Jeno Guttman

National Labor Relations Board - Board Decisions

Jan 9, 1967

162 N.L.R.B. 725 (N.L.R.B. 1967)

JENO GUTTMAN 725
restrain any of the aforesaid employers ; New York Telephone Company; Sears,
Roebuck & Company; Armand Holding Corporation ; Pinnella; Lewin and Hess
Construction Company; Kosmos Construction Corp.; Uman-Parente Corpora-
tion; Instant Whip Co.; or any other employer or person engaged in commerce
or in an industry affecting commerce , where in either case an object theregf is
to force or require New York Telephone Company to assign the telephone
work described below to be performed in the Nassau and part of Suffolk
County area , within the territorial jurisdiction of Local 1104, to electricians
represented by us rather than to the New York Telephone Company's own
employees represented by Communication Workers of America , AFL-CIO, and
its Local 1104 , unless New York Telephone Company is failing to conform to
an order or certification of the Board determining the bargaining representative
for employees performing such work.
The work involved consists of:
(1) Installing and fastening devices and structures designed to hold
and support telephone equipment.
(2) Pulling telephone cables and wires into and within buildings and
structures , and attaching them to interior walls.
(3) Installing and fastening terminal boxes where cables are connected
on to interior walls.
WE WILL NOT engage in , or induce or encourage any individual employed by
DiFazio Electric Co., Inc.; Herkob & Co ., Inc.; Budin Electric Co.; Pappo
Brothers , Inc.; Kassay Brothers , Inc.; or by any other person engaged in com-
merce or in an industry affecting commerce, to engage in , a strike or a refusal
in the course of his employment , to use, manufacture , process, transport, or
otherwise handle or work on any goods, articles, materials , or commodities, or
to perform any services ; or threaten , coerce, or restrain any of the aforesaid
employers ; Sears, Roebuck & Company ; Armand Holding Corporation ; Pinella,
Lewin and Hess Construction Company; Kosmos Construction Corp.; or any
other employer or person engaged in commerce or in an industry affecting
commerce , where in either case an object thereof is to force or require DiFazio
Electric Co ., Inc.; Herkob & Co., Inc.; Budin Electric Co., Inc.; Pappo Broth-
ers, Inc.; and Kassay Brothers , Inc., to cease doing business with any general
building contractor , or other person ; or to force or require the town of Mas-
sapequa; the town of Baldwin ; Sears, Roebuck & Company; Armand Holding
Corporation ; Kosmos Construction Corp .; the city of Long Beach; or any
other person to cease doing business with New York Telephone Company.
LOCAL 25, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 16 Court
Street, Fourth Floor, Brooklyn, New York 11201 , Telephone 596-5386.
Jeno Guttman and District 65, Retail , Wholesale and Department
Store Union , AFL-CIO. Case 2-CA-10815. January 9, 1967
DECISION AND ORDER
On September 27, 1966, Trial Examiner Rosanna A. Blake issued
her Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
162 NLRB No. 62.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a supporting brief.
Respondent did not file exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner, as modified herein.2
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete the first sentence from paragraph 2(a) and substitute
the following :
P (a) Offer Albert McClinton and Daniel James immediate and
full reinstatement to their former or substantially equivalent posi-
tions with all the seniority rights and benefits accumulated as of
October 8, 1965, and offer Charles Bell similar reinstatement rights
as of September 24, 1965, and make them whole, in the manner set
forth in the section of the Trial Examiner's Decision entitled `The
Remedy' for any losses each may have suffered by reason of the dis-
crimination against him...."]
1 No exceptions were filed to the Trial Examiner 's findings and conclusions with respect
to the substantive violations
s Although the Trial Examiner found that employee Charles Bell was terminated on
September 24, 1965, she ordered his reinstatement with backpay as of October 8, 1965,
the date on which employees Albert McClinton and Daniel James were found to have
been discriminatorily discharged However , it is clear from the Trial Examiner ' s findings
that Bell 's termination was also for discriminatory reasons Thus, we shall amend her
Recommended Order in this regard , as well as correct an inadvertent reference therein
to Daniel James as James Dell.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented, was heard before Trial Examiner
Rosanna A. Blake in New York City, New York, on June 8 , 9, 10, 27, and 28,
1966, pursuant to a charge filed on October 27, 1965, and a complaint issued on
December 16, 1965.1 The complaint alleged that Guttman, herein at times called
the Respondent, engaged in conduct which violated Section 8(a)(1), (3), and (5)
of the Act. In his answer, Respondent denied having committed any unfair labor
practice.
1 The long delay between the issuance of the complaint and the hearing was due to the
illness of Respondent 's counsel , Weberman
JENO GUTTMAN 727
All parties were afforded full opportunity to be heard, to present evidence, and
to examine and cross-examine witnesses. They waived oral argument. A brief was
filed by counsel for the General Counsel and a brief was also filed by counsel for
Respondent.
Upon the entire record in the case and from my observation of the demeanor
of the witnesses while testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Jeno Guttman, an individual, is an individual proprietor doing business under
the name J. Guttman in New York City, New York.2 He is engaged in the busi-
ness of collecting, selling, and distributing knitwear scraps and related products.
It is undenied that during the year before the issuance of the complaint, a repre-
sentative period, Guttman sold and distributed to his customers products valued in
excess of $50,000, of which products valued in excess of $50,000 were shipped
from his place of business in interstate commerce to States other than the State
of New York.
In view of the foregoing facts, it is undenied and I find that Respondent is
an employer engaged in commerce within the meaning of Section 2(2), (6). and
(7) of the Act.
It is also undenied and I find that District 65, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Jeno Guttman is a devout member of the Jewish faith and apparently spent some
time in one or more concentration camps before coming to the United States. He
speaks with a heavy accent and it is difficult at times to understand what he is
saying. However, it was clear from Guttman's reaction to some of the testimony
that he understands English quite well and his records, which he keeps himself,
are in English.
Much of the time, Guttman employs only two men but there are times when
he employs three men. At other times, he employs as many as four men and at
other times only one. These men go to various places of business to pick up and
package scraps of material which they sort according to material, i.e., wool, nylon,
etc., and perhaps by color. They also deliver the packages or pouches of materials
to Guttman's customers who reprocess them for further use.
Notwithstanding Guttman's experiences before he came to the United States
and the small number of men he employs, his is not a tiny business for his inter-
state business admittedly exceeds $50,000 annually. It is probable that he also
does some intrastate business.
Most of the findings made below are based on undenied testimony. The principal
conflict in the testimony is discussed infra and concerns whether Guttman's shop
was open on October 20, 1965.
B. The alleged refusal to bargain
1. The employees' designation of the Union as their bargaining representative
In March 1965, Guttman apparently employed only two men, Albert McClinton
and Daniel James. Both are Negroes and it was apparent from observing them
and listening to their testimony that each has very little education and that the
I.Q. of neither is outstanding.
in the fall of 1965, James had worked for Guttman for about 51h years and
McClinton for about 18 months. Each had received a number of pay increases
and neither had ever been laid off except when the shop was closed.
Probably in April 1965, McClinton and James obtained union cards which, on
one side, bore the name and address of the Union and which could be mailed
without the necessity of a stamp. On the other side, there are blanks to be filled
in with such information as the employee's name and address, the name and
2 Apparently the business is at times referred to as New Sweater Waste.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
address of his employer , and the type of work done by the employees . In addi-
tion , there are spaces for the employee 's signature and the date . Above the signa-
ture and date there appears the following:
I hereby accept membership in District 65, AFL-CIO, and of my own free
will hereby authorize District 65, AFL-CIO, its agents or representatives to
act for me as a collective bargaining agency in all matters pertaining tag rates
of pay, wages , hours, or other conditions of employment.
I also agree to abide by all the rules and regulations of the union.
Both McClinton and James signed such a card about the middle of April and
mailed it to the Union.3
On or about June 23, two trainee organizers for the Union , Awilda Roque and
Julia Pizarro , were directed to see McClinton and James and find out whether
they were still interested in the Union . When Roque and Pizarro saw the two
men on June 24, they indicated that they were still interested in the Union, they
were taken to the union building, given a tour , and had the benefits of union
representation explained to them. While there, each man signed another card .4
One side of this card is substantially the same as the one described above. The
other side authorizes the employer to deduct union dues from his wages and states
the manner in which and times when the dues authorization may be revoked. It,
too, contains blanks for the date and the employee 's signature.
The Union lost, temporarily , the June cards and the employees were visited by
union representatives in August and McClinton and James signed new cards.
McClinton 's third card is dated August 16 and James' third card is dated August 18.
A third man , Charles Bell, was working for Guttman in August and he signed a
card on or about August 21. Each of the three employees was given a union "book"
on or about August 21 which bears a stamped date and which indicates that each
had paid a $5 fee and had been admitted to membership . It is undisputed that these
three men were the only rank-and-file employees working for Guttman at that time.
Both McClinton and James testified that they signed several union cards and
the undisputed testimony establishes that in September , McClinton, James, and
Bell told Guttman that they had signed cards and wanted union representation .5
Bell was terminated on September 24 and was not a witness.
2. The request for recognition
On Monday , September 20, Union Representatives William Tate and Julia
Pizarro went to Guttman's shop. After introducing himself, Tate told Guttman that
all of his employees had signed union cards. (Guttman testified that it was at this
time that he first learned about the employees ' interest in a union .) Guttman said
that he did not believe Tate's statement and Tate suggested that Guttman call the
employees and ask them whether they had joined the Union . Only employee Bell
was on the premises and when Guttman asked him if he had joined the Union, he
said that he had and that the other two employees ( McClinton and James) had
joined also . Tate also directed Pizarro to bring in the union cards but Guttman
3 All dates set forth herein are in 1965 unless stated otherwise.
4 Because the April cards were mailed to the Union , no one at the Union knew that
McClinton and James had actually signed them and they were asked to sign new cards in
June. When they reported that business was "slow" at that time , they were told that it
would be a poor time to talk to Guttman about a contract.
5 There are several inconsistencies in the testimony of McClinton , James, and the various
union representatives about where and who was present when McClinton and James signed
the June and August cards. These cards were signed about a year before the hearing and
neither the employees nor the union representatives had any special reason to remember
such details as who was present and the fact that their recollections varied does not cause
me to doubt that the men signed the cards in June and August. McClinton testified that he
read the card but it is clear that he could not read all of it although lie could read some of
it. (His vision is seriously impaired because of an eye injury .) It is also clear that he has
difficulty spelling the street on which he lives and the spelling is corrected on one of the
cards. ( It appears that the name may be misspelled in the record.) James testified that his
brother read the card to him. I have no doubt and find that all three employees knew
that the effect of the card was to authorize the Union to represent him in collective bar-
gaining. In fact, each was sufficiently interested that lie paid a $5 fee which is not a trivial
sum for men earning $1 . 50 or less an hour and with families to support. In any event, as
set forth infra, it is undisputed that each told Guttman that he had joined the Union.
JENO GUTTMAN 729
said "No." When Tate named the employees who had signed cards, Guttman
stated that the union representatives had come to the "wrong" place, that the
employees named by Tate did not work there, that he did not want to have any-
thing to do with the Union, and that "he was going to close up the place." Accord-
ing to both Tate and Pizarro, Guttman's face was very red and he spoke in a
loud voice.6
Tate asked Guttman to sign a "Stipulation of Recognition" which constituted an
acknowledgment that the Union represented Guttman's employees.7 Guttman
refused to sign it, saying that he needed time to consult his attorney. However,
Guttman said that he would call the Union in a few days.
Guttman did not call the Union and on September 28, i.e., 9 days after the first
visit, Union Representatives Pizarro and Manuel Negron went to see Guttman.
On this occasion , Pizarro did the talking and when she asked Guttman why he
had not called the Union, as he had said he would do, Guttman replied that his
partner was not "back yet." Pizarro asked "What partner?" because Guttman had
not mentioned a partner on September 20. Guttman answered that "his partner
was away and there was nothing he could do about it." 8 It is undisputed that Gutt-
man had no partner. Pizarro reminded Guttman that he was supposed to call his
attorney and asked for the attorney's address. Guttman refused to supply it but
did give Pizarro his own name, address, and telephone number. Guttman said that
he would call the Union but there is no claim that he ever did so.
Guttman's payroll discloses that: (1) McClinton, James, and Bell were employed
during the week of August 23-27; (2) McClinton and James worked all of the
week ending September 3 and Bell worked on Tuesday, Wednesday, and
Thursday of that week; (3) all three men worked all or most of the week ending
September 10; (4) all three men worked the entire week ending September 17;
(5) the three men worked on Monday, September 20, and all three men
worked on Wednesday, Thursday, and Friday of that week; (6) September 27
and 28 (Monday and Tuesday) were Jewish holidays and the shop was closed;
(7) McClinton and James worked September 29 and 30 and October 1.
3. Conclusions with respect to Guttman's refusal to bargain
The facts set forth supra establish that employees James, McClinton, and Bell
signed union cards in August, that in September the Union sought recognition as
their bargaining representative, and that each of the three employees told Gutt-
man that he had joined the Union. The facts also establish that Guttman refused,
without explanation, to recognize the Union as the bargaining representative of his
employees. There is no claim on the record that Guttman's refusal to recognize
and bargain with the Union was motivated by a good-faith doubt of the Union's
majority or by doubt that the three employees constituted an appropriate unit for
bargaining.9 On the contrary, Guttman sought to avoid his statutory duty by such
tactics as claiming that the union representatives had come to the "wrong" place,
that his nonexistent "partner" was away, and that he needed to talk to his attor-
ney. In addition, he did not call or talk to the Union as he promised to do. Further-
more, as set forth in the next section, the undisputed evidence establishes that
Guttman was opposed to union representation, that he asserted that he could not
afford to pay union rates, that he warned two of the three employees that he would
close the shop before he would have a union, that they would be "sorry" because
they had joined the Union, and he directed them to obtain employment at a "union"
shop if they wanted to be represented by a union. He also sought to cause McClin-
ton and James to abandon the Union by offering them paid holidays and vacations.
Finally, as found subsequently, Guttman discharged Bell, McClinton, and James
because of their union activity and in order to avoid his obligation to bargain.
8 The findings in the above paragraph are based on Guttman 's admissions and the un-
denied testimony of Tate and Pizarro.
7 The above finding is based on the credited testimony of Tate and Pizarro. Guttman
testified that he was asked to sign a paper but denied that it was a Stipulation of
Recognition.
8 The above findings are based on the undenied testimony of Pizarro and Negron.
9 Neither in his answer nor at the hearing did Guttman challenge the claim that a unit
composed of the freight handlers, or sorters - packers , constituted an appropriate bargain-
ing unit The only men doing such work at the time of the Union 's bargaining requests
were McClinton, James, and Bell
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having considered the foregoing facts, I conclude that Guttman's refusal to
recognize and bargain with the Union was not based upon a good-faith doubt about
the Union's majority or about the appropriateness of the bargaining unit. Having
also considered Guttman's attitude toward collective bargaining and his efforts to
destroy the Union's majority by the illegal means set forth in detail infra, I am
also convinced and find that his refusal to recognize the Union was motivated by
"a positive rejection . of the principle of collective bargaining." N.L.R.B. v.
Inter-City Advertising Co., Inc., 190 F.2d 420, 422 (C.A. 4). Cf. N.L.R.B. v.
Philamon Laboratories, Inc., 298 F.2d 176, 180 (C.A. 2). It follows, therefore,
and I find that Respondent's refusal to bargain with the Union, on request, violated
Section 8(a)(5) and (1) of the Act.
C. Guttman's questioning of the statements to
employees McClinton and James
September 20, the day on which the union representatives first called on Gutt-
man, was a Monday. The following Monday, September 27, was a Jewish holiday
and the shop was closed.
Employees McClinton and James testified without denial that on a Monday in
"late" September, they and Guttman were at a shop on Fourth Avenue packing
waste and Guttman said that he wanted to talk to them. He first asked if James
had talked to the "union people" and James answered "Yes." When Guttman asked
McClinton the same question, McClinton answered that he had nothing to say.
Either at that time or on the way back to Guttman's shop (or both) Guttman told
the men that they should not have "gone behind his back" and talked to the union
representatives, that they should have let him know.io
When the scraps were packed, Guttman told McClinton and James that they
were through for the day and could go home. Guttman also commented that
"Maybe I'll pick up [the waste] today and maybe I won't pick it up at all." How-
ever, the employees had to go back to Guttman's shop to change their clothes and
McClinton and Guttman sat together on the subway and James sat by himself.
It is undisputed that during the subway ride Guttman told McClinton if the men
wanted paid holidays, he would pay them for holidays and vacations, too.
After arriving at Guttman's shop, McClinton and James went upstairs to change
their clothes. Before the employees went upstairs, Guttman told them to "talk it
over," and they understood Guttman to mean to talk about the Union. When they
came back downstairs, Guttman asked if they had talked "it over about the
Union" and James said "no," that there was nothing to talk over, that they had
already joined. Guttman then told the men his business was not big, that he did
not "need the business" and if they wanted a union, why did they not get a
"union" job. Guttman also told James and McClinton that he could not pay union
rates and "before he [would] let a union come in he [would] close the place and
get [himself] a manager's job." In addition, Guttman told the men that they would
be "sorry." During the course of the conversation, McClinton told Guttman that
he was "in the union." ii
About a week later, Guttman asked James if he and McClinton had talked it
over "about this union" and repeated that he could not afford to have a union in
the shop. James replied that there was nothing he and McClinton could do "now"
because they had already joined the Union.12
The foregoing facts establish that Guttman did not question employees McClin-
ton and James about their union membership in order to determine the validity
io There are minor variations between the testimony of James and McClinton with re-
spect to the place at which Guttman made the above statement. Such inconsistencies,
9 months after the conversation, do not cause me to discredit their testimony. In any event,
their testimony is undenied Guttman was asked on direct examination by his counsel
if he had ever "threatened" the employees "in any manner" because they belonged to a
union and he answered "No " However, on cross-examination, Guttman admitted that he
told James and :McClinton that he could not afford to meet the Union's demands, that they
would force him out of business, and also stated that, rather than bargain, he would close
the shop. He also admitted having asked most of the questions and statements set forth
in this section.
n The above findings are based on the undenied testimony of James and McClinton
12 The above findings are based on the undenied testimony of James.
JENO GUTTMAN 731
of the Union's claim that it represented them.13 On the contrary, the questioning
of McClinton and James occurred in a context of threats' of reprisals for union
activity and was followed closely by a promise of benefits designed to cause the
men to abandon their efforts to be represented by the Union. I find that by'
engaging in such conduct, i.e., the questioning of employees in the context in
which it occurred here, and the making of threats and promises of the type set
forth above, Respondent engaged in interference, restraint, and coercion thereby
violating Section 8(a)(1) of the Act. Such conduct so clearly violates Section
8(a)(1) of the Act that no citation of authority is necessary.
D. The removal from the payroll of employees Bell, McClinton, and James
1. The termination of employee Bell
As set forth supra, the union representatives first requested recognition and bar-
gaining on September 20 and Bell told Guttman that day that he and the others
had joined the Union.
Guttman's records indicate that Bell was terminated on September 24, i.e , 4 days
later. According to Guttman, Bell was a "temporary" employee and was laid off
because of lack of work. No company records were introduced indicating the rela-
tive volume of business at the time Bell was hired, i.e., about a month earlier, and
at the time he was laid off. In addition, there is no claim that Guttman sought to
recall Bell during the weeks and months following October 20 when, as set forth
infra, he repeatedly needed to and did hire new employees.
2. Guttman's practices with respect to vacations and religious holidays
When Guttman goes on vacation, the shop is closed and it is also closed on
various Jewish holidays. On such occasions in the past, Guttman usually gave the
employees dimes so that they could call him and find out when to return to work.
General Counsel's Exhibit 17 also establishes that at least on one occasion, he
sent James a postcard telling him to call. (Cf. Guttman's testimony that he "never"
sent a postcard.)
During the summer of 1965, Guttman took a 2 weeks' vacation and the shop
was closed. Guttman either gave the employees dimes so that they could call him
about when to return or sent them cards about when to return. There is no evi-
dence that in the past the men looked for interim employment while the shop was
closed for vacations or holidays. September 27 and 28, 1965, were Jewish holidays
and the shop was closed. It was open the following day (September 29) and it
was on September 29 that the union representatives visited Guttman a second time
and sought recognition. October 6 was another Jewish holiday and the shop was
closed. On or about October 7, Guttman received a copy of the representation
petition filed by the Union with the Board on October 5. (Case 2-RC-14158.)
On or about the same day, Guttman also received a letter from the Board's
Regional Office telling him that the petition had been assigned to a Board repre-
sentative for investigation.
Monday and Tuesday, October 11 and 12, were the first 2 days of a 9-day Jew-
ish holiday and Guttman regularly closed the shop for these days of that particular
holiday period. The following Monday and Tuesday, October 18 and 19, were the
last 2 days of the 9-day period and the shop regularly closed on those days. How-
ever, Jewish law permits Guttman to be open on the in between weekdays, which,
in 1965, were Wednesday, Thursday, and Friday, October 13, 14, and 15.14 Of
is It is clear that Guttman questioned employee Bell on September 20 in an effort to find
out whether or not the Union's claim was warranted and no unfair labor practice finding
Is based thereon
14 Although Guttman testified that he could open on those days only If there was an
"emergency," he made no such claim in his affidavit and there Is no probative evidence
that he had ever closed his shop in previous years on the weekdays which divide the first
2 and the last 2 days of the 9-day holiday period This is a minor conflict which, standing
alone , would have little significance However, Guttman's testimony with respect to Jewish
law is only one of a number of statements by Guttman which suggest that his testimony,
particularly concerning what happened with respect to employees Bell, James, and 11Ic-
Clinton, is not reliable Other examples are set forth, infra It will also be recalled that
although he has no partner, he told the union representatives on September 29 that he
had not called the Union because his "partner" was away. Such statements indicate a
willingness to put forward wholly unfounded reasons in an effort to explain his actions
vis-a-vis his employees' efforts to be represented by the Union.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course, the shop is normally closed on Saturday, the Jewish Sabbath, and on Sun-
day. But in 1965, Guttman decided to close the shop at the close of work on
Friday, October 8, and to remain closed through Tuesday, October 19. (The shop
was closed during this period.) At one point in the hearing, Guttman explained
that he wanted to observe the entire holiday period in 1965. At another point, he
indicated that his decision was based on the fact that he had not been well. How-
ever, he and his wife went to Montreal, Canada, for all or part of the 9 days.is
3. Guttman's instructions to his employees on October 8
As set forth supra, the Union made its requests for recognition on September 20
and 29 and Guttman received its representation petition on or about October 7.
Friday, October 8, was payday and McClinton went to the office first for his
check and was still there when James came for his check. McClinton testified that
when Guttman gave him his check, Guttman told him the shop would be closed
"until the 20th of October." Guttman explained that Jewish holidays were coming
up and also that he had to go out looking for business. McClinton freely admitted
that he understood that he was to return on October 20.
James came into the office during the conversation and said that he did not
understand what Guttman was saying. McClinton (not Guttman) then showed
James a calendar, pointing out that October 20 would be a Wednesday. James
still said he did not understand and Guttman told McClinton to explain to James
on their way home.16 Before the men left, Guttman told them "if you come in at
all" on October 20, "don't come in before twelve noon." In testifying concerning
Guttman's instructions in this respect, McClinton always placed marked emphasis
on the word "if." Both James and McClinton testified without denial that Gutt-
man was writing checks during the entire conversation.
Respondent's counsel asked McClinton the following questions on cross-
examination and McClinton gave the following answers:
Q. You know what the word "assumption" means, don't you?
A. Yes.
Q. And it is your assumption, when you tell us that Mr. Guttman said
come back on the 20th, if you come back, you are assuming that he meant
if you aren't in the union, you can come back?
A. Yes, that's right.
According to McClinton, he later explained to James that they were supposed to
return on October 20. However, he testified that he also told James that "the way
Mr. Guttman talked it seemed that we can come in, [and] if we don't, it don't
make any difference."
James testified that he did not understand Guttman's instructions, i.e , that he was
closing for the Jewish holidays and that he understood that Guttman would be
closed "till around the 20th." James asserted that he understood that Guttman
would let the employees "know when to come back around the 20th," i.e., as he
had done in the past. James added, "But [Guttman] never sent me no letter or no
card. Always called me back or sent us a card or a letter. And [Guttman] did not
give us no dime that day," i.e., on October 8. Later, James testified, "The way he
talked, don't seem that he will be open."
According to James, as he and McClinton were on their way home, McClinton
told him, "the way Mr. Guttman speak, he may not call us back, that he may
close up."
Guttman testified that he told James and McClinton on October 8 that he was
closing for the Jewish holidays and that "they must report back on the 20th, that
is the ending of the Jewish holidays." At another point, Guttman testified that he
said to "come back on the 20th, about noontime, I told them. And he says okay."
[Emphasis supplied.] Immediately thereafter, Guttman asserted that "both" men
said "okay."
As a result of the events of that afternoon, McClinton and James went to union
headquarters but the man they wanted to see was not there and they went back on
15 In his November 18 affidavit, Guttman stated that his "house requirements" and the
"health of his wife" (not his own health) "required that I should go to the country for
the entire holidays to rest up."
16 The General Counsel contends that, by giving this instruction, Guttman made McClin-
ton his agent so that McClinton's later remarks to James are attributable to Guttman.
JENO GUTTMAN 733
Monday. Sometime thereafter, probably on or about October 15, the Union found
McClinton a job packing Christmas trees, a job which, by its nature, would not last
more than a couple of months. James, through the efforts of his brother, was hired
by Lawrence Temporaries but was told that his job would not last more than
"about eight weeks or so." The hourly rate at both jobs was higher than that paid
by Guttman and the work may have been easier. However, each employee asserted
at the hearing that he preferred his year-round job at Guttman's at a lower rate
to the short term job he had obtained even though the latter paid a higher rate.
4. The situation on October 20
Employee James frankly admitted that he did not go to or call Guttman's shop
on October 20 or during the weeks thereafter. As indicated supra, he pointed out
that Guttman did not give him a dime on October 8, that he did not understand
that he was to return on that day, and expected and waited for a card telling him
the date on which he was to return to work.
McClinton testified that he went to the shop at 12:05 p.m. on October 20 and
stayed 10 to 15 minutes. According to McClinton, there was a padlock on the door
and a garbage can was sitting outside. He also claimed that he went back about
5:10 p.m. and observed the same conditions. Upon being questioned by Respond-
ent's counsel, Union Representative Pizarro stated that she "knew" that McClinton
went to the shop twice on October 20 and "found" the door locked and a garbage
can outside. On redirect examination, Pizarro explained that she called McClinton
on his job on October 20, asked if he had gone to Guttman's and McClinton told
her that he was planning to go. She went on to say that she called McClinton the
next day and he told her that he had gone to the shop twice the day before, the
first time during the lunch hour and the second time after work, and found the shop
locked. McClinton also testified that he went by the shop again on October 21 and
that the lock was still on the door.
Guttman testified on examination by his counsel that he went to the shop
"Around twelve o'clock" on October 20 and stayed there until "About five o'clock"
but did not see McClinton. On cross-examination, he first testified that he opened
the shop "before twelve o'clock" but said that he did not look at the clock "exactly"
and it could have been "after twelve." When questioned about whether it "could
have been twelve thirty," he answered, "Not so late, I don't think" and repeated
that it was "Around twelve o'clock," adding this time that he looked at his watch.
However, in his first prehearing affidavit, dated November 18, 1965, Guttman
stated that his business was open all day on October 20. [Emphasis supplied.] At
the hearing, Guttman testified that this statement was a "mistake." Although he
later gave the Board a corrected affidavit, he did not explain what occurred to
refresh his recollection.
Guttman also testified that he hired two men "off the street" about 2 p.m. on
October 20 and that they worked the rest of the afternoon. He asserted that he did
not tell them to return the next day because he was waiting for McClinton and
James. He further asserted that he hired different employees "off the street" on
October 21. He explained that he did not tell these employees to report on Friday,
October 22, because the shop is open only a half day on Friday. However, he did
not explain why he did not tell them to report on Monday, October 25.
However, Guttman's November 18 affidavit does not refer to any men hired
"off the street" on either October 20 or 21 and his records do not show that he
employed anyone on either day. (It is undisputed that Guttman did not employ
anyone on Friday, October 22.) He asserted that he paid the men who worked on
October 20 and 21 in cash and explained that he was not required to make social
security payments for them because they worked only a few hours. It is not clear
whether or not Guttman was required to make payments to the New York State
Department of Labor for unemployment insurance for these employees. If so, he
did not do so. None of the employees who assertedly worked on those days was
called as a witness and there is no claim that Respondent made any attempt to
locate them.
Guttman further testified that on Monday, October 25, he called a private employ-
ment agency which sent two men who were hired and who continued to work for
him "thereafter." (His records show that they worked only October 25 and 26.)
However, in his November 18 affidavit, Guttman stated that he called the agency
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for employees about 11 a.m. on October 20, and he apparently told a representative
of the agency that he had called on October 20, not October 25, and, as a result,
that representative gave the Board a statement to that effect. This "mistake" was
also corrected in,a later affidavit.
Although Guttman did not mention a delivery of merchandise on October 20 in
his November 18 affidavit, he'testified that a "Mr. Drizin" made a delivery to his
shop on October 20 and a receipt purporting to show a delivery by Drizin on that
date was introduced into evidence. It is a 5- by 8-inch slip of paper, without a head-
ing, and does not appear to have been removed from a record book. (It looks as
if it was torn from a "scratch" pad.) No other "record" of this type was introduced.
(Some records used by Guttman do not have his name imprinted on them. How-
ever, they show that they are made up of white sheets which are perforated along
the left margin so that they can be torn out, leaving Guttman a record of the
transaction in the form of a yellow carbon in a permanently bound book. These
books contain no sheets dated October 20 but do contain carbons dated October 21.)
Guttman first testified that the signature "M. Drizin" or "Mr. Drizin" on the
receipt was "Mr. Drizin's" signature which he recognized.17 However, when Gutt-
man was asked if Drizin signed the receipt "in front of you," he answered, "No, I
signed this," i.e., "M. Drizin." On the other hand, Guttman's own signature does not
appear on the receipt although it would seem that a receipt unsigned by Guttman
would be of doubtful value to Drizin.
The receipt indicates that Guttman paid for the merchandise by a check dated
October 22 (Friday), not October 20 (Wednesday). Guttman explained that the
supplier was small and needed 'his money, hence the early payment. Actually, if
the supplier wanted "early payment," it would seem likely that he would have asked
for and would have received payment at the time the delivery was made, thereby
avoiding a second trip.
After being questioned about the notation on the receipt concerning the check,
Guttman was asked the following question and gave the following answer:
Q. And did you write the rest of this piece of paper on the 22nd when he
came for the money? [Emphasis supplied.]
A. Yes.
Guttman was also asked the following questions by the Examiner and gave the
following answers:
Q. Is this the paper [receipt] that you gave to somebody else?
The WITNESS: Yes.
Q. (By Mr. LICHTMAN.) 18 Who did you give this paper to?
A. The man who delivered the stuff.
Q. What's his name?
A. Mr. Drizin, M. Drizin is the name.
On cross-examination, Guttman was asked the following questions and gave the
following answers:
Q. (By Mr. PoRTNOY.) This . . . paper [the receipt] that you say you made
up, when you made this paper up, did you give it to anybody?
A. No.
TRIAL EXAMINER : Did you or did you not give [Drizin ] that paper?
The WITNESS : This paper is by me. I keep it.
Q. You keep that paper?
A. Yes.
Later, Guttman explained that a carbon copy of the receipt was made and given
to Drizin . (As noted supra, in the case of the other records, the original copy
was given to the other party to the transaction and it was the carbon that Guttman
kept.)
17 Guttman was asked the following questions by his counsel and gave the following
answers :
Q. Is there a signature on It?
A. This Is Mr. Drizin's signature.
Q. Do you recognize that as his signature's
A. Yes.
1B Respondent's counsel.
JENO GUTTMAN 735
Drizin was not called as a witness by Respondent although his counsel indicated
that he had considered the possibility of calling Drizin . There is no claim that Drizin
was not available.19
Guttman did not testify about the time of day the alleged Drizin delivery was
made. Of course, the fact that Drizin made a delivery sometime on October 20 does
not prove that Guttman was at the shop at noon on that day; i e., at the time he
admittedly told the men to report.
Although Guttman at times has difficulty finding the word he needs to express his
thoughts and he speaks with a heavy accent, I am convinced that he understands
English very well and that he understood the questions he was asked. This means
that I am convinced that the inconsistencies in his testimony were not due to his
inability to understand the questions.
My conclusions with respect to what Guttman told the employees on October 8,
what they understood him to be saying , whether their understanding was reasonable
under all of the circumstances, and about whether Guttman was at the shop on
October 20 from "around noon " until 5 p.m., or so, as he claimed , are set forth
infra since they are based in part upon the events which occuried thereafter.
5. The events on October 27 and thereafter
As indicated above, Guttman's records dog not indicate that he employed any men
on October 20 and 21 and his testimony establishes that it was not until October 25
(Monday of the following week) that he called an employment agency for employ-
ees. There is no evidence that Guttman knew, on October 25, that James and
McClinton were working elsewhere and there is no explanation of why he made no
attempt, on October 20, 21, or 22, to find out why the men had not reported to
work, as he alleged, or if they wanted to work for him. Although the work requires
little training or skill , both McClinton and James knew the work and had been
employed by Guttman for a considerable period. On the other hand, Guttman's pay-
roll records disclose that after McClinton and James stopped working for him, he
had difficulty in retaining employees and that new employees were hired repeatedly
in the following weeks and months. (See infra. ) For example , the men obtained
from the agency on October 25 worked only on October 25 and 26
There was a meeting at the Board's Regional Office on October 27 which was
attended by Guttman, his attorney, Benjamin Weberman , Union Representatives
Albert Turbane and Julia Pizarro, and a Board representative 20 When Union Rep-
resentative Turbane stated that the three employees had joined the Union, Attorney
Weberman replied that the men had "abandoned" their jobs and that Guttman had
"new workers ." 21 As noted above, Guttman 's records show that the men obtained
from the private employment agency on October 25 , i.e. 2 days before the meeting,
were not working for Guttman on October 27.22 They also show that the men who
were working for Guttman on October 27 worked for him only on October 27, 28,
and 29, i.e. only for the rest of the week . Another employee worked a few hours on
Friday, October 29, and he and a different employee worked for Guttman during
the following week; i.e., the one beginning on Monday , November 1, and ending on
Friday, November 5.
Turbane insisted that even if Guttman had hired new employees , the former
employees should be taken back and that contract negotiations should begin.
Respondent 's attorney replied that Guttman had an "obligation" to the newly hired
employees but Union Representative Turbane took the position that Guttman had a
zs Respondent also produced a check dated October 20 made out to N Benson ( or Burson)
which was paid by the bank on October 26. Guttman's affidavit does not refer to this trans-
action Although Guttman testified that Benson "picked up" the check at his shop, he did
not say what time of day it was picked up and Benson was not a witness
2DA hearing on the Union' s representation petition was set for that day but, because
of statements made , no testimony was taken. On October 26, Union Representative Pizarro
sent the men a telegram telling them that it was imperative that they report to Guttman on
that date Admittedly, none did so. James explained that, "I figured if I go down there
I will [lose ] the job I [have] been on . . . and Mr. Guttman may not take me back and
I'll be lost all the way around."
21Although Respondent's counsel stated at this meeting that Guttman had hired the
replacements "from the street ," Guttman's November IS affidavit does not refer to any
such employees but only to those referred by the employment agency
21 The names of the men employed during the week of October 27 indicate a Spanish
background and McClinton testified that he went by the shop the week after October 20,
probably on Monday,-and that there were two "Spanish guys" working there.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"greater obligation" to McClinton and James who had worked for him for 2 to 5
years, and to Bell, who had worked for him a few weeks. The position of Respond-
ent's counsel was that the former employees could not be reinstated because of Gutt-
man's "obligation" to the new employees. About noon that day, Turbane filed an
unfair labor practices charge which alleged, in part, the discriminatory discharge of
Bell, McClinton, and James.
Although Guttman testified that he did not hear the Union's request on Octo-
ber 27 that McClinton, James, and Bell be reinstated, I do not credit his testimony
and consider it another example of his willingness to deny anything bearing upon
his actions with respect to Bell, McClinton, and James. It is undisputed, of course,
that Guttman received a telegram from Union Representative Turbane, sent by Pi-
zarro, and dated October 28, which stated that the former employees were "avail-
able" for work.23
About November 3 or 4, Union Representative Turbane called Respondent's
counsel and said he thought the former employees ought to be reinstated and that
contract negotiations should get under way. Turbane said that he understood Gutt-
man's position as a refugee, that the latter was "struggling very hard" and that, as a
result, the Union would give him the "cheapest" contract it could. Turbane also told
Respondent's attorney that he had helped Respondent by getting the employees
temporary jobs. Because of the temporary jobs, it is probable that no backpay
would have been due had McClinton and James been reinstated during this period.
The attorney's answer was that Turbane should leave the men on their interim
jobs but Turbane replied that he could not do so "in good conscience," that his job
was to get them reinstated and get them a contract. The attorney said that he would
have to discuss the matter with his client but suggested that the men "show up" at
Guttman's shop. Turbane explained that they were working and he "just [couldn't]
have them show up," that they "have to have some firm offer or assurance of work."
Turbane added, "I can't take them off of one job and find they are not working on
either job or [on] any job."
By letter dated November 4, Respondent's attorney advised Turbane and the
Union:
1. Mr. Guttman is willing to have his former workers report back to be
engaged by him under the previous terms. This is a concession by Mr. Gutt-
man, since, as he informs me, these workers had abandoned their jobs with him.
There is plenty of corroboration to support the claim of Mr. Guttman of this
abandonment.
2. But in view of the fact that these former employees now have positions
which you got them and where their wages are far in excess of the wages they
received from Mr. Guttman in the past, as you informed me, it does not seem
fair to these workers or to my client to require that these workers leave their
present positions to take employment by Mr. Guttman. If they do come back,
there will be no assurance that he will continue to keep them or that they
would be willing to stay. [Emphasis supplied.] 24
According to Turbane, because of the last sentence quoted above, he did not con-
strue the letter as a "firm" offer of employment and could not take the men off their
jobs unless he was assured they would have steady jobs with Guttman.
6. Respondent's payroll records
Respondent's payroll records disclose the following information concerning the
men employed by him on and after October 8:
Date Employees
Oct. 9-19 ---------------------------------- None (shop closed).25
Oct. 20 (Wednesday) ------------------------ None
Oct. 21 (Thursday)_________________________ None
Oct. 22 (Friday) ---------------------------- None
za Although the names of James and McClinton were misspelled, the spelling was such
that Guttman could not have doubted the identity of the men to whom the telegram referred.
24 Even when it was pointed out to Guttman, at the hearing, that there were two parts
to the final sentence quoted above, he would say that it meant only that he could not he
sure that the men would want to stay with him because they had obtained better paying
jobs.
zs It is undisputed that the shop was closed during this period. However, this does not
mean that it would have been closed for the entire period but for the employees' authoriza-
tion of the Union to represent them and the Union' s requests on September 20 and 29.
JENO GUTTMAN 737
Date Employees
Angel Crespo
Oct. 25 (Monday)______________________ Remaldo Colon Manuel
Oct. 26 ------------------------------- Crespo and Manuel
Oct. 27 (the date of the meeting at the (Angel Morales
Board) ----------------------------- Augustine Perez
Oct. 28 ------------------------------- Morales and Perez
(Morales and Perez
Oct. 29
1
(Friday) -----------__--------- Thomas De Jesus 4/2 hrs.
Nov. 1 (Monday)___________
(Thomas De Jesus
----------- Luis A. Melendez
Nov. 3-4 (the dates of Turbane's call and
Respondent's letter) ------------------
Nov. 5 (Friday)________________________ De Jesus and Melendez
Nov. 12 (week ending) ------------------ Melendez
Nov. 9, 11, 12_________________________ Hector Jiminez
Nov. 19 (week ending)_________________
Melendez 26
Jiminez
Jiminez (Monday, Tuesday,
Nov. 26 (week ending)__________________ Wednesday only)
WilliamHarris (hired 11/23)
Jiminez
Dec. 3 (week ending)___________________ Harris
Inman M. Cabrera (hired 12/1)
Dec. 10 (week ending)__________________ Melendez
Dec. 17 (week ending)_________________ Melendez
Dec. 24 (week ending)__________________ Melendez
Jan. 1-21, 1966-No employees-subway
strike ------------------------------
Jan. 24-28 ----------------------------
Melendez
lloll
Feb. 4 (week ending) ------------------- Melendez
Feb. 11 (week ending)__________________ Melendez
Feb. 18 (week ending)__________________ Melendez
Feb. 25 (week ending) ------------------ Melendez
Sometime in February 1966, James received his income tax statement from Gutt-
man and called Guttman on the telephone and asked if the latter had a job avail-
able. When Guttman replied that work was slow, James asked Guttman to call him
if there was a job opening. However, Guttman did not call James although, as indi-
cated below, his records show that he hired new employees in March.
Date Employees
Mar. 4 (week ending)________________ Melendez
Mar. 11 (week ending) Israel Acevedo
Mar. 18 week ending) 'Acevedo( g) -- - ---- - ------
Si
-- mpkin
Mar. 25 week ending)
Acevedo
( ------- - - -- -- -- impkin
Apr. 1 (week ending)_________________ AcevedoISimpkin (March 28, 29, 30, 31 only)
Pass-Over
4/18 until the time of the hearing -------- Acevedo
Guttman first testified that all of the above-named employees had experience at
his type of work. However, it later became clear that he knew nothing about their
previous experience and there is no evidence that any of them had ever worked at
jobs similar to those for which Guttman employed them. Although it is clear that
the work requires little experience, Guttman's testimony in this respect is another
example of his readiness to give an answer favorable to his case without regard to
whether or not it was true.
Dec. 31 (week ending)__________ Melendez________ Doll (hired 12/30)
21 Melendez was in an accident on Monday , November 15, and was unable to work for
2 weeks.
264-047-67-vol . 162-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. Analysis and conclusions
In this case, the very nature and sequence of events and their practical result
create a suspicion that something more was involved than mere happenstance. For
example, it is undisputed that employee Bell was terminated a few days after the
Union's first request for recognition and after Guttman learned from Bell that he,
McClinton, and James had joined the Union. It is also undisputed that on Octo-
ber 8, about a week after the Union's second request and the day after Guttman
received notice of the Union's representation petition, he closed the shop for 12 days
although, in the past, he had not closed it for all of that particular holiday period.
Finally, within a month after the Union's first request (September 20-October 20),
there was no employee on Guttman's payroll who was employed on the date of the
first request, even though, prior to the request, James had been employed by Gutt-
man for 5% years and McClinton for 18 months. A layman, such as Guttman,
might well believe that he would be under no duty to bargain with the Union if the
employees who signed cards were no longer on his payroll.27
Furthermore, the first event in the chain disclosed Guttman's determination to
ignore the obligations imposed upon him by the Act for he refused to recognize the
Union notwithstanding knowledge that all thiee employees had authorized the
Union to represent them and notwithstanding the absence of any question concern-
ing the bargaining unit. (As set forth supra, Guttman admitted that he knew nothing
about the employees' interest in the Union until September 20 when the Union made
its first request.)
Four days later, Charles Bell was laid off although there is no evidence that he
was hired because of a temporary increase in Guttman's business or that the volume
of business had decreased on September 24.
In addition, in the interim between September 20 and October 8, Guttman
instiucted McClinton and James to discuss the question of union representation and
later asked them if they had done so only to be told that they had not changed their
minds. Guttman also criticized them for going behind his back and talking to the
Union, questioned McClinton and James about their attitude toward the Union,
threatened to close the shop and find himself another job, rather than to have a
union, told the employees that they would be "sorry" because of their decision to
be represented by a union, directed them to obtain jobs in a "union" shop if they
wanted union representation, and promised them paid holidays and vacations.
As I understand the General Counsel's case, his basic contention is that the clos-
ing of the shop was but pretext or a first step toward removing McClinton and
James from his payroll. In other words, the General Counsel's position is that when
Guttman laid off McClinton and James on October 8, he was determined that they
would never work for him again and that he accomplished this result, in part by his
actions on October 8 and, more particularly, by not being at the shop at noon on
October 20 when McClinton and James were supposed to report to work. On the
other hand, Guttman contends that McClinton and James were told and understood
that they were to come to work at noon on October 20, that the shop was open
from about noon on October 20, and that McClinton and James "abandoned" their
jobs by failing to report. This is a factual question, the answer to which depends in
part on the relative credibility of Guttman, McClinton, and James. However, in
reaching the answer, the events which began on September 20 and which continued
well after October 20 must also be taken into consideration. In fact, the events after
October 20 are, arguably, as important as those which went before and include Gutt-
man's failure to reinstate any of the three employees despite a request by the Union
and an unfair labor practice charge and also despite his claim that Bell was laid off
only because of lack of work. They also include Guttman's failure to reinstate any
of the three men notwithstanding his difficulty in obtaining employees who would
work for him for more than a few days or a few weeks which meant that, in the
weeks following October 20, he repeatedly needed to and did hire new employees.
Of course, if Guttman took at least McClinton and James back, he would have no
excuse to refuse to recognize and bargain with the Union.
27 Of course, such a holding would defeat the purpose of the Act by encouraging em-
ployers to refuse to bargain or to delay bargaining as long as possible in the hope that the
Union's majority would be destroyed by resignations, discharges for cause, valid layoffs,
and disaffections because of the Union's inability to obtain results. Cf. Franks Bros. Com-
pany v N L R.B , 321 U S. 702, 704-705 As indicated in Franks, the employer's duty to
bargain is determined on the basis of the union's majority on the date of the,bargaining
request.
JENO GUTTMAN 739
In resolving credibility and in reaching my conclusions about what happened and
why, I have considered not only Guttman's attitude toward the Union as revealed
by the events summarized above but also the fact that, from the very beginning,
many of Guttman's statements were untrue and their effect, if not their purpose, was
to mislead both the Union and the Board and to provide a justification for his
actions vis-a-vis the Union. Thus, on September 20, he told the union representatives
that they had come to the "wrong" place and that the men did not work for him.
Then, on September 29, he explained his failure to call the Union, as he had said
he would do, by telling the union representatives that his "partner" was away even
though he had no partner.
Then, on November 18, Guttman gave the Board an affidavit which contained a
number of critical "facts" which are in conflict with his testimony and from which
he omitted a number of other important "facts" about which he testified later. The
affidavit was given about a month after October 20 and, as noted supra, Guttman
gave no explanation of why his recollection was so poor on November 18 nor did
he explain what happened thereafter to "refresh" his recollection.
For example, Guttman admittedly was mistaken when he stated in the affidavit
that the shop was open "all day" on October 20 and that he called the agency for
employees about 11 a.m. that day. Instead, according to his testimony, he did not
get to the shop until about noon and it was not until the following Monday (Octo-
ber 25) that he called the agency. Although he admitted that the men were instructed
to come in about noon, Guttman did not explain why he could have believed that
he called an agency for new employees at 11 a.m. on October 20. One explanation
might be that Guttman made a "Freudian" slip, i.e., that he was revealing, without
meaning to, that he did not intend to take McClinton and James back and that, even
before it was time for McClinton and James to report to work, he was considering
hiring new employees.
In addition, as previously noted, the affidavit does not refer to the men Guttman
testified that he hired "off the street" on October 20 and 21 and his claim that he
hired such men is not supported by his records or by any independent testimony.
Similarly, Guttman did not refer in his affidavit to a delivery on October 20 by
"Drizin" and Respondent did not produce either Drizin or his records to substanti-
ate Guttman's testimony. Guttman's contradictory testimony concerning such mat-
ters as when the entries on the Drizin "receipt" were made, about who wrote the
name "Drizin" on the "receipt," and other questions concerning that document have
been noted previously. Also, as previously pointed out, even if Guttman was at the
shop for some period on October 20 and received a delivery, this would not prove
that he was there at noon, i.e. at the time he told McClinton to report and at which
time, according to McClinton, the went to the shop and found a padlock on the
door. (Significantly, Guttman did not testify at what time on October 20 Drizin
made the alleged delivery nor when Benson allegedly picked up the check on that
day.)
In short, Guttman introduced not a scintilla of independent testimony to support
even his corrected claim that the shop was open on October 20 from about noon
until about 5 p.m., although it would seem that if the shop was open for about 5
hours that day, someone could and would have been produced to corroborate Gutt-
man's testimony, as, for example, one or more of the men allegedly hired on Octo-
ber 20 and 21, Drizin, Burson, or some person or persons doing business in the
neighborhood. The absence of such testimony and the other reasons mentioned
elsewhere, such as the conflicts between Guttman's November 18 affidavit and his
testimony, convince me that Guttman was not a reliable witness and I do not credit
his testimony that the shop was open on October 20 about noon and/or that it
remained open until about 5 p.m.
On the contrary, I credit the testimony of McClinton that he went to the shop
about noon and shortly after 5 p.m. on October 20 and found it locked. If McClin-
ton had been willing to testify untruthfully in order to improve his own case and
that of the Board and, indirectly the case of the Union, he could easily have testified
that Guttman either discharged him and James on October 8 or that Guttman did
not say when the shop would reopen, or that he said that he would send the men
postcards telling them when to report to work. That he did not so testify causes me
to believe that he was a truthful witness generally and, in particular, when he testi-
fied that he went to the shop on October 20 and found it locked. Similarly, if James
had been an untruthful witness, he surely would have testified, as he did not, either
that Guttman told him on October 8 that he would send him a card or that he went
to the shop on October 20 and found it closed.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated supra, there are other conflicts in Guttman's testimony which, if
they stood alone, might not be too significant but they do not stand alone. For exam-
ple, he testified that the replacements had experience doing his type of work
although he later admitted that he did not know what kind of work they had done
before he hired them. Actually, it appears that the work requires little or no exper-
ience; however, this was not Guttman's original answer to the question. In this con-
nection, I also note that whatever experience and skill was required, Guttman had
chosen, in the past, to retain James and McClinton for substantial periods and to
give each several pay increases although he could have saved money by letting them
go and by hiring instead men to whom he could 'have paid the minimum rate. I
also note his inability to find or retain satisfactory employees after October 25. See
also Guttman's unlikely testimony that he did not hear the Union's request, at the
meeting on October 27, that the men be reinstated and his false statements to the
union representatives on September 20 and 29.
But even if it is assumed, arguendo, that Guttman was at the shop at noon on
October 20 and that McClinton, as well as James, failed to appear, why did Gutt-
man fail to rehire Bell, who was laid off allegedly only for lack of work, or McClin-
ton, or James when, during the following weeks, he repeatedly needed to hire new
employees because the men hired on October 25 and thereafter either quit or were
discharged?
At the meeting on October 27, the explanation was that Guttman felt an "obliga-
tion" to the new employees but, needless to say, that obligation does not explain
why he did not recall either Bell, McClinton, or James within a few days when
the men working on October 27 either quit or were discharged.
Then, on November 4, Guttman's attorney wrote to the Union offering to take
the men back but, at the same time, making it clear that if they quit their current
jobs and returned, Guttman would give them no "assurance" that they would
remain on his payroll.
Of course, Guttman was under no obligation to promise to keep McClinton,
James, and Bell in perpetuity. However, the letter did not point out that although
they might be let go for such reasons as lack of work or misconduct, it did not
give any "assurance" that their job security would not be affected, even in part,
by their decision to be represented by the Union. Of course, the November 4 letter
was written by an attorney who has a perfect command of English and who, in
addition, must have been aware of the employees' rights and Guttman's obligations
under the Act.
It is obvious that the above letter almost certainly guaranteed that the men
would not quit their jobs and accept the offer of reinstatement and, in my opinion,
the letter provides perhaps the strongest evidence in the record that Guttman was
determined from October 8 on that McClinton, James, and Bell would never work
for him again, that he closed the shop for the entire holiday period as the first
step in removing them from the payroll, and that if they had accepted reinstate-
ment, they would not have been retained very long. Cf. N.L.R.B. v. Sunrise Lum-
ber & Trim Corp., 231 F.2d 620, 623, 625 (C.A. 2), cert. denied 355 U.S. 818 .28
This conclusion is borne out by Guttman's failure to recall any of the three men
during the days and weeks immediately following the letter although he was unable
to find men he wanted to or could keep for more than a few days or weeks. Need-
less to say, the repeated turnover of employees caused Guttman some inconvenience
which could have been avoided if he had recalled at least McClinton and James
who had worked for him for several years and who had given generally satisfactory
service. (In considering Guttman's actions during this period, his statements to the
employees before October 8 cannot be ignored, including his criticism for having
gone "behind his back" and joining the Union, his warning that they would be
"sorry" for their actions, and his advice that they should find other jobs if they
wanted to be represented by a union.)
Going back to the events on October 8, it is significant that, in the past, Guttman
had not closed the shop during the entire 9-day holiday period, but, instead had
closed during only the first 2 and last 2 days of the 9-day holiday. Moreover, it
must be remembered that the shop had already been closed for a substantial period
29 Under all of the circumstances, I agree with the General Counsel's contention that the
offer of reinstatement contained in the letter did not constitute an unconditional offer which
barred any future liability. Of course, Guttman had no reason to believe that Bell had
found other employment and, therefore, might not want to return or might not remain
if he did return.
JENO GUTTMAN 741
in recent months, including the summer vacation, for 2 Jewish holidays in Septem-
ber, and for another during the first week in October. In addition, Guttman gave
inconsistent reasons for the decision to close for the entire period. According to
McClinton, Guttman told him and James that he would be closed for the Jewish
holidays and also that he would be looking for business. In his November 18 affi-
davit, Guttman stated that his "house requirements" and the "health of [his] wife
required that [he] should go to the country for the entire holidays to rest up." On
the other hand, he testified at the hearing that he (not his wife) was not in good
health and that he and his wife went to Montreal, Canada, for a vacation and a
rest. He also said that he "prayed" during the holidays. These conflicting state-
ments disclose that Guttman had no firm and unvarying reason for closing the
entire period but that he gave first one and then another reason for the decision
to close.
In determining what Guttman told McClinton and James on October 8 and, more
particularly, how they interpreted his actions and statements, it is necessary to
consider his earlier comments in connection with the employees' decision to be
represented by the Union. As set forth supra, these included remarks which indi-
cated he would close the business permanently, such as a remark indicating that
he might not pick up the pouches of material at the place of business of a supplier
on September 20, his unequivocal statement to McClinton and James that, rather
than have a union, he would close the plant and find himself a job as manager,
that they would be "sorry" because they had decided to be represented by a union,
and that if they wanted union representation, they should find jobs in a unionized
shop or plant.
While making his announcement and giving his instructions on October 8, Gutt-
man continued to write checks even when James said that he did not understand
what Guttman was saying, conduct which was not designed to make the men feel
that he cared particularly whether or not they understood his instructions or
whether or not they reported to work when the shop reopened.29 In addition, in
referring to their return, Guttman stressed the word "if" which surely added to the
employees' doubts about whether Guttman was giving them firm instructions to
report and about whether, if they did so, they would have jobs. Moreover, Guttman
did not give the men dimes so that they could call him about when to return to
work as he had often done when the shop was closed on previous occasions and
this was one reason why James was uncertain about Guttman's plans. The men
were also aware that Guttman had never before closed the shop for 9 days in order
to observe this particular holiday and they knew, of course, that Bell had been
terminated 2 weeks earlier. And, as brought out by Respondent's counsel, McClinton
"assumed" that Guttman meant that the men could return if they were no longer
in the Union.
That the men in fact had good-faith doubts about whether they would be
employed by Guttman if or when the shop opened is demonstrated not only by
their conversation on their way home but, even more convincingly, by their wholly
unprecedented action in looking for and accepting other jobs the next week. This
is particularly significant in the case of James who had worked for Guttman for
51/ years and who informed Guttman at the time that he did not understand
Guttman's instructions and was uncertain about what he was supposed to do 30 In
short, I am convinced and find that James did not understand that he was to report
on October 20. Furthermore, subsequent events proved that their doubts were justi-
fied for the shop was closed on October 20 and Respondent refused to take them
back even when their "replacements" quit or were discharged a few days later.
It should also be noted that James' failure to be rehired on October 20 was not
due to the fact that he did not report on that date. On the contrary, if he had gone
to the shop at noon that day, his trip would have been as futile as was McClinton's
who, when he got there, found the shop locked. As a matter of fact, if James had
29 Guttman's heavy accent makes it difficult to understand what he is saying even under
the best of conditions
ao I credit the testimony of James and McClinton that James told Guttman that he did
not understand what Guttman meant. I do not credit Guttman's claim that he stated
clearly that the men were to return at noon on October 20 and that both men said that
they understood his instructions. It is clear, of course, that McClinton understood that
Guttman was saying that the shop would be open on October 20, to report at noon, and
that he did so However, this does not mean that McClinton was sure that he could have
a job if he did report.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quit his interim job and gone to Guttman's on October 20, Guttman's liability for
backpay (if any) would have been increased because James would have been unem-
ployed for some period. In other words, because of James' action, Guttman's back-
pay liability (if any) was reduced by reason of James' earnings between October 20
and December 10, the date he was laid off by Lawrence Temporaries.
In short, the fact that the shop was closed on October 20 makes immaterial
Guttman's instructions on October 8, no matter what they may have been 31
As previously indicated, the events on October 8, October 20, and thereafter
cannot be divorced from Guttman's clear determination not to recognize and bar-
gain with the Union. Not only did he refuse to do so but he sought to destroy its
majority, first by terminating Bell and then by threatening to close the plant and
by promising benefits. However, it was obvious on October 8 that these measures
had not caused McClinton and James to change their minds and Guttman had
learned the day before that the Union had started legal action to establish its repre-
sentative status and his obligation to bargain by filing a petition with the Board.
As noted above, Guttman instructed McClinton and James to "talk over" their
decision to be represented by the Union and later asked if they had done so. Such
questions were designed to disclose whether Guttman's actions had been effective
and the employees' answers made it very clear that the men had not changed their
minds. This means both that the Union was almost certain to win a Board-conducted
election and that Guttman's duty to bargain was clear and unequivocal as long as
McClinton and James were on the payroll and that Guttmn's only possible excuse
for refusing to bargain was to get rid of McClinton and James.
However, Guttman had no "excuse" for discharging McClinton and James, who
had been employed for 18 months and 51/2 years, respectively. But the holidays on
October 11 and 12 and 18 and 19 provided him with an "excuse" to close the shop
and on October 8 he announced that the shop would be closed for the entire 9-day
period although it had never closed for the entire 9 days in the past. Nor did he
give the men dimes so that they could call him, as he had done in the past, nor
did he send them cards when they did not report on October 20. Furthermore,
whatever his instructions were about returning on October 20, he rendered them
meaningless by failing to be at the shop on October 20. Finally, when the Union
demanded the reinstatement of the men, Guttman refused to give assurance that
their union activity would not affect their future employment if they quit their jobs
and accepted "reinstatement" and repeatedly hired new employees although he had
given his "obligation" to his new employees as the reason for failing to take the
men back. Finally, Guttman's various versions of what happened and why provide
additional proof that he was seeking to conceal what really happened and casts
doubt upon his motive for his actions. As indicated above, the letter of Novem-
ber 4, standing alone, provides convincing proof that Guttman's entire course of
conduct was designed to make sure that neither Bell, nor McClinton, nor James
would ever work for him again.
Having considered, inter alia, Guttman's knowledge that the three men had
authorized the Union to represent them, his refusal to recognize the Union, his
layoff or discharge of Bell a few days after he obtained this information and the
Union's first request, his interrogation, threats, and promises, the unreliability of
his statements and testimony, his unprecedented decision to close during the 9-day
holiday period, his statements and actions on October 8, his failure to open the shop
on October 20, his failure to recall Bell, as well as the other employees, on or after
October 20 or on October 27, or thereafter despite his need for new employees and
his repeated hiring of new men, and the letter of November 4 which offered no
assurance that, if the men accepted reinstatement, their prior or subsequent desire
for union representation would not affect their job security, I am convinced and
find that a preponderance of the evidence supports the allegation of the complaint
that Respondent violated Section 8(a)(3) and (1) of the Act by discharging and
thereafter failing and refusing to recall McClinton and James because they joined
the Union and sought to be represented by the Union.
Concededly, during most of the time, Guttman employs only two men so that
Bell's termination, if it stood alone, might well have been found to have been
caused by the reason asserted by Guttman; i.e., that he was hired for only a few
weeks. However, having considered the absence of documentary evidence concern-
"Guttman stated in his affidavit that he "had no wav of getting in touch with" the
men because they had no telephones However he had their addresses and although they
might have moved between October 8 and 20, there is no evidence that they did so and it
seems unlikely that they would have done so.
JENO GUTTMAN 743
ing the volume of business at the time Bell was hired and at the time he was termi-
nated , the timing of his discharge , i.e., a few days after Guttman learned of the
union activity and after the Union 's first bargaining request and Bell's admission
that he had joined the Union, the probable effect of his termination on the union
activity of McClinton and James , and Guttman 's failure to recall him when he
needed men on numerous occasions on and after October 25 , I find that Bell was
terminated , like McClinton and James , because of his union activity and to dis-
courage further union activity by McClinton and James . It follows, therefore, and
I find that Guttman violated Section 8(a)(3) and ( 1) of the Act by discharging
Bell.32
CONCLUSIONS OF LAW
1. Jeno Guttman is an employer engaged in commerce within the meaning of
Section 2 ( 2), (6), and ( 7) of the Act.
2. District 65, Retail, Wholesale and Department Store Union , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. All warehouse freight handlers ( sorters-packers ) employed by Guttman at
his place of business , exclusive of office clerical employees , guards, and all super-
visors as defined by Section 2(11) of the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act.
4. On or before August 21, 1965, all of the employees of Guttman in the unit
described above authorized the Union to represent them in collective bargaining
and at all times thereafter the Union was the statutory bargaining representative of
the employees in the unit.
5. Guttman violated Section 8(a)(5) and ( 1) of the Act by refusing, on request,
to bargain with the Union which was the statutory bargaining representative of the
employees in the unit set forth above.
6. Guttman violated Section 8(a)(1) of the Act by coercively interrogating
employees concerning their union activity and sympathies , by threatening repris-
als for engaging in union activity , and by promising benefits in an effort to inter-
fere with , coerce, and restrain the employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
7. Guttman violated Section 8(a)(3) and ( 1) of the Act by terminating the
employment of and failing to recall Charles Bell, Albert McClinton , and Daniel
James because of their union activity , in order to discourage further union activity
and to avoid his obligation to bargain with their statutory representative in an
appropriate unit.
THE REMEDY
Having found that Guttman committed various unfair labor practices, the Rec-
ommended Order will contain the usual cease-and -desist provisions and the affirma-
tive relief normally provided in such cases. Any backpay found to be due Bell,
McClinton , and James will be determined in accordance with the formulas set
forth in F. W . Woolworth , 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716. Because Guttman 's actions indicate that he will engage in similar con-
duct in the future, if his employees engage in union activity and seek union repre-
sentation , and because discharges for union activity go to the very heart of the
Act (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4)), the order will
direct Guttman to cease and desist from interfering with, restraining , or coercing
his employees in the exercise of their statutory rights by engaging in any other
conduct.
Upon the foregoing findings of fact, conclusions of law, the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Jeno Guttman , his agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in District 65, Retail, Wholesale and Department
Store Union, AFL-CIO , or in any other labor organization , by laying off, dis-
charging , failing to recall, or by in any other manner, limiting the job oppor-
tunities of his employees because of their union activity or in order to destroy
as There is no evidence that Bell had found a better job so that Guttman had no reason
to fear that he would not remain even if recalled Of course , even if McClinton and Tameg
had not stayed long, Guttman would not have been any worse off than he was a , a reault
of the brief periods worked by most of the replacements
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's majority or to avoid his obligation to bargain with the statutory
bargaining representative of his employees in an appropriate bargaining unit com-
posed of warehouse freight handlers ( sorters -packers ) exclusive of office clerical
employees , guards , and supervisors as defined by the Act.
(b) Refusing to bargain , on request , with the Union which is the statutory
bargaining representative of the employees in the unit described above.
(c) Coercively interrogating employees concerning their union activity , threaten-
ing reprisals for engaging in union activity , including selecting a union to repre-
sent them in collective bargaining , and making promises of benefit designed to
interfere with, coerce, or restrain the employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
(d) In any other manner interfering with, restraining , or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer Charles Bell, Albert McClinton , and James Bell immediate and full
reinstatement to their former or substantially equivalent positions with all the
seniority rights and benefits accumulated as of October 8, 1965, and make them
whole, in the manner set forth in the section entitled "The Remedy" for any
losses each may have suffered by reason of the discrimination against him . Notify
the above -named employees if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(b) Bargain , on request , with District 65 , Retail , Wholesale and Department
Store Union , AFL-CIO, the bargaining representative of the employees in an
appropriate unit, concerning their wages, hours of employment , or other conditions
of employment , and, if agreement is reached , embody such agreement in a collective-
bargaining agreement and sign it.
(c) Discharge , if necessary in order to reinstate Bell, McClinton , and James,
any replacements hired to replace them.
(d) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records and
reports, and all other reports necessary to analyze the amount of backpay due
under these recommendations.
(e) Post at his place of business copies of the attached notice marked "Appen-
dix." 33 Copies of said notice to be furnished by the Regional Director for Region
2 after being signed by Respondent Guttman shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered by any other material.
(f) Notify the Regional Director for Region 2, in writing , within 20 days from
the date of the receipt of this Decision , what steps the Respondent has taken to
comply herewith 34
33 In the event that this Recommended Order is adopted by the Board, the words, "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice In the further event that the Board' s Order is enforced by a
decree of a United States Court of Appeals, the words, "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words, "a Decision
and Order."
34 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read • "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , I hereby notify my employees that:
I WILL NOT discourage membership in District 65, Retail , Wholesale and
Department Store Union , AFL-CIO, or in any other labor organization, by
HILL-BEHAN LUMBER CO. 745
discharging , failing to take back, or by engaging in any other conduct which
limits the job opportunities of employees because they engage in union activity
and choose to be represented by a union.
I WILL NOT coercively question employees about their union activity or
their feelings about union representation, or threaten to close the plant or
make other statements indicating that employees will lose their jobs because
of their union activity, or make promises of improved working conditions
if they cease their union activity and change their minds about union
representation.
I WILL NOT refuse to bargain , on request , with District 65 , Retail, Whole-
sale and Department Store Union, AFL-CIO, or any other union which
represents a majority of the sorter -packers.
I WILL NOT in any other manner interfere with, restrain , or coerce my
employees in the exercise of the rights guaranteed them by Section 7 of the
National Labor Relations Act.
I WILL offer Charles Bell, Albert McClinton , and Daniel James immediate
and full reinstatement to their former jobs, with all of their former benefits
and will pay them for any losses they may have suffered because of my
failure to employ them due to the fact that they engaged in union activity
and decided to be represented by District 65.
I WILL bargain , upon request, with District 65 about the wages, hours, and
other conditions of employment of the sorter-packers and , if agreement is
reached, will put it into writing and sign it.
The bargaining unit consists of the warehouse freight handlers (packer-
sorters) exclusive of office clerical employees, guards, and supervisors as
defined by the Act.
All of my employees are free to become and remain or to refrain from becom-
ing or remaining members of District 65, or of any other Union , unless union
membership is required by a valid provision in a collective-bargaining contract.
JENNO GUTTMAN,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-I will notify any of the above-named employees presently serving in
the Armed Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Mili-
tary Training and Service Act, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Tele-
phone PL1-5500, Extension 852.
Hill-Behan Lumber Company and Retail , Wholesale Employees
Union, Local 291, affiliated with Retail , Wholesale, Department
Store Union , AFL-CIO. Cases 13-CA-6942 and 13-RC-104913.
January 9, 1967
DECISION AND ORDER
On September 15, 1966, Trial Examiner Frederick U. Reel issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
162 NLRB No. 65.