Ferguson Bros. Manufactoring Co.

In the Matter of FERGUSON BROS. MANUFACTURING COMPANY and FEDERAL LOCAL No. 20856, AFFILIATED WITH THE AMERICAN FEDERA- TION OF LABOR Case No. C-536.-Decided October 14, 1938 Furniture Manufacturing Industry-Interference, Restraint, and Coercion: no findings as to, because of compliance with Trial Examiner's recommenda- tions ; complaint not dismissed since recommendations contemplate a con- tinuing course of conduct-Discrimination : discharges ; charges of, not sustained as to three persons, dismissed without prejudice as to one person-Strike: not result of unfair labor practice-Reinstatement and Back Pay: pursuant to compliance with Trial Examiner's recommendations. Mr. Richard Hickey, for the Board. Mr. Julius Lichtenstein, of Hoboken, N. J., for the respondent. Mr. Joseph Quinn, of Union City, N. J., Mr. Jacob Friedland, of Jersey City, N. J., and Mr. Nathan Geller, of Newark, N. J., for the Union. Mr. Richard Salant, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been duly filed by Federal Local No. 20856, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by Elinore M. Herrick, Regional Director for the Second Region (New York City), issued and duly served its complaint dated January 10, 1938, against Ferguson Brothers Manufacturing Company, Hoboken, New Jersey, 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. The complaint alleged in substance (1) that on June 11, 1937, the respondent discharged George Fitzpatrick for joining and assisting the Union; (2) that following a strike which was caused by the respondent's unfair labor practices and which began on or about 9 N. L. R. B., No. 30. 189 190 NATIONAL LABOR RELATIONS BOARD August 4, 1937, and P.ontinued until on or about September 3, 1937, the respondent refused to reinstate Edward Ingrassia, William Coan, Angelo Lobuano, and Michael De Simone, employees who partici- pated in the strike, because of their union activities; and (3) that the respondent warned and urged its employees not to become mem- bers of the Union. On January 18,.1938, the respondent filed its answer to the complaint denying that it had engaged in the unfair labor practices alleged therein. Pursuant to notice, a hearing was held in New York City on January 20, 21, 24 to 29, 1938, before Harold Stein, the Trial Exam- iner duly designated by the Board. The Board and the respondent were represented by counsel. The Union was represented on January 20, by Joseph Quinn, its organizer, and on January 21 by Jacob Fried- land, its attorney. On January 26, it made no appearance. On all other dates, it appeared by Nathan Geller. 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 opening of the hearing, for the reason that Lobuano could not be found, the Union moved to dismiss the complaint in so far as it charged the respondent with refusing to reinstate him. This mo- tion was granted without objection. Subsequently, counsel for the Board moved to amend the foregoing motion by making the dismissal without prejudice; over objection of the respondent's counsel, this motion was granted. At the close of the Board's case, and again at the close of the hearing, the respondent moved to dismiss the com- plaint with respect to Fitzpatrick, Ingrassia, De Simone, and Coan. The respondent also made a general motion to dismiss on the ground of insufficient evidence. The Trial Examiner denied the general mo- tion and the motion relating to Fitzpatrick; he reserved his ruling on the motion to dismiss the complaint in so far as it related to the alleged discriminatory refusal to reinstate Ingrassia, De Simone, and Coan. At the close of the hearing, counsel for the Board moved to conform the pleadings to the proof. This motion was subsequently granted. The above-enumerated rulings are hereby affirmed. Dur- ing the course of the hearing, the Trial Examiner made other rulings on motions and objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. His rulings are hereby affirmed. On April 4, 1938, the Trial Examiner filed his Intermediate Report in which he found that the respondent had engaged in the unfair labor practices alleged in the complaint by interfering with its em- ployees in the exercise of their right to self-organization and by discriminatorily discharging George' Fitzpatrick. He further found that the respondent had not engaged in unfair labor practices in DECISIONS AND ORDERS 191 refusing to reinstate Ingrassia, De Simone, and Coan. The Trial Examiner accordingly recommended that the respondent cease and desist from engaging in the unfair labor practices and that it make whole Fitzpatrick for any loss of pay he suffered by reason of his lay-off from June 15, 1937, to August 3, 1937, and by reason of the respondent's refusal, to reinstate him from September 14, 1937, to November 7, 1937. The respondent has complied fully with the recommendations con- tained in the Intermediate Report. It has made George Fitzpatrick whole for the loss of pay he suffered; it has posted notices as re- quired. On April 22, 1938, the Union filed general exceptions to the Intermediate Report. The Board has considered these exceptions to the Intermediate Report and finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a New Jersey corporation with its principal place of business and office in Hoboken, New Jersey, is engaged in manu- facturing, selling, and distributing "gift pieces"-coffee tables, end tables, cellarettes, and, other small pieces of furniture. It maintains two salesrooms, one in New York City and one in Chicago, Illinois, and employs about 14 salesmen who solicit orders from customers throughout the country in all the larger cities of the United States. In the manufacture of its products, the respondent purchases prin- cipally lumber, steel, and fabrics. In 1937, the total value of these purchases was approximately $445,000, 75 per cent of which was shipped to its Hoboken plant from States other than New Jersey, and the total value of sales of finished products was about $1,000,000, of which approximately 85 per cent was shipped to points outside New Jersey. The respondent, whose work is highly seasonal, employed approxi- mately 411 workers prior to the strike of August 4, 1937. We find that the operations of the respondent, Ferguson Brothers Manufacturing Company, occur in commerce, within the meaning of Section 2 (6) and (7) of the Act. H. THE ORG 1N]ZATION INVOLVED Federal Local No. 20856 is a labor, organization affiliated with the American Federation of Labor. The precise limits of its jurisdiction do not appear, but it is apparent from the record that it admits, among others, employees of the respondent. 192 NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Trial Examiner's findings of fact 1. The chronology of events In his Intermediate Report, the Trial Examiner, in substance, made the following findings of fact relating'to the events in question : Organizational activities among the respondent's employees began in May 1937. The first formal meeting of the Union was held on May 28, 1937, and was attended by 13 men, including George Fitz- patrick. A second meeting, attended by more than 100 employees of the respondent, was held on June 10, 1937. At this meeting, almost all the employees attending signed application cards in the American Federation of Labor, and officers were elected. Fitzpatrick was chosen president; Eric Kreite, financial secretary; Al Beck, secretary; and Michael Urasz, sergeant at arms. The employee who was elected vice president apparently never served and his place was filled without formal election by Urasz. On the next day, June 11, 1937, Fitzpatrick and Urasz were laid off or discharged. Shortly thereafter, several meetings of the Union were held to discuss the discharges. After some correspondence be- tween Nathan Geller, the attorney for the Union, and William Han- ley, general manager of the respondent, the latter refused to admit that the Union had a majority and denied that Fitzpatrick and Urasz had been discharged for union activities. After further discussion, the parties agreed that a consent election would be held by the Board on July 19, 1937. Before the election, the respondent caused to be distributed to its employees certain leaflets which purported to explain the workers' rights under the Act., These leaflets, devoted entirely to explaining that an employee need not join nor deal through a union, and that the Act does not limit an employer's right to discharge an employee for failure to perform his duties, were found by the Trial Examiner to be similar to the circulars discussed by the Board in Matter of Mans- field Mills, Inc. and Textile Workers Organizing Committee,' where the Board said that in such circulars ... the emphasis upon what the provisions of the Act do not purport to do, rather than upon the positive principles and the rights which the Act establishes, serves. to distort its true signifi- cance and to mislead readers of the leaflets with respect to em- ployees' rights under the Act, in contradiction to their avowed intent "to prevent misunderstanding." The distribution by an employer of such leaflets among his employees constitutes an at- 1 3 N. L. R. B. 901. DECISIONS AND ORDERS 193 tempt to circumvent the Act by interfering with his employees' right, unprejudiced by the employer, to make up their own minds regarding self-organization. On July 26, 1937, following the election of July 19, in which the Union was designated representative by a vote of 311 to 104, a con- ference between representatives of the Union and of the respondent was held in the latter's office. Several of the Union's demands were granted by the respondent, while others were flatly refused. A second conference was held a few days later, but no substantial progress was made. The union representatives announced that they would report back to the members, and the conference was adjourned. Although no date was fixed for further discussions, it was the expec- tation of all present that there would be another conference soon. On August 3, 1937, the union members received the report of their representatives and voted to call a strike for the following day. The strike began, as scheduled, on August 4. On August 4 and 5, 112 men continued to work in the plant while the union men picketed. On August 6, the respondent closed down the plant. There is undisputed evidence that the course of the strike was marked by some individual solicitation by the respondent to persuade the workers to return. During the strike, various employees, both individually and in groups, requested the respondent to reopen the plant. On August 18 or 19, post cards announcing that the plant would begin operation on August 23 were sent to all the employees. On August 23, the plant reopened with 150 men at work and by Sep- tember 3, the plant was approximately fully manned. On September 7, Fitzpatrick, as president of the Union, announced that the strike was over. In the period between August 23 and September 7, 42 men were hired who had not been employed in the plant immediately prior to the strike. Aside from the employees named in the complaint, there is positive evidence of only one person who was denied rein- statement after the strike. Fitzpatrick was not reinstated until November 7, 1937. 2. The Trial Examiner's conclusions • The Trial Examiner found that by its circulation of leaflets and by ether acts, the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. He found, also, that Fitzpatrick had been discriminatorily laid off and refused rein- statement within the meaning of Section 8 (3) of the Act. He found, however, that the strike did not result from any unfair labor practices on the part of the respondent, and that Coan, Ingrassia, and De Simone were not discriminatorily refused reinstatement. 194 NATIONAL LABOR RELATIONS BOARD Since the respondent has complied fully with the Trial Examiner's recommendations that it award Fitzpatrick back pay and that it cease and desist from engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act, it is not necessary at this time for us to pass upon the findings except in so far as issues thereon are raised by the Union's general exceptions. B. The issues raised by the Union's exceptions 1. The strike Since the Trial Examiner found that the strike was not caused by any unfair labor practices, and that Coan, Ingrassia, and De Simone were not discriminatorily discharged, the Union's exceptions necessitate our reviewing those findings. At the first conference between the respondent and the Union following the election of July 19, the respondent took the position that the Act required it to bargain with the Union only on behalf of members of the Union. On investigation of the law by its coun- sel, however, the respondent soon withdrew from this erroneous position. In the course of this conference, the demands by the Union for a 40-hour and 5-day week, with time and a half for overtime, were granted by the respondent. Although insistent that it had not dis- charged Fitzpatrick and Urasz for union activities, the respondent stated that it would reinstate them as soon as positions for them became available. The chief disagreement between the parties arose from the Union's demand for a closed shop, for a general wage in- crease, and for a minimum 45¢ an hour wage. In refusing the wage demands, the respondent explained that it could not afford the increases. To support its refusal, the respondent not only offered its books for examination by the Union, but also volunteered to pay the fees of auditors to be chosen by the Union for such examination. Geller, the counsel for the Union throughout the negotiations, tes- tified that the decision to strike was based primarily on the refusal of the respondent to grant a wage increase. When asked whether the strike was caused by the disagreement concerning wages, and the'closed shop, Geller testified, "Oh, yes. I would never have per- mitted, and I would never have advised a strike merely because of these two men. I had 350 men to consider, not two, and I certainly wouldn't keep 350 men out of work just because two of them couldn't be reemployed." The record of the conferences preceding the strike shows that the respondent at that time bargained in good faith, and was willing to continue to bargain in good faith. ^Geller's own testimony estab- DECISIONS AND ORDERS 195, lishes, moreover, that the strike was not called as a protest against the respondent's discriminatory lay-off of Fitzpatrick. We find that the strike resulted from a disagreement between the parties and was not the result of any unfair labor practice. 2. The refusal to reinstate Coan, Ingrassia, and De Simone William Coan had been employed by the respondent, except for temporary lay-offs, since 1920. ' Since 1922, and at the time of the- strike, he was a variety machine operator. Coan joined the Union on August 1, 1937, and went on strike with the other union members- on August 4. During the strike, he picketed about 10 hours a week, but he was not otherwise prominent in union affairs. The respondent contended that it failed to reinstate Coan after the strike because it thought that he had obtained other employment. Coan received, on or about August 20, 1937, a post card announcing the reopening of the 'plant on August 23. On September 2, the re- spondent, after having waited for Coan to apply for reinstatement since August 23, hired a new operator to replace him. On September 3, Coan returned to apply for work. There is considerable confusion surrounding the events of Septem- ber 3. According to Coan's testimony, he approached Boardman, an assistant superintendent in the plant, who was standing on the shipping platform dealing with a crowd of applicants. Coan testi- fied that Boardman first spoke, saying "I can't use you any more,, Bill. I have got a man in your place." Coan then asked "Shall I get my things?", and Boardman replied, "Yes, go on and get them."- Coan, according to his own testimony, then went inside, where he met Stegner, his foreman. Stegner remarked that Coan was fortunate to- get his job back, to which Coan replied that he "wasn't back" but "was after my things." Boardman, however, testified that when Coan appeared, he told- Coan to see Stegner. Boardman testified that he knew that the- machine which Coan had operated was manned at that time, but "I didn't know but what Mr. Stegner may have some other job for him on the floor." Stegner's version of the meeting with Coan was that Stegner, on seeing Coan, remarked, "You are pretty lucky, to come in like this."- Coan replied, "Oh, no, I have got a job. I only want my clothes."- When Boardman later questioned Stegner, Stegner told him that Coan had said he had another job. Later Boardman saw Coan stand- ing near the plant, and although Boardman testified that from Coan's presence "it would naturally seem that the man might be looking for- a job," since Coan did not ask for a job, no further action was taken. Coan admitted that he had never actually requested reinstatement. 134068-39-vol. IX-14 196 NATIONAL LABOR RELATIONS BOARD Coan was not an active member of the Union; many of the officers of the Union, including Kreite, who was also a leader of the picket- ing, were immediately reinstated. It seems wholly likely that, in the confusion of the scenes around the shipping platform and in the factory following the strike, Boardman and Stegner misunderstood Coan's position. The Trial Examiner, who had an opportunity to observe all the witnesses, stated in his Intermediate Report that "All the testimony about the events of September 3 gave the impression of being honest." He found that the most natural and reasonable explanation of the affair was that there was an honest misunder- standing. We find that, by failing to rehire William Coan, the respondent has not discriminated in regard to hire and tenure of employment and has not thereby discouraged membership in a labor organization. Michael De Simone a}Id Edward Ingrassia. Michael De Simone was first employed by the respondent in September or October 1936. His original wage of 25¢ an hour had risen, by virtue of a general wage increase, to 271/2¢ an hour by the summer of 1937. De Simone was originally a floorboy in the cabinetmakers' shop where he cleaned the floor and ran errands. It is the custom in the plant to train young men as cabinetmakers, promoting them from floorboys to assistants to the cabinetmakers. Accordingly, De Simone was assigned as helper to Ludwig Urasz, a cabinetmaker, in November 1936. In March 1937, De Simone was reassigned to the position of floorboy. De Simone joined the Union at the end of May 1937, and partici- pated in the strike. He claimed to have picketed 20 to 25 hours a week, but otherwise he was not prominent in union affairs. He received a post card announcing the reopening of the plant, and reported for work after Labor Day. Boardman told him, "I haven't anything right now." After 2 weeks, De Simone again applied for reinstatement; Boardman told him that he would be called if he was needed. The evidence showed that Urasz had already been assigned an efficient helper, who was working on a piece basis and earning about 40¢ an hour, in contrast to the 271/2¢ an hour De Simone had been earning before the strike. The respondent attributes its refusal to rehire De Simone to his gen- eral inefficiency in the cabinetmaker's department. The evidence is overwhelming that De Simone was an incompetent helper. Although the custom in the cabinet shop was for the cabinetmaker to pay his helper by the piece, De Simone was paid by the hour, since otherwise his salary would have been negligible. Urasz, whom De Simone as- sisted, Kardos, the foreman of the cabinet shop, and Boardman all testified to De Simone's shortcomings as a helper, and their testimony remained uncontradicted. Indeed, De Simone himself admitted that DECISIONS AND ORDERS 197 Urasz scolded him "a couple of time a week," and that "I wasn't so handy." Tinsley, a superintendent in the respondent's plant, testified that De Simone was not rehired because he had not progressed, and stated that "We had just about exhausted our patience with him." Edward Ingrassia was first employed by the respondent in Sep- tember 1934. Between 1934 and the date of the strike, Ingrassia was laid off or discharged three or four times. Originally employed as a polisher, Ingrassia later became a borer. During the course of his employment, he received one 10 per cent raise as a part of a general wage increase. Ingrassia joined the Union in June 1937. He went out on strike, and picketed 10 hours a week. He was not otherwise prominent in union activities. Ingrassia received a card announcing the reopening of the plant, and he applied for work just after Labor Day. He testified that Boardman then told him that his job was taken and that "you ratted on me." Boardman denied having made this statement and his denial is convincing in view of the fact that the record discloses nothing which would give rise to a statement of this nature. The respondent assigned its failure to rehire Ingrassia to his lazi- ness and inefficiency. That Ingrassia's previous lay-offs had been due to his laziness abundantly appears from the evidence. Although, at the time of each lay-off other employees were discharged along with Ingrassia, Ingrassia was each time the only one subsequently to be reinstated. Each time he was laid off, Frank Bottone, a foreman in the plant and Ingrassia's first cousin, interceded on Ingrassia's behalf and secured his reinstatement. Bottone testified that Ingrassia was a "little slow" and that "I told him last time, you can't get no job because you are slow, and the father say try to give him another chance, please, maybe he not so slow, so I told Mr. Boardman, give him a chance and that is the last chance I give him. That was 4 times." Thereafter, Bottone refused to intercede again for Ingrassia. That Ingrassia was slow and undesirable, and had been given all the chances he deserved was also testified to by Tinsley and Boardman. The Trial Examiner found that neither De Simone nor Ingrassia was refused reemployment after the strike because of his union activities. The evidence is convincing that both men were incompe- tent and that there was ample cause for their discharge. Neither man was active in the Union. That both De Simone and Ingrassia received cards notifying them that they should return to work is not indicative of the respondent's desire to employ them. These notices were by error sent not only to all employees on the pay roll prior to the strike but also to all whose cards were in the Social Security file. Little significance can be attached to the receipt of the cards by De Simone and Ingrassia in view of the purely mechan- ical way in which the mailing list was compiled. 198 NATIONAL LABOR RELATIONS BOARD We find that the respondent, by refusing to reinstate Michael Do Simone and Edward Ingrassia on or about September 8, 1937, has not discriminated in regard to hire and tenure of employment and has not thereby discouraged membership in a labor organization. THE REMEDY As described above, the Trial Examiner found that the respond- ent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. He recommended that the re- spondent cease and desist, and he further recommended reinstatement and back pay for Fitzpatrick. The respondent has fully complied with these recommendations . It is not, therefore, necessary for us to make findings of fact and conclusions of law, or an order based thereon. We shall not, however , dismiss the complaint since the- recommendations of the Trial Examiner contemplate a continuing course of conduct on the part of the respondent. We have found that Coan , Ingrassia , and De Simone were not discriminatorily refused reinstatement . We have also found that the complaint in so far as it related to Angelo Lobuano was properly dismissed without prejudice . In so far as the complaint relates to these four men, we shall dismiss the complaint . The dismissal in so far as it relates to Angelo Lobuano shall be without prejudice. 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. Federal Local No. 20856 is a labor organization , within the mean- ing of Section 2 (5) of the Act. 2. The operations of the respondent, Ferguson Brothers Manufac- turing Company, Hoboken, New Jersey, occur in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. The respondent, by refusing to reinstate William Coan , Michael De Simone, and Edward Ingrassia , has not discriminated in the hire and tenure of employment of the said William Coan, Michael Do Simone, and Edward Ingrassia , and has not thereby discouraged membership in a labor organization , within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the foregoing 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 DECISIONS AND ORDERS 199 complaint against Ferguson Brothers Manufacturing Company, Hoboken, New Jersey, in so far as it relates to William Coan, Edward Ingrassia, and Michael De Simone, be, and it hereby is, dismissed, and that the complaint in so far as it relates to Angelo Lobuano be, and it hereby is, dismissed without prejudice. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order.