. Case 21-CA-7587 (formerly
3 I-CA-692)
March 19, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 11, 1967, Trial Examiner Robert
Cohn issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief; the General Counsel filed an answering brief,
cross-exceptions, and a supporting brief; and the
Respondent also filed an answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
' The Respondents request tor oral argument is hereby denied as the
record, including the exceptions and briefs, adequately presents the issues
and the positions of the parties
2 The General Counsel excepted to the Trial Examiner's failure to find
that the Respondent, as alleged in the complaint, unlawfully discharged
employees Rochelle, Castilleja, and Valdez on April 25, 1967, because of
their participation in a strike against the Respondent We find merit in this
exception, as the record shows that the Respondent's president, in dis-
tributing paychecks to these employees while they were on the picket line,
told them that they were terminated as they were warned the day before
that they would he if they failed to cross the picket line By thus discharging
its employees, we find that the Respondent violated Section 8(a)(3) and
(I) of the Act In the attendant circumstances, however, we shall adopt the
Trial Examiner's Recommended Order which requires that the Respondent
offers the atorement,oncd three employees reinstatement and awards them
hackpay from Junc 21, 1967, when they unconditionally applied, without
sucess, for reinstatement
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Custom Chair Mfg. Co., Gardena, California, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Delete the last two indented paragraphs con-
tained in the notice attached to the Trial Ex-
aminer's Decision and substitute the following para-
graph therefor:
WE WILL offer immediate reinstatement of
Clarence Barrett, Mary Rochelle, Natividad
Castilleja, and Thomas Valdez, and make them
whole for any loss of pay they may have suf-
fered as a result of our discrimination against
them.
2. Add the following immediately above the line
at the bottom of the Appendix attached to the Trial
Examiner's Decision:
WE WILL notify the above-named employees,
if presently serving in the Armed Forces of the
United States, of their right to full reinstate-
ment, upon application, in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner. This proceeding
under Section 10(b) of the National Labor Rela-
tions Act, as amended (herein called the Act), with
all parties represented, was heard at Los Angeles,
California, on August 1 to 3, 1967,' upon a com-
plaint of the General Counsel of the National Labor
Relations Board, dated June 7.
The complaint alleges, in substance, that Custom
Chair Manufacturing Company (herein called the
Respondent or Company) violated Section 8(a)(I )
and (3) of the Act by engaging in certain described
conduct more fully detailed herein.' By its duly
filed answer, Respondent generally admitted the ju-
risdictional allegations of the complaint, but denied
the commission of any unfair labor practices. At
the hearing, all parties were given full opportunity
to present evidence, to examine and cross-examine
the witnesses, to argue orally, and to file briefs.
Oral argument was waived. Subsequent to the hear-
ing, helpful briefs were filed with me by counsel for
each party.
Having considered the record as a whole, the
briefs, and the arguments of counsel, and upon my
All dates hereinafter refer to 1967 unless otherwise specified
2 The charge upon which the complaint is based was tiled on April 20
(subsequently amended on May 24) by Upholsterers' International Union
of North America, Local No 15, AFL-CIO (herein called the Union)
170 NLRB No. 62
CUSTOM CHAIR MFG. CO. 455
observation of the demeanor of the witnesses while
testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
The Respondent is a California-corporation, en-
gaged in the manufacture and sale of upholstered
furniture at Gardena, California. During an annual
period, the Respondent, in the normal course of
conduct of its business operations, sells and ships
products valued in excess of '$50,000 directly to
customers located outside the State of California.
The answer admits, and I find, that the Respondent
is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
The complaint alleges, the answer admits, and I
find, that the Union is now, and has been at all
times material, a labor organization within the
meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Setting of the Issues
As previously noted, the Respondent, at its
Gardena plant, is engaged in the manufacture of
upholstered furniture, where it employed at all
times material herein, approximately 38 production
employees. Admitted agents of Respondent are its
president, Anthony (Tony) Musso, his brother
Joseph Musso, the vice president, and Sam Izzo, the
superintendent of the plant. At issue is the super-
visory status of one Robert Pisciotta, a foreman or
leadman in the upholstery department.
The events giving rise to the issues in this case
centered- in April when some of the employees en-
gaged in union organizational activities. Agents of
the Respondent had interviews, both individually
and collectively, with the employees _respecting
such activities, and caused to be conducted a poll
(or polls) among the employees in order to -ascer-
tain the extent of interest. The General Counsel
contends that certain statements made by such
agents, and the conducting of such polls, con-
stituted interference with, restraint, and coercion of
employees in violation of Section 8(a)(1) of the
Act. On or about April 19, the - Respondent
discharged one of its employees, Clarence Barrett,
assertedly for insubordination. However, the
General Counsel contends that the real reason for
such discharge was because the said Barrett was in-
strumental in the union campaign, and the
discharge was for the purpose of discouraging
membership, in the Union in violation of Section
8(a)(3) of the Act.
On or about April 25, certain of the employees of
Respondent concertedly ceased work and went on
strike. The General Counsel argues that the strike
was caused and prolonged by the Respondent's un-
fair labor practices and that three employees who
engaged in the strike were discharged because of
such conduct. The Respondent contends that the
strike was motivated by economic reasons, and that
the three employees were legally, replaced before
they made an unconditional offer to return to work.
The Respondent also contends that-the three em-
ployees forfeited any right to reinstatement by en-
gaging in unprotected activities while on the picket
line.
The issues thus stated, we proceed to an analysis
of the evidence relating thereto:
B. The Organizational Campaign and its
Reverberations
Activities of the employees looking toward bring-
ing the Union into the plant commenced on the
morning of April 18. Apparently the idea ger-
minated in the mind of employee Trinidad- Leon
Zaragoza (who is commonly known as Leon), who
approached fellow employee Natividad Castilleja
and asked what he thought about the Union. The
latter replied that he was for the Union if they
could get it in, so Leon secured a plain sheet of
paper and signed it at the work bench of employee
Clarence Barrett, one of the alleged discriminatees
herein. Also present, in addition to the three named
employees, were Tom Valdez and two others. Leon
signed the paper first, Nat was second, and Barrett
was third. The paper was then passed around the
plant for any employee who desired to.sign it. Leon
requested Barrett to contact an official of the
Union and set up a meeting, which was done. The
meeting was scheduled and held at the home of
Barrett the following evening, Wednesday, April
19.
Near quitting time on April 18, sewing employees
Madeline Garcia and Stella Bingham were called
into-President Anthony Musso's office, and asked
by him why they had signed the paper. Garcia
replied that she had been a union member previ-
ously, that she still had a withdrawal card, and that
it would ``not look good" for her not to sign -the
petition. Bingham stated that she signed because
the other employees did, and that she "just went
along with them." Musso stated that the question of
union representation was up to the employees and
if the majority wanted it, he would go along. How-
ever, he told Bingham that he had authorized a
raise for her the previous Friday, not realizing that
she was underpaid.3
The following day, Wednesday, April 19, em-
ployee Clarence Barrett was discharged under cir-
The foregoing findings are based upon the uncontradicted testimony of
Garcia and Bingham Musso, although called as a witness by the Respon-
dent. was not interrogated as to this conversation
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances which will be more fully set forth, infra.
Later that evening, as previously noted, a union
meeting was held in Barrett's house which was at-
tended by approximately 15 of the Respondent's
production employees. At the meeting, Union
Agent Jessie Gonzales spoke to the employees con-
cerning the advantages of the Union, as well as rais-
ing the question of Barrett's discharge and what ac-
tion, if any, to pursue with respect to that.
The following day at the plant, Anthony Musso
held several meetings of the employees in his office
with respect to the Union. The first meeting in-
volved the approximate 10 or 12 employees in the
upholstery department. He stated that he un-
derstood that the employees had signed a petition
to bring in a union , and if that was what they really
wanted , he would call up the Union himself and
sign a contract. He advised them, however, that he
did not think that the Union could offer them any
more than he could. (The record indicates that he
had theretofore attempted to keep the wage rates
and other working conditions in his plant compara-
ble to those existing in union shops.) He made
reference to the Union's insurance policy and
stated that his was better since he could take his
wife to her own doctor, and opined that they were
foolhardy if they were seeking union representation
for that reason. He pointed out further that most of
the employees were already getting the union scale
as far as -wages -were concerned and he could not
see where the advantage of the Union would be in
that respect. - Continuing, he stated that he was
"embarrassed" because he had just the preceding
Friday and Monday spoken with bookkeeper
Frances Alonge and granted wage, raises to "most
of the-people in the mill or the ones that deserve
the raise . . and that that was done. without any
announcement to the people involved.' Employee
Leon Zaragoza testified that during the meeting
Musso asked him individually why he had signed
the petition. Zaragoza replied that the reason was
because he was a nickel under the union scale to
which Musso responded that he had forgotten and
that it would be made up to Zaragoza. The latter, in
fact, received a wage raise that week.'
Musso closed the meeting by indicating to the
employees that he wished them to determine
whether they wanted a union or not. He advised
that he.did not care how this was accomplished-
whether by a show of hands or by voting secretly,
but he wanted to know so that he could "call up
Jessie [Gonzales] and tell him if you want the
Union."
Following that meeting, he held another in his of-
fice with the female seamstresses , in which the
same general format and subject matter obtained.'
During the lunch hour that day, a poll.was con-
ducted by the employees, Leon Zaragoza and Bill
Brozovich. They gave the employees a blank piece
of paper on which the latter wrote "Yes" or "No"
and placed it in a baseball hat. The ballots were
then-taken into Anthony Musso's office where he
proceeded to count them. The vote was 18 for the
Union and 17 against . Musso stated that the vote
was not conclusive' because one employee did not
vote. (Natividad Castilleja was not at work due to
illness. ) Zaragoza advised Musso that . Castilleja's
was a "Yes" vote, but Musso replied that that did
not make any difference-they still had to have his
ballot. -
About an hour later Leon Zaragoza and Bill
Brozovich were called back .into Anthony' Musso's
office. Present in addition to' Musso, were Superin-
tendent Izzo, Foreman Bob Pisciotta, and John
DeLuccio, a foreman in the mill. Musso stated that
the first vote could not be considered valid because
it included the employees in the mill who would
more appropriately come under a different union.'
Musso requested that another vote be taken
omitting the mill employees, and it was, so -agreed
by those present. Zaragoza testified that,- at this
time, Musso again asked why he wanted a union, -to
which Zaragoza replied that he.wanted a raise. He
also told Musso that on the first vote he wanted to
vote against the Union but was afraid to do so for
fear that he- would lose his job. Musso assured him
that however he voted, he would not lose his job.'
Whereupon, a- second election was then con-
ducted among the upholsterers, seamstresses, and
cutters while they were at work. Zaragoza- and
Brozovich secured pieces of paper and cut them up
into ballots. The employees voted while at their
work stations and"placed the ballots back into a box
which Zaragoza, at the completion of the balloting,
carried, into Musso's office: The latter again
counted the votes and the result was 6 for the
Union and 21 against. This tally of ballots was
signed by Brozovich, Zaragoza, and DeLuccio and
posted on the plant bulletin board by 'Brozovich.9
Employee Edward Gonzales testified that -on
Thursday, April 20,. he had a conversation with
Respondent's vice, president, Joe Musso; at his
However, the actual facts with respect to it hen the raises in wage rates
were determined were not exactly in accord with what Musso stated on this
occasion, as u ill he fully discussed, i nfra
,The foregoing finding is based upon the credited testimony of
Zaragoza, Musso was not interrogated with respect to that particular con-
versation
"There was some evidence that in the women's meeting, Musso stated
that there would he some changes in working conditions should the Union
come in the plant However, the testimony on this point is quite vague, in-
definite, and conclusionary
-The "mill" constituted the carpentry part of the Respondent's opera-
tion, which was separated by partition from the furnitund- making and
upholstery functions Musso was doubtless referring to the Carpenter's
Union when be made the above stated reference.
"The foregoing finding is based upon the credited testimony of Zaragoa,
none of the other persons present were interrogated with respect to that
particular conversation .
The results of the first election were simply passed throughout the plant
by word of mouth
CUSTOM CHAIR MFG. CO.
workbench at about lunchtime. Musso asked him
whether he signed the list for the Union, and he
replied that he had. Then Musso inquired if Gon-
zales knew who had the list, to which Gonzales
replied in the negative. (He testified that he, in fact,
knew who had the list but did not want to tell Mus-
so.) Musso became angry and told Gonzales that he
was going to fire everybody or close the shop
because he did not want the Union to come into the
place.'o
Employee Donald Ladd testified that on
Thursday, April 20, in the afternoon, Joe Musso ap-
proached him at his worktable and inquired
whether or not he signed the paper for the Union.
Ladd's answer was noncommittal. Whereupon,
Musso advised that Ladd had a raise coming that
week but that if his name was on the list he would
be fired."
Employee Thomas Valdez testified that the fol-
lowing day, April 21, he had a conversation con-
cerning the Union with President Anthony Musso.
The latter requested that Valdez not talk about the
Union on worktime, to which Valdez replied that if
he talked about the Union it would be "on his own
time." Then Musso inquired, "Why are you doing
this to me?", to which Valdez responded, "for more
wages ... probably Dwayne (Pisciotta) is not even
getting enough wages-scale rather." Musso asked
"if I prove it to you, will you stop it?", to which
Valdez did not reply. Later, leadman Bob Pisciotta
came by and advised Valdez to talk it over with
Musso and "see what you can work out." Ac-
cordingly, later on in the day, Valdez went into
Musso's office and discussed wages. Valdez was al-
ready making "over scale," or $3.30 per hour.
Musso said that the only employee who would
benefit would be his nephew, Joe Musso, Jr., who
was getting $3.10 per hour. Musso had a union con-
tract which he showed Valdez. About this point in
the conversation, Vice President Joe Musso came
into the office and accused Valdez and Clarence
[Barrett] of starting the Union. Valdez denied it.
Anthony Musso then told Valdez that he had fired
Barrett because "he cussed out his brother. "12
On . Friday afternoon, April 21, employee
Natividad Castilleja returned to the plant to pick up
his check. (It will be recalled that he was out
several days that week because of illness.) He was
told by the bookkeeper that Anthony Musso had
the check and that he (Musso) wanted to talk to
Castilleja. Accordingly, the latter proceeded into
"' The foregoing is based upon the credited testimony of Gonzales, Joe
Musso was not called as a witness although it was not shown that he was
unavailable.
" The foregoing finding is based upon Ladd's testimony, as corroborated
by the testimony of employee, Mary Rochelle Ladd was not impressive as
a witness and his testimony was quite vague and indefinite, requiring con-
siderable support and refreshment,by reference to his prehearing affidavit
Under such circumstances, I would be quite reluctant to credit such
testimony However, in view of the fact that Musso was not called as a wit-
457
the office where Anthony and Joe Musso were
seated. The following colloquy took place:
Q. What was said and by whom when you
were in the office?
A. Well, I went in, and Tony said, "Sit
down." He said, "Well, do you know that we
are in trouble?"
I said, "What do you mean?"
He said , "The union deal that we heard that
you are the gangleader of this union deal."
I said, "Oh, is that what they say?"
He asked me if I wanted the union, did I sign
the paper.
I said, "Yes, I did."
So, he started asking me why. So I told him
that, well, because of wages, security, having
somebody to go to in case something happened
to me , somebody to back you up or help you. -I
told him about pension.
He said, "We won't be -here 25 years."
I said , "Well, I don't know. Nobody can say
that."
Then they asked me-he said it was my
prerogative if I wanted to join the union just
like a religion.
There was some more discussion in which
Anthony Musso advised Castilleja that the reason
for Barrett's discharge was because the latter
"cussed his brother"; he also advised that he had
"given some guys raises, that they were going to get
it that very day on that pay check ...." He then
advised Castilleja that there was going to be a
picket line on Monday and asked if he was going to
cross it or not. The latter replied that he did not
know-that he would have to wait until Monday
and see what happened. Joe Musso- then said that if
he stayed outside (honored the picket line), he
might be fired but Anthony Musso responded, "No,
we won't do that." When Castilleja started to leave,
Anthony Musso asked him if he would not change
his mind about the Union, to which Castilleja said
"no 1113.
On Monday, April 24, shortly before quitting
time, Anthony Musso called all the employees
together and gave a short speech. He told them that
he thought that they had put an end to the Union in
the shop but that he understood there was going to
be a picket line in front of the plant the following
morning. He stated that if the employees wanted a
Union they could have one, but that they should
look into it carefully before they designated the
ness to explain or deny the conversation, and since it was corroborated by
another employee only 4 feet away , I find that the conversation occurred
substantially as herein set forth.
12 The foregoing findings are based upon the credited testimony of Val-
dez, Anthony Musso was not interrogated concerning the conversation
and, as above noted, Joe Musso was not called as a witness.
"The foregoing findings are based upon the credited testimony of
Castilleja. Again, Anthony Musso was not interrogated concerning this par-
ticular conversation and Joe Musso was not called as a witness
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union to represent them. He said that if there was a
picket line and if a majority of the employees did
not cross the line, he would sign a contract with the
Union; however, he hoped that all of the employees
would come to work whether they wanted the
Union or not since he needed them. He then asked
if there were any questions, and there was no
response from the employees. Musso then turned to
Jim Cavallo, foreman in the cutting department, to
Superintendent Sam Izzo, and to Bob Pisciotta,
leadman in the upholstery department, and asked if
they had anything to add.14 Only Pisciotta
responded. He stated that ". . . the Company, as far
as [he] interpreted it, wanted everybody to cross
the line and come to work and that if they didn't
come to work that it would mean that they didn't
want to come to work under the conditions that
they were operating under, and that they would be
automatically terminated.15 While Pisciotta was
making this statement, Musso was standing by,
although he was apparently preparing to return to
his office.
Analysis and Concluding Findings as to Section
8(a)(1) Allegations
1. Threats of reprisal
It is, of course, well established that a statement
by a supervisor to an employee that the latter
would be discharged or the plant would be closed if
a union came in constitutes restraint and coercion
of employee rights protected by Section 7 of the
Act, thereby violating Section 8(a)(1) of the Act.
Having found that Vice President Joe Musso made
such a statement to the employee Edward Gonzales
on April 20, I conclude that, by such threat,
Respondent violated Section 8(a)(1) of the Act.
I have found that during a conversation among
Anthony Musso, Joe Musso, and Natividad Castil-
leja on Friday, April 21, Joe Musso stated to the
employee that if the latter honored the picket line
he might be fired. General Counsel argues that that
statement constituted a threat of interference with
employee rights violative of the Act. While or-
dinarily I would agree, Castilleja's own testimony
indicated that immediately following Joe Musso's
statement, Anthony Musso responded, "No, we
won't do that." Under these particular circum-
stances, I agree with Respondent's contention that
Anthony Musso's repudiation neutralized the threat
and renders a finding of violation unwarranted.
It is likewise well established that the statement
of Bob Pisciotta to the assembled employees on
Monday, April 24, that if they did not come to
'vork (cross the picket line) the next day they
would be "automatically terminated," constitutes a
violation of Section 8(a)(1) of the Act, if Pisciotta
is one for whom the Respondent is legally ac-
countable. That is to say that it is clear that a threat
to discharge an employee for engaging in protected,
concerted activity violates the statute if the one
making the threat is a supervisor or other agent of
the Respondent. The record reflects that Pisciotta,
as leadman or foreman of the upholstery line, has
certain authority and powers of direction to the
other employees on the line. However, I deem it
unnecessary to a resolution of this issue to make a
subsidiary finding of whether or not he is techni-
cally a supervisor within the definition of Section
2(1 1) of the Act, since it is readily apparent that he
is one whom the employees had reasonable cause
to believe was acting for and on behalf of manage-
ment under the particular circumstances here.16
Thus, after making his address to the employees,
President Anthony Musso turned to the foremen of
the various departments of his plant and asked
whether or not they had anything to add. Pisciotta
proceeded to make the remarks hereinabove set
forth while Musso remained at the site. The latter,
having made no effort to refute or negate the clear
import of Pisciotta's language, the employees were
certainly entitled to believe that he spoke on behalf
of management. I therefore find and conclude that
he was an agent of Respondent at the time, and
such remarks constituted restraint and coercion of
the employees' rights violative of Section 8(a)(1)
of the Act, as alleged.
2. The alleged coercive interrogation
Respecting the issue of whether or not the inter-
rogation of employees concerning their union ac-
tivities constitutes interference , restraint , and coer-
cion within the meaning of Section 8(a)(1) of the
Act, the Board stated the rule in Blue Flash Ex-
press, Inc.," as follows:
In our view, the test is whether , under all cir-
cumstances , the interrogation reasonably tends
to restrain or interfere with the employees in
the exercise of rights guaranteed by the Act.
In a more recent case of the Court of Appeals for
the Fifth Circuit , N.L.R B. v. Camco, Inc., 340 F.2d
803 (1965 ), the court cites with approval the Court
of Appeals for the Second Circuit's opinion in
Bourne Co. v. N.L. R.B., 332 F.2d 47, which sets
forth five factors to be considered in weighing the
lawfulness of company interrogation of employees:
(1) The background , i.e. is there a history
of employer hostility and discrimination?
" General Counsel does not allege or contend that any statement of
Musso's in the April 24 speech is independently violative of Section
8(a)( I) of the Act
not interrogated on the point Accordingly, I do not credit Pisciotta to that
extent
" See, e g , International Association of Machinists v Al L R B, 31 I U S
" Pisciotta added that when he used the word " terminated ," bookkeeper 72
Frances Alonge , who was standing by, said, " replaced " However , none of
the employees testified that they heard this " correction ," and Alonge was
" 109 NLRB 591, 593 (1954)
CUSTOM CHAIR MFG. CO. 459
(2) The nature of the information sought,
e.g. did the interrogator appear to be seeking
information on which to base taking action
against individual employees?
(3) The identity of the questioner , i.e. how
high was he in the company hierarchy?
( 4) Place and method of interrogation, e.g.
was employee called from work to the boss's
office. Was there an atmosphere of "unatural
formality"?
(5) Truthfulness of the reply.18
The Fifth Circuit , speaking through Judge
Wisdom, hastens to add, however, that:
This list is not intended to be definitive and, as
Professor Bok has pointed out , intimidation
may occur even if all of these factors cut in
favor of the employer . He warns that "em-
ployers must beware of interrogation unless
(1) they have valid purpose for obtaining infor-
mation concerning the Union 's strength; (2)
they communicate this purpose to the em-
ployees; and (3) they assure the employees
that no reprisals will be taken."
Applying the foregoing principles to the facts of
the present case,'9 it is apparent that , during the
period between April 18 and 25, both Anthony and
Joe MuSSQ overstepped the bounds of legitimate
inquiry concerning the union activities of the em-
ployees. Thus,' immediately on the heels of the first
evidence of union activities (April 18), Anthony
Musso called two female employees into his office
and interrogated them as to why they signed the
paper which he believed was for the Union. I note
that , unlike Blue Flash, there was no union request
for recognition extant , and Musso offered no as-
surances against recrimination . Indeed , he noted
that he had authorized a raise for one of the em-
ployees. The following day , Anthony Musso inter-
rogated ' Clarence Barrett as to whether the latter
signed ' the paper for the Union ( as will be more
fully detailed hereinafter). On the same day, Joe
Musso similarily queried Donald Ladd, coupling
such interrogation with a threat of discharge. The
following day (Thursday), Anthony Musso inter-
rogated Leon Zaragoza as to why he signed the
petition . Upon receiving Zaragoza 's reply that he
was underpaid, Musso promised that he would
receive a raise in wages that week . The same day,
Joe Musses, inquired of employee Edward Gonzales
if the latter had signed the list , to which Gonzales
replied in the negative. Musso then made the threat
to discharge ' the employees or close the plant be-
fore he would allow the Union to come into the
place. The following day, Anthony Musso inquired
of employee Thomas Valdez as to why he was "do-
ing this [engaging in union activities] to me," to
which Valdez responded "for more wages...."
I find and conclude that the foregoing interroga-
tions, conducted by the highest officers of the
Respondent, without a prior demand by the Union,
in a coercive atmosphere, which took place on
some occasions within the sanctum of the pre-
sident's office and made, in most instances, without
assurances against recrimination, constituted inter-
ference, restraint, and coercion with employee
rights in violation of Section 8(a)(1) of the Act.20
I also find that the polls which Anthony Musso
caused to be conducted on Thursday, April 20,
were a restraint upon employees' rights under the
statute. As both General Counsel and Respondent
agree in their briefs, the applicable law relating to
the polls, as of the time they were conducted, is ex-
pressed in Blue Flash Express, supra. In that case,
the Board established the proposition that inter-
rogation concerning union activities, is not per se
unlawful, but its legality must be determined from a
reading of the "record as a whole." Polling was per-
mitted under the following conditions: (1) The em-
ployer's sole purpose was to ascertain whether a
union demanding recognition actually represented
a majority of the employees; (2) the employees
were so informed; (3) assurances against reprisal
were given; and (4) the questioning occurred in a
background free from employer hostility to union
organization.
Although, as previously noted, there was no
union claim for recognition here, I do not deem this
omission to be critical in the present circumstances
since Musso announced that such was the reason
for the taking of the polls, i.e., so that he could
communicate with the Union if a majority of the
employees so designated it. He likewise announced
his general neutrality in the matter. However, it is
significant that he saw fit to announce in the
meetings that wage increases would be given those
under scale. Moreover, the polling here did not, as
in Blue Flash, take place in an atmosphere free
from employer hostility. As previously set forth,
there were a number of instances of individual,
coercive interrogation and threats by the highest of-
ficers of Respondent, and one of the union leaders
had been, as hereinafter found, discriminatorily
discharged. Furthermore, I deem as quite signifi-
cant the fact that Anthony Musso, being dissatisfied
with the results of the first poll (in which the Union
was apparently the victor), directed that a second
be taken because of the feigned reason that he uni-
laterally determined the unit in the first poll to have
been inappropriate. This action certainly had the
natural tendency to make the employees believe
" 340 F 2d 803, 804
The Board, in Cannon Electric Company, 151 NLRB 1465, 1470, ap-
plied the Bourne factors in that case although stating that "we consider
these factors tentative only and not of general applicability "
-0 The Respondent , in its brief, contends that any threatening or coercive
statements made by Respondent's officers or agents individually were
neutralized by Anthony Musso's statements of neutrality to the employees
during the meetings on-April 20 and 24 However, such general assurances
of neutrality do not erase the coercive effect of these intimidatory state-
ments See, e g., N L R,B v. Armstrong Tire and Rubber Company, 228
F 2d 159, 161 (C A 5),
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that management was not happy with the choice
they made in the first poll. Finally , I note that the
interrogation and threat made by Joe Musso to em-
ployee Don Ladd occurred during the afternoon of
Thursday , April 20, between the taking of two
polls. Accordingly , based upon the foregoing fac-
tors , I conclude that the conducting of the polls on
April 20 constituted an additional violation of Sec-
tion 8 ( a)(1) of the Act.21
3. The announcement and granting of wage
increases
With respect to the announcement and granting
of wage increases to the employees by the Respon-
dent during the critical period, the record reflects,
as previously set forth, that during the group meet-
ing held by Anthony Musso on Thursday, April 20,
he mentioned that he had been aware that some of
the employees- were not being paid "scale." As a
result-, he told them that only the previous Friday or
Monday he had spoken -with bookkeeper Frances
Alonge about this matter and had granted wage in-
creases to "most-of the people in the mill or the
ones that deserve[d] the raise. . . ." A similar an-
nouncement was made by Anthony Musso on April
18, 'to Stella Bingham , and to Leon Zaragoza on
April 20. The parties stipulated that during the pay
week April 14 to 20, 17 of Respondent's produc-
tion employees received raises in their wage rate,
which was reflected in their checks received on
Friday, April 21.
With respect to the actual granting of the wage
increases, the testimony of bookkeeper Frances
Alonge shows that while Anthony Musso com-
menced granting raises in wages to the men in the
mill on Friday, April 14, and Monday, April 17, he
did not complete giving raises to other employees
until Wednesday and Thursday, April 19 and 20.-
Thus, it is clear, contrary to the impression Musso
sought to convey, that raises to the other employees
came well after Musso learned of the organizational
efforts of his employees. I find and conclude that
such conduct was "undertaken with the expressed
purpose of impinging upon [the employees']
freedom of choice for or against unionization and
[was] reasonably calculated to have that effect."22
It was therefore violative of Section 8(a)(1) of the
Act.
C. The Alleged Discriminatory Discharge of Charles
Barrett
This.employee worked for the Company from
October, 1965, until his termination on April 19, as
an outside trimmer in the upholstery department. It
appears that he was generally a satisfactory em-
ployee except that on occasion, due to his "hot
temper," he had disagreements with the plant su-
perintendent concerning the scheduling of work.
However, for aught the record shows, such- dis-
agreements never rose to the warning or disciplina-
ry stage.
As previously set forth, Barrett was one of the in-
stigators of the union campaign in the plant, and
was one of the first signers of the paper which was
circulated on April 18.-It was he who contacted the
union official to arrange for the first union meeting
to be held at Barrett's home on the evening of April
19. During the workday on April 19, Barrett ad-
vised employees that such a meeting had been
scheduled:
During the afternoon of April 19, leadman Bob
Pisciotta told Barrett that Anthony Musso would
like to see him in his office after work. Continuing,
Pisciotta advised Barrett that Musso had asked
Pisciotta if the latter knew who had started the
union talk in the plant-whether it was Nat
(Natividad Castilleja) or Dwayne (Pisciotta). Bob
Pisciotta stated that he did not know. Continuing,
Pisciotta advised Barrett that Musso had asked him
if "Pee Wee" (which was Barrett's nickname in the
plant) had started it, to which Pisciotta replied, "if
you ask him, he will tell you the tntth. "23
Barrett went into Anthony Musso's office after
work that afternoon and Musso's first question was
whether Barrett signed the paper for the Union, to
which the latter said yes. When Musso asked him
why, Barrett commenced telling him what was
wrong in the plant and, presumably, ways to rectify
it. For example, he conceded telling Musso that the
plant was run like a_ kindergarten. At about this
time, Joe Musso came into the office and asked
what was going on. According to the testimony 'of
Anthony Musso, Joe Musso continued, stating "I
understand you heard something about the Union."
Barrett retorted to Joe Musso, "Goddam it, I'm not
talking to you. Shut,your mouth." The conversation
then proceeded, according to the testimony of
Anthony Musso, as follows:
I said , "Wait a minute . That is it. You can't
talk this way to us. I mean , if the union is what
you want, that is fine. It makes no difference'to
me."
So he said, "That is what I want, because I
am working too hard, and with the union
here," something like that-"That the- union
would -change everything. We would be work-
ing different."
-' Two months later, on June 26, 1967, the Board issued its supplemental
decision in Struksnes Contruction Co , 165 NLRB 1062, in which it
modified the criteria of legality respecting the taking of employee polls.
However, [ have not attempted to assess the facts in this case in the lightof
such modified criteria in the spirit of the Board's doctrine against such
retroactivity See, e g , Oleson's Foods, 167 NLRB 543
N L R.B v Exchange Parts Company, 375 U.S 405,409
The foregoing findings are made upon Barrett's undenied testimony
Although Bob Pisciotta was called as a witness, he was not interrogated as
to this particular conversation.
CUSTOM CHAIR MFG. CO.
I mentioned , " I am sure the union is not
going to change the method of my operation,
but if this is what you want , a union shop, and
from the way you are talking."
Then at that time Frances came in and said,
"Should I make out his check? Did he quit?"
I said , " T guess he did."
I said , " If this is the way he wants it," and he
walked out so I didn 't see him until the next
morning.
Apparently there was some question in Barrett's
mind when he arrived home concerning whether he
had been discharged , so he telephoned Bob Pisciot-
ta and asked whether he knew anything. When
Pisciotta replied that he had not been there and did
not know , Barrett inquired what he ( Barrett)
should do. Pisciotta advised Barrett to report to
work the following morning as he normally would,
and his status would be resolved at that time.
Meanwhile, during the evening of April 19,
Anthony Musso had a conversation with his brother
Joe concerning Barrett 's status . Musso testified that
he "honestly thought " that Barrett had quit
because he said something to the effect that he
(Barrett) wanted to work in a union shop and
Musso replied that if he felt that way he ought to go
look for one . 24 Anthony Musso testified that it was
during this conversation between the two brothers
that the decision was made to terminate Barrett as-
sertedly because he spoke to Joe Musso in the
manner indicated.
. Barrett returned to the plant the next morning
and clocked in. However , as he started to work, Su-
perintendent Izzo told him that Anthony Musso
would like to see him in the office . When he arrived
there, according to Musso 's testimony , Barrett
commenced to apologize ; however , Musso told him
that he no longer wanted Barrett to work for him
anymore because of the way he talked to his
brother. Barrett left.
Analysis and Concluding Findings as to Barrett
The general rule respecting liability of an em-
ployer for an alleged discriminatory discharge in
violation of Section 8(a)(3) has been oft stated by
the Board and courts in varying language.25 It was
recently, succinctly stated by the Court of Appeals
for the Fourth Circuit in the Lexington Chair Case,
as follows:
It is, of course, well settled that union activity
is no bar to a discharge, for "the right to hire
and fire for sound business reasons is still a
managerial prerogative." N.L.R.B. v. Williams,
195 F.2d 669, 672 (4th Cir.), cert. denied 344
U.S. 834 (1952). But if discouragement of
=' However, there is no evidence that Barrett used the word "quit" dur-
ing the conversation.
"' See, e g, N.L R.B v Ace Comb Co, 342 F.2d 841 (C A 8, 1965);
N L R.B. v. Lexington Chair Co, 361 F 2d 283 (C A 4, 1966), N L R.B v
461
union membership is a substantial, motivating
reason for a layoff, the existence of an al-
ternate ground of justification is no defense.
"The charge is sufficiently established if, in ad-
dition to an economic ground shown in the
Labor Board hearing, there is proof from
which the examiner may fairly find ... that the
layoffs were motivated by a purpose to inter-
fere with union organizational activities."
N:L.R.B. v. Associated Naval Architects, Inc.,
355 F.2d 788, 792 (4th Cir. 1966).
In applying the foregoing principles to the case at
bar, it appears that Barrett was generally a satisfac-
tory employee, and that he was a leading proponent
of the Union to which the Respondent was op-
posed. That, of course, would not immunize him
from discharge for insubordination to an officer of
Respondent, if that was the "real motive" for the
discharge.26 However, after a careful consideration
of all the evidence I am convinced that it was not
the compelling reason. Thus, it is clear that
Anthony Musso did not determine to discharge
Barrett immediately following the utterance of the
offensive language, in a moment of pique. The deci-
sion to 'discharge was not reached until sometime
later, after a careful consideration of all factors.
Thus Anthony Musso apparently did not consider
the language so offensive as to warrant discharge
on the spot. Some of the criteria he must have con-
sidered were,that Barrett was a good worker but
tended to be a little hotheaded. But this was known
throughout the tenure of his employment, and no
recriminations or disciplinary actions were previ-
ously imposed. Moreover, the following morning,
according to Anthony Musso's testimony, Barrett
approached him in an apologetic mood, but Musso
would have none of it. Clearly, had it not been for
another factor-in this case, the imminence of the
Union (to which Musso was opposed), and Bar-
rett's preeminence in it-the extreme penalty of
discharge would not have been imposed. The lan-
guage of the Court of Appeals for the Ninth Circuit
in a recent case27 seems appropriate here:
Actual motive, a state of mind, being the
question, it is seldom that direct evidence will
be available that is not also self-serving. In
such cases, the self-serving declaration is not
conclusive; the trier of fact may infer motive
from the total circumstances proved. Other-
wise no person accused of unlawful motive
who took the stand and testified to a lawful
motive could be brought to book. Nor is the
trier of fact-here the trial examiner-required
to be any more naif than is a judge. If he finds
that the stated motive for a discharge is false, he
certainly can infer that there is another motive.
Longhorn Transfer Co , 346 F 2d 1003 (C A. 5, 1965), N L R B v Great
Eastern Color Lithographic Corp , 309 F 2d 352 (C_A 2, 1962 )
"See Radio Officer's Union v N L R.B , 347 U S. 17, 42-44, N L R B v
Broil n Food Store , 380 U S 278
27 Shattuck Denn Mining Corporation v N L.R B , 362 F.2d 466, 470
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
More than that, he can infer that the motive is
one that the employer desires to conceal-an un-
lawful motive-at least where, as in this case,
the surrounding facts tend to reinforce that in-
ference. [Emphasis supplied.]
In the light of that decision, I conclude, based
upon a consideration of all the evidence in the
record bearing upon the issue, that the reason as-
signed by the Respondent for the discharge was not
the "real reason," but rather that a substantial,
motivating purpose in effectuating the discharge
was to discourage union membership in violation of
Section 8(a)(3) and (1) of the Act.
D. The Alleged Unfair Labor Practices Strike
As previously noted, on Monday, April 24, near
quitting time , Anthony Musso made a speech to the
employees in which he stated, among other things,
that he understood that they were going to have a
picket line in the morning. It also appears that as
the employees left work that day, leaflets were dis-
tributed at the plant entrance which , in essence, af-,
firmed the fact that picket lines would be
established the following morning and that "the
reason for this picket line is in protest to this com-
pany's unfair labor practices." The leaflet goes on
to, say that charges had been filed with the Board,
and requested the employees to respect the picket
line. The leaflet was signed by the Union as well as
locals of the Carpenters and Teamsters Union .211
The following morning, April 25, a picket line
was- established by representatives of the Union
about the Respondent's plant. The legend on the
picket signs stated "unfair labor practices," and
was signed by the various -local unions who con-
ducted the picketing.
The three alleged discriminatees herein
(Natividad Castilleja, Mary Rochelle, and Thomas
Valdez) were the only three employees of Respon-
dent who honored the picket line and participated
in the picketing. The remainder of the employees
crossed the line and went to work. About noon
time, on April 25, Anthony Musso distributed
checks to the three employees, which represented
payment for their services for the preceding Friday
and Monday. These were the last checks received
by the employees from the Respondent.
On June 21, a telegram was sent from the
Union's business representative to Anthony Musso
requesting unconditional reinstatement on behalf of
the three above-named employees, as well as
Clarence Barrett , to their former or substantially
equivalent positions of employment . This telegram
was answered by Respondent's attorney on June
28, in which the Respondent declined the Union's
offer on the grounds that : ( 1) Clarence Barrett had
"quit on April 19, 1967," and (2) the Respondent
had filled the positions of the other three in-
dividuals. Moreover, the attorney claimed that their
-" See Resp Exh 4
"See G C Exh 4
positions were not available to them -because of
their conduct during the strike in which they
"manifest[ed] their complete disrespect for their
employers and fellow employees, and the property
of their employers and fellow employees...."2
Concluding Findings as to the April 25 Strike
The General Counsel- urges that the strike, from
its inception , was caused by the Respondent's un-
fair labor practices. The Respondent urges that it
was simply , an economic strike. In my view, the
General Counsel proved a prima facie case- on this
issue , by showing that the Respondent had, in fact,
committed substantial unfair labor practices - during
the week preceding the strike, and that the Union
informed the Respondent and the employees that it
was prepared to engage in picketing to protest such
unfair labor practices. Although certainly not con-
clusive on the issue, the stated purpose of the
picketing was corroborated by the language on the
picket signs. When the -three employees joined the
picket line, they aligned themselves in the protest
and became a part of it. Thus, they became unfair
labor practice strikers.
The only testimony offered by Respondent to
negative this line of evidence was that of the book-
-keeper Francis Alonge who testified that in a con-
versation with Mary Rochelle on the first morning
of the strike Alonge asked Rochelle what was the
reason for this, to which the latter replied that she
felt sorry for Stella [Bingham]. There was also
some testimony on cross-examination by the wit-
ness Zaragoza that at the union meeting at Barrett's
house on April 19, Business Representative Gon-
zales made some statement to the effect that ".. .
he didn't want a vote, that he wanted us to picket . .
. that the only way he could picket or something
,was if they had fired Clarence. . . ." This rather
vague testimony does not necessarily rebut the
General Counsel 's case, but in any event , is not suf-
ficient, in my judgment, to .overcome such prima
facie case on this issue. Accordingly, I find that,
-from its inception, the strike which commenced on
Tuesday, April 25, was at all times caused by the
Respondent's unfair labor practices, and that- it was
therefore an unfair labor practice strike. Under
these circumstances, it is well established that it
was the Respondent's legal obligation to reinstate
the strikers to their former or substantially
equivalent positions upon unconditional- application
therefor. Respondent not having done so since June
21, I shall order an appropriate remedy.30
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above,
occurring in connection with its interstate opera-
tions, have a close , intimate , and substantial rela-
"' In view of the foregoing finding , I deem it unnecessary to determine
whether or not Respondent illegally discharged the three employees on
April 25 since the remedy would be the same
CUSTOM'CHAIR MFG. CO. 463
tion to trade,, traffic, and commerce among the
several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
IV. THE REMEDY
Having found that the Respondent has engaged
in certain unfair practices, I will recommend that it
be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act. As it has been found that the
Respondent discriminatorily discharged Clarence
Barrett, it will be ordered to reinstate him, without
prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay
he may have suffered by reason of the discrimina-
tion against him. Backpay shall be computed on a
quarterly basis in the manner proscribed by the
Board in F.W. Woolworth Company, 90 NLRB 289,
and shall include interest at 6 percent per annum,
as provided in Isis Plumbing & Heating Co., 138
NLRB 716.
Having also found that the striking employees
were unfair labor practice strikers, I shall recom-
mend that each such striking employee shall be of-
fered immediate and full reinstatement to his
former or substantially equivalent position without
prejudice to his seniority or other rights and
privileges, if necessary, by discharging other em-
ployees who may have replaced him. Respondent
shall also be required to make whole all striking
employees for any losses they may have suffered as
a result of the Respondent's failure to reinstate
them after the Union's unconditional application
for reinstatement on June 21, 1967. Any backpay
due shall be determined in accordance with the for-
mula set forth in the Woolworth and Isis Plumbing
cases, supra.
As the nature and extent of the unfair labor prac-
tices committed indicate the Respondent may
hereafter resort to other and like unfair labor prac-
tices, it must also be ordered to cease and desist
from in any other manner infringing on the rights of
its employees as guaranteed in the Act.31
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating against its employee Charles
Barrett in order to discourage membership in the
Union among its employees, Respondent engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing
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.
5. The strike which began on April 25, 1967,
was caused and prolonged by the Respondent's un-
fair labor practices, and was, therefore, an unfair
labor practice strike.
6. By failing to reinstate certain unfair labor
practice strikers after an unconditional application
by the Union, Respondent violated Section 8(a)(3)
and (1) of the Act.
7. The unfair labor practices enumerated above
are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
" The, Respondent argues in its brief that reinstatement and backpay
should he denied the strikers because of certain conduct they engaged in
while on the picket line, citing such eases as Efco Manufacturing, Inc , 108
NLRB 245, and N L R B v Longview Furniture Company, 206 F 2d 274
The evidence in the record reflects that the two male strikers did , on occa-
sion, during the picketing make an obscene gesture toward Anthony Mus-
so, also the picketers added the phrase "Custom Chair stinks " to one or
more of their picket signs at some time during the picketing While such
conduct is not to he condoned , there is no evidence of physical violence,
conduct prohibiting ingress or egress from the plant, or "insulting and
profane language calculated and intended to publicly humiliate and
degrade employees who are attempting to work in an effort to prevent
them from working ," N L R B v. Longview Furniture Company, supra In
short , the strikers ' conduct , considered both qualitatively and quantitative-
ly, does not measure up to that in the cited cases and is not sufficient, in my
judgement , to warrant the denial of the ordinary reinstatement and
backpay order
Respondent makes the same contention respecting Barrett , i e , that no
reinstatement should be accorded him because of the insulting remark
made to Joe Musso However , it is clear that any such remark was made in
the heat of argument and Barrett concededly offered to apologize the fol-
lowing day Under the circumstances , I do not believe thathis conduct war-
rants a denial of the customary reinstatement and backpay order
Finally, the Charging Party requests me to issue a bargaining order to the
Employer to bargain collectively with the Union , although acknowledging
the absence of a bargaining demand and the precarious evidence in support
of majority status In support of such contention, the Charging Party cites
such cases as Bannon Mills, Inc, 146 NLRB 611, and Bilmsk i Sausage
Manufacturing Company, Inc, 132 NLRB 229 While I am aware of these
cases and others (see, eg, Northu es Engineering Company, 158 N LRB
624 enfd 376 F.2d 770 (C A D C ), Western Aluminum of Oregon, Incor-
porated, 144 NLRB 1191, and cases cited) in which the Board has issued
bargaining orders in the absence of a bargaining demand , such cases are, of
course, as the Charging Party acknowledges, an exception to the general
rule and have been applied only in those cases where the employer's antiu-
nion conduct has been so egregious that the absence of such an order
would be manifestly unfair Moreover, in those cases, the union's majority
status was clearly established by means of either a Board conducted elec-
tion or union authorization cards Here, on the other hand, as the Charging
Party further acknowledges, the only evidence of the union's majority
status is based upon the shifting sands of employer conducted -polls
Although the Charging Party's argument that a majoritystatus on behalf of
the Union was indicated by the first poll inspite of the employer's unfair
labor practices, the state of the record respecting the secrecy of the ballot
in such poll is open to question There was some testimony in the record
that a majority of employees had, in fact , signed the " paper" which was dis-
tributed throughout the plant on April 18, however , that paper was
presumably destroyed and never introduced in evidence in this case Ac-
cordingly , such testimony has a distinct hearsay quality In short , while the
Charging Party's argument has temptingly persuasive qualities , I am not
convinced that the record in this case clearly established the majority status
of the Union so as to bring this situation within the doctrine of those cases
cited supra. Therefore, I deny the Charging Party's motion.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in
the case, it is recommended that the Respondent,
Custom Chair Manufacturing Company, Gardena,
California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discriminating in regard to hire or tenure of
employment or any term or condition of employ-
ment in order to discourage membership in Uphol-
sters' International Union of North America, Local
No. 15, AFL-CIO, or any other labor organization.
(b) Coercively interrogating any employee con-
cerning activities on behalf of a labor organization.
(c) Announcing, promising, or ranting wage in-
creases or any other benefits or improvements in
terms or conditions of employment, to its employees
in order to induce them to refrain from becoming
or remaining members of the Union or giving any
assistance or support to it.
(d) Threatening employees with loss of jobs,
plant closure, or other adverse economic con-
sequences should they join a union or engage in ac-
tivities on its behalf.
(e) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of self-organization, to form, join, or assist
Upholsterers' International Union of North Amer-
ica, Local No. 15, AFL-CIO, or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of
collective bargaining or mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Offer to Charles Barrett, Natividad Castil-
leja, Mary Rochelle, and Thomas Valdez immediate
reinstatement to their former or substantially
equivalent position, without prejudice to their
seniority or other rights previously enjoyed, and
make each of them whole for any loss of pay he
may have suffered by reason of the discrimination
against 'him, in the manner described in "The
Remedy" section of this Decision.
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records,, timecards, personnel records and reports,
and all other records necessary and relevant to
analyze the amount of backpay due and the rights
of employment under the terms of this Recom-
mended Order.
(c) Notify the above employees if presently serv-
ing in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at its Gardena, California, plant copies
of the notice marked "Appendix. "32 Copies of said
notice, on forms provided by the Regional Director
for Region 21, after being duly signed by the
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and maintained
by it for 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 Respondent to insure
that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of the
receipt of this Decision, what steps Respondent has
taken to comply herewith.33
IT IS FURTHER ORDERED that nothing hereinabove
shall require the Respondent to cancel or abrogate
any raises in wages or other improvements in work-
ing conditions which the Respondent has hereto-
fore granted to its employees.
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice and where it ap-
pears in this Decision In the further event that the Board 's Order is en-
forced by a decree of a United States Court of Appeals, the words "a
Decree of the United States Court of Appeals Enforcing an Order" shall be
substituted for the words "a Decision and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to ,read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
After a trial before a Trial Examiner of the Na-
tional Labor Relations Board, at which all sides had
a chance to give evidence, it has been found that
we, Custom Chair Manufacturing Company, vio-
lated the National Labor Relations Act, -and we
have been ordered to post this notice to inform our
employees of their rights.
The Act gives all employees these rights:
To organize themselves
Fo form, join, or help unions
To strike
To bargain as a group through a
representative they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things
We have been ordered to assure our employees
that we will not do anything that interferes
with these rights.
You are free to join the Upholsterers' Interna-
tional 'Union of North America, Local No. 15,
AFL-CIO, or any other union, and, by majori-
ty choice, elect any union to represent you in
bargaining with us.
CUSTOM CHAIR MFG. CO. 465
WE WILL NOT fire you or close the plant or
punish you or treat you differently in any way
because you joined the Union or favored a
union.
WE WILL NOT coercively ask you anything
about the Union or who is in the Union or who
favors it.
WE WILL NOT threaten to fire you or punish
you or treat you differently in any way if you
join or work for a union, or talk to other em-
ployees about a union.
WE WILL NOT promise or grant you benefits
in order to get-you to withdraw from the Union
or stop supporting it.
It has been found that we discharged
Clarence Barrett and refused to reinstate Mary
Rochelle, Natividad Castilleja, and Thomas
Valdez because they were for the Union and
took part in the strike. It was found that this
violated the National Labor Relations Act.
As to these employees, we will give them back
their jobs and seniority and we will make up
the pay they lost and also pay them 6 percent
interest.
CUSTOM CHAIR
MANUFACTURING CO.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South
Broadway, Los Angeles, California 90014,
Telephone 688-5200.
350-999 0 - 31 - 31