The Gem City Mattress Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 24, 1962

136 N.L.R.B. 1317 (N.L.R.B. 1962)

THE GEM CITY MATTRESS MANUFACTURING CO. 1317
priate unit , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (5) of the Act.
4. By the foregoing and by the conduct set forth in section III, B , supra, the Re-
spondent has interfered with, restrained , and coerced its employees in the exercise
of rights guaranteed by Section 7 of the Act and thereby has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The Gem City Mattress Manufacturing Co. and Local 156, Up-
holsterers ' International Union of North America, AFL-CIO.
Vase No. 9-CA-2346. April 24, 1962
DECISION AND ORDER
On December 29, 1961, Trial Examiner Morton D. Friedman issued
his Intermediate Report herein, finding that Respondent had engaged
in unfair labor practices in violation of Section 8(a) (1), (3), and
(5) of the Act and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, The Gem City Mattress
Manufacturing Co., Dayton, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interrogating and threatening employees concerning union
affiliation and activities in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a) (1) of the Act.
(b) Promising its employees benefits to discourage their affiliation
with or support of Local 156, Upholsterers' International Union of
North America, AFL-CIO.
(c) Refusing to bargain collectively with Local 156, Upholsterers'
International Union of North America, AFL-CIO, as the exclusive
136 NLRB No. 132.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of its employees in the appropriate unit with respect
to rates of pay, wages, hours of employment, or other conditions of
employment.
(d) Discouraging membership in and activities on behalf of Local
156, Upholsterers' International Union of North America, AFL-CIO,,
or any other labor organization of its employees, by discharging, lay-
ing off, or refusing to reinstate any of its employees or in any other,
manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of employment, except to the extent
permitted by the proviso to Section 8(a) (3) of the Act.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to,
form labor organizations, to join or assist Local 156, Upholsterers'
International Union of North America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, or to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or
to refrain from engaging in such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized by
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 156, Upholster-
ers' International Union of North America, AFL-CIO, as the exclu-
sive bargaining agent of the employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, or other, condi-
tions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Offer to Oscar Charles immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of earnings he may have suffered as a result of the discrimination
against him as provided in the section of the Intermediate Report
entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its,
agents, for examination and copying, all payroll records, social secu-
rity 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.
(d) Post at its plant at Dayton, Ohio, copies of the notice attached
hereto marked "Appendix." 1 Copies of said notice, to be furnished
I In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
THE GEM CITY MATTRESS MANUFACTURING CO. 1319
by the Regional Director for the Ninth Region, shall, after being duly
signed by an authorized representative of the Respondent, be posted
immediately upon receipt thereof, and be maintained by the Respond-
ent for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate or threaten employees concerning
union affiliation or activities in a manner constituting interfer-
'ence, restraint, or coercion in violation of Section 8(a) (1) of
the Act.
WE WILL NOT promise our employees benefits to discourage their
affiliation with or support of Local 156, Upholsterers' Interna-
tional Union of North America, AFL-CIO.
WE WILL NOT discourage membership in any labor organization
by discriminating in regard to hire, tenure of employment, or any
other terms or conditions of employment of any of our employees.
WE WILL offer to Oscar Charles immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
WE WILL NOT refuse to bargain collectively with Local 156,
Upholsterers' International Union of North America, AFL-CIO,
as the exclusive representative of the employees in the bargaining
unit described below.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Local
156, Upholsterers' International Union of North America, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with Local 156,
Upholsterers' International Union of North America, AFL-CIO,
as the exclusive bargaining agent of all the employees in the
appropriate unit with respect to rates of pay, hours of employ-
ment, or other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
The bargaining unit is:
All employees excluding office clerical employees and super-
visors within the meaning of the Act.
All our employees are free to become or remain members of the
above-named Union, or any other labor organization, except to the
extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
THE GEDI CITY MATTRESS MANUFACTURING CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate with the Board's Regional Office,
Transit Building, 4th and Vine Streets, Cincinnati 2, Ohio, Telephone
Number, Dunbar 1-1420, if they have any question concerning this
notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Morton D . Fried-
man, the duly designated Trial Examiner , in Dayton , Ohio, on October 3 and 4,
1961 , on the complaint of the General Counsel and answer by the Respondent.
The issues litigated were whether The Gem City Mattress Manufacturing Co., herein
called the Respondent or Company , restrained , threatened, and coerced its em-
ployees in violation of Section 8(a)(1) of the Act; discriminatorily discharged an
employee, Oscar Charles, in violation of Section 8(a)(3) of the Act; and refused
unlawfully to bargain with Local 156, Upholsterers' International Union of North
America, AFL-CIO, herein called the Union, in violation of Section 8(a)(5) of the
Act. All parties were afforded full opportunity to examine and cross -examine wit-
nesses, to introduce evidence, to present oral argument, and thereafter to file briefs.
The parties waived oral argument. Briefs were received from the General Counsel
and from counsel for the Respondent.
Upon the entire record , and from my observation of the witnesses ,' I make the
following:
1 Unless specifically indicated to the contrary , any credibility evaluation I make of the
testimony of any witness appearing before me is based , at least in part, upon his demeanor
THE GEM CITY MATTRESS MANUFACTURING CO. 1321
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is engaged in the manufacturing of mat-
tresses, bedsprings, and other sleeping bed products and in reupholstering furniture
at its plant in Dayton, Ohio. During the year immediately preceding the filing of
the charge herein,2 a representative period, the Respondent purchased and received
materials used in the manufacture of its products directly from suppliers outside the
State of Ohio of a value in excess of $100,000. During the same period, the
Respondent sold and shipped finished products directly to customers outside the
State of Ohio of a value in excess of $10,000.3
Accordingly, I find that the Respondent is engaged in commerce within the mean-
ing of the Act and that it will effectuate the policies of the Act to assert jurisdiction
in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 156, Upholsterers' International Union of North America, AFL-CIO, ad-
mits to membership employees of the Respondent and other employees engaged in
the upholstering trade. It holds regular meetings, collects dues, and elects officers.
The Union bargains with employers with regard to wages, hours, and working con-
ditions of the employees whom it represents.4 On the basis of the foregoing, I
find that the Union is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
As set forth above, the Respondent operates a mattress and bedding plant. Until
November 1960 the business was operated by Howard Levine who had owned and
operated the Respondent for about 30 years. In November 1960 Howard Levine
died and his son, Richard, who was then in his second year at college and completely
inexperienced in business, left school to take over active management of the firm.
Assisting Howard Levine was Walter Green who was the factory manager and an
experienced and old-time employee.
The record establishes that from at least June 1960 the Company was losing
money and Richard Levine's inexperience did not help to alleviate the situation.
To add to the Respondent's woes, in February 1960 Walter Green, without notice,
left the Respondent's employ and established a competing business, taking with him
the Vindale account, the Company's largest customer, whose orders had contributed
about half of the approximately $400,000 volume that the Company had realized in
the year 1960.
During this period, Levine's business and legal advisers were urging him to,
liquidate the Company but, upon his mother's urging, Levine decided to continue,
looking for a turn of affairs which might salvage the business. Finally, in March
1961, Richard Levine called all of his employees together and informed them about
the desperate situation of the Company, urging them to assist him in every way
possible since the closing of the Company's doors was imminent without each em-
ployee doing his part.5
It was against this background that the union organizing and the events herein
below related occurred.
B. The supervisory status of George Camp
Because it is alleged in the complaint and, the General Counsel introduced
evidence which, if credited, would show that George Camp was responsible for some
of the acts which could constitute interference, restraint, and coercion, an initial
as I observed it at the time the testimony was given Cf Bryan Brothers Packing Com-
pany, 129 NLRB 285 To the extent that I indicate hereafter that I reject in part or
entirely the testimony of any given witness, it is my intent thereby to Indicate that such
part or whole of a testimony, as the case may be, is discredited by me. Jackson Afainte-
nance Corporation, 126 NLRB 115, 117, footnote 1.
2 June 16, 1960, to June 15, 1961
a From the admissions of Richard A Levine, the Respondent's vice president
* From the credited testimony of Arthur R Cook, the business manager of the Union
c From the credited testimony of Richard Levine and admissions of General Counsel wit-
nesses Albert Turner, Joe Henry Alsop, Mary Audas, and others
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-determination must be made as to whether George Camp was a supervisor at the
.times material.6
Camp was employed in the reupholstery department on the second floor of the
Respondent's plant for several years and had worked in that department with
Andrew Fanz and Frank Pohl, the Respondent's reupholsterers. Both Fanz and
Pohl testified credibly that Camp had been paid by the hour (unlike Fanz and Pohl
who had always been paid on a salary basis) until some time before the events
herein. Fanz was not sure but Pohl was definite that up to about 1 year before
the date he testified Camp was paid on an hourly rate. Levine thought that Camp
had always been a salaried employee but had no definite knowledge relating to the
period before November 1960.
In any event, at the time of the events herein, Camp was salaried, whereas all of
the employees with whom he worked were on an hourly basis, with Fanz and Pohl
the only exceptions.
A number of the General Counsel's witnesses testified in a general manner that
Camp "directed" them in their work and that they had assumed that Camp was
foreman. However, when questioned more closely none gave a very exact descrip-
tion of what Camp did. Thus, Willie Johnson testified that Camp would relay orders
for merchandise stating which order had to be completed first. Normally, how-
ever, he would just bring orders from the Respondent's office to the work area and
bang them up so the men could see what was to be done.
Harrison Alsup, shipping and receiving clerk, testified that Camp was "more or
less a foreman" and that Camp would usually have merchandise ready for delivery
and Alsup would ask Camp questions about it. But then Alsup also testified that
Mr. Levine or Mr. Heller (the new shop manager) directed his activity.
Frank Madison, who places springs on frames, testified that Camp sometimes told
him what to do but so did other employees working around the plant who were not
supervisors. He further testified that Camp brought the orders back from the plant
office and hung them on the board and told the men what would be done and what
covers to use He also stated that Camp brought the covers to the men He further
testified that Camp told the men "Here is what has to go. Here is what goes today."
Pvt Camp also did benchwork with the men and some shipping and receiving.
Ray Phillips testified that when he came to Respondent's plant looking for a job.
George Camp interviewed him and later in the same day hired him Phillips said
that he saw no other individuals representing the Respondent except Camn on that
day. Phillips insisted that in addition to getting his orders off the board, he was
told how to nerform his work by Camp.
James Gilbert Mullins' testimony corroborated that of Phillips He stated that
Camp told him exactly what Camp wanted done. Also, Camp transferred him from
one job to another. He once asked for time off and Camp refused to give it to him
Oscar Charles testified to the same effect. He also related an incident at the
time when he was hired and Richard Levine took him to the workbench where he
met Camp who shook his hand and introduced himself, saying, "I'm George Camn
I'm the foreman." Camp also called him on the telephone to come back to work
after slack time and when things were slack it was Camp who told the men to go
home. In this latter respect Charles' testimonv was corroborated by Phillips.
In contrast to the foregoing, R. V. Blankenbickler testified that he had left the
Respondent's employ about the middle of March 1961 but was rehired during
August 1961 in the capacity of foreman of the sofa bed department. This was after
Camp had left the Respondent's employ. So far as Blankenbickler knew Camp
had been a reupholsterer who was brought downstairs when things became slack in
the reupholstering department and was assigned to shipping and receiving. but not
as a foreman. However, when Blankenbickler described his current duties as a
supervisor, the description was markedly similar to the description the employees
gave of Camp's activities.
Richard Levine testified that Camp was definitely not a foreman, that he never
was given authority to either direct the activities of other employees, to hire. dis-
charge, or reprimand, or effectively recommend the same However. Levine did
admit that Camp was a supervisor trainee but that since the death of the senior
Levine and the resignation, of Green, there had been no one around to train Camp
Also, Levine did not deny that Camp had interviewed and hired Phillips. How-
ever, he insisted that this was an isolated instance and that the Company had hired
others on the recommendation of several of the employees.
"Whether Camn w'ls a annervigor is also important to the iesues of emnlover knowledge
of the alleged discriminatee's union activity and the Union's majority status
THE GEM CITY MATTRESS MANUFACTURING CO. 1323.
It may well be that Richard Levine never expressly gave Camp specific super-
visory authority. However, I credit the testimony of the employees to the effect
that Camp directed them in their work. While the work performed in the sofa bed
department required little personal, detailed direction, it is evident that when in-
struction or advice were needed the employees looked to Camp as the authority.
I cannot conclude, on the basis of the record, that Camp was a mere conduit for
instructions from the office. Levine admittedly knew little or nothing about the
construction of the Respondent's products and there is no evidence that Heller's duty
was to oversee the employees in their day-to-day work. Moreover, Camp was ad-
mittedly being trained as a supervisor until at least February 1960, and as such he
was paid a salary instead of an hourly wage. His weekly pay, moreover, was sub-
stantially in excess of the earnings of the employees with whom he worked. Addi-
tionally, although Camp hired only one individual, this was not a mere referral.
He interviewed, recommended effectively, and actually instructed the individual
when and where to report to and commence work. Perhaps this alone would not
be sufficient to establish Camp as a supervisor, but with the other indicia present
including the credited testimony that Camp told the men to leave and to report as
the workflow necessitated, moved employees from one job to another and deter-
mined the sequence of work, plus the fact that his work was similar to that of
Blankenbickler's, an admitted supervisor, I am persuaded that Camp was a super-
visor at all times material herein, and I so find?
C. Interference, restraint, and coercion
1. The facts
Albert Turner testified that approximately a week after he signed a union authori-
zation card, Levine approached him in the basement of the Gem City plant during
working hours about 3:30 in the afternoon. No one else was present. Levine told
the witness that he understood that Turner had joined the Union, to which Turner
replied that he had and that he went along with the rest of the employees. Levine
then told Turner that Turner surely knew that Levine would have to close up if
the Union came in inside of 30 or 60 days. Levine also stated that he could not
give the employees a raise for a year or two and also said to Turner that the latter
would probably have to loaf the streets the coming summer.
Willie Johnson had a similar experience according to his testimony. He stated
that Levine approached him and told him that he had understood that Johnson had
signed a card and told Johnson it was better to work than to loaf and that Levine
was in the habit of eating and that Johnson should think it over before taking
any action.
According to Mary Audas, Levine approached her in the same manner stating that
he had heard that she had signed a union card. He told her also that if the Union
came in he would have to close the doors and could not stay open. Angelina
Halburnt testified that several days after she signed a union card Levine engaged
her in a conversation in the shop during working hours also when no one else was
present. He asked Halburnt if she had signed a union card and when she answered
in the affirmative he said that business was bad and he would have to close if the
Union came in.
According to Thomas Lee Madison, Richard Levine spoke to him on June 8.
Levine asked Madison if he had joined the Union and when Madison answered in
the affirmative and that he had to go along with the rest of the employees, Levine
said that that would not work and that if the Union came in he would have to shut
the doors because he did not have the money.
Ray Phillips also testified that Richard Levine spoke to him on June 8. According
to Phillips, Levine told him that he understood that Phillips had joined the Union
or was thinking about it and Phillips said that he was and that he was going with
the majority. Levine stated to Phillips that if Phillips joined the Union they would
both be out of a job. Levine further told Phillips that Frank Pohl had been presi-
dent of the Union for 10 years and for Phillips to talk to Pohl before making his
decision. Levine also told Phillips that if the Union came in Levine would cut out
the coffee breaks and playing the radio while the employees worked. Phillips
specifically stated that Levine made no further explanation of his statements nor
did he preface the statement with any remarks to the effect that his words were not
to be taken as a threat.
7 See Ohio Power Compangt v N L R B , 176 F. 2d 385 (C A. 6), where the court held
supervisory authority need not always be exercised In determining supervisory status it
is sufficient that the power exists.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard Levine testified that after he had received a letter of demand for bargain-
ing and for recognition from the Union dated June 5, 1961, he spoke to his attorney,
Louis Shulman and Shulman told him to ask the employees whether they were
actually interested in the Union. After speaking to Shulman, Levine spoke to a
number of the employees. He inquired as to whether or not they wanted the Union.
He prefaced his remarks to all of them with a statement to the effect that anything
that he would say to them he did not want them to take as a threat and that he had
definitely nothing against unions Then he asked the employees, individually, if
they were interested in joining a union and he told each one that he had received
a letter from the Union and that he understood there was some interest within the
plant. Then, in almost every case, the information was volunteered to him that
each had signed pledge cards. Levine admitted that he went on asking them further
questions as to their interest and found that most of them did not want the Union
in the plant. Levine also stated that he further informed the employees at that time,
as he did earlier at the meeting held some time in March 1961, that ever since his
father's death he had been losing a great deal of money in the business, that every
month turned out to be a losing month, and that if the Union should come in he
would certainly try to live with it. However, if the demands were too great he
might find that he would have to close the doors. Levine admitted he might have
also answered questions put to him by each employee individually but he denied
that he asked employees whether or not each had signed a card for the Union. He
insisted that his questions were limited to asking them if they were interested in
joining the Union and that most of the employees volunteered the information that
they had signed the cards.
Employees also testified as to threats, promises of benefit, and interference by
George Camp, whom I have found herein to be a supervisor. Thomas Lee Madison
said that on the same day that Levine spoke to him about the Union, Camp asked
him about the Union and stated, when Madison said that he knew nothing about
the Union, that Madison had better think twice before joining the Union as the
Union was not worth the paper it was written on; that he had belonged to it and
they promised a lot but that all he had ever gotten out of the Union was a 5-cent
raise Camp also told Madison to look at the board and see that they did not have
too many orders and if the Union came in it would kill the Company. He ended
the conversation by saying he did not know about the boys in the shop, but that he
liked eating.
Madison further testifies that Camp spoke to him a second time in the middle
of June At that time employee James Mullins was present. Camp told them that
he and Milton Heller, the new plant manager, had been talking to Richard Levine
about giving the men more money and that they were trying to put it through Rich-
ard's head that he was not paying the employees enough Camp then said that if
he could get the people together and talk it over with Richard would the employees
consider forgetting about the Union if he would try to get more money for them.
James Mullins' testimony corroborated what Madison had stated, namely that Camp
had questioned them, asking them to withdraw from the Union with a promise that
their pay would be increased if they did. Mullins testified further that Camp had
persisted in pursuing this course upon several occasions and each time asked
Mullins if the pay was increased would the employees forget about the Union.
2. Conclusions as to the interference, restraint, and coercion
The foregoing testimony presents the pattern of Respondent's behavior allegedly
followed in the case of each of the employees who testified. Their versions of what
occurred at the individual interviews by Levine almost consistently contained words
'to the effect that Levine first said to them that he had heard that they had joined the
Union. Then each testified that Levine had threatened that the business would
close down if the Union came in. The words that each testified that Levine used
varied, but the import was the same in almost each instance On cross-examination
none of these witnesses were shaken. While some minor discrepancies might
appear in the record, there was nothing presented which, in my opinion, affects
the credibility of their testimony. It struck me from my observation of these wit-
nesses, that they were not vindictive as to their employer but were in fact quite
'sympathetic with the Respondent in its serious financial situation.
On the other hand, I am equally as certain that Richard Levine when relating
what occurred at these interviews might have been sincerely giving his version of
what he thought had occurred. I am not unmindful of the fact that at the time he
spoke to the employees he was emotionally upset regarding the poor financial
'condition of the business which he not too happily headed; regarded the Union's
attempts to organize his plant as an additional burden he had to carry. I am also
not unmindful of Richard's youth and his inexperience in such matters. I feel that
THE GEM CITY MATTRESS MANUFACTURING CO. 1325
his desperation born of hardships which he underwent in attempting to keep the
Respondent going were sufficient to cause him to make errors in judgment and
which one with a cooler head might have made in the same situation
On the whole therefore, I find that the witnesses for the General Counsel in this
instance were more reliable than was Mr. Levine. Accordingly I credit them and
their versions of what occurred in the conversations between Levine and each
of them.
I find, further, that Richard Levine's questioning of these employees was accom-
panied in almost each instance by the threat that if the Union came in the Com-
pany would shut down. It is elementary that such threats are violative of the Act
and it is unnecessary to support my findings of such violation by citation. Despite
the Respondent's contentions that these statements were predictions of what might
happen rather than threats, I am convinced to the contrary. None of the state-
ments were made in a context that if the Union came in and the Respondent was
forced thereby to increase expenses to a point which would be in excess of what
the Respondent could afford, that the Respondent would shut down. Rather the
statements were flat promises that if the Union came in the Respondent would
shut down.
The Respondent further contends that because of Levine's earlier talk in March
1960 to the employees to the effect that he might have to shut the doors, the remarks
made at the time of the interrogations could not have actually threatened or
coerced the employees. I do not agree. As stated above, the remarks were not a
prediction of what might happen but were rather a flat promise of what was going
to happen if the Union came into the plant. Secondly, whether the employees
were actually coerced is not material to the issue here. It is well settled that the
test to be applied is objective rather than subjective, and the Board need find
only that the remarks in question have a tendency to coerce.8
Having made such threats to his employees, Levine at the same time and in the
same conversations asked the employees whether or not they were members of the
Union. These were not even properly formed interrogations. Rather in almost
every instance Levine stated to the employee that he had heard that the employee
had become a member of the Union. This is not only an improper way to approach
,the employees to inquire as to whether they were in favor of the Union for the
purpose of deciding whether to bargain with the Union, but it also conveyed the
impression that surveillance of the employees' union activities had been conducted.
Moreover, while it is true that the Board has held under certain circumstances
an employer may lawfully interrogate his employees to ascertain whether the Union
represents a majority,9 I cannot hold that such is the case here. As heretofore set
forth, the interrogations were accompanied by threats of reprisal and were there-
fore not protected. The Board has long held that in the context of threats, inter-
rogations are unlawful.10
I also credit Thomas Lee Madison and James Mullins as to their testimony with
regard to George Camp's statements to them to the effect that the Union would kill
the business and that he would get them raises if they would forsake the Union and
induce the other employees to do likewise. The testimony in question was un-
'contradicted on the record.ii Therefore, I find that promises of raises were made to
Madison and Mullins contingent upon their withdrawing from the Union and induc-
ing other employees to do the same. Promises of benefit of such import have been
consistently held by the Board to constitute unlawful interference.12 Therefore, I
find that because Camp was a supervisor at the time the remarks were made, his
conduct constitutes unlawful interference for which the Respondent is responsible.
Accordingly, I find that the Respondent by the aforesaid activity of Levine and
Camp violated Section 8(a) (1) of the Act.
D. The discharge of Oscar Charles
1. The facts
Oscar Charles was hired by the Respondent as an upholsterer in April 1961, and
was assigned to the sofa bed department. In this job, he worked with employees
8 See N L R B. v Link-Belt Company, 311 U S. 584, 588.
9 Blue Flash Express, Inc, 109 NLRB 591.
10 See R E. Edwards, d/b/a Edwards Trucking Company, 129 NLRB 385, Griggs Equip-
ment , Inc., 125 NLRB 1152; and Blue Flash Express, Inc, 109 NLRB 591, 593
11 The Respondent did not produce Camp nor did it offer any explanation for not doing so
12 Sunshine Biscuits , Inc, 123 NLRB 1694; The Babcock & Wilcox Company, 128 NLRB
239, 248
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tommy Madison and James Mullins. Charles testified that so far as he knew big
employment record with the Respondent was satisfactory and that, in fact, Levine
had complimented him on his work. Levine admitted that he might have done so.
In any event there were no warnings or complaints ever registered against Charles
prior to the date of his discharge.
Charles was undoubtedly the union instigator in the shop. It was he who ap-
proached Arthur R. Cook, the Union's business manager, and received designation
cards. Charles distributed these cards around the shop and was the person who
approached the individual employees and urged them to sign. Most of this was done
in late May and the first few days of June 1961.
On the morning of June 6, Charles was standing at his workbench at approxi-
mately 7:30 and discussing the Union with Tommy Madison and James Mullins
whom he had already induced to sign cards. According to Charles, Madison, and
Mullins, they were discussing the fact that all of the employees had signed up but
Theresa Belt. Mullins called Belt over and asked her if she would like to join
the Union to which, according to Charles, Belt assented. Charles gave her a card
which he had in his pocket. Belt looked at the card and said she would see about it
and turned away. Belt's testimony supports this statement substantially. Accord-
ing to Belt she went upstairs to the upholstery department and spoke to employees
Pohl and Fanz about the card. After that she came downstairs still with the card in
her hand and approached George Camp. Mullins, Charles, and Madison each testi-
fied that they saw her approach Camp but could not hear what she said to him.
Belt testified that Pohl and Fanz told her that the card was a union card because
she did not know what it was. In this respect her testimony contradicts that of
Charles who stated that she said that she wanted to sign a union card. I do not
find this contradiction material because, in any event, Belt admitted that she gave
the card to Camp and told Camp that Charles had given it to her. All of the em-
ployees saw Camp leave with the card and go toward Richard Levine's office.
Camp did not testify, but Richard Levine admitted that Camp had shown him
the card and told him that it came from Theresa Belt. However, Levine denied
that Camp told him that Charles had given the card to Belt.
In any event, at the end of the workday on June 6, Charles went to punch out
his card and found that it was not in the rack. Levine, who evidently had been
looking for him, called him by name and asked him to come into the office. Levine,
according to Charles, said to Charles that he was sorry that they were going to have
to let Charles go because things were very slack and that when things picked up
Levine would call Charles to come back. Levine did not deny this.
Charles was never called back. As far as the record shows no employees were
hired after Charles' layoff except R. V. Blankenbickler, who, as heretofore set forth,
was rehired in August 1961 for the purpose of becoming the supervisor of the sofa
bed department However, Blankenbickler stated that he does perform benchwork
on the sofa beds as did Charles, although it is also apparent that he performs work
and has responsibilities additional to those responsibilities which Charles had as a
nonsupervisory employee.
Levine testified that he had been contemplating a layoff for some time, that on
the Friday before Charles' discharge Levine had left town and had not returned
until Tuesday, June 6. He asserted that before leaving town he had told the new
plant manager, Milton Heller, to lay Charles off for lack of work. Charles was
selected for layoff because he was the most recent man hired in the sofa bed de-
partment. When Levine returned to town on Tuesday morning be found that
Charles was still there and at the end of the day he personally laid Charles off.
He testified that he did not know at that time that Charles had been active in union
organizing and that he had not refused to hire him back because of his union ac-
tivities. He further testified that although he might have complimented Charles on
his work, certain hide-a-beds that were shipped to one of the Respondent's best
customers and upon which Charles had worked, were unsatisfactory and the customer
had refused to reorder. Levine further testified that he could often smell liquor on
Charles' breath. Levine stated that one morning Charles came in late to work
and reported that he was not feeling well and it was quite obvious that he was drunk.
In connection with the necessity of the layoff, Levine was sharply cross-examined
as to whether employees did not receive overtime after Charles' layoff Levine ad-
mitted that there could have been some overtime but that if there was, it was be-
cause of customer demand that goods be shipped immediately and not because of any
increase in business. Thus there was no warrant, according to Levine, to rehire
Charles.
THE GEM CITY MATTRESS MANUFACTURING CO. 1327
2. Conclusions and findings as to the discharge of Oscar Charles
I credit the testimony of Charles to the effect that he gave a union designation
,card to Theresa Belt and that Belt, in turn, gave it to.George Camp. This is so
because the testimony is corroborated by the testimony of Mullins, Madison, Belt,
and the admission of Levine that he saw the card and that it was shown to him by
Camp. Since I have heretofore found that Camp was a supervisor within the
meaning of the Act, I find that Respondent had knowledge of Charles' union activity.
For reasons hereinafter set forth however, I do not credit Levine to the effect that
Camp did not tell him that Belt had received the card from Charles.
Having thus established employer knowledge, the question then remains as to
what was the true motivation for Charles' discharge. In disposing of this issue I
.cannot ignore the unlawful interrogation that occurred at approximately the same
time. I find that by Levine's own admissions, he was very much opposed to the
Union. While it is true that he was having a very difficult time with the business
and was beset by troubles with regard to finances, and while it is true that business
had been bad for a period preceding the time that Levine took over after his father's
'death right through to the time of the hearing herein, his peremptory layoff of
Charles without any prior warning is a suspicious circumstance, especially coming
as it did almost immediately after the disclosure to the Respondent that Charles was
the most active union supporter among the employees. Moreover, Levine testified
that he had decided to lay off Charles before he went away on the Friday prior to
the Tuesday on which Charles was discharged. He stated that he had told this
to Milton Heller, the plant manager, but that Heller had evidently forgotten to
discharge Charles. At the time of the hearing, Heller was still actively employed
by the Respondent. It would have been a simple matter for the Respondent to
place Heller upon the stand to either confirm or deny Levine's testimony. How-
ever, having failed to place Heller on the stand, Respondent must be charged with
the knowledge that Heller would have testified that Levine did not, in fact, give
him any instructions on the Friday before dune 6 to lay off Oscar Charles.
I believe that here again, as in the case of the interrogations and the threats,
Levine was beside himself with worry. Being young and inexperienced he resorted
to the only means which he would clearly see at that time, namely to rid himself
of the union activity which he was fearful would cost the firm money it could not
afford. The quickest and most direct way to accomplish this was to discard the
union leader. This, I believe, he did. Accordingly, I find, that by discharging
Charles in a precipitous manner within a few hours after Charles was discovered
to have been the shop union instigator, and in the light of Levine's other unlawful
conduct and his ineffectual attempt to explain the discharge away, I find that Charles
was discharged discriminatorily.
With regard to the Respondent's refusal to reinstate Charles, Levine testified, as
noted above, that Charles had made up some sofa beds which had been rejected by
-the ultimate customer and which had brought about a refusal of the customer to
reorder any further merchandise of that line. Levine also testified that Charles was
often drunk or partially drunk on the job. He also testified that business had not
improved since the time that Charles was laid off up until the hearing date and that
therefore there was no reason to call Charles back. Thus, the Respondent seeks to
-establish why Charles has not been reinstated.
While I accept Levine's testimony that business had been bad and that there had
been no particular upsurge in business since the date that Charles was laid off, T do
not fully credit Levine's reasons in other respects as to why Charles has not been
reinstated. Certainly the work had to be done. According to R. V. Blankenbickler's
testimony, the latter was rehired by the Respondent as a supervisor. However,
Blankenbickler also testified that he performed benchwork in the sofa bed department
as well as his other duties and thus brought back to three the number of individuals
who were actually engaged in upholstering sofa beds. This was the number engaged
in that capacity prior to the time that Charles was laid off. Accordingly, I do not
credit that part of Levine's testimony which tended to show that Charles' work was
not being done in the sofa bed department.
I come then to the other reasons why the Respondent allegedly did not reinstate
Charles. Richard Levine stated that Charles' work was unsatisfactory and that they
'bad received rejections from a customer on Charles' work and secondly that Charles
often smelled of liquor and one morning reported drunk to work. I do not credit
Levine's testimony to the fact that Charles' work was not satisfactory because (a)
Levine had complimented Charles on his work and had never reprimanded him in
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any way before his layoff and (b) because Levine did not in any way attempt to
substantiate his testimony that the customer had canceled and refused to order
because of Charles' errors. Such corroboration could easily have been afforded by
either documentary evidence or, if that was not available, then a representative of
the customer could have testified. Since neither of these things were done and
since the statement of Levine was completely self-serving, I reject it.
With regard to Levine's testimony that Charles was not a satisfactory employee
because he drank, I can only point to the fact that Levine also testified that Charles
was drunk the morning he reported sick. However, this occurred before Charles'
union activity and Charles was not reprimanded or discharged. I find that this
reason for refusing to reinstate Charles is an afterthought and not the true reason.
Accordingly, I find that Charles was not reinstated because of his union activity
and thereby the Respondent violated Section 8(a)(3) of the Act.
E. The refusal to bargain
1. The appropriate unit
The complaint alleges that all of the Respondent's employees excluding office
clerical employees and supervisors within the meaning of the Act constitute an
appropriate unit for the purposes of collective bargaining. The Respondent's answer
denies this allegation but no evidence was introduced by the Respondent to show
that the unit, as alleged , was inappropriate. A unit comprising all of an employer's
employees with the proper statutory exclusions is presumptively appropriate and,
accordingly, I find that the alleged unit is appropriate for the purpose of collective
bargaining.
2. The majority status of the Union
Richard Levine, at the hearing, admitted that as of June there were employed at
the Respondent' s plant 18 employees including George Camp.13 As the record
clearly shows, Oscar Charles also worked all day June 6, 1961, and because I have
found that he was then discriminatorily laid off, I also include him as an employee
as of that time. Levine mentioned George Camp as one of the employees. Because
Camp has been found, above, to have been a supervisor, I exclude him from the
employee group. Accordingly, I find that as of the times material herein and
specifically on June 6, 1961, the Respondent had in its employ 18 employees in the
appropriate unit, including Oscar Charles and excluding George Camp.
At the hearing, nine General Counsel witnesses identified as containing his or her
signature nine cards designating and authorizing the Union to represent them for
purposes of collective bargaining. Oscar Charles, besides identifying his own card,
also identified the card of Elbert McGinnis, who at the time of the hearing was
confined to a hospital. Charles testified that McGinnis signed the card in his presence
and that the signature thereon was the signature of McGinnis and that he recognized
it as the same. As each employee identified his or her card each testified that the
card was signed voluntarily and of the signer's own free will. All 10 cards, with
the exception of 1, were introduced into evidence.14 All were dated between May 25
and June 1, 1960.
The Respondent, through Richard Levine, sought to establish that the cards did
not represent the employees' true wishes in the matter. Thus Levine testified that
a number of employees had stated to him that they did not really want the Union
to represent them. However, none of the employees who signed cards made such
an admission on the witness stand. Moreover, even assuming that Levine may be
credited in this respect, the statements of the employees to him were given in a
context of threats and coercion and I would, therefore, not regard them as true
reflections of the employees' desires.
Accordingly, I find that as of June 1, 1961, and at all times material herein, at
least 10 out of the 18 employees in the unit has designated the Union and that the
Union therefore represented a majority of the Respondent's employees in an
appropriate unit.
18 Levine admitted that Joseph Alsop, Harrison Alsup, Mary Audas, William Brannon,
Theresa Belt, Andrew Fanz, Angelina Halburnt, Wallace Johnson, Frank Madison, Thomas
Madison. Flora Miller, James Albert McGinnis, Ray Phillips, Frank Pohl, Rozina Stemmer,
Albert Turner, Robert Warren, and George Camp were employed as of about that time
and on that day
14 The General Counsel apparently overlooked introducing the card of Thomas Lee
Madison However the card was marked for identification and Madison did identify the
card as his own Accordingly, I count that card.
THE GEM CITY MATTRESS MANUFACTURING CO. 13293
3. The facts as to the refusal to bargain
On June 5, 1961, the Union sent a letter by certified mail addressed to Richard
Levine. This letter, signed by Arthur R. Cook, business manager of the Union and
received by Richard Levine on June 6, 1961, stated that the Union represented a
majority of the Respondent's employees excluding office employees and supervisors
within the meaning of the Act. It also requested that the Respondent meet and
negotiate with the Union for the purposes of arriving at a bargaining agreement. I
find that this letter constituted a proper demand for recognition and bargaining.
According to Richard Levine, upon his receiving the foregoing document he called'
the Respondent's counsel, Louis Shulman, and informed him of the demand. Both
Levine and Shulman testified that Shulman advised Levine that the latter should
check with the employees and find out if the Union actually did represent a majority
of the employees and if the employees wanted the Union. What Richard Levine did
in carrying out the advice of his attorney is set forth above.
Cook, the union business manager, testified that after he sent the letter of June
5 to the Respondent he called Richard Levine twice or three times and could not
reach him. Finally, whoever answered the telephone told Cook that Levine had
left a message that Cook was to call or in some way make contact with Shulman.
Accordingly, Cook called Shulman and informed the latter that he had sent the letter
of June 5 and that he represented a majority of the employees of Gem City and
wanted the Company to recognize the Union and sit down and negotiate a contract
covering the employees. According to Cook, Shulman told him that he did not
intend to sit down with anybody and that he did not intend to negotiate a contract.
Cook at one point asked Shulman if the latter would be willing to have the cards
checked by a third disinterested party with Shulman naming the party. Shulman,
told Cook that he would not even consider that and that he did not want to talk
about it and then Shulman told Cook, "The only thing I can tell you is file a petition
with the National Labor Relations Board." According to Cook, Shulman never
questioned the majority status and Cook never succeeded in talking to Levine. The
only conversation that Cook had with anyone representing the Company or from
the Company was the above related telephone conversation with Shulman.
According to Shulman's testimony, he received a telephone call from Cook be-
tween June 6 and 9, after he had had another talk with Richard Levine who had in-
formed him that he had checked some 12 or 14 of the employees and only 2 or 3
of them said they wanted the Union. Shulman stated that he thereupon told Levine
that they would not recognize the Union on the basis of the cards and that they
would tell the Union to file a petition for an election if they wanted recognition. He
also told Levine that if the Union won the election then the Respondent would have
to recognize them, that if the Union did not win the election the Respondent would
not recognize them
According to Shulman, on June 9, in the morning, he received a telephone call
from Cook, of whom he had never heard nor to whom he had never spoken before,
and who identified himself as being from Cincinnati and the business manager of
the Union. Cook asked him what the Respondent was going to do about the union
matter at The Gem City Mattress plant for which Cook claimed he had signed cards.
Shulman told Cook that they had made a check themselves and that he doubted that
Cook, meaning the Union, represented a majority of the employees and if the Union
wanted the Company to bargain with it, the Union should file a petition for an
election and if it won the election the Company would bargain but that the Com-
pany was not going to do it on a basis of any signed cards.
Shulman further testified that Cook then asked Shulman if they obtained some
independent person to perform a card check would the Company consent to a check-
off by such independent person. Shulman said no, they would not do anything like
that, and that the Union could just file its petition. Shulman further stated that
if the Union won the Company would bargain with the Union. However, he told
Cook that the Company was not anxious to have the Union. Then, according to
Shulman, one word led to another and Cook finally wound up the conversation by
getting very abusive and said that he had heard all about Shulman, that Shulman
pulled all kinds of tricks or words to that effect. According to Shulman, Cook, in
his excitement, said that he was not going to let the employees in the shop get "set
up" and that the Company was not going to do all kinds of tricks to make the
employees change their minds, to which Schulman said that he was sorry but the
Union could go ahead and file its petition for an election and that the Company
would do its best to keep the men out of the Union but if the Union won, the Com-
pany would bargain with it. He repeated then that he did not believe that the Union
represented the majority of the Respondent's employees and that he had far too
much experience to bargain on the strength of signed cards. Shulman denied that
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had any recollection of saying anything to Cook during that conversation about
statements that Richard Levine had made to the employees and Shulman did not
believe that he had said any such thing to Cook. This latter part of the conversation
as related by Shulman was in contrast to Cook's testimony that Cook testified that
he had told Shulman that Richard had been conducting himself by unlawfully
questioning and threatening the employees.
At any rate, the telephone conversation made it evident to Cook that the Company
was not going to bargain without a Board determination. Accordingly, that after-
noon Cook filed a petition for representation which was later withdrawn when the
charge in the instant proceeding was filed. Evidently nothing happened between
the date of the conversation with Cook between Cook and Shulman and June 23,
1961. On that day, the Union, through Cook, again demanded recognition by mailing
to the Company a letter similar to the original demand for bargaining made on
June 5, 1961. However, on June 21, 1961, the Union had already filed the charge
in the instant proceeding. Apparently, in response to the union demand of June 23,
Shulman wrote Cook a letter dated June 27, 1961, in which he stated that as counsel
for the Company he was answering the June 23 letter addressed to Levine and that
it was his understanding that the Union had filed a representation petition with the
Board and that as he had explained to Cook over the telephone it was not the policy
of Shulman or his law firm to advise clients to negotiate with a union until the
Union had been properly certified.
4. Conclusions as to the refusal to bargain
I credit the testimony of Shulman to the effect that he informed Cook that the
Respondent did not believe that the Union represented a majority of its employees
and that the Union could file its petition to prove that it represented such employees.
There is no question that Shulman did turn down the offer of the Union to have
the cards checked by a disinterested third party. Accordingly, I believe, that Shul-
man was acting in good faith when he stated to the Union that he did not believe
that it represented a majority. Moreover, I do not find much difference in content
between Cook's interpretation of the telephone conversation of June 9 and Shulman's
version. Evidently there was a loss of temper on both sides and angry words were
spoken, but substantially the testimony was in agreement.
However, regardless of the information which was available to Shulman at the
time that be spoke to Cook on the telephone, and regardless of his apparent good
faith, I do find that the Respondent's refusal to recognize the Union was made in
good faith. This is so because I cannot ignore the acts of Richard Levine and
the manner in which he obtained the information which he passed on to Shulman.
While I have no doubt that Shulman acted upon the information which he possessed,
that information was obtained by Levine by unlawful means, and as a result of a
deliberate attitude on the part of Levine to coerce his employees into abandoning
their activity on behalf of the Union. Otherwise put, I cannot regard Shulman's good
faith in denying recognition as an expression of good faith on the part of the Re-
spondent in denying recognition. The good faith of an innocent agent does not
make his principal's unlawful conduct any the less unlawful.
Thus, I find that when it was faced with the Union's demand for recognition as
-bargaining representative of its employees in an appropriate unit on the basis of the
signed authorization cards, the Respondent could have lawfully rejected the Union's
.demand and insisted that the Union prove its majority in a secret election conducted
under Board auspices.15 However, the Board's election machinery exists for the
purpose of ascertaining the desire of employees as to a bargaining representative.
It is not intended to be a shield behind which an employer may engage in a campaign
.of unfair labor practices to destroy the Union's majority. For that reason when
the refusal to recognize the Union is due to a desire to gain time to take action to
defeat the Union's majority, the refusal is no longer justifiable and constitutes a vio-
-lation of the duty to bargain set forth in Section 8(a) (5) of the Act 16
It is precisely this type of proscribed conduct upon which Richard Levine em-
barked I note that Shulman gave him instructions to check among the employees
without instructing him as to how this should be done I have spoken heretofore
of Richard Levine's youth and inexperience. Accordingly I find Levine, as set
forth above. questioned his employees in a coercive manner and in a context of
coercion and threat and thus attempted to destroy the Union's majority. While he
15 Emma Gilbert, et al , d/h/a A L. Gilheit Gomnanil, 110 NLRB 2067
10 Joy Silly Mills, Inc v N L R B , 185 P 2d 732, 741 (C A D C) KTRH Broadcasting
,Cornpam,y, 113 NLRB 125, 127
THE GEM CITY MATTRESS MANUFACTURING CO. 1331
may have sought legal advice from his counsel, he failed either through his fear of
the Union or because he failed to take his counsel's advice, to follow those measures
of safety which would have been necessary in order to insure him the right to demand
a Board election . Not having done so, he abandoned , on the part of the Respondent,
the legal right to stand on his insistence that the Union go to an election . Having
done this, his refusal to bargain until the Union won a Board -conducted election
amounted to a breach of good faith.
Accordingly, I find that on the totality of all of the evidence submitted and on the
basis of Richard Levine 's conduct in questioning his employees and in discharging
the leading union adherent, the Respondent , in refusing to bargain with the Union
herein , violated Section 8(a) (5) and ( 1) of the Act.
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 operation of the Respondent described in section I, above, have
a close , intimate , and substantial relation to trade , traffic, and commerce among
the several States , and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondent refused to bargain collectively with
the Union , thereby interfering with , restraining , and coercing its employees , I shall
therefore recommend that the Respondent cease and desist therefrom and also upon
request bargain collectively with the Union with respect to wages, hours, and other
terms and conditions of employment , and embody in a signed agreement any under-
standing reached.
It having been further found that the Respondent , by threats , interrogations, and
promises of benefit interfered with, restrained, and coerced its employees in violation
of Section 8(a)(1) of the Act, I shall further recommend that the Respondent cease
and desist therefrom.
Also, having found that Oscar Charles was discriminated against in respect to
his hire and tenure of employment, I shall recommend that the Respondent be
ordered to offer him immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have suffered because of the
discrimination against him, by payment of a sum of money equal to the amount
he normally would have earned as wages from the date of his layoff to the date of
the offer of reinstatement, less his net earnings during this said period, with backpay
computed on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289, 291-294. I shall also recommend that the Re-
spondent make available to the Board, upon request, payroll and other records to
facilitate the determination of the amounts due under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of the
Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 156, Upholsterers' International Union of North America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. All of the Respondent's employees, excluding the office clerical employees and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
3. Local 156, Upholsterers' International Union of North America, AFL-CIO,
was, on June 1, 1961, and at all times since has been, the exclusive representative
within the meaning of Section 9(a) of the Act of the employees of the Respondent
in the aforesaid unit for the purposes of collective bargaining.
4. By refusing to bargain collectively with Local 156, Upholsterers' International
Union of North America, AFL-CIO, as the exclusive representative of its employees
641795-63-vol. 136 85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the appropriate unit , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
5. By such refusal to bargain and by interrogating and threatening its employees
and making promises of benefits to its employees concerning union affiliation and
activities , thereby interfering with , restraining , and coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. By discriminating in regard to the hire and tenure of employment of Oscar
Charles, thereby discouraging membership in Local 156 , Upholsterers' International
Union of North America, AFL-CIO, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and ( 1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
[Recommendations omitted from publication.]
Rusciano Construction Corporation-Del Balso Construction Cor-
poration and Carlo Fiore
Local 560, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. and Carlo Fiore
Local 560, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. and Carlo Fiore
and Associated Transport , Inc., Carolina Freight Carriers
Corp . and Rusciano Construction Corporation -Del Balso Con-
struction Corporation , Parties to the Agreement . Cases Nos.
22-CA-910, 22-CB-380, and 22-CB-401. April 04, 1962
DECISION AND ORDER
On February 5, 1962, Trial Examiner Sidney D. Goldberg issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondents had not engaged in certain other unfair labor
practices, and recommended that the allegations of the complaint per-
taining thereto be dismissed. Exceptions to the Intermediate Report.
and supporting briefs were filed by the Respondents and the General
Counsel.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Rodgers and Fanning].
' No exceptions have been filed to the Trial Examiner 's dismissal with respect to
Respondents ' alleged hiring hall, or the alleged discrimination against Carlo Fiore.
We adopt these findings pro forma.
136 NLRB No. 125.