Lamson Automatic Service

National Labor Relations Board - Board Decisions

Jun 16, 1961

131 N.L.R.B. 1157 (N.L.R.B. 1961)

LAMSON AUTOMATIC SERVICE 1157
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289. As provided in the Woolworth case, I recommend further that Re-
spondent make available to the Board on request payroll and others records in order
to facilitate the checking of the amount of backpay due.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act, and the danger of their commis-
sion in the future is to be anticipated from the Respondent's conduct in the past.
The preventive purposes of the Act will be forfeited unless the order is coextensive
with the threat. In order therefore, to make more effective the interdependent guar-
antees of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, I shall recommend that Respondent be ordered to cease and
desist from infringing in any manner upon the rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Lester Brothers, Incorporated, is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO is a
labor organization within the meaning of Section 2(5) of the Act.
3. By interrogating and threatening employees concerning their union activities and
sympathies, and by other acts, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of James
Rorer Martin and Charlie M. Craig, thereby discouraging membership in the labor
organization named in paragraph numbered 2, above, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and
(1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Leonard Isserlis, d/b/a Lamson Automatic Service and Robert
J. English. Case No. 3-CA-1469-2. June 16, 1961
DECISION AND ORDER
On December 21, 1960, Trial Examiner Thomas F. Maher issued his
Intermediate Report 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
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.'
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers in connection with this proceeding to a three-member panel
[Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
' As the record , exceptions , and brief adequately reflect the issues and positions of the
parties, the Respondent 's request for oral argument is denied.
131 NLRB No. 144.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner.3
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Leonard Isserlis,
d/b/a Lamson Automatic Service, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Dairy and Bakery Salesmen and
Dairy Employees Local Union No. 316, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by
discharging or in any other manner discriminating against employees
in regard to hire and tenure of employment or any term or condition
of employment, except as permitted by the proviso to Section 8 (a) (3)
of the Act.
(b) Requesting their employees to engage in the surveillance of
their employees with respect to said employees' union membership
and activities.
(c) Threatening their employees with discharge if they fail or re-
fuse to engage in surveillance.
(d) Promising benefits to their employees in return for their sur-
veillance of employees.
(e) Interrogating, in a manner constituting interference, restraint,
or coercion, their employees concerning their membership and interest
in the Union, and the progress of the Union's organizational campaign
among its employees.
(f) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist the Union, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2 Footnote 1 of the Intermediate Report incorrectly states that the amended charge
herein was filed by the Regional Director . This amended charge was filed by the
Charging Party English . The Intermediate Report is corrected accordingly.' •
8In the absence of exceptions thereto , the Board' adopts pro forma the findings and
conclusions of the Trial Examiner set forth in footnote 9 of the Intermediate Report.
LAMSON AUTOMATIC SERVICE 1159
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
- (a) Offer to Robert J. English-immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges.
(b) Make whole Robert J. English for any loss of pay that he may
have suffered by reason of the discrimination against him by payment
to him of a sum of money equal to the amount which he normally
would have earned as wages from the date of his discharge to the date
`of Respondent's offer of reinstatement, less his net earnings, during
said period, in the manner set forth in section VI of the Intermediate
Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all records necessary for the determination of the amount of backpay
due under this Order.
(d) Post at its Syracuse, New York, plant copies of the notice at-
tached hereto marked "Appendix A." 4 Copies of said notice, to be
furnished by the Regional Director for the Third Region, shall, after
being duly signed 'by the Respondent's authorized representatives, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure
,that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Third Region, in writing,
-within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply therewith.
d In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Dairy and Bakery
Salesmen and Dairy Employees Local Union No. 316, Interna-
tional Brotherhood of Teamsters. Chauffeurs, Warehousemen
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Helpers of America, by discharging or in any other manner
discriminating against our employees in regard to their hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT request our employees to engage in the surveillance
of our employees with respect to their union membership or
activities.
WE WILL NOT threaten our employees with discharge if they
fail or refuse to engage in the surveillance of their fellow em-
ployees.
WE WILL NOT promise our employees benefits in return for
their surveillance of their fellow employees.
WE WILL NOT in a manner constituting interference, restraint,
or coercion interrogate our employees concerning their member-
ship or interest in the Dairy and Bakery Salesmen and Dairy
Employees Local Union No. 316, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
and the progress of its organizational campaign among our
employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to assist Dairy and
Bakery Salesmen and Dairy Employees Local Union No. 316,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, to bargain collectively
through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Sec-
tion 8(a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of
1959.
WE WILL offer to Robert J. English immediate and full rein-
statement to his former or substantially equivalent job, without
prejudice to any rights and privileges previously enjoyed by
him, and we will make him whole for any loss of wages suffered
as a result of the discrimination against him.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union, or any
other labor organization, except to the extent that this right,may be
.affected by a lawful agreement, requiring membership in a labor
,organization as a condition of employment, as authorized in Section
c
LAMSON AUTOMATIC SERVICE 1161
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
LEONARD ISSERLIS , DOING BUSINESS AS
LAMSON AUTOMATIC SERVICE,
Employer.
Dated---------------- By-------------------------------------
(LEONARD ISSERLIS)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and amended charge filed on July 13 and September 2, 1960,,
respectively, by Robert J. English, herein called the Charging Party, the Regional
Director for the Third Region of the National Labor Relations Board, herein re-
ferred to as the Board, issued a complaint on September 2, 1960, against Leonard
Isserlis, d/b/a Lamson Automatic Service, herein called the Respondent,' alleging
violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as
amended (61 Stat. 136, 73 Stat. 519), herein called the Act. In its duly filed
answer, Respondent, while admitting certain allegations of the complaint, denied the
commission of any unfair labor practice.
Pursuant to notice, a hearing was held before Thomas F. Maher, the duly desig-
nated Trial Examiner, on October 24, 1960, at Syracuse, New York. All parties,
together with Dairy and Bakery Salesmen and Dairy Employees Local Union No.
316, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, of which the Charging Party was a member, were represented'
at the hearing, and were afforded full opportunity to be heard, to introduce relevant
evidence,2 to present oral argument, and to file briefs. Oral argument was waived'
and briefs were thereafter filed with me.
Upon consideration of the entire record before me, including arguments in sup-
port of motions made at the hearing, the briefs of the parties, and upon my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Leonard Isserlis, an individual, doing business under the trade name and style-
of Lamson Automatic Service, maintains an office, warehouse, and place of business
in Syracuse, New York, and at all times relevant has been engaged in the business
of installing and servicing automatic vending machines at various locations in the
Syracuse, New York, area, for the purpose of selling cigarettes, candy, food, and'
related products. In the course and conduct of its business operations, Respondent
1 The Regional Director appears to have filed the amended charge to designate correctly
the Respondent Employer whose name was improperly stated in the original charge as-
Lamson Automatic Vending Service. It Is Respondent's contention that the only operative
charge is the one filed on September 2, 1960, and served on it on September 6. From this
Respondent further contends that inasmuch as the matters alleged in the complaint herein
occurred more than 6 months subsequent to the filing and service of what it contends to.
be the only operative charge in the proceeding the provisions of Section 10(b) of the Act
required dismissal of the complaint. As "there is nothing to indicate that Respondent
was In any way misled or prejudiced by the clerical error" and because "the•correetion
of minor errors of this nature Is a proper function of the amended charge," Respondent's
motion to dismiss on such grounds are denied N.L R B. v. East Texas Steel Castings Co ,
211 F . 2d 813, '815 (C.A. 5). See also Walsh-Lumpkin Wholesale Drug Co., 129 NLRB 294.
2 Respondent called no witnesses but rested its case upon the conclusion of the General'
Counsel 's case-in-chief. At that time it moved to dismiss the complaint for failure of-
proof, on which motion I reserved ruling For reasons that will be stated in fuller detail;
herein , Respondent' s motion to dismiss is hereby denied.
d
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
annually purchased, transferred, and delivered to its Syracuse office, cigarettes,
candy, food products, and other goods and materials valued in excess of $350,000,
which products were shipped or transported to Respondent's place of business
directly from States of the United States other than the State of New York. It is
admitted that Respondent is engaged in commerce within the meaning of the Act,
and I so find.
H. THE LABOR ORGANIZATION INVOLVED
Dairy and Bakery Salesmen and Dairy Employees Local Union No. 316, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein referred to as the Union, is a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE ISSUES INVOLVED
• 1. The substantiality of evidence presented to support the alleged discriminatory
discharge of Robert English.
2. The unlawful nature of Respondent's admitted interrogation of its employees.
IV. THE UNFAIR LABOR PRACTICES
A. The advent of the Union
Union organization among Respondent's employees first occurred in December
1957. Thereafter, on January 12, 1960, following several unsuccessive recruiting
efforts, a representation petition was filed with the Board and, after a hearing on the
matter, an election was held on April 8, 1960, in which all eight of Respondent's
employees selected the Union as their bargaining representative.3
As the final organizing campaign got under way, a meeting of the employees was
held on January 9, 1960, at a local restaurant. Included among those present at
this meeting were employees Robert English and Tagmi and Supervisor Ned
Mascato who was then seeking membership in the Union?
Concurrent with the Union's campaign, Respondent sought to inform itself of
what was taking place and its extent. Thus Supervisor Mascato was called to
Respondent Isserlis' office and, in Mrs. Isserlis' presence, was asked if he knew
anything about union activities; to which Mascato replied in the negative .5 Where-
upon Mrs. Isserlis volunteered the suggestion that they should "fire the whole bunch
of them." Isserlis then stated to her, "I am going to leave everything in your hands.
I will leave everything up to you."
B. Mrs. Isserlis' status
The General Counsel contends and Respondent denies that Mrs. Isserlis was an
agent of Respondent whereby Respondent was bound by her conduct. The fore-
going incident persuades me that Mrs. Isserlis' participation in this and other inci-
dents to which I shall refer was not merely wifely encouragement of her spouse
in a moment of tension and stress.
As early as February 1959, she had taken a deep and abiding interest in labor
relations of Respondent, having sent for Supervisor Mascato and an employee,
DeRosa, and obtained from them information as to the extent of the organizing
campaign then in progress, and the names of those active in it; at which time she
had suggested firing everyone involved, including Robert English, whose name
was among those given to her. Subsequently, as set forth in detail hereafter, Mrs.
Isserlis solicited employee Robert English's aid, asking him to report to her when-
ever he was contacted -by the Union or heard anything about its And finally;
according to employee Zucco, she was frequently present at the plant and at such
times maintained a desk in the warehouse.
From the foregoing account of her participation in the affairs of Respondent, I
conclude and find that Mrs. Isserlis was acting, at least indirectly, as an agent of
the Employer.? Consequently, and in the absence of evidence that Respondent
Case No. 3-RC-2266 ( not published in NLRB volumes).
Mascato was in poor health at the time of the hearing He testified , that he^took,ofe,
sick in January 1960 and was discharged thereafter in February . • , , • I ,.
• 5 The credited, uncontradicted testimony of Mascata who, throughout his testimony,
Impressed me as a sincerely truthful witness.
e The credited , uncontradicted testimony of Robert English.
7 Section 2(2) of the Act provides that "the term `employer ' Includes any person acting
as an agent of an employer , directly or indirectly...."
LAMSON AUTOMATIC SERVICE 1163
Isserlis ever sought to disavow the impression of managerial control his wife had
created, I would hold that her conduct as found herein is attributable to Respondent
Isserlis.8
C. The interrogation of employees
As the election approached, Respondent's curiosity increased. Employee Joseph
Zucco was called to the office by Isserlis who inquired of him what be knew about
the Union coming in and how he felt about it. After receiving what appears to
have been an equivocal answer from Zucco, Isserlis then told him he did not need
a union to bargain in his behalf and "went onto explain how a town in Texas was
made a ghost town on account of Union."
Isserlis also called employee Lovelace to his office around the same time and, as
in the case of Zucco, asked him if he knew anything about the Union and urged
him to vote against the Union in the coming election.9
D. Robert English
Robert English was hired by Respondent as a routeman on March 2, 1958. His
duties involved the regular visiting of various locations in the Syracuse area where
Respondent's vending machines were installed. There he replenished the supply of
foods, candies, and cigarettes dispensed by the machines, made collections, and per-
formed such repair work as was necessary to maintain the machines in working
order.
English joined the Union at the meeting held on January 9, 1960. Shortly there-
after he received a telephone call at his home from Mrs. Isserlis who sought English's
aid in coping with the Union. English's credited account of this conversation
follows:
Well, first she told me who she was, and said she was at the shop looking over
the men that worked and trying to pick out an informer, and she said she had
an informer and he was no longer with them and she said "You probably heard
what is going on ," and I said "I did, it is the Union." She said she picked me
to be the informer because I had a home and a new car and another baby on
the way. She asked me if I had heard anything about it yet, and I denied it,
and said "No," and she said "Sooner or later they will have to get in touch
with you because they need your signature for a petition," she said, and no
matter what time of the day or the night it was, to call her, no matter what
time of the day or night, and I would be well taken care of if I did, and if I
diua't, I was around long enough to see what happened to the people that don't
cooperate with them; and that is it.
Mrs. Isserlis thereafter sought out English at the plant. To quote English:
She got me in the cigarette room, she met me in the cigarette room when we
were alone, and asked if I heard anything yet.
And again in late February she asked English if anybody had tried to contact him,
and he told her that they had not. She then said that she could not understand
why, that "she thought something was funny."
Shortly thereafter, on March 2, 1960 , Respondent Isserlis telephoned English
and told him, "You need not bother coming in tomorrow, we don't need you any
more, we don't see eye to eye." When English asked him what he meant, Isserlis
replied, "You know what I mean ." English called Isserlis back later in the after-
noon and asked him for a reference and for his advice as to how he should handle
8 Cf. N L.R B. v. Solo Cup Company, 237 F . 2d 521 , 523 (C A. 8), enfg. 114 NLRB
121, 123.
9 During the course of his conversation with Lovelace , Isserlis also mentioned the fact
that "the pay standard would be changed." And in the conversation with.Zucco reported
above, Isserlis made reference to the 6 months presently intervening between periodic
wage increases , and said that he found himself in a better position to give wage increases
earlier
The complaint alleged as a violation the promise of a change of pay policy if employees
refrained from becoming or remaining members of the Union, or giving any assistance or
support to , it. Because I found nothing in the testimony relating to the change of pay
period , as referred to above, that would relate or condition such a change to a with;
drawal from the Union or to the withdrawal of assistance or support from the Union, as
alleged, I dismissed -the foregoing allegation of the complaint at the hearing upon Re-
spondent's motion at the close of the General Counsel 's case-in -chief, on the ground that
in respect to said allegation he had failed to establish a prima facie violation.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his unemployment insurance problem. As to the reference Isserlis stated that he
would "think it over." He then stated, "If you don't hurt me, I won't hurt you."
English has not since worked at Respondent's establishment.
E. Respondent's contentions
It is Respondent's position that Robert English was discharged for cause, the
reason being his continuing unsatisfactory work record after repeated warnings.
Apart from its contention that English's work was unsatisfactory, Respondent further
claims that it was without * knowledge that English's union membership or activity
at the time he was discharged and that accordingly a violation would not lie
F. Analysis and conclusions
Credited testimony in the record, specifically Supervisor Ned Mascato's testimony
on cross-examination, definitely attests to English's shortcomings as a routeman.
Thus it appears that there have been numerous instances over the entire 1959 period
where English had put the merchandise in the wrong compartments of the vending
machines he was servicing, thereby confusing customers who may have, for example.
selected a chocolate bar for purchase from the machine only to receive gumdrops.
These errors, according to Mascato, had created a situation where Respondent fore-
saw the possibility of losing some of the accounts where these errors had occurred.io'
In addition, Mascato attested to English's consistent tardiness. These reasons, Re-
spondent contends, amply justify English's discharge after numerous warnings had
been given for the shortcomings noted.
What is more significant in the record than the evidence of English's shortcomings,
as outlined above, and the warnings that English admittedly received, is the wide-
spread prevalence of these same faults, poor servicing and tardiness, among all the
other routemen.ii
Thus, we have here a situation where the employee who was dismissed with no
reason given him except that he and Respondent did not see "eye to eye" is there-
after classed as one whose work was unsatisfactory, albeit in an environment where
mediocrity appears to have been tolerated. The unsatisfactory character of Eng-
lish's work accordingly becomes the dominant issue In this respect I note from a
summary of Mascato's credited testimony that (1) English, though constantly tardy,
was no less vulnerable in this respect than either Tagni or Turdlow who, though
"late almost every morning" are still employed, (2) all of the employees had
poor records of servicing machines and English's status in this respect was "average,"
and (3) English's unsatisfactory work was of long duration, having been known to
Respondent all through the previous year. Upon consideration of the foregoing
factors surrounding the precise quality of Robert English's work as it was known on
March 2, 1960, I am persuaded it had neither become so aggravated nor had
Respondent been so suddenly surprised by it that it was truly the force which drove
Isserlis to telephone English, discharge him, and explain his action by saying, "You
know what I mean." 12
On the contrary I cannot but infer the only reasonable explanation for Isserlis'
otherwise unreasonable and precipitous personnel action; this I find to be a final
realization that English, whom Respondent had selected as informer in labor relations
matters, had failed them, as evidenced by Mrs. Isserlis' surprise at English's report
that he had nothing to report.
In finding as I have, I must necessarily reject Respondent's contention that it was
without knowledge of English's union activity. Under all of the circumstances pre-
sented herein , entirely apart from any consideration of the number of employees
in the organization, it can be reasonably inferred that Respondent knew of English's
union membership and activity. Thus we have the credited account of Mrs. Isser-
1' Mascato also indicated that on frequent occasions machines serviced by English were
found to be empty. Absent proof that English had failed to visit the machine on schedule,
or had failed to fill it when he did visit it, I fail to see how the popularity of a given
food or cigarette product, to the point,of exhaustion of supply, would reflect upon English's
capability as a routeman Accordingly, I do not view such a condition as evidence of his
shortcomings.
u For the reasons previously stated in footnote 10, I do not deem it of evidentiary
value that Mascato, in a routine survey, had found empty machines among those serviced
personally by Respondent Isserlis.
u "The difficulties in his case only became seriously unsupportable to his employer"
upon joining the Union. Agwilines, Inc. v. N.L R B., 87 F. 2d 146, 154 (C.A. 5).
LAMSON AUTOMATIC SERVICE 1165
lis' disappointment with his informer duties and her surmise that "something was
funny." From this established fact of ineffective spying the further fact that English
was also a union member is a reasonable and purely logical conclusion. Indeed, the
whole tenor of Mascato's credited testimony was that Mrs. Isserlis believed every one
of the employees to be in the Union and that English was selected as an informer
only because of his economic and domestic vulnerability, and not for any supposed
"loyalty" to Respondent's antiunion sentiments. In such a context Respondent's
feelings toward English cannot be denied 13
Because "direct evidence of a purpose to violate the statute is rarely obtain-
able," 14 it follows that I must rely upon an evaluation of the attending circumstances
which reasonably suggest the underlying motive for the misfortune which thereupon
befell English. I have no alternative but to conclude, as I do, that all of the
circumstances herein , including above all Mrs. Isserlis' solicitation of English , estab-
lished the fact that he was dismissed not for the reasons belatedly offered in the
pleadings, but for his failure to inform on his fellow employees and for his member-
ship in and participation in and on behalf of the Union. Accordingly, I conclude
and find that by thus discharging him for a reason proscribed by the Act, Respond-
ent has violated Section 8(a) (3) and (1).15
In addition to its discriminatory discharge of Robert English Respondent has been
shown to have sought his services as an informer under threat of dismissal and with
promise that he "would be well taken care of" (supra). Citation of authority is
unnecessary to establish that such conduct, as described by credible evidence here,
interferes with, restrains, and coerces employees in the exercise of their statutory
rights. I therefore find that in these respects Respondent has violated Section
8(a)(1) of the Act.
Moreover, the detailed facts clearly show that Respondent, through both Mr. and
Mrs. Isserlis, interrogated employees English, Lovelace, and Zucco as to what they
knew of the Union and how they felt about it. In the context of Respondent's an-
tipathy toward the self-organization of its employees, as illustrated by the extremes
it has already been shown to have gone, it is clear that such conduct is neither iso-
lated nor inconsequential, but on the contrary constitutes further interference, re-
straint, and coercion in violation of Section 8 (a) (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section N, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
VI. THE REMEDY
It has been found that Respondent by discharging and refusing to reinstate Robert
J. English , discriminated against him in respect to his tenure of employment in
violation of Section 8(a) (3) of the Act. I shall therefore recommend that Respond-
ent cease and desist therefrom and from infringing in any other manner upon the
rights of employees guaranteed in Section 7 of the Act.16 I shall recommend that
the Respondent offer to the aforementioned employee immediate and full rein-
statement to his former or substantially equivalent position,17 without prejudice to
his seniority or other rights and privileges. I shall also recommend that Respondent
make him whole for any loss of earnings that he may have suffered because of the
discrimination against him , by a payment of a sum of money equal to the amount
he would normally have earned as wages from the date of his discrimination to the
date of the offer of reinstatement , less his net earnings during said period, with
backpay computed in the customary manner.18 I shall further recommend that the
Board order the Respondent to preserve and make available to the Board upon
request payroll and other records to facilitate the checking of the amount of backpay
due and the rights of employment.
13 The Radio Officers' Union of the Commercial Telegraphers Union, AFL ( A. H Bull
Steamship Company) v. N.L R.B., 347 US 17, 44-45; Cook Paint & Varnish Co., 129
NLRB 427
14 Hartsell Mills Company v. N L R B , 111 F. 2d 291, 293 (C A 4)
" Donald L Trettenero , et al., d/b/a Trettenero Sand and Gravel Co, 129 NLRB 610
11 N L.R B. v. Lamar Creamery Company, 246 F 2d 8 (C A. 5).
17 The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch,
65 NLRB 827.
18 F W Woolworth Company, 90 NLRB 289.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Respondent occur in commerce within the meaning of Sec-
tion 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 discriminating in regard to the tenure of employment of Robert J. English,
the Respondent has engaged in and is engaging in an unfair labor practice within
the meaning of Section 8 (a) (3) of the Act.
4. By the foregoing conduct, and by requesting an employee to engage in the
surveillance of its employees, by threatening its employee with discharge if he did
not engage in the aforesaid surveillance, by promising benefits to its employee if
he did engage in the aforesaid surveillance, and by interrogating employees with
respect to their union sentiments and with respect to the outcome of the pending
union election the Respondent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed by Section 7 of the Act and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Proctor Manufacturing Corporation and Union de Trabajadores
de la Industria Electronica y Ramas Anexas de Rio Piedras,
FLT. Case No. 24-CA-1350. June 16, 1961
DECISION AND ORDER
Upon charges duly filed by Union de Trabajadores de la Industria
Electronics y Ramas Anexas de Rio Piedras, FLT, herein called the
Union, the General Counsel of the National Labor Relations Board
by the Regional Director for the Twenty-fourth Region issued a com-
plaint dated October 7, 1960, against Proctor Manufacturing Corpo-
ration, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce within the meaning of Section 8(a) (1) and (5)
and Section 2(6) and (7) of the Act, as amended. Copies of the
charge, complaint, and notice of hearing before a Trial Examiner
were duly served upon the Respondent.
With respect to the unfair labor practices, the complaint alleges in
substance that the Respondent, after executing a collective-bargaining
agreement with the Union, which had been previously certified, there-
after established new work production quotas and piecework wage
rates based upon such quotas without giving notice to or consulting
with the Union, and has refused to bargain on this matter with the
Union.
On November 16, 1960, all parties to this proceeding entered into a
stipulation of facts and jointly requested the transfer of this proceed-
ing directly to the Board for findings of fact, conclusions of law, and
131 NLRB No. 142.