Capitol Bedding Company

In the Matter of CHARLES J. STEIN, INDIVIDUALLY AND TRADING AS CAPITOL BEDDING COMPANY and UPHOLSTERERS', FURNITURE AND BEDDING WORKERS LOCAL #505 Case No. C-825.-Decided August 15, 1939 Mattress and Bedding Manufacturing Industry-Interference, Restraint, and Coercion : surveillance of union meeting ; questioning employees concerning or- ganization of union-Discrimination: discharges , for union activity-Unit Appro- priate for Collective Bargaining : hourly and piece-rate production and mainte- nance employees, excluding supervisory employees ; no controversy as to- Representatives : proof of choice : consent election , results of-Collective Bar- gaining: meeting with representatives but with no bona fide intent to reach agreement ; ordered to bargain collectively upon request-Reinstatement Or- dered: discharged employees-Back Pay: awarded discharged employees; from date of discharge to date of Intermediate Report and from date of Decision to date of offer of reinstatement. Mr. Herbert O. Eby and Mr. Robert W. Knadler, for the Board.. Mr. Joseph Stein, of Washington, D. C., for the respondent. Miss Sel'na M. Borchardt, of Washington, D. C., for the Union: Mr. Ralph Winkler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Upholsterers', Furniture and Bedding Workers Local #505, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifth Region (Baltimore, Mary- land), issued its complaint, dated March 11, 1938, against Charles J. Stein,l individually and trading as Capitol Bedding Company, 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), (3), and (5) and Section 2 (6) and (7), of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and the Union. 1 Incorrectly designated Charles S. Stein in the complaint. 14 N. L. R. B., No. 46. 667 668 1)14CTSl.ONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleged, in substance, that the respondent discharged .five named employees 2 because of their membership ill and activities on behalf of the Union, and has since refused to reinstate them; and that on and after November 12, 1937, the respondent refused to bar- gain in good faith with the Union, which had been designated as their collective bargaining representative by a majority of the respondent's employees in an appropriate unit. On March 17, 1938, the respond- ent filed an answer admitting the jurisdiction of the Board but deny- ing that he had engaged in any unfair labor practices within the meaning of the Act. Pursuant to the notice, a hearing was held on April 1, 2, and 4, 1938, at Washington, D. C., before E. R. Strempel, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner granted the mo- tion of counsel for the Board to amend the complaint by striking therefrom the names of Burton, Williams, and Haugh as employees ivho were alleged to have been discharged by the respondent because ,of their membership in and activities on behalf of the Union. Dur- ing the course of the hearing 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 Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. ,On July 25, 1938, the Trial Examiner filed an Intermediate Report in which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 0) and (5) and Section 2 (6) and (7) of the Act, but that the respondent had not committed any unfair labor practice by dis- charging and refusing to reinstate the two employees named in the complaint. He recommended that, upon request, the respondent bargain collectively in good faith with the Union as the exclusive representative of the employees in the unit therein found to be appro- priate for the purposes of collective bargaining. Thereafter, the Union filed a brief and exceptions to the Inter- mediate Report. Pursuant to notice duly served on all the parties, a hearing for the purpose of oral argument was held on January 24, 1939, before the Board, in Washington, D. C. The respondent and the Union were represented by counsel and participated in the hear- ing. The Board has considered the respondent's brief. It has also 2 William IIaugh , Thomas Williams, James L . Burton, Joseph Cardone, and Robert Crowther. CHARLES J. STEIN 669 considered the exceptions to the Intermediate Report and, save • as consistent with the findings, conclusions, and order. below, finds no merit in; them. Upon. the entire record in the case, the Board makes the following : FINDINGS OF FAUr I. THE BUSINESS OF THE RESPONDENT Charles J. Stein, the respondent herein, is engaged in the manufac- ture, sale, and distribution of mattresses, bedding, and related prod- ucts in Washington, D. C., under the firm name of Capitol Bedding Company. The principal raw materials used by the respondent in the course of his business consist of cotton, cotton byproducts, frames, inner springs, studio-couch covering, and other materials. Ninety- nine per cent of these raw materials are obtained from points outside the District of Columbia. The respondent admitted that he was engaged in business within the District of Columbia. II. THE ORGANIZATION INVOLVED Upholsterers', Furniture and Bedding Workers Local #505, is a labor organization affiliated with Upholsterers', Furniture, Carpet, Linoleum and Awning Workers' International Union of North America, which is, in turn, affiliated with the American Federation. of Labor. It admits to membership all employees of the respondent, with the exception of those employees who are engaged in supervisory capacities. TIT. THE UNFAIR LABOR PRACTICES A. Interference, restraint. and coercion In the latter part of September 1937 , Crowther and Haugh, then employees of the respondent , called on Charles L. Carroll, a special organizer for the Upholsterers' International Union, for the purpose of organizing the respondent 's employees. An organization meeting was held on September 29. The 14 employees who attended this meeting signed union application cards and elected the following temporary officers : Robert Crowther , chairman ; George C. Burton, recording secretary ; and Joseph Cardone, sergeant at arms. The night after this meeting, Al Reid, a foreman in the shop , called at Burton's home and asked him what he knew about the newly or- ganized union, how it was being formed, and by whom. The tem- porary officers acted 'in` their respective' capacities at the following meeting on October 4, which was attended by 28 members. Although 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not a member of the Union, and not invited to attend, Reid was also present at this meeting. It is apparent that Reid's questioning of Burton and his attendance at the union meeting amounted to an inter= ference with the self-organization of the respondent's employees.3 We find that the respondent, by virtue of the aforesaid activities of Reid, interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain 1. The appropriate unit The Union urged that the hourly and piece-rate production and maintenance employees of the respondent, excluding supervisory em- ployees, constitute a unit appropriate for the purposes of collective bargaining. During his negotiations with the Union and at the elec- tion, hereinafter discussed, the' respondent raised no objections to the appropriateness of this unit, nor did he adduce any testimony at the hearing to indicate any other unit he deems appropriate. We find that all the hourly and piece-rate production and mainte- nance employees of the respondent, excluding supervisory employees, constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a. majority in the appropriate unit In a consent election which was conducted on November 12, 1937, under the direction of the Regional Director for the Fifth Region, among the respondent's employees in the appropriate unit, a ma- jority of the employees voted for the Union. As indicated below, the respondent in his negotiations with the Union raised no objec- tions to the Union's status as the exclusive bargaining agent of his employees. We find, therefore, that on November 12, 1937, and at all times thereafter, the Union has been the duly designated representative of a majority of the employees in the appropriate unit and that by virtue of Section 9 (a) of the Act has been the exclusive repre- sentative of all the employees in said unit for the purposes of col- lective bargaining. "See Matter -of Pulaski Veneer Corporation and Unites Brotherhood of Carpenters t Joiners of Amerka, Local Union #1862, 10 N. L. R. B. 136. CHARLES J. STEIN 671 3. The refusal to bargain On October 8; 1937, a grievance arose out of the summary dis- charge of nine employees, all members of the Union. No satisfac- tory settlement of the matter was effected by Stein, Carroll, and the Union Shop Committee, who met ill' conference on the following day; and on the same day, Carroll sent out boycott letters to the respondent's customers. These letters stated that the respondent was "unfair to organize mattress workers, A. F. of L. Local" and urged the customers to cooperate with the Union. The Union then filed charges with the Board. A series of conferences between the respondent and the Union resulted in a settlement of the case where- by the respondent agreed to, reinstate all. the employees with back pay. At a meeting with a -union committee on November 20, 1937, fol- lowing the consent election of November 12, Stein recognized the Union as the exclusive representative of all the employees in the appropriate unit. At the same meeting the question of wages was also discussed. Stein told the union committee that he was willing to consider the scale of wages paid by other mattress manufacturers within an agreed competitive area (Baltimore and Washington). Accordingly, at the next meeting, which was held on December 4, 1937, the union committee presented a list of wages prevailing in this area. The list was 2 or 3 weeks old and for that reason was not acceptable to Stein. The parties agreed, however, that the Union would present for Stein's consideration a proposed agreement covering wages and hours and other conditions of employment. The Union submitted such an agreement on December 6, the date of the following conference. On December 30, Carroll and Joseph Stein, the respondent's brother and attorney, discussed the terms of this agreement and Carroll felt at that time that they were "in agreement or nearly in perfect agreement." As mentioned above, the Union had sent out boycott letters to the respondent's customers. In order to facilitate the negotiations with the respondent, and at the respondent's request, Carroll mailed a second letter to the same customers. He thanked the firms for their cooperation and urged this time that they resume business relations with the respondent. Stein, Carroll, and the shop committee met again on January 14, 1938, for the purpose of further discussing the contract. As Stein entered the conference room, he declared : "This is just hashing over the same old thing." Near the close of the meeting, he further stated that "for 20 years they had operated without a Union and as the boycott was now lifted and everything was as it was, he thought they could continue from now on." The conference there- 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon terminated and no further efforts were made by the Union to continue the negotiations. Although the negotiations prior to the meeting of January 14 appeared to indicate a sincere attempt by the respondent to reach an understanding with the Union, Stein's loss of interest in continuing the negotiations after a collective bargaining agreement had been almost concluded and shortly after the union boycott had been lifted plainly shows that the respondent at no time bargained in good faith with the Union.4 Stein's efforts at negotiation were -designed, to bring about the removal of the boycott, and having accomplished this, his efforts ceased. We find that on November 20, 1937, and thereafter, the respondent has refused to bargain collectively with the Union as the exclusive representative of his employees in an appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment and that the respondent has thereby interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharges The complaint, as amended at the hearing, alleges that the respond- ent discharged Joseph Cardone and Robert Crowther because of their membership in and activities on behalf, of the Union. The respond- ent contended that the discharges were for cause and were unrelated to the union activity of these employees. Cardone had been in the respondent's employ since 1934 and was engaged as a shipping clerk at the time of his discharge. He also assisted in wrapping merchandise and in performing other incidental duties. Crowther, an upholsterer, had been with the respondent since February 1936. Both men had received several wage increases and, according to Stein's own testimony, had, performed their work satisfactorily. Cardone and Crowther were among the employees discharged, by the respondent on October 8, 1937, and subsequently reinstated with back pay. Both men were officers in the Union and were active in its formation. Their union membership was known to the respondent. Cardone's duties as shipping clerk required him to check out- going shipments with invoices. On January 18, 1938, Julia Fisher Rose, the respondent's general office supervisor, saw Cardone copying data.from the invoices. She reported this to Stein who summoned 4 Cf. Matter of Atlas Mills, Inc. and Textile House Workers Union No. 2269, United Textile Workers of America, 3 N. L. R. B. 10, where the employer carried on negotiations with the representative of its employees during a strike but refused to bargain thereafter. . We there said, "Negotiations with an intent only to delay and postpone a settlement until 'a strike can be broken is not collective bargaining within the meaning . . . of the Act." . CHARLES J. STETN 673 Cardone to his office. Cardone explained to Rose that he copied the material "because I am big-hearted." He also told Stein that he had given the data to Crowther. Thereupon Stein discharged Cardone. Cardone made no further explanation or protest of any kind.5 On the following day Stein summoned Crowther and asked him what he did with the data which Cardone had given to him. Crowther explained to Stein, so Crowther testified, that he had requested Car- done to mark down the names of the respondent's customers and the amount of merchandise delivered to them so that Crowther might give this information to Carroll. Carroll desired this information, Crowther further explained, to enable the Union to solicit those firms which had not resumed business relations with the respondent. Crowther's explanation, according to Stein, consisted only of a state- ment that he gave the information to Carroll. Thereupon Stein dis- charged Crowther. Although Stein testified that he had no idea how the information might have helped the Union, he also testified that, on several occasions since the boycott had been revoked, Carroll had suggested to him that he (Carroll) visit the respondent's cus- tomers. Stein's testimony shows that he knew that the data thus obtained was to be used in connection with lifting the boycott.,, In determining whether the respondent discharged these employees because of their union activity it is significant that the respondent at no time contended that the information which the Union sought was for the purpose of resuming the boycott or otherwise interfering with the respondent's relations with his customers. Stein's only explana- tion of the discharges was that "it was an individual wrongdoing for which they were discharged." The respondent thus bases the reasons for the discharges on a "wrongdoing" having no repercussions upon the- respondent or his business. We are therefore confronted with the question of whether the respondent discharged Cardone and Crowther because of their union activities, or as the respondent claims, because of these employees' admitted acts.? This is not a situation where. a confidential employee has been en- trusted with information of a confidential character. For plainly a shipping clerk does not occupy a position of trust; and the cus- tomers' list we are dealing with does not have intrinsic economic "The Union in its brief stated that had Cardone discussed his grievance with his employer, he would have done so in violation of a union rule which provides : No member of this Local shall at any time, discuss with the employer or any member of his supervisory force, any grievance which involves Union principle or practice except through the Shop Committee, or through a duly authorized agent of the Union." fi The Trial Examiner in his Intermediate Report discredited the testimony of both Cardone and Crowther, stating that he did not believe Cardone or Crowther and that Cardone was "hot headed." In the light of Stein 's testimony and in view of all the circumstances, we are of the opinion that the testimony of the two employees is substantially true. ' See Matter of The Kelly-Springfleld Tire Company and United Rubber Worker8 of America,. Local 26 and James M. Reed and Minnie Rank , 6 N. L. R. B. 325. W4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD value such as a list containing the names of thousands of firms and which has been obtained by an expenditure of a great amount of effort and money. The respondent's antagonism toward the Union and its members is indicated by Reid's questioning of Burton , his attendance at the union meeting of October 4, and the respondent 's tactics in going through the forms of bargaining until the boycott was lifted. The summary discharge of nine union men including Cardone and Crow- ther on October 8 manifests itself as part of the respondent 's scheme to check the Union in its developmental stage. Due to the efforts of the Union in effecting the boycott, he was compelled to reinstate these employees. Once the boycott was removed , however, the re- spondent sought further tactics to discourage union activity. He -thus seized upon acts of the two men which would otherwise have not resulted in more than a reprimand and warning as the pretended reason for their discharge . We do not believe tinder the circurn- 'stances that the respondent would have discharged two experienced and efficient employees for an act which did not detract from their usefulness as employees . We are satisfied that the real motive for discharging Cardone and Crowther was their union activity. Except for $30 earned by Cardone, neither of the men has secured any other employment and both of them desire reinstatement. We find that Joseph Cardone and Robert Crowther were dis- charged because of their membership in and activities on behalf of the Union, and that by such discharges the respondent has discrim- inated in regard to hire and tenure of employment , and has thereby discouraged membership in the Union. We also find that by such action the respondent has interfered with, restrained , and coerced his 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, oc- curring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce within the District of Columbia and between the States and the District of Columbia, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in certain unfair labor practices. We will, therefore, order him to cease and desist therefrom and to take certain affirmative action designed to effectuate CHARLES J. STEIN 675' hie -policies of the Act and to restore, as nearly as possible, the situ- ation that existed prior to the commission of the unfair labor practices. We have found that the respondent has refused to bargain collec- tively in good faith with the Union. At the oral argument, counsel for the respondent stated that the respondent was willing to comply with the recommendations of the Trial Examiner as contained in the Intermediate Report with respect to the 8 (5) violation and which we have already set out. In order to effectuate the policies of the Act, however, we shall order him to bargain, upon request, with the Union as the exclusive representative of his employees in the appropriate unit We have also found that the respondent has discriminated in re- gard to the hire and tenure of employment of Joseph Cardone andf- Robert Crowther: We shall therefore require the respondent to- offer these employees reinstatement with back pay. In view of the- Trial Examiner's failure to find in his Intermediate Report that Crowther and Cardone were discriminatorily discharged, the re- spondent could not have been expected to reinstate them after July- -25, 1938, the date of the Intermediate Report, and therefore shouldi not be required to pay back pay from that time to the date of this Order." The respondent will be required to make whole Cardone and Crowther for any loss of pay they may have suffered during the period from January I8 and 19, 1938, respectively, the date of their- respective discharges, to July 25, 1938, and from the date of this Order until the date of the offer of reinstatement, by payment to each of them of a, sum equal to the amount which he normally would' have earned as wages during said period, less his net earnings q- during said period. Upon the basis of the above findings of fact and upon the entire. record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Upholsterers', Furniture and Bedding Workers Local x$505 is a labor organization, within the meaning of Section 2 (5) of the Act.. 8Matter of E. R. Haffelfinger Company, Inc . and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760. U 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 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 . Monies received for work performed upon Federal , State. county, municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, ,State. county , municipal, or other government or governments which supplied the funds' for said work-relief projects. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The hourly and piece-rate production and maintenance em- ployees of the respondent, excluding supervisory employees, consti- tute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. .3. Upholsterers', Furniture and Bedding Workers Local #505 is and at all times since November 12, 1937, has been the exclusive representative of all the respondent's employees in such unit for the purposes of collective bargaining, within the meaning of Section :9 (a) of the Act. 4. By' refusing to bargain collectively with Upholsterers', Furni- ture and Bedding Workers Local #505 as the exclusive representa- tive of his employees in the appropriate unit, the respondent has en- gaged in and is engaging in unfair labor practices, within the.mean- ing of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of Joseph Cardone and Robert Crowther and thereby discour- aging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair, labor, practices, within the meaning of Section 8 (1) of the Act. 7. 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 respond- ent, Charles J. Stein, individually and trading as Capitol Bedding -Company, Washington, D. C., and his agents, successors, and assigns ;shall : 1. Cease and desist from : ^(a) Discouraging membership in Upholsterers', Furniture and Bedding Workers Local #505 or any other labor organization of his employees, by discharging or refusing to reinstate any of his 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) Refusing to bargain collectively with the exclusive representa- tive of all his hourly and piece-rate production and maintenance employees, excluding supervisory employees; (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to CHARLES J. STEIN 677 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 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 Joseph Cardone and Robert Crowther immediate and full reinstatement' to' their former positions, without prejudice to their seniority and other rights and privileges; (b) Make whole Joseph Cardone and Robert Crowther for any loss of pay they have suffered after January 18 and 19, 1938, respectively, by reason of the respondent's discrimination in regard to their hire and'teaure of employment, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge until July 25, 1938, and from the date of this Order to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due to Joseph Cardone and Robert. Crowther, ,monies re- ceived by each of them during 'said period for work performed upon Federal, State, county, municipal, or other work-relief projects,•and paying over the amount so. deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or- other government or governments which supplied the funds for said work-relief projects; (c) Upon request, bargain collectively with Upholsterers', Furni- ture and Bedding Workers Local #505, as the exclusive representa- t.ive of all his hourly and piece-rate production and maintenance employees, excluding supervisory employees, with respect to rates of pay, wages, hours of employment,, and other conditions of employment ; (d) Immediately post notices in conspicuous places '-in his plant, and maintain such notices for a period of sixty (60)• consecutive days from the date of posting, stating that he will cease and desist in the manner set forth in 1 (a), (b), and (c) and that he will take the affirmative action set forth in 2 (a)., (b), and.(c), of this Order; (e) Notify the Region Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. Mr. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.