Restonaire Bedding Co.

RESTONAIRE BEDDING COMPANY Allen H. Kraft, Alex Kraft and Sarah Kraft Ellenson, Co-Partners , d/b/a Restonaire Bedding Company and Wallene Renfroe and Polly Mae Griffin , Charging Parties. Cases 7-CA-5676 and 7-CA-5676 (2) May 18, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On February 17, 1967, Trial Examiner William Seagle issued his Decision 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 attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, a brief in support thereof, with attachments, and a request for oral argument,' and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modified below.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the 'Recommended Order of the Trial Examiner and hereby orders that the Respondent, Allen H. Kraft, Alex Kraft and Sarah Kraft Ellenson, Co-Partners, d/b/a Restonaire Bedding Company, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' The Respondent's request for oral argument is hereby denied, as in our opinion, the record in this case, including the Respondent's answer, exceptions, and brief, adequately presents the issues and positions of the parties 2 Pursuant to Respondent's request for a continuance, the Regional Director continued the scheduled hearing herein for 8 days The Acting Regional Director thereafter denied Respondent's request for further continuance and Respondent's appeal therefrom to the General Counsel was denied At the opening of the hearing herein, Respondent's counsel orally moved for a second continuance and offered into evidence a written motion for continuance with documents attached The Trial 729 Examiner denied the motion and rejected the written motion and documents with permission to renew the offer when Respondent presented its case Respondent's counsel thereupon left the hearing and did not return Respondent excepts to the Trial Examiner's refusal to grant a second continuance and rejection of its profferred exhibits, and urges the Board to remand the case for further hearing In the absence of objection, Respondent's written motion for continuance and attached documents are hereby admitted into evidence as Resp Exh 1, and have been considered Section 102 43 of the Board's Rules and Regulations provides that continuances are within the discretion of the Trial Examiner After careful consideration of the entire record, we find no merit in Respondent's contention that the Trial Examiner's refusal to grant a second continuance was an abuse of discretion, based on bias and prejudice against Respondent, or deprived Respondent of due process of law See Somerville Cream Co , 95 NLRB 1144, enfd 199 F 2d 257 (C A ]).Missouri Transit Company, and its President, P W Fletcher, 116 NLRB 587, Crusader-Lancer Corp , 144 NLRB 1309, Taxicab Drivers Union, Local 777, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Crown Metal Manufacturing Company), 145 NLRB 197, enfd 340 F 2d 905 (C A 7) In these circumstances, the Respondent's request to remand the case for further hearing is denied TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM SEAGLE, Trial Examiner: This case was heard at Detroit, Michigan, on November 29, 1966 , upon charges filed on August 16 and 18, 1966, and a consolidated complaint issued by the Acting Regional Director on October 25, 1966, in which it was alleged that the Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, in the course of its attempt to prevent its employees from succeeding in decertifying the incumbent Union, Central States Joint Board, Local 365, Amalgamated Clothing Workers of America, AFL-CIO (hereinafter referred to as ACWA or as the Amalgamated). The hearing in this case was originally set for November 21, 1966. At the time that the Respondent filed its answer, it was not represented by outside counsel,' but such counsel was retained on November 16. Upon application to the Regional Director, the hearing was rescheduled from November 21 to 29, 1966. When the Respondent requested a further continuance, the request was denied by the Acting Regional Director on November 25, 1966. Although there had been, admittedly, no change in intervening circumstances, counsel for the Respondent appeared at the hearing and moved that the hearing be continued until sometime in January 1967. The further continuance was requested on the grounds that the Respondent was involved in other proceedings; that it had been involved in the past in many other unfair labor practice proceedings, some of which had been found to have merit ; and that the charges in the present proceeding, which included allegations of violations of Section 8(a)(3) of the Act involved "very subtle factors." As none of the grounds advanced appeared to furnish an adequate basis for a further continuance, the motion of counsel for the Respondent was denied. Thereupon, counsel for the Respondent and its representatives left the hearing, and the evidence of the General Counsel's witnesses was taken in their absence. ' The record shows that Alex Kraft, one of the partners, is a lawyer 164 NLRB No. 102 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the record so made, and in view of my observation of the demeanor of the witnesses, I hereby make the following findings of fact: 1. THE RESPONDENT The Respondent is a copartnership, consisting of Allen H. Kraft, Alex Kraft, and Sarah Kraft Ellenson, doing business under the firm name and style of Restonaire Bedding Company. The Respondent maintains its principal office and plant at 2500 Fifth Street, Detroit, Michigan, where it is, and has been, engaged at all material times in the manufacture, sale, and distribution of mattresses and related products. In the course and conduct of its business operations during the past year, the Respondent has derived gross revenue from sales and services direct to customers outside the State of Michigan in an amount in excess of $50,000. During the same period, the Respondent made purchases of materials and secured services directly from points outside the State of Michigan in an amount in excess of $50,000.2 It. THE LABOR ORGANIZATION INVOLVED Central States Joint Board, Local 365, Amalgamated Clothing Workers of America, AFL-CIO, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. (hereinafter referred to as the Teamsters), are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent has had contractual relations with ACWA, apparently, for many years. The last contract between Restonaire and the Union was entered into as of October 1, 1963, and expired on October 1, 1966. During the last year of the contract, most of the Respondent's employees in the bargaining unit appear to have become dissatisfied with their representation by ACWA, and Wallene Renfroe, one of the Respondent's oldest employees, who had been with the Company for over 11 years, filed a decertification petition in their behalf" on July 28, 1966. On her trip down to the Regional Office of the Board, Renfroe was accompanied by Polly Mae Griffin, the Amalgamated shop stewardess. On August 3, 1966, Allen Kraft, holding a letter in his hand, in which, apparently, he had been informed that a petition had been filed to decertify the Amalgamated, came out to Wallene Renfroe's work station and summoned her to his office where he subjected her to a lengthy tirade, demanding to know why she had taken action to decertify the Amalgamated union, and expressing his feelings about the matter. He declared that they could not have two unions; that they could not put up with the Teamsters, especially by themselves; that they could not meet the Teamsters demands. He demanded that Renfroe withdraw the decertification petition, and, when she shrugged her shoulders, he told her that, although he was not threatening her, he would have to let ' These findings are based on a stipulation entered into by all parties, including the Respondent , at the hearing on the decertification petition (Case 7-RD-673) The stipulation appears in the transcript of the decertification proceeding at page 10 The Respondent also admitted , in its answer in the present proceeding her go unless she withdrew the decertification petition. He kept repeating everything he had said already and added that he would close his doors before he would let the Teamsters come in. At this point Alex Kraft came into the office and repeated everything Allen Kraft had said, including his threats. Renfroe then dwelt upon the employees' grievances, which had led them to sign and file the decertification petition , and Allen and Alex Kraft assured Renfroe that they would take care of the grievances if she would get the employees to withdraw the decertification petition. They also attempted to persuade Renfroe that Polly Mae Griffin, who was the shop stewardess, was only using her as a front in the effort to decertify the union. But Renfroe finally walked out of the office, after making it clear that she would not fall in with their wishes. Just before quitting time on August 10, which was a Wednesday, Renfroe informed Gerald (Jerry) Desjardin, her foreman, that she would not be in on Thursday and Friday, the last 2 working days of the week, because she had to go out of town. Desjardin told her that it would be okay but he would go and tell Allen Kraft. When Desjardin came out of the latter's office, he said nothing further to Renfroe, although she was still there, waiting in line with the other employees to punch out. Renfroe's reason for not working the rest of the week was that she had to go to Atlanta, Georgia, and Chattanooga, Tennessee, on behalf of the Calvary Baptist Church, of which she was a member. She returned to her home in Detroit shortly before 8 a.m. on Monday, August 15. As she got into her car to drive to work, a messenger boy arrived with a telegram for her. The telegram, which was dated August 11, the previous Thursday, read: "You left without permission and good cause. You are requested to report for work today not later than 2:30 p.m. Otherwise you are discharged." Notwithstanding the telegram, Renfroe decided to drive down to work, and did so, arriving at the Restonaire plant at 8:30 a.m. She found that her timecard was missing from the rack. When she asked Desjardin for an explanation, he told her to wait until Allen Kraft came in. When the latter arrived about 12:30 p.m., he had Renfroe called into his office. He told her that "they" had evidence that she had received the telegram at 7 o'clock on Thursday-he did not specify whether this was a.m. or p.m.-and that she was fired for being absent without permission. Renfroe pointed out to Allen Kraft that she had the permission of her foreman, Jerry Desjardin. Allen Kraft told het she should have obtained permission from him, personally. Renfroe pointed out that this was not the practice, that the permission of her foreman was all that was required, and that the real reason for her being fired was that she had refused to withdraw the petition. At this point Alex Kraft came in , and also told her that she was fired for leaving without permission, and suggested that she file a grievance with Polly Mae Griffin, the stewardess. Renfroe told Allen and Alex Kraft that she would not file any grievance but she did go to see Griffin, who suggested that she file a charge with the National Labor Relations Board. While they were talking, Alex Kraft came out, and attempted to draw Griffin away, so that it was engaged in commerce within the meaning of Section 2(6) and (7) of the Act ' This was the petition in the decertification proceeding already mentioned . i e , 7-RD-673 RESTONAIRE BEDDING COMPANY that he could talk to the latter out of Renfroe's earshot. But the latter followed them around and heard Alex Kraft tell Griffin that Renfroe should file a grievance. The next day, which was August 16, Renfroe went down to the Regional Office of the Board and filed a charge, in accordance with the advice given to her by Griffin. On the day of Renfroe's discharge, Griffin, as shop stewardess, adopted the suggestion of Alex Kraft that Renfroe file a grievance, which she put into writing. In the afternoon of the same day, Griffin was called into the office to discuss the grievance, and she found there not only Allen and Alex Kraft but Robert Kraft, Allen's son, and Jack Isbee, their office manager Griffin told them that Renfroe had had permission to be absent, and that she should be put back to work. She also pointed out that in any event under the terms of the union contract an employee could be absent for 2 working days without notifying the employer.4 Alex Kraft agreed that Renfroe should be put back to work, and told Isbee to send her a telegram to report to work the following morning. Such a telegram was, however, never sent, because Allen Kraft would not agree to do so. Early in the morning of Wednesday, August 17, Allen Kraft came to Griffin's work station, and asked her if she was behind in her cutting She replied to this question in the affirmative but asked Allen Kraft what had happened to Joann Jackson, the girl who had been helping her. Allen Kraft told Griffin that this girl had been dismissed the previous day, and asked Griffin to teach one Sophie Ciarkowski how to string up and cut. This employee had retired on July 29, 1966, and had been given a big retirement party the previous Wednesday at which she had been presented with a piece of luggage by the employees, a gold watch by the management, and a check for $25 by the Union. Griffin told Allen Kraft that as shop stewardess she had to reject his request, which, if it were granted, would violate the seniority provisions of the union contract. She added that if he insisted that Sophie do the stringing up and cutting, he should have someone else give Sophie the cut and measurements because she would not be responsible for Sophie's mistakes. Thereupon, Allen Kraft told Griffin that she was fired, and about 1:30 p.m. the same day gave her a letter in which he stated the alleged reason for her discharge. The letter, which was addressed simply Polly Griffin and signed A. Kraft read as follows: You are hereby dismissed from your job for refusal to comply with management's request to show one of our old employees, Sophie, how to string up material for cutting purposes. This is insubordination and a just cause for dismissal. You can follow the normal grievance procedure. Please clean out your locker before leaving. Having rid themselves of Renfroe and Griffin, the Kraft brothers turned their attention to the promotion of a petition to secure the withdrawal of the decertification petition that had been launched by them. On August 15, an Amalgamated union representative by the name of Lee came to the plant in the morning and asked William White, one of the employees, whether he knew where 4 There is a provision to this effect in article III, section 3, of the union contract 731 Theodore Tett, one of the employees who was then on vacation, lived. When White replied in the affirmative, Lee asked him to go along with him to Tett's home. White then secured permission from Isbee to leave the plant and accompany Lee. White received his regular pay while he was away from the plant on this mission The trip to Tett's house was successful, for he not only signed the decertification withdrawal petition himself but took charge of securing signatures to it. Indeed, Tett's name leads all the other names on the petition, which were secured between November 11 and 15, 1966. A significant signatory to the decertification withdrawal petition was Foreman Desjardin. On November 16, 1966, Desjardin also sent a telegram to the wife of William White, the employee already mentioned, who had not signed the decertification withdrawal petition, to call him at the plant at 8 a.m. the next morning. When Mrs. White did so, Desjardin explained to her that he was having trouble in getting her husband to sign the decertification withdrawal petition and asked her to talk to her husband, as well as other employees, and persuade them to sign it. It seems obvious that in discharging Renfroe and Griffin, the one for absenting herself from work without permission and the other for insubordination, the Krafts were only advancing pretexts and that the real reason for their discharges was their activity in pushing the decertification petition. In the case of the discharge of Renfroe, the discriminatory motive is clearly indicated by the background of her discharge; the fact that she had actually obtained permission to be absent; that her discharge was accomplished in entire disregard of the terms of the union contract, even if she had left without securing permission; and finally, by the fact that the Krafts waited until long after she had left town before they sent her the telegram threatening to discharge her unless she reported for work, for, by this time, she could no longer be reached As for Griffin, she was discharged not only because she was helping Renfroe push the decertification petition but also because as union stewardess she had taken up the cudgels for Renfroe. This was certainly a protected concerted activity, even if she were wrong in her interpretation of the applicable provision of the union contract. She was also engaged in a protected concerted activity when she refused to teach cutting to Sophie, a retired employee, because it would violate the seniority provisions of the union contract. The resuscitation of Sophie, in order to get rid of Griffin, only adds a bizarre element to her discharge. Allen Kraft and Griffin were old antagonists. He had discharged her on several previous occasions for discriminatory reasons only to have her reinstated The last time this occurred had been in September 1965, when he discharged her for refusing to induct into the Amalgamated union an employee of 2 weeks, although this would have been a violation not only of the union contract but also of the union-shop provision of Section 8(a)(3) of the Act. To the strong circumstantial evidence that establishes the unlawfulness of the discharges of Renfroe and Griffin must be added, finally, direct evidence that Allen Kraft had declared to employees on several occasions that if he could only get rid of them he could run the shop like he wanted to IV. THE REMEDY In view of the serious nature of the violations involved in the discharge of Wallene Renfroe and Polly Mae Griffin, I 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall recommend a broad form of cease-and-desist order, restraining the Respondent from infringing upon any of the rights guaranteed to employees by Section 7 of the Act. To remedy the discriminatory discharges of Wallene Renfroe and Polly Mae Griffin, I shall also recommend, by way of affirmative relief, that the Respondent offer to them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed by them, discharging, if necessary, any new employees hired subsequent to the dates of their discharges in order to replace them. I shall also recommend that the Respondent make Wallene Renfroe and Polly Mae Griffin whole for any loss of pay they may have suffered by reason of their^t ischa7ges by payment to each of them of a sum of money equal to the amount which she would normally have earned as wages from the date of her discharge to the date of the Respondent's offer of reinstatement, less her net earnings during the said period. The amount of backpay is to be determined in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest is to be computed on the amount so determined in accordance withlsis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The Respondent, Restonaire Bedding Company, is an employer engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 2. Central States Local Board, Local 365, Amalgamated Clothing Workers of America, AFL-CIO, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., are labor organizations within the meaning of Section 2(5) of the Act. 3. By interrogating some of its employees coercively concerning their union decertification activities; by interfering with these activities, and by threatening them with loss of employment if such activities were continued, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. 4. By discharging Wallene Renfroe and Polly Mae Griffin, two of their employees, on August 15 and 17, 1966, respectively, because they had engaged in union or other concerted activities, the Respondent has committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act. organization of its employees, by discharging any of its employees, or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of their employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act. (a) Offer to Wallene Renfroe and Polly Mae Griffin immediate and full reinstatement to their former or substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner and to the extent set forth in section IV of this Decision entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, and other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant at Detroit, Michigan, copies of the attached notice marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.6 " In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " ^ In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Restonaire Bedding Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any of its employees coercively concerning their union decertification activities; interfering with their union decertification or other concerted activities; and threatening them with loss of employment, if such activities were continued. (b) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT coercively interrogate our employees concerning their union decertification activities; interfere with their union or other concerted activities; or threaten them with loss of employment if such activities are continued. WE WILL NOT discourage membership in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or in any other labor organization of our employees, by RESTONAIRE BEDDING COMPANY discriminating with respect to the hire or tenure of their employment or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to loin or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer to Wallene Renfroe and Polly Mae Griffin immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. 733 All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by any agreements in conformity with Section 8(a)(3) of the Act. RESTONAIRE BEDDING COMPANY (Employer) -Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200.