Crescent Bed Co., Inc.

In the Matter Of CRESCENT BED COMPANY , INC. and FEDERAL LABOR_ UNION No. 21176 , METAL BED MAKERS , AFFILIATED wI'I'H AMERICAN- FEDERATION OF LABOR Case No. C-. 34.Decided October 01, 1938 Metal Bed and Studio Couch Manufacturing hidustry-Interference, Restrain, and Coercion : lav-off; to discourage membership in union-Discrhnination: dis- charge of one employee . for union membership and activity; to discourage membership in union-Reinstatement Ordered-Back Pau: awarded. Mr. Berdon M. Bell, for the Board. Curtis, Hall &, Fostei,, by Mr. John C. Foster, and 1llr. Henr.y- Curtis, of New Orleans, La., for the respondent. Mr. Richard H. Meigs, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges filed and later amended by Federal Labor Union..- No., 21'176, Metal Bed Makers, herein called the Union, the National Laboi•'Relations Board, herein called the Board, by Charles H. Logan,. Regional Director for the Fifteenth Region (New Orleans,_ Louisiana), issued its complaint dated December 6, 1937, against Crescent Bed Company, Inc., New Orleans, Louisiana, herein called- the respondent, alleging-that the respondent had engaged in and is_ 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.. In respect to the unfair labor practices, the complaint charged, in, substance, (1) that the'respondent had, through threats of dismissal or other intimidation, discouraged membership in the Union, and (2) that the respondent discharged and has at all times since failed and- ref used to reinstate Turner Ponthier, an employee of its New Orleans: plant for the reason that said Turner Ponthier engaged in the forma- tion of the Union and engaged in concerted activities with other em-. ployees,for the purposes of collective bargaining or other mutual aid! ,9 N. ;L. R. B., No. 39. - 433 . 434 NATIONAL LABOR ItELATI,ONS BOARD or protection. The complaint and accompanying notice of hearing were duly served upon the respondent and the Union. On December 11, 1937, the respondent filed a special appearance to except to the jurisdiction and authority of the Board, and a mo- tion to dismiss the complaint and the proceeding on the ground that its employee, Turner Ponthier, out of whose discharge the complaint arose, had been employed as a punch press operator in the Iron Bed Department in connection with one stage of the manufacture of the respondent's products, and in such capacity he had no con- nection with the interstate activities of the respondent in the im- portation of its raw materials or in the exportation of its,finished products, and, hence, his employment, or discharge is not subject, to the control or supervision of the Board under the provisions of the Act. The respondent also filed an answer to the complaint, admit- ting that it was engaged in interstate commerce, but denying that it had engaged in or was engaging in unfair labor practices and re- questing that the complaint be dismissed. Both of the respondent's aforesaid motions to dismiss were denied. Pursuant to notice, a hearing was held at New Orleans, Louisiana, Ton December 18, -1937, before Eugene P. Lacy, the Trial Examiner duly designated by the Board The Board and the respondent-were .represented by counsel and participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. At the hearing counsel for the Board made a motion that the ad- missions in the respondent's answer to the complaint be taken as evidence in the case.- This motion was granted by the Trial Ex- aininer. A motion made by counsel for the respondent at the con- clusion of;the Board's case to dismiss the case for lack of evidence vas denied by the Trial Examiner. During the course of the hear- ing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex<unuier and finds that no prejudicial er- rors were committed. - The rulings are hereby affirmed. On January 14, 1938, the Trial Exannner filed an Intermediate Report in which lie found that the respondent-had engaged. in and is engaging in unfair labor practices affecting commerce within the ineaning of Section 8 (1) and (3) and Section 2 (6) and (7) of-,the Act, and- recommended that the Board issue a cease and desist order and require the respondent to take certain specified affirmative action. On July 5, 1938, the Boaid issued and duly served- upon- the parties an Amendment to Complaint for the purpose' of conforming the complaint in the proceeding to the evidence. On July 11, 1938, the respondent filed with the Board in Washington, D. C., an answer DECISIONS AND ORDERS 435 to the amended complaint, admitting certain allegations contained therein, denying others, and praying that the entire complaint, as amended, be dismissed. The respondent further requested a hearing on the complaint, as amended. On July 12, 1938, the Board issued and duly served on all parties an Order Vacating Amendment to Complaint. Exceptions to the Intermediate Report were filed by the respondent on August 1, 1938. Pursuant to notice, a hearing was held before the Board on August 18, 1938, in Washington, D. C., for the purpose of oral argument on the exceptions to the Intermediate Report and on the record. The respondent was represented by counsel and participated in the oral argument. Thereafter the respondent sub- mitted a brief, which has been considered by the Board. The Board has fully considered the exceptions to the Intermediate Report and finds them without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, employing approximately 136 persons, is a Loui- siana corporation engaged in the manufacture and sale of iron beds, bed springs, and studio couches, with its factory and principal place of business at New Orleans, Louisiana. More than 50 per cent of the raw materials used by the respondent at its New Orleans plant come from outside the State of Louisiana. More than 50 per cent of its finished products are sold and shipped to customers outside the State. The respondent admits that it is engaged in interstate commerce. II. THE UNION Federal Labor Union No. 21176, Metal Bed Makers, is a labor organization affiliated with the American Federation of Labor, here- in called the A. F. of L., and admits to membership employees of the respondent, excluding supervisors and clerks. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion On or about August 25, 1937, A. P. Harvey, regional director for the A. F. of L., directed one Edwin Peyroux to contact employees of the respondent for the purpose of securing their membership in the Union, which was already in existence in the city of New Orleans. Thereupon, Peyroux contacted Turner Ponthier, an employee of the respondent, and persuaded him to lend his assistance to organize his 134068-39-vol. is-29 436 NATIONAL LABOR RELATIONS BOARD fellow employees. Ponthier testified that he launched his campaign immediately, that the proposal of Union membership was enthusias- tically received by a large number of the respondent's employees, that his organizational activities were openly conducted and well known throughout the plant, and on one occasion he had gone so far as to invite several foremen to attend a union meeting which was sched- uled for the evening of August 31, 1937, for the purpose of signing up the prospective members. On August 31, 1937, at the close of the working day the respondent laid off a number of its employees, in- cluding Ponthier, in order "to take inventory." The evidence indi- cates that during the past 10 years the respondent has never found it necessary to lay off employees or shut down its plant to take inventory at this time of the year. The respondent's president, Arthur Jung, attempted to justify the extraordinary action on the ground that it was necessary in order to straighten out the "jumbled records" left by one Murdock, a former superintendent, who quit the respondent's employ on August 25,1937, to accept a position with another company. Jung testified that "We would give him (Murdock) an order to make, say 30 beds, and if he saw fit, he would make 100 beds, or 125 over. That meant that our stock was over-balanced." Murdock had been employed as the superintendent of the respondent's plant for approxi- mately 21/2 years, and there is no evidence that during this period his faulty judgment had resulted in an over-production of stock prior to this occasion. Considered in the light of surrounding cir- cumstances, we find the explanation unconvincing. Harvey, the A. F. of L. organizer, testified that on the evening of the same day on which the lay-off occurred he appeared at the time and place designated for the union meeting, expecting to be met by a large number of employees from the respondent's plant. Much to his surprise he discovered only 14 persons, including Ponthier, hiding in the shadows of parked auto- mobiles, apparently to escape recognition. Statements made by these men indicated that they considered their jobs at stake if their union activities became known to their employer and that "the word had been passed down the line that those who would attend the meeting would be fired." In view of the highly suspicious coincidence of the lay-off and the scheduled union meeting, the novelty of the respondent's inventory at the time of year it occurred, and other pertinent facts, we conclude that the action of the respondent was taken for the sole purpose of deterring its employees from attending the union meeting and from further union activities, and that it did in fact have this result. We find that by said action the respondent has interfered with, restrained, and' coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. DECISIONS AND ORDERS 437 B. The discharge of Turner Ponthier Turner Ponthier was laid off on August 31, 1937. All other em- ployees who had been laid off on that date were-recalled within 3 or 4 days thereafter. Ponthier received a notice from the respondent to return to work on September 2, 1937. Accordingly he presented himself at the plant on that date and was instructed to come back on September 5, 1937, on which date his reemployment was again post- poned without explanation. Finally, on September 7, 1937, he was informed by a foreman that he was discharged because they "didn't need him any more." The respondent claims that Ponthier was discharged for engaging in the practice of loaning money to his fellow employees at an ex- orbitant rate of interest in violation of a State law. The respondent also denies having had any knowledge of Ponthier's union activities prior to his discharge, although at the hearing certain of its officers admitted having heard "rumors" pertaining to organizing activities of the Union in the plant. The record shows that Ponthier had been a regular employee of the respondent for approximately 11 years. Through ability and experience he was qualified to operate any machine in the respondent's plant. His work had never been criticized prior to an occasion which occurred some 6 months prior to his discharge. On that occasion Arthur Jung, president of the respondent, testified that he was walking through the factory when he noticed that Ponthier was having trouble with a punch machine and that he appeared "stubborn." He called Foreman Ary's attention to the fact and sug- gested Ponthier's discharge. Ary, however, did not discharge him because "he had been there so long." Jung, who has for many years been actively in charge of-the man- agement of the company and who, from August 25 to November 1, 1937, acted in Murdock's place as general superintendent in direct contact with all the employees, testified that Ponthier's lending activi- ties were first called to his attention on September 2 or 3, 1937, by his brother, Peter, who is the secretary and treasurer in charge of the financial part of the business, and who admittedly spends no more than 5 days out of each year at the plant. Peter Jung, it seems, obtained the information from his wife who "heard that Ponthier was running a money lending racket out there." We find it singular that such information should have escaped the notice of the head executive in daily contact with his employees until, coincidental with the advent of union activities in the plant, it reached his attention from so indirect a source. Ponthier's lending activities were openly conducted over a period of 3 or 4 years and were well known through- out the plant. On occasions he* had even made loans to foremen. 438 NATIONAL LABOR RELATIONS BOARD That several other employees, including Foreman Ary, were also engaged in making similar loans, seems to have escaped the respond- ent's notice altogether. Arthur Jung testified that Ponthier had been a "pet" of ex-Superin- tendent Murdock, and had enjoyed special privileges about the plant as the result of his indulgence. When Jung learned of Ponthier's lending activities he became concerned that their illegality would involve the respondent in guilt by reason of this friendly relation- ship which had existed between Ponthier and a superintendent of the company. He immediately delegated an efficiency expert to make an investigation specifically of Ponthier's activities. On September 7, 1937, the efficiency expert obtained affidavits from several employees who had borrowed money from Ponthier to the effect that they had been required to pay back the loans with interest at the rate of 25 per cent per week. "For his own protection" Jung delivered the statements to the office of Assistant District Attorney Luzenberg without consulting Ponthier for an explanation. He testified that he requested information from Luzenberg concerning the penalties attached to usury under the State law, but there is no evidence that, as an anxious and prudent executive, he sought advice as to the problem which, he professed, concerned him most, to wit, the liability of the respondent under the circumstances that were involved. He further stated that by discharging Ponthier he believed that he had relieved himself and the company of all responsibility for any viola- tions of the law which Ponthier had committed. It is not for this Board to pass upon the legality or moral aspects of Ponthier's lending activities. Our sole interest is to determine whether his discharge was motivated by a desire of the respondent to oppress its employees in the exercise of the rights guaranteed them in Section 7 of the Act. Our conclusion is that it was so motivated. In view of the clear testimony that Ponthier was the moving force in the Union's attempt to organize respondent's employees, and that this fact was well known to foremen as well as other employees throughout the plant, we must assume that the respondent was aware of his union activities. The lending activities of Ponthier and others in the plant were openly and notoriously conducted over a period of 3 or 4 years and we find it difficult to believe that. the respondent could have remained unaware of such practices or considered them deleterious to itself , as its president would have us believe. However, even assuming these derelictions were conducted without the respond- ent's knowledge , Arthur Jung's excessive diligence in singling out and dealing with Ponthier seems unnatural . Jung's statement of con- cern over his own and the respondent's, liability for Ponthier's acts are illogical in a man of his long business experience , and the nature - DECISIONS AND ORDERS 439 of the advice he sought and obtained from Luzenberg casts serious doubt on his sincerity. We are of the opinion, from the facts sur- rounding the entire case, that Ponthier was discharged for his activi- ties in behalf of the Union and the employees of the respondent at its New Orleans plant. We find that the respondent, by discharging Ponthier, discrimi- nated against him in regard to his tenure of employment, and inter- fered 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 of the respondent de- scribed 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. 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 Labor Union No. 21176, Metal Bed Makers, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the tenure of employment of Turner Ponthier, and thereby discouraging member- ship in the Union, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The respondent by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in 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 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 respondent, Crescent Bed Company, Inc., New Orleans, Louisiana, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Federal Labor Union No. 21176, Metal Bed Makers, or any other labor organization of its employees 440 NATIONAL LABOR RELATIONS BOARD by discrimination in regard to hire or tenure of employment or any terms or conditions 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 through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid and/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) Offer to Turner Ponthier immediate and full ,reinstatement to his former position without prejudice to his seniority or other rights or privileges; (b) Make whole said Turner Ponthier for any loss of pay he has suffered by reason of his discharge by payment to him of a sum of money equal to that which he would have earned as wages during the period from August 31, 1937, the date of his discharge, to the date of such offer of reinstatement, less his net earnings 1 during said period; (c) Post notices in conspicuous places throughout its plant and maintain such notices for a period of at least thirty (30) consecutive days from the date of posting, stating that the respondent will cease and desist in the manner aforesaid; (d) Notify the Regional Director for the Fifteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. 1 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 else- where than for the respondent, which would not have been incurred but for his unlawful 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. R. B. 440.