Revere Furniture Mfg. Inc., 607 (1963)

REVERE FURNITURE MFG. INC. 607

Revere Furniture Mfg. Inc. and Upholsterers' Local Union No.

15, Upholsterers International Union, AFL-CIO. Case No.

01-CA-5061. September 16, 1963 DECISION AND ORDER

On June 19, 1963, Trial Examiner E. Don Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and Was not engaging in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report.

Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief.

Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a threemember panel [Members Leedom, Fanning, and Brown].

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 entire record in this case, including the Intermediate Report, and the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board dismissed the complaint.] ' We agree wtih the Trial Examiner 's finding that Respondent did not violate Section 8(a) (3) by discharging employee Child. In doing so, we rely solely on the fact that Child was engaged in soliciting on company time without the Respondent's permission, and that his discharge for this activity was not violative of the Act. See Rex Manufacturing Company, 86 NLRB 470.

INTERMEDIATE REPORT AND RECOMMENDED ORDER

STATEMENT OF THE CASE

Upon charges duly filed by Upholsterers' Local Union No. 15, Upholsterers International Union, AFL-CIO, herein called the Upholsterers, the General Counsel of the National Labor Relations Board, herein called the Board , through the Acting Regional Director for the Twenty-first Region, issued a complaint dated December 31, 1962, against Revere Furniture Mfg. Inc., herein called Respondent or Company, alleging violations of Section 8(a)(1) and ( 3) of the National Labor Relations Act, herein called the Act. Respondent by duly filed answer denied committing unfair labor practices.

Pursuant to notice, a hearing was held before Trial Examiner E. Don Wilson at Los Angeles, California, on February 4, 5, and 6 , 1963 . All parties appeared and participated fully in the hearing. Before the hearing concluded, all parties were afforded full opportunity for oral argument. Briefs of the General Counsel and Respondent have been received and considered.

Upon consideration of the entire record, and from my observation of the witnesses,

I make the following:

FINDINGS OF FACT

1. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the business of manufacturing upholstered furniture . At all material times, Respondent has maintained its principal office and place of business and a furniture manufacturing plant in the city of 144 NLRB No. 63.

   Hawthorne, California. During the calendar year, 1962, Respondent , in the course and conduct of its business operations , manufactured, sold, and distributed at its plant products valued at more than $500,000, of which products valued in excess of $50,000 were shipped from said plant directly to points outside the State of California. During the same year, the Respondent purchased and received goods valued in excess of $50,000 directly from sources located outside the State of California. Respondent is now and has been at material times an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. The Board has jurisdiction of the subject matter of this proceeding.

   H. THE LABOR ORGANIZATIONS INVOLVED The Upholsterers and Teamsters Local 196, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters, and Furniture Workers Local 3161, affiliated with International Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called Furniture Workers, are, and have been at all material times, labor organizations within the meaning of Section 2(5) of the Act.

   3. THE UNFAIR LABOR PRACTICES A. The issues There are two primary issues: (1) At material times did Respondent have in effect and enforce a rule which forbids union or concerted activity on company property on nonwork time; and (2) was Daniel Child discharged on November 12, 1962,1 because he engaged in protected concerted and union activities in behalf of the Upholsterers, Teamsters, and Furniture Workers and in order to discourage membership in the Teamsters and Furniture Workers? B. Background One building houses the operations of Respondent, Franklin Frame Co. and Revere Lamps, Inc. The latter companies have ownership in common with Respondent. The operating premises of the companies are separated one from another by physical barriers. Franklin Frame Co. manufactures frames and is sometimes referred to as Respondent's mill department. Revere Lamps, Inc., manufactures lamps and its operations appear in no way to be related to those of the other two companies. Respondent's operations consist of upholstering, including a variety of steps in the process. Respondent has its own shipping department. In its upholstering operations Respondent has from 38 to 50 employees of whom about 4 are engaged in shipping and receiving, including 1 or 2 truckdrivers. The mill department (Franklin Frame Co.) has about six employees. Revere Lamps, Inc., has about 50 employees.2 Larry Brooks has been Respondent's plant manager for about 3 years. He is also the manager of the mill department.

   Respondent's employees who are engaged in its upholstering operations have been represented by the Upholsterers for several years, during which time the Upholsterers has had a collective-bargaining contract with the Wholesale Upholstered Furniture Association, of which Respondent is and has been a member at material times. The employees of the lamp department, the mill department, and Respondent's shipping department are and have been unorganized and not represented by any labor organization.

   On June 9, 1961, Respondent probably posted on its bulletin board in the upholstering department, the following rules:

   ATTENTION ALL REVERE FURNITURE EMPLOYEES

   JUNE 9, 1961.

   THE FOLLOWING RULES ARE SET UP BY THE COMPANY AND MUST

   BE FOLLOWED. ANYONE NOT ABIDING BY THE FOLLOWING RULES WILL BE SUBJECT TO DISMISSAL.

1. YOU MUST ENTER THE FACTORY, DURING WORKING HOURS,

   THROUGH THE DOOR LOCATED ON THE EAST SIDE OF THE BUILDING. NO ONE WORKING FOR THE FURNITURE COMPANY CAN ENTER THE WEST DOOR.

2. YOU MUST SEEK PERMISSION FROM YOUR FOREMAN TO ENTER ANY OTHER DEPARTMENT IN THE FACTORY.

   'Hereinafter all dates refer to the year 1962 unless otherwise specified.

   2 Revere Lamps, Inc., is not in any manner Involved In this proceeding.

   REVERE FURNITURE MFG. INC. 609

3. IF YOU COME TO WORK ON A DAY THAT YOU ARE NOT WORKING FOR SOME REASON OR ANOTHER, YOU MUST GO TO THE RECEPTIONIST DESK AND BE ANNOUNCED. ABSOLUTELY NO ONE IS PERMITTED IN THE FACTORY UNLESS YOU HAVE

   PUNCHED IN ON THE TIME CLOCK.

4. NO SOLICITING OR ANY OTHER BUSINESS CAN BE CARRIED ON DURING WORKING HOURS OR ON COMPANY PROPERTY.

   REVERE FURNITURE MFG. INC.

   (S) Lawrence Brooks LAWRENCE BROOKS, Plant Manager.

   Copies of the rules as set forth above, whether or not posted, were distributed to employees on or about June 9, 1961.3 Brooks testified that rule No. 4 contained a typographical error in that the final part should have read 'and on company 4property.' arnel Child was employed by Respondent as a journeyman upholsterer on October 4, 1960. For a major portion of his employment, Child was shop steward for the Upholsterers. As an upholsterer, it was rarely that his duties required him to visit the mill department. As shop steward he had no responsibilities in connection with the employees either in the mill department or in the shipping department. Other than walking through the shipping department to punch in or out (on the timeclock), he had little or no occasion to be in the shipping department, unless directed by his foreman. Such direction was not frequent.

   Before November 9, Child regularly engaged in his duties as shop steward for the Upholsterers and at no time did Respondent interfere. Child regularly talked to employees in the upholstery department about the Upholsterers. He took applications for membership in the Upholsterers and dues deduction applications from new employees and told them they should join the Upholsterers. Though he would try to work such activity into 'break time,' he sometimes did it on the company time and, of course, on company premises. He was very busy in processing grievances, particularly for seamstresses. His soliciting new employees to join the Upholsterers during company time was done with the knowledge of management. He was never reprimanded, prior to November 9, for any of his union activities, including discussions of grievances with fellow employees or the processing of grievances with management during working hours, and, of course, on company premises .5

   At the hearing, General Counsel contended that 'the former union steward (Child) was permitted to engage in union activities during working time.' Counsel for Respondent agreed that the union steward, Child, was permitted by Respondent 'to engage in proper union activities on company time, and he was never disciplined for the union activities on company time.' General Counsel further agreed that the record established that Child had engaged in union activities on company time throughout his employment and had never been reprimanded, disciplined, or criticized therefor.

   Also, during his employment, Child was one of Respondent's lower producers as an upholsterer. At his request, Child was transferred from one type of operation to another. On several occasions Brooks encouraged Child...