Jones Furniture Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1952

98 N.L.R.B. 1302 (N.L.R.B. 1952)

1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engineer and the other as a fireman, spend a part of each week at
firemen or boiler washers duties in the boiler room and another part
i s stationary engineers in the engine room. The latter work is per-
formed at night and on Saturdays and Sundays when the machinery
is not in operation but, as some pressure is maintained in the boilers,
a licensed engineer is required to be present. Although there is no
actual training program, the Employer encourages all powerhouse
employees to qualify as licensed stationary engineers, and offers the
inducement of higher paying work, whenever it is available, for those
who qualify. By supplementing their working experience with out-
side study, 2 of the firemen and 1 of the boiler washers have obtained
licenses. As of the date of the hearing, at least 5 of the 11 powerhouse
employees possessed licenses.
As the separate bargaining history for stationary engineers has
been conducted under "members-only" contracts, it is not necessarily
determinative as to the appropriateness of such a unit. Under all
the circumstances of this case, we do not believe that the skills and
duties of the stationary engineers have been shown to be sufficiently
separate or distinguishable from those of the other, powerhouse em-
ployees to justify, on any other basis, their establishment as a separate
unit.5 Accordingly, we find that the appropriate unit should include
all the Employer's powerhouse employees.6 -
We find that all employees in the powerhouse in the Employer's
Folsom Avenue, St. Louis, Missouri, plant, including engineers, fire-
men, boiler washers, and oilers, but excluding all other employees
and all supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
'volume.]
5 t'ackai d Motor Car Company, 94 NLRB 1550, Buffalo Weaving and Belting Company,
85 NI;RB 1178
°,See cases cited in footnote 5, supra
JONES FURNITURE MANUFACTURING CO., INC. and UNITED FURNITURE
WORKERS of AMERIcA, CIO. Case No. 32-CA-116. April 28,
1952
Decision and Order
On November 7, 1951, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices and recommending that it cease and desist therefrom, and
OS NLRB No. 211.
JONES FURNITURE MANUFACTURING CO., INC. 1303
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Houston, Murdock, and Styles].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following addition.
The Trial Examiner's finding that the Respondent refused to bar-
gain on and after about March 2, 1951, because of the pending unfair
labor practice charges against it, is based upon uncontradicted evi-
dence. As the Board has previously held, such a reason for discon-
tinuing negotiations is not a defense to a charge of refusal to bargain.'
Order
Upon the basis of the foregoing findings of fact and conclusions
of law, and upon the entire record in the case, the National Labor
Relations Board hereby orders that Jones Furniture Manufacturing
Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Furniture Work-
ers of America, CIO, as the exclusive representative of all employees
in the appropriate unit with respect to rates of pay, wages, hours of
employment, or other conditions of employment.
(b) In any other manner interfering with the efforts of the above-
mentioned Union to bargain collectively with Respondent.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Furniture
Workers of America, CIO, as the exclusive representative of all
employees in the appropriate unit, and embody any understanding
reached in a signed agreement.
(b) Post at its plant in Benton, Arkansas, copies of the notice
attached hereto and marked "Appendix A." 2 Copies of such notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
1 Dealer Engine Rebuilders, Inc., 95 NLRB 1009.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be inserted before the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
998666-vol 98-53-84
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof, in conspicuous 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.
(c) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10) days from the date of this Decision and Order
what steps the Respondent has taken to_ comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with UNITED FuRNI-
TURE WORKERS OF AMERICA , CIO, as the exclusive representative
of all . employees in the bargaining unit described herein, with
respect to grievances , labor disputes , wages, rates of pay, hours of
employment , and other conditions of employment , and if an
understanding is reached , embody such understanding in a signed
agreement . The bargaining unit is :
All production and maintenance employees , including ship-
ping department employees and truck drivers , excluding
office-clerical employees , inspectors , timekeepers , salesmen,
professional employees , and all supervisors as defined in the
Act.
All our employees are free to become or remain members of the
above-named union or any other labor organization . We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
JONES FURNITURE MANUFACTURING CO., INC.,
Employer.
Dated-------------- By----------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced , or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Furniture Workers of America,
CIO, herein called the Union, the General Counsel of the National Labor Rela-
tions Board, respectively, called herein the General Counsel and the Board, by
the Regional Director for the Fifteenth Region (New Orleans, Louisiana),
issued a complaint dated July 27, 1951, against Jones Furniture Manufacturing
JONES FURNITURE MANUFACTURING CO., INC. 1305
Co., Inc., herein called the Respondent, alleging that the Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that on about
April 18, 1950, and at all times thereafter, the Respondent failed and refused to
recognize and to bargain collectively with the Union as the exclusive bargaining
representative of its employees in an appropriate unit, that on or about Septem-
ber 15, 1950, the Respondent bargained directly and individually with the
employees in said unit, and that by the foregoing conduct the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On or about August 9, 1951, the Respondent filed its answer in which it admitted
the jurisdictional allegations of the complaint, but denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held on September 10 and 11, 1951, at
Benton, Arkansas, before the undersigned Trial Examiner. The General Coun-
sel and the Respondent were represented by counsel and the Union by its repre-
sentative. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the conclusion of the hearing, the General Counsel moved to conform the
pleadings to the proof, as to names, dates, and other minor variances. The
motion was granted without objection. The Respondent moved to dismiss the
complaint. Ruling on the motion was reserved. The motion to dismiss is dis-
posed of as hereinafter indicated.
The parties waived oral argument at the conclusion of the hearing and agreed
to file briefs. None of the parties has filed a brief with the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Arkansas corporation, is engaged in the manufacture of
upholstered furniture at Benton, Arkansas. In the course and conduct of its
business, the Respondent annually purchases lumber, springs, felt, upholstering,
and other raw materials in the approximate amount of $400,000, of which approx-
imately 75 percent is shipped to its Benton plant from points located outside
the State of Arkansas.
The Respondent annually manufactures, sells, and distributes finished prod-
ucts having a value in excess of $700,000, of which amount approximately 65
percent is shipped from its Benton plant to points outside the State of Arkansas.
II. THE ORGANIZATION INVOLVED
United Furniture Workers of America, CIO, is a labor organization which
admits to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and representation of a majority therein
Pursuant to an agreement for a consent election (Case No. 32-RG-213), the
Board conducted a secret election among the Respondent 's employees on March
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
28, 1950 . There were approximately 88 eligible voters in the appropriate unit.
Of this number, 51 cast their votes for and 32 cast their votes against the
Union. On April 5, 1950 , the Board certified the Union as the collective bargain-
ing agent for the employees in said unit. " In accordance , with the Board 's certi-
fication , the complaint alleges, the answer admits, and the Trial Examiner
finds , that a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act consists of:
All production and maintenance employees including shipping department
employees and truck drivers, excluding office-clerical employees , inspectors,
timekeepers , salesmen , professional employees; and all supervisors as de-
fined in the Act , as amended.
The complaint alleges, the answer admits , and the Trial Examiner finds that at
all times material herein the Union has been , and is now, the exclusive bargain-
ing representative of all employees in said unit for the purposes of collective
bargaining.
2. The negotiations
On April 12, 1950, the Union wrote to the Respondent and suggested that
bargaining negotiations commence on April 18. The Union enclosed its proposed
contract with this letter. Thereafter, and starting on the date suggested in
the Union's letter, W. L. Carson, a representative of the Union, and a bargain-
ing committee of the employees had a number of meetings with Lawrence
Burrow, Respondent's attorney, and other representatives of the Respondent.
These meetings each lasted about 2Y hours. The provisions of the Union's
proposed contract were discussed; and it appears that tentative agreement
on a number of its clauses was reached after some modification.
Early during the negotiations, the Respondent indicated that it would not
agree to a checkoff of union dues, and informed the Union that it was finan-
cially unable to give any wage increase or vacations. However, the Respondent
advised the Union that it might want to grant some merit wage increases in
order to correct inequities. In this connection, the Respondent proposed that
merit increases should be granted solely at the discretion of management.
At Carson's request, the Respondent furnished the Union with a list of the names
of its employees, their classifications and hourly rates of pay.'
During June 1950, Carson was replaced by Doyle Dorsey as the Union's
representative. At their first meeting Burrow told Dorsey that "practically
all issues . . . with the exception of wages" had been settled during his, negoti-
ations with Carson. Dorsey disagreed, stating that Carson had told him that
the three main issues upon which agreement had not been reached were va-
cations, checkoff, and wages. At this meeting the Respondent informed Dorsey
that it was not able to grant a general wage increase, but that it might be
willing to give some merit increases.
At a meeting held on about July 11, John Due, manager of Respondent, gave
Dorsey the names of about seven employees who already had received merit
' The Respondent did not submit a counterproposal to the Union However, Burrow sent
a letter dated April 25, 1950 , to Carson , enclosing a proposed seniority clause. After about
three meetings , Burrow also prepared and submitted to the Union two documents which
purported to show the contract proposals upon , which agreement had been reached.
'Hourly rates were furnished for employees who were paid on that basis . Many of
Respondent 's employees , however, were paid on the basis of piecework . Piecework rates
were not furnished at the time mentioned above.
ai•
JONES FURNITURE MANUFACTURING CO., INC. 1307
increases or -who were about to receive them. Dorsey pointed out that the
Union was the certified bargaining agent and that such increases were subject
to collective bargaining.
W. W. Jones, president of Respondent, and his wife owned about 51 percent
of Respondent's stock. Jones attended a bargaining conference on about
September 6, and advised the Union's representatives that the plant's owner-
ship 'was changing as he bad given an option for the sale of his stock. At
another meeting held.shortly thereafter, the Respondent proposed that certain
individual increases be given and that some piece rates be increased in order
to correct inequities. Although still demanding a general wage increase, the
Union requested the Respondent to furnish definite information concerning the
proposed increases, and also requested that it be furnished with a list of Respond-
ent's piece rates'
On about or shortly after September 15, the Respondent posted in its plant a
notice which listed increased hourly and piecerates. The increases were made
effective as of September 15. At the same time certain employees who had been
paid hourly rates were transferred to piecework. Thereafter a bargaining con-
ference was held on about the night of September 20.' In addition to the Union's
bargaining committee, some employees who were affected by the new piece
rates also were present. The Respondent did not furnish the Union with a
written list of its old piece rates, or those proposed; but it appears that infor-
mation concerning the new rates was furnished orally during the meeting. The
Union did not approve these increases at this meeting or at any prior meetings.'
On or about September 20, 1950, William Smith, representative of the Union,
replaced Dorsey in the negotiations with the Respondent." At a meeting held
on about September 27, Burrow claimed that all questions except wages either
had been agreed upon or waived by the Union during negotiations with Carson.
Smith replied that he had checked with Carson, that it was the Union's posi-
tion that it had not waived the checkoff and vacation provisions, and that the
Union desired further negotiations on these and other issues. During a dis-
cussion of individual wage increases, Smith indicated that the Union might agree
if the Respondent would furnish it with a list of the proposed rates. Due re-
plied, "It takes time to work it out and we don''t have it ready yet."
At the next meeting on October 4,7 Smith attempted to negotiate for checkoff
of union dues, vacations, and other provisions of the Union's proposed contract.
The Respondent stated that it would not grant these benefits. Smith again
asked for a list of the Respondent's piece rates and proposed increases. Due told
him that the rates had not been "worked out." Smith then stated, "What does
the overall total amount to? . . . Can you give us a concrete figure? Does it
amount to 5 percent overall cost, or 10 percent, or 15 percent, or what does it
amount to? It may be that if we knew, we could resolve that particular issue,
3 As related above, the Respondent furnished Carson with a list of its hourly rates
That list also showed which employees were paid on a piecework basis . Concerning the
time when the Respondent first made its proposals for individual increases , the testimony
of the witnesses is vague and uncertain From the testimony of Dorsey, it would appear
that discussions in this connection took place during August. However, the undersigned
believes that the Respondent 's witnesses are more reliable in this respect and that such
negotiations took place after September 6, as found above
4 Dorsey testified that the night meeting was held during August. Due testified that it
was held on about September 20, after a day meeting which was held on September 17 or
18 Employee Jesse Moore testified that the above notice was posted before the night
meeting.
6 Due testified to the effect that he believed that the Union had agreed to the increases
during meetings on and before September 20, for the reason that it "had not objected."
6It appears that Smith was present with Dorsey at the meeting held on September 20.
7 A conciliator of the United States Conciliation Service was present at this meeting.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because it might be satisfactory ... if there is sufficient amount in the pot, we
would like to sit down and work it out and divide up the amount to give an
overall increase, and then perhaps hold back part of the percentage to use to
correct inequities." The Union was informed that the proposed increases
"amounted to about 10 percent." 8 When a "revocable checkoff" was suggested
as a compromise by the conciliator, Due stated that it first would be necessary
for him to consult with the holder of the option on Jones' stock, and that he would
give Smith a definite answer in a few days.
Smith called Due during the morning of October 10. Due informed him that
he was unable to give him a definite answer, and that another meeting would
be necessary on October 12 to discuss the questions involved. Smith reported
this conversation to the Unionts bargaining committee. That same day the em-
ployees went on strike and established a picket line in front of the plant.
A bargaining conference was held on October 12. Jones was present at this
meeting.° Smith asked the Respondent for its position on the various issues in
dispute. Jones stated that he would not sign any kind of checkoff agreement,
that the Respondent was unable to grant any wage increases, particularly after
the strike, and that its position had not changed on vacations and other cost
issues. Burrow referred to unfair labor practice charges that had been filed
by the Union with the Board and stated that he did not see how the negotiations
could be concluded successfully while the charges were pending. Smith replied
that the charges could be withdrawn after a contract was signed but that the
Union would not withdraw the charges first.
Other meetings were held on November 3 and 11. The Respondent stated at
both meetings that its position had not changed on any of the issues involved.
The strike ended on about November 13, and the employees returned to work.
On March 2,1951, Dorsey wrote a letter to the Respondent in which he requested
a bargaining conference. The Respondent did not reply to his letter. At a later
date Dorsey met Burrow who told him that he saw "no need for further meetings
as long as the pending charges were involved."
3. Conclusions
The complaint alleges that the Respondent failed and refused to bargain col-
lectively with the Union on and after April 18,1950; and that on or about Septem-
ber 15, 1950, the Respondent bargained directly and individually with its'
employees and granted them wage increases. The General Counsel apparently
contends that the Respondent did not bargain in good faith on and after
April 18, 1950.
While the Respondent's good faith during the negotiations, particularly on and
after about September 15, 1950, is questionable, I find that it is not necessary to
resolve this issue. The undisputed evidence discloses that by letter dated March
2, 1951, the Union requested a bargaining conference, and that the Respondent
ignored this request. Accordingly, it is found that the Respondent failed and
refused to bargain collectively with the Union on and after about March 2, 1951.
The evidence also discloses that the Respondent on or about September 15
and 22, 1950, granted individual wage increases to its employees. The Re-
spondent apparently contends that the Union agreed to these increases since,
as Due testified, it did not object when the increases were discussed. This con-
tention is rejected.
The Union repeatedly requested the Respondent to furnish it with a list of
the old piece rates and the proposed increases. Such information was never
8 The Union's proposed contract called for a general wage increase of 15 cents per hour.
8It appears that at about the above time the option on Jones' stock had expired without
having been exercised.
JONES FURNITURE MANUFACTURING CO., INC. 1309
given to the Union in written form. The Respondent did give information con-
cerning the new rates at the meetings on about September 18 and 20. However,
it appears that it was given piecemeal during discussions between Respondent's
representatives and employees who were present . With such fragmentary infor-
mation and without a list of the old piece rates, the Union clearly was not in a
position to give its approval . Further, both Dorsey and Smith testified credibly
that the Union at no time approved the increases . The Union indicated that
agreement on wages might be possible if the Respondent would furnish it with
definite information concerning the proposed individual increases . Under the
circumstances it could hardly be claimed that an impasse on the wage issue had
been reached . Accordingly , it is found that Respondent 's action in unilaterally
granting wage increases to its employees on September 15 and 22, 1950 , constitutes
a separate violation of Section 8 (a) (5) 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 commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively
with the Union. It will therefore be recommended that the Respondent cease
and desist therefrom, and also that upon request it bargain collectively with
the Union with respect to wages, hours, and other terms and conditions of
employment, and if an understanding is reached embody such understanding in a
signed contract.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees, including shipping depart-
ment employees and truck drivers, excluding office-clerical employees, inspec-
tors, timekeepers, salesmen, professional employees, and all supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. United Furniture Workers of America, CIO, was, on March 28, 1950, and
at all times since then has been the exclusive representative of-all the employees
in the aforesaid unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the aforesaid Union, as the exclu-
sive bargaining representative of the employees in the appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]