Lewis, Fred, Carpets, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1982

260 N.L.R.B. 843 (N.L.R.B. 1982)

FRED LEWIS CARPETS, INC.
Fred Lewis Carpets, Inc. and International Brother-
hood of Painters and Allied Trades, Painters
Union Local No. 294, AFL-CIO. Case 32-CA-
3044
March 11, 1982
DECISION AND ORDER
BYs CHAIRMAN VAN IE. WATElR AND
MEMBERS FANNING AND ZIMME RMAN
On August 4, 1981, Administrative Law Judge
Burton Litvack issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order,' as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied and set out in full below, and hereby orders
that the Respondent, Fred Lewis Carpets, Inc.,
Fresno, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Causing the discharge of employees because
they engaged in union or other protected concert-
ed activities.
I We noir , inl r rclt c I tile Adfrliltltraic I iax J tig¢' taterltnicl ill
sec 1. par 2. it hils I)etllrll. that d the Board ha, , eil .I Ih;lr.rlilllnig orlCer
appropriate alhCl tIlllllig O' ellilill o llajrls s.oilllt , i,uhlbseqlCii t I1 hit
Decilsirln [iI reiriiid froirn ti . ' S tilurt iof Appeals tfir tie I hlud (' i-
cuit the IBardil il d rampd Dair t rx ('l(a, pr C t ,i ra i, lidIl. 2
7
NLKRB 772 II ihl). I rs t'l d . h argaliiling order l t i i. ilhcil. co ta rd llal
Iorll MSlerihber I .lililig ;Idheres It his pr(itirnill as setr for It 1 the origl-
nal Decision taid ()rder irl (l irlid D)il, Far r. C,, ' r r r l .livi .' I..llltOl,
242 NI Rlt 112h ('l)7')), that the rBoard pr'ssesses tile Lthorit to1 Istic iL
nloinnlajorit. hbargalnirllg order tic del,o nolt h}o10euer. tiiid tlhe ilrt inil-
stlle',S in this :as'e \iarrant uch aii order Nicltlhc[ Ziliiefrr rllerl, Ahoi
participated in tilh SupplrlCementl Decisiil inl I ilid D)oirl. recitglil/i] 1th
Third Circ.lll t's decisir is hinding (im the iiori-d onir for purpo es oft dle
ciding that cilse In the insltarl calse. hi' and (h.illrmalri \a .1i dJti Water ftid
II unnecessary to dtcernlile \t rhclher rte IBolardl ti' .aluthAori t 1ti IIrfi)OSe
noliiai Jrrit}l harg.illllriig order 'inI'e the\! ,ouldII .i. ii i ill '\! sC i gri lli
huch air order herc
Chairman \ iii de z aitcr hiis erliol, rescr';t\lo 's ithair clpll..\,
Schlveiler anrd i.arlram.r ,cr [coi'risic I \e] di}lLargCi 011 i lt.' ftsrs oti
forth bh the AdmirliistIal'it I ;I; Judge a ] i' .is adoplriig tsiul liidilngs
soler, , heCinC a it tile i hIr ci 'l . .1 1 \i t 'pIt11. thItrvi
' re sh;ll ii .l..ti Ill ir,\rlllrll irallc I ix\ JIudIge s rec, ilrTiTitlleClll
Order tIi cX rrect l . riiii il;ltJI 'rtIe tri t e rs i111.d 1o i-wlrSii till eilT
(b) Threatening to close the business for unspeci-
fied periods of time because employees engaged in
union or other protected concerted activities.
(c) Warning employees that it would never go
union, in order to induce them to believe that
union activities are futile.
(d) Threatening employees that it would become
bankrupt as a consequence of their choosing a
union as their collective-bargaining representative.
(e) Inviting union supporters to work elsewhere
and Warning employees that union activities and
continued employment are incompatible.
(f) Impliedly promising economic and other
benefits to employees in order to induce them to
forgo union activities.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer employees William Schweizer and
Robert Bartram immediate and full reinstatement to
their former positions of employment or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed,
and make them whole for any loss of wages they
may have suffered by reason of their discharges, in
the manner described in the section of the Admin-
istrative Law Judge's Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Fresno, California, office copies of
the attached notice marked "Appendix." 3 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 32, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
I 1 1i c11 '\ nll I t t I 1 11 (} rcl is Cll]'lltc' il hi ;I i JId ellg n 1 i l aI .I t rnicd
Stlate', lt t ' r Appeal.' , thi . iuord, in1 the mm1tice reading I'-i(, d hs
()rdcl tI N iiiiinal l. hor RclilonI. rs ltoard" Ial.l read s I'Io',tl lilro
II" 1111 III ,l I '. 1 'li 11 e l hi lt lr d SliteI, ( 'Mr1 1 u f .\ppcAl, Ir i, lllrl, I iI
()hdcl I. t ,1l Nii a [l.l I ahl RKL./R itl llm iB r.l"rd
260 NLRB No. 108
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges that Respondent vio-
lated Section 8(a)(l) of the Act by unlawfully in-
terrogating employees and requests that a bargain-
ing order remedy be issued herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT cause the discharge of em-
ployees because they engaged in union or
other protected concerted activities.
WE WII.L NOT threaten to close the business
for unspecified periods of time because em-
ployees engaged in union or other protected
concerted activities.
WE WIL L NOT warn employees that we will
never go union, in order to induce them to be-
lieve that union activities are futile.
WE WILL NOT threaten employees that we
would become bankrupt as a consequence of
their choosing a union as their collective-bar-
gaining representative.
WE WILL NOT invite union supporters to
work elsewhere and warn employees that
union activities and continued employment are
incompatible.
WE WILL NOT impliedly promise economic
and other benefits to employees in order to
induce them to forgo union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WIL. offer William Schweizer and
Robert Bartram immediate and full reinstate-
ment to their former positions of employment
or, if those positions no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or any other rights or
privileges previously enjoyed, and WE WIl L
make them whole for any loss of wages they
may have suffered as a result of our discrimi-
nation against them, with interest.
FRED LEWIS CARPETS, INC.
DECISION
STATIIMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge: This
matter was heard before me in Fresno, California, on
February 24, 1981. On October 16, 1980,1 the Regional
Director for Region 32 of the National Labor Relations
Board, herein called the Board, issued a complaint, based
upon original and first amended unfair labor practice
charges filed on September 5 and October 14, respective-
ly, by International Brotherhood of Printers and Allied
Trades, Painters Union Local No. 294, AFL-CIO, herein
called the Union, alleging that Fred Lewis Carpets, Inc.,
herein called Respondent, engaged in acts and conduct
violative of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, herein called the Act, and re-
questing, as a remedy for the aforementioned allegations,
that a bargaining order should issue. Respondent filed an
answer, denying the commission of any unfair labor
practices. All parties have been afforded full opportunity
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to file briefs, which have been care-
fully examined. Based upon the entire record, the post-
hearing briefs, and upon my observation of the demeanor
of the witnesses, I make the following:
FINDI)INGS OF FACT
1. JURISDICTION
Respondent, a California corporation, with an office
and principal place of business in Fresno, California, is
engaged in the nonretail installation of carpeting. During
the 12-month period immediately preceding the issuance
of the complaint, w hich period is representative, Re-
spondent received in excess of $50,000 for services pro-
vided to A & M Carpets, a California corporation en-
gaged in the retail sale of carpets. A & M Carpets pur-
chases and receives goods and products valued in excess
of $50,000 directly from suppliers located outside the
State of California. Based upon the foregoing stipulation
of the parties and the record as a whole, I find that Re-
' ulles, othcr .ic ,tartd, all daie, herell n c:uLrrcd inl 1980
844
FREI) I.1 WIS CARPFIS. IN(
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. I 111 I AHOR OR(;ANIZAI ION
The record establishes that the Union is an organiza-
tion in which employees participate and which bargains
collectively with employers concerning wages, rates of
pay, hours of work, and other terms and conditions of
employment and processes grievances on behalf of em-
ployees. Respondent does not contest, and I find, that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
iiI. THE ISSUES
1. On or about August 28 did Respondent violate
Section 8(a)(1) and (3) of the Act by causing the termina-
tion of employees William Schweizer and Robert Bar-
tram?
2. On or about August 28 did Respondent violate
Section 8(a)(1) of the Act by the following acts and con-
duct:
(a) Informing its employees that selection of a union to
represent them would be futile by stating that it would
never accept a union.
(b) Threatening to close the business for 3 weeks be-
cause of the employees' union activities.
(c) Threatening to terminate employees by informing
those employees who desired union representation that
they could work out of the union hall.
(d) Impliedly promising benefits to employees in lieu
of union representation.
(e) Interrogating employees regarding their union sym-
pathies.
3. Assuming the commission of unfair labor practices,
should a bargaining order remedy be issued, ordering
Respondent to recognize and bargain with the Union?
IV. THE AI. lCi EI) UNFAIR lABOR PRACTICES
A. Facts
Respondent is engaged in the nonretail installation of
carpet in Fresno, California, performing said work for
retail carpet dealers in the Fresno area. Fred Lewis is the
owner of Respondent and the supervisor in charge of all
installation work.2 Henry Webber is the vice president,
and an individual named George Noroian is the secre-
tary-treasurer of the corporation. Webber's title appears
to be a nominal one inasmuch as he works full time as an
installer and was given his title by Lewis "because you
have to have a vice president of a corporation."3 Re-
spondent employs a work force consisting of carpet
layer/installers and helpers. Its principal account is A &
M Carpets, the chief operating officer of which is Morris
Horwitz.
William Schweizer, who was employed by Respondent
from December 17, 1977, until August 28 as a carpet
I Respondent admits Ihat Lewis is a supervisor within Ihe meaning of
Sec 2(11) of the Act and an agent of Respondent within the meaning of
Sec 2(13) or the Act
Counsel fior the General Counsel, in his posl-hearing brief, conceded
that Webber is an employee and a member of Ihe bargaining unit herein
layer/installer,' stated that on August 21 he and three
other employees of Respondent decided to seek represen-
lation from the Union. According to Schweizer, prior to
that date Henry Scharnick, a union business representa-
tive, had appeared at different jobs, on which Respond-
ent's employees were working, and had questioned the
workers about their wages and fringe benefits. On
August 21, Scharnick spoke to the employees on a job-
site and invited them to come to the union hall so that
they could "listen to what the Union had to offer." Ac-
cordingly, later that day, employees Schweizer, Robert
Bartram. Larry Neyman, and Mark Juarez arrived at the
Union's office and spoke briefly to Scharnick; however,
as he was unable to answer their questions satisfactorily,
Scharnick scheduled a meeting for August 25 for the em-
ployees to speak to the Union's attorney. On Monday,
August 25, the four employees returned to the union
hall; spoke to the Union's attorney, Barry Bennett; and
affixed their signatures to a sheet of paper, indicating
their desire that the Union represent them for purposes
of collective bargaining.5 The next day, employee Larry
It is clear that Respondent nesver contended that Schweizer was a su-
pers isor wv.ithin the meaning of Sec 2(1 ) of the Act or even considered
that he was such until, in response to a cross-examination question con-
cerning who is "in charge" while he is gone, Fred Lewis testified "Bill
Schweizer was" This response opened a Pandora's box of testimony
frorln I eis and engendered substantial argument in the poxst-hearing
briefs Respondent's arguments regarding the nature of Schweizer's su-
pers sory status were summarized in the following testimony of Lewis:
"[Schweizer] could route ihe men, he could tell them where to go, he
could call them, disburse them. He could do anything that I could "
When more closely examined. Lewis offered the following specifics re-
garding Schweizer's alleged supervisory status. Initially, the latter was
placed in charge by Respondent because Lewis ordinarily operates sever-
al jobs concurrently and cannot spend an inordinate amount of time at
ally one location While Schweizer was. thus. in charge approximately
2(X) limes a year, these occasions never lasted more than I day in dura-
lion, and Schweizer would visit daily to check on how the jobs pro-
gressed If l.ewis was scheduled to be away more than a day. the secre-
tar)-ireasurer was assigned to monitor the work As to Schweizer's au-
thorily and responsibility when in charge, Lewis testified that the former
could not hire, fire. or write checks Further, while Schweizer did have
authority to give employees permission to leave earl), any job instruc-
lions he gave were in strict accord with instructions given to him previ-
ously by Lewis and, if job problems arose. Schweizer was required to
notify Lewis and had no independent authority Io rectify them Also, the
work of Respondent's employees appears io ;lave been of a rather routine
nature (" I think everybody was pretty well capable unless he was
just a green kid"), and Schweizer spent at least 80 percent of his time
installing carpet. Finally, while he was one of two employees who was
given a company truck and unlimited gasoline, Schweizer's wages and
other fringe benefits were no, greater than other employees.
From the foregoing, it is clear that, when in charge. Schweizer acted
merely as a conduit for Respondent's instructions. spent almost all his
working time Installing carpet, was not authorized to independently re-
solve work-related problems, and, as the work was routine in nature, did
not use discretion in assigning work. In these circumstances, noting that
such was not raised until late in the hearing, it cannot he said that
Schweizer's authority was that of a supervisor within the meaning of Sec
2(11) of the Act Judd Valve Co., Inc., 248 NLRB 112 (1980), Unimedra
Corporation, 235 NLRB 1561 (1978).; ferland Managemen Company. 233
NLRB 467 (1977); LIoal fUnon No 915. International Brotherhood of Elec-
trical iorkiers. .4A.-CIO (Borrell-Btgby Electrical Company. Inc.). 225
NLRB 317 (1976}1 Highland relephone Cooperative, Inc. 192 NLRB 1057
(1971)
'As will bt explained later. I do not deem it necessary to recount what
specifically was said at this meeting I have assumed arguendo that each
emnployee indicated his desire to he represented by the Union for pur-
poses ,of collectlve bargaining
N45
I) i ( 'SI()NS ()I NA I()NAI. I A ()R RI IA IO()NS I()ARI)
Ioiinc, accomlnpanied by Schwveizer, acunt to tihc union
hall and also placed his signature on a similar sheet of
paper.
It Nwas the normal practice of Fred Lewis to meet his
emnployees at a restaurant near the A & M Carpets facili-
ty and discuss that day's assignments. On Thursday,
August 28X, t approximately 7 a.mi., Bartrain and
Schwcizcr twere alrcady seated at a table in the O()live
Branch restauranlt when Neyman and Juarez arrived-
followed shortly by Fred [.ewis. Unaccountahlby [.ewis
sat at the counter, while Neyman and Juarez joined the
two other employees. After a few moments, Bartram
beckoned L.ewis to join them, and the latter did so. Ac-
cordinig to Schweizer, "[Bartram] told him that he knew
it was about the union activities so we might as well just
discuss it and get it out in the open." Lewis replied,
.. I'm not going to go Union," and "he said if we
really wanted to go to the Union, you'd have to go out
and burn trucks to let the nonunion workers know that
you mean business." Lewis continued, asserting that he
was too old to fight the Union; that going union would
cause Respondent to become "bankrupt"; and that he
would "try it" only if Henry Scharnlick guaranteed that
Respondenlt would make money. The employees individ-
ually responded that they had nothing against Lewis per-
sonally but that they viewed the Union as a different ap-
proach to bettering themselves. Lewis said that he under-
stood. The meeting lasted approximately I hour; as it
ended, Lewis told the employees to meet him at the A &
M Carpets building at 2:30 p.m.
Averring that "my memory ain't too good," Fred
Lewis testified to a different account of this meeting. Ac-
cording to Lewis, Bartram asked him to join the others
at a table and surprised Lewis, saying, "[W]e'd just as
well get this off our chest. We went to a union meeting
. .and we'd like to have a union in here." Lewis re-
plied that he did not know but that he did not "think it's
feasible but we'll see." They proceeded to discuss unions
with Lewis saying that he had once belonged to a union
but that he did not think a union was feasible for Fresno
as there were at least 100 nonunion carpet layers in the
area. Denying that he ever uttered the word bankruptcy,
Lewis agreed that he might have mentioned the burning
of trucks. Lewis also admitted saying that, if Scharnick
would guarantee that Respondent could make money, "I
could see it would be feasible but there's no guarantee."
To this, according to Lewis, the employees replied that
they could not understand why a union would not work.
Lewis concluded, testifying that he made no reply but
merely directed the employees to go to their work as-
signments.
Employees Neyman and Juarez, both of whom testi-
fied on behalf of Respondent, contributed significantly
less detailed and more conclusionary versions of the
Olive Branch meeting. Neyman testified that the entire
conversation lasted 45 minutes and that Bartram began:
"[He] ... told Fred that we had a meeting and that
they would like to see the Union start up.... Bobby
asked different questions on seeing if Fred would go for
it or what he felt about it . . . we talked about what we
were told about the Union." Lewis replied that he would
have liked to have gone to the union meeting with the
employees, that it would be impossible to bid union
swages and receive work, but that he would be willing to
discuss the matter further with the employees Both Bar-
tram and Schweizer stated that they wanted the Union
"For the money,''" and, according to Neyman, "I said
that I . . more or less . .. liked the benefits of it."
Neymanl corroborated Lewis that the latter did not men-
tion bankruptcy but also contradicted him, stating that
I.ewis said nothing about the burning of trucks.
Mark Juarez recalled that the meeting lasted just 20
minutes and that, at first, the participants were silent. Fi-
nally, Bartram mentioned the Union, telling Lewis that
"we wanited to get into the Union." Lewis replied that
"he had been in the Union before and it didn't work
before . . . he'd wished he would have been there
during our meeting with the Union. He could have told
his side of the story . .. but we didn't give him a
chance." Echoing Neyman, Juarez corroborated but later
contradicted Lewis, testifying that the latter said nothing
about either bankruptcy or the burning of trucks. Ac-
cording to Juarez, despite having previously gone to two
union meetings and ostensibly indicating receptivity to
the benefits of union representation and despite the bre-
vity of the Olive Branch meeting, he decided after the
conversation that he no longer wished to support the
Union. Asked during cross-examination why he changed
his mind, Juarez testified, "Well, Fred had told us things
through his experience about the Union and . . . he
wished he could have been there at our meeting . . . so
he could tell his side ... " Asked further to specify
what Lewis might have said, Juarez answered that Lewis
explained that "ten years ago he'd been with the Union
and it just didn't work because there was a lot of scabs
in Fresno who would do the job for a lot cheaper than
what the Union wages would be." Finally, when asked
to clarify his testimony on this point, Juarez said, ". .. I
can't recall everything . . you know I wasn't planning
on remembering everything he said."
Pursuant to Lewis' request, Respondent's employees
gathered at the A & M Carpets building at approximate-
ly 3 p.m. that day. Lewis ushered the employees into a
conference room, and everyone sat around a conference
table. The employees present were Schweizer, Bartram,
Neyman, Juarez, Ron Giovanetti, Henry Webber, and
perhaps Ken Schram. Schweizer testified that Lewis shut
the door "and he said, he's been thinking about what
we'd told him this morning all day long and he figured
the best thing to do was shut the shop down in three
weeks and have Jim Dutcher [an A & M Carpets sales-
man] just quit bidding the work. And that way we could
all cool down or just let everything blow by." Next "He
said there was no way [Morris Horwitz] would go
Union." Lewis continued, saying that he was sorry that
the employees did not trust him enough to invite him to
go with them to the Union hall so that they "could have
heard his side on the Union matter and could have heard
the [Union's] side and those people that wanted to stay
with the Union could work out of the Union hall, and
those that elected to go with Fred Lewis could go with
Fred Lewis." Schweizer asked why Lewis felt that the
Union would not work, "and he said there's no way its
847
going to happen. He's just going to go bankrupt if he
tries to go union. There's no w avi he can make tile
money." At that point lHenr Vy ebher spoke in Lewis'
behalf, opining that Lewis did not earn enough to pay
union wage rates. Schweizcr r spoke again, raising the sub-
ject of fringe benefits and saying that with a family to
support, such would mean a lot to him. Lewis responded
"that if it wvas just benefits they could have discussed
them." Schweizer replied that the) had discussed the
subject for 2 years but nothing had ever been accom-
plished Bartram kept asking why Lewis believed Re-
spondent could not go union--Lew`is replied that "he'd
go bankrupt if he did but he wasn't going to do it. He
[was not] going to do it. He [was not] going t(o go
Union." To that, Juarez said that he told Lewis his opin-
ion that morning and that "he was behind Fred all the
way." Neyman also spoke up, saying "that he didn't
want to bankrupt [Lewis] so he'd stick by his side." At
that point, according to Schweizer, Lewis "asked each
one of us what our feel about it was, what our grounds
were." Schweizer. who was seated closest to Lewis, re-
plied, "Well, I guess I'd better hit the road." Ron Gio-
vanetti, who was sitting next to Schweizer, said that he
would stay with Lewis. Neyman and Juarez followed,
each saying that he would stay with Respondent. Bar-
tram was next, and he said, "I guess I'll hit the road with
Willie. . $7.00 an hour is pretty hard to live oni . . I
was making more money in '75 [due to the cost of
living]." Lewis responded to Bartram that he had just
given the employees a $1 per hour raise, that such was
his limit this year, and that maybe he would give a simi-
lar raise the next year.
With Lewis' response to Bartram, the meeting ended.
Both Bartram and Schweizer went outside and unloaded
their equipment from Respondent's truck. They then
went back inside the building and encountered Fred
Lewis near the building coffee area. According to
Schweizer, Lewis "said he was very unhappy that we
didn't counsel him first on the matter. He said he'd done
a lot for me when I first started out in the company as
far as I had a brand new baby girl, helped me get my
house, he said he was hurt by it. He told us if we did
want our jobs back we could have them." Schweizer re-
plied, "[T]here's really no way I can do it. I've got to go
down the road because I feel like I'm just spinning my
wheels here. I'm not advancing myself." Bartram then
once again asked if Lewis would try the union. As
during the employee meeting, Lewis responded, " . . no
. . . Absolutely not." The employees thereupon left the
building.
During cross-examination while maintaining that the
following occurred "about the middle of the meeting"
and denying that Lewis asked what the employees
thought of it, Schweizer admitted that Lewis told the as-
sembled employees "that Morris had asked him previous-
ly since . . . a few of us had just got a dollar an hour
raise, that if this was going to happen often, because he
was concerned about if we were going to keep asking
for more raises or what. He said Morris was out of town
. . .and he would talk to him . . anid consult .
about the matter that was at handd" Also, Schweizer
became contradictory regarding the question that preci-
pitated his announced intention to quit. lhus, he testified
that lIewis "asked how our feelings on the matter ;Ias,"
and denied that Lewis said anything about "grounds"--
"To me. it was the same thing."
While corroborating Schwveizer on at least one signifi-
cant point. I ewis testified to a substantially different ver-
sion of this meeting. On direct examination, he said that
he began the meeting by asking. "... .hat's the prob-
lem.." Bartram answered by asking why L.ewis felt the
Union would not work, and, "I explained to him I don't
think it's feasible. . . How can I pay you tw ice as much
whell I only get the operating capital to pay you $7 an
hour . . . said . . if you want insurance you
should've brought that up to me ... " No employee
responded,' and, according to Lewkis. he next "told them
if you guys want to go Union, let's don't hurt A &
M . [L]et me tell them how it is, take the price list
and see if [Horwitz will] go for it." At that point, I euwis
states, he "asked them what they thought about it."
Schweizer abruptly responded by saying he quit, and "I
went all around the table and they--it just automatically
went around the table, I didn't force it around, it just
wvent around the table . . . then it went to [Bartram] and
he said I quit and it went around the table."; Finally,
Le.wis specifically denied talking about bankruptcy,
going out of business, or shutting down the business but
failed to deny any other aspect of Schweizer's testimony
regarding this meeting.
Under cross-examination by counsel for the General
Counsel. Lewis initially denied having any further con-
versation with either Schweizer or Bartram regarding
their job status. He also denied that either individual said
that he could not continue working because of low
`wages and benefits. Later during cross-examination,
Lewis contradicted himself, stating that he did speak to
the two employees in the coffeeroom. While denying
that either employee offered an explanation for quitting,
I ewis stated, "I told them I hate for you to leave.
You've got a job here anytime," and the employees just
responded that "it wasn't feasible." However, a moment
later Lewis again altered his testimony, "I said . . I
don't know why you guys quit and they said . . . we
just don't want to work for this wage no more."
Larry Neyman related a rather limited version of this
meeting. "Fred started out the meeting and asked you
know, what we wanted to do about this [and] . .. he
w anted to hear . . what they had to say about it. Most
of the talking was done between [Schweizer and Bar-
tram] saying they felt that they could go union and bid
the Union prices and get jobs." Lewis responded that
"he would like Morris to get involved in the meeting
. . . so we could talk w\ith Morris about it and he asked
" I jItr during hli llrc.t e.atmlrl.ltiir l. I ect is ctritrlidicild hlinels .f ft ,l
-
fllmg Ihil SichI izer did. Iilaldci recpoind th;i tihe? hlilt pre.lcou.lx beef]
di',t ll, iig henclt its
; Notcillhlt,i dllting lhit fihe .I[ ll,'cr, -ere iII no \%ai r.,ponslc .o lbi,
,iitit il I eNt deniedl cither tllhi he nlenlOlledti Ihl', i the cmpl se,' or
}ilt allt. nile ,ketl l haiiT kc h.ti t'e (I c-c i. mIc rli h hic t(ic-ti-l iTl A,Ltoiritng
ti. I eCki,. "l zas Alirtlld IN i}is ask .1 p ict'sll ;iti ] IU a'k
ti.lil u1 thilk i liilt ii. slll kLi,',1 t \.i- goillg t,l gie t nl (t 1lm 1; ll
ciliti til t i it'ell e t th r/ig i \ha!h l lht l O t Ihit ii rid g ! aNs. tic
q1l[ 1 I Ifi'll1, t\l d \llkh. II, ilill' ge fllSng the ITll/lVliln g .1, I .l:l[ 1 I llt l11 "
FR 1: 1) I l-Wi S CA R IT I S. I N C
DIlCISIONS OF NAIO()NAL. LABOR RELA-IONS BOARD
how we felt about it." Lewis turned to Schweizer and
the latter "said . . . what would be the use of talking to
Morris if we couldn't do it . . . and he said that he'd
quit." Schram and Juarez then responded, each saying he
would stay with Respondent. Bartram was next, "...
and Bobby said that he would have to find another job."
Giovanetti then announced that he was staying. Finally,
it was Neyman's turn. "I sat there and I had to think for
a minute. I thought you know, hey, what's going on
here? Why is everybody quitting or staying? This Nwasn't
what it was about. I told him I was staying but I didn't
understand why everybody was quitting as the question
had nothing to do with that."' Neyman denied that
Lewis mentioned bankruptcy or that Lewis said he
would tell Dutcher to stop taking job orders.
Mark Juarez testified that the meeting in the A & M
Carpets conference room lasted between 30 and 45 min-
utes, but that he could not recall how it began. He did
remember that everyone began speaking "about wages
and this and that, you know, or saying about going union
or the benefits or this and that, you know." According
to Juarez, "I remember at one point I said about how the
benefits, you know. I said can't we have benefits, you
know? And (Lewis] goes . . . that's not it. Everybody
doesn't want just the benefits they want all this money
stuff and he goes .... I'll give the price list to Morris
and see what happens." Then, Lewis asked "what does
everybody think" and went around the circle of employ-
ees. Schweizer responded that he was going to quit and
that he was going to have to find another job; thereupon,
"everybody just from what Willie had said, everybody
just went right behind so well, this and this, I'll do this
and I won't do this."9 Juarez denied that Lewis spoke
about bankruptcy or about shutting down the job. How-
ever, Juarez did corroborate Schweizer that Lewis,
indeed, stated that those who wanted to belong to the
Union could work out of the union hall, while those who
did not should remain with him.
B. Analysis
Apparently conceding in his post-hearing brief that
nothing uttered by Fred Lewis during his breakfast meet-
ing with employees Schweizer, Bartram, Neyman, and
Juarez at the Olive Branch coffeeshop on August 28
arose to the level of a violation of Section 8(a)(l) of the
Act,i' counsel for the General Counsel argues that
* Neyman testified that he responded as he did "because I >,as julst
confused . . . I couldn't understand why everybody was going through
this .. It was very confusing "
' As with Neyman, Juarez was surprised by the responses as he did not
think Lewis' intent was to see if employees desired to quit or stay -he
was just inquiring as to what employees thought about his submitting the
union price list to Horwitz
'° Par. 6(a) of the complaint specifies that during the morning meeting
Lewis repeatedly told employees that Respondent would not accept a
union. While such language was used, the record does not establish re-
peated usage I presume that counsel for the General Counsel's apparent
concession that no violation occurred goes to that. In an) event, I shall
accept his concession and make no findings in that regard as toi the morn-
ing meeting However, as will become evidelt. such repeated emphasis
that Respondent would not accept a union was stated by l ewis at Ihe
afternoon meeting, as well as other palpably unlawful statements, which
were not alleged as such in the complaint Accordingly, as such was fully
during his afternoon meeting with Respondent's employ-
ees in the A & M Carpets conference room, Lewis vio-
lated Section 8(a)(l) of the Act by threatening employees
with a temporary closure and discharge because of their
union activities, by promising health insurance and other
benefits in order to induce them to withdraw their sup-
port for the Union, and by interrogating employees with
regard to their union sympathies. In addition, he argues,
by said conduct Respondent caused employees
Schweizer and Bartram to quit their employment-thus,
constructively discharging them in violation of Section
8(a)(l) and (3) of the Act. Contrary to counsel for the
General Counsel, Respondent argues that no construc-
tive discharge can be found herein inasmuch as contin-
ued employment was never specifically conditioned upon
either Schweizer or Bartram relinquishing any rights
guaranteed by Section 7 of the Act and as their working
conditions were never changed to their respective detri-
ments. Further, counsel for Respondent argues that both
Schweizer and Bartram quit Respondent's employ for
economic reasons. Finally, he asserts that nothing said by
Lewis to Respondent's employees on August 28 consti-
tuted violations of Section 8(a)(1) of the Act.
Initially, I note that the substantive divergence be-
tween the testimony of Schweizer and that of Lewis,
Neyman, and Juarez regarding the afternoon meeting
concerns mainly the tone thereof. Thus, crediting
Schweizer, the meeting involved essentially the expound-
ing by Fred Lewis of rather blatant and threatening an-
tiunion sentiments; while crediting Respondent's wit-
nesses, Lewis mostly expressed his economic concerns
about union representation. I am convinced, upon careful
observance of the demeanor of the witnesses and close
scrutiny of the entire record that, except for one particu-
lar circumstance, Schweizer's version of the afternoon
meeting-and, indeed, the events of the entire day-is
the more accurate and warrants crediting. In this regard,
I particularly note that employee Juarez corroborated
Schweizer's uncontroverted testimony that Lewis, in
effect, invited the union supporters to leave and threat-
ened that union activities and continued employment
were incompatible. Such clearly supports the conclusion
that Lewis' intent and tone during the afternoon meeting
in the A & M Carpets conference room were coercive
and unlawful in nature. In addition, I found Fred Lewis
to be contradictory as to the post-meeting conversation
with Schweizer and Bartram and generally unimpressive
and less than candid as a witness, and, except for one
aspect of his testimony, I do not credit him herein. Like-
wise, except where corroborative of Schweizer and one
aspect of their testimony, I thought Neyman and Juarez
were most unpersuasive witnesses, who gave rather
sketchy and opaque versions of the events herein, and I
also do not credit them.
Based on the credited testimony herein, I believe that,
during his conversation with employees Schweizer, Bar-
tram, Neyman, and Juarez at the Olive Branch coffee-
shop during the early morning of August 28, Fred Lewis
was surprised and undoubtedly shocked to learn that the
litigated at the hearing I have made findings on all statements which I
regard as unlawful at the afternoon meeting
848
FRED LEWIS CARPETS. INC.
employees had recently sought union representation, and
he reacted with warnings that Respondent would never
go union and that doing so would bankrupt him. I fur-
ther believe, based on the credited testimony. that Lewis
repeated and expanded upon these themes with coercive
and threatening rhetoric during the afternoon meeting
with Respondent's employees in the A & M Carpets con-
ference room. Thus, I conclude that Lewis began the
meeting with a blatant threat-he was going to close
down the business in 3 weeks and have the A & M Car-
pets salesman stop bidding upon jobs, permitting every-
thing to "blow by." Also, asked several times by either
Schweizer or Bartram, who were the main employee
union proponents during the meeting, whether Respond-
ent would voluntarily work with the Union, Lewis re-
peatedly replied that Respondent would never go union
and, without offering a scintilla of supporting evidence
for his prediction, that to do so would bankrupt him.
Next, adding emphasis to his "gloom and doom" lan-
guage, Lewis stated his annoyance over not being per-
mitted to be at the union hall when the employees spoke
to union representatives; he announced that those people
who wanted to stay with the Union could work out of
the union hall, while those who elected to stay with
Fred Lewis could do so. Then, as admitted by Lewis, he
informed Schweizer that if the latter was dissatisfied
with the lack of employee benefits, including health in-
surance, he (Schweizer) could have come to Lewis, and
they could have discussed the matter. Finally, after sev-
eral employees, obviously persuaded by Lewis' baseless
predictions and threats, announced-like sycophants-
that they had no desire to bankrupt Respondent and, in
effect, renounced the Union, Lewis "threw a bone" to
the remaining union adherents (obviously Schweizer and
Bartram), stating that he would undertake the useless act
of taking a union-based price list to Morris Horwitz and
ascertain whether the latter, who, Lewis had earlier
stated, would also never go union, could operate under
the higher costs." Then Lewis asked what the employ-
ees thought about it 12 To that, Schweizer unexpectedly
stated his intention to quit. One by one, notwithstanding
the nature of the question, other employees followed
along, announcing their desire to remain with Respond-
ent, while Bartram echoed Schweizer, saying he also was
going to quit.
There can be no doubt that the entire course of Lewis'
remarks that afternoon was calculated to dissuade Re-
" The Board has held that, in the absence of objective fract with
which employees could reach a reasoned decision, it does not necessarily
follow that union representation would increase an employer's labor costs
disproportionatel) to a major customer's vwillingness to pay increased
costs if passed ln There must be a showing that such a consequence is
beyond the employerfs controlh Crown Cork & Seal Comtpanv. Inc.. 255
NLRB 14 (149811
2 In this regard, I credit the testimon! of ewis. Neyman, and Juarez
and do not rel, upon the testimony (of Schweizer who, I helievce given
the nature of .ew is' statements that afternoon and the nature of the em-
ployment decision which he was, at that moment. attempting to reach.
was honestl] mistaken and confused as to what lewis was referring
Moreover. the ansssers orf l.e is. Nevnalln and Juare. whenl asked their
reactions Io Schel/ter's response, appear not It b ha'~ heell contrised hut
rather reasonable gisen the circumstances Accordingls. I credit their te,-
timony that Iewils' question referred to giinlg Hirw it, a price ist arid
conclude that no unidla fill interrogatioln o5curred t: lnally. , halcxer the
question, there is 1no dispute i, to the responses
spondent's undecided employees from supporting the
union movement and to cause apprehension among the
union adherents for their job security. More specifically,
Lewis' stated intention to close the business for an unspe-
cified period in 3 weeks in order to permit everything to
"blow by" could have only been perceived by his listen-
ers as a blatant threat to shut down because of the em-
ployees' union activities. This must be so inasmuch as
Lewis prefaced the threat by commenting that he had
been thinking about what had been discussed that morn-
ing-the Union. Such a threat of business closure has tra-
ditionally been found to be violative of Section 8(a)(1) of
the Act. Jim Baker Trucking Company, 241 NLRB 121
(1979); Local Union No. 707, Highway and Local Motor
Freight Drivers, Dockers and Helpers, Claremont Polyche-
mical Corporation, 196 NLRB 613 (1972). Additionally,
by constantly reminding the employees that Respondent
would never go union, Lewis inculcated in his employ-
ees a sense of futility about the exercise of free choice in
selecting a representative for collective bargaining and
thereby violated Section 8(a)(1) of the Act. Unimedia
Corporation, supra, El Rancho Market, 235 NLRB 468,
472 (1978). Next, the credited evidence establishes that
Lewis repeated several times that Respondent would
become bankrupt if forced to pay union wages and bene-
fits, but that in making such "predictions," he never of-
fered to the employees any supporting figures or other
evidence necessary to establish that the consequences of
which he spoke were beyond his control. Absent such a
factual basis, the Board law is clear that Lewis' "predic-
tion" of bankruptcy constituted nothing more than a
veiled threat to close the business if employees selected
the Union as their collective-bargaining representative.
El Rancho Market, supra, The Terminal Taxi Company,
d/b/a Yellow Cab Co., 229 NLRB 643 (1977); Swift Tex-
tiles, Inc., 214 NLRB 36 (1974); Marathon Le Tourneau
Company, Gulf Marine Division of Marathon Manufactur-
ing Company, 208 NLRB 213 (1974). Moreover, Lewis'
remark, that those employees who want the Union
should work out of the union hall and those who select
Fred Lewis should stay, clearly conveyed a veiled threat
of discharge-it was understood that union supporters
should seek work elsewhere and that union support and
continued employment were not compatible. Such veiled
threats are violative of Section 8(a)(1) of the Act. Rolli-
gon Corporation, 254 NLRB 22 (1981); 726 Seventeenth
Inc., t/a Sans Souci Restaurant, 254 NLRB 604, 605-606
(1978); American Lumber Sales, Inc., 229 NLRB 414
(1977); Cook United, Inc., d/b/a Cook's Discount Store,
208 NLRB 134, 137 (1974). Also, in the context of the
aforementioned violations, Lewis' statement to
Schweizer that, if the problem was just health insurance
or fringe benefits, they could have discussed the matter,
must be considered to be an implied promise of benefits
designed to induce employees to forego union support.
Clearly, such is violative of Section 8(a)(1) of the Act. El
Rancho Market, supra: Swift Textiles, Inc., supra. Finally,
inasmuch as I have not credited Schweizer as to interro-
gation of the employees' union sympathies, I shall rec-
ommend that paragraph 6(b)(iv) of the complaint be dis-
missed.
849
1)1. CISI()NS ()F NA IO()NA I.ABO()R RF AlI()NS BO()ARD
Counsel for the General Counsel argues that, by his
aforementioned conduct during the afternoon meeting,
Fred Lewis created a pervasive atmosphere of coercion,
encompassing threats of discharge and shutting down the
business and other unlawful statements and that, by such,
Respondent left union adherents Schweizer and Bartram
no choice but to quit their employment-thereby effectu-
ating constructive discharges in violation of Section
8(a)(l) and (3) of the Act. At the outset, it must be borne
in mind that, "A constructive discharge is not a dis-
charge at all but a quit which the Board treats as a dis-
charge because of the circumstances which surround it."
ComnGeneral Corporation, 251 NL RB 653, 657 (1980).
Normally, such situations arise in two factual contexts.
In the first, with knowledge of its employees' participa-
tion in union or other protected concerted activities, an
employer harasses the individual to the point that his job
conditions become intolerable and, as a result, the em-
ployee quits. In such circumstances, a nexus between the
working conditions and the individual's protected activi-
ties must be shown and the imposed burdens must be in-
tended to cause an altering of the worker's workilng con-
ditions. If both factors are present, a constructive dis-
charge will be found. Palby Lingerie. Inc. and ,4rgus Lin-
gerie Corp., 252 NLRB 176 (1980); Maywood. Inc., 251
NLRB 779 (1980), Lymann Steel Company, 249 NL RB 296
(1980); General M1eats, Inc., 247 NLRB 1036 (1980); Cry.s-
tal Princeton Refining Company, 222 NLRB 1068 (1978).
In the second factual situation, an employer confronts an
employee with the hobson's choice of either continuing
to work or forgoing the rights guaranteed to him under
Section 7 of the Act. In such a circumstance, his choice
must be clear and unequivocal and not left to inference.
J. J. Security. Inc., 252 NLRB 1290 (1980); Henry A.
Young. d/b/a Columbia Engineers International, 249
NLRB 1023 (1980); Martin Arsham Sewing Co., 244
NLRB 918 (1979); Superior Sprinkler. Inc., and William
.lugusto d/b/a William Augusto Fire Protection Services,
227 NLRB 204 (1976); and Marquis Elevator Companyv.
Inc., 217 NL RB 461 (1975). Herein, not only did Lewis,
during the afternoon meeting on August 28, repeatedly
state his implacable hostility to dealing with the Union
and the futility of employee support for it, but also he
blatantly threatened to shut down the business because of
the employees' union activities and, in effect, to termi-
nate employees because they participated therein. It must
be concluded, therefore, that it was not unreasonable for
both Schweizer and Bartram to believe that each would
no longer be welcome as an employee if he continued to
support the Union. Columbia Engineers, supra at 1032.
Faced with such a hobson's choice (working or giving
up support for the Union), I believe both employees
were forced to quit-and, thus, constructively dis-
charged-by Lewis at the conclusion of the August 28
meeting in violation of Section 8(a)(1) and (3) of the Act.
Arguing that no constructive discharge occurred.
counsel for Respondent relies heavily on the Board's De-
cision in Masdon Industries. Inc., 212 NLRB 505 (1974)
Therein, employees commenced a strike, resulting from
dissatisfaction with their terms and conditions of employ-
ment. Two days later, the employer's president met with
the strikers, during the course of sswhich meeting he un-
lawfully threatened to close and move the plant. There-
upon, several strikers quit their employment rather than
returning to work at the conclusion of the strike. Not-
withstanding the unlawful threat of plant closure, the
Baord found that the employees had not been construc-
tively discharged. In so deciding, the Board placed sig-
nificance on the fact that "Masdon did not in fact dis-
charge or threaten to discharge the strikers. Nor were
his remarks so interpreted by the striking employees."
Masdon, supra at 506. Herein, of course, not only did
Lewis threaten to close the business, but also he, in
effect, threatened to terminate employees by inviting
union supporters to work out of the union hall-thus
causing them to believe support for the Union and con-
tinuing employment were incompatible. Rolligon Corpo-
ration, supra. Clearly, if such a blatant veiled threat had
existed in Masdon, the Board undoubtedly would have
found constructive discharges. Accordingly, Respond-
ent's reliance upon that case is misplaced."
Next, Respondent argues that both Schweizer and Bar-
tram were economically motivated in deciding to quit
their employment with Re',pondent. In this regard, Re-
spondent correctly points out that both men were con-
cerned with their wages and lack of fringe benefts.
However, in so arguing, Respondent ignores the facts
that both discriminatees had just 3 days before indicated
their desire that the Union be their collective-bargaining
representative; that during the August 28 afternoon
meeting Lewis continually emphasized the futility of
their activities; that, through union representation, they
wished to earn higher wages and fringe benefits; that
Lewis clearly indicated the incompatibility of union ac-
tivities and continued employment; and that each unsuc-
cessfully implored Lewis to, at least, try to work with
the Union. In these circumstances it would be intellectu-
ally dishonest and simplistic to conclude that Schweizer's
"spinning my wheels" comment did not, at least in sig-
nificant part, allude to his and Schweizer's apparently
fruitless union organizing attempt and that such was not
a motivating factor in their respective decisions to quit.
The most troubling aspect of a finding of constructive
discharges herein is that, subsequent to the conference
room meeting at which Schweizer and Bartram an-
nounced that they would quit, Fred Lewis encountered
both employees near a coffee area in the building and
told each that he could have his job back. Both individ-
uals rejected Lewis' offer. In Columbia Engineers, supra
at 1031-32, the Board adopted the finding by an adminis-
trative law judge that the employer therein uncondition-
ally asked the two constructively discharged employees
to return to work and that, in such circumstances, back-
pay for the discriminatees was limited to the period from
their discharges until the tendering of the reinstatement
offers. Adopting this rationale, if Lewis' reinstatement
offers were, in fact, unconditional, the earlier construc-
tive discharges of Schweizer and Bartram would be, at
most, technical violations of the Act. Moreover, it might
" I ikculsc lt,r Ih r . I , .I. RB1.38
5
1 2d 48 (lth Cir
'1117) .1 11111.I ahC Ii.l t Ml 8 I h n1t II IC n AI I u,
FRED I LEWIS CARPETS, INC
legitimately be argued that Lewis' offers negated the ex-
istence of the aforementioned hobson's choice with
which Schweizer and Bartram were confronted in the A
& M Carpets conference room-thereby making their re-
spective predicaments merely inferential and removing
the possibility of constructive discharge. However, anal-
ysis of what occurred at the final, brief meeting between
Lewis and the discriminatees convinces me that the
former's offer was anything but unconditional. Thus,
crediting the testimony of Schweizer, prior to making his
offers, Lewis remarked that he was unhappy that
Schweizer had not spoken to him "first on the matter,"
that he had given substantial personal assistance to
Schweizer when the latter began working, and that he
(Lewis) "was hurt by it." Based on the record as a
whole, I believe the inference is warranted-and
Schweizer so perceived-that Lewis was referring to the
employees' union organizing activities. Such is crystal
clear from Lewis' subsequent response to Bartram's plea
that he, at least, try to work with the Union: "... no
.... .Absolutely not." Accordingly, Lewis' comments
fully warrant the conclusion that, while he was, indeed.
stating that Schweizer and Bartram could have their
former jobs back, I ewis' previously rendered unlawful
remarks were not withdrawn and remained the condi-
tions under which the employees could remain with Re-
spondent, making any further union activities incompati-
ble with their reinstatement and continued employment.
J. J. Security, supra. Liberrt Markets, Inc., 236 NLRB
1486, 1491 (1978). For the foregoing reasons and based
on the record as a whole, I find that employees
Schweizer and Bartram 'were constructively discharged
in violation of Section 8(a)(1) and (3) of the Act. Colum-
hia Engineer's supra: Superior Spnnkler, supra.
V. QUEISI ION 01: BAR(GAINING ORI)iDR
Counsel for the General Counsel argues that the
impact of Respondent's conduct upon its employees has
been so significant that a free and fair election to deter-
mine whether said employees would select the Union as
their collective-bargaining representative would be im-
possible. He further argues that the severity of the previ-
ously discussed unfair labor practices warrants the entry
of a remedial bargaining order against Respondent. In so
asserting, counsel for the General Counsel contends that
the Union achieved majority status on August 26, by
which date five employees out of a total employee com-
plement of nine had selected or designated the Union as
their collective-bargaining representative. Contrary to
this position, Respondent argues that the Union never
achieved majority status herein, that Respondent com-
mitted no unfair labor practices herein, and that. if
found, such unfair labor practices did not constitute such
outrageous and pervasive unlawful conduct so as to war-
rant the issuance of an order requiring Respondent to
bargain with the Union.
At the outset, the General Counsel does not contend,
nor has the Board ever concluded, that a bargaining
order is appropriate absent a finding of majority status.
Thus, the threshold issue herein concerns vs hether, in
fact, as alleged by counsel for the General Counsel, the
Union achieved mnajority status on August 26. In sup-
port, he offered into evidence two documents, General
Counsel's Exhibits 2(a) and (b). which bear the Union's
letterhead and which contain the typed-in words, "We
the undersigned of Fred Lewis Carpets, Inc. wish to be
represented by [the Union], for purposes of collective
bargaining." On Exhibit 2(a) beneath these words appear
the signatures of employees Schweizer, Bartram, Juarez,
and Neyman; beside each signature is the date, August
25, 1980 On Exhibit 2(b) beneath the typed-in words ap-
pears the signature of employee Larry Toney and beside
it is the date. 8-26-80. Assuming arguendo the validity of
the documents and the five signatures,14 the bargaining
unit must not have consisted of more than nine employ-
ees on August 26 to establish counsel for the General
Counsel's assertion of union majority status Inasmuch as
I believe that the appropriate unit herein may have con-
sisted of, at least, 10 employees, I conclude that counsel
for the General Counsel has not met his burden of proof
in this regard.
The complaint alleges, and Respondent admits in its
ansxwer, that the appropriate bargaining unit herein in-
cludes all carpet layers and installers employed by Re-
spondent; excluding office clerical employees, profession-
al employees, managerial employees, guards, and super-
visors as defined in the Act. Fred Lewis testified, with-
out contradiction, that Respondent also employs individ-
uals , ho are classified as helpers. The record discloses
that, while these employees earn less than the carpet
layer/installers and do not receive vacations as do the
latter employees, they work alongside the carpet
layer/installers, performing much the same work. In es-
tablishing the number of employees in the unit as of
August 26, counsel for the General Counsel relies solely
on the testimony of employee Schweizer who identified
the following individuals as comprising Respondent's em-
ployee complement on that date: himself, Bartram,
Juarez, Neyman, Toney, Ron Giovanetti, Ken Schram,
Henry Webber, and someone remembered only as Ted. s
Asked if any other installers were employed on that date,
Schweizer responded, "Not that I know of." From this
inconclusive answer, counsel for the General Counsel
argues that there were only nine employees in the bar-
gaining unit. 6
However. later in his testimony, while discussing the
afternoon meeting in the A & M Carpets conference
room on August 28, Schweizer identified a "Ron Jewett"
as responding to a question by Fred Lewis. While
Schweizer did not mention the name again, Lewis did.
i htre as ,a great deal .f C.o.nlllcting leslimon, concerning the
tsp!d-in wordl IIn hoth (, C Etxh, 21a) and (h) and what leas said ito
ih. tinlpl.ect. regalrding Ihe purpoe for their siglllatures on the docu-
Iieills Itltlaltu,.lh as Ihe thrust oI this poriion of rni Dt iionx iC tolse the
sue of the hbargaining ulnil rather than Ihie lahdld of the signalure, for
purpo..r s of sta,lblhlillg a nlialrlt> shownlllg. I need 1nol, rsols e the corn-
nliling [,,lll,,,l.
: NCeithel Sc'IhU IeI r ili)r I e iw, coIuld recall led I tIl nlame; hoi cecr,
hith ai ,igicd Ilial hie va, enlplhLd ai ilf Augut 26 I cul, Ic, lfied Ihal
It'd 1i 111 lIolgel all CrilploSee hut i.uld Ii(it recall whenl tie tt.l Resrpd-
irtl' ATlt pb . iis llt1\i.i .Ih ' la ild rgil that li11i 'ial 1i itic lite siitriiler
t ]r ii rnah . t. i c l at , s1,s riced t ttfr Rcspiri idit r- t', l r-
t- rdn al l. s 1(i L .lilll l d i CllCIttilts i lit lt rltst i n S1/c o t 1 1iC' I i
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, recalled to testify regarding the helper classifica-
tion he named Larry Toney and Ted as helpers."7 Next,
under questioning by counsel for the General Counsel,
Lewis testified as follows:
Q. Mr. Lewis, during the last couple of weeks of
August, of all the names of your employees that
have been mentioned in this proceeding, are Larry
Toney and this kid Ted the only helpers you've
had?
A. I had another man working-Ron Jewett.
Q. But of all the names that have been mentioned
in the hearing, they're the only two that are help-
ers? Is that correct? The others were all installers?
A. Yeah.
Apparently then, both Schweizer and Lewis have identi-
fied another employee, Ron Jewett. If he were employed
by Respondent on August 26-and the record is patently
unclear as to that fact-the bargaining unit would total
10 individuals, and the Union could not have achieved
majority status on that date. In his post-hearing brief,
counsel for the General Counsel speaks of Ron Jewett as
being "a possible ambiguity" and apparently contends
that both Schweizer and Lewis really meant Ron Gio-
vanetti when they said Ron Jewett. Finally, referring to
the aforementioned testimony, counsel for the General
Counsel argues that Lewis corrected himself, identifying
Toney and Ted as the only helpers. As to the first argu-
ment, it is inconceivable that both Schweizer and Lewis
would make exactly the same mistake and mispronounce
"Giovanetti" as "Jewett." Moreover, if not referring to
Giovanetti, it would be an unlikely circumstance that
both men used the same name to describe a nonexistent
individual. Further, with regard to the above-quoted por-
tion of the transcript, I note that the last question of
counsel for the General Counsel is compound and that
Lewis' "Yeah" answer may be responsive to either ques-
tion. Also, even if in response to the question regarding
helpers, the question itself is ambiguous-was it meant to
be all inclusive as to employees in that classification or
did counsel for the General Counsel mean just those
helpers who had been the subject of testimony? Finally, I
note that counsel for the General Counsel had ample op-
portunity to clarify any "ambiguity" with regard to Ron
Jewett's employment status by either asking further ques-
tions of Lewis or calling his own witnesses. He did nei-
ther. In short, inasmuch as counsel for the General
Counsel elicited only the testimony of discriminatee
Schweizer with regard to the size of the bargaining unit,
' At the hearing and in his post-hearing brief, counsel for Respondent
argued that helpers should be included in the bargaining unit Counsel for
the General Counsel argued at the hearing that inasmuch as the job clas-
ifrication was not specifically included in the bargaining unit. as set forth
in the complaint, helpers should he excluded from the unit However, in
his post-hearing brief, while not specifically changing his positilonl. coun-
sel for the General C ounsel concluded that l arry Toney and TIed, as
helpers, performed the same duties and shared the same benefits and con-
ceded Ihat each should be included in the bargaining unit In this regard.
I note that. in conceding their inclusion, counsel apparentl) anid inadvert-
ently referred l ti led as "Ron." Inasmuch as I can find no reference toi
"an emplriLee kinow n onlN. as Rnln" in the record. presumably "Rorn" ' as
nmerel) a typographical error This must he sir as Toney and Ted occu-
pied the same job c lassificalion and it wo:ruld make no sense for counsel to
hasve conrcded inclus,ion ill the unit as (t one arid rot the other
as Schweizer's testimony can hardly be said to have ef-
fectively limited the unit's size, and as no documentation
was offered on the issue, the state of the record with
regard to the size of the bargaining unit is, put bluntly,
confused. Accordingly, assuming the validity of the 5
union authorization cards, as the overall employee com-
plement on July 26 may well have been 10, counsel for
the General Counsel has failed to meet his burden of
proof that the Union had been designated by a majority
of employees in the unit.'s
vi. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of
the Act. I have found that Respondent constructively
discharged employees Schweizer and Bartram on August
28, 1980, in violation of Section 8(a)(1) and (3) of the
Act. Accordingly, I shall recommend that Respondent
be ordered to offer each employee immediate and full re-
instatement to his former position of employment or, if
said position no longer exists, to a substantially equiva-
lent position, without prejudice to any rights and privi-
leges to which he may be entitled. I shall further recom-
mend that Respondent be ordered to make each employ-
ee whole for any loss of earnings he may have suffered
as a result of the discrimination against him by payment
to him of the amount he normally would have earned
from the date of his termination, August 28, with back-
pay to be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
as described in Isis Plumbing & Heating Co., 138 NLRB
716 (1962), and Florida Steel Corporation, 231 NLRB 651
(1977). Furthermore, it shall be recommended that Re-
spondent be ordered to post a notice setting forth its ob-
ligations herein.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By causing the discharge of employees William
Schweizer and Robert Bartram on August 28, 1980,
based on their union or other protected concerted activi-
ties, Respondent engaged in unfair labor practices viola-
tive of Section 8(a)(l) and (3) of the Act.
4. By threatening to close the business for an unspeci-
fied period of time; by constantly reminding employees
that it would never go union; by threatening employees
that it would become bankrupt as a consequence of em-
ployee union representation; by inviting union supporters
to work elsewhere and reminding said individuals that
continued employment and union activities are incom-
patible; and by impliedly promising benefits to employees
in order to induce them to forgo union activities or sup-
M N conclusion herein renders it unnecessary toi decide whether the
s ,cerit arind the quantum of unfair ltabor practices require the issuance of
a bargainin g iorder herein
852
FRII) I FXVIS CARPEIS. INC
port, Respondent interfered with, coerced, and restrained
its employees in the exercise of rights guaranteed by
Section 7 of the Act and, thereby, engaged in unfair
labor practices violative 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
6. Unless specified above, Respondent engaged in no
other unfair labor practices.
[Recommended Order omitted from publication.]