Drexel Furniture Co.

In the Matter of DREXEL FURNITURE COMPANY and HIGH POINT AND VICINITY DISTRICT COUNCIL, A. F. OF L. FURNITURE WORKERS 1 Case No. C-3344.-Decided March 29, 1943 Jurisdiction : furniture manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: incitement of employees to assault union organizers; employer found not to have engaged in surveillance. Remedial Orders : cease and desist unfair labor practices Mr. Jacob Blum, for the Board. Brooks, McLendon c Holderness, by Messrs. T. H. Brooks and L. P. McLendon, of Greensboro, N. C., for the respondent. Mr. Herman J. DeKoven, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by High Point and Vicinity District Council, A. F. of L. Furniture Workers, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Fifth Region (Baltimore, Mary- land), issued its complaint, dated August 28, 1942, against Drexel Furniture Company, Marion, North Carolina, herein called the re- spondent, alleging that the respondent had engaged in and was eii- gaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act,, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the respondent and the union. In respect to the unfair labor practices, the complaint alleged in substance that the respondent, at its Marion, North Carolina, plant: (1) urged, persuaded, and warned its employees to refrain from be- The caption in the complaint read : "Drexel Furniture Co, Marion, N C and High Point District Council, A. F. L. Furniture Workers." However, at the hearing, the parties agreed that the caption should be amended to read as set forth above. 48 N L. 'R. B., No. 86. , 683 684 DECISIONS OF NATIONAL LABOR-RELATIONS, BOARD coming or remaining members of the Union; (2) threatened them, with discharge and other reprisals if they became or remained mem- bers of the Union ; (3) kept under surveillance the meetings and meeting places of employees who were members of the Union; (4) on or about March 31, 1942, caused representatives of the Union to be, brutally assaulted when they attempted peacably to distribute union literature at or near the respondent's plant; and (5) by the fore- going acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer in which it denied that it,had engaged in any unfair labor practices. Pursuant to notice, a hearing was held in Marion, North Carolina, on September 17; 1942, before Samuel H. Jaffee, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board and the respondent were represented and participated in the hear- ing. At the close of the hearing, counsel for the Board moved that the pleadings be conformed to the proof in respect to minor matters, such as names, dates, and places. This motion was.granted without objection. Various rulings were made by the Trial Examiner dur- ing the course of the hearing on other motions and on objections to the admission of evidence. On September 24, 1942, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1) and Sec- tion 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Thereafter, the respondent filed exceptions to the Intermediate Report, and a brief, as well as a mo- ,tion to reopen the record for the reception of newly discovered evi- dence. Pursuant to notice, a hearing for the purpose of oral argu- ment was held on December 10, 1942, before the' Board, at Wash- ington, D. C. The respondent alone was represented and participated in the hearing. On December 17, 1942, the Board granted the motion of the re- spondent to reopen the record for the reception of newly discovered evidence. Pursuant to notice, a second hearing was held in Marion, North Carolina, on January 7, 1943,, before Samuel H. Jaffee, the Trial Examiner. The Board and the respondent were represented and participated in the hearing. At the close of the hearing, counsel for the Board moved that the complaint be conformed to the proof. Without objection, this motion was granted and made applicable to all the pleadings. The respondent moved to dismiss the complaint. The Trial Examiner reserved ruling thereon, but denied .the .motion : DREXEL FURNITURE , COMPANY 685 in his Supplemental Intermediate Report. Various rulings- were made by the Trial Examiner during the course of the second hearing on other motions and on objections to the admission of evidence. Full opportunity to be heard, to examine and cross-examine -wit- -nesses, and to introduce evidence bearing upon the issues was afforded all parties at the first and second hearings. The Board has reviewed the rulings of 'the Trial Examiner at both hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. On January 22, 1943, the Trial Examiner issued his Supplemental Intermediate Report, copies of which were duly served upon -the parties; in which he adhered to the conclusion in his original Inter- medi'a'te Report that the respondent had violated Section 8 (1) of ,the Act. Thereafter, the respondent filed exceptions to the Sup- plemental Intermediate Report, and a brief. The Board has considered', the briefs and exceptions to the original and Supplemental Intermediate Reports filed by the respondent, and finds the exceptions of the respondent to be without merit insofar as they are inconsistent with the findings, conclusions, and order set forth below.- Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Drexel Furniture -Company is a North Carolina corporation en- ,gaged in the manufacture, sale, and .distribution of veneer products, chairs, and, bedroom and dining-room furniture, with its principal office and place of business at Drexel, North Carolina, and with plants at Drexel, Marion, and Morganton, North Carolina. The alleged unfair labor practices involve only the Marion plant. From approximately September 1941 to September 1942, the respond- ent'purchased raw materials, valued in excess of $1,000,000, 80 percent of which was shipped to the respondent's plants from points outside the State of North Carolina; 81 percent of the raw materials used at its Marion- plant was shipped from points outside the State of North •Oarolina. During the same period, the respondent sold finished prod- ucts from its Marion plant, valued at $1,627,000, 97 percent of which was shipped to points outside the State of North Carolina. II. THE ORGANIZATION INVOLVED High Point and Vicinity District Council, A. F. of L. Furniture Workers, is a labor organization, admitting to membership employees of the respondent. '686 DBE,CISIONS ,OE'°NATIONAIi-r LABOR ,RELATIONS BOARD III. THE UNFAIR ,LABOR PRACTICES In the early, part of January 1942',. the ;Union, through Clyde B. Gentry, commenced an organizational campaign among the respond- ent's employees'at•its Marion, North Carolina, plant, hereinafter called the plant. It appears that prior thereto there had been no organiza- tional efforts at the plant. Alleged surveillance Gentry testified that around the early part of February , 1942, he was waiting alongside the plant, after 'working hours, for one Willis, an employee, who was to accompany him to_ the local high school to obtain permission from the principal to use the school auditorium for a union meeting ; that Samuel B. Hildebrand , plant superintendent, and Cecil B . Dobson, office manager,2 drove up in a car and stopped close to .Gentry ; that as Willis, approached Gentry, Dobson left the car; and that thereafter , Hildebrand followed and watched Gentry and Willis as they proceeded to the schoolhouse , and various other points within an area of _a few blocks. Hildebrand` and Dobson testified that they decided to investigate' Gentry because of reports they had received from one Greyson, an employee, that Gentry had sometime prior thereto taken photographs of the plant and was around the plant again on the day in question ,,' and that they were fearful of Sabotage.' Hildebrand and Dobson denied having any knowledge of Gentry's affiliation with the Union when 'they decided to investigate him. Hildebrand further testified. that when Willis met Gentry, he assumed that Gentry was Willis' relative or friend and therefore t decided to drop the , investigation ; that thereafter he did not follow -Gentry but "went ahead of him"; and that Hildebrand had. various personal matters to attend to in the vicinity , and the fact that they crossed each other's path was mere "coincidence." On the basis of the entire record, -we'do not, nor did the Trial Exam- iner, credit the testimony of Hildebrand and Dobson that they decided, to investigate Gentry because they were fearful of sabotage to the 'plant. Nevertheless, we find, as did the Trial Examiner , not without some doubt, that the evidence as a whole does not establish that there was surveillance by the' respondent in, violation of the Act. 3 Dobson, a supervisory employee, was next to Superintendent Hildebrand' in line of authority 3 Hildebrand and Dobson admitted, however, that Gentry did not have it camera with him when they saw him on the occasion in question, and Gentry testified that he had never had a camera with him while near the respondent's property. 4 It appears that the respondent was engaged in some defense work. In' this connection, it is to be noted that, according to the 1940 Federal census, Marion has a population of less than 3,000. - , 'DREXEI:' ElTR'N'LTURE'COMPAN'Y - 687: The assault.an the union organizers On March 18, 1942, the Union addressed a letter to the respondent advising it, in effect that it desired to organizer its employees. Both Hildebrand-and Dobson wereaware of the contents of 'this letter. On- or about March 23, Joe Boyd, Regional Director of the Union,-visited the plant,and spoke to, Hildebrand about organizing the employees. Hildebrand replied that "this is the time when everybody ought to be together on the war" and that he was only the superintendent, and abruptly closed the conversation. - Oil March 31, Clarence R. Whisman, W. A. Houser, and E. L. Ketchie, union organizers, wer(3•'distributing union handbills to em-` ployees of the respondent as, they came out of the plant at about 4:45. p. in. When Whisman handed ',,,t circular to employee, Arthur -Lail,' the ' latter asked what it was about., -Whisman replied that it was- A. F. of L. literature. Lail responded,. "A. F. L., hell," and, according to his own testimony, tore up the circular and attempted to throw it at Whisman. - Thereupon, several employees near Arthur Lail, includ- ing the latter's brother, Woodrow,•Hugh Presnell, and James Spencer,. as well as Arthur Lail "himself, proceeded to assault and beat the organizers. Ketchie, who was, 61 years of age, managed, after being struck, to get into the organizers' car parked nearby. The assailants pushed the car several feet and threatened to overturn it. As the organizers were getting away,.rocks were hurled at them. It is clear that the assault was notprovoked by the organizers and that the afore- mentioned assailants deliberately attacked and beat them." The Trial Examiner, because of various incidents, described below, which took place after the organizers arrived at the plant, and before 4:45, when, the employees left the plant, found that the respondent instigated and ,caused the assault. ' , , The organizers arrived at the plant at approximately 4:20 p. in. They parked their car on a public street alongside the plant , several feet past the plant gate,' n' a .no-parking zone. At about 4:30, Whis- man' asked Fred Kuykendall, the gateman, when the work day ended., Kuykendall replied that it ended at 4: 45-and asked,Whisman if, there was anyone he wished to see. Whisman replied that he wanted to dis- tribute union literature. " Kuykendall promptly gent into his shanty, which was located a few feet 'from the gate, and informed Dobson, over the communications system, that there were three, men in a, car outside' and that Dobson had better come out to investigate. A -few minutes later,' Dobson came to the gate ' and spoke to Kuykendall. Dobson and Kuykendall testified in substance that Dobson told Kuy- kendall that he assumed they were "union men," and that Kuykendall, ° The Trial Examiner, did not, ,nor do we, credit the testimony of the assailants that the, assault was provoked by the organizers . 688w DECISIONS OF NATIONAL; LABOR.; RELATIONS- BOARD replied that they had told him>theym'ee punion organizers and intended to distribute union literature. Shortly after his conversation with Dobson at the gate, Kuykendall locked the gate and went into the plant for a few moments. John A.' Hawkins, an employee, testified that Kuykendall came through the packing room and.said to him, "Let's go out and run some union men, off." Kuykendall denied speaking to Hawkins. We credit, as did the Trial Examiner, the testimony of Hawkins that Kuykendall made the foregoing statement, and, as more fully set forth below, we find the respondent accountable for Kuykendall's activity in this regard. At about the time that Kuykendall returned to the gate, Hilde- brand came out of the plant', 'w'ent,to' the fence near the gate,, and wrote down the license number of the organizers' car. The organ- izers noticed what Hildebrand was doing. They then observed that they were in a no-parking zone and, believing that this was the reason for Hildebrand's action, drove several hundred feet up- the street and outside the restricted area, but still adjacent to the plant property. Hildebrand's testimony is to the effect that he noted the number of the organizers' car because he intended to request the police to remove it from the restricted zone, but that he did not call the police because when he returned to his office he noticed that the car had been moved. The, Trial ^E^aminer did not, nor do we, upon the basis of the entire record, credit Hildebrand's testimony as to his reason for noting the license number of the car. If Hildebrand had been concerned about the car's presence in the no-parking zone, he could easily have requested the occupants to move. It appears from the testimony of Kuykendall and Dobson that on previous occasions when cars had parked in that one, either the occupants were requested to move, or nothing at all was said or done, it having been assumed that they would move if trucks came through the gate. Nor do we believe that Hildebrand's action was motivated by any, suspicion that the union organizers might be saboteurs. Further, from all the evidence in the case, we; infr',and find that Hildebrand went out to take, down the number,of the organizers' car after being advised by Dobson of the presence of the organizers and of their intention to distribute union literature.7 Shortly after Dobson's conversation with Kuykendall at the gate, and at about the time that Kuykendall asked Hawkins to "run off" the "union men," Dobson went into the,packing room and spoke to "Jock" Wall, foreman of that department. The testimony of both Dobson and Wall is substantially"that `Dobson told' Wall that there might be' trouble at the gate r lecause of the presence in the no- 4 Both Hildebrand and Dobson admitted that Dobson spoke to Hildebrand about the three - men in the car, but'their testimony , which we do not credit, is to' the effect that'Dobson• did Po after Hildebrand took down the license number. DREXEL 'FURNITURE 'COMPANY - " , - 68911, parking zone of three "strange" men who had refused to tell- Kuyken-- dall why they were there, and that'Wall should therefore keep away from the gate anyone in his department who was "inclined to fight." We do not credit this' version of the nature of Dobson's reference- to the three men at the gate and the employees' involvement in a, fight. Both, Dobson and Wall were found by the Trial, Examiner, tto-be incredible witnesses generally, and we agree. Also, Dobson admitted that he had no reason to believe' that there might be a fight or other disturbance because of the presence of the organizers.8 Moreover, it is clear that prior to this conversation, Dobson knew that the three men at, the gate ^w-ere union organizers who intended to distribute union literature; hence, it is unlikely that he told Wall that there were three "strange" men who had `,`refused to tell Kuyken- dall why they were there." Further, Dobson admitted that the only exits from the plant were through two gates, both of which led to the street where the organizers had,-parked, and that he did -not intend that Wall keep in the plant, until the organizers left, all the em- ployees who were liable to get into trouble. We are convinced that Dobson did say something to Wall about. three men at the gate and the employees' involvement in a fight. On the-basis of the circumstances enumerated below, as well as the entire record, we infer and find, as did the Trial Examiner, tthtt what Dobson said to Wall was that there were three union organizers, outside and that Wall should instigate some of the employees to get into, a fight with them. As already noted, Dobson knew that the three men were organizers who intended to distribute union litera- ture, and it is apparent from Hildebrand's treatment of the Union's regional director a week earlier that the respondent was not favor- ably disposed 'towards the Union's attempt to organize its employees. Also, our finding that Dobson requested Wall to instigate an assault on the organizers is -consistent with the practically simultaneous activity of Kuykendall in exhorting Hawkins to "run off" the organ-' izers, which followed Dobson's conversation with Kuykendall at the gate. Further, there is' Hildebrand's action in taking down the li- cense number of the organizers' car after being advised by-.Dobson of their presence and their contemplated activity. Also, since Dob- son had no reason to expect a fight or other disturbance, we are unable, in the circumstances of this case, to discern any other reason- able version 'of the nature of Dobson's reference to the three men and the, employees' involvement' in' a fight. Finally, ' as found below, 8 In other portions of his 'testimony, Dobson stated that he did expect trouble ; bow- ever, it is apparent from the vague and inconsistent nature of such testimony, as,well as the record as 'a whole, that this is not to be credited, and we so find, as did the Trial Examiner. - ^' 690 DRCISIONS OF" NATIONAL LABOR,RELATIONS BOARD Walf, immediately after his conversation with-Dobson, and in Dob- son's presence and without reproof from the latter, incited Ray Jus-. tice, an employee, to assault the organizers. It is clear that what Dobson said to Wall was consistent, with What Wall in turn said to Justice." I Justice, who worked under Wall's supervision, was 19 years old and had a reputation as a "fighter." According to the testimony of both Wall and Justice, Wall asked Justice if he was in a fighting mood, ' and Justice replied that he was not. There is some variance in, their testimony as to what Wall said in reply to Justice's remark-'- that he was not in a fighting mood, Wall testifying that he told Justice that in that case he had better stay a-yay from the gate, and Justice testifying that Wall said/either' (1) that-di that case -he had better stay away from the gate, or (2) that' if Justice wanted to get. into a fight, to go ahead. That Wall made the second of these state- . lnents is evidenced in part by the fact that such statement is con- sistent with Kuykendall's activity in requesting Hawkins to-"run, off" the organizers. Also, the Trial Examiner found, as do we, that Justice, who was called to testify for the Board, was a reluctant witness. Moreover, in ah affidavit given to a Field Examiner of the Board prior to the original hearing, Justice stated that after he told Wall that he was not in a fighting mood, Wall replied, "If you, want to get in [a fight], there is some union men outside." 10 Also,, Justice admitted on the stand that, during his conversation with, Wall, the latter told him about the presence ,of "union -men" at the gate. Upon the basis of the entire record, we find, as did the,Trial Examiner, that Wall made the second of the statements discussed above,11 and, further, that pursuant to Dobson's instructions to Wall,: the latter incited Justice to assault the union organizers. We also, find, as did the Trial Examiner, that though Kuykendall was not a supervisory employee, the respondent is nevertheless account- able for his activity in requesting Hawkins to "run off" the organizers. From all the circumstances in the case, including the fact that Kuyken- dall's activity followed immediately his conversation with Dobson, Wall himself, in his testimony on the nature of his conversation with Justice , stated "And I said, `Ray, this is just what Mr. Dobson, told me about the three'-I don't remember whether he said three men or not lie said some men " 10 The Trial Examiner did not credit, nor do we, Justice's testimony that after he read over the affidavit, and before lie signed it, he told the Field Examiner that wall had made' one or the other of the two statements discussed above , and that the Field , Examiner said, he would correct the affidavit accordingly. , ri Even if wall had made the first of the two statements , a finding of incitement of Justice by wall would be supported by substantial evidence Since we are convinced that neither, WalYnor anyone else had reason to expect a fight because of the presence of the organizers, the only reasonable interpretation of wall 's entire conversation with Justice, viewed in, the light of Dobson 's'and Kuykendall 's activities , and the record as a whole, is, that wall attempted to interest Justice, who had a reputation as a fighter , in getting into a,fight with the organizers. DREXEL FURNITURE COMPANY, 691 about the presence of the organizers and their intention to distribute union literature, the fact that Kuykendall took orders from Dobson, the practically simultaneous activity of Dobson• in instructing Wall to instigate employees to assault the organizers, Wall's incitement of Justice, as well as Hildebrand's activity in taking down the license number of the organizers' car, we believe it may be properly inferred, and-we find, that Kuykendall's activity was part of a scheme'of the respondent to have the organizers beaten up and that he acted on behalf of the respondent in this respect. The Trial Examiner found that the respondent incited the assailants and caused the assault. He predicated his finding upon, an inference drawn principally from the activities of Dobson, Wall, Kuykendall, and Hildebrand, discussed above. While, in view of the activities of the respondent in inciting employees Justice and Hawkins, it is not -unlikely that the assailants were also incited by the respondent to assault the organizers, we believe that the evidence falls short of establishing that the respondent incited the assailants or caused the assault. However, we find that, by the above-described activities of Kuykendall, Dobson, and Wall, in inciting, or causing the incitement of, employees Justice and Hawkins to assault the union organizers, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respond- ent 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 and is engaging in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. High Point and Vicinity District Council, A. F. of L. Furniture Workers, is a labor organization, within the meaning of Section 2 (5) of the Act. 521247-43-45 692 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD 2. By interfering with, restraining, and coercing its employees in, the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is "engaging in unfair labor practices,' within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning,of Section 2 (6) and (7) of' the Act. ORDER Upon the basis of the above findings of fact and conclusions of law,, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Drexel Furniture Company, Marion, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to 'form, join, or assist labor organizations, to bargain collectively through, representatives of their own choosing, and to engage in concerted activities for the purpose of. collective bargaining or other-mutual aid- or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which. the Board finds will effectuate the policies of the Act: (a) Post immediately in conspicuous places throughout its plant at Marion, North Carolina, and maintain for a period of not less than sixty (60) consecutive days from the date of-posting, notices to its employees stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 (a) of this, Order; (b) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order what steps the, respondent has taken to comply herewith. MR. Jor-IN M. HouSTON took no part in the consideration of the above Decision and Order.