Davis Furniture Co.

National Labor Relations Board - Board Decisions

Sep 5, 1952

100 N.L.R.B. 1016 (N.L.R.B. 1952)

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ALBERT LEONARD, ARNOLD DAVIS, SIDNEY DAVIS AND WILLIAM GITZES,
CO-PARTNERS, JOINTLY AND SEVERALLY D/B/A DAVIS FURNITURE CO.;
DOYLE FURNITURE CO., INC., A CORPORATION; LACHMAN BROS., A
CORPORATION; HARRY FRANK, AN INDIVIDUAL, D/B/A MILWAUKEE
FURNITURE COMPANY; A. EUGENE PAGANO AND M. DE CASTRO, CO-
PARTNERS, JOINTLY AND SEVERALLY, D/B/A MISSION CARPET AND
FURNITURE Co.; FRANK NEWMAN CO., A CORPORATION; REDLICK-
NEWMAN Co., A CORPORATION; SHAFF'S FURNITURE CO., A CORPORA-
TION; JOSEPH H. SPIEGELMAN AND LEON SPIEGELMAN, CO-PARTNERS,
JOINTLY AND SEVERALLY, D/B/A SAN FRANCISCO FURNITURE CO.;
STERLING FURNITURE COMPANY, A CORPORATION; JAMES F.' WILEY
AND VERNA M. GARDNER, CO-PARTNERS, JOINTLY AND SEVERALLY,
D/B/A J. H. WILEY THE FURNITURE MAN and CARROLL, DAVIS &
FREIDENRICII , BY ROLAND C. DAVIS. Cases Nos. 20-CA-250, 20-
CA-264, 20-CA-252, 20-CA-249, 20-CA-246, 2A-CA-245, 20-CA-
247, 20-CA-253, 20-CA-254, 20-CA-9248, and 20-CA-251. Sep-
tember 5, 1952
Supplemental Decision and Order
On May 3, 1951, the Board issued a Decision and Order in this
case," finding that the Respondents, herein also referred to as the
Dealers, had discriminated in regard to the hire and tenure of employ-
ment of their employees in violation of Section 8 (a) (3) and (1)
of the National Labor Relations Act, as amended, and ordering,
among other things, that the Respondents make the employees whole
for any loss of pay they had suffered by reason of such discrimination.
More specifically, the Board, in its Decision, found unlawful con-
duct of the Respondents, 11 furniture dealing firms organized in a
multiemployer organization, in temporarily locking out their em-
ployees, all of them members of a single labor organization, because
employee-members of the same labor organization, employed by Union
Furniture Company, another member of the same multiemployer or-
ganization, engaged in a strike in the midst of collective bargaining
negotiations on a multiemployer basis.
In its Decision, the Board concluded that "The layoffs thus served
notice, on all members of the bargaining unit, the laid-off employees
as well as the strikers and nonstrikers, that resort to lawful protected
concerted activity by the employees of any employer-member of the
bargaining unit would subject other employee-members of the bar-
gaining unit to the reprisal of a temporary loss of employment," and
thus "The Respondents' conduct thereby directly interfered with, re-
194 NLRB 279.
100 NLRB No. 158.
DAVIS FURNITURE CO. 1017
strained, and coerced all the employees in the bargaining unit in the
exercise of their rights guaranteed by Section 7 of the Act, in viola-
tion of Section 8 (a) (1)." The Board further concluded that "The
layoffs also constituted discrimination in the hire and tenure of em-
ployment of the Respondents' employees because of the union-spon-
sored strike against Union Furniture Company, thereby discouraging
membership in the Union in violation of Section 8 (a) (3) of the Act."
Finally, the Board found that "Whether the Respondents' conduct be
viewed as a violation of Section 8 (a) (1) or of 8 (a) (3), .. .
effectuation of the policies of the Act requires that the Respondents'
employees be made whole...."
A petition for review of this Decision was filed by the Respondents
in the United States Court of Appeals for the Ninth Circuit. A cross-
petition for enforcement of the Order was filed by the Board.
On May 29, 1952, the court held that the evidence did not sustain
the Board's finding that "the lockout was a mere reprisal against the
Union Furniture Company strikers and the other employees aiding
the strikers." 2 In reaching this conclusion, the court cited evidence in
the record that the purpose of the strike against Union Furniture
Company was to undermine the bargaining power of- the Dealers as
a group, and thereby obtain more favorable contract terms from the
Dealers, and that the-purpose of the lockout was to defeat this strategy
and protect the bargaining position of the employer-group.
The court then stated :
Since we have held that the finding of the Board is not sustained
by the evidence, the question arises whether we should determine
if the Board's order may be sustained on the ground that it is ille-
gal for the Dealers to use the temporary lockout as a counter-eco-
nomic power to that of the strike in a dispute between employer
and employee involving wages and labor conditions.
The court reviewed the legislative history of the Taft-Hartley Act,
particularly noting the various references therein to restrictions upon
resort to "strikes and lockouts," and concluded :
From the above expressions in the statute and the linking of
the terms "strike" and "lockout," it is arguable that Congress has
recognized strikes and lockouts as correlative powers, to be em-
ployed by the adversaries in collective bargaining when an im-
passe in negotiations is reached.
The court, however, declined to resolve in the instant case the ulti-
mate question of the legality of the lockout considered "as counter-
economic power to that of the strike," but remanded the case to the
Board for determination of that question upon the present record.
'Leonard et aZ. d/b/a Davin Furniture Co. et ai. v. N. L. R. B., 30 LRRM 2294.
1018-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After carefully reviewing the entire record in this case in-the light,
of the court's opinion, and accepting the court's finding that the lock-
out was not a mere reprisal for the strike, we are constrained to find,
as we'have before, that the lockout violated Section 8 (a) (1) and (3)
of the Act.
As we read the court's opinion, the sole question before us for con
sideration at this time is whether the lockout by all the Dealers in this
case' was justifiable as a use of economic power to offset The Union's.
economic action in calling a strike against Union Furniture. ,
' The identical question- was recently considered by- the Board in its,
Supplemental Decision and Order in the Morand case.3 There, as in
the instant case, the-union, after reaching an impasse in negotiations
with-a multiemployer group, struck against one-member of the group.:
Thereupon, as the Board found, all the' members of the group dis-
charged all of their employees who were members of the union, in
violation of the Act: The majority 4 of the Board found further that
even-if the employees-had not been discharged, but merely temporarily,
laid off in order to counteract the union's resort to a strike, the em-
ployers' action would still have been unlawful. -
The reasons for our conclusion on this point in the Morand case ap-
ply with equal force here.
As we said there, a temporary layoff is unlawful "even if it were true;
that its purpose was to bring temporary economic pressure on the
union and its members solely in order to break the bargaining ,im-
passe." -
It is not disputed that a discharge of the Dealers' iinployees in this
case would have violated Section 8 (a) (1) and (3) of the Aet,a-the
only question here being whether the temporary layoff in this case like
wise violated the Act. But neither Section 8 (a) (1) nor Section 8
(a), (3) of the Act draws any distinction between a discharge, and a
layoff, but proscribes any interruption of the employment relation
when directed against protected concerted activity. No limitation of
this broad proscription is warranted unless clearly required by other
sections of the Act. -
There is no such clear requirement elsewhere in the Act. Section
8 (d) (4) does not expressly sanction lockouts. While it is arguable
that by forbidding resort to lockouts under certain circumstances, it.
impliedly recognizes a right to lockout under other circumstances,
such an implication is not sufficient to overcome the positive and sweep-
ing language of Section 8 (a) (3) and (1). Similarly, other pro-vi-
a hf'orand Brothers Beverage Co., 99 NLRB 1448 . This Decision was rendered pursuant':
to a decree of the - Court of Appeals for the Seventh Circuit remanding the case to the
Board for findings on this point among others . See Morand Bros. Beverage Co. v. N. L_'
R B,, 190 F. 2d 576. -
8 Chairman Herzog did not join in this finding, reserving judgment thereon.
is See the court decision in the Morand ease, footnote 3, supxa. - j
DAVIS FURNITURE Co. 1019
sions of the Act curtailing resort to lockouts (Sections 203.(c), 206,
and ,208 (a)) do not sufficiently demonstrate congressional intent to
strike down the safeguards of employees' rights in Section 8 (a) (3)
and (1).
The court in the instant case suggests that in view of the linking of
the term "strike" and "lockout" in Sections 8 (d) (4), 203 (a), 206,
and 208 (a) of the Act, it is arguable that Congress intended to equate
lockouts with strikes as "correlative economic powers." However,
we note..that in each instance referred to where "strike" and "lockout"
are linked, it is where particular strike activity is proscribed as un-
lawful ; the specific inclusion of "lockout" in this context may well
have stemmed only from a desire to emphasize even-handed justice
when union activity was being restricted. We find. nothing in the Act
which equates lawful strikes and lockouts. On the contrary, only the
right to strike is expressly preserved by Congress in Section 13 of the
Act. The absence of any similar express reservation of the right to
lockout argues strongly against any intent to establish that right.
We reject the argument of our dissenting colleague that the lockout
in this case does not violate the Act because the only purpose of the
Dealers was, not to destroy the Union, but to destroy the threat to
their bargaining position by defeating the strike.
The strike was clearly a form of concerted activity for the mutual aid
and protection of the employees of Union Furniture, and the mass
layoff of union members in this case, depriving them of their means of
'livelihood for an indefinite period, in order to counteract the strike
was necessarily designed to interfere with, restrain, and coerce the
employees in the exercise of their right to strike, and to discourage
membership in the Union which called the strike. Moreover, even
in cases where there was a lack of an intent to interfere with employee
rights guaranteed by the Act, the principle has long been recognized
that such absence does not excuse conduct which does in fact interfere."
The fact that the strike in this case threatened to impair the bargain-
ing position of the Dealers or that the Dealers acted to protect their
bargaining position affords no basis for distinguishing this strike
from any other work stoppage permitted by the Act. It might be
urged with equal force that a strike called by a union for recognition
or to protest a grievance imperils the bargaining position of the em-
ployer, as; in- each case, the purpose of the strike is, by its very nature,
to undermine the employer's resistance to the union's demands. It is
not contended, however, that the employer in those cases would be
privileged to, defend his bargaining position (or "counteract" the
strike) by a mass layoff of union members-not involved in the strike.
8 See, e g, Le Tourneau Co. v. N. L. R. B., 324 U. S. 793; Republic Aviation Corp. v.
N. L. R. B., 324 U. S. 793. -
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only other basis suggested for distinguishing the strike in this
case from other strikes is that it occurred after an impasse in bargain-
ing. But, obviously, a strike does not cease to be a concerted activity
merely because it occurs after an impasse, and any layoff of employees
to counteract such a strike interferes with concerted activities to the
same degree as if the strike had occurred before the impasse. -
Our dissenting colleague further asserts that the Union "took the
initiative in selecting the particular weapons of economic combat"
and that the Employers did no more than defend themselves with
"commensurate weapons" in their "attempt to resist, to do battle,
and to win." 7 Although this argument may have a superficial plausi-
biltiy, it ignores the facts of economic life. The suggestion that the
Union had a whole arsenal of weapons from which to choose is utterly
unrealistic. When the impasse occurred, the Union had only one
effective weapon-its ancient and protected right to strikes Nor is
the notion correct that strikes and lockouts are "commensurate
weapons" in collective bargaining and that without the right of lock-
out an employer has no comparable economic weapons Faced with
an impasse in bargaining, the employer still retains' control of the
terms of employment so long as production continues. He is free to
continue the existing terms without any contract or, indeed, uni-
laterally to institute any previously proposed changes in those terms.
These courses of action are obviously not available to the union. If
the union resorts to an economic strike, the employer may lawfully
meet the challenge by replacing the strikers. Thus, he may continue
to operate on his own terms without any diminution of profits while
the strikers suffer partial, if not complete, loss of wages. Even if
the employer is unable to get replacements to permit continued opera-
tions in the face of the strike, he is generally in no worse position
than the strikers. Both adversaries in the conflict would in such a
case be under the same economic pressure to terminate the strike and
restore the flow of wages and profits. We see no reason in equity or
justice to give to employers the privilege of extending the hardship
I We would agree that if the lockout here used is to be accorded the status of-a lawful
weapon against a protected strike, there is little question as to the "winner"-the strike
is foredoomed.
". .. unionism succeeds in collective bargaining only because it can threaten to
strike." Hoxie, Trade Unionism in the United States, p. 190.
a "But as methods of bargaining , these two [the strike and lockout].are not equivalent.
To the employer the right to lockout is comparatively unimportant. He may use it to
discipline an unruly set of employees , to discourage unionization in his factory , or to 'get
the start ' of his men. But in the usual bargaining he has no need of it . He can keep
his factory gates open even though, at the same time, he may be reducing wages or refus-
ing demands for higher wages. - He is not forced to lock out and he can force his
employees to strike or submit . Legislation which prohibits or restricts the lock out does
not greatly weaken the bargaining power of the employer.
But to the employees there can be no collective bargaining without the right to
strike." Commons-Andrews , Principles of Labor Legislation , p. 161.
BIOELOW-8ANPORD CARPET C031PANY , INC. 1021
and deprivations of industrial conflict to areas not directly involved,
_nor could such a privilege be squared with the basic policy of the
statute to minimize industrial strife and interruptions to commerce.10
Finally, there is no contention here that the Dealers could not have
continued to operate without a contract or without assurance against
being struck, so that this case does not fall within the rule of the
Betts Cadillac case 11 and similar cases.
For all the foregoing reasons'u and upon the entire record in the
case, we reaffirm our original Decision and Order herein.
CHAIRMAN HERZOG, dissenting :
Having reserved decision in the recent Morand case 18 on the issue
which is more squarely before us here, I have reconsidered that issue
in the light of the courts' opinions in both the Morand and the Davis
cases. These opinions impel me to conclude that, in this context, the
majority errs in adhering to the view that this temporary lockout,
motivated by a desire to counteract a union-directed stoppage rather
than by an intent to interfere with concerted activity, constituted a
violation of the amended Act.
Heere the parties had reached an impasse, and it was the Union
which took the initiative in selecting the particular weapons of eco-
nomic combat. The Employers did no more than defend themselves
with commensurate weapons; they refrained from using the ultimate,
and to my mind unlawful, instrument of discharge. I am unwilling
to infer a wish to destroy from an attempt to resist, to do battle, and
to win.
MEMBER PETERSON took no part in the consideration of the above
Supplemental Decision and Order.
30 Compare Section 8 (b) (4) of the Act, which implements this policy by forbidding
hhionti to 61tend the area of industrial conflict beyond the plant of the primary employer.
' B9tts Cadillac Olds, Ino., 96 NL IB 268.
As more fully explicated in section II of our Supplemental Decision in Morand
Brothers, 99 NLRB 1448.
"Morand Brothers, 99 NLRB 1448 , at footnote 20 of the Supplemental Decision ( 1952).
BIOLLOW-SANFORD CARPET COMPANY, INC. and LOCAL t 188, UNITED
TEXTILE WORKERS OF AMERICA, AFL, PETITIONER. Case No. 1-RC-
2810. September 5, 1952
Decision and Order
Upon a petition duly filed, a hearing was held before a hearing
older of the National Labor Relations Board . The hearing officer's
100 NLRB No. 163.