The L. C. Phenix Co.

In the Matter of LEROY C. PHENIX, DOING BUSINESS AS THE L. C. PHENIX COMPANY and FURNITURE WORKERS UNION, LOCAL No. 1561 Case No. C-720.-Decided October 13, 1938 Furniture Manufacturing Industry-Settlement : stipulation providing for rein- statement and back pay-Order: entered on stipulation. Mr. David Persinger, and Mr. Charles M. Brooks, for the Board. Mr. Ben C. Cohen, of Los Angeles, Calif., for the respondent. Mr. Langdon West, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge and an amended - charge duly filed by Furniture Workers Union, Local No. 1561, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director' for the Twenty-first Region (Los Angeles, Cali- fornia), issued its complaint dated December 1, 1937, against LeRoy C. Phenix, doing business as the L. C. Phenix Company,' Los Angeles, California, 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 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,'49 Stat. 449, herein called the Act. Copies of the complaint and notice of hear- ing thereon were duly served upon the respondent and the Union. Concerning the unfair labor practices the complaint alleged, in substance, that the respondent terminated the employment of and refused to reinstate four named employees because they joined and assisted the Union; that the respondent, by the aforesaid acts and by warning his employees not to join or assist the Union, interfered with, restrained, and coerced his employees in the exercise of their rights guaranteed in Section 7 of the Act. 1 The charge, as amended, and the complaint incorrectly designated the respondent as L. C. Phenix Company, a Corporation. At the hearing it was stipulated between counsel for the respondent and counsel for the Board that these pleadings were to be deemed corrected. 9 N. L. R. B., No. 28. 181 182 NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held on December 10, 1937, at Los Angeles, California, before Clifford D. O'Brien, the Trial Ex- aminer duly designated by the Board. The Board and the respondent participated in the hearing and were represented by counsel. The Union was not represented. During the hearing the respondent filed his answer in which he denied the allegations concerning the corpo- rate structure of the business and affirmatively pleaded that he was an individual doing business under a trade name. In his answer the respondent also denied the' allegations concerning the nature and scope of his business and the allegations of unfair labor practices. After the jurisdictional facts had been established by testimony, the hearing was adjourned indefinitely ,by' agreement of- counsel, to be resumed upon notice. On May 19, 1938, the Unioii filed with the Regional Director a second amended charge against the "respondent, alleging the dis- criminatory discharge of two additional employees. On the same day the Board, by the said Regional Director, issued an amendment to, the complaint in order to allege the'discriminatory discharge of these two additional employees. Copies of the amendment to the complaint and a notice that the hearing would be reconvened were duly served upon the respondent and the Union. On May 23, 1938, the said Regional Director duly served upon the parties his amended notice of hearing extending the date of the hearing to June 13, 1938. Pursuant to notice, the hearing was reconvened on' June 13, 1938, at Los Angeles, California, before Jesse E.. Jacobson, the Trial Ex- aminer duly designated by the Board. After a short discussion the hearing was adjourned to be reconvened upon 5 days' notice. On June 20, 1938, the respondent, the Union, and counsel for the Board entered into a stipulation setting forth the facts concerning the nature and scope of the respondent's business and the terms of a consent order which the Board could enter in the case upon its approval of the stipulation. On June .22, 1938, the hearing was reconvened and the aforesaid ' stipulation was received in evidence without objection. All parties expressly waived the requirement of a 5-day notice to reconvene the hearing. Thereupon the hearing was closed. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. , During the course of the hearing the Trial Examiner, made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 22, 1938, the parties entered into an amended stipulation which included the provisions of the original stipulation and corrected certain technical defects contained in the original. DECISIONS AND ORDERS 183 The above-mentioned amended stipulation provides as follows : IT IS HERESY STIPULATED by- and between the National Labor Relations Board, L. C. Phenix Company, Respondent herein, and Furniture Workers'Union, Local No. 1561, for the purpose of settlement of the above-entitled matter, and without admission of liability on the part of the respondent for any of the acts charged in the complaint or the amendment thereto, as follows : 1. Respondent is a sole proprietorship owned by L. C. Phenix doing business under the fictitious firm name and style of the L. C. Phenix Company, and has been in the business of manu- facturing furniture in the City of Los Angeles, State of Cali- fornia at all times mentioned in the complaint and amendment thereto in this matter. All raw materials purchased by respond- entduring the year 1937 and during the first five months of 1938 were purchased within the State of California, said raw materials consisting generally of lumber, textiles, filling mate- rials, springs, paint, varnish, etc. During the- first five months of 1938 there was sold and shipped to dealers within the State of California merchandise aggregating $72,810.00, and outside the State of California $11,329.00 making total sales $84,139.00, the percentage of sales within the state being 86.5, and outside shipments 13.5 per cent and that for the year 1936 the total sales amounted to $205,743; and of that amount $172,109 were sold within the State of California; however, $48,436 was deliv- ered outside the State, which makes the sales outside the state equal to approximately 15 per cent of gross sales, but deliveries outside of the state equal. to approximately 23 per cent of the gross sales; and that for the year 1937 the percentages remained approximately the same. 2. That upon the record herein and upon this Stipulation, the National Labor Relations Board may enter an order that said respondent, L. C. Phenix, an individual, doing business as L. C. Phenix Company, its officers, agents, successors, and assigns cease and desist from : (a) Discouraging membership in Furniture Workers Union, Local No. 1561, or in any other labor organization of its em- ployees, by discriminating in regard to hire or tenure of em- ployment 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, and assist labor organizations, to bargain collectively, through representatives of their own choosing, and to engage in concerted action for the purpose of collective bargaining, or other mutual aid and protection, 184 NATIONAL LABOR RELATIONS BOARD - as guaranteed in Section 7 of the National Labor Relations Act. 3. That upon the record herein and upon this stipulation the National Labor Relations Board may enter an order that re- spondent will take the following affirmative action to effectuate the policies of the National Labor Relations Act : (a) Offer to George DePew, without prejudice to his senior- ity rights and other rights and privileges, reinstatement to some position within Respondent's plant not later than July 15, 1938 at the rate of pay paid to employees performing similar work, and as soon thereafter as the, work is available to reinstate said George DePew to a position equivalent to the work that he was performing prior to September 1, 1937 at the rate of pay regularly paid for that job. (b) Pay to the following named persons the stated sum of Eighty-three dollars and Thirty-three. cents, ($83.33) in settlement for loss of pay they have suffered: (1) George DePew (2) J. C. Church (3) Dave M. Acree (4) Calvin Church (5) Charles, R. Hicks (6) Lee Church (c) Post immediately notices to its employees in conspic- uous places in its plant at Los Angeles, California stating : '(1) That respondent will cease and desist in the manner aforesaid from the acts hereinabove referred to. (2) That respondent's employees are free to join or assist any labor organization. (3) That respondent will not discourage membership in Furniture Workers Union, Local No. 1561, or in any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment. (d) Respondent further agrees to maintain such notices for a period of at least thirty (30) consecutive days from the date of said posting, said posting' to be made immediately upon the approval of this stipulation by the National Labor Relations Board. 4. That an enforcement order embodying the terms of the order to be made by the National Labor Relations Board herein- above referred to may be entered by the United States Circuit Court of Appeals for the Ninth Circuit, further notice of the DECISIONS AND ORDERS 185 application for said enforcement from said court being hereby expressly waived. 5. That this stipulation is made subject to the approval of the National Labor Relations Board. On June 30, 1938, pursuant to Article II, Section 37, of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued its order approving the original stipulation and transferring the proceeding to the Board for the purpose of entry of a decision and order by the Board pursuant to the said stipula- tion. On October 3, 1938, the Board approved the amended stipu- lation and made it a part of the record in the case. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is an individual doing business under the name and style of the L. C. Phenix Company. He is engaged in the manu- facture of furniture in Los Angeles, California. During the year 1937 and the first five months of 1938 he purchased all raw materials, consisting of lumber, textiles, filling materials, springs, paint, and varnish, within the State of California. During the year 1936 the respondent's total sales of furniture amounted to $205,743, of which approximately 23 per cent were shipped to points outside the State of California. During the year 1937 the percentage of out-of-State shipments remained about the same. For the first five months of 1938 13.5 per cent of the total sales of $84,139 were shipped outside the State. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact and stipulation and 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 LeRoy C. Phenix, doing business as the L. C. Phenix Company, Los Angeles, California, and his agents, succes- sors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Furniture Workers Union, Local No. 1561, or in any other labor organization of his em- ployees, by discriminating in regard to hire or tenure of em- ployment or any term or condition of employment; 186 NATIONAL LABOR RELATIONS BOARD (b) In any other manner, interfering with, restraining, or coercing his employees in the exercise of their rights to self- organization , to form, join , and assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in concerted action for the purpose of col- lective bargaining, or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to George DePew, without prejudice to his senior- ity rights and other rights and privileges, reinstatement, to some position within the respondent 's plant not later than July 15, 1938 , at the rate of pay paid to employees performing similar work, and as soon thereafter as the work is available reinstate the said George DePew to a position equivalent to the work that he was performing prior to September 1, 1937, at the rate of pay regularly paid for that job; (b) Pay to the following-named persons the stated sum of eighty-three dollars and thirty-three cents ($83.33 ) in settle- ment for loss of pay they have suffered : (1) George DePew (2) J. C. Church (3) Dave M. Acree (4) Calvin Church (5) Charles R. Hicks (6) Lee Church (c) Post immediately notices to his employees in conspicu- ous places in his plant at Los Angeles, California , stating : (1) That the respondent will cease and desist in the manner aforesaid from the acts hereinabove referred to; (2) That the respondent's employees are free to join or assist any labor organization ; (3) That the respondent will not discourage membership in Furniture Workers Union, Local No. 1561, or in any other labor organization of his employees, by discrimi- nating in regard to hire or tenure of employment or any term or condition of employment; (d) Maintain the aforesaid notices for a period of thirty (30) consecutive days from the date of posting. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order.