Master Touch Dental Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 585 (N.L.R.B. 1967)

MASTER TOUCH DENTAL LABORATORIES 585
Master Touch Dental Laboratories , Inc. and
District 65, Retail , Wholesale and
Department Stores Union , AFL-CIO. Case
29-CA-570
June 19,1967
DECISION AND ORDER
Decision is amended by adding the following
paragraph immediately before the second indented
paragraph of such notice:
WE WILL NOT deal directly or individually
with employees in the aforesaid appropriate
unit concerning wages, rates of pay, benefits,
and other conditions of employment.
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On December 23, 1966, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
case, 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 attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
certain other alleged unfair labor practices and
recommended dismissal of these allegations of the
complaint. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the General Counsel's and
Respondent's exceptions and briefs, and the entire
record in the case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Master Touch
Dental Laboratories, Inc., Long Island City, New
York, its officers , agents, successors , and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Add the following as paragraph 1(b), the
present paragraphs 1(b), (c), and (d) being
consecutively relettered:
"(b) Bargaining directly with employees in said
unit who are then represented by the Union, or any
other labor organization, as an exclusive collective-
bargaining agent, with respect to rates of pay, or
other terms or conditions of employment, in
disregard of the representative status of their
exclusive collective -bargaining representative."
2. The notice attached to the Trial Examiner's
i In our opinion the record supports the Trial Examiner's
finding that the Union had the support of a majority of the
employees during the relevant 10(b) period and that the Respond-
ent violated Section 8(a)(5) by refusing to bargain with the Union.
We therefore do not rely upon his further finding that even if the
Union had lost its majority the Respondent violated Section 8(a)(5)
prior to the 10(b) period , because the Union's majority had been
dissipated by the Respondent 's unfair labor practices.
i We agree with the Trial Examiner that Respondent violated
Section 8(a)(1) as well as Section 8 (a)(5) during Nagy's meeting
with employees on March 8, 1966, by promising to institute a
profit-sharing plan if the employees improved their production.
We rest that finding, however, upon the ground that Respondent
by bypassing the Union and negotiating directly with employees
engaged in conduct calculated to undermine the status of the
Union as the employees exclusive collective -bargaining
representative
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The charge herein
was served upon Respondent on April 25, 1966,' the
complaint issued on July 20, and the case was heard on
September 26 and 27. The issues litigated were alleged
violations of Section 8(a)(1), (3), and (5). After the hearing
briefs were filed by the Respondent and the General
Counsel.
Upon the entire record,2 including my observation of the
witnesses, I adopt the following findings and conclusions:
1. RESPONDENT 'S BUSINESS
Master Touch Dental Laboratories, Inc., herein called
Respondent , is a corporation , and is engaged at its
establishment in Long Island' City, New York, in the
manufacture and sale of dentures and related products. It
annually ships to out -of-State points products valued in
excess of $50,000.
Respondent is engaged in commerce within the meaning
of the Act.
It. THE LABOR ORGANIZATION INVOLVED
District 65, Retail , Wholesale and Department Stores
Union, AFL-CIO, hereinafter called the Union , is a labor
organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The pleadings , as amended at the hearing, raise the
following issues:
1. Whether Respondent coercively interrogated its
employees about their union sentiments?
2. Whether Respondent unlawfully offered its
employees inducements to abandon the Union?
i All events here occurred in 1966 , unless otherwise stated.
Y The transcript of testimony is hereby corrected by changing
"conclusive" to "collusive" on p. 247,1 22.
165 NLRB No. 73
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Whether Respondent unlawfully refused to bargain
with the Union and bargained directly with the
employees?
4. Whether Respondent has unlawfully refused to
reinstate strikers?
A. Sequence of Events
Respondent has for more than 20 years operated a
dental laboratory and for about 14 years had contractual
relations with the Union covering all its production
employees. It is one of the few such firms in the New York
City area that is organized. Respondent's last full-term
contract expired on December 31, 1964, and, when, in the
fall of 1964, it balked at negotiating a new contract, unless
and until the Union succeeded in organizing at least some
of Respondent's competitors, the Union agreed to accept
an extension of the expiring contract until May 1, 1965,
and to make a diligent effort to organize the rest of the
industry. There is conflicting evidence, to be discussed
below, as to whether the Union made any further
bargaining overtures to Respondent after the expiration of
the extension agreement and prior to March 15, when the
Union established a picket line at Respondent's premises.
There is no dispute that on that date the Union asked to
bargain about a contract, and that Respondent refused,
citing the Union's failure to organize any of Respondent's
competitors.
None of Respondent's employees reported for work on
March 15, and Respondent thereafter operated with a
limited production force, consisting initially of its
president, A. Nagy, and his brother and nephew. About
May 1, Respondent recalled Manno and Winters. None of
the other six employees in the bargaining unit has been
recalled.
B. Discussion
1. Interrogation
The complaint alleges unlawful interrogation in
February. In support of this McLaren , the Union's shop
steward at Respondent 's plant, testified that at a plant
meeting in February Nagy asked each of the employees
whether they wanted the Union . Theodosia Hall3
corroborated McLaren as to the foregoing interrogation.4
Nagy, on the other hand , insisted that there was no such
meeting in February and that he had never asked his
employees whether they wanted the Union, because he
"automatically took it for granted" that they all belonged
to the Union . On the basis of demeanor and in view of the
mutually corroborative nature thereof, I credit the
testimony of Hall and McLaren that on that occasion
Respondent interrogated its employees . I find further that,
in the context of Respondent's other unfair labor
practices, found below , such interrogation violated Section
8(a)(1).
Because of its relevance to another aspect of this case,
there will be considered at this point conflicting testimony
as to the employees ' response to the foregoing
interrogation. According to McLaren , he told Nagy that he
8 Also identified in the record as "Theodosia Williams."
4 Manno at one point in his testimony also corroborated
McLaren on this score, but promptly retracted his testimony,
denying that the Union was discussed in any plant meeting after
May 1965. In view of the foregoing self-contradiction , I attach no
weight to Manno's testimony on this issue
wanted the Union, and, in response to a query addressed
by McLaren on that occasion to all the other employees,
they declared that they still wanted union representation.
Hall, on the other hand, testified that, in response to
Nagy's question, all the employees disclaimed any desire
for representation by the Union.
While Hall, like McLaren, was called by the General
Counsel and had no apparent ulterior motive for
contradicting McLaren's testimony, I am constrained to
credit McLaren in view of Nagy's aforenoted admission at
the hearing to the effect that he never doubted that his
employees were union members. Moreover, even if one
discounts such admission as an ill-advised effort to bolster
Nagy's denial of interrogation, the fact remains that in his
dealings with the Union after the aforegoing incident Nagy
admittedly did not question the Union's majority status or
cite any repudication of the Union by the employees as a
reason for not negotiating a new contract, but refused to
negotiate only because of the Union's failure to organize
other dental laboratories.
Accordingly, I deem McLaren's recollection more
reliable than Hall's and find that at the foregoing plant
meeting the employees affirmed their desire for union
representation.
2. Offer of benefits
The complaint was amended at the hearing to allege that
on March 8 Respondent promised the employees certain
benefits in order to undermine the Union's majority status,
thereby violating Section 8(a)(1).
McLaren testified that at a plant meeting early in
March, Nagy complained of poor business and indicated
that, if the employees worked harder, Respondent would
grant them a profit-sharing plan.
Manno, a witness for Respondent, who is found below to
be a supervisor, testified that at the foregoing meeting
Nagy complained of lagging production, urged the
employees to exert greater effort, and promised that, if the
situation improved, "Maybe we could get together and
work out something on profit sharing."
During his first appearance on the stand,5 Nagy was
asked the following question by the General Counsel:
Do you recall a meeting in February of 1966 when you
discussed with the employees production quotas and
the possibility of a profit-sharing plan being
introduced?
The witness answered: "That was March 8,1966."
And, under cross-examination by his own counsel, Nagy
explained that, because of Respondent's financial straits
at the time, he deemed an increase in productivity
essential to Respondent's survival, and admitted that he
promised the employees higher wages and fringe benefits
if they would increase their output.
However, when he returned to the stand as a witness for
Respondent, Nagy denied that he had discussed profit
sharing on that occasion , insisting that he had merely
promised the employees that, if they increased their
production, Respondent would make certain
improvements in the existing health insurance plan .6
5 He was called by the General Counsel under rule 43(b).
8 According to Nagy, this would involve the addition of major
medical and death benefits
MASTER TOUCH DENTAL LABORATORIES 587
However, in his pretrial affidavit Nagy stated that at the
foregoing meeting he told the employees that
"advancement is based upon skill, knowledge and money
and for this reason I already made an appointment with an
insurance company to investigate the possibility of
instituting profit sharing into the Company." When
confronted with this affidavit, Nagy explained that the
reference therein to his appointment to discuss profit
sharing was not part of his remarks to his employees, but
was merely in effect a parenthetical allusion to the fact
that he had made such an appointment.
However, in view of the mutually corroborative
testimony of McLaren and Manno, as well as the
vacillations in Nagy's position, I credit such testimony and
find that on March 8, Nagy promised the employees that, if
they increased their output, Respondent would institute a
profit-sharing plan.7
The General Counsel contends, inter alia ,8 that the
foregoing promise violated Section 8(a)(1), because it
tended to undermine the employees' adherence to the
Union. There seems to be no authority on the precise
question whether a promise of benefit conditioned on the
exertion of greater effort by the employees violates Section
8(a)(1), and it may well be questioned whether a benefit
with such a price tag would have any substantial tendency
to diminish the allure of a union. However, it is difficult to
distinguish this case in principle from one where an
employer offers to increase the workweek, thereby holding
forth the prospect of more money for more work. Such an
offer has been held to violate Section 8(a)(1).9
While it may well be that Nagy's immediate purpose
was not to dampen the employees' ardor for the Union, but
rather to stimulate production, the test here is not the
Employer's motive, but "whether the employer engaged in
conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights under
the Act."10
Here, it seems reasonable to infer that Respondent's
action in holding forth the prospect of higher earnings
without the intervention of a union, while at the same time,
as is found below, rebuffing the Union's efforts to
negotiate a new contract, tended to impress upon the
employees that they did not need the Union to improve
their lot. Accordingly, I find that Respondent thereby
violated Section 8(a)(1).
3. The refusal to bargain
a. The appropriate unit
There is no dispute, and it is found, that the following
unit is appropriate for collective bargaining:
All Respondent's dental laboratory employees,
excluding office clericals, guards, watchmen,
supervisors as defined in the Act, and all other
employees.
b. The Union's majority status
I find that all times here relevant there were seven
employees in the foregoing unit ." As already noted the
last union contract expired on May 1, 1965, and the record
shows that a majority of the employees continued to pay
dues to the Union until that date. It was stipulated,
however, that by August 1965, at least six of the seven
employees in the unit had stopped paying dues to the
Union,12 and the record shows that none of these six
employees attended any union meetings after May 1965. It
is conceded that there was a refusal to bargain on
March 15, and it is found below that there were earlier
refusals in November 1965 and in February 1966. It
accordingly becomes necessary to determine the Union's
majority status in November 1965, and thereafter. For
reasons noted above,13 it is found that, whether or not
McLaren was then delinquent in his dues, he was still a
union adherent in and after November 1965. As to the
other six employees, the General Counsel relies on a
rebuttable presumption, arising from Respondent's prior
contractual relations with the Union, that it continued to
represent a majority of the employees thereafter,'" and
contends that the fact that all six employees had stopped
paying dues by August 1965, or ceased to attend union
meetings , did not suffice to rebut the foregoing
presumption.
There is some authority in support of the General
Counsel's position.15 Moreover, while it is true that the
Union's bylaws provided that all members who were more
than 4 weeks in arrears in their dues payments would be
"automatically" suspended, there is uncontradicted
testimony by Union Agent Passman that this provision was
not strictly enforced, and a number of employees testified
that they did not receive any notice of their suspension
until several months or a year after they ceased paying
dues. Thus, Mrs. Hall testified that, although she stopped
paying dues on May 1, 1965, she was not notified until
some time after March 15, 1966, that she would be
"dropped" from membership in the Union if she did not
pay her dues. Manno had stopped paying dues in May
1965, but it was not until September 1966 that he received
a notice of suspension from membership for dues
delinquency. Moreover, the weight to be given to the
foregoing dues delinquency is attenuated by the fact that,
as has been found above, at the plant meeting in February
Moreover, even if one credits Nagy's version that he merely
promised improvements in the health insurance plan, if
production improved , that would seem to be as much a promise of
benefits as the promise of profit sharing.
3 As to the General Counsel's further contention that this
incident constituted direct bargaining , see below
9 English Mica Co , 92 NLRB 766, Yale Upholstering Co., Inc.,
127 NLRB 440,442
10 Exchange Parts Co , 131 NLRB 806, 812, enforcement
denied 304 F 2d 368 (C.A 5), reversed 375 U.S. 405. American
Freightways Co , 124 NLRB 146.
11 Manno is excluded from the unit, as I find him to be a
supervisor on the basis of his uncontradicted testimony
concerning his authority to assign and direct the work of others
12 There was dispute only as to McLaren's dues status
However, as he was the union steward and attended the meeting
of the Union 's executive committee on February 9, at which it was
agreed to strike Respondent , it is clear that he was at all times
here relevant a union adherent and member in good standing,
whatever the status of his dues payments
13 See fn. 12, above.
" West Suburban Transit Lines, Inc , 158 NLRB 794.
is United States Gypsum Co., 143 NLRB 1122, 1126; West
Suburban Transit Lines, Inc., supra.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees affirmed their desire for union
representation. 16
The General Counsel contends further that, even if it be
found that a majority of the employees ceased to be union
adherents after August 1965, this should be attributed to
Respondent's alleged refusal to bargain with the Union
prior to that date. Respondent denies that there was any
such refusal.
The testimony on this point was as follows:
Passman testified that on April 9, 1965, when he was
asked to negotiate a new contract to replace the one
expiring on May 1, Nagy refused because of the Union's
failure to organize other dental laboratories; that later in
the same month Nagy refused even to extend the expiring
contract; and that in May and August 1965, Nagy again
rejected the Union's request for an extension agreement.
Nagy, on the other hand, denied that he was approached
by the Union about a contract on any of the foregoing
occasions. On the basis of demeanor, and in view of the
circumstantiality of his testimony, I credit Passman. It
follows that, even if it be assumed that there were
defections from the Union between May and August 1965,
such defections would be attributable to Respondent's
foregoing refusals to bargain with the Union for a renewal
or extension of the contract, which expired on May 1,
1965.17
In conclusion on this point, it is found that on and after
October 25, 1965, the Union represented a majority of
Respondent's employees in the unit found above to be
appropriate.
c. The refusals
Respondent admittedly refused to bargain on March 15,
citing as the only reason for such refusal the failure of the
Union to organize other dental laboratories. As that is not a
sufficient reason for not bargaining,'' it is found that by
such refusal Respondent violated Section 8(a)(5) and (1) of
the Act. On the basis of Passman's credible testimony,
18 The General Counsel cites also , as proof of continued
adherence to the Union , the fact that none of the employees
reported for work after the Union established a picket line at
Respondent 's premises . However , even if one disregards
evidence of alleged coercion of the employees to respect the
picket line, there is no proof that a majority of Respondent's
employees actively picketed and the General Counsel has proved
at best that a majority of such employees voluntarily respected
the picket line as a matter of principle and not necessarily
because they desired union representation . Accordingly , I do not
regard the picketing and the resulting abstention of Respondent's
employees from work as in itself proof of the Union's majority
status By the same token, I do not regard the rather equivocal
testimony of the employees concerning their reasons for
respecting the picket line as establishing that a majority of the
employees did not on March 15 desire to be represented by a
Union
17 The question may arise whether the General Counsel is
entitled to rely on the evidence of a refusal to bargain before
October 25, 1965 (the cutoff date under Section 10(b)) to prove the
Union's majority status. While it is well settled that evidence as to
prelimitations events may be used for background purposes, it
has been held that this rule does not license the General Counsel
to prove that strikers are unfair labor practice strikers, by
showing that the respondent employer committed unfair labor
practices outside the limitations period. Greenville Cotton Oil Co ,
92 NLRB 1033 See Local Lodge No. 14241AM [Byron Mfg. Co ]
v N.L R.B., 362 U.S. 411. However, in the Greenville Cotton case
and despite Nagy's denial, it is also found that there were
like refusals to bargain in November 1965 and in February,
and that Respondent thereby additionally violated Section
8(a)(5) and (1) of the Act.
The General Counsel contends that there was a further
violation of Respondent's bargaining duty in its discussion
with the employees on March 8 of the institution of a
profit-sharing plan. It has already been found that at the
March 8 plant meeting Respondent promised to adopt
such a plan if production improved. Moreover, Nagy
testified that on that occasion, after holding forth the
prospect of profit sharing if output increased, he asked
each employee if he was willing to work harder, and each
answered in the affirmative. In view of this, it is difficult to
see how the foregoing could fail to constitute direct
negotiation by Respondent with the employees in
derogation of its duty to bargain with the Union about any
changes in terms of employment. It is accordingly found
that Respondent thereby further violated Section 8(a)(5)
and (1).
4. The refusal to reinstate
On the basis of Passman's uncontradicted testimony, I
find that the Union established the picket line at
Respondent's premises on March 15, because of
Respondent's refusal to bargain, and that Respondent's
employees were therefore unfair labor practice strikers on
and after March 15.
The complaint, as amended at the hearing, alleged that
Respondent violated Section 8(a)(3) and (1) of the Act by
rejecting applications for reinstatement by Winters on
March 17, Figueredo, on March 18, Larry Williams on
March 31, and Hall on April 2.1 9 In its answer, Respondent
did not controvert the foregoing allegation.20 However, at
the hearing Respondent amended its answer to deny the
foregoing allegation, and Nagy disputed that Winters or
Figueredo had applied for reinstatement, and the General
Counsel offered no evidence that Larry Williams had
the burden was on the General Counsel to show that the stokers
were unfair labor practice strikers and thus, entitled to
reinstatement Here, it is established that a majority of
Respondent 's employees were union adherents on May 1, 1965,
and, in view of this, as well as the parties ' poor contractual
relations , there was a rebuttable presumption that such majority
status continued West Suburban Transit Lines, Inc., supra, 9
Wigmore, Evidence, §2530 (3d ed 1946), N.L.R.B v. National
Motor Bearing Company, 105 F 2d 652, 660 (C A. 9). To rebut this
presumption, Respondent has offered evidence that the
employees failed to keep up their dues payments after August
1965 While Section 10(b) does not bar Respondent from offering
such a defense, it would be anomalous to hold that the General
Counsel may not meet such defense by showing the reason for
such dues delinquency
18 See United Mine Workers v Pennington, 381 U.S 657, and
cases there cited
19 The complaint also alleged a refusal to reinstate Manno on
March 16 However, in view of the evidence as to Manna's
supervisory status, this allegation was withdrawn at the hearing.
20 Moreover, the answer asserts that after March 15,
Respondent "dismissed the employees from its employ," and at
the hearing Nagy admitted that he "discharged" the employees
after March 15, but insisted that this was a collusive action,
effected solely for the purpose of enabling them to qualify for
unemployment compensation, and the General Counsel does not
allege such action as a violation of the Act Accordingly, I do not
deem such "discharge" to be a factor in this case.
MASTER TOUCH DENTAL LABORATORIES 589
applied .21 As to Hall, there was no dispute that about
April 1, she applied to Nagy for part-time work, and that
he rejected her request, and it is agreed that Winters was
ultimately rehired about May 1.22
Respondent contends that Hall's request, being limited
to part-time work, was not a proper request for
reinstatement to her former job. While the record is not
clear on this point, the inference is warranted that all
Respondent's production employees, including Hall, had
worked only on a full-time basis before the strike. It has
been held that a request by a striker, who formerly worked
on the day shift, for reinstatement to a job on the night
shift was not a proper request for reinstatement to the
employee's former position. 23 Absent any other guidance
on this point in Board decisions, it is found that Hall's
request for part-time work was not an adequate
application for reinstatement to her former position, and it
will be recommended that the allegation as to her be
dismissed.
Conflicting evidence was presented with regard to the
applications of Winters and Figueredo. Nagy's denial of
any application by them was impeached at the hearing by
his pretrial affidavit, in which he related that Winters
applied about March 17, and Nagy promised to contact
him, and that Figueredo applied about March 18 or 19 but
was told that the foregoing merely reflected his
construction of the purpose of telephone calls made to him
by the employees during the strike, in the course of which
they inquired generally about the situation in the plant, but
did not expressly ask to be rehired. Moreover, both
Winters and Figueredo denied at the hearing that they had
ever asked to be reinstated.24 However, the veracity of
Figueredo's denial was impeached by his pretrial
affidavit,25 and he finally admitted at the hearing that he
asked his brother-in-law to call Respondent on his behalf
and request his reinstatement, and that Nagy told his
brother-in-law that there was no work available. Nagy
confirmed that he was called by Figueredo's brother-in-
law.26
It is clear, in any event, that, as Nagy admitted, he
received telephone calls from Winters and from Figueredo
(or his brother-in-law), which Nagy construed as requests
for reinstatement of the two employees, and that, as his
pretrial affidavit shows, he indicated that he was not in a
position to reinstate either of the employees at that time.
In the case of Figueredo, the record shows that he in fact
desired reinstatement at the time of the foregoing
telephone call, and, even if he (or his brother-in-law) failed
to articulate therein an artistic request for reinstatement,
it sufficed that Nagy understood that this was the purpose
of the call. As for Winters, however, there is no evidence
that he in fact desired reinstatement on March 17, or that
Nagy was correct in construing any inquiry he may have
made about the situation in the plant or any expression of
regret by him27 as a request for reinstatement.
Accordingly, I find that there was a proper request by
Figueredo (or by his brother-in-law on his behalf) on or
about March 18, but not by Winters.
It is clear, moreover, that, although none of the
employees was recalled until about May 1, there was work
available for Figueredo on and after the date of his
foregoing application; for, Nagy admitted that after
March 15, he turned away orders for work which would
have required the services of two employees.
It is accordingly found that, by refusing to rehire
Figueredo on or about March 18, Respondent violated
Section 8(a)(3) and (1) of the Act, but that no such violation
has been proved with regard to Winters, Hall, or Larry
Williams.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It having been found that the Respondent violated
Section 8(a)(1), (3), and (5) of the Act, it will be
recommended that the Respondent cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the Respondent refused to
bargain in good faith with the Union, which represented a
majority of the employees in an appropriate unit.
Accordingly, I shall recommend that the Respondent be
ordered to bargain, upon request, in good faith with the
Union as the exclusive representative of the employees in
the appropriate unit.
Having also found that the Respondent, on or about
March 18, unlawfully refused reinstatement to Figueredo,
I shall recommend that Respondent be required to offer
him reinstatement to his former or substantially equivalent
position without impairment of seniority or other rights
and privileges. I shall also recommend that Respondent be
required to make him whole for any loss of earnings
suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of
such discrimination to the date of a valid offer of
reinstatement, less his net earnings during such period.
Backpay shall be computed in accordance with the
formula stated in F. W. Woolworth Co., 90 NLRB 289;
interest shall be added to backpay at the rate of 6 percent
per annum. Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the Respondent's unfair labor practices,
particularly the discriminatory conduct found above, there
21 The General Counsel indicated at the hearing that he did not
desire any remedy for Larry Williams, but only a violation finding
However, absent any record support therefor , no such finding is
warranted
22 Manno was also rehired about the same time.
23 The Electric Auto-Lite Company, 80 NLRB 1601,1607.
24 While admitting that he did call Nagy during the strike,
Winters insisted that he merely told Nagy that he was "sorry
about the whole thing."
25 He recited therein that on March 17 or 18 , he called Nagy
and asked to be taken back but that Nagy refused to do so.
26 He denied only that he spoke directly to the brother - in-law,
asserting that the call was taken by another and a message
relayed to Nagy While Figueredo 's testimony as to what Nagy
told the brother-in-law was obviously hearsay, it was not objected
to
14 See fn. 24 above
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exists a threat of future violations, which warrants a broad
cease-and-desist order.
CONCLUSIONS OF LAW
1. All Respondent's dental laboratory employees,
excluding office clericals, guards, watchmen, supervisors
as defined in the Act, and all other employees, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times material the Union has been and still is
the exclusive representative of all the employees in the
aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9(a) of the Act.
3. By refusing since November 1966, to bargain with
the Union as the exclusive representative of its employees
in an appropriate unit , and by bargaining directly with its
employees, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
4. By interrogation of employees about their union
sentiments, and by offering them benefits, Respondent
has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act,
and has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. Respondent has violated Section 8(a)(3) and (1) of the
Act by its refusal to reinstate Louis Figueredo.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing
findings of fact and conclusions of law, it is recommended
that Respondent, Master Touch Dental Laboratories, Inc.,
of Long Island City, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain concerning rates of pay, wages,
hours of employment, or other conditions of employment
with District 65, Retail, Wholesale and Department Stores
Union, AFL-CIO, as the exclusive representative of all its
dental laboratory employees, excluding office clericals,
guards, watchmen, supervisors as defined in the Act, and
all other employees.
(b) Discouraging membership in District 65, Retail,
Wholesale and Department Stores Union, AFL-CIO, or in
any other labor organization, by discriminating against
employees in regard to their hire or tenure of employment.
(c) Interfering with the exercise by its employees of
their rights under Section 7 of the Act by coercively
interrogating them about their union sentiments or by
promising them benefits.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the above-named
Union. or any other labor organization, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that
zs In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
such right may be affected by the provisos to Section
8(a)(3) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain with District 65, Retail,
Wholesale and Department Stores Union, AFL-CIO, as
the exclusive representative of all employees of the
Respondent in the aforesaid unit with respect to rates of
pay, wages, hours of employment, or other conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Offer Louis Figueredo immediate reinstatement to
his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and notify him if he is presently serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service, as amended, after discharge from the Armed
Forces.
(c) Make whole the said employee in the manner set
forth in the section of the Trial Examiner's decision
entitled "The Remedy," for any loss of pay he may have
suffered by reason of the Respondent's discrimination
against him.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its establishment in Long Island City, New
York, copies of the attached notice marked "Appendix."28
Copies of said notice, to be furnished by the Regional
Director for Region 29, after being duly signed by the
Respondent's representative, shall be posted by the
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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.29
IT IS FURTHER ORDERED that the complaint be dimissed
as to those allegations with respect to which no violation
has been found.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL bargain, upon request, with District 65,
Retail, Wholesale and Department Stores Union,
is In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
MASTER TOUCH DENTAL LABORATORIES 591
AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described below in
respect to rates of pay, wages, hours of employment,
or other conditions of employment, and, if an
understanding is reached, embody it in a signed
agreement . The bargaining unit is:
All our dental laboratory employees, excluding
office clericals, watchmen, supervisors as
defined in the Act, and all other employees.
WE WILL NOT discourage membership in District
65, Retail, Wholesale and Department Stores Union,
AFL-CIO, or in any other labor organization, by
discriminating against employees in regard to their
hire or tenure of employment or any term or condition
of employment.
WE WILL NOT coercively interrogate our employees
about their union sentiments or make them promises
of benefits that will tend to diminish their desire for
union representation.
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, join, or assist
District 65, Retail, Wholesale and Department Stores
Union, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their
own choosing and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any
or all such activities, except to the extent that such
right may be affected by the provisos to Section 8(aX3)
of the Act.
WE WILL offer to Louis Figueredo immediate
reinstatement to his former or substantially
equivalent position, and WE WILL make him whole for
any loss of pay suffered by reason of our past refusal
to reinstate him.
All of our employees are free to become, remain, or
refrain from becoming or remaining, members of District
65, Retail, Wholesale and Department Stores Union,
AFL-CIO, or any other labor organization.
MASTER TOUCH DENTAL
LABORATORIES, INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
596-5386.