Gluck Bros., Inc.

In the Matter of GLIICK BROS., INC. and UNITED FURNITURE WORKERS OF AMERICA Case No. C-2562.Decided May 11, 1.9If3 1 ECISION AND ORDER On March 27, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Gluck Bros., Inc., Morris- town, Tennessee, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United, Furniture Workers of America, or any other labor organization of its employees, by dis- charging any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condi- tion of employment; (b) In any other manner interfering with; restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through 49 N. L. R B, No. 104 a 724 GLUCK BROS., INC. 725 representatives of their own choosing, and to engage in concerted activity for the purpose of collective bargaining, or other mutual aid and 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) Offer Martin White immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole Martin White for any loss of pay he may have' suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal ton that which he normally would have earned as wages during the period from October 10, 1942, to the date of the respondent's offer of reinstatement, less his net earnings during such period; (c) Post immediately in conspicuous places throughout its plant at Morristown, Tennessee, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become and remain members of United Furniture Workers of, America, and that the, respondent will not discriminate against any employee because of membership or activities'in said organization; (d) Notify the Regional Director for the'Tenth Region in writing, within ten (10) days from the date of. this Order, what steps the respondent has taken to comply herewith. AIR. GERARD D. REILLY took 110 part in the consideration of the above Decision and Order. INTERMEDIATE -REPORT Mi. Eugene M. Picrver. for the Board Mi. 0 L McMa'lurn, of Morristown, Tenn., for the respondent. Mr TV I. Smith and Mr. Emil Wzlhmetz, of Knoxville, Tenn., for the Union. STATEMENT OF THE CASE Upon a first amended charge duly filed on March 5 , 1943, by United Furniture Workers of America , CIO, herein called the Union, the National Labor Relations Board , herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia ). issued its complaint dated March 5, 1943, against Gluck_ Bros., Inc., herein called the respondent , alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act, herein called the Act. Copies of the complaint accompanied' 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the notice of hearing thereon were duly served upon the respondent and -the Union. With respect to the unfair labor practices , the complaint alleged in substance that the respondent : (1) on or about October 12, 1942, discharged its employee Martin White , and thereafter refused to reinstate him, because of his member- ship in and activities on behalf of the Union ; ( 2) from October 7, 1942 , through October 12 , 1942, and thereafter, threatened, urged, and warned its employees not to join or remain members of or assist the Union and discouraged member- ship in the Union by questioning its employees and by disparaging and ridiculing the Union , and thereby interfered with, restrained , and coerced its employees in the free choice of collective bargaining representatives. The answer of the respondent filed March 18, 1943 , alleged that Martin White had not been discharged but rather had quit voluntarily and denied the com- mission of any unfair labor practices. Pursuant to notice, a hearing was held at Morristown , Tennessee, on March 18, 1943, before Will Maslow, the undersigned Trial Examiner duly designated by the Chief Trial Examiner . The Board and the respondent were represented by counsel and the Union 'by lay representatives ; all participated in the hearing. Full opportunity to be heard, to examine and 'cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing the attorney for the respondent moved that all witnesses be excluded from the hearing room until called to testify. The under- signed granted this motion.' At the close of the -hearing the attorneys for the Board and for the respondent moved to conform their respective pleadings to the evidence adduced Their motions were granted. All parties waived Dial argument before, or the submission of briefs to, the Trial Examiner. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACTS 1. THE BUSINESS OF THE RESPONDENT' The respondent is a New York corporation having its principal office in New York City and maintaining a plant in Morristown, Tennessee; herein called the plant. It is engaged in the manufacture, sale, and distribution of furniture. The respondent purchases each year about $250,000 of raw materials, consisting principally of lumber, varnish, glue, and hardware, which are used by it in the manufacture of furniture. About 85 percent of Such raw materials is shipped to the plant from points outside the State of Tennessee Approximately $500,000 worth of furniture is produced each year by the plant, about 90 percent of which is shipped from the plant to points outside the State of Tennessee. At the time, of the hearing the, respondent employed about 175 persons at its plant. II. THE ORGANIZATION INVOLVED United Furniture Workers of America, affiliated with the Congress of Industrial 'Organizations, is a labor organization admitting to membeiship the employees of the respondent employed at the plant. ' The Board and the respondent were, however, each allowed to have in the hearing room one witness to assist and advise them during the examination of the other witnesses. 2 The findings in this section are based upon admissions in the respondent 's answer. GLUCK BROS., INC. 727 ',HL THE UNFAIR LABOR PRACTICES A. Chronology of events In August 1942'the Union began to organize the respondent's'employees, a - series of meetings being held in Morristown. The first of such meetings which Employee Martin White attended was held during the first week of October, 1942' White signed an application for membership in the Union at the meeting and also made a brief talk in favor of unionism to the 25 employees present. White, who was 62 years old, had been hired by the respondent as a general laborer at 40 cents an hour on October 1, 1942. He testified, and the undersigned finds, that while he was at work, the day after his talk at the Union meeting, E. J. Bean, superintendent of the plant, called him over to•a hallway and said: "I don't want you to be talking to the boys about that union around here." When White replied that the "boys" were doing more talking than he, Bean stated : `:Well, if that is what you are here for, you had just as well take your `boujet' [lunch bucket] and go back home." 4 White testified that shortly thereafter,' while he and about six other employees were standing outside the plant around 6 p. in. waiting to return to work over- time, they were discussing unionism ; Bean came out of the plant and asked White what he had been talking about. White told him, whereupon Bean re- marked : "There ain't a God damned thing to it-not a thing to all these God damn secret' organizations." The entire group then walked into the plant. White worked 3 hours overtime that night. According to the version of Employee Jefferson Davis, who overheard the con- versation, Bean emerged from the plant, and asked White what he was talking about and then,said that "the union wasn't no account" and "cussed." 1 11 Employee Horace Wall, who was also present during the conversation, testified' that White had been talking "about unions and lodges" and had expressed his approval of unions before Bean approached. He also heard Bean ask White what he had been talking about, but could not-recall Bean's further remarks. Superintendent Bean 'denied on the witness stand that any such conversation had ever taken place or that he had ever "cursed" the Union. The respondent attempted to show by its timeclock cards that this conversation could not have taken place on Friday October 9,' because neither Wall Davis, nor White worked overtime that night, and secondly, that it could not have taken place at all because, contrary to White's testimony, his card showed he had never worked overtime. The cards however, show that Davis and Wall worked over- - time on Thursday, October 8. White's timeclock card also revealed that on sev- eral occasions he had forgotten to punch his timeclock, which compelled Bean to make pencil entries on the card. Finally, White testified, that when his pay check for that week had been handed to him, he had complained to Bean that he had not been paid for 3 hours overtime work, whereupon Bean took some coins from a Coca-Cola vending machine in the plant and paid him in cash for such work. Bean, while admitting that he would open the vending machine to bring the coins into the office, denied that he had ever paid White from such funds 8 Although the record is not clear as to the exact date of this meeting, it was probably Tuesday, October 6. 4 Superintendent Bean did not mention or deny this incident in his'testiinony. Bean is in charge of all the employees at the plant 5 Neither White nor any of the other witnesses could give the exact date. ' At one point in his testimony, White, who was very much confused about the dates, testified that he joined the Union on a Thursday and that the conversation with Bean occurred thereafter. He never definitely fixed the date of the conversation, however, as Friday, October 9. • 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and insisted that all payments to employees were by check Bean testified, how- ever, that the profits of the Coca-Cola machine were" used by the respondent as an "emergency" fund from which payments, were made to-sick or needy employees. The undersigned rejects Bean's denial and credits the testimony of White about this incident in front of the plant and further finds that the conversation -took place on Thursday, October 8 White testified that the second morning after Bean's remarks outside the plant, or on Saturday, October 10,' White reported for work, but was told by Bean that there was "no work for him to do " Bean denied generally that he had ever discharged White, but the undersigned credits White's testimony White told Emil Willimetz, the Union's -representative, that he had been dis- i, charged, and was instructed to return to the plant and request his job back.8 " 'White also told his son Clabe White of the discharges According to White, on Monday, October 12, he visited the plant, saw "another man working on my machine," and asked his foreman, G S Teague, why he had been discharged. , Teague replied : "I guess you are out on account of the union, but you follow him [Bean] out in the yard, and he might put you back." Teague did not deny or mention this incident while on the witness stand, and the under- signed credits White's testimony. White testified that upon Teague's suggestion, he then sought out Bean, accom- panied by his son Clabe and another person seeking employment, and asked for work. Bean allegedly told Martin White : "I can't use you" and then said : "You fellows can go out that gate there and never come back " 10 Two new men were, however, hired that morning by Bean. Bean's version of the events was radically different from White's He testified that on Monday, October 12, White's foreman, Teague, had reported that Martin White was complaining about the noise of the machines in the plant Bean then accompanied Martin White and two other persons seeking work to the yard, where he asked Yard Foreman Gray whether he needed any men that morning. When Gray replied that he did not," Bean allegedly told White and the others with him that he had no work for them and suggested that they could leave the plant through the yard gate He denied, however, saying anything about a discharge, or that White need not return to the plant any more. Teague, called as a witness by the respondent, testified that White had com- plained about the noise in the plant, whereupon he had suggested that White see Bean about it. He denied, however, that he himself had reported this complaint to Bean Finally, Bean admitted that White had never complained to him about the noise in the plant The undersigned accordingly rejects Bean's testimony that he, in effect, laid off White on October 12 because he did not wish, to work on the double surfacer, there being no other work available for him. On Wednesday, October-14, Elsie Long, the respondent's office manager, made out two records relating to White On a separation notice form, which she sent to the state unemployment commission, she wrote as the reason for the termination a,f White's employment : "Just walked off the job " This notice was dated October 13 and was signed by Bean. At the same time on the back of White's 7 White also fixed this conversation as ' having taken place the morning after Bean's remarks His timeclock card shows, however, that he worked Friday, October 9, but not .on Saturday, October 10 8 White's testimony on this point was corroborated by Willimetz 0 This testimony was'cori oborated by white's son 30 This testimony was substantially corroborated by Clabe White 11 Gray corroborated Bean's testimony on this point and the undersigned credits Bean's ,testimony as to his conversation with Gray and Gray's reply GLUCK BROS. , INC. 729 timeclock card for the week ending October 13 Long wrote : "Double surfacer wouldn't do that. All Mr. Bean had for him so he had to leave." Long's entries were based on information she received from Bean that day.' - Bean and Long allegedly removed White from the pay roll because he had quit voluntarily, but this step was taken on October 14, only one day after White had left through the yard gate, and before the respondent could have known that White was not thereafter returning to work Long herself testified that when an employee was absent one day his time card was not removed from the rack, "because they are out today and are in again tomorrow, and they are not, taken out unless they are definitely gone." The pay roll period ended on Tuesdays ; this week, therefore, it ended on October 13. On December 22, 1942, an election under the Board's auspices was held to determine whether the employees wished the Union to represent them for the purpose of collective bargaining." A few days before the election, Foreman Teague, admittedly a supervisory employee, asked Lee Hickey, one of the em-, plbyees under him, how he was going to vote in the coming election. Hickey answered that he had not yet made up his mind.'4 The parties stipulated at the hearing "that at the time of Martin White's separation from the company, and thereafter, Gluck Bros., Inc., hired employees to perform the same work which Martin White had been doing, which was general labor." • B. Concluding findings The respondent has offered varying and inconsistent explanations for White's termination of employment. According to its answer and the\separation notice, White quit voluntarily," but Bean's testimony and the entry on the back of White's timeclock card indicate that he was laid off on October 12 allegedly because there was no work available which he could perform The undue haste, however, by which White was removed from the payroll, and the fact that other persons were hired on October 12, indicate that both of these explanations were not the real reason for White's discharge, but rather, and the undersigned so finds, that White was discharged on October 10 and refused reinstatement on October 12 and thereafter, because of his continued remarks to the other employees in favor of the Union Foreman Teague's effort to learn how Hickey would vote in the coming election was obviously an effort to violate the secrecy of the ballot and represents, there- fore, not only interference with the election processes of the Act, but also an attempt to interfere with, restrain, and coerce Hickey in his exercise of a free choice of collective bargaining representatives 16 12 The finding as to this date is based on Long's testimony. Bean first testified that he had, given -Long the information on October 13, but thereafter changed his testimony and stated he had given Long the information a week later. The separation notice was dated back, lie contended "Of the 157 votes cast in the election, the Union received 69, a total of 85 were cast against the Union, and 3 were challenged The Board thereupon dismissed the petition of the Union upon the basis of which the election had been held. See In, the Matter of Gluck Biotheis, Inc. and United Furniture Workers of America, 0 I. 0, 45 N. L R. B. 1 1 59, and the Supplemental Decision and Order issued March 10, 1943, 12 LRR 131. '4 This finding is based on Hickey's testimony which Teague did not either deny or mention while lie was on the witness stand is At the hearing, the respondent was asked whether it was willing to reinstate White, but it declined on the giounds that lie had quit voluntarily, that there was then no open- ing for him, and finally that he was not able because of his age,-to work for the respond- en t. 16 See Matter of Covington Weaving Co., etc, 34 N L. R B 187. 730 DECISION'S OF NATIONAL LABOR RELATIONS BOARD The undersigned finds that the respondent discharged Martin White on October 10, 1942, refused on October 12, 1942 and thereafter, to reinstate him, because of his membership in and assistance to the Union; and thereby discriminated in regard to his hire and tenure of employment. ' The undersigned further finds that by the discharge of and refusal to reinstate White, by Bean's remarks to White near the hallway on October 7, 1942, by Bean's remarks to the employees in front of the plant on October 8, 1942, and by Teague's questioning of Hickey in December 1942, the respondent 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 The activities of the respondent' set forth in Section III above, occurring in connection with the operations 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 Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Since it has been found that the discharge of Martin White on October 10, 1942, and 'the refusal on October 12, 1942, and thereafter to reinstate him was an unfair labor practice, it will be recommended that the respondent offer him full and immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss he may have suffered by such illegal discrimination, by pay- m(ent to him of a sum of money equal to the amount he normally would have earned as wages from October 10, 1942, to the date of the respondent's offer of reinstatement, less his net earnings 14 during such period. Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Furniture Workers of America is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure and terms and conditions of employment of Martin White, thereby discouraging membership in United Furniture Workers of America, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in 17 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work, and working elsewhere than for the respondent, which would not have been incurred but for his un- lawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B. 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N: L. R. B., 311 U. S. 7. GLUCK BROS., INC. 731 and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Gluck Bros., Inc., its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Furniture Workers of, America, or any other labor organization of its employees, by discharging any of its em- ployees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively with representatives of their own choosing, and to engage in concerted activity for the purpose of collective bargaining, or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer Martin White immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges ; (b) Make whole Martin White for any loss of pay lie may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from October 10, 1942, to the date of the respondent's offer of reinstatement, less his net earnings 18 during such period ; (c) Post immediately in conspicuous places throughout its plant at Morris- town, Tennessee, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respond- ent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b) of these recommendations; (3) that the respondent's employees are free to become or remain members of United Furniture Workers of America, and that the respondent will not discriminate against any employee because of member- ship or,activities in said organization ; (d), Notify the Regional Director for the Tenth Region (Atlanta, Georgia) in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies the said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the 1° See footnote 17 732 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D ' C , an original and four copies of a statement setting forth such excep- tions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) 'as it relies upon, together with the original and four copies of a brief in support thereof. As further pro- vided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. WILL MASLOW, Trial Ecranviner. Dated March 27, 1943.