Chicago Master Mattress and Furniture Co.

National Labor Relations Board - Board Decisions

Apr 24, 1972

196 N.L.R.B. 579 (N.L.R.B. 1972)

CHICAGO MASTER MATTRESS CO.
James Hoomaian d/b/a Chicago Master Mattress and
Furniture Company and Local 365, Central States
Joint Board, Amalgamated Clothing Workers of
America, AFL-CIO. Case 7-CA-8788
April 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
KENNEDY
On December 23, 1971,' Trial Examiner Lloyd S.
Greenidge issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent, Charging Party,
and General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions' and to adopt his
recommended Order,4 as modified herein.
The Trial Examiner found, and the record reveals,
that on June 21 James Hoomaian saw Michael Smith
picketing alone; rushed up and rebuked him for en-
gaging in this activity, which Hoomaian apparently
regarded as a betrayal of confidence; and thereupon
discharged him for that activity. The Trial Examiner
further concluded, however, that Hoomaian rescind-
ed the discharge. Both the General Counsel and the
Union assert that the record does not support this
factual finding. We find merit in these exceptions. The
only testimony concerning the alleged rescission re-
fers to a conversation between Michael Smith and
Hoomaian, in which the speaker said that "your place
is in the store and our place is on the street. You belong
in the store." (Emphasis supplied.) The Trial Examin-
er found that the speaker was Hoomaian, and that the
words "your place is in the store" evidence an intent
to rescind the discharge. But both the remarks them-
selves and the context militate against this conclusion.
The speaker is said to have addressed the person spo-
ken to as "Jim." Surely Hoomaian would not have
addressed Michael Smith as "Jim." Nor would he say
that his own (Respondent's) place was "on the street."
It thus seems clear to us that the words were those of
Smith, not Hoomaian, which, of course, leaves the
record devoid of any evidence that the discharge was
rescinded.
We therefore find that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Michael
Smith for engaging in protected union activity. Ac-
579
cordingly, we shall order that the Respondent cease
and desist therefrom and, since Smith was on strike at
the time of his discharge, offer him reinstatement
upon application, as set forth in our Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified herein and
orders that Respondent, James Hoomaian d/b/a Chi-
cago Master Mattress and Furniture Company, his
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order,
as herein modified:
1. Insert the following as paragraph 2(c), and relet-
ter the present paragraph 2(c) and subsequent para-
graphs accordingly:
"(c) Upon their application offer to its striking em-
ployees, including Michael Smith, reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any employees
hired to replace striking employees, and make each of
them whole in the manner set forth in `The Remedy'
section of the Trial Examiner's Decision, for any loss
of earnings suffered as a result of the failure to rein-
state him within 5 days after the application to return
to work."
2. Substitute the attached notice for the Trial
Examiner's notice.
1 All dates hereinafter refer to 1971.
2 In adopting the Trial Examiner 's Decision , we note the following inad-
vertent errors which do not affect our conclusions herein. The record reveals
that Bernard Firestone spoke to James Hoomaian on June 18 rather than
June 19 , and that the picket line assault on Michael Smith by James Hoomai-
an took place in July 1971 rather than on June 21.
3 We need not pass upon the General Counsel's contention that
Respondent's refusal to lend money to employees Harrison Sumpter and
Michael Smith constituted violation of Section 8(a)(1) additional to those
found by the Trial Examiner, since, in any event, this finding would be
merely cumulative and would not affect our Order herein.
° Although the Trial Examiner found the June 19 strike to be an unfair
labor practice strike, he did not order that all striking employees be reinstated
upon an unconditional offer to return to work We shall amend his recom-
mended Order accordingly
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Henry Kelly and Harrison
Sumpter immediate and full reinstatement to
196 NLRB No. 99
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and WE WILL make each of them whole
for any loss of earnings he may have suffered as
a result of our discrimination against him.
WE WILL upon their application offer to our
striking employees, including Michael Smith, re-
instatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, dismiss-
ing, if necessary, any employees hired to replace
striking employees, and WE WILL make each em-
ployee whole for any loss of earnings suffered as
a result of our failure to reinstate the employee
within 5 days after his application to return to
work.
WE WILL NOT coercively interrogate our em-
ployees concerning their own and other employ-
ees' union activities and sympathies.
WE WILL NOT threaten our employees with dis-
charge because of their activities on behalf of
Local 365, Central States Joint Board, Amalgam-
ated Clothing Workers of America, AFL-CIO,
or any other labor organization.
WE WILL NOT threaten our employees that if
they joined or continued to belong to the Union
they would jeopardize their jobs and it might
result in the shutdown of our Highland Park
plants.
WE WILL NOT refuse to grant our employees
loans because of their support of the Union.
WE WILL NOT poll our employees privately
about their union sympathies.
WE WILL NOT poll our employees without giving
them assurances against reprisal.
WE WILL NOT tell employees engaged in protect-
ed concerted activity that they would not be per-
mitted to return to work.
WE WILL NOT verbally abuse employees en-
gaged in protected concerted activity by casting
racial slurs at them, and WE WILL NOT physically
assault employees while they are so engaged.
WE WILL NOT discharge or otherwise discrim-
inate against employees in regard to hire or te-
nure of employment or any other condition of
employment for engaging in concerted activity
protected by Section 7 of the Act.
WE WILL NOT discourage membership in the
Union or any other labor organization of our
employees by discharging or otherwise discrim-
inating against them in regard to hire, tenure, or
any other condition of employment.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their right to join or assist a union, to
bargain collectively through representatives of
their own choosing, and to engage in other con-
certed activities for the purposes of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization.
Dated By
JAMES HOOMAIAN d/b/a
CHICAGO MASTER MATTRESS
AND FURNITURE COMPANY
(Employer)
(Representative) (Title)
We will notify immediately Henry Kelly and Harri-
son Sumpter, if presently serving in the Armed Forces
of the United States, of their right to full rein-
statement, upon application after discharge from the
Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone 313-
226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE , Trial Examiner: This proceeding
was heard before me at Detroit, Michigan, on October 28
and 29, 1971,1 on the complaint of the General Counsel,
issued August 10, 1971,2 as amended at the hearing ; and the
answer of James Hoomaian d/b/a Chicago Master Mat-
tress and Furniture Company, herein called the Respondent
or the Employer. The complaint alleges violations of Sec-
tions 8(a)(3) and (1) and 2(6) and (7) of the National Labor
Relations Act, as amended, herein called the Act. A brief
was received from the Respondent but neither the General
Counsel nor the Union filed a brief.
Upon the entire record,3 and from my observation of the
demeanor of the witnesses, and after due consideration of
The complaint is based on original and amended charges filed by Local
365, Central States Joint Board , Amalgamated Clothing Workers of Amen-
ca, AFL-CIO, herein called the Union, on June 21 and August 2, 1971,
respectively, copies of which were duly served on the Respondent by reg-
istered mail on June 22 and August 3, 1971.
2 Unless otherwise noted , all dates mentioned herein refer to 1971.
3 The transcript is hereby corrected.
CHICAGO MASTER MATTRESS CO.
the brief filed by the Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
It is undisputed that the Respondent is an individual
proprietorship of James Hoomaian, doing business under
the trade name and style of Chicago Master Mattress and
Furniture Company. The Respondent, for sometime ast,
has maintained its principal office and plant at 13324
Woodward Avenue ° and another plant at 14006 Hamilton
Avenue, both in Highland Park, Michigan, where it had
engaged in the manufacture, sale, and distribution of mat-
tresses, furniture, and related products. In the conduct of its
business during the calendar year ending December 31,
1970, the Respondent realized gross revenue in excess of
$500,000. During the same period, the Respondent, in the
course of its business , purchased and received goods and
materials valued in excess of $50,000 transported directly to
the said plants from sources located outside the State of
Michigan.
It is therefore found, upon the basis of the foregoing and
upon the entire record , that, at all times material, Respon-
dent has been an employer engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 365, Central States Joint Board, Amalgamated
Clothing Workers of America, AFL-CIO , is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The principal issues raised by the complaint and answer,
and litigated at the hearing , are whether the Respondent: (1)
engaged in conduct constituting interference , restraint, and
coercion , violative of Section 9(a)(1) of the Act, by James
Hoomaian (a) on or about June 11 , warning an employee
not to sign a card for the Union and threatening to dis-
charge employees if they engaged in activity on behalf of the
Union ; or (b) on or about June 16 , contrary to prior prac-
tice, refusing to make a loan to an employee and threatening
employees that no loans will be granted because of their
activities on behalf of the Union ; or (c) at various times
between April 30 and June 18 interrogating employees con-
cerning their own and other employees union membership,
sympathies, or activities ; or (d) on or about June 18 threat-
ening to close its plants if the Union became the collective-
bargaining representative of the employees , polling employ-
ees concerning their union membership and sympathies,
threatening employees by first announcing that they were
discharged then rescinding the announcement without giv
ing assurances that the employees were not to be subse-
quently discharged ; or (f) on or about June 21 directing
verbal abuse at and assaulting an employee while he was
picketing Respondent's Woodward Avenue plant on behalf
of the Union and in protest against the alleged discriminato-
ry discharge of other employees; or (2) whether the dis-
charge of Henry Kelly, Harrison Sumpter , and Roger B.
Deshazor on June 18 and Michael Smith on June 21, and
the Respondent's failure and refusal thereafter to reinstate
4 The facility with which we are primarily concerned.
581
them, was discriminatorily motivated and thus violative of
Section 8 (a)(3) and (1) of the Act. Respondent, by answer,
denied the commission of any unfair labor practice.
B. Prologue
The testimony of witnesses on both sides is confused and
unclear relative to the inception and extent of union activi-
ties among the employees and, more particularly, relative to
the dates of many material events . However, from doc-
umentary proof and credited testimony the story of the
emergence of the Union 's effort appears as related below.
A petition for an election in Case ?-RC -10654 was filed
by the Union on June 21, reflecting an estimated total num-
ber of employees in the unit as 15 . It was followed by a
Stipulation for Certification Upon Consent Election en-
tered into by the Employer and the Union on August 25,
and then by an election on September 23. A tally of ballots
shows that of approximately 16 eligible voters , 7 cast ballots
for the Union, 3 against, and 6 were challenged . A revised
tally of ballots distributes the challenged ballots evenly be-
tween proponents and opponents of the Union.
Over a period of 2 or 3 years , the Union has made a
number of abortive attempts at organizing the Respondent's
employees. The alleged discharge of Kelly , Sumpter, Desha-
zor, and Smith occurred in the context of a renewed effort
by the Union, initiated in late May 1971, to become the
exclusive bargaining representative of the employees. About
that time , organizers approached employees at the plants
and requested that they sign union authorization cards. Kel-
ly, Sumpter , and Smith signed such cards on June 10, 11,
and 14, respective ly. Deciding that the time was ripe to
present a demand for recognition , Bernard Firestone, Re-
gional Counsel for the Union , advised the Respondent, by
letter dated June 15, that a majority of its employees had
selected the Union as their bargaining agent and requested
a meeting to demonstrate the Union's card majority. On
June 17, the Respondent terminated the employment of
Kelly and Sumpter in each instance allegedly for failure to
meet production standards . The following day Respondent
discharged Deshazor and also polled its employees on the
question of whether they favored a union.
According to the credited account of Firestone, on Sat-
urday June 19, after receiving complaints from Kelly and
Sumpter about their discharge , he initiated two telephone
calls to Hoomaian . In the first, Firestone inquired whether
Hoomaian had received the Union 's letter of June 15 and
whether he had discharged any of the employees. Re-
sponding Hoomaian acknowledged receipt of the letter on
Tune 16 , requested that the meeting be deferred because his
lawyer was out of town , and asserted that he had laid off,
not discharged, a few employees . In the second , Firestone
offered to send Union Agents Robert Lee and Jackie Brown
to meet with Hoomaian.-This time , again according to Fire-
stone , Hoomaian voiced no objections to a meeting but
insisted that it take place at the plant. The demand was
rejected by Firestone for the stated reason that he would not
permit Hoomaian to set the details of a meeting . Firestone
then suggested that employees attend the meeting . Hoomai-
an answered in the negative .5 The same day , June 19, the
Union established picket lines at Respondent 's plants pro-
testing the terminations.
The following Monday , June 21 , Michael Smith joined
5 At one point, Hoomaian testified that the first call was received on June
17, the second on June 18. Later, however, he averred that the Union 's letter
and the first call were received the same day , June 16. In view of the vacilla-
tion and self-contradiction, I do not accept Hoomaian 's testimony with
respect to the dates of the telephones calls.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the pickets at the Woodward Avenue plant . Sometime that
day, Hoomaian told Smith outside the plant that he could
not return to work and, soon thereafter , physically assaulted
him. Picketing continued until the day before the election.
In the interim and about 3 weeks after the commencement
of the picketing , the Hamilton Avenue plant was burned to
the ground and, on or about September 15, the Woodward
Avenue plant suffered a like fate . In this connection, it must
be noted that, at various times between April 1968 and
Christmas 1970, the second floor of the Hamilton Avenue
plant and a two-family house and cottage owned by Hoom-
aian were also destroyed by fire . Except for the cottage
where the loss was attributed to faulty electrical wiring, the
cause, or causes , of such fires has apparently not been de-
termined . Despite the fires , Respondent is still conducting
retail operations at the Woodward Avenue plant on a limit-
ed scale below ground level.
The Respondent's reaction to the organizing efforts of its
employees is best exemplified by testimony of Hoomaian
that Firestone's requests for a meeting were expressed in
"very belligerent tone[s]" which left him (Hoomaian), a for-
mer boxer, "in a state of shock ."6 Shortly after the start of
the renewed campaign and before receipt of the Union's
letter , Hoomaian told Michael Smith , according to credited
and uncontroverted testimony of Smith , that he believed
Kelly and Sumpter were responsible for the campaign and
that he would get rid of them by claiming they were not
producing . While Kelly and Sumpter were suspected of
being the prime movers in the campaign , Hoomaian 's suspi-
cions did not stop with them as he admittedly questioned
practically all of the employees concerning their union in-
terest and activity. These statements and acts must be kept
in mind in determining the basic issues to which I now turn.
C. Interference, Restraint, and
Coercion
The complaint alleges , and the answer denies , that, dur-
ing the period April 30 through June 21 , the Respondent
committed approximately 15 violations of Section 8(a)(1),
many repetitious in nature . I find, and summarize below, a
number of such violations which findings rest for the most
part on undenied testimony. The findings are set forth
chronologically as follows:
On or about June 14 , Hoomaian interrogated "just about
every empployee" as to whether he had signed a card for the
Union . Michael Smith had signed a card but denied having
done so. After this Hoomaian told Smith that he believed
HenryKelly, and Harrison Sumpter were behind the
Union's campaign and declared that he would get rid of
them. Asked how he would accomplish this, Hoomaian ex-
plained he would charge that they were not producing.
It is undisputed that, for the past 2 years, Hoomaian had
made it a practice to grant small loans to employees. Thus,
Sumpter testified that, sometime between November 1969
and March 1971 while he was in prison , Hoomaian had
loaned him $300 and after he returned to work in April 1971
had advanced him another $20. Kelly related that he had
borrowed money from Hoomaian in amounts ranging from
$5 to $10 two or three times a week . On June 16, in accord-
ance with prior practice , Kelly asked Hoomaian for a loan
of $5. In response , Hoomaian told Kelly to get the money
from the Union's shop steward , a nonexisting official.
Near the end of the workday on or about June 17, Hoom-
6 Hoomaian disclaimed any fear of physical harm from a meeting with
representatives of the Union but did not adequately explain why the request
for, and prospect of, such a meeting was shocking to him
aian approached Mark Smith 7 and David Beatty and ad-
vised that he was going to lay them off because of a lack of
work. He then asked if they had signed cards for the Union.
Beatty replied that he had not; Smith acknowledged that he
had but asserted he was not interested in the Union. Then,
turning to Michael Smith , Hoomaian declared "If you will
be responsible for these gentlemen ... they can come to
work tomorrow ." Elaborating Hoomaian stated , according
to the credited account of Michael Smith , that to "be re-
sponsible" meant to see that his brother and Beatty "didn't
sign ... union card[s]."
On or about June 18, Hoomaian told Roger Deshazor
that "they [the employees ] are trying to get a union in here,"
that he could not afford a union^^ and' might have to close
up and go out of business ... .
On or about June 18, Hoomaian queried Charles Dicker-
son, in the presence of George Eldridge , as to who had
started the Union's organizing campaign.
On June 18, Hoomaian asked over the intercommunica-
tion system if "someone wanted a union ?" There was no
response so Hoomaian said "Let 's find out ." He then in-
structed Joseph Stribling , the assistant cutter , to construct
a ballot by stencilling on small pieces of paper the follow-
ing: I am in favor of a Union
I am not in favor of a union
This done , Hoomaian directed Stribling to distribute the
ballots among the employees . After voting , the employees
deposited their ballots in a box Stribling carried . The ballots
were then opened and counted by Hoomaian in the pres-
ence of Dickerson and Eldridge. The latter worked at the
Hamilton Avenue plant but , on the day in question, had
gone to the Woodward Avenue plant to pick up their
checks . It is clear that Dickerson and Eldridge were not
authorized employee observers . According to one account
of Hoomaian, the vote was nine against the Union and two
in favor of the Union . In the end, Hoomaian announced the
results over the intercom and, at the same time, expressed
thanks for employee support of the Employer.8
In addition to the foregoing incidents , there is another
alleged violation of Section 8(a)(1) which is considered be-
low in connection with the alleged discharge of Michael
Smith.
Upon the facts heretofore detailed , I find that Respon-
dent interfered with , restrained , and coerced its employees
in the exercise of their rights guaranteed by Section 7 of the
Act, and thereby violated Section 8(a)(1) of the Act, by the
following conduct of James Hoomaian:
1. The admitted interrogation of employees on or about
June 14, concerning their union activities and the interro ga-
tion of employee Charles Dickerson on June 18 as to who
had started the union campaign. The interrogation was not
for the purpose of ascertaining whether the Respondent was
under a legal duty to deal with the Union , but for the
7 Michael 's brother
6 The findings of fact with regard to the interference allegation are based
on a synthesis of the credited testimony of Michael and Mark Smith, Kelly,
Deshazor, and Beatty , as corroborated in part by admissions of Hoomaian.
Testimony of the latter in conflict with the findings is not credited.
Hoomaian's version of his discussion with one of the Smiths about being
responsible for his brother and Beatty is confusing . Thus, Hoomaian testified
that he instructed Mark , whom he believed was likely to hurt him, to see that
his brother and Beatty did not "horse around " There is no evidence, howev-
er, that any of the employees concerned was being inattentive to his duties
at the time in question Finally, I am convinced from close observation of
the demeanor of Hoomaian that he is a contentious and outspoken individual
who was disposed to express his views and engage in activity in an open,
aggressive , and defiant manner, in the terms found above and disclosed
below.
CHICAGO MASTER MATTRESS CO.
purpose of chilling the efforts of the employees to bargain
through a representative of their own choosing9 That the
employees so regard it is demonstrated by the fact that
employee Michael Smith denied signing a union card al-
though he had theretofore done so and by the further fact
that employee Mark Smith expressed disinterest in the Un-
ion after admitting to Hoomaian that he had signed a union
card.10
2. The threat to Michael Smith on June 14 that em ployees
Henry Kelly and Harrison Sumpter would be discharged
because Hoomaian suspected that they were responsible for
the organizing effort of the Union.
3. The statement to Kelly on June 16 that he (Hoomaian)
would not advance a loan together with the su ggestion that
Kelly apply to the "shop steward " for the loan . By deviating
from its customary employee loan policy , Respondent
sought to retaliate against Kelly for his union activity.ll
4. The announcement to employees Mark Smith and
David Beatty on June 17 that they were laid off , the simulta-
neous inquiry as to whether they had signed cards for the
Union, and finally the rescission of the announcement on
condition that Michael Smith agree to see that his brother
and Beatty did not sign union cards . The announcement
and its rescission were threats to the employees ' job tenure
for engaging in concerted activities protected by the Act.
The interrogation of Mark Smith and Beatty concerning
their union activities was an additional violation of Section
8(a)(1).
5. On June 18, the polling of employees regarding their
union sympathies without conforming to the criteria set
forth in Struksnes Construction Co., 165 NLRB 1062. Thus,
there is no indication in the record of any assurances against
reprisal . Accordingly , in view of the foregoing, the fact that
ballots of the poll were privately tallied by Hoomaian in the
absence of any authorized employee representative and,
considering too the unfair labor practices engaged in by the
Respondent detailed above and below , I find that the poll-
ing of the employees in the circumstances here present inter-
fered with their Section 7 rights in violation of Section
8(a)(1).12
6. The remarks to employee Roger Deshazor that the
employees were trying to organize , that he could not afford
a union and might have to shut down and go out of business.
The Supreme Court has held that an employer "may even
make a prediction as to the precise effects he believes union-
ization will have on his company . In such a case , however,
the prediction must be carefullphrased on the basis of
objective fact to convey an employer 's belief as to de-
monstrably probable consequences beyond his control or to
convey a management decision already arrived at to close
the plant in case of unionization ."13 I am persuaded that the
aforesaid remarks of Hoomaian do not meet this test. To
start with , there was no mention of any actual management
decision to close the plants in the event of unionization.
Secondly , there is no showing that the remarks were predi-
cated upon Respondent 's known inability to meet the
Union's economic demands . In truth , it is apparent that no
wage or other economic proposal had been presented by the
Union . Accordingly , I find that, by these remarks to Desha-
zor, Hoomaian impliedly threatened economic reprisal in
the form of plant closure to be taken solely on Respondent's
9 See Johnnie's Poultry Company, 146 NLRB 770, 775, Blue Flash Express,
Inc. 109 NLRB 591.
Il{ See Bourne Co. v. N.L.R.B, 332 F.2d 47 (C A. 2).
11 See Poughkeepsie Newspapers, Inc., 177 NLRB No. 125.
12 Struksnes Construction Co, Inc., supra; Blue Flash Express, Inc., supra.
13 N.L R.B. v. Gissel Packing Company, Inc., et al., 395 U. S. 575.
volition.14
583
D. Discrimination in Regard to Hire
and Tenure of Employment
1. Roger Deshazor
Deshazor commenced working for the Respondent in
May 1971 as a stockman. His employment was terminated
on June 18.
According to Hoomaian, on or about Friday, June 4,
Deshazor announced that he was leaving to get married and
would not return until about June 14. To this, Hoomaian
said "Fine, go ahead."15 In Deshazor's version he was on the
job during the week of June 7. On June 11, again according
to Deshazor, he told Hoomaian that he would be married
on June 14 or 15 and left about noon that day (June 11) to
purchase some clothing for the occasion. Admittedly, De-
shazor did not inform Hoomaian that he would be absent
from work the following week.16
Deshazor returned to the plant on June 18. First he re-
ported that he did not get married and then declared that
he was ready to go to work. In reply, as already noted,
Hoomaian told Deshazor that the employees were trying to
bring a union into the plants, that he could not afford a
union and might have to close down. This was the only
conversation Deshazor had with Hoomaian with respect to
the Union. Thereafter, Hoomaian advised Deshazor to take
a week off and handed him a check. Across the face of the
check were written the words "final check."
Despite the admission of an unauthorized absence from
June 14 to 17, the General Counsel contends that Deshazor
was discriminatorily discharged when he returned to work
on June 18. Respondent, on the other hand, contends that
Deshazor quit his employment on June 14.
At one point, Deshazor testified that he "joined [the Un-
ion] on the 21st of June," at another that he signed a union
card "the first part of June." The card was not introduced
in evidence and, in view of the apparent contradiction, I
cannot accept Deshazor's naked assertion. Thus, I find no
evidence of union activity prior to the termination. More-
over, assuming Deshazor signed a union card in early June,
the record stands barren of knowledge of Deshazor's union
activity on the part of the Respondent at the time of the
termination. Accordingly, for the reasons set forth above, I
conclude that there is no credible evidence to support a
finding that the Respondent was discriminatorily motivated
in effectuating the termination of Deshazor. I shall there-
fore dismiss the allegations of the complaint related thereto.
2. Henry Kelly
Kelly, at the time of the events in question, had worked
irregularly for the Respondent for about 1 year and 11
months beginning about August 1969. He voluntarily termi-
nated his employment in September 1969 and again in
March 1971. He last returned to work for the Respondent
in April 1971 and continued in its employ until his discharge
on June 17.
Kelly's work location was on the third floor of the Wood-
14 See N.L R B v. Gissel Packing Company, Inc, supra See also James A.
Pearson, et al. d/b/a Crystal Lake Broom Works, 159 NLRB 429, 435, and
cases cited therein.
15 An extract of the time records shows that Deshazor last worked on June
4 for a period of approximately 5 hours.
16 I deem it unnecessary to resolve the conflict in testimony as to whether
the June 14-17 absence was a continuation of an earlier absence beginning
June 7 because, considering the evidence in the posture most favorable to
Deshazor , it is clear that a violation of the Act has not been established.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ward Avenue plant and, during the entire period of his
employment, was assigned the job of building mattresses.
This included covering springs in frames with one or two
layers of cotton, putting covers on, and making borders to
encircle mattresses . Kelly testified that Hoomaian never
complained about his work until about June 14 when he
advised that, unless Kelly made 35 pieces (mattresses) each
day, he (Hoomaian) would have to let him go; and also, for
the first time, instructed Kelly to keep a daily record of his
production on slips supplied by Hoomaian and, pursuant to
set requirements , to indicate thereon the number and type
of mattresses built each day.11 Continuing Kelly related
that, from June 14 to 16, he built on an average of 35 to 45
pieces per day and, in addition, constructed special order
mattresses , cut down springs and mattresses to special sizes,
and loaded and unloaded trucks.
The reports which Kelly and Sumpter made to Respon-
dent , in compliance with Hoomaian 's instructions , disclose
the following regarding mattresses built by them from June
14 to 17:18
Date Employee Units
June 14 Kelly & Sumpter 62
Sumpter 15
June 15 not identified 35
June 16 Kelly 39
Sumpter 24 19
June 17 Kelly 35
Sumpter about 26
Kelly signed a union card on June 10. About 3 : 30 p.m.,
Thursday, June 17 , Kelly and Sumpter were summoned to
the office where Hoomaian first advised Kelly that he was
terminated , paid him to that time and handed him a notice
signed by loomaian which stated:
As we agreed earlier this week that if you could not
meet our production standards , I would have to ternu-
nate your employment with us.
According to our records as we have kept this week
on merchandise which you have built , I am sorry to
terminate your employment with us.
Possibly, at a future date, when I can work out a
different production schedule, I would be glad to dis-
cuss this with you.
In the end , Hoomaian promised to call Kelly within a week
to see if something could be worked out but , as of the date
of the hearing, Kelly had not been recalled.19
On the basis of the findings heretofore made as to
Hoomaian 's threat on June 14 to discharge Kelly and
Sumpter because of a suspicion of union activities claimingg
poor production as an excuse and his statement to Kelly
days later rejecting a loan request and suggesting that Kelly
obtain the money from the Union 's shop steward , I find that
Hoomaian knew or suspected Kelly and Sumpter of union
activities prior to their discharge on June 17. Further, it is
17 As will hereinafter appear Sumpter was also instructed to file like re-
ports . Although not clearly articulated , it appears from Hoomaian's testimo-
ny that Kelly and Sumpter were expected to assemble a total of 70 mattresses
per day.
is See Resp . Exh. 2b through t
19 The above facts are found on credited testimony of Kelly and documen-
tary proof. Hoomaian testified that Kelly's performance did not satisfy his
production requirement but, for reasons already stated and expanded on
below, I do not credit Hoomaian 's testimony.
not without significance that Kelly was terminated a day
before payday. Finally, Respondent's union animus is am-
ply established by the violations of Section 8(a)(1) here-
tofore detailed. With the above evidence the General
Counsel has proved a strong prima facie case of a typical
discriminatory discharge.
Respondent's defense to the allegation is that Kelly was
selected for termination because of a poor production rec-
ord. According to Hoomaian, about June 3, he became
convinced that Kelly and Sumpter were not producing at
acceptable levels and, at that time, notified each that his
employment would be terminated if his performance did
not improve within 2 weeks 20 As stated, Kelly readily con-
ceded receipt of a warning on June 14, for the first time.
Initially, Hoomaian averred that about the time of the
alleged 2-week notice, later changed by Hoomaian to June
12, he began to keep a daily record of the production of
Kelly and Sumpter and that at the end of the period a tally
of information from the records showed that they were still
not producingg. The records were not offered by the Respon-
dent,21 and the failure to do so supports the inference that
such records, if in fact maintained and produced, would not
support the Respondent's case. As the Supreme Court said
in Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226:
The production of weak evidence when strong is avail-
able can lead only to the conclusion that the strong
would have been adverse.
Hoomaian's complaint about Kelly's production is at
odds with other testimony of Hoomaian as he later ac-
knowledged that Kelly had "a small problem" when stock-
boys David Beatty and Mark Smith were not present to
assist him. On such occasions, which were frequent as Beat-
ty and Smith had other duties including those of truckdriver
and janitor, Kelly traversed a distance of from 150 to 200
feet to secure stock for the mattresses he was building and
walked an additional 16 feet to Sumpter's work station to
deliver the mattresses for taping. Hoomaian further con-
tended that not one day did Kelly meet his requirement.
Kelly's production records, offered by the Respondent, be-
lie the contention for they show compliance with the re-
quirement on June 16 and 17, and also indicate that on June
I4 Kelly averaged about 31 pieces. 22 As to June 15, the
identity of the employee or employees concerned is not
revealed. Hoomaian testified that the record for that day
reflects the total production of Kelly and Sumpter which
was 35 pieces. In this regard, Sumpter related, credibly and
without contradiction, that there were no instructions from
Hoomaian to record, and the men did not record many jobs
assigned by Hoomaian during the workday, for example,
construction of baby mattresses and bases for box springs.
It is patent, and I find, that the records maintained by Kelly
and Sumpter are incomplete and thus do not accurately
reveal the total work performance of these employees at
times material.
Hoomaian testified that he began a search for expe-
rienced workers to replace Kelly and Sumpter about the
time he gave each a notice of termination. The search was
consummated shortly thereafter when the Respondent en-
gaged Dennis Terry and one Jesse, a buildup man and taper,
respectively, to work nights temporarily and eventually to
replace Kelly and Sumpter. They were not hired as replace-
ments , however, because they were union men and allegedly
20 In view of the frequency that Hoomaian 's testimony was impeached by
prior inconsistent statements , I do not credit this testimony of Hoomatan.
21 The only records introduced were those maintained by the alleged discri-
minatees . See Resp . Exh. 2 b through I.
22 Dividing the combined total of 62 pieces evenly between Kelly and
Sumpter
CHICAGO MASTER MATTRESS CO.
had refused to cross the picket line, according to Hoomaian.
Hoomaian also recounted that Terry was 'a fly-by-night"
and an "unreliable worker." In view of the concession,
Hoomaian did not explain, and it is difficult to understand,
why he would have considered engaging such a person as
a replacement for an employee who, in his eyes, was also
unreliable insofar as compliance with his production stan-
dards was concerned. Kelly was discharged on Thursday,
June 17, picketing began the following Saturday, yet Terry
was not hired the intervening Friday.
It is clear that the discharge of Kelly was precipitous,
hurried, and summary for the reason that it was made with-
out an actual replacement in sight. Further, there can be no
question that the decision to discharge had its impetus in
some momentous event such as the receipt the day before
of the Union's letter which appeared to confirm
Hoomaian's suspicions about Kelly's role in the resurgence
of the union effort and thus provided an opportunity to
implement the threat of June 14 on the stated pretext of
poor work performance. In the light of Hoomaian's subse-
quent reaction to Firestone's telephonic requests for a meet-
ing, the Union's letter was just such an event as would have
triggered the discharge of Kelly.
In sum, rejecting the defense, I am convinced, and there-
fore find, that the Respondent discharged Henry Kelly be-
cause of his known or suspected membership in and
activities on behalf of the union in violation of Section
8(a)(3) and (1) of the Act. Moreover, assuming the discharge
was based in part on grounds of Kelly's alleged unsatisfac-
tory performance, the result would be the same as I find
further and conclude that the discharge was motivated at
least in substantial part by his union activities.23
3. Harrison Sumpter
Sumpter came to Respondent's employ in 1962 as a
taper, was laid off for 6 months on one occasion , and was
incarcerated from November 1969 to about March 1971. He
returned to work for the Respondent in April 1971 and, at
the time, received a 25-cent-per-hour wage increase.
As shown above, beginning on or about June 14, Hoom-
aian gave Sumpter and Kelly a slip of paper with instruc-
tions to record thereon their work records for the day. The
slips contained notations by Hoomaian as to the number
and types of mattresses the employees were expected to
assemble.
About 3:30 p.m. on June 17 Hoomaian called Sumpter
and Kelly to the office. Following the interview with Kelly,
Sumpter entered and without ceremony Hoomaian handed
him a check, a notice, told him to have fun and shook his
hand. The notice read:
As we have had many problems in the past 3 weeks,
your work has not been up to satisfactory standards.
This past week, according to our record is proof-
positive evidence that you are not fulfilling your obliga-
tion to our Company.
I have advised you last Friday, if this was to contin-
ue, I would have to terminate your employment with
us, and as of this date, your employment is terminated.
Sumpter testified credibly that at no time during his te-
nure with Respondent was his performance ever criticized
and that he was never told prior to the moment of his
discharge that a failure to make 35 pieces per day might lead
to his termination.
23 N.L. R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 355
(C.A. 2), enfg . 133 NLRB 911, cert . denied 373 U.S. 950 ; N.L.R.B. v. Whitin
Machine Works, 204 F.2d 883 (C.A. 1).
585
On June 11, Sumpter signed a card for the Union and, as
previously stated , 3 days later Hoomaian told Michael
Smith that he suspected Sumpter and Kelly of union activi-
ties and threatened to discharge them on the pretext that
their performances was not satisfactory.
I find the discharge of Sum ter was discriminatorily mo-
tivated and thus a violation of Section 8(a)(3) and (1) of the
Act. The facts demonstrate that Sumpter was a participant
in efforts of the Union to organize the plants . That the
Respondent was aware of the union activity among its em-
ployees and attempted to pinpoint those responsible for it
is amply shown by the interrogation of the employees.
Hoomaian's statements to Michael Smith on June 4 illus-
trate that he was satisfied in his own mind that responsibili-
ty for the resurgence of the union effort lay with Sumpter
and Kelly . That conversation with Smith also illustrates that
Hoomaian was determined to take action against them by
way of discharge . Respondent argues , however, that
Sumpter 's work performance was deficient . The argument
here is essentially the same as that presented and considered
above in connection with the discharge of Kelly and, for all
the reasons heretofore detailed , I find it lacking in merit. An
additional contention is made in this instance to which I
now refer.
It is the position of Respondent that Sumpter has never
made 35 pieces per day and , therefore, has always been
vulnerable to discharge . It is true that, except for June 14,
when he averaged approximately 46 units, Sumpter did not
satisfy Hoomaian 's production requirement on any day be-
tween June 14 and 17 . However, the fact which Respondent
now contends led to Sumpter's termination was known to
it from the inception of his employment in 1962 , yet there
was no warning to Sumpter of the impending termination.
Indeed, Hoomaian testified that he "needed the boys" be-
cause "they were good men."
In regard to Sumpter's work record over the years, Hoom-
aian related that , before Sumpter left Respondent 's employ
in November 1969 , he made only 15 pieces per day, and
further that, as late as the spring of 1971, he was satisfied
with Sumpter's production of 15 pieces even though he
knew Sumpter could do better . On these facts, I must find
and conclude that Sumpter's termination was discriminato-
rily motivated , and that the alleged unsatisfactory perfor-
mance was a mere pretext seized upon in an effort to
obscure the true motive . Accordingly , even assuming that in
terminating Sumpter Respondent was, in part, motivated by
valid business or economic considerations , the termination
was nonetheless a violation of Section 8(a)(3) of the Act
because it was motivated at least in substantial part, as I
have found, by Sumpter's union activity.
4. Michael Smith
Smith started to work for the Respondent in 1962 at age
9 as a delivery boy, later as a truckdriver and box spring
maker . During his employment history with the Respondent
he quit at one time for a period of 3 or 4 weeks. As previous-
ly indicated, on June 14, Smith signed a card for the Union
and, the same day, was interrogated by Hoomaian about his
union activity.
On Monday, June 21 , Smith joined the strike at the
Woodward Avenue plant . He was the only picket that day
and the legend on the sign he carried read: 'Chicago Mat-
tress Company has committed unfair labor practices against
Local 365 or "Employees on strike ." Shortly after the com-
mencement of the picketing , Hoomaian approached Smith,
called him a "two-faced bastard," and told him he
"wouldn 't be coming back to work." Smith replied that he
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would apply to the Compensation Board for assistance but
Hoomaian advised that he "would hold that up." Following
the exchange , Smith resumed his picketing activity but
Hoomaian again interrupted this time casting racial slurs
at Smith and demanding that he show him respect . Effec-
tively deterred Smith suspended the picketing and com-
plained to Union Agent Charles Giacalone , who was in the
area . Giacalone agreed to investigate. About this point,
Hoomaian reappeared and, according to Giacalone, first
reminded Smith that he had "treated [him] like a son" or
"brother," and then struck Smith with his left and right
hands knocking him to the ground . After this, Hoomaian
told Smith , again according to Giacalone a witness for the
General Counsel , "Look, your place is in store and our [the
Union] place is out on the street . You belong in the store."
As Smith recalled Hoomaian rushed up and struck him
several blows just about knocking him out 24
On the basis of the foregoing evidence , the General Coun-
sel contends , in substance , that the Respondent , in violation
of Section 8(aX3 ) and (1) of the Act, discharged Sith be-
cause of his protected union and concerted activity and
thereafter refused to reinstate him; and that it directed ver-
bal abuse at and assaulted Smith while he was picketing
Respondent's premises on behalf of the Union and in pro-
test against the unfair labor practices hereinabove found.
The Respondent , on the other hand , contends that the Gen-
eral Counsel failed to prove that Smith was restrained or
coerced for engaging in protected concerted activity urging,
in defense , that he was never discharged.
Having found that the allegations of discrimination
against Henry Kelly and Harrison Sumpter were proved, it
follows that the employees' strike on June 19 in protest to
the discharge was an unfair labor practice strike . Undeni-
ably, such a strike enjoys statutory protection and, as a
consequence , strikers may not be penalized for participating
therein.
It is perfectly clear that Smith's appearance on the picket
line displeased Hoomaian enough to cause him to rush up
to Smith where he rebuked him for engaging in an activity
Hoomaian obviously regarded as betrayal of confidence,
advised that he would not be permitted to return to work,
and threatened to see that Smith was denied assistance by
the Compensation Board . I construe these statements of
Hoomaian to constitute a discharge of Smith and, had the
matter ended there , the Respondent would have committed
still another violation of Section 8(a)(3). However , shortly
thereafter and following the physical assault , Hoomaian
told Smith that his place "is in the store" and that he "be-
long ed ] in the store." Thus , I find that these later remarks
of Hoomaian neutralized his earlier statements as they in-
dicated that Hoomaian had receded from the position taken
when he told Smith that he was discharged. F5
In view of the foregoing , I find that the Respondent did
not discriminatorily discharge Smith. Accordingly, I shall
dismiss the 8(aX3) allegation as to Smith.
Respondent additionally violated Section 8(a)(1), howev-
er, by Hoomaian 's statement to Smith on June 21 that he
would not permit him to return to work ,26 and by his direc-
24 The facts above are found from credited testimony of Snuth and Giacal-
one, not challenged by Hoomaian. Hoomaian is proficient in the art of
fisticuffs but the extent of his proficiency is not altogether clear from the
record as at one point Hoomaian testified that he was a professional, at
another only an amateur.
25 See Kerrigan Iron Works, Inc, 108 NLRB 933, 935 , enfd sub nom.
Shopmen's Local Union No. 733 v. N LR.B., 219 F 2d 874 (C A 6), cert
denied 350 U.S. 835, Crookston Times Printing Company, 125 NLRB 304,317
26 Crookston Times Printing Company, supra, Kerrigan Iron Works, Inc.,
supra
tion of verbal abuse at, and physical assault on, Smith. I so
find and conclude.
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By the following conduct which interfered with, re-
strained, and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act:
(a) Coercively interrogating employees concerning their
own and other employees' union activities and sympathies.
(b) Threatening to discharge employees because of their
activities on behalf of the Union.
(c) Threatening employees that if they joined or contin-
ued to belong to the Union they would jeopardize their jobs
and it might result in the shutdown of the Highland Park
plants.
(d) Denying to employees loans or any other benefits in
reprisal for their union activities.
(e) Polling employees privately about their union sympa-
thies and polling employees without giving them assurances
against reprisal.
(f) Telling employees engaged in protected concerted ac-
tivities that it would not permit them to return to work.
(g) Verbally abusing employees engaged in protected con-
certed activities by casting racial slurs at them and physical-
ly assaulting them while so engaged.
4. By discharging Henry Kelly and Harrison Sumpter on
June 17, 1971, because they engaged in union activity pro-
tected by the Act, Respondent has discriminated in regard
to the hire or tenure of employment of its employees, there-
by discouraging membership in the Union, and is engaging
in unfair labor practices within the meaning of section
8(a)(3) and (1) of the Act.
5. Respondent has not discriminated against Roger De-
shazor or Michael Smith in violation of Section 8(a)(3) and
(1) of the Act, nor has it violated Section 8(a)(1) of the Act
in any respect not found herein.
THE REMEDY
It having been found that the Respondent violated Sec-
tion 8(a)(l) and (3) of the Act, it will be recommended that
it be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. In view of the nature of the violations found herein,
particularly the discriminatory discharges, a potential threat
of future violations exists which warrants a broad cease-
and-desist order.
It has been found that the Respondent discriminatorily
discharged Henry Kelly and Harrison Sumpter. As the rec-
ord indicates that since such discharges Respondent has
substantially curtailed its operations because of the fires in
its plants, it is possible that these employees might have
been terminated even absent any unfair labor practices.
Under these circumstances, it will be recommended that the
Respondent be ordered to offer the above-named employ-
ees immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, dismissing, if necessary, any employ-
CHICAGO MASTER MATTRESS CO.
ees hired since their discharge. If there is not then sufficient
work available for the remaining employees and the two
discriminatees, all available positions shall be distributed
among them in accordance with such nondiscriminatory
practice as Respondent has heretofore followed in effecting
reductions in force for economic or business reasons. The
Respondent shall place those employees, if any, for whom
no employment is available after such distribution on a
preferential hiring list, priority on such list being de-
termined in accordance with such preexisting nondiscrimi-
natory practice , and thereafter offer them reinstatement as
employment becomes available and before other persons
are hired for such work. Respondent should also be directed
to reimburse Kelly and Sumpter for any loss of pay they
may have suffered by reason of the Respondent's discrim-
ination against them, by paying to each of them a sum of
money equal to the amount he would normally have earned
as wages from the date of discharge to the date of
Respondent's offer of reinstatement, less their net earnings
during that period. As it is possible that Kelly or Sumpter
or both might have been terminated in a reduction in force,
even absent any unfair labor practices, this possibility is to
be taken into consideration in determining the amount of
backpay due these employees. Backpay shall be computed
on the basis of the calendar quarters, in accordance with the
method prescribed in F. W. Woolworth Co., 90 NLRB 289,
and interest at the rate of 6 percent per annum shall be
added to net backpay, in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the follpowing:27
ORDER
Respondent, James Hoomaian d/b/a Chicago Master
Mattress and Furniture Company, its officers , agents, suc-
cessors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
own and other employees' union activities and sympathies.
(b) Threatening to discharge employees because of their
activities on behalf of the Union.
(c) Threatening employees that if they joined or contin-
ued to belong to the Union they would jeopardize their jobs
and it might result in the shutdown of the Highland Park
plants.
(d) Denying to employees loans or any other benefits in
reprisal for their union activities.
(e) Polling employees privately about their union sympa-
thies.
(f) Polling employees without giving them assurances
against reprisal.
(g) Telling employees engaged in protected concerted ac-
tivities that it would not permit them to return to work.
(h) Verbally abusing employees engaged in protected
concerted activities by casting racial slurs at them, and
physically assaulting them while so engaged.
27 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
587
(i) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure or any other condition
of employment for engaging in any concerted activity pro-
tected by Section 7 of the Act.
(j) Discouraging membership in Local 356 , Central States
Joint Board , Amalgamated Clothing Workers of America,
AFL-CIO, hereinabove called the Union , or any other la-
bor organization of its employees , by discharging or other-
wise discriminating against employees in regard to hire,
tenure , or any other condition of employment.
(k) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to join
or assist a union , to bargain collectively through representa-
tives of their own choosing , and to engage in other concert-
ed activities for the purposes of collective bargaining or
other mutual aid or protection , or to refrain from any and
all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) In the manner prescribed in the section of this Deci-
sion entitled "The Remedy," offer to Henry Kelly and Har-
rison Sumpter immediate and full reinstatement to their
former jobs or, if those jobs no longer exist , to substantially
equivalent positions , without prejudice to their seniority or
other rights and privileges.
(b) Make whole said employees , in the manner set forth
in the section of this Decision entitled "The Remedy," for
any loss of pay they may have suffered by reason of
Res ondent's discrimination against them.
(c) Notify immediate ly the above-named individuals, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended.
(d) Preserve and, upon request , make available to the
Board and its agents , for examination and copying, all pay-
roll records, social security payment records , timecards, per-
sonnel records and reports, and all other records necessary
in determining the amount due as backpay.
(e) Post at its plants in Highland Park , Michigan , copies
of the attached notice marked "Appendix."28 Copies of said
notice , on forms provided by the Regional Director for
Region 7 , after being duly signed by a representative of the
Respondent , shall be posted by the Respondent immediate-
ly upon receipt thereof and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered , defaced , or cov-
ered by any other material.
(f) Notify the Regional Director , in writing, within 20
days from the receipt of the Decision , what steps the Re-
spondent has taken to comply herewith 29
IT IS FURTHER ORDERED that , excep t for the unfair labor
practices specifically found in the Trial Examiner's Deci-
sion, the complaint be, and the same hereby is, dismissed.
28In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
29 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read. "Notify
the Regional Director for Region 7, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."