Mason Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 15, 1939

15 N.L.R.B. 295 (N.L.R.B. 1939)

In the Matter Of MASON MANUFACTURING COMPANY and UNITED FUR-
NITURE WORKERS OF AMERICA LOCAL No. 576
Case No. C-759-Decided September 15, 1939
Furniture Manufacturing Industry-Interference, Restraint, or Coercion-
Discrimination: termination of employment due to employees'. refusal to accept
unlawfully imposed condition of employment that they become members of a
particular labor organization; no merit in contention that respondent was not
responsible for the termination of employment ; no merit in contention that the
discharges were justified by alleged oral closed-shop agreement satisfying the
proviso of Section 8 (3) of the Act-Closed-Shop Contract: findings of State
court made in a private suit to which the Board was not a party, not con-
clusive-Reinstatement Ordered-Back Pay: awarded.
Mr. William R. Walsh and Mr. Charles M. Brooks, for the Board.
Cupp & Cupp, by Mr. J. Wesley Cupp and Mr. George W. Hender-
son, of Los Angeles, Calif., for the respondent.
Mr. A. L. Wirin, of Los Angeles, Calif., for Local 576.
Rosecrans & Emme, by Mr. Leo M. Rosecrans and Mr. Otto J.
Emme, of Los Angeles, Calif., and Mr. J. A. Padway and Mr. Henry
Kaiser, of Washington, D. C., for Local 15.
Mr. Bernard W. Freund, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been duly filed on April 1
and 22, 1938, by United Furniture Workers of America, Local No.
576, (C. I. 0.), herein called Local' 576, the National. Labor Rela-
tions Board, herein called the Board, by Towne Nylander, Regional
Director for the Twenty-first Region (Los Angeles, California),
issued its complaint, dated May 13, 1938, against Mason Manufac-
turing Company, Los Angeles, California, herein called the respond-
ent, 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. Copies of
the complaint, and notice of a hearing thereon, were duly served upon
15 N. L . R. B., No. 38.
295
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent, Local 576, and Upholsterers, Carpet & Linoleum
Mechanics Union,' Local 15 (A. F. of L.), a labor organization, herein
called Local 15.
The complaint alleged that the respondent had engaged in and
was engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) and (3) of the Act by discharging and locking out the
13 employees in its upholstery department 2 on or about March 30,
1938, and thereafter refusing to reinstate them, for the reason that
they had joined and assisted Local 576 and had engaged in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection. The complaint further alleged that the
respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act (1) by entering
into a purported contract in writing with J. W. Buzzell and Charles
L. Yost on or about March 30, 1938, by which, among other things,
the respondent recognized Local 15 as sole bargaining agency for its
members in the respondent's upholstery departments, although on
that date neither Buzzell, Yost, nor Local 15 represented any em-
ployees in those departments, and (2) by urging, persuading, and
warning its employees, on or about March 30, 1938, and at other
times up to the date of the complaint, to refrain from remaining
members of Local 576, and threatening them with discharge if they
became or remained members thereof.
On May 23, 1938, the respondent filed an answer to the complaint,
in which it denied the Board's jurisdiction in the case. The respond-
ent denied that it discharged or locked out or refused to reinstate any
of the employees in its upholstery department as alleged in the coin-
plaint, and alleged that any acts by which any such employees were
prevented from coming to or continuing their work were committed
by persons over whom the respondent had no direction or control.
It further alleged that none of the said employees was eligible for
employmelit by the respondent on March 30, 1938, because all of them
had ceased to be members of Local 15, with which organization the
respondent had a contract requiring it to employ only members in
good standing of Local 15 in its upholstery department. The re-
spondent alleged that it was, and at all times had been, willing to
reinstate any of the employees named in the complaint, provided that
they were members in good standing of Local 15. The respondent
admitted that, on or about March 30, 1938, it signed the written in-
strument described in the complaint as a purported contract in writ-
1 According to the General Laws of this organization, its correct name Is "Upholsterers',
Furniture, Carpet, Linoleum & Awning Workers' International Union of North America."
2 Hazel Fonceca, William C. Fisher, Arthur E. Feather, Louis M. Mueller, Winona Chalt,
Rosalie Archambault, Lupe Tellez, Mike Mastro, Joe Leon, Russell White, Lowell E. John-
son, Jacob Levin, and Manuel. Senteno.
MASON MANUFACTURING COMPANY 297
ing, and further admitted that, on that date, none of the employees
in its upholstery department was a member in good standing of
Local 15; it denied, however, that it thereby engaged in an unfair
labor practice within the meaning of the Act. The respondent denied
that it urged, persuaded, or warned its employees to refrain from.
remaining members of Local. 576, or threatened them with' discharge
if they became or remained members thereof.
On the same day, May 23, 1938, the respondent filed a motion that
the hearing be continued to June 3, 1938, or thereafter. On May 24,
1938, the Regional Director issued an order denying the respondent's
motion for continuance of the hearing. On May 26, 1938, Local 15
filed a motion to intervene in the "proceedings, together with a state-
ment in support thereof.
Pursuant to notice, a hearing was held at Los Angeles, California,
on May 26, 27, and 31, and June 1, 2, and 7, 1938, before Jesse E.
Jacobson, the Trial Examiner duly designated by the Board. At the
commencement of the hearing, the Trial Examiner, after granting a
notion by Local 576 to strike a portion of the statement filed by
Local 15 in support of its motion to intervene in the proceedings,
granted Local 15's motion to intervene. The Board, the respondent,
Local 576, and Local 15 were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the. issues
was afforded all the parties. The hearing was interrupted by-two
continuances of 4 and 5 days, respectively, the first granted by the-
Trial Examiner upon motion by' the respondent, and .the second
granted upon motion by counsel for the Board, in which the respond-
ent joined.
On 'the first day of the hearing, the Trial Examiner granted in part
a motion by counsel for the Board, filed that day, to strike certain
portions of the respondent's answer.. At. the conclusion of the
Board's case, he granted motions by counsel for the Board to dismiss
the complaint with prejudice as 'to Mike Mastro and without preju-
dice as to Louis Mueller,3 and to amend the complaint to conform to
the proof. The Trial Examiner reserved ruling upon a motion by
respondent to dismiss the complaint on the grounds that the Board
lacked jurisdiction and that the evidence was insufficient to support
the allegations of the complaint. In his Intermediate Report, he
denied the motion. Upon motion made by. the. respondent during
the course of the hearing, the Trial Examiner allowed. in evidence,
subject to the right of any party. to move to strike portions thereof
or to produce additional evidence with- respect to' the matters covered
2 The complaint was also dismissed; without .prejudice as to Hazel Fonceca at this time.
On the last day of the hearing, without objection , the name of Hazel Fonceca was
restored to the complaint upon motion by"counsel for the Board.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby, a partial transcript of oral testimony taken in April 1938
before the Superior Court of the State of California in and for the
County of Los Angeles, in the case of Mason Manufacturing Com-
pany, a corporation v. United Furniture Workers of America, Local
576, an unincorporated association, etc., Case No. 426655, which was
instituted by the respondent on or about April 1, 1938, for the pur-
pose of securing an injunction against the picketing of its plant. At
the close of the hearing, and in his Intermediate Report, the Trial
Examiner granted in part and denied in part motions by counsel for
the Board to strike portions of the said partial transcript.
During the course of the hearing, the Trial Examiner made other
rulings on motions, and on objections to the admission of evidence.
The Board has reviewed the various rulings of the Trial Examiner,
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On July 13, 1938, the Trial Examiner filed his Intermediate Report,
a copy of which was duly served upon all parties, in which he found
that the respondent had engaged in unfair labor practices within
the meaning of Section 8 (1) and (3) of the Act, by discharging, lock-
ing out, and refusing to reinstate Hazel Fonceca, William C. Fisher,
Arthur E. Feather;-Winona Chait, Rosalie Archambault, Lupe Tellez,
Joe Leon, Russell White, Lowell E. Johnson, Jacob Levin, and
Manuel Senteno, as alleged in the complaint, and by otherwise inter-
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act; and recommended
that the respondent cease and desist therefrom, offer immediate rein-
statement, with back pay, to said employees, and take certain other
affirmative action in order to effectuate the policies-of the Act. Ex-
ceptions to the Intermediate Report were filed by the respondent and
by Local 15.
On July 29, 1938, the respondent submitted to the Board the
memorandum opinion of Judge W..Turney Fox, handed down on
July 26, 1938, in the case of Mason Manu f acturing Company, a cor-
portation v. United Furniture Workers of America Local No. 576,
an unincorporated association, et al., supra, with a request that it be
filed in -these proceedings..,, This request-is, hereby: granted.
On February 23, 1939, at the request of the respondent and of
Local 15, and pursuant to notice and amended notice duly served
upon all the parties, a hearing for the purpose of oral argument was
conducted before the Board at Washington, D. C. Counsel for the
American Federation of Labor appeared in behalf of Local 15 and
participated in the hearing. No other appearances were made.
The Board has considered the exceptions to the Intermediate
Report and, except in so far as they are consistent with the findings,
conclusions, and order set forth below, finds them to be without merit.
MASON MANUFACTURING COMPANY 299
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Mason Manufacturing Company, a California
corporation, with- its principalI place of business at Los Angeles,.
California, is engaged in the manufacture of upholstered and non-
upholstered furniture, including bedroom, living-room, and dining-
room furniture. On March 30, 1938, the respondent employed ap-
proximately 122 production employees in its plant, of whom 13 were
employed in the upholstering department and 109 in other depart-
ments of the plant.
During the year 1937, the respondent sold $530,650.51 worth of
furniture, consisting of $127,497.57 worth of upholstered furniture
and $403,152.94 worth of non-upholstered furniture. Thirty-three
and one-half per cent of the respondent's total sales of furniture in,
1937, or $177,607.01 worth, consisting of $38,973.75 worth of uphol-
stered furniture and $138,633.26 worth of non-upholstered furniture,
were shipped by the respondent to points outside California. Dur-
ing.-the, year 1936, the respondent sold $428,506.32 worth of furniture
of which $113,296.88 worth, or 26.4 per cent, was shipped outside
California.
In the course of its operations, the respondent purchases lumber;.
paints; mirrors; sofa and chair frames; fabrics for covering uphol-
stered furniture; springs, webbing, and cotton for filling in between
the frames and the covering fabrics in upholstered furniture; and?
miscellaneous items, including nails, screws, bolts, abrasive paper,.
wiping rags, paper, twine, glue, dowels, sockets, globes, lacings,
newspapers, and excelsior. During the year 1937, the respondent
expended a total of $274,052.37 in the purchase of such materials.
Of this amount, $28,032.52 or 10.2 per cent, was spent for materials.
which were shipped to the respondent from points outside California.
During the year 1936, the respondent purchased $216,863.05 worth
of such materials of which amount $19,716.75 worth, or 9.1 per cent,
was -obtained- from, outside California. The -testimony of - Lloyd Y.
Schmerige'r, the respondent's secretary and treasurer, indicated, more
over, that a substantial proportion of the. materials obtained by the
respondent from within California originated outside California.
II. THE ORGANIZATIONS INVOLVED
United Furniture Workers of America, Local No. 576, is a labor
organization, affiliated with the Committee for Industrial Organiza-
.300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, herein called the C. I. 0., admitting to its membership generally
.all employees engaged in the production of furniture in and around
Los Angeles, California.
Upholsterers', Furniture, Carpet, Linoleum & Awning Workers'
.International Union of North America, Local No. 15, is a labor organ-
ization, affiliated with the American Federation of Labor, herein
-called the A. F. of L., admitting to its membership generally all em-
ployees engaged in the production of upholstered furniture in and
.around Los Angeles, California. Local 15 is also affiliated with the
Los Aligeles Central Labor Council, an association of local unions
.affiliated with the A. F. of L.
III. THE UNFAIR LABOR PRACTICES
A. The chronology of events
Local 15 was chartered about 1900 and for many years was ap-
parently the only labor organization of employees engaged in the
production of furniture in Los Angeles. Its membership was at all
times limited to employees engaged in the production of upholstered
furniture. In 1932 or 1933, two other labor organizations were or-
ganized in Los Angeles, one a local of the Trade Union Unity League 4
and the other an unaffiliated organization known as Independent
Furniture Workers Union, Local No. 1. Both organizations ad-
mitted both upholsterers and non-upholsterers to their membership.
In 1934 Independent Furniture Workers Union, Local No..1, was
chartered by United Brotherhood of Carpenters and Joiners of
America, affiliated with the A. F. of L., as Furniture Workers Union
Local No. 1561, herein called Local.1561, with jurisdiction generally
over all employees engaged in the production of furniture in Los
Angeles.
On September 26, 1935, the respondent posted on its bulletin board
a notice which announced that on and after September 26, 1935, the
respondent would employ only members in good standing of Local
1561. The notice was signed by Frank G. Mason, the respondent's
president, by the president and the business agent of Local 1561, and
by the shop chairman of Local 1561 in the plant. A representative
.of the United Brotherhood of Carpenters and Joiners of America
signed the notice as a witness.
Inasmuch as Local 15 and Local 1561 both admitted upholsterers
to their membership, a jurisdictional dispute arose between. the two
organizations. On October 2, 1935, Local 1561 advised the respond-
ent that it was "releasing the Upholsterers temporarily in your shop,
who do not belong to this Union, pending a decision from the Ameri-
r
I The local was dissolved in 1935.
MASON MANUFACTURING COMPANY 301
can Federation of Labor." At the time, all the upholsterers em-
ployed by the respondent were members of Local 15. No final de-
cision was at any time made by the A. F. of L. relative to the juris-
dictional dispute. Frank Mason, the respondent's president, testified
in effect that following receipt by. the respondent of the letter of
October 2, 1935, from Local 1561, all parties proceeded on the basis
that the respondent would employ only such upholsterers as were
members of Local 15. The evidence establishes, however,. that be-
tween the fall of 1935 and the spring of 1936, the respondent em-
ployed a number of upholsterers who were not members of Local 15
and who did not join Local 15 until the fall of 1936.
Although Mason testified that the, respondent entered into a con-
tract with Local 1561 in the fall of 1936, the record does not disclose
the terms of any such contract. The record does disclose, however,
that a written agreement, effective as of September 1, 1937, and to
remain in force until August 31, 1938, was signed by the respondent
and Local 1561. The agreement provided, among other things, that
the respondent would employ only members in good standing of
Local 1561, exclusive of office workers, teamsters, and upholsterers.
On September 8, 1936, Ernest M. Bruner, business agent of Local
15, sent to Mason a proposed agreement, effective as of September 1,
1936, and to be in force until August 1, 1937, or "until a new contract
is entered into," between the respondent and Local 15. The proposed
agreement provided, among other things, that the respondent would
employ only members of Local 15 "in the Upholstering and Bedding
Departments and/or such other departments of their shop or shops as
members of this union are ordinarily employed that come under the
jurisdiction of" Local 15. There was transmitted at the same time
a covering letter asking that immediate action be taken on the agree-
ment. The respondent did not, however, sign the proposed agreement.
Mason testified at the hearing that he did not sign the agreement be-
cause he was not asked to sign it and that he had reached an oral
agreement with Bruner in September 1936 that the respondent "wasn't
to employ anybody but what belonged to the Union, in. good standing,
and the shop all had to be hired through the Union." On the other
hand, Bruner testified that Mason refused to sign the agreement,
stating that "if the other manufacturers signed it, he would sign it."'
Local 15 was at the time in question negotiating with other manufac-
turers in Los Angeles with respect to agreements similar to that pro-
posed to the respondent. Bruner also testified that Mason never
definitely agreed to employ only members of Local 15 as upholsterers.
On September 25, 1936, Mason met with Bruner and the employees
in the upholstery department, and reached an agreement with them
concerning-the wages to be paid the various employees. There was no
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion at this time relative to the employment only of upholsterers
belonging to Local 15. Mason testified that the reason there was no
discussion on such point was that, "That was taken for granted."
Between the fall of 1936 and the fall of 1937, the respondent hired
approximately six new employees in its upholstery department, all of
whom were members of Local 15.
In August or September.1937, Local 15 submitted to the respondent
a proposed contract, the terms of which are not disclosed in the record.
Mason, the respondent's president, indicated at the time that, with the
exception of certain of the wage provisions, the terms of the contract
were acceptable to him. Mason testified that he informed Jacob Levin,
a, member of the negotiating committee of Local 15, that he would
"sign the contract that the majority of . . . the shops that you
-are working with sign when you get down to an agreement." Local
15 was at the time negotiating with various manufacturers in Los
Angeles and with the Upholstering Manufacturing League, herein
-called the League, an association composed of a number of manufac-
turers of upholstered furniture in Los Angeles. Although the re-
spondent was not .a member of the League, Mason attended one or
more of the conferences between representatives of Local 15 and rep-
resentatives of the League and at one of the conferences in September
1937 remarked to John Murray, a' representative of the United
Brotherhood of Carpenters and Joiners of America, that "he had
reached an agreement with the upholsterers already to the effect that
whatever the others did he would do."
About September 20, 1937, Mason met with a shop committee of
the employees of the upholstery department, and granted temporary
wage increases to most of the employees in that department. Mason
testified that he took this action because Local 15 and the League were
taking "so long in setting their wage scales."
About the middle of October 1937, after Local 15 had accepted the
League's wage proposals and had authorized its negotiating commit-
tee to "settle the rest of the agreement to the best of their ability,"
Walter Westfall, business agent of Local 15, submitted to -Mason a
second proposed contract and requested that he sign it. The proposed
contract, substantially identical with that subsequently signed by the
League and Local 15 on November 1, 1937, provided among other things
for recognition of Local 15 as the sole bargaining agency for its mem-
bers in all the upholstering departments and its allied crafts; that
in the event Local 15 could not furnish sufficient help when needed,
the employer might advertise and hire from other sources, providing
those hired obtained temporary work permits from Local 15; that "all
present employees of the employer and all employees hired in the
future who have worked one week or more and who have become
MASON MANUFACTURING COMPANY 303
members of the union (Local 15) are steady employees. All work
:shall be divided among all steady employees as nearly equally as pos-
sible, regardless of seniority, in- order to avoid discrimination." Ac-
^cording to its terms, the proposed agreement was to remain in full
force and effect from October 1, 1937, until August 1, 1938, and from
year to year thereafter in the absence of written notice given by either
party on or before July 1 of any year.
At the time Westfall submitted the proposed contract to Mason,
the latter objected to the scale of wages set forth therein and con-
tended that the respondent should be permitted to pay lower hourly
rates inasmuch as its employees were paid on a day-work basis rather
.than on the piece-work basis used by most of the other concerns in
Los Angeles. Westfall suggested that Mason sign the proposed agree-
ment, with the understanding that further discussion be had with the
view to arriving at a lower wage scale. Westfall expressed his belief
that the executive board of Local 15 would approve a lower wage scale.
Mason indicated his desire first to ascertain what action the League
took on the agreement before it as."his decision hinged upon whatever
they were going to do."
About October 18, 1937, either on the day Westfall submitted the
proposed contract to Mason or a day or two later, Westfall and the
upholstery-department shop committee conferred with Mason relative
to the matter of wages. Levin, a member of the shop committee, testi-
fied that before the conference with Mason "Westf all told us he had
come to an agreement with Mr. Mason on everything that agrees with
everyone of us but on the question of wages, Mr. Mason does not want
to pay the wages that is provided in there; that he claims he is entitled,
to a lower scale of wages than the rest, and he told us that they can't
settle on that scale of wages, because that would be contrary to the
union, but if you fellows will agree amongst yourselves-I am not tell-
ing you anything-what scale of wages you are willing to work for, I
think I can show you-slip it through for the union and get those
wages." It was stipulated at the hearing that at the - conference on
October 18, Mason and the shop committee reached an agreement with
regard to wages and that such wages differed from those set forth in
the agreement submitted by Westfall to Mason. It was also stipulated
that "that agreement as to wages was an oral agreement, but the time
books of the Respondent will show that those wages were paid." Dur-
ing the conference, there was no discussion of the proposed agreement
submitted to Mason by Westfall. However, Westfall informed Mason
that "if we could get the agreement signed, there was a possibility of
this wage scale being accepted by the Union" and that he "believed the
wage scale-the one that was offered-would be accepted under a
signed agreement." .
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the conference with Mason, Westfall and the chair-
man of the shop committee submitted the scale of wages which had
been agreed upon at the conference to' the executive board of Local 15
for approval , and discussion was had ' as to whether it should' be
accepted or rejected. Westfall testified that, to his knowledge, the
wage scale was never approved by the executive board of Local 15
or submitted to Local 15 for ratification. He further testified that
"due to the other difficulty we were having in the industry, it was,
the best offer that was made, and it just dragged along and was never
taken up again." Levin testified that at a meeting of Local 15 "about
the 25th of November-of October, some place around there" Westfall'
announced that an agreement had been reached with Mason "to the
satisfaction of the workers in the shop." He further testified that
"there was no details given and no questions were asked and that was
the general report from all the shops and when the motion was made
to approve it, it was carried and there was no details, but that was
the substance of that report that was made." Several other persons
who were members of Local 15 at the time in question testified, how-
ever, that they were unaware of any such announcement being made
at a meeting of Local 15 or of the wage scale agreed upon at the
conference on October 18 being submitted to Local 15 for approval.
We conclude that neither the executive board of Local 15 nor Local 15
approved the wage scale or any agreement.
A day or two after the October 18 conference, Feather, a member
of the shop committee, approached Mason and asked for the proposed
contract which Westfall had left with him. Mason did not, however,
comply with Feather's request. Mason 'testified at the hearing that
he was busy at the time- Feather approached him and that he told
Feather to wait until the next day. Shortly after he saw Mason,
Feather informed Westfall that Mason had not signed the contract
and "was not ready_ to turn it over." Westfall so stated in a report
to the executive board of Local 15.
Mason testified at the hearing that while alone in his office, lie had
signed the proposed contract which Westfall had left him and that
after signing it, he had placed the contract in his desk drawer where
it remained until Local 15 inquired about it in February or. March
1938. His testimony as to when he signed the document is vague and
contradictory , but tends to point to a time several days after the
October 18 conference.
At a meeting of Local 15 held on January 20, 1938, and attended
by approximately 400 to 450 members, the secretary of Local 15 was
"instructed to call a notified meeting for Tuesday, Jan. 25, 1938, to
vote on the question of affiliating with the C . I. 0." The following
day notices of such meeting were sent to all members of Local 15
MASON MANUFACTURING COMPANY 305
whose addresses were available, about 1,100 in all. The total mem-
bership of Local 15 at the time was approximately 1,300 persons.
At the meeting of Local 15 held on January 25, 1938, approxi-
mately 300 persons were in attendance. A standing vote was taken
.at the meeting on the question of "affiliating with C. I. 0." The vote
was 230 for such affiliation and 61 against such affiliation. It was
decided that the "new local" resulting from the change in affiliation
should temporarily be designated as Local No. "576, affiliated with the
Committee For Industrial Organization." At the close of the meeting,
X58 persons signed C. I. O. application cards.
All the 13 employees in the respondent's upholstery department
became members of Local 576 on or about January 25, 1938, and there-
after wore, while at work, buttons bearing the letters "C. I. 0."
.From that time until after March 30, 1938, all of them continued to
be members of Local 576.
By letter dated February 4, 1938, Westfall informed the respondent
that "the former members of the Upholsterers' Union, Local No. 15,
A. F. of L., have affiliated themselves to the United Furniture Workers
of America, C. I. 0., Local No. 576" and that "the Agreement as
existed between you and Local No. 15 will now continue in full force
,and effect between you and the United Furniture Workers of America,
affiliated to the Committee for Industrial Organization, Local No. 576
for the full life of the Agreement." It was stipulated at the hearing
that letters similar in content to Westfall's letter to the respondent
were mailed to all other furniture manufacturers in the Los Angeles
area.
About February 7, 1938, the United Furniture Workers of America,
.affiliated with the C. I. 0., issued a charter to Local 576, granting it
jurisdiction coextensive with that which had been exercised by Local
15 and Local 1561.
Beginning about February 15, 1938, a number of meetings were held
by persons who desired to retain their membership in Local 15 and
who took the position that the status of Local 15 was not affected by
the vote on January 25, 1938, relative to affiliation with the C. I. O.
The various meetings were each attended by approximately 50 to 75
persons.
About the middle of March 1938, the respondent needed the services
for several days of two upholsterers in addition to the 13 permanent'
employees in the upholstery department. Following the past practice
in hiring new employees, Butts, the foreman of the upholstery depart-
ment, requested a member of the shop committee to obtain two tempo-
rary employees. Shortly thereafter, two members of Local 576 re-
ported for work with work slips signed by Garcia, business agent of
Local 576. The work slips were handed to Butts who turned them
306.. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over to the shop chairman. After the two men had begun to work,
Mason noticed that one of the men wore a C. I. O. button. Mason
thereupon telephoned Charles Yost, a leader of the group of employees
who continued to meet as Local 15. Shortly prior thereto, Yost had
notified Mason that Local 15 was prepared to furnish upholsterers to..
the respondent. Yost informed Mason that the employment of the
two men was in violation of the respondent's agreement with Local 15
but that Local 15 would "let it ride for a day or so." Mason then
instructed Butts to discharge the two men as soon as they had com-
pleted the work for which they had been employed. Butts carried
out these instructions.
About this same time , Yost and Power, acting president of Local 15,
asked Mason what action had been taken with regard to the contract
which Westfall had left with him in October 1937. Mason took from
his desk the document which bore his signature but not that of Local
15. As noted above, Mason allegedly affixed his signature to the doc-
ument about the latter part of October 1937. Mason expressed to
Yost and Power his willingness to live up to the "agreement," but
stated "that the union ought to have some responsibility" and ex-
pressed a desire that Yost and Power also sign the. document. Yost
replied to the effect that he felt that he should not sign inasmuch as
Westfall was the business agent of Local 15 when the negotiations
relative to a contract were being carried on and asked Mason whether,
if the agreement was rewritten, he would object to the inclusion of
the Los Angeles Central Labor Council as a party. Mason expressed
himself as favorable to Yost's suggestion. Several days later, having
discussed the situation with J. W. Buzzell, secretary of the Los
Angeles Central Labor Council, Yost submitted to Mason a document
entitled "agreement" which provided that the respondent and the "Los
Angeles Central Labor Council, hereinafter referred to as the Council,
representing the American Federation of Labor in this District, acting
on behalf of its affiliated unions, namely : Furniture Workers' Union
No. 1561 and Upholsterers' Union No. 15, and with the consent of
these two unions," agreed that the Company should "employ none but
members in good standing of one or the other of the two affiliated
unions, as the type of employment may determine" ; that "a schedule
of wage rates, working hours and working conditions shall be agreed
to between the Company and the Council, which in turn is satisfactory
to the Company and the Furniture Workers' Union No. 1561 and the
Upholsterers' Union No. 15"; and that "such schedule of wages, work-
ing hours and conditions is attached hereto and made a part of this
agreement and it includes provisions for representation of grievances
and other matters pertinent to a labor agreement between labor unions
and employees." The document was drafted for signing by the re-
MASON MANUFACTURING COMPANY 307
spondent and the Council , and for the names of Local 15 and Local
1561 to appear as underwriters . There was attached to such document
an additional document which differed only slightly from the pro-
posed contract submitted by Westfall to Mason in October 1937. The
attached document provided that it should remain in full force and
effect from October 1 , 1937 , until August 31, 1938, and thereafter
annually in the absence of written notice by either party on or before
July 1 of any year. The document entitled "agreement" was signed
by Mason for the respondent and by Buzzell for the Council. It was
also "underwritten" by Yost for Local 15. The attached document
was signed by Yost for Local 15 and by Mason . It is not clear from
the record as to the precise date on which the aforesaid documents
were signed . The record does disclose , however , that such signing took
place prior to March 23, 1938.
By letter dated March 23, 1937 ,5 to Mason , Yost protested that the
respondent had in its plant at least two employees who were not
members of Local 15 and'that such employment was in violation of
the agreement existing between the respondent and Local 15 inas-
much as "paragraph #2 of the agreement clearly states that you (the
respondent ) shall employ only members in good standing of Local
15." Upon receipt of this letter on March 23, 1938, Mason showed it
to the employees who were working in the upholstery department on
that day. One . of the employees , Fisher, remarked that Mason
"didn 't have a written contract at that time ." Mason . replied that
Fisher was mistaken , and that he had such a contract.
On Friday, March 25, 1938, Butts instructed Levin and several
other employees in the department to report for work in the latter
part of the following week, rather than on Monday. The members of
the shop committee met later that day and decided to ignore these
instructions , apparently because they believed them to be contrary to
an understanding with respect to distribution of work among the 13
employees during slack periods, which the committee , with Westfall's
assistance , had reached with Mason about February 1938. Accord-
ingly, Levin and three others reported for work on Monday, March
28, in addition to the four employees whom Butts had told to return
on that day . At Levin's instance , Mason agreed to discuss the
situation.
Thereupon Levin and Mueller, together with Manuel Garcia, busi-
ness agent of Local 576, and Marsh, a representative of Local 576,
conferred with Mason in his office for about 3 hours. Mason knew
that Levin belonged to , and that Garcia and Marsh were representa-
tives of, Local 576. Mueller wore a C. I. O. button at the confer-
5 It is clear from the record that the correct date Is March 23 , 1938, and that "March
23, 19371' appeared on the letter inadvertently.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
once. According to Garcia, most of the discussion dealt with "the
staggering of work and going to work and so forth." Mason agreed
to continue dividing the available work equally among the em-
ployees, in accordance with the previous understanding. However,
heat first objected to giving any work to Levin because of his mem-
-bership in Local 576. He showed Levin the letter he had received
from Local 15 on March 23, and produced from his desk the document
which he, Yost, and Buzzell had recently signed, and also, according
to Mason, the document which Westfall had left with him in October
1937. Levin, who testified that he did not see the latter document,
told Mason that, since Local 15 and Buzzell did not represent the
employees in the department, the contract had nothing to do with the
employees or Local 576. According to Mason, the contention was also
advanced that any contract made before the members of Local 15
voted to affiliate with C. I. O. "had gone with the men," that they had
"taken the contract along with them." Mason rejected a suggestion
by Levin that an election be conducted to determine whether the em-
ployees preferred Local 15 or Local 576, saying that, although he was
neutral and did not care which union his upholsterers belonged to,
he had an agreement with the A. F. of L. requiring him to employ
only members of Local 15, and Local 15 and Local 576 should them-
selves settle any disputes arising between them, that he "wanted them,
both unions, to get together and see if we couldn't straighten this
thing up in some way." Mason finally agreed to let Levin and the
rest of the employees continue working for the time being regardless
of which union they belonged to, the details of the distribution of
work among them to be left to the foreman and the shop committee.
Levin learned later in the day that he was to report to work on
Thursday, March 31.
On the morning of Wednesday, March 30, 1938, about 7 a. in., Yost
went to the respondent's plant, accompanied by a group of men, vari-
ously estimated at from 16 to 40 in number, who belonged to labor
organizations affiliated with the A. F. of L. These men stood at one
side of the entrance to the ,plant during the ensuing hour. With
several officials of Local 15 and Local 1561, Yost went into Mason's
office, just inside the entrance, and told him, according to Mason's
testimony, that "they were there to go on a picket line if I didn't
let the C. I. O.'s go," that "the C. I. O. workers couldn't work there."
Yost said that Local 15 expected him to employ only members of
Local 15, in accordance with his agreement, and that "the A. F. of L.
were going to keep the C. I. O. employees out of the factory," that
"if the C. I. O. upholsterers went to, work, the woodworkers would
go out." Mason testified that he answered that he was neutral, and
that it was up to Local 15 and Local 576 to settle the dispute between
MASON MANUFACTURING COMPANY 309
themselves. He further testified that he made no effort to check the
A. F. of L.'s subsequent activities in front of the plant because he
relied upon his contracts with Local 15 and Local 1561, and because
he considered it useless for him to attempt to interfere, in view of the
A. F. of L.'s numerical strength.
Between 7 and 7: 30 a. m., 8 of the 13 employees in the respondent's
upholstery department arrived at the plant to report for work. They
were Archambault, Mastro, Feather, Chait, Leon, Senteno, Johnson,
and Mueller. Archambault and Mastro, the first arrivals, were met
outside the entrance by Yost, who told them that before they could
go in to work, they would have to sign cards he had with him, which
bore the statement : "I, the undersigned member of Local 15, Uphol-
sterers, Furniture, Carpet, Linoleum and Awning Workers Interna-
tional Union of North America, agree to have the Upholsterers, Fur-
niture, Carpet, Linoleum and Awning Workers International Union
of North America, Local 15, act as my collective Bargaining Agent
and of my own free will I pledge my allegiance to the American Fed-
eration of Labor." He explained to them, according to his testimony,
that "inasmuch as we had an agreement with Mr. Mason, and inas-
much as Mr. Mason was willing to live up to that agreement, it was
up to us to see that the members did belong to Local 15 in accordance
with the terms of the agreement." Archambault and Mastro re-
mained outside the'plant, and discussed the situation with the other
upholsterers as. they arrived. A group of them, including Feather,
Chait, and Mueller, advanced toward the entrance, but were halted
by Yost, who told them flatly that they could not go to work unless
they signed the "reaffiliation" cards. They refused to sign the cards:
At this time, and during most or all of the time between 7 and 8: 30
a. in., there was an unusual concentration of men standing on the
short stairway leading up to the entrance to the plant. Included in
this group from time to time were, among others, George ("Bud")
Mason, Jr., son of Frank Mason;.A. E. Johnson, a salesman employed
by respondent; Frank Baylis, office employee; Curtis C. Anderson,
superintendent of the mill ; Cuevas, Hennes, and Roalden, the mem-
bers of the shop committee of Local 1561 at the plant; Legatt, Eche-
veste, and Sagna, employees of the respondent; and officials of Local
15 and Local 1561. The non-upholstering employees were permitted
to pass through without hindrance as they reported for work between
7: 15 and 7: 30 a. in. Senteno, one of the upholsterers, testified that
when he arrived at the plant he started up the steps, but an A. F. of
L. official stopped him and said he could not go in unless he had an
A. F. of L. card.
About 7:30 a. in. the upholsterers determined to report their diffi-
culties to Local 576. They came upon Garcia, business agent, and
Marsh, a representative of Local 576, a short distance from the plant.
199549-39-vol. 15-21
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leaving the employees, Garcia and Marsh went to the plant, where
they found Frank Mason standing near the steps. Mason had appar-
ently remained in his office prior to this time. Garcia asked Mason
why the upholsterers could not go in to work, and Mason said, "Well,
it seems there is a fight between you two unions and you fellows will
have to get this thing adjusted between yourselves." To Garcia's.
statement that "these people have their jobs here and they are entitled
to them and under all circumstances they should be allowed to go
into work in there . . .", Mason replied, "Well, they can go in if they
want to join the A. F. of L." Yost, who was standing nearby during
this conversation between Garcia and Mason, testified that he "heard
Mr. Mason tell Mr. Garcia that he had nothing to do with this ; that
it was entirely between the two unions, and he said they would have
to thrash it out . . ." At the conclusion of the conversation, Garcia
and Marsh rejoined the upholsterers, and Mason appears to have re-
turned to his office. The above events all took place before 8 a. m.
About this time, a police officer approached Yost and told him that
he and the group of men he had brought with him to the plant must
either start a picket line or leave the neighborhood. Yost chose the
latter alternative. He testified that he "figured there wasn't any
further need of me staying around there. It was evident that Mr.
Mason did not intend to [permit] the C. I. 0. to work."
A few minutes after Garcia's conversation with Frank Mason, all
eight of the upholsterers returned to the plant and again sought to go
in to their work. With Feather in the lead, they started up the steps
to the entrance. According to Feather's testimony, a "plain clothes
man" who previously had told Feather he was a member of the "Red
Squad" stopped him and asked where he was going. When Feather
replied that he had a job in the plant, Johnson, the salesman, threw
up his hands and said that "that didn't mean a thing." Feather testi-
fied that he then proceeded up the steps to the top but was met by
George Mason who stated that he could not enter unless he signed
an A. F. of L. card. He further testified that he then consulted with
Garcia and that the latter spoke with George Mason. Chait testified
that Garcia informed George Mason that the employees were report-
ing for work and that Mason replied that they could not enter the
plant unless they signed A. F. of L. cards. George Mason denied that
he spoke with any employees on March 30 or sought to prevent them
from entering the plant. He conceded that he had talked with Garcia,
but denied that he informed Garcia .that the employees could not
enter the plant unless they signed A. F. of L. cards.
Following the unsuccessful attempts of the upholsterers to enter
the plant, Garcia declared that a "lockout" existed and called for a
picket line which was immediately established. The picketing ap-
MASON MANUFACTURING COMPANY 311
parently continued for 3 days until April 1, 1938, at which time the
respondent applied to the Superior Court of the State of California
in and for the County of Los Angeles for an injunction to restrain
the picketing.
With the exception of Mastro, none of the eight employees in the
respondent's upholstery department who reported to work on the morn-
ing of March 30 made any further attempt thereafter to return to
work. Feather testified that he had not gone back because his return
to work was conditioned on his reaffiliating with the A. F. of L.
Archambault testified that she had no quarrel with the respondent,
"except that we can't get back until we go American Federation of
Labor." Johnson said that his only difference with the respondent
arose from the fact that he was required to join the A. F. of L. in
order to go back to work. Senteno testified that he would like to
have his job back, but would not go back except as a member of the
C. I. 0. unless a majority of his fellow workers reafiliated with the
A. F. of L. Mastro subsequently signed one of the A. F. of L. cards
and was permitted to resume his employment at the respondent's plant.
The other five employees in the upholstery department, namely,
Levin, White, Fisher, Tellez, and Fonceca were not supposed to work
on March 30 and they did not return to the plant thereafter. Tellez
testified that she wished to go back to work, but that she understood
that "they wouldn't let us go in unless we joined the American Federa-
tion of Labor." Fonceca testified that a group of the employees told
her that they were locked out, and that she would go back to work for
the respondent if Mason would permit all the upholsterers to return
as members of the C. L 0. White testified that his fellow employees
told him on March 30 that resumption of work by the employees in
the upholstery department was conditioned upon their joining the
A. F. of L., and that he would not resume his employment so long
as they could not do so also; that he would not go back to work "under
the agreement that he [Frank Mason] wants us to go back to work
under," as indicated by "his actions so far." Levin testified that he
did not go back to work because of a conversation he had with Feather
on the afternoon of March 30, during which Feather told him that
the employees could not go to work unless they joined the A. F. of L.
Fisher testified that his fellow employees told him that they had not
returned to work because they were required to join the A. F. of L. and
that he had not signed an A. F. of L. card and resumed his employ-
ment because he wished to support them in their stand.
At the hearing, Frank Mason stated that as long as his agreement
with Local 15 was in force and effect, he, would employ the upholster-
ers who had been in his employ prior to March 30, 1938, only on the
condition that they became members of the A. F. of L.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, April 4, 1938, the respondent hired five employees,
through Local 15, to work in the upholstery department. Mason
testified that the employees hired that day were sufficient in number
to perform the available work. Subsequently, before the hearing in
this case , the respondent hired several other upholsterers through
Local 15, including Mastro.
All 13 of the upholsterers , except Mastro, Mueller, Johnson, Tellez,
and Fonceca , testified that they had been unemployed since March
30, 1938. The complaint was dismissed as to Mastro and Mueller.
Johnson had secured employment at which he was paid 70 cents per
hour, as against the 85 cents per hour which he earned at the respond-
ent. Tellez was temporarily employed at 70 cents per hour; she had
been paid 75 cents per hour by the respondent . It was stipulated
that Fonceca, if called, would testify substantially the same as had
the other upholsterers.
Following a hearing in April 1938 before the Superior Court of
the State of California in and for the County of Los Angeles upon
the respondent 's application for an order restraining picketing of its
plant by Local 576 and certain named individuals , W. Turney Fox,
Judge, handed down on July 26, 1938 ,,an order making permanent
until August 31, 1938, a temporary restraining order theretofore
issued, prohibiting picketing of the respondent 's plant.
B. The discrimination in regard to hire and tenure of employment
The complaint , as amended at the hearing , alleges that the respond-
ent has discriminated with regard to the hire and tenure of 11 em-
ployees in its upholstery department by discharging and locking out
said employees on or about March 30, 1938 , and thereafter refusing
to reinstate them , for the reason that they joined and assisted Local
576 and engaged in concerted activities for the purpose of collective
bargaining and other mutual aid and protection. The respondent
denies that it discharged or locked out said employees and asserts
that any acts by which any such employees were prevented from com-
ing to or continuing their work were committed by persons over whom
the respondent had no control or direction . It further contends that
none of the said employees were eligible for employment by the
respondent on March 30 , 1938, because they had ceased to be mem-
bers of Local 15, with which organization the respondent had a con-
tract requiring it to employ in its upholstery -department only mem-
bers in good standing in Local 15. We shall first consider the latter
contention of the respondent.
The contract upon which the respondent relies is one allegedly en-
tered into in September or October 1937 and to be in force or effect
from October 1, 1937, until August 1, 1938, and annually thereafter
I
MASON MANUFACTURING COMPANY 313
unless a notice of change in terms or termination was given by either
party prior to July 1 of any year . In its answer , the respondent
alleges that such a contract was made and entered into by the respond-
ent, the Central Labor Council of Los Angeles, for and on behalf of
its members , and Local 15, and that the contract contained a provision
wherein the respondent agreed to employ in its upholstery department
none but members in good standing in Local 15.
We have set forth'in detail . above the facts relative to the negotia-
tions which took place between the respondent and Local 15 during
September and October 1937. There is no evidence that any negotia-
tions were carried on by the respondent with a view toward inclusion
of the Los Angeles Central Labor Council as a party to any contract
with the respondent at any time prior to March 1938 . We have noted
that during this period Local 15 submitted to the respondent two
proposed contracts . The second proposed contract , drafted for signa-
ture by the respondent and Local 15, was for a term from October 1,
1937, until August 1, 1938, and from year to year thereafter in the
absence of notice given by either party on or before July 1 of any
year. Mason, the respondent 's president , testified that he signed the
proposed contract and his testimony is to the effect that such signing
took place about October 18 , 1937. The proposed contract was,
however, never signed by Local 15 . It is clear that any agreement
made during September or October 1937 was an oral agreement rather
than a written agreement . The contentions made by the respondent
in its exceptions to the Intermediate Report of the Trial Examiner are
predicated upon the existence of an oral agreement , allegedly entered
into about October 1937 and embodying substantially the terms set
forth in the second proposed contract submitted to the respondent
by Local 15.
When Westfall submitted to Mason a proposed contract about the
middle of October 1937 , the parties clearly were negotiating with
respect to a written rather than an oral agreement . Mason was un-
willing at that time to sign the proposed contract because of the wage
scale set forth therein and because he desired to ascertain what action
the League was taking on the agreement which Local 15 had sub-
mitted to it. Thereafter, as we have noted , the members of the shop
committee of Local 15 on October 18, 1937, conferred and reached an
agreement with respect to the wage scale . However, there was no
discussion at the time relative to any other agreement . Indeed, the
evidence indicates that even as to the wage scale the parties contem-
plated its submission to the executive board or membership of Local
15 for approval and the incorporation of such wage scale , if so ap-
proved, in a signed agreement which would also include provisions
as to other terms and conditions of employment. The evidence does
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not establish that the wage scale was ever approved by Local 15 or
its executive board. That at the time of the October 18 conference,
the parties still contemplated a written rather than an oral agreement
is shown by the fact that several days thereafter, Feather, a member
of the shop committee, asked Mason about the proposed contract which
Westfall had left with him and Mason's reply to the effect that he
was not ready to turn over the agreement to Local 15. We have noted
above Mason's testimony to the effect that several days after October
18, he signed the proposed agreement and put it in his desk drawer.
He did not, however, so notify Local 15 or the respondent's employees
and the agreement was at no time signed by Local 15. Any signing
of the proposed agreement by Mason did not therefore give rise to a
written agreement and is of little significance in determining the ex-
istence of an oral agreement. If an oral agreement was entered into
by the respondent and Local 15, the employees affected thereby would
almost certainly have had knowledge of such fact. Although a few
of the employees testified to the effect that they understood that an
agreement had been reached, most of the employees testified that they
had no knowledge of any written or oral agreement.
It is also significant in connection with the respondent's conten-
tion as to an oral agreement that when Yost and Power, acting on
behalf of Local 15, asked Mason about the middle of March 1938
what action had been taken with regard to the contract which West-
fall had left with him in October 1937, Mason, although expressing
his willingness to abide by the agreement, stated that "the union
ought to have some responsibility" and asked Yost and Power to
sign the document which Westfall had left with him. Mason's state-
ment that "the union ought to have some responsibility" is clearly
inconsistent with the existence of a then binding agreement. Al-
though Westfall's letter of February 1938 to the respondent stating
that the former members of Local 15 had affiliated themselves with
Local 576 and that "the agreement as existed between you and Local
15 will now continue in full force and effect between you" and Local
576, and Mason's testimony that Westfall informed him that "the
men in my factory had taken the contract with them and gone over
to the C. I. 0.," lend some support to the respondent's contention
that an oral contract existed, the other facts set forth above strongly
militate against such conclusion. Moreover, the fact that letters
similar in content to that which Westfall sent to the respondent were
sent to all other manufacturers in the Los Angeles area is indicative
that Westfall was primarily interested in safeguarding any legal
rights which Local 576 might have had.
In view of the entire record, we find that the respondent did not
enter into any oral agreement in the fall of 1937 or thereafter. We
MASON MANUFACTURING COMPANY 315
further find that there is no merit in the contention of Local 15,
.advanced at the oral argument before the Board, that the finding
.of the Superior Court of California in and for the County of Los
Angeles that the respondent and Local 15 entered into a valid closed-
:shop agreement in the fall of 1937, extending to August 31, 1938, "is
binding and conclusive on this Board, and precludes the right of this
Board to inquire into the question of whether or not the contract
•ever came into existence." As noted above, the Superior Court on
.July 26, 1938, made permanent until August 31, 1938, a temporary
restraining order theretofore issued, enjoining Local 576 and others
from picketing the respondent's plant. The order was based ' on a
finding that no labor dispute existed between the respondent and its
employees because the respondent and Local 15 had entered into a
valid closed-shop agreement in the fall of 1937 to extend until
August 31, 1938. It involves, however, no departure from the
-established law on the conclusiveness of judgments to hold that the
respondent may not avoid its obligation under the terms of the
National Labor Relations Act and nullify the rights of employees
guaranteed by Congress through reliance on a decree or findings
made in a private suit to which the Board was not a party.' The Act
embodies a public policy of national concern and is the supreme
law of the land on the subject matter covered by it. It empowers
the Board to prevent any unfair labor practices affecting commerce
and expressly provides that "this power shall be exclusive..." 7
Review of the Board's Orders is vested in the appropriate Circuit
Court of Appeals; the Act expressly declares that the jurisdiction
of that Court "shall be exclusive, and its judgment and decree shall
be final," subject only to review by the Supreme Court of the United
States by certiorari or certification.a
We have noted above that about March 23,1938, Mason on behalf
of the respondent and' Buzzell on behalf of the Los Angeles Central
Labor Council signed a document entitled "agreement" which Yost
on behalf of Local 15 signed as underwriter, and that Mason on
behalf of the respondent and Yost on behalf of Local 15 signed an
attached document which differed only slightly from the proposed
agreement which Westfall submitted to Mason in October 1937. The
document entitled "agreement" provided that the respondent should
"employ none but members in good standing of one or the other
.of the two affiliated unions (Local 15 and Local 1561), as the type
of employment may determine"; the attached document provided
that the respondent recognized Local 15 as the "sole bargaining agency
B See Matter of National Electric Products Corporation and United Electrical and
dtadio Workers of America, Local No. 609, 3 N. L. R. B. 475.
4 Section 10 (a) of the Act.
8 Section 10 ( e) and (f) of the Act.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for its members in all the upholstery departments," that "all press
ent employees and all employees hired in the future who have
worked one week or more and who have become members of the
union are steady employees" and that "all work shall be divided
among all steady employees as nearly equally as possible, regardless of
seniority, in order to avoid discrimination." The respondent and
Local 15 assert that the parties in signing the aforesaid docu-
ments intended them merely as written memoranda of an oral agree-
ment reached in October 1937 and did not consider the documents as
in themselves constituting any contract or contracts. Inasmuch as
we have found that no oral agreement was made in October 1937, the
documents cannot be considered as written memoranda of an oral
agreement. The documents may not, however, be considered as
affording a justification for the discharge of any employees in the
upholstery department. Indeed, the respondent and Local • 15 do
not so contend, and assert, as we have noted, that the documents
were never intended in themselves to have any binding force and
effect. Moreover, the documents, even if considered as agreements,
do not come within the proviso of Section 8 (3) of the Act. The
proviso states that "nothing in this Act .:. shall preclude an em-
ployer from making an agreement with a labor organization . . . to
require as a condition of employment membership therein, if such
labor organization is the representative of the employees as provided
in Section 9 (a), in the appropriate collective bargaining unit cov-
ered by such agreement when made." It is not clear what unit was
set up by the documents. If the unit covered by the documents be
deemed to consist of all the employees of the respondent, it cannot
be deemed appropriate where, as here, the past bargaining history
as regards the upholstery employees was on a craft basis and a ma-
jority of the upholstery employees did not at the time the documents
were signed desire to be represented by any party thereto. If the
documents be deemed to cover a separate unit composed of the up-
holstery employees, the terms of the proviso are not met since all
such employees were members of Local 576 on and after January 25,
1938, and, consequently, no labor organization party to the agreement
represented a majority of the employees in such unit when the docu-
ments were signed.
Having found to be without merit the respondent's contention
that the employees allegedly discriminatorily discharged were not
eligible to employment by the respondent because the respondent had
a contract requiring it to employ in its upholstery department only
members in good standing in Local 15, we shall now consider the
contention of the respondent that any acts by which any of the per-
sons in question were prevented from coming to or continuing their
MASON MANUFACTURING COMPANY 317
work were committed by persons over whom the respondent had no
control or direction.
The respondent had advised both its employees in the upholstery
-department and their representatives on March 23 and 28, 1938, that
it considered itself under contract to employ only members of Local
-15 in the upholstery department. Although forewarned of Local
15's intention on March 30, 1938, to "keep the C. I. O. employees out
.of the factory," the respondent made no effort to dissuade Local 15
or to assure the employees that it would provide them with employ-
ment regardless of their choice of labor organizations. To the em-
ployees, confronted at the entrance to the plant on the morning of
March 30 by the statements of A. F. of L. representatives that they
'could not go to work unless they signed A. F. of L. cards, the re-
spondent's failure to intervene was persuasive that the A. F. of L.
representatives were acting with the respondent's knowledge, as was
the case, and that the respondent, at Local 15's insistence, intended
to comply with the demand of Local 15 that only members of Local
.15 be employed. This conclusion, aided by the proximity of Frank
'Mason's office to the plant entrance and by the presence in front of
-the plant of persons more or less identified with the management-
-including Bud Mason, son of Frank Mason, Anderson, superintendent
.of the mill, Johnson, salesman, and Baylis, office employee-was con-
firmed by the conversation in front of the plant between Frank
-Mason, president of the, respondent, and Garcia, business agent of
Local 576, in the course of which Mason, while professing himself
-to be neutral in the dispute, stated that the employees could "go in
if they want to join the A. F. of L." As Yost, business agent of
-Local 15, testified, "It was evident that Mr. Mason did not intend
-to [permit] the C. 1.0. to work." All the employees in the uphol-
•stery department, including the five who did not come to the plant
-on the morning of March 30, correctly understood from what they
witnessed or learned from others that, unless they became members
:of Local 15, application to the respondent for resumption of their
work after March 30, 1938, would be useless.
The respondent could have been under no illusion that the failure
-of the employees to report for work after March 30, and their picket-
ing of the plant, with the support of Local 576, on March 30 and
31 and April 1, was due to any cause other than their justified belief
that the respondent, in accordance with its asserted contract, would
not permit them to return to work so long as they were not members
-of Local 15. Instead of opening the way to resumption of their
employment and cessation of picketing by advising the employees
that it did not require them to be members of Local 15, the re-,
spondent turned to the courts for an injunction against the picketing,
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired new employees, and, through its president, announced at the
hearing before the Board that the old employees would not be per-
mitted to return to work prior to the expiration of its alleged con-
tract with Local 15 unless they belonged to the A. F. of L.
By its conduct, the respondent vested authority in Local 15 to
represent to the employees in the upholstery department on March
30, 1938, that membership in Local 15 was an effective condition
of their employment, ratified and approved the representations after
they were made, and foreclosed itself from now asserting that it
was not responsible for those representations.9 That the respondent
did not expressly discharge the employees because they were not
members of Local 15 is not controlling in determining whether dis-
crimination occurred. To condition employment unlawfully upon
membership in a particular union, to the necessary exclusion of other
labor organizations, is equivalent to an outright discharge of those
employees who refuse to accept the condition.'°
We find that the respondent on March 30, 1938, discriminated
in regard to the hire and tenure of employment of Hazel Fonceca,
William C. Fisher, Arthur E. Feather, Winona Chait, Rosalie Arch-
ambault, Lupe Tellez, Joe Leon, Russell White, Lowell E. Johnson,
Jacob Levin, and Manuel Senteno, thereby encouraging membership
in Local 15 and discouraging membership in any other labor organi-
zation, including Local 576, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
C. Other interference, restraint, and coercion
The complaint alleged that the respondent urged, persuaded, and
warned its employees to refrain from remaining members of Local
576, and threatened them with discharge if they became or remained
members thereof. We find that on March 23, 1938, Mason showed
to employees in the upholstery department a letter from Local 15
referring to a written agreement which required the respondent to
employ only members of Local 15, and assured them that the re-
spondent had a signed agreement with Local 15; that on March 28,
1938, in the presence of two employees and two representatives of
s See Matter of The Grace Company and United Garment Workers of America , etc., 7
N. L. R. B. 766; Matter of Washington Manufacturing Company and Amalgamated Cloth-
ing Workers of America , 4 N. L. R. B. 970, 1042 ; Matter of Trenton Garment Company
and International Ladies' Garment Workers Union, etc., 4 N. L. R. , B. 1186 , 1193; Matter
of J. Gr •eenebaun Tanning Company and National Leather Workers Association, Local No.
43, etc., 11 N. L. R. B. 300.
10Matter of Atlas Mills, Inc. and Textile Workers Union, etc., 3 N. L. R. B. 10, 17,
Matter of Highway Trailer Company and United Automobile Workers of America, etc.,,
3 N. L. R. B. 591 , 611 ; Matter of Mt. Vernon Car Manufacturing Company, a corpora-
tion and Local Lodge No. 17 ,;6, Amalgamated Association of Iron, Steel ci Tin Workers of
North America, etc., 11 N. L. R. B. 500.
MASON MANUFACTURING COMPANY 319
Local 576, Mason displayed the letter from Local 15 and the docu-
ment he had signed earlier in the month, and stated that he had an
agreement requiring him to employ only members of Local 15; that
on March 30, 1938, Mason, upon being asked by Local 576's business
agent why the employees could not enter the respondent's plant, stated
that "they can go in if they want to join the A. F. of L."
We find that, by the above acts, the respondent has interfered
with, restrained, and coerced its employees in the exercise of thei
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described 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.
V. THE REMEDY
Having found that the respondent has engaged-in and is engaging
in unfair labor practices, we will order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act and to restore as nearly as possible the condition
which existed prior to the commission of the unfair labor practice.
We have found that the respondent on March 30, 1938, discrim-
inated in regard to the hire and tenure of employment of Hazel
Fonceca, William C. Fisher, Arthur E. Feather, Winona Chait,
Rosalie Archambault, Lupe. Tellez, Joe Leon, Russell White, Lowell
E. Johnson, Jacob Levin, and Manuel Senteno. We shall order the
respondent to offer to said persons reinstatement to their former or
substantially equivalent positions,. without prejudice to their
seniority and other rights and privileges. We shall also order the
respondent to make said persons whole for any loss of pay they have
suffered by reason of the discrimination against them, by payment
to each of them of a sum of money equal to the amount he normally
would have earned as wages from the date of the discrimination on
March 30, 1938, to the date on which the respondent offers him rein-
statement, less his net earnings 11 during said period.
"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. Monies re-
ceived for work performed upon Federal , State, county . municlual . or other work -relief
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. United Furniture Workers' of America, Local No. 576, affiliated
with the Committee for Industrial Organization, and Upholsterers,
Furniture, Carpet, Linoleum & Awning Workers' International
Union of North America, Local No. 15, affiliated with the American
Federation of Labor,' are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Hazel Fonceca, William C. Fisher, Arthur E. Feather,
Winona Chait, Rosalie Archambault, Lupe Tellez, Joe Leon, Russell
White, Lowell E. Johnson, Jacob Levin, and Manuel Senteno, thereby
encouraging membership in Upholsterers, Furniture, Carpet, Lino-
leum & Awning Workers' International Union of North America,
Local No. 15, affiliated with the American Federation of Labor, and
discouraging membership in any other labor organization, including
United Furniture Workers of America, Local No. 576, affiliated with
the Committee for Industrial Organization, the respondent has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its 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.
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, A%ason Manufacturing Company, Los Angeles, Cali-
fornia, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Upholsterers, Furniture, Carpet,
Linoleum & Awning Workers' International Union of North Amer-
ica, Local No. 15, affiliated with the American. Federation of Labor,
or any other labor organization of its employees, or discouraging
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 govern-
ment or governments which supplied the funds for said work-relief projects.
•MASON MANUFACTURING COMPANY 321
membership in United Furniture Workers of America, Local No. 576,
affiliated with the Committee for Industrial Organization, or any
other labor organization of its employees, by discriminating in re-
gard to hire or tenure of employment, or any other term or condition
of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to.engage in concerted activi-
ties for the purpose of collective bargaining and other mutual aid or
protection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer immediate reinstatement to Hazel Fonceca, William C.
Fisher, Arthur E. Feather, Winona Chait, Rosalie Archambault, Lupe
Tellez, Joe Leon, Russell White, Lowell E. Johnson, Jacob Levin, and
Manuel Senteno, to their former or substantially equivalent positions,
without prejudice to their seniority or other rights or privileges;
(b) Make whole the persons named above for any loss of pay they
have suffered by reason of the respondent's discrimination against
them, by payment to each of them of a sum of money equal to the
amount he normally would have earned as wages from March 30, 1938,
to the date on which the respondent offers him reinstatement, less his
net earnings during said period; deducting, however, from the amount
otherwise due to each of the said employees, monies received by him
during said period for work performed upon Federal, State, county,
municipal, or other work-relief projects, and pay 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) Post immediately notices to its employees in conspicuous places
throughout its plant, and maintain such notices for a period of at least
sixty (60) consecutive days from the date of posting, stating that the
respondent will cease and desist in the manner aforesaid, and that it
will take the affirmative action set forth in 2 (a) and (b) of this.
Order;
(d) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
M. WILLIAM. M. LEisERsoN took no part in the consideration of the
above Decision and Order.