Americraft Mfg. Co.

National Labor Relations Board - Board Decisions

Jun 19, 1979

242 N.L.R.B. 1312 (N.L.R.B. 1979)

I)t(lSIONS OF NATIONAlI LABOR RELATIONS BOARD
Dennis C. Ehrhardt d/b/a Americraft Manufacturing
Company and Clyde H. Henson, Jr. and Local 183,
Sheet Metal Workers International Association,
AFL-CIO. Cases 9 CA 12126, 9 CA 12181. and
9-RC-12321
June 19. 1979
DECISION, ORDER. AND DIRECTION OF:
SECOND ELECTION
BY CHIAIRMAN FANNING ANI) MlIMBIRS JNKINS
AND MURI'IIY
On March 20, 1979. Administrative Law Judge Pe-
ter E. Donnelly issued the attached Decision in this
proceeding. Thereafter, Respondent and the Charg-
ing Party filed exceptions and supporting briefs: Re-
spondent also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings. findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Dennis C. Ehrhardt d/b/a
Americraft Manufacturing Company. Cincinnati.
Ohio, his agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
except that the attached notice is substituted for that
of the Administrative Law Judge.
IT IS FURTHER ORDFRtD that the complaint allega-
tions not specifically found herein be, and they
hereby are, dismissed.
IT IS FURHIER ORI):RI:D that the election held in
Case 9-RC- 12321 be. and it hereby is, set aside and
' We find it unnecessary to pass on the supervisory status of Reichhng. As
found by the Adnministratise l.aw Judge. Ehrhardl. Respondent' or ner.
informed the employees thai Reichling wa, in charge ot the deparimcnt In
which he worked (onsequently. we find that Reichling was Respondlernt
agent.
that it be remanded to the Regional Director for Re-
gion 9 to conduct a second election.
[Direction of Second Election and Ecelsior foot-
note omitted from publication.]
A PPEN )DI X
>N ()I I( I. To) EN'I (oYI:S
POS:III) BY ORKI)IR ()1 I11:
NAI l(NAL LAB()R R.AII()NS BARD
An Agency of the United States Government
I wll NOI( threaten loss of employment for
employees who signed union authorization cards
while retaining those employees who did not.
I wll.. NOI in any like or related manner inter-
fere with. restrain. or coerce mn emploees in the
exercise of the rights guaranteed them in Section
7 of the Act.
DINNIS C. EIRIIARI)I )/B/A AMI RI(RAFI
M ANU IA I t RIN(i (COIMPANY
DECISION
SIAII i NS I (> I 1111 ( A .s
Pi I IR E. [)ONI,', . Administrative Law Judge: The
charge in Case 9 CA 12126 was filed on January 18. 1978.
by Clyde 11. Henson, Jr.. an individual, herein referred to as
Henson. The charge in Case 9 ('A 12181 was filed by the
Union in Februar, 9. 1978. bh Local 183. Sheet Metal
Workers International Association. AFL-CIO. herein re-
ferred to as the Union. An order consolidating cases, con-
solidated complaint. and notice of hearing was issued by
the Regional Director btr Region 9 on March 8. 1978. alleg-
ing that l)ennis C. Elirhardt d/b/a Americraft Manufac-
turing CompanN. herein called Employer or Respondent.
violated Section 8(a)(3) of the National Labor Relations
Act. as amiended, by discharging Clyde H. Henson. The
complaint further alleges that Respondent iolated Section
8(a)( ) of the Act by making certain coercive statements to
employees. The complaint also alleges that the unfair labor
practices are so serious and substantial as to make a fair
election impossible and seeks remedial relief requiring Re-
spondent to recognize and bargain with the Union. By or-
der dated March 8. 1978. in Case 9 RC 12321. a compan-
ion representation case, the Regional Director ordered that
the objections to the election. previously filed.' be consoli-
dated flar hearing with the consolidated complaint since the
objections are also tile subject of the unfair labor practice
charges. An answer to the onsolidatted complaint as
timel\ filed hb Respondent on March 16. 1978.
Pursuant to notice. a hearing Aas held before me on Jul
12 and August 21 and 22. 1978. Briefs have been dubl tiled
by the General Co(unsel and Respondent which havc been
dul\ considered.
I he elcton i.s held in I ehr.uar\ 6. 1978, itd the ti on I.- t 'iX to
none
242 NLRB No. 193
1312
AMERICRAF1 MANL FACTURING( CO.
FIN)INGS OF FAI 2
I. FIPI.OYIR'S B SItNSS
As the hearing stipulated. the Employer. a sole propri-
etorship, in the course and conduct of business in the past
12 months. sold goods valued in excess of S$5.000 to cus-
tomers located within the State of Ohio. who. in turn. sold
and caused to be shipped goods and products valued in
excess of $50,000 from their Ohio facility directs to points
outside the State of Ohio. Based on these facts I conclude
that the Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. Tite LABOR ORG(;ANIZAII)t
The complaint alleges. the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
IIIll. iH Al.EGEID UNFAIR ABOR PRA( t('S
A. Facis
I. Supervisory status of Hubert Bowling and Mark
Reichling
a. Bowling
It appears that Bowling is paid hourly at a rate of'$1 per
hour more than the next highest paid employee. While it
appears that Bowling does some unit work, he also has the
authority to assign and distribute work to the employees
based on the capability of the employees to perform the
work. In so doing he exercises his own judgment. He also
has the authority to resolve attendant problems after mak-
ing such assignments. Even though Bowling does not pos-
sess certain other of the statutory criteria indicative of su-
pervisory status, the record clearly shows that he exercises
supervisory authority in directing the work activity of the
employees. Accordingly, I conclude that Bowling is a su-
pervisor within the meaning of Section 2(11) of the Act.
b. Reichling
The record shows that Reichling was employed in the
shipping and assembly operation. In November 1977 he
became involved in a dispute with an employee named
Floyd Knipe concerning the manner of assembling a prod-
uct. Shortly thereafter Ehrhardt. the owner, called a meet-
a There is conflicting testimony regarding some of the allegations of the
complaint. In resolving these conflicts I ha, e taken into consideration the
apparent interests of the witnesses. In addition. I have considered the inher-
ent probabilities; the probabilities in light of other events: corroboration or
lack of it: and consistencies or inconsistencies within the testimon?, of each
witness and between the testimony of each and that of other witnesses with
similar or apparent interests. In evaluating the testimony of each itness I
rely specifically on his or her demeanor and have made m findings accord-
ingly. While apart from considerations of demeanor I have taken into ac-
count the above-noted credibility considerations. m failure to detail each of
these is not to be deemed a failure on my part t. hase fully considered them
Bishop and M:alco. Inc., d ho a tler s. 159 NIRB 1159. 1161 ( 1960).
ing of employees and, according to Knipe. advised the em-
ployees present that Reichling was the leadman in the
assembly department and that his instructions concerning
the affairs of the department were to be obeyed. Employee
Ronald Andres testified that Ehrhardt told them that
Reichling was in charge of the shipping and assembly. Hen-
son testified that Reichling actually directed his work activi-
ties while he was assigned to the shipping and assembl
operation. George Strabler, another employee testified that
Ehrhardt told them that Bowling and Reichling "were
speaking in his behalf to how to lsic/ do our job and what
to do."'
Despite the testimon, of' Strahler that Reichling was not
viewed by him as a supersisor and the fact that Reichling is
paid less than most other employees. he nonetheless exer-
cises such indicia of supervisory authority as to constitute
him a supervisor within the meaning of Section 2( 11 ) of the
Act.
2. The 8(a)( I) allegations
It is undisputed that shortly after the posting of certain
preelection notices Ehrhardt spoke to the emplobees con-
cerning the election petition. The meeting took place on
January 18. 1978. Concerning this conversation strabler tes-
tified:
W'ell the most pronounced thing that stood out in my
mind at that meeting is that he said that it was a pro-
prietorship and he could close the place down and
open it up under a different name. He could. Now he
said he could, he didn't say he would, he said he could
open it up under a different name other than Ameri-
craft. And what significance that had I didn't read any-
thing into that.
Ehrhardt testified that. b way of explaining the petition.
he read the petition to the employees and also read a list of
certain prohibited employer conduct. Ehrhardt states:
Well I read the opening part of the petition. I read
from the petition. It said the-I don't remember ex-
actly what it said now. Something to the effect that
Americraft Manufacturing d/b/a Dennis C. Ehr-
hardt-Dennis C. Ehrhardt d/b/a Americraft Manu-
facturing was going to have a union election. the peti-
tion was filed for a Union election. I explain to them-
there was some question as to what d/b/a was, and no
one understood that.
Q. d/hb/a appeared on the petition?
A. Yes. d/b/a was on the petition. I explained to
them that it was a proprietorship, the fact that it wasn't
a corporation, it was an individual ownership-
Reichling did not estifs at the hearing.
4The complaint alleges onl! agency status to Relchling. but since the
matter of his supers isor status was full Iligated the finding of the supervi-
sors status made herein is appropriate I also conclude that the evidence
supports the finding that he Relchlhng as an agent oi Respondcnt. Ehr-
hardt in his remarks to the employees in Nosember 1978. noted abose. held
Reichling out as endowued tiih superls or> authorits As such. the emplos-
ees could reasonabl bhelese that he thereafter spoke on behalf of m;nage-
menl and remarks made hb him concerning the business are attributable to
Respondent HIena l.ahrarire ( ,,rrulron 225 N1 RB 257 I 1971
1313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ehrhardt denied making any statement about going out
of business. Employees Knipe and Edward Bowling testi-
fied that they also attended a meeting but did not hear any
threat to the effect of closing the business and reopening
under a new name. In these circumstances, I credit the cor-
roborated testimony of Ehrhardt that he did not threaten
employees with plant closure as alleged if the employees
selected the Union to represent them.
It is also alleged that Reichling, in conversation with
Strabler at the plant within a few days after the meeting
discussed above, told Strabler that if Ehrhardt found out
who signed union cards and the place closed down, he
would take the people who had not signed the cards with
him to new employment and the people who signed cards
would be gone. Since Reichling did not testify at the hear-
ing, I credit the undisputed testimony of Strabler that the
remarks were in fact made and I conclude that such re-
marks constitute a threat of termination if' the employees
selected the Union to represent them.
3. Henson's discharge
Henson was hired in July 1977. At the time he was hired
Ehrhardt advised him about the difficulties that absences
and tardiness create, particularly in such a small company,
and gave him a company policy sheet including the follow-
ing information, followed by the company telephone num-
ber.
NOrE: The office must be notified whenever an em-
ployee is to be absent.
Normal workhours ran from 8 a.m. to 4:30 p.m. On or
about August 10, 1977, Ehrhardt observed Henson coming
in about 8:15 a.m. Pointing out his lateness to him. Ehr-
hardt told him that work began at 8 a.m. and that if he had
to rise earlier in order to be on time he should do so. Again
in late August or early September, Ehrhardt had occasion
to speak to Henson concerning other tardiness.
On September 6. 1977. the day after Labor Day. Henson
was absent from work without calling in. On September 7
when Henson arrived at work Ehrhardt spoke to him, ad-
vising him of his obligation to call in if he was going to be
absent. Henson's failure to call in was noted in writing by
Ehrhardt and placed in his personnel file.
On Saturday, November 5, a workday. Henson again
failed to report to work and did not call in (G.C. Exh. 9).
Although it appears that he advised management of his
desire to take the day off, it is clear that he did not receive
permission to do so.
On December 14, Henson called the plant sometime be-
tween 9 and 9:30 a.m. While Henson puts the time of the
call at or about 8 a.m.. I credit Ehrhardt's testimony as to
the time that the call was made. Henson asked if he would
be needed that day. reciting personal problems. Ehrhardt
told him that he should come in and that they would dis-
cuss it. Henson came in at or about 10:30 a.m. and, accord-
ing to Ehrhardt, Henson declined to detail the personal as-
pects of his problems, and they discussed, inter aa. the
matter of Henson's absences and tardiness. Ehrhardt ad-
vised him of his poor record and told him that if his ab-
sences and latenesses did not improve he would have to be
replaced. Henson agreed to do what he could. While Hen-
son denies being warned about being replaced, he concedes
that he was aware, on December 14, that his attendance
record was not good and that he felt that his job was in
jeopardy at that time. Ehrhardt also made a written note of
the December 14 meeting and placed it in Henson's person-
nel file.
Sometime between December 14 and December 20. Hen-
son spoke to Ray Messer. a union representative, concern-
ing the poor working conditions at the plant. Messer in-
quired about the employees' interest in organizing.
Thereafter. enson asked some of the employees it they
were interested in speaking to a union representative and if
they would sign authorization cards. A few days later Hen-
son picked up six cards from Messer's daughter. He solic-
ited two employees to sign cards. One of these. George
Strabler, solicited two others, Edward Bowling and Ronald
Andres. Since both of' them were out sick. Strabler got tele-
phonic permission from them to sign cards on their behalf'.
Altogether. five cards were returned by Henson to Messer
on or about Christmas Day. A petition was filed by the
Union on January 6, 1978.
On January 4 and 5. 1978, Hlenson was again absent and
did not call in on January 5. Again a notation to this effect
was made by Ehrhardt and placed in his personnel file. On
January 11 and 12, Henson was late for work. Henson tes-
tified that his absences were due to the flu. It was on Janu-
ary 12. 1978, that Ehrhardt learned from the National La-
bor Relations Board that a representation petition had been
filed by the Union.
On Friday. January 13. 1978. Henson called the plant at
or about 8 a.m. to say he would not be in. He told Bowling
that he had been unable to get to a doctor the previous day
and was making another appointment with another doctor.
Bowling told him to do what he had to do. Henson saw a
doctor on Saturday, January 14. 1978, and obtained a note
from the doctor saying that he was able to return to work
on Monday, January 16. 1978 (G.C. Exh. 12).
Henson did not work on January 16: he testified that at
or about 8 a.m.. he again called the plant and spoke to
Bowling. telling him that he would he in on Tuesday. Janu-
ary 17. 1978. and Bowling said "okay." And that later in
the day about 2 p.m. on January 16. Ehrhardt called Hen-
son, advising him that because of his attendance record he
was being discharged. Henson told Ehrhardt that he had a
note from the doctor, and Ehrhardt said that it made no
difference. Henson obtained a second note from the same
doctor on January 16. 1978, attesting to his treatment on
January 14, 1978. Henson again called Ehrhardt who again
told him that the note made no difference.
Ehrhardt offers a somewhat different account. Ehrhardt
testified that he was at the plant on January 13 from 7:15
a.m. on and was never advised that Henson had made any
call to the plant. Henson's absence prompted Ehrhardt to
review his attendance record.' Ehrhardt decided about
noon to fire Henson. Ehrhardt testified "I decided that we
would have to discharge him because his attendance and
tardiness had not improved and he still was not calling in
when he was sick." Attempts to communicate this decision
' lenson's record discloses that during the period of his emplonmen. July
22, 1977. through January 13, 1978. lenson as ahsent 16 days. 4 times
without notice, nd was late 15 times
1314
AMERICRAFT MANUFACTURING CO.
to Henson were made by Ehrhardt, hut he was unable to
contact him that day. On either January 14 or 15, he
reached Henson and advised him of his termination. Again,
Ehrhardt testified, "I told him that the decision had been
made to discharge him. He asked why and had told him it
was because after reviewing the record I told him that I had
the record there in front of me and there had been no no-
ticeable improvement since we last talked and that we
couldn't keep operating with somebody always late or miss-
ing and that I was going to have to discharge him for that."
Ehrhardt further testified:
. . .and then naturally he asked why and I said we're
discharging you because of your promptness sic/ to
work and your record. We gave you a warning and
there has been no noticeable improvement since the
warning that you received on December 14. And that
was the reason. And he said to me he says well I can
bring a doctor's excuse Tuesday. And I said well, that's
not necessary. I said the decision has been made. I says
we're not disputing whether you were sick on Friday
or not, that's not the case. Like I said we don't have to
have or don't require doctor's excuse. But that was one
particular day. It was based on his record from the
time he started working, and especially since the time
he was warned on the 14th.
To the extent that the versions of Ehrhardt and enson
vary, I conclude that Ehrhardt's version is the more credi-
ble.
A comparison between Henson's attendance record and
the attendance record of Charles Pendergrass during the
period of Henson's employment discloses that Pendergrass.
a 5-year employee, was absent more often than Henson.
Pendergrass testified that the absences in late December
and early January were due to the flu for which he was
under a doctor's care. The testimony and exhibits (G.C.
Exhs. 4, 5, and 6) disclose no tardiness." Further. the record
does not show, unlike Henson's case, that any of the ab-
sences were without calling in.
It further appears that another employee, John Justice,
had been discharged because of a poor attendance record.
Justice was employed from February 15. 1977, to July I1,
1977, when he was discharged because of repeated absences
and tardiness (Resp. Exhs. 17(a). (b), and (c).)
B. Discussion and 14 lal.sis
The General Counsel concedes that there is no direct evi-
dence to establish that Respondent was aware that Henson
was engaged in union activity. Ehrhardt became aware on
January 12 that a petition had been filed. hut he testified
that he did not associate that occurrence with Ilenson.
However, the General Counsel contends that an inference
should be made from the circumstantial evidence in the
record that Respondent had such knowledge of Hlenson's
union activity. I do not agree. I have no quarrel with the
General Counsel's exposition of the law. It is true, and there
is ample precedent for the theory that a proper inference of
6 Ehrhardt tesllfied that an emplovee's par sas not idocked tr laleuless 1
less than one-half hour because of he pa?,roll. hux)kkeeping, and ia prob-
lems it created
company knowledge can be made from circumstantial evi-
dence. The weakness of the General Counsel's position is a
failure of proof. The record herein simply does not support
a valid inference. General Counsel argues that the flact Re-
spondent's plant is small warrants drawing the inference.
However the size of the plant is not in my opinion an
adequate basis for making such an inference, particularly
where the record discloses nothing in the way of probative
evidence about Henson's union activity to show that Re-
spondent could reasonably be assumed to have become
aware of it. Maniac Corporation and 7lckt't & Manning
Coail (Corporation. 231 NLRB 858 1977).
Nor do the circumstances surrounding the discharge sup-
port any proper inference of union activits. he record
shows that, at the time he was hired in July 1977. Henson
was made aware of the importance of proper attendance.
particularly in view of the small size of the operation and he
was told how to notit' the plant of an absence. Nonethe-
less, he thereafter acquired a record of absences. both ex-
cused and unexcused, and tardiness which led to his bein
warned by Ehrhardt on December 14 that if his record did
not improve he would have to be replaced. lienson con-
cedes that he was aware. on December 14. both that his
attendance record was poor and that he was in danger of
being fired. All this preceded any union activity of ani sort.
Immediately thereafter Henson made initial contact with a
union representative and attempted to interest some other
employees in the possibility of organizing. In this posture,
Henson was thereafter late 4 das and absent 3 days. once
without notification on Januar' 5. When Henson tailed to
appear on January 13. E.hrhardt decided. in view of his
attendance record, to discharge him.
The General Counsel argues that Pendergrass' attend-
ance record was as bad ais Henson's but that he was re-
tained because he did not favor the Union. Tlhis is not an
accurate representation since although their records were
comparable as to total absences, there is nothing in the
record to show that Pendergrass was ever late. at least dur-
ing the period of' enson's enmployinent and, unlike len-
son, he apparently called in when he was absent. Nor was
Henson the only employee discharged for poor attendance.
John Justice had been discharged for his poor attendance
record in July 1977.
These circumstances do not support any legitimate infer-
ence that Respondent was aware of BHenson's union activity
or, a .Irori, that he was discharged because of such aic-
tivity. On the contrary, the record supports Respondent's
position that enson was discharged because of his record
of absences and tardiness. particularly his failure to notitf
the ('ompainy of his absences. Accordingly, I conclude that
Respondent did not iolate Section 8(a)(3) of the Act in
discharging lenson.
The General C(ounsel also contends that a bargaining or-
der is appropriate remedial relief herein, since a majllorit of
the employees b authorization cards. had selected the
l'nion to represent them and Respondent has engag ed in
such flagrant uniitir labor practices to preent the conduct
of a fair election. loweer, since the onlx untair labor prac-
tice finding herein wais a threat made to I; single CenploCee,
I cannot COTncliudc that the untfair labor priactices er so
1315
I)EC(ISIONS OF NATIONAL LABOR RELATIONS BOARD
flagrant to warrant a bargaining order and I shall, instead,
recommend that a second election be conducted. 7
IV. ()BJIc(IIONS ') I.I;('IION
The objections herein are coextensive with the allegations
of the complaint. To the extent that I have found merit to
the unfair labor practice allegations, I also conclude that
the objections based on such misconduct are sufficient to
warrant setting aside the February 6, 1978, election. It is
therefore recommended that the Board set aside the Febru-
ary 6, 1978, election and remand Case 9 RC-12321 to the
Regional Director for Region 9 for purposes of conducting
a new election at such time as he deems the circumstances
permit the free choice of a bargaining representative.
V. THE EFFE('I OF THE UNFAIR LABOR PRACTI('ES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, 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.
VI. TIlE REMEI)Y
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the fbregoing findings of fact, and con-
clusions, and the entire record in this case, I hereby make
the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed them in Section
7In view of this conclusion I find it unnecessary to pass on the matter of
the validity of the authorization cards since, even assuming the Union's
majority status, no bargaining order would be appropriate.
7 of the Act, Respondent has engaged in, and is engaging
in, unfair labor practices proscribed by Section 8(a)(I) of
the Act.
4. Respondent did not otherwise violate the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I hereby issue
the following recommended:
ORDERs
The Respondent, Dennis C. Ehrhardt, d/b/a Americraft
Manufacturing Company, Cincinnati, Ohio, his agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Threatening loss of employment for employees sign-
ing union authorization cards while retaining those who did
not.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its place of business in Cincinnati, Ohio, cop-
ies of the attached notice marked "Appendix."9 Copies of
said notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's autho-
rized representative, shall be posted by it 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. Reason-
able steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FRTHER RECOMMENDED that the election held on
February 6, 1978, in Case 9 RC-12321 be set aside and
said case remanded to the Regional Director for Region 9
to conduct a new election when he deems the circumstances
permit the free choice of a bargaining representative.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as prov ided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
9 In the event that this Order is enforced b a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
13 16
E. MISHAN &
On September 27 Respondent hired Lowell Fein as a
part-time shipping and receiving employee. He indicated
that his school schedule would permit him to work Mon-
days from I a.m. to 6 p.m. and all day on Thursdays. Fein
reported for work on Thursday. September 29, and worked
all day.
On September 29 Willie Vega gave Lowell Fein a union
membership application card. Fein read it, filled it out, and
returned it to Vega on the same day.
Sometime in late September Samuel Otero. who left Re-
spondent's employ to vacation in Puerto Rico in August.
discussed possible reemployment with Ike Mishan. After
agreeing to rehire him, Mishan informed him that the
Union was trying to come in and advised him to do himself
a favor and not join. Otero signed a union authorization
card dated September 19, 1977, on the face of the card and
September 26, 1977, on the reverse side of the card.'
At approximately 10 a.m. on October 3, union Repre-
sentative Cavanaugh appeared at Respondent's premises.
Ike Mishan met him when he entered the premises, and
Cavanaugh informed Mishan who he was and then indi-
cated that a majority of Respondent's employees had
signed authorization cards which Cavanaugh said he would
like for Mishan to inspect. Mishan declined the offer to
inspect the cards, and Cavanaugh indicated that the Union
desired recognition. Mishan informed Cavanaugh that his
brother was out of the country, and he could do nothing
until he returned. Cavanaugh then indicated that he wanted
recognition by October 20, and the meeting ended.
Immediately after Cavanaugh concluded his meeting
with Mishan, the latter went to the area in which employees
Vega and Vasquez were working. Mishan approached Vega
and asked him if he had joined the Union. When Vega
replied, "Yes," Mishan said, "You're a liar, you're a liar. I
hate liars." Mishan then saw Vasquez and told him,
"You're fired. Get out of here." As Vega continued to work
and walked towards a truck where union representatives
Robbins and Cavanaugh were standing, Ike Mishan
shouted to Vega, "You're a Puerto Rican thief."' 0
Ike Mishan admitted during his testimony that, after
Cavanaugh's departure on the morning of October 3, he
asked each of the shipping and receiving employees then
working if he had joined the Union.
Shortly after he fired Vasquez, Ike Mishan found Vega in
the downstairs part of the store building and told him that
payment to Vasquez, and Ike Mishan testified that Vasquez worked only I
week (during the last week in September), and his name does not appear on
the payroll because no one knew his last name, and he was paid in cash for
the I week. As Vasquez was admittedly not interrogated concerning his
union activities while all other shipping and receiving employees were being
questioned, I find that Ike Mishan's testimony regarding his period of em-
ployment is accurate. In addition. I note the fact that Vasquez was not an
impressive witness.
9Otero testified that he was rehired by Respondent in late September.
Respondent's payroll records reveal that he did not resume employment
until the week ending October 7. 1977. I find Respondent's records to be
more reliable than Otero's testimony and refrain from crediting his claim
that he resumed work in September.
t0 Mishan testified that he laid Vasquez off before Cavanaugh came to the
premises on October 3. 1 find that Vega's version of the incident its more
reliable than the versions given by Mishan and Vasquez and credit Vega's
version. thus finding that Vasquez was terminated after Cavanaugh de-
manded recognition.
1349
he wanted to talk to him. Mishan pulled out his wallet and
asked Vega. "'ook. how much do you want. I give it tov vou
right now." When Vega said nothing. Mishan repeated the
offer and added that he would give Vega $500. Vega re-
sponded that he would think about it.
At or about p.m. on October 3 L.o ell Fein reported to
work at Respondent.'' Fein was told to report to Ike Mi-
shan. Ike Mishan asked Fein if he had signed a union card.
Fein said that he had. Mishan asked wh; Fein stated he-
cause everyone else had. Mishan then stated that he'd "al-
ways been no good" and that he was "going to et t for
this." Mishan called Michael Katz the ringleader: I:cm de-
nied that Katz was ringleader. Mishan told Fein that he
was "not satisfied" with his work and that he was fired.?'
Mishan then called out to Martin Domfort and asked him
whether he was dissatisfied with Fein's work. Domtort said.
"No. everything was fine with his work." Domfort then left.
MNishan told Fein that he had been employed on a trial
basis. Fein responded that he had never been told that, and
that he thought it was unfair. Mishan elled at Fein "Sou
boys have sinned and you'll have to repent once again."
Mishan also elled. "You Orthodox Jews are no good." At
this point Fein asked to be paid for Thursday's work. Mi-
shan then instructed his bookkeeper. Lillian Goldberg. to
make a check for Fein. When the check was prepared Mi-
shan asked Fein to fill out a paper saying that he could not
work late on Fridays or all day on Saturdays. Fein refused.
Mishan then offered to write the statement and started writ-
ing it. When he finished Mishan asked Fein to sign it. Fein
refused. Mishan then gave Fein a check for $20 and wrote
on the back of it "temporary worker." Fein then left. '
On the evening of October 4 Ike Mishan called Steve
Lustgarten's home and spoke to his mother. The conversa-
tion lasted about 2 hours. In that conversation Ike Mishan
asked Mrs. Lustgarten if she knew what her son had done.
Mishan said that Lustgarten had joined and signed Lup with
the Union. Mrs. Lustgarten denied any knowledge of her
son's activities. She told Mishan that her son was not home
and was awa 5 for the Jewish holidays. Mishatn called Steve
Lustgarten "a troublemaker" and asked her what kind of
son she had brought up. Mishan stated that he had given
her son a part-time job and asked her to speak to her son.
Mishan then stated that if anything happened to him Ste-
ven was going to get it and would be hurt for it. Mishan
asked her for her work number so that he could talk to her
after she had spoken with her son. She refused. Mishan also
asked for Steven's rabbi so that he could talk to him and
have him speak to Steven. Again Mrs. Lustgarten refused.
Mishan then mentioned Michael Katz and Lowell Fein and
stated that Steven and Mike (Katz) had brought in Fein so
that he could join the Union. Mishan stated that he had
H II is undisputed that Ike Mishan telephoned Fein's home the preceding
Frida, and left word with Fein's mother that he was noil t report on Mon-
day as a dock strike was in progress. Fein receised the nmlc,,lge \shen he
returned home Monday alternoon.
12 At or about 2 p.m. that afternoon. Cavanaugh returned to Respondent
with Fein or Vasquez. according to Mishan. I make no findrigs regarding the
afternoon isit as Mishan's testimony as ambigus. andl I am unable to
determine who Cavanaugh was representing.
1) Mishan denied that he had asked Fein i' he had joined the t onl: he
claimed that he simply told Fein he was laing hi i ofl hecause oi the dock
strike. and :ie denied that he attempted to gel him to sign ai! saiemenl I
credit Fein.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tried to call Fein's and Katz' parents and asked her where
they were. Mrs. Lustgarten answered that she did not know.
Mishan asked her to try to get in contact with them. She
refused. Mishan asked her to talk to her son and tell him
that he could come back to work if he did not join the
Union and that he would be given a raise. Mishan also
stated that because of "Jews like Steven, we have Hitler in
Europe." The conversation then ended.' About 2 days lat-
er, on October 5, Ike Mishan again called Mrs. Lustgarten
and asked if she had spoken to her son. Mrs. Lustgarten
answered that she had not since he had not arrived. That
was the end of the conversation.
On October 4 Ike Mishan asked Vega whether he had
decided to accept his offer of money. Vega indicated he had
not decided, and Mishan told him to think about it.
On October 5 Vega told Ike Mishan that he could not
take it anymore and was going to leave. Mishan asked him
to step into his office. Vega did so. Mishan locked the door
and asked Vega where he was going. Vega said that he
might go to Puerto Rico. Vega asked for the money he had
been offered. Mishan said that since he had a majority then
he could fire Vega. Mishan then said that because Vega had
been a good worker he could give him $200. Vega asked for
vacation pay since he had not taken any vacation. Mishan
agreed to give Vega I week's vacation pay and I week's
salary. Mishan then asked Vega to go with him to the back
of the store. Mishan gave Vega the $200 as promised. Mi-
shan also gave Vega a check for $210 and asked him to sign
it. Vega signed the check and returned it to Mishan. Mi-
shan then gave him $210 in cash, making the total $410.
Mishan told Vega not to come back. Vega then left.
Employees Katz and Lustgarten credibly testified that
during the week ending September 30 they arranged to be
excused from work until October 6. Neither employee re-
ported for work on October 6. They indicated that they did
not report because Mrs. Lustgarten informed them of
Mishan's October 3 telephone call, and they feared for their
lives.
On October 6 Katz telephoned Ike Mishan. During the
conversation Katz informed Mishan that Lustgarten's
mother had indicated Mishan was trying to contact "us,"
and he asked what it was all about. Mishan replied that
Katz should ask Mrs. Lustgarten, and Katz indicated that
she was too upset. Mishan ended the conversation by stat-
ing, "Well, Mike, you're too smart for me. If you want to
talk about it come in and we'll discuss it."
On October 7 Katz, Lustgarten, and Vega accompanied
union agents Cavanaugh and Robbins to Respondent's
place of business. Ike Mishan allowed only Cavanaugh to
enter the premises. Mishan testified without contradiction
that Cavanaugh accused him of firing Katz and Lustgarten,
and that he [Mishan] replied he had never fired them, they
never came in, and if they wanted to come in then they
could come in. Mishan indicated that Cavanaugh dis-
agreed, stating that he had fired the employees, and that he
[Cavanaugh] intended to go to the Board. Mishan con-
cluded the discussion by telling Cavanaugh that he was wel-
" Ike Mishan acknowledged that he spoke with Mrs. Lustgarten, but he
gave a fragmentary account of the conversation. I credit Mrs. Lustgarten.
come to go to the Board, that he had not fired Katz and
Lustgarten.' Katz, Lustgarten, and Vega made no further
attempt to return to work for Respondent after October 7.
In mid-October Ike Mishan told Samuel Otero that if he
rejected the Union he would receive some money. Mishan
told Otero that he would be given a wage increase to $4 per
hour and was told that if he signed an agreement that he
would reject the Union, he would be given $500. Mishan
mentioned that Albert Tyler had refused a wage increase
that Mishan had offered him, and that he had given Willy
Vega some money. The offer was repeated about I week
later. Subsequently, in late October, Otero told Ike Mishan
that he would accept the $500 that he had been offered.
Otero also told Mishan that he would sign the agreement
previously disussed. Mishan then dictated the terms of the
agreement to Otero. Otero then wrote the agreement out on
a piece of paper. The paper stated, "1, Samuel Otero, under
my own free will, have decided not to join a union. I, in no
way, shape or form, was forced into this decision .... "
Otero signed it. Mishan and Peter Roberts, a salesman for
Respondent, also signed it. Mishan kept the signed paper.
Roberts left, and Mishan and Otero went to another office
where Mishan gave Otero the $500 in cash. 6
Analysis and Conclusions
A. The Alleged 8(a)(l) Violations
General Counsel alleges in paragraphs 10, I1, and 12 of
the complaint that Respondent violated Section 8(a)(1) of
the Act on numerous occasions during the months of Sep-
tember and October by unlawfully interrogating employees,
by warning them not to join the Union and threatening
reprisals if they failed to heed such warnings, and by prom-
ising them benefits to cause them to forgo participation in
union activities.
Section 8(a)( ) of the Act prohibits employers from inter-
fering with, restraining, or coercing employees in the exer-
cise of their Section 7 rights which include the right to
"join, or assist labor organizations . . . and to engage in
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection."
Respondent made no serious attempt to controvert the
evidence offered by General Counsel to prove that Ike Mi-
shan repeatedly interrogated Respondent's employees con-
cerning their union activities and sentiments. Thus, the tes-
timonies of employee witnesses which reveals that they
were interrogated, warned, and threatened with reprisals
stand substantially unrebutted. Indeed, Mishan freely ad-
mitted during his testimony that he openly interrogated em-
ployees to ascertain whether they had joined the Union im-
mediately after he learned of union activity in late August
or early September and again immediately after union
agent Cavanaugh demanded recognition on October 3,
1977. Mishan denied that he offered and/or paid employees
Vega and Otero money to cause them to refrain from join-
ing or supporting the Union but his denial was unconvinc-
51 Cavanaugh was not called as a witness.
'6 Mishan denied the transaction described b) Otero. I credit Otero who
was b far the more candid witness.
1350
E. MISHAN & SONS, INC.
ing, and I have credited the testimonies given by Vega and
Otero.
Moving to the specific violations alleged, the record as
summarized in the portion of this Decision entitled "Facts"
clearly reveals, and I find, that Respondent. through the
actions of Ike Mishan, engaged in unlawful interrogation of
employees concerning their union membership, activities,
and sentiments by: (I) asking employee Lustgarten in early
September and on September 27 what he knew about
unions and whether he had joined the Union:;'7 (2) asking
employee Vega in early September if he knew anything
about the Union, by asking him if Katz was the ringleader.
and by asking him repeatedly thereafter if he had heard
anything about the Union; (3) asking employee Katz in
early September, on September 9. and in mid-September if
he knew anything about the Union, whether he had heard
anything about it, and whether he had joined the Union;
(4) asking employee Otero on October 3 if he had joined the
Union; (5) asking employee Vega on October 3 if he had
joined the Union; and (6) asking employee Fein on October
3 if he had joined the Union and asking him if Katz was the
ringleader. Similarly, I find that Respondent. through the
actions of Ike Mishan, violated Section 8(a)(l) of the Act,
as alleged, by: (I) promising employee Vega a pension in
early September to cause him to forgo participation in
union activities; promising employee Vega $400 or $500 if
he would refrain from joining the Union and by paying him
$200 pursuant to such promise at the time of Vega's termi-
nation on October 5;li (2) telling employee Otero in late
September that he should not join the Union; (3) telling
employee Lustgarten on September 27 that he should not
join the Union; (4) telling employee Katz in mid-September
that he [Mishan] knew that he had signed a union card and
was "stabbing" him in the back by trying to organize his
shop; (5) intimidating employee Lustgarten by telephoning
his mother on October 3 as described in the portion of this
decision entitled "Facts"; (6) calling employee Vega a
"liar" when he admitted on October 3 that he had signed a
union card; (7) telling employee Fein that he was "going to
get it for this" when he admitted signing a union card on
October 3; (8) promising employee Otero a raise to $4 per
hour and $500 in mid-October to cause him to reject the
Union; and (9) by paying Otero the sum of $500 to cause
him to execute a written promise to refrain from supporting
the Union.
B. The Alleged 8(a)(3) Violations
General Counsel alleges that Respondent violated Sec-
tion 8(a)(3) of the Act by discharging employees Lowell
Fein and Jose Vasquez on October 3, 1977, because they
joined and assisted the Union and by constructively dis-
171 find the early September interrogation to be violative of Sec. 8(ax 1 of
the Act, as Mishan simultaneously asked all other available shipping and
receiving employees if they had heard anything about a union and/or asked
if they had joined a union. In such circumstances, Lustgarten could conclude
that Mishan was seeking the same information from him.
l I find that the payment of S200 to Vega on October 5 constitutes a
violation, as Mishan thereafter induced Otero to accept $500 by telling him
that he had given money to Vega to cause him to abandon the Union and
informing Otero that employee Tyler had been offered a raise and money for
the same reason.
charging employees Steve Lustgarten. Michael Katz. and
Willie Vega on October 5 or 6, 1977. because they joined or
assisted the Union. As indicated below, I conclude that
General Counsel has failed to offer sufficient evidence to
prove that Vasquez, Katz, and Vega were discharged by
Respondent for discriminatory reasons. The facts, as they
relate to each alleged discriminatee. are brieffi summarized
below.
Lowell Fein
Lowell Fein is a student who was hired by Ike Mishan on
September 27. 1977. to work part time as his school sched-
ule permitted. He reported for work in Respondent's ship-
ping and receiving department on September 29. indicating
that he could work all day on Thursday of each week. Fein
worked a full 8-hour day on September 29 and thereafter
reported for work on October 3 at I p.m.'l Immediately
after he reported for work, Fein was instructed to talk to
Ike Mishan before he commenced work. Fein credibly testi-
fied that Mishan opened the conversation by asking him if
he had signed a union card. When he replied that he had
signed a union card, Mishan asked why. The employee re-
plied that he had signed because everyone else had. Mishan
thereupon informed him that he had "always been no
good" and he was "going to get it for this." indicating that
he was not satisfied with his work. Fein's unrebutted testi-
mony is that Mishan then asked Martin Domfort if he
(Domfort) had been dissatisfied with Fein's work. Domfort
replied no. Mishan then stated, "you Orthodox Jews are no
good" and instructed his bookkeeper to prepare Fein a
check for Thursday's work. On presenting the employee
with the check, Mishan asked Fein to fill out a paper saying
he would not work late on Fridays or all day on Saturdass.
When Fein refused, Mishan wrote "temporary worker" on
the back of the check.
Respondent contends that a finding that Fein was dis-
charged for discriminatory reasons would be unwarranted,
as uncontroverted record evidence reveals that Mishan de-
cided to terminate this employee on September 30 for a
valid business reason, i.e., the dock strike. I reject this de-
fense. While Mishan did, in fact, decide on September 30
that he did not need Fein's services on October 3. and his
decision was communicated to Fein's mother, it is clear that
Mishan decided on October 3 to rid Respondent of Fein's
services permanently rather than merely during the period
of time during which the dock strike caused disruption to
Respondent's business. Having credited Fein's testimony, I
find that Respondent discharged Fein on October 3 because
Ike Mishan then learned that he had signed a union card.
By engaging in such action Respondent violated Section
8(a)(3) and (I) of the Act, as alleged.
Jose Vasquez
Jose Vasquez was hired by Respondent as a full-time
shipping and receiving employee at some undetermined
19 Ike Mishan credibl) testified that he had telephoned Fein's home on
September 30 and informed Fein's mother that Fein was not to report on
October 3 because Respondent did not need his services due to a do'k strike
then in progress in New York. Fein credihbly testfied that he did not receive
the message before reporting for work on October 3
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time in September 1977.2° His starting wage was $110 per
week.
On September 27, 1977, Vasquez signed an authorization
card for the Urnion. The record fails to reveal, however, that
any Respondent official was aware that Vasquez signed a
card. In this regard, Ike Mishan strenuously denied during
his testimony that he discussed the Union with Vasquez at
an? time. Significantly, Vasquez did not claim that any of
Respondent's officials discussed the Union with him.
Apparently. General Counsel's theory is that Respondent
must have suspected that Vasquez signed a card because
union organizer Cavanaugh informed Ike Mishan at about
10 a.m. on October 3 that a majority of Respondent's em-
ployees had signed cards. Thereafter, Mishan immediately
went to the shipping and receiving department where he
interrogated employee Vega, as previously described, and
precipitously terminated Vasquez by telling him that he
was fired.
Respondent claims that Vasquez was terminated because
his services were not needed due to the dock strike then in
progress.
While the record creates a suspicion that Respondent
did, in fact. terminate Vasquez immediately after Cava-
naugh's visit on October 3 because Ike Mishan suspected
that he had signed a union card, I am not inclined to infer,
absent more, that Respondent terminated this employee for
discriminatory reasons. Accordingly, I find that General
Counsel has failed to prove by a preponderance of the evi-
dence that Vasquez was terminated in violation of Section
8(a)(3) and (1) of the Act. I recommend that the complaint
allegation relating to Jose Vasquez be dismissed.
Willie Vega
Willie Vega was hired as a full-time employee by Re-
spondent in September 1976. He started to work for a sal-
ary of $100 per week and received regular raises. He was
admittedly a good worker. When he quit on October 5,
1977, he was making $140 per week.
During the Union's organization campaign Vega signed
an authorization card dated August 16, 1977, and he subse-
quently signed a second card for some unexplained reason
when he was approached by one of the union organizers
near Respondent's premises. He credibly testified that he
gave cards to employees Vasquez and Fein, and that they
returned them to him after completing and signing them.
As previously indicated in the section of this Decision
entitled "Facts." Ike Mishan interrogated Vega in early
September to ascertain what he knew about the Union.
During that conversation Vega denied knowing anything
about the Union, and Mishan encouraged him not to join
by telling him that he had a pension for him. At the same
time Mishan informed Vega that he knew Katz was the
0 General Counsel claims that Vasquez worked 3 or 4 weeks in Septem-
ber, and Respondent contends that he worked only the last week in Septem-
ber. The testimonies of General Counsel's witnesses, including Vasquez. fail
to reliably reveal when this employee was hired, and the state of Respon-
dent's payroll records is such that they fail completely to reveal that this
employee was paid for any work. I find it is unnecessary for me to resolve the
conflict as to his hire date, as all are agreed that he worked the last week in
September.
ringleader, and Vega was asked to report anything he heard
about the Union to Mishan.
Vega credibly testified that Ike Mishan asked him repeat-
edly after their first conversation concerning the Union if he
had heard anything about the Union. After Vega had dis-
avowed any knowledge of the Union for several weeks, Ike
Mishan offered him money, $400 or $500 according to
Vega, to refrain from joining the Union. Vega informed
Mishan that the would think it over. He subsequently dis-
cussed the money offer with union organizer Cavanaugh
who advised him to take the money.
As previously indicated, Ike Mishan accosted Vega im-
mediately after Cavanaugh had requested recognition on
October 3, and the employee admitted that he had signed a
card. Mishan then called him a "liar," stated that he "hated
liars," and called him a "Puerto Rican thief." Subsequently,
on October 4, Vega asserts that Ike Mishan asked him if he
would take the money previously offered, and Vega re-
sponded by saying that he would talk it over with his
mother.
On October 5 shortly after he came to work Vega told Ike
Mishan that he could not take it any more and was going to
leave. Mishan asked what he was going to do, and Vega
replied that he might go to Puerto Rico with his girlfriend.
Vega asked Mishan for the money he had been promised,
and Mishan informed him that he had a majority then and
could fire Vega. He then relented and told Vega that he
would give him $200 for that week's work although Vega
had worked only 2 days. Vega then demanded vacation
pay, and Mishan agreed to give him an additional $200.
Mishan gave the employee $200 in cash and then caused his
bookkeeper to make out a check for the vacation pay. The
check was supposed to be for $201, but Mishan gave Vega
$210 when he cashed the check, making the total given to
Vega $410. While waiting for the bookkeeper to prepare the
check, Vega informed one of the office girls, Eve, that he
was quitting and might go to Puerto Rico. As he left the
premises, Ike Mishan told him not to come back.
On October 7 Vega accompanied union organizer Cava-
naugh, Katz, and Lustgarten to Respondent's premises.
Cavanaugh, who did not testify during the hearing, was
permitted to enter but the employees were not. Ike Mishan,
who was the only witness to describe the conversation
which took place between him and Cavanaugh on the occa-
sion under discussion, testified that on entering the premises
Cavanaugh accused him of firing Katz and Lustgarten. Mi-
shan indicated that he replied, "I never fired them. They
never came in, and if they want to come in they can come
in now." Mishan claims that Cavanaugh replied he had
fired them, and that he indicated he was going to see about
the Board. Repeating his assertion that he had not fired
them, Mishan told Cavanaugh that he could go to the
Board if he wanted to. According to Mishan, whose testi-
mony I credit as Cavanaugh was not called as a witness,
Vega was not mentioned during the discussion.
General Counsel claims that Vega quit his job at Respon-
dent's because Mishan harassed him to the point that he
could not take it anymore. I find no merit in General Coun-
sel's claim that Vega was constructively discharged.
The underlying theory in a constructive discharge situ-
ation is that an employer is responsible for an employee's
1352
E. MISHAN & SONS, INC.
termination if the employer is responsible for creating a
situation so unbearable to an employee that he or she quits
rather than continue to work in the face of harassment.
John S. Barnes Corporation, 165 NLRB 485 (1967). How-
ever, an employee's private thoughts and feelings, standing
alone, do not provide a sufficient basis for a finding of un-
lawful discrimination, and an employer is not guilty of a
discriminatory discharge because an employee takes um-
brage at its antiunion actions or attitudes, Action Wholesale,
Inc., d/b/la A. L. French Co., 145 NLRB 627 (1963):
Omark-CCI, Inc., 208 NLRB 469. 480 (1974).
Applying the above principles to the Vega situation, I
conclude that General Counsel has failed to prove that
Vega was constructively discharged by Respondent. In my
view, Mishan's interrogation of this employee and his offer
of money to him which was intended to cause him to aban-
don the Union did not constitute the kind of misconduct
which would normally cause an employee to quit. While
Mishan's behavior on October 3. if continued, might have
produced a situation which would have caused Vega to
conclude that he was compelled to involuntarily terminate
his employment, I note that the record fails to reveal that
Vega was subjected to any harassment on October 4 or
October 5. Significantly, Respondent has not been shown to
have altered his duties in any way. In reaching my conclu-
sion, I have also considered the fact that Vega decided to
take the money Respondent unlawfully offered and paid to
him. Since he was apparently motivated to quit, at least in
part, by his desire to obtain as much money as possible
from Respondent. I am disinclined to conclude that he ac-
tually felt that he had been placed in a position where he
had to quit to avoid harassment.
For the reasons stated, I find that Vega's voluntary quit-
ting was not tantamount to a constructive discharge viola-
tive of Section 8(a)(3) of the Act.
Steven Lustgarten
Steven Lustgarten was hired by Respondent as a ship-
ping and receiving clerk in March 1977. His starting rate as
a part-time student employee was $2.50 per hour, and he
received a raise to $2.75 per hour in August.
As previously indicated, Lustgarten accompanied Mi-
chael Katz to the mid-August meeting at the Union's offices
and there signed an authorization card which is dated Au-
gust 16, 1977.
On October 3 Ike Mishan. during his telephone conversa-
tion with Lustgarten's mother, which is fully described in
the section of this Decision entitled "Facts," informed Mrs.
Lustgarten that he knew Steve had signed a card. After
thoroughly indicating to Mrs. Lustgarten that her son had
betrayed him, Mishan informed Mrs. Lustgarten that if
anything happened to him his sons would take care of
Steve. In addition, he informed her "he Steve] could come
back to work and not join the Union and they'll give him a
raise and he'll be all right."
During his testimony Lustgarten indicated that he re-
frained from reporting to work after he learned of Mishan's
telephone call because he feared for his life.
As previously indicated, Lustgarttn accompanied Vega,
Katz, and union organizer Cavanaugh to Respondent's
premises on October 7. While Ike Mishan claims that he
told Cavanaugh on that occasion that Katz and Lustgarten
had not been fired and they could resume work at that time
if they wanted, the record fails to reveal that Lustgarten
was informed that Mishan had made such statements.
Applying the constructive discharge principle set forth
above in connection with the discussion of the Vega dis-
charge to Lustgarten's situation, I conclude that Ike Mi-
shan engaged in conduct on October 3 which was intended
to cause Steven Lustgarten to quit his employment at Re-
spondent unless he decided to abandon the Union. Steven
Lustgarten could reasonably conclude that his life had been
threatened when his mother informed him of the ambigu-
ous remark made by Mishan on October 3 to the effect that
if anything happened to him his sons would take care of
Steve. In sum, I find that the harassment visited on Lustgar-
ten through his mother was sufficient to cause this employee
to involuntarily terminate his employment at Respondent. I
further find that Ike Mishan intended to cause Lustgarten
to quit when he telephoned Mrs. Lustgarten on October 3,
1977. Accordingly I find that Respondent constructively
discharged Steven Lustgarten on October 3. 1977. for dis-
criminators reasons, and it thereby violated Section 8(a)(3)
and ( 1I) of the Act, as alleged.
Michael Katz
Michael Katz was hired by Respondent in March 1977.
He was assigned to work in the shipping and receiving de-
partment at a weekly salary of $120. From the time he was
originally hired until late May. he worked only 4 days per
week.2 Katz left Respondent's employ for 2 weeks at the
end of May: he was hired in early June and thereafter
worked 5 days per week through the end of September.
During his period of employment, Katz was frequently
asked to pick samples from stock. as he was sufficiently
intelligent to perform such work effectively.
General Counsel's evidence clearly reveals that Katz was
the principal employee organizer. Thus. Katz was the first
employee contacted by the Union; he and Lustgarten were
the first two employees to attend a union meeting and sign
cards. Katz engineered the second union meeting and par-
ticipated in the solicitation of signatures on the cards signed
by Vega, Vasquez, Fein, and Otero.
Respondent. through the actions and comments of Ike
Mishan commencing September 9 and extending through
the month of September and into early October. clearly
demonstrated the fact that it was aware of Katz's participa-
tion in the union campaign. Thus, Mishan accused Katz of
being "involved" on September 9, and accused him of hav-
ing signed a card and "stabbing" him in the back by trying
to organize the shop during mid-September. In addition,
during his conversation with Mrs. Lustgarten on October 3,
Ike Mishan indicated that he was aware that Katz was at-
tempting to organize Respondent's shop.
Katz last worked on Friday, September 30, 1977. He tes-
tified without contradiction that he spoke with Ike Mishan
on September 30 and told Mishan that he would not be in
on Monday because he had school, Tuesda2 or Wednesday
2' He was paid four-fifths of $120
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they were religious holidays, but would be in on
Thursday. October 6.
Prior to October 5 Katz was informed by Mrs. Lustgar-
ten of Ike Mishan's October 3 telephone call to her. Katz
testified that he did not report for work on October 6 as
scheduled because he was too scared to go to work. How-
ever, at or about 3 p.m. on October 6, Katz telephoned Ike
Mishan. Katz testified that he stated, "Ike, I heard you've
been trying to get in touch with us. Steve's mother says
you've been calling and you wanted to speak to us. What's
it all about." Katz indicated that Mishan told him to ask
Mrs. Lustgarten what it was all about, and when Katz
stated Mrs. Lustgarten was too shaken to talk Mishan
stated, "Well, Mike, you're too smart for me. If you want to
talk about it come in and we'll discuss it."
On October 7 Katz, Lustgarten, and Vega accompanied
Cavanaugh to Respondent's premises as described above.
Ike Mishan refused to permit the employees to enter origi-
nally, but testified that he informed Cavanaugh he had not
fired Katz or Lustgarten, and that they were then free to
come on in if they so desired. The record fails to reveal that
Cavanaugh transmitted Mishan's message to Katz and
Lustgarten.
Applying the above-described constructive discharge
principles to the facts revealing Katz's termination situ-
ation, I conclude that Katz voluntarily quit his employment
on October 6, 1977. While Ike Mishan did link Katz with
Steven Lustgarten during his conversation with Mrs. Lust-
garten on October 3, I note that Mishan did not then
threaten reprisal against Katz nor did he indicate to Mrs.
Lustgarten that Katz would have to agree to forgo partici-
pation in union activities before Respondent would permit
him to return to work. Mishan merely indicated that during
the conversation in question he was aware of Katz's union
activities and desired to get in touch with the employee. In
sum, I find that Respondent did not, prior to October 6,
1977, engage in conduct which could reasonably have been
expected to cause Katz to involuntarily terminate his em-
ployment. Unlike Lustgarten. Katz did not have his life
threatened, and he was not informed that he would have to
abandon the Union if he wanted to work for Respondent.
For the reasons stated, I find that General Counsel has
failed to prove by a preponderance of the evidence that
Michael Katz was discharged in violation of Section 8(a)(3)
of the Act, as alleged. I recommend that the applicable
complaint allegation be dismissed.
C. The Alleged 8(a)(5) iolation
The complaint alleges, and General Counsel contends.
that Respondent has unlawfully refused to bargain with the
Union as the exclusive collective-bargaining agent of its
shipping and receiving employees since October 3. 1977.
Respondent's defense is twofold: it claims that the appro-
priate unit consists of the four full-time persons employed
in Respondent's shipping and receiving department: and it
maintains that General Counsel has failed to show that Re-
spondent engaged in unfair labor practices which would
preclude the Board from conducting an election among em-
ployees in the appropriate bargaining unit.
I. The appropriate unit
Paragraph 6 of the complaint alleges:
All shipping and receiving employees of Respondent.
employed at Respondent's place of business, excluding
salesmen, office clerical employees, guards, and super-
visors as defined in Section 2(11 ) of the Act constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
Respondent admits, and I find, that the unit set frth in
paragraph 6 of the complaint constitutes a unit appropriate
for the purposes of collective bargaining.
While Respondent agrees that a unit composed of Re-
spondent's shipping and receiving department employees is
appropriate, it would exclude all student employees on the
ground that they do not share sufficient community of in-
terest with full-time shipping and receiving employees. In
this regard, Respondent points to the fact that student em-
ployees work those days and hours that their college sched-
ules permit. In addition. Respondent notes that full-time
employees are salaried, receive paid holidays and vacations,
and are covered by a pension plan, while students are
hourly paid and receive no fringe benefits. I find no merit in
Respondent's contention that students should be excluded
from the unit. The student employees perform the same
work performed by full-time employees, working under the
same supervision. When not in school they work full time
and, upon entering school again, they work on a regular
part-time basis, their days and hours of work being deter-
mined by their school schedules. I find that Respondent's
student employees share sufficient community of interest
with full-time employees and find, in accord with normal
Board practice, that they are appropriately included in the
unit. See'S Candiy Shops, 231 NLRB 156 (1977): Sandy's
Stores, Inc., 163 NRB 728, 729 (1967).22
Respondent claims in its brief that employees Fein and
Vasquez should be excluded from the unit because together
they worked only an aggregate of 6 days, and neither was
assured permanent employment by Respondent. The diffi-
culty with Respondent's contention is that the record is bar-
ren of facts which would reveal that Vasquez and Fein were
casual employees. To the contrary. Vasquez was hired by
Ike Mishan in late September as a regular full-time em-
ployee at a stated weekly salary.
Similarly. Fein was hired with the understanding that his
school schedule would permit him to work half of a day on
Monday and all day each Thursday. It is clear, and I find,
that Fein and Vasquez were regularly employed, the former
as a regular part-time employee and the latter as a regular
full-time employee. Both employees are includible in the
bargaining unit.
2. The Union's majority status
On October 3, 1977, when union Representative Cava-
naugh requested Respondent to recognize the Union as the
21 Respondent contends that I should find the student employees to be
temporary or casual employees as they are merely working for Respondent
until the: become trained Ibr totally different types of emploment. As I
conclude the students are regular part-time employees, I deem their ultimate
objectives immaterial.
1354
E. MISHAN & SONS. INC'
bargaining agent of Respondent's shipping and receiving
employees, the Union had signed authorization cards from
Michael Katz, Steve ustgarten, Willy Vega, Jose Vasquez,
Lowell Fein, and Samuel Otero. While there is some dis-
pute as to when Vasquez and Otero went to work for Re-
spondent, both were employed, as were other named em-
ployees, when Cavanaugh demanded recognition at 10 a.m.
on October 3, 1977. '
On October 3, 1977, at 10 a.m.. Respondent employed
the following persons in its shipping and receiving depart-
ment: Martin Domfort, Walter Weiss, Albert TNler, Willy
Vega, Jose Vasquez, Alex Kopatsis. Michael Katz, Steve
Lustgarten. Samuel Otero, and Lowell Fein. The Union
then had valid signed authorization cards from Vega, Vas-
quez, Katz, I.ustgarten. Otero. and Fein. It is thus apparent
that at the time it demanded recognition, the Union repre-
sented 6 of Respondent's 10 shipping and receiving depart-
ment employees. Accordingly. I find that the Union repre-
sented a majority of Respondent's shipping and receiving
employees when it requested recognition on October 3,
1977.
3. The demand and refusal
Although Respondent claims that it lawfully refused to
recognize the Union on October 3. 1977. and thereafter,
General Counsel contends that Respondent has violated
Section 8(a)(5) of the Act since October 3, 1977. by engag-
ing in unfair labor practices designed to destroy the Union's
majority status and render the conduct of a fair Board-
conducted election among Respondent's employees impos-
sible. I agree with General Counsel's contention.
In N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575
(1969), the United States Supreme Court approved the use
of authorization cards as an indicator of employee senti-
ment and further approved reliance on such cards as a basis
for a bargaining order where there is "a showing that at one
point the union had a majority" and the employer has en-
gaged in unfair labor practices which "have the tendency to
undermine majority strength and impede the election pro-
cesses" (395 U.S. at 614). Both criteria have been satisfied
in the instant case. Thus, as I have previously found, the
Union represented 6 of the 10 employees in the appropriate
bargaining unit on October 3, 1977. Immediately after the
Union demanded recognition. Respondent, trough Ike
Mishan, interrogated each available shipping and receiving
department employee to ascertain whether he had signed a
union authorization card: it thereafter terminated employ-
ees Fein and l.ustgarten for discriminatory reasons and
paid employees Vega and Otero cash money to cause them
to abandon the Union. It is clear, and I find, that by engag-
ing in the conduct described Respondent evinced its rejec-
tion of the collective-bargaining principle and sought to de-
stroy the Union's majority status before an election could
be held. Accordingly. I find that Respondent violated Sec-
2 Otero, dated his card September 19. 1977. on the ace and September 26.
1977. on the reverse side. I am convinced that Otero actuall, signed the card
and placed the two dates thereon is reason for putting two dates ,n the
card was never fully explained Nevertheless I lind the calrd ((i.(' Exh. 6) to
he valid, and I count it to determine the Inion's majorit status.
tion 8(a)(5) of the Act, as alleged, from October 3, 1977,
forward, as it immediately embarked on an unlawful course
of action designed to eliminate employee support of the
Union and to make a fair election impossible when the
Union, which then represented a majority of its employees.
demanded recognition and bargaining.
In sum, I find that these unfair labor practices "are of
such a nature that their coercive effects cannot be elimi-
nated by the application of traditional remedies. with the
result that a fair and reliable election cannot be had."2'
Finally, I find that the possibility of erasing the effects of
the unfair labor practices and of insuring a fair election by
use of traditional remedies, though present. is slight, and
that employee sentiment as reflected by their execution of
union authorization cards during the period August 16 to
September 29. 1977, would, on balance, be better protected
by a bargaining order. Ihid. For the reasons stated. I find
that Respondent violated Section 8(a)(5) of the Act by re-
fusing to bargain with the Union on and after October 3.
1977. 2'
1x'. t1111 Fl- Ii( I ()t 1 ttl -AIR LABOR PRA( l( tLS t'PON
('()MMR(
The activities of' Respondent set forth in section 111,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade. traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of( com-
merce.
CON( LItTSIONS )F LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. B engaging in the conduct described in section 111 A.
above, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)( ) of the
Act.
4. B terminating Lowell Fein for discriminatory reasons
and constructively discharging Steve Lustgarten for dis-
criminatory reasons Respondent violated Section 8(a)(3)
and ( I ) of the Act.
5. All shipping and receiving employees of Respondent,
employed at Respondent's place of business, excluding
salesmen. office clerical employees, guards, and supervisors
as defined in Section 2(11) of the Act. constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6. On or about October 3. 1977, and at all material times
thereafter, the Union represented a majority of employees
in the appropriate unit and has been the exclusive repre-
sentative of said employees for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
2 1R B X (s Gat'l Pa,,Aimi (' ,, ,pr/ . 395 t1s it 614
[' Ihe retlusal-lo-hargain viotltion dates f'rom the tinme Respondenl cm-
menced its untair labor praicIces on October 3. I77
1355
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
7. Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) of the Act since October 3. 1977.
8. The ahove-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1 ), (3). and (5) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondent will be required to offer Lowell Fein and
Steve Lustgarten reinstatement to their former positions of
employment or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, making them whole for
loss of earnings or other benefits within the meaning and in
accordance with the Board's Decisions in F. W.: Wlolworlh
Compan. 90 NL RB 289 (1950), and Florida Steel (Corporla-
tion 231 NLRB 651 (1977). 2
Having found that Respondent has unlawfully refused to
bargain collectively with the Union. ; shall recommend that
it be ordered to bargain collectively with the Union. upon
request. with respect to rates of pay, wages. hours of em-
ployment, and other terms and conditions of employment
for the employees in the appropriate unit described above. I
shall also recommend that any understanding that the par-
ties may reach shall be embodied in a signed agreement.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that Re-
spondent cease and desist from in any other manner inter-
fering with, restraining, or coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER27
The Respondent, E. Mishan and Sons. Inc., New, York,
New York, its officers, agents. successors. and assigns. shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their union
activities and sentiments or concerning the union activities
and sentiments of their fellow employees.
(b) Warning employees not to join District 65. Distribu-
tive Workers of America. or any other labor organization,
and threatening reprisals is such warnings are not heeded.
26'See. generally, Isis Plumbhing & Heating (,.. 138 NLRB 716 11962).
2' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided n Sec 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions. and Order. and all objections thereto shall be deemed
waived for all purposes.
(c) Promising or granting employees new benefits or
things of value, including cash, to cause them to forgo par-
ticipation in union activities.
(d) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment or any
term or condition of employment because of their union or
protected concerted activities.
(e) Refusing to recognize District 65. Distributive Work-
ers of America. as the exclusive collective-bargaining repre-
sentative of its employees in the appropriate unit described
below.
(f) In any other manner interfering with. restraining. or
coercing employees in their exercise of rights under the Act.
2. Take the following affirmative action:
(a) Upon request, recognize and bargain with District
65. Distributive Workers of America, as the exclusive repre-
sentative of all employees in the appropriate unit, and, if an
understanding is reached. embody it in a signed document
if asked to do so. The appropriate unit is:
All shipping and receiving employees of Respondent.
employed at Respondent's place of hbusiness. excluding
salesmen, office clerical employees, guards, and super-
visors as defined in Section 2(11 ) of the Act.
(h) Ofier to Lowell Fein and Steve Lustgarten immediate
and full reinstatement to their former positions or. if such
positions no longer exist, to substantially equivalent posi-
tions. without prejudice to their seniority or other rights
previously enjoyed. and make them whole for any loss of
pay or other benefits suffered by reason of the discrimina-
tion against them in the manner described above in the
section entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records. social security payment records, timecards.
personnel records and reports. and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at Respondent's place of business at New York,
New York. copies of the attached notice marked "Appen-
dix."2M Copies of said notice. on forms provided by the Re-
gional Director for Region 2, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof' and be maintained by Respon-
dent for 60 consecutive days thereafter. in conspicuous
places. including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced.
or covered by any other material.
(e) Notift the Regional Director for Region 2, in writing.
within 20 days from the date of this Order. what steps the
Respondent has taken to comply herewith.
:e In the event that this Order is enforced by a Judgment of a Unilted
States court of' appeals. he words in the notice reading "Posted b Order of'
the National l.abor Relations Board" shall read "Posted Pursuant to a Judg-
ment of' the United States Court of Appeals Enlorcing an Order of' the Na-
tional Labor Relations Board.
1356