Beacon Upholstery Co., Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1976

226 N.L.R.B. 1360 (N.L.R.B. 1976)

1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beacon Upholstery Company , Inc.' and Retail Clerks
Union, Local 770 affiliated with Retail Clerks Inter-
national Association. Case 31-CA-5748
December 3, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On July 8, 1976, Administrative Law Judge Rich-
ard D. Taplitz issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed a brief in support of the Decision of the Admin-
istrative Law Judge.
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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1 The name of Respondent appears as amended at the hearing
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at Los Angeles, California, on March 9 and
10, 1976. The charge and amended charge were filed re-
spectively on November 28 and December 19, 1975, by
Retail Clerks Union, Local 770 affiliated with Retail
Clerks International Association, herein called the Union.
The complaint, which was issued on December 29, 1975,
and amended at the hearing, alleges that Beacon Uphol-
stery Company, Inc., herein called Respondent, violated
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(1) and (3)
of the Act by discharging and failing to reinstate 13 of its
employees because they engaged in a strike.
2. Whether Respondent violated Section 8(a)(1) and (5)
of the Act by withdrawing recognition from and refusing to
bargain with the Union.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, Respondent and the Charging Party.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a California corporation with an office and
principal place of business in Los Angeles, California, is
engaged in the operation of a retail reupholstery and drap-
ery service. Respondent annually derives gross revenues in
excess of $500,000. It annually purchases and receives
goods or services valued in excess of $5,000 from sellers or
suppliers located in California who in turn received such
goods in substantially the same form directly from outside
of California. The complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
1. The background
Respondent is in the business of performing upholstery
and drapery services. As a result of advertising its services,
Respondent receives leads from potential customers who
respond to the ads. These leads are given to Respondent's
salesmen who go to the customers' homes, show sample
fabrics, and attempt to write orders. Normally, Respon-
dent employs 13 to 16 outside salesmen. An order cannot
be completed until the customer selects a particular fabric
from the samples that are shown him. The price of various
fabrics differs considerably and an estimate cannot be giv-
en for a job until the fabric is selected. Respondent uses
samples from about 20 different sample suppliers. These
suppliers are fabric distributors who carry fabrics from dif-
ferent mills. The sample suppliers, in order to sell the fab-
rics that they handle, furnish their customers, including
226 NLRB No. 207
BEACON UPHOLSTERY COMPANY 1361
Respondent, with sample books containing numbers of
swatches of fabric. When the books are delivered to Re-
spondent, they contain a code number showing the sample
supplier's number for Respondent. In addition, some of the
sample books have Respondent's name printed on them by
the supplier. The sample supplier does not charge Respon-
dent for the samples. Respondent furnishes each of its
salesmen with a set of sample books so that the salesmen
can show them to customers. The actual set that each sales-
man carries vanes depending on the personal preference of
the individual salesman. However, a representative set of
samples includes a large number of sample books, and they
are sufficiently bulky to half fill the trunk of a normal size
car. Unless a salesman has an adequate set of samples to
show customers, he cannot quote a price or complete an
order. Samples are an indispensable working tool of the
salesman. When a new salesman is hired, he is given a set
of sample material, and when a salesman resigns he is
asked to turn in his sample material. In addition to car-
rying books of samples, Respondent's salesmen also utilize
order pads, finance information, and puce lists.
For many years the Union has been the collective-bar-
gaining representative of Respondent's salesmen. On No-
vember 17, 1975, 13 of those salesmen participated in a
strike against Respondent that had been called by the
Union. By letter dated November 21, 1975, Respondent
notified the strikers that they were discharged. The General
Counsel contends that Respondent discharged those em-
ployees because they engaged in the strike. Respondent
contends that the discharge was motivated solely by the
refusal of the salesmen to return the samples, order pads,
and price lists that they had in their possession. The Gener-
al Counsel does not contend that the employees had any
right under the Act to keep possession of the samples or
other material. General Counsel argues that the matter of
the samples is merely a pretext to disguise Respondent's
real motive for the discharge.
By letter dated November 25, 1975, Respondent notified
the Union that it had a good-faith doubt that the Union
represented a majority of its employees and further noti-
fied the Union that it would not bargain with it.
Respondent had hired 10 strike replacements by the
morning of November 21, and the letter notifying the 13
strikers that they were discharged was mailed at 5 p.m. on
that day. Respondent contends that the strikers were prop-
erly discharged for cause and therefore could not be count-
ed in determining whether the Union represented a majori-
ty of the employees as of the date of the refusal to bargain.
2. The collective-bargaining history
After a Board-conducted election, the Union was certi-
fied on September 8, 1966, as the exclusive collective-bar-
gaining representative of Respondent's employees in the
following unit:
All sales personnel at the Employer's premises located
at 5030 West Pico Blvd., Los Angeles, California; but
excluding all office clerical employees and all supervi-
sors, guards and professionals as defined in the Act.
Since about November 1, 1966, the Union and Respondent
have been parties to a series of collective-bargaining agree-
ments, the last of which, as extended, expired on Novem-
ber 15, 1975. Negotiations for a new agreement began on
October 21, 1975, and further negotiating sessions were
held on October 31, November 5, and November 13, 1975.
There is no credible evidence that Respondent harbored
any animosity towards the Union prior to the discharge of
the employees. Meyer Yahr, one of the discharged sales-
men, averred that he overheard a conversation that indi-
cated such animosity but I am unable to credit that testi-
mony. Prior to his discharge, Yahr had been shop steward
for the Union. Yahr testified that in September 1975, he
overheard a conversation in Respondent's salesroom be-
tween a Mrs. Sloane (one of the owners of Respondent)
and salesman Jess Forman. According to Yahr, he was
standing about 10 feet away, he heard Sloane and Forman
arguing over a matter concerning commissions, and he
heard Mrs. Sloane say "If it's the last thing I do, I am going
to get rid of you and the Union." Yahr averred that four or
five salesmen, including Henri Espinoza, were present at
the time. Both Forman and Espinoza testified in this case
and neither of them referred to that incident. Yahr did not
refer to it in his initial testimony and only brought it up
when recalled as a rebuttal witness. On December 10, 1975,
Yahr gave an affidavit to a Board agent. The affidavit stat-
ed in part: "During the entire period involved herein there
were no threats or promises made to any or-any of the
employees, to best of my knowledge. None were made to
me." Yahr did not impress me, when he took the stand, as
a witness with a very accurate memory. As is set forth
below, his testimony with regard to what occurred at a
union meeting on November 14, 1975, has not been credit-
ed. In view of my impression of Yahr when he testified, the
failure of other witnesses to corroborate his testimony re-
garding Mrs. Sloane, and his affidavit in which he stated
that no threats were made, I do not credit his testimony
that he heard Mrs. Sloane tell Forman that he was going to
get rid of Forman and the Union.'
3. The union meetings before the strike and the strike
On November 13, 1975, Respondent's attorney, Howard
Fabrick, delivered to the Union by messenger Respon-
dent's final offer for a new collective-bargaining agree-
ment . On November 14, 1975, the Union held a meeting
with the employees in the bargaining unit to consider Re-
spondent's proposal. That meeting was conducted at the
Union's office by Ron Bruckner, the Union's field repre-
sentative. All of the employees who were subsequently dis-
charged attended that meeting. At the meeting the employ-
ees rejected the Company's final offer and authorized the
chief executive of the Union to call a strike After the strike
vote was taken, the employees remained in the union hall
and spoke among themselves. At that time they discussed
i Mrs Sloane is the mother of Respondent's president, Joel Grossman
Grossman and Sloane are the only members of Respondent's board of di-
rectors and Sloane owns 40 percent of Respondent Grossman credibly tes-
tified that prior to the negotiations, Mrs Sloane told him to handle the
situation as he saw fit, and that he did not consult with her before the
discharges
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the samples in their possession. Employee Raymond Pe-
trauskas told the other employees that he didn't think they
could legally keep the samples. One of the salesmen said
that they could keep them until they were forced to return
them and that keeping the samples would delay Respon-
dent in hiring and training new employees. There was a
general discussion of the matter and most of the employees
agreed with that position. The above findings relating to
the discussion of samples are based on the credited testi-
mony of Petrauskas.2 Petrauskas' testimony concerning the
meeting was sharply contradicted by a number of witness-
es. Union Representative Bruckner testified that he did not
recall whether anyone raised the matter of the samples
Later he testified that he did not believe that the matter
was raised. Union Shop Steward Yahr testified that there
was no conversation concerning samples during that meet-
ing. Employees Larry Kaye and Henri M. Espinoza also
testified that there was no mention of the samples at that
meeting. I am unable to credit Bruckner, Yahr, Kaye, or
Espinoza in this regard. Respondent's salesmen were inti-
mately familiar with Respondent's operation and it is diffi-
cult to believe that they were not fully aware of the impor-
tance of the samples to Respondent if Respondent were to
continue its business with new employees. None of the
samples were returned until December 2, 1975, and then
only after Respondent's attorney had written to the em-
ployees threatening to bring legal action against them to
return the samples. The assertion by some of the employees
that they did not want to cross the picket line to return the
samples individually is not convincing. The employees
could have returned the samples to the union hall or to the
picket line and a union representative could have delivered
them to Respondent's premises No complicated arrange-
ments with Respondent were needed for the samples to
have been returned. When Bruckner met with Respon-
dent's President Grossman on December 2, 1975, before
the samples were returned, Grossman said that the purpose
of the meeting was to discuss the returning of the samples
and nothing else Bruckner replied that he couldn't go
along with that and that he thought they should discuss
everything. Bruckner admitted in his testimony that at a
union meeting held on November 25 or 26, 1975, some of
the individuals wanted to return the samples as a group
and some did not want to return the samples at all In prior
testimony before a state unemployment insurance board,
employee Sam Frank averred that the samples had been
kept by the employees in order to obtain some leverage
and advantage in the bargaining situation with Respon-
dent. In his testimony in the instant case, Frank acknowl-
edged that previous testimony but went on to testify that it
was based on his own assumption and that he did not dis-
cuss it with anyone. The above circumstances lend support
to Petrauskas' testimony and, in addition, Petrauskas im-
pressed me when he was on the stand as a candid, reliable
witness. I credit his testimony.
On November 14, 1975, after the meeting, Bruckner
called Respondent's attorney, Fabrick, and told him the
men had rejected the Company's final offer. Bruckner
asked Fabrick to let him know if there was any change in
Respondent's position. In the morning of November 17,
1975, Bruckner again called Fabrick and asked if there had
been any change in position. Fabrick replied that there was
not. Later that day Bruckner called a union meeting and
told the men it had been decided that the salesmen would
withhold their services and picketing would commence the
next day, November 18, 1975. On November 17, 1975, the
following employees ceased work concertedly and com-
menced the strike- Jess Forman, Max Goldstein, John Bill-
man, Bill Borkin , Sam Frank, Larry Kaye, Frank Holiday,
Henri M. Espinoza, Irving Koren, Meyer Yahr, Pearl Wa-
terbury, Herman Rudin, and Bud Jones.' A large group of
the employees picketed on November 18 and 19, 1975, and
for the remainder of the week two employees picketed each
day.
On November 17, 1975, Respondent President Gross-
man learned from Attorney Fabrick that a strike was in
progress However, because the strikers were outside sales-
men who did not routinely report for work at Respondent's
premises, Grossman did not know which of the employees
were on strike. On November 17, 1975, the employee com-
plement in the bargaining unit consisted of the 13 striking
employees plus 3 employees who continued to work. Those
three employees were Petrauskas,4 Danford and Warner.5
Respondent hired the first strike replacement, Art Castle-
man, on either November 17 or 18, 1975.
4 The events after the strike
At 5 p m. on November 17, 1975, Respondent mailed a
letter to the Union in which it stated that because of an
impasse in contract negotiations and the Union 's rejection
of the final contract offer, Respondent intended to put the
terms of its final offer into effect . The letter also enclosed a
copy of a letter that was sent at the same time to the 13
striking employees. That letter to the employees stated in
part*
If you choose to support the strike and withhold
your services, which is your legal right, you should
know that the Company has legal rights which we in-
tend to exercise.
Beacon will continue to operate and sales personnel
will be hired to replace those employees who have
withheld their services Beacon will place into effect
and operate under the terms and conditions of its final
contract offer to the Union excluding those provisions
dealing with Union security and medical, pension, and
other benefits which can't be maintained in the ab-
sence of a current union contract.
'This finding is based on a stipulation of the parties Those employees
had worked for Respondent from a maximum of 18 years (Frank) to a
2 Petrauskas at the time of the meeting was not in good standing with the minimum of almost 3 months (Jones)
Union because of his delinquency in dues He did not participate in the 4 Petrauskas did not report for work on November 17 but reported on
strike The original complaint alleges that Petrauskas was a striker, but dur- November 18, 1975
ing the hearing the General Counsel's unopposed motion to delete Petraus- s Danford and Warner were relatively new employees who had not joined
kas' name from the complaint was granted the Union at the time of the strike
BEACON UPHOLSTERY COMPANY 1363
* * *
Unless I hear from you to the contrary, once I learn
that the Union has called a strike, I will assume you
are participating in the strike withholding your ser-
vices and expect you to immediately surrender all the
Company materials in your possession including order
forms, samples and price sheets.
If you choose not to support the strike and wish to
continue working, you must personally advise me of
that fact so I can arrange to have sales leads continued
to be supplied to you
Should you choose to initially support the strike by
withholding your services and later wish to return to
work, you must make an unconditional offer to return
to work and you will be reinstated, unless at the time
you make that offer you have been permanently re-
placed by new sales personnel
The letters to the Union and the strikers were mailed at
5 p.m. on November 17, 1975 They were posted in a mail-
box near Respondent's premises. A sign on that mailbox
indicated that mail posted before 5 p.m. would be delivered
the following business day in certain specified zip code
areas. Mail from that box was usually picked up about 5:30
each weekday. All 13 strikers, except for Pearl Waterbury,
had mailing addresses within those specified zip code ar-
eas. Three of the thirteen letters were misaddressed. An old
address of Espinoza was used and the letter was forwarded
to him. Kaye's letter was addressed to "Zalza" instead of
"Zelzah" Street or Avenue. Waterbury's letter was ad-
dressed to "West" rather than "North" Garvey Street or
Avenue. Union Representative Bruckner credibly testified
that the November 17 letter and enclosure to the Union
were received by him either late on November 18 or in the
early morning of November 19, 1975. All of the strikers,
except for Pearl Waterbury, received the November 17,
1975, letter. Yahr received it on November 19; Espinoza,
on November 24; Kaye, on the evening of November 21;
Borkin could not recall the date, but prior to November
21; Forman, on November 22; Goldstein, on November
19, Billman, on November 19; Frank, on November 19;
Rudin, on November 20; Koren could not recall the date;
Holiday, about November 19; and Jones, sometime before
November 22. Though Waterbury did not receive the No-
vember 17 letter, he called Respondent's President Gross-
man on November 17 and in the ensuing conversation
Grossman read him the November 17 letter in its entirely- 6
On November 18, 1975, Carl Carr, the Union's research
director, scheduled a meeting with Respondent for Novem-
ber 24, 1975, at the office of the Federal Mediation and
Conciliation Service. The employees were notified of that
meeting on November 20, 1975, through Shop Steward
Meyer Yahr.
In the late afternoon of November 18, employee Ray
Petrauskas called Grossman and said that he wanted to
come back to work. Petrauskas also said that in order to
6 This finding is based on the credited testimony of Grossman Waterbury
contacted Grossman sometime after November 15, but he denied that he
called him on November 17, 1975 Grossman impressed me when he testi-
fied as a candid witness with an accurate memory, and I credit him
avoid penalties by the Union, he had resigned from the
Union.
By November 18, 1975, Respondent's employee comple-
ment in the bargaining unit consisted of nonstrikers Pe-
trauskas, Warner, and Danford, strike replacement Castle-
man and the 13 striking employees.
On November 19 or early on November 20, Union Shop
Steward Yahr received phone calls from some of the em-
ployees about the November 17 letter. The employees
asked what they should do. Yahr said he would call back.
Yahr then spoke to Union Field Representative Bruckner
concerning the material sought by Respondent. He told
Bruckner that the men wanted to return the samples in a
group because they didn't want to cross the picket line.
Bruckner told him that there was a meeting scheduled with
Respondent for November 24 and that he would try to talk
to Grossman or Fabrick and make arrangements to return
the samples. By November 19, 1975, neither the Union nor
any of the employees had contacted Grossman concerning
the return of samples.
Respondent's busy season is 6 to 8 weeks prior to Christ-
mas, and the strike occurred during that period. During the
strike Respondent continued to advertise for customers.
Beginning on November 19, both Respondent' s Presi-
dent Grossman and Respondent's General Manager Je-
rome Wagner began calling sample suppliers to obtain ad-
ditional samples that could be used by new salesmen until
the strikers returned the samples in their possession. At the
time Respondent had odds and ends of samples but no
representative sample kits that it could give to new employ-
ees. The only complete sample sets that Respondent had
were those in the possession of the three nonstriking em-
ployees. Respondent's largest sample supplier was Spec-
trum/Trend. Sectrum/Trend was able to replace certain
special closeout sample material but not regular upholstery
samples. Some of that material had to be specially made up
by sample houses and could not be duplicated from Spec-
trum/Trend's stock. It took 10 days to 2 weeks to prepare
those samples. Respondent had on hand about I week's
supply of order forms. Grossman placed a special order to
obtain additional order forms and they were received 2
weeks later.
On November 19, on the same date that it began seeking
additional samples, Respondent ran an ad to obtain new
salesmen.
At 5 p.m. on the same day, November 19, 1975, Respon-
dent posted letters to each of the striking employees. The
letters were mailed in the same mailbox as the November
7 Striking employee William Borkin returned to work in the latter part of
January 1976 Borkin testified that before his return to work, he spoke to
Grossman and Grossman told him that he (Borkin) could come back to
work if he resigned from the Union Borkin also testified that he heard from
other strikers that if a union member crossed the picket line, that member
might be subject to a fine Respondent President Grossman, in his testi-
mony, denied that he conditioned Borkin's return on Borkin's resignation
from the Union According to Grossman. Borkin called him on November
20. 1975. and said that he wanted to come back to work, but that he was
worried about fines by the Union Grossman also averred that he told Bor-
kin that Petrauskas had resigned from the Union to avoid that problem
When Borkin did return to work, Grossman did not know whether or not
Borkin had resigned from the Union I believe that Grossman's recollection
of the wording of the conversation was more accurate than Borkin's and I
credit Grossman
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17 letter and were sent to the same addresses . They read:
In my letter to you of November 17, 1975, I requested
that you immediately surrender all Company selling
materials in your possession including order forms,
samples and price sheets. You are withholding your
services and have not complied with the foregoing re-
quest. Your continued retention of Company property
and defiance of Company instructions relating thereto
warrants the Company taking disciplinary action
against you. Please be advised if you do not surrender
and return all Company property in your possession
including the aforementioned selling materials by 4:00
p.m. on Friday, November 21, 1975, your status as an
employee will be terminated for good cause and you
will not be thereafter eligible for reinstatement.
Though all of the striking employees except for Waterbury
lived in zip code areas which should have received letters
the day after mailing , only one employee, Holiday, re-
ceived the letter before the 4 p.m. November 21 deadline.8
Yahr received the letter on November 22; Espinoza, on
November 25; Kay, on November 21 at 7 p.m.; Water-
bury, on November 24; Borkin, on November 21 at 6 p.m.;
Forman, on November 22; Goldstein, on November 21 at
5 p.m.; Billman, on November 22; Frank, on November 21
at 5 p.m.; Rudin, on November 22; Koren couldn't re-
member the date; Holiday, on November 21 in the early
afternoon; and Jones, on November 22, 1975. Some of the
employees did not receive the letters when they were deliv-
ered to their homes because they were out at the time. The
letter to Larry Kaye was received by his wife, Rhoda Kaye,
when she returned home at 4:30 p.m. on November 21.
Shortly before 5 p.m. that day, she called Grossman and
said that her husband was not home and that there was no
way that the time limit in the letter could be met. Gross-
man agreed that Kaye could not comply with the letter and
he asked when Larry Kaye would be in town again. Rhoda
Kaye replied that she did not know. Respondent received
no other calls, relating to the return of the samples, from
the Union or any of the striking employees between then
and December 1, 1975.
On Thursday, November 20, 1975, some two dozen ap-
plicants, who had responded to the November 19 ad, were
interviewed by Respondent's General Manager Jerome
Wagner. Nine of them were hired and began their initial
training at 10 a.m . on November 21, 1975 .' A 10th strike
replacement, Art Castleman, had been hired a few days
before. The 10 new employees attended training sessions
given by Wagner on November 21 and 22, 1975. Wagner
had difficulty with the training because he did not have
enough representative sample kits. He was forced to use
the sample kit of nonstriking employee Danford, with the
result that Danford had to lose productive time . On Mon-
day, November 24, 1975, the new salesmen went into the
8 Holiday's car, which contained his samples, was stolen on October 24,
1975 Respondent was informed of the theft and Holiday was given some
but not a complete set of samples to work with The car had not been
returned by November 21, 1975, and on that day his other car, which had
the partial set of samples , was being used by his wife
9 The nine were Levine , Fleischman , Bomaris, Mance , Chavez, Hewitt,
Josephs, Brooks, and Burns
field to follow leads but none of them were fully equipped
in that they did not have representative sample kits. Prior
to December 2, 1975, when most of the samples were re-
turned by the striking employees , none of the new sales-
men had complete or substantially complete sets of sam-
ples. When the striking salesmen did return the samples,
about 60 percent of those samples were used to fill in the
sample kits of the new employees.
At 5 p.m. on November 21, 1975, Respondent posted a
third letter to the striking employees. That letter was post-
ed in the same mailbox as the previous letters and the same
addresses were used. The letter read:
Because of your failure and refusal to surrender Com-
pany property pursuant to our repeated requests, your
status as an employee of Beacon Upholstery Company
is hereby terminated and you are not eligible for rein-
statement.
All the striking employees except for Larry Kaye received
the November 21, 1975, letter . Yahr received it on Novem-
ber 24; Espinoza, on November 26; Waterbury, on No-
vember 23; Borkin didn't remember; Forman, on Novem-
ber 22 or 24; Goldstein, on November 24; Billman, on
November 24; Frank, on November 24; Rudin, on No-
vember 24; Koren didn't remember; Holiday was not sure;
and Jones, in the week following November 21, 1975. Re-
spondent's November 17, 19, and 21 letters to the striking
employees were all sent by ordinary mail. The Union was
sent a copy of the November 17, 1975, letter to the employ-
ees, but not the other letters.
About 2 p.m. on November 24, 1975, representatives of
Respondent and of the Union were at the office of the
Federal Mediation and Conciliation Service, but they did
not have a face-to-face meeting . Union Representative
Bruckner was in one room and Respondent attorney Fa-
brick, together with Respondent President Grossman, were
in another room. Fabrick told the mediator that the strik-
ing salesmen had been terminated for not returning the
samples and that he needed more time to review the legal
situation. Either Fabrick or Grossman said that Respon-
dent was questioning whether the Union still represented a
majority of the employees . In a separate meeting with
Bruckner, the mediator told Bruckner that Respondent was
upset because the men hadn't returned the samples and
that Respondent felt that the Union did not represent the
salesmen . Bruckner told the mediator that they were there
to discuss the issues. The mediator then left and when he
returned he told Bruckner that Respondent 's representa-
tives were no longer there.
On the same day, November 24, 1975, Grossman author-
ized Fabrick to institute legal proceedings to recover the
samples. Fabrick sent a letter dated November 24, 1975, to
each of the striking employees, which read as follows:
This office represents Beacon Upholstery Company.
By letter dated November 17, 1975 , Beacon requested
that you "immediately surrender all Company mate-
rials in your possession including order forms, sam-
ples, and price sheets." This request for you to surren-
der all Company selling materials was again renewed
by letter to you dated November 19, 1975. The prop-
BEACON UPHOLSTERY COMPANY 1365
erty you have wrongfully refused to return is the prop-
erty of Beacon Upholstery Company and be advised
that unless you return and surrender the aforemen-
tioned property to Beacon Upholstery in good order
within twenty-four (24) hours following your receipt of
this letter, you will be subjected to immediate legal
action and the Court will be asked to direct the return
of the property and award damages for its unlawful
retention, court costs and attorneys fees.
If you have any questions concerning the arrange-
ments for the return of said property, you may contact
the undersigned.
The following day, November 25, 1975, Grossman had de-
livered by messenger a letter to the Union which read as
follows:
Please be advised that as a result of events which have
occurred during the past several days, Beacon Uphol-
stery Company has a good faith doubt that your orga-
nization represents an uncoerced majority of our em-
ployees in any unit appropriate for the purpose of
collective bargaining. Accordingly it is our view that
we no longer are required to negotiate with you con-
cerning the wages, hours or other conditions of em-
ployment of our employees until such time as you
have been certified as the collective bargaining repre-
sentative of our employees in a unit appropriate for
such purposes under the representation certification
procedures of The National Labor Relations Act.
Please be further advised that our final contract offer
submitted to you through our attorney on November
14, 1975 is hereby withdrawn.
The Union called a meeting of the striking employees on
November 26, 1975. At that meeting it was agreed that the
samples should be returned. During the meeting Bruckner
contacted Grossman on the telephone. There was a discus-
sion about arranging a meeting to talk about the samples.
Bruckner told Grossman that the men were ready to go
back to work. Grossman replied that Respondent had
hired a number of salesmen and that he could not replace
them at that point. Bruckner said that if Grossman wanted
to, he could do so. Grossman replied that because the men
didn't return the samples, they had been terminated and
that he didn't know whether or not he had to bargain with
the Union.1°
At a union meeting on December 1, 1975, the striking
employees and the Union made a final decision as to when,
where, and how to turn in the samples.
Grossman and Bruckner met at Grossman's office at 9
a.m. on December 2, 1975. Grossman said that the purpose
of the meeting was to discuss the return of the samples and
nothing else. Bruckner replied that he couldn't go along
with that and that he thought everything should be dis-
cussed. Bruckner said that the men wanted to turn in the
samples and he asked if the Company would start bargain-
10 These findings are based on the credited testimony of Bruckner Gross-
man averred that Bruckner called him on November 26 and said that he
wanted to discuss the three letters He also averred that he told Bruckner to
call Respondent's attorney Grossman did not deny the other matters testi-
fied to by Bruckner and I credit the fuller version of the conversation as
testified to by Bruckner
mg again. Grossman replied that he would reconsider his
position if the samples were returned. There was also some
discussion of contract issues , and Bruckner asked Gross-
man to make some change in Respondent's collective-bar-
gaining offer so that there would be something different
that he could present to the men.
Also, on December 2, 1975, Kenneth Edwards, president
of the Union, sent a letter by messenger to Respondent.
The letter said that it was agreed that the employees would
return the samples in their possession on December 2,
1975, with the understanding that Respondent would re-
consider its position as to the employees' status as well as
the status of the Union as their bargaining representative.
Bruckner held a meeting with the striking employees at
11 a.m. on December 2 and arrangements were made for
the return of the samples At 1 p.m. that day Grossman
and Bruckner met for a second time. Grossman said that
there was no change in the Company's position. Bruckner
told Grossman that the men were prepared to return the
samples. All the samples and other materials except for
those of Larry Kaye were returned to the Company at I
p.m. that day. The material in Kaye's possession was re-
turned to the Company the following day, December 3,
1975.
By letter dated December 3, 1975, Grossman thanked
Bruckner for his help in securing the return of Respon-
dent's samples and told him that Respondent was aban-
doning its legal action to secure their return. The letter
went on to say that Respondent had reconsidered the posi-
tion it had taken in its November 25 letter and was adher-
ing to that position. After mentioning the rights of the new
permanent salesmen, the letter went on to say:
Nevertheless, in view of the return of Beacon's prop-
erty yesterday, I no longer will consider our recently
terminated sales personnel ineligible for employment
by Beacon and since we still have a few open sales
positions, they are invited to apply for employment
and to the extent that we still have positions open for
them covering sales areas with which they are familiar,
they will be eligible for employment in order of their
application.
On November 26, 1975, Bruckner told Grossman that
the men were ready to come back to work. However, in
Bruckner's first meeting with Grossman on December 2,
1975, Bruckner asked Grossman to make a change in Re-
spondent's collective-bargaining offer so that there would
be something different that he could present to the men. It
is therefore not clear whether Bruckner's November 26
statement that the men were ready to return to work was
an unconditional offer to return or whether it was contin-
gent on Respondent's changing its last offer to something
the men would accept. However, by a letter to Grossman
dated December 12, 1975, Union President Edwards in-
formed Grossman that all 13 of the striking employees
were ready, willing, and able to return to work.
On December 26, 1975, Grossman wrote to each of the
13 discharged employees as follows:
Each of you were copied on a letter I directed to
Local 770 on December 3, 1975, and invited to apply
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for employment. None of you responded to that invi-
tation . On December 19th I received a letter from Lo-
cal 770 and while I do not agree with the self-serving
assertions made therein , it did indicate that it was the
Local 's position that each of you are "ready willing and
able to return to work."
In my letter I also stated that to the extent that we
had positions open covering sales areas with which
you were familiar, you would be eligible for employ-
ment in order of your application . On December 19th,
when I received the somewhat ambiguous letter from
the Union , we had no sales positions open and be-
cause of the usual slowdown in sales during the Christ-
mas-New Years holiday period , we were not then add-
ing sales personnel . However, sometime after the first
of the year as the result of the realignment of sales
territories , I anticipate several sales openings If you
are in fact desirous of once again becoming an em-
ployee of Beacon Upholstery, please contact me or
Jerry Wagner directly by not later than January 6,
1976.
A copy of that letter was sent to the Union.
During the second or third week in January 1976, Wag-
ner contacted some of the discharged employees, including
Billman , Koren , Jones, and Waterbury , concerning their
return to work . They declined to come back at that time.
Thereafter , Billman called Wagner and said he was ready
to return . Billman was rehired on January 26 , 1976. Borkin
returned to work the first part of January 1976. Jones re-
turned to work the first part of February 1976. About 3
days before Jones returned to work , he was told by Yahr
that there had been a union meeting at which the employ-
ees were informed that they could come back to work if
they were asked to do so.
B. Analysis and Conclusions
1. The discharges
On November 21, 1975, Respondent discharged the 13
employees named above. On November 17, 1975, those
employees had begun a strike against Respondent. That
strike was both a union and a concerted activity . It would
be a violation of Section 8(a)(1) and (3) of the Act for the
Employer to discharge the employees because they en-
gaged in such activity . Between November 17 and Decem-
ber 2, 1975, those employees withheld from the Respon-
dent certain sample material , order forms, and price lists.
The employees' action in that regard was not protected by
the Act, and Respondent would not have violated the Act
if it discharged those employees solely because they had
withheld that material . If in fact the discharge was solely
for that reason, it would not matter whether or not Re-
spondent had requested the material or notified the em-
ployees that they would be discharged unless they returned
it. However , such a request and notice is material in evalu-
ating whether the failure to return the material was the real
reason for the discharge or was simply a pretext to disguise
a discharge for protected activity . If Respondent had not
requested the material , it would be difficult to believe that
the failure to return that material was the real reason for
the discharge . The request and the notice that were given
must be evaluated in the light of their timing and all the
surrounding circumstances.
The Respondent and the Union entered into their first
collective -bargaining agreement in 1966 . Succeeding con-
tracts were in force through the one that expired on No-
vember 15, 1975. There is no credible evidence in the rec-
ord to indicate that Respondent was hostile toward the
Union during that time . There is no credible evidence that
before the discharges on November 21, 1975, Respondent
harbored any animosity against union adherents.
Both Respondent and the discharged employees knew of
the importance of the samples to Respondent . At the union
meeting on November 14, 1975, there was general discus-
sion among the employees concerning the fact that Re-
spondent would be delayed in hiring and training new em-
ployees if Respondent did not have the samples in the
possession of the strikers . Respondent 's actions from the
commencement of the strike consistently show that Re-
spondent was seriously concerned with the return of the
samples and that it believed its business would be adverse-
ly affected by their nonreturn . By letter dated November
17, 1975, Respondent informed both the Union and all the
striking employees that strike replacements would be hired
and that it expected the strikers to immediately surrender
to the Company the samples and other materials . Respon-
dent 's November 19 letter threatened to discharge those
strikers unless they returned the materials by 4 p.m. No-
vember 21, 1975. When the employees did not return the
samples by that date they were discharged and told they
were ineligible for reinstatement . By letter dated Novem-
ber 24 , 1975, Respondent 's attorney threatened the em-
ployees with legal action to obtain the return of the mate-
rials. On December 3, 1975 , when the samples had been
returned , Respondent notified the employees that they
would be eligible for reemployment . Shortly after the strike
began, Respondent sought to obtain additional samples
from sample houses and those efforts were only partially
successful . Respondent did not have enough samples to
give to the newly hired strike replacements. A set of sam-
ples had to be taken from a working salesman in order to
train the strike replacements and when the strike replace-
ments went into the field , they did not have a representa-
tive set of samples so that their usefulness to Respondent
was limited The above factors indicate that Respondent
had a serious business justification for viewing the return
of the samples as a pressing , important matter.
Respondent 's initial letter to the Union and the employ-
ees requesting the return of the samples was mailed at 5
p.m. on November 17, 1975. The employees were dis-
charged at 4 p.m. on November 21, 1975. The precipitous
nature of that discharge raises the suspicion that Respon-
dent was more concerned with the existence of the strike
rather than the return of the samples, particularly where, as
here, some of the strikers did not even receive the Novem-
ber 17 letter until after they were discharged. However,
other factors must also be considered. Respondent had a
long collective-bargaining history with the Union. There is
no credible evidence that Respondent harbored an animus
against the Union or union adherents The November 17,
BEACON UPHOLSTERY COMPANY 1367
1975, letter was sent to the Union as well as to the employ-
ees and the Union received that letter either on November
18 or 19, 1975. The Union was the collective-bargaining
representative of all the employees in the bargaining unit.
As such the Union had dealt with Respondent as the repre-
sentative of the employees and Respondent could reason-
ably assume that notice to the Union concerning the return
of the samples was notice to the employees' agent. In addi-
tion, Respondent had a reasonable basis for believing that
each of its letters would be received by the employees the
next business day after they were mailed. There is no evi-
dence that Respondent intentionally misaddressed 3 of the
13 letters to employees. The November 19, 1975, letters, in
which Respondent threatened to discharge the employees
if the samples were not returned by 4 p.m. November 21,
1975, were sent to the employees but not to the Union, and
only one of the employees received the letter before the
deadline. However, receipt by the employees of the letter
threatening their discharge was not a necessary condition
precedent to their lawful discharge. In evaluating the ques-
tion of pretext, the Employer's motivation is the key factor.
As with the November 17 letter, Respondent had a reason-
able basis for believing that the November 19 letter would
be received the following day.
Respondent's actions after the discharge are consistent
with its contention that the employees were discharged
solely because of the failure to return the samples and
other materials. By letter dated November 24, 1975, Re-
spondent's attorney threatened to bring legal action to ob-
tain the return of the samples. The samples were returned
on December 2 and 3, 1975, and on December 3, Respon-
dent notified the Union that the legal action was aban-
doned. The November 19 letter stated that the employees
would not be eligible for reinstatement but the December 3
letter reversed that position after the samples were returned
and stated that the discharged employees would be eligible
for employment in the order of their application for open
sales positions. By letter dated December 26, 1975, Re-
spondent notified the employees that they could contact
Respondent if they desired reemployment. In January
1976, Respondent contacted a number of employees con-
cerning their return to work and three of the discharged
employees actually did return. While Respondent's actions
after the discharge might not be sufficient to constitute a
full offer of reinstatement that would remedy a preceding
unfair labor practice, they did indicate that Respondent
did not bear a continuing animosity against employees be-
cause they engaged in a strike
After considering all of the circumstances set forth
above, I am unable to find that the General Counsel has
established by a preponderance of the credible testimony
that the discharges were motivated even in part by the em-
ployees' protected strike activity. I therefore recommend
that those allegations in the complaint which allege that the
13 employees were discharged in violation of the Act be
dismissed.
2. The refusal to bargain
By letter dated November 25, 1975, Respondent notified
the Union that it had a good-faith doubt that the Union
represented an uncoerced majority of the employees in the
bargaining unit and that it would no longer negotiate with
the Union. Respondent has continued its refusal to bargain
with the Union since November 25, 1975. As found above,
the discharge of the 13 striking employees on November
21, 1975, was not in violation of the Act. Thus, those em-
ployees lost their employee status on that date. On Novem-
ber 25, 1975, when Respondent refused to bargain with the
Union, there were 13 employees in the bargaining unit.
Three of those employees were nonstrikers who had been
working before the strike. The other 10 were strike replace-
ments.
In James W Whitfield d/b/a Cutten Supermarker, 220
NLRB 507 (1975), the Board summarized the existing law,
holding:
It is well settled that Section 8(a)(5) and Section
8(d) of the Act require an employer to recognize and
bargain in good faith with the bargaining representa-
tive selected by a majority of its employees. That rec-
ognition establishes a presumption of majority status
which, in circumstances such as this, may be rebutted.b
The employer may lawfully refuse to bargain with the
union if it rebuts the presumption by affirmatively es-
tablishing that the union has in fact lost its majority
status, or shows that it has sufficient objective bases
for reasonably doubting the union's continued majori-
ty status 7 To establish sufficient objective bases, how-
ever, requires more than the mere assertion thereof
based upon the employer's subjective frame of mind.8
Furthermore, the employer must not have engaged in
any conduct tending to encourage employee disaffec-
tion from the union.9
6 Cf N L R B v Frick Company, 423 F 2d 1327 (C A 3, 1970),
Keller Plastics Eastern, Inc, 157 NLRB 583 (1966)
7 Celanese Corporation of America, 95 NLRB 664, 672 (1951), Peo-
ples Gas System, Inc, 214 NLRB 944 (1974)
8 Laystrom Manufacturing Co. 151 NLRB 1482 (1965 ), enforcement
denied 359 F 2d 799 (C A 7, 1966 ), Automated Business Systems, Inc,
a Division of Litton Business Systems, Inc, 205 NLRB 532 (1973),
enforcement denied 497 F 2d 262 (C A 6, 1974)
9 Peoples Gas Ststem, Inc, supra
In Bartenders, Hotel, Motel and Restaurant Employers
Bargaining Association of Pocatello, Idaho and its Employer-
Members, 213 NLRB 651 (1974), the Board held that those
principles are equally applicable whether the union was
certified by the Board or was recognized without Board
certification. In that case, the Board held that the existence
of a prior contract, lawful on its face, raised a presumption
that the union was the majority representative at the time
the contract was executed and also raised the presumption
that the union's majority continued at least through the life
of the contract The Board held that "following the expira-
tion of the contract the presumption continues and,
though rebuttable, the burden of rebutting it rests on the
party who would do so .. . .
The General Counsel has established the existence of a
recently expired contract and relies on the presumption of
continued majority The question presented is whether Re-
spondent has rebutted that presumption by showing that
the only employees in the bargaining unit as of the date of
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the refusal to bargain were 3 nonstrikers and 10 strike re-
placements.
The Board has held that there is no presumption that an
employee has rejected a union as his representative when
he elects not to support a strike. James W Whitfield, d/b/a
Cutten Supermarket, supra; Strange and Lindsey Beverages,
Inc., 219 NLRB 1200 (1975); King Radio Corp., 208 NLRB
578 (1974), enfd. 510 F.2d 1154 (C.A. 10, 1975); Frick
Company, 175 NLRB 233 (1969), In. 1, enfd. 423 F.2d 1327
(C.A. 3, 1970). With regard to the three employees who did
not participate in the strike, the Respondent has not shown
that the Union lost their support. A more difficult problem
is presented with regard to the 10 strike replacements. In
James W. Whitfield, d/b/a Cutten Supermarket, supra, the
Board held:
.. . as to the replacements, Respondent has produced
no evidence to indicate their voting preferences. In-
deed, it is a well-settled principle that new employees
are presumed to support the union in the same ration
as those whom they have replaced."
11 True Temper Corp, 217 NLRB 1120 (1975), Maywood Packing
Co, 181 NLRB 778, 781 (1970), Laystrom Manufacturing Co supra
[ 151 NLRB 1482, enforcement denied 359 F 2d 799 (C A 7, 1966)]
In that case there were four strikers and three replace-
ments in the bargaining unit, so the union represented a
majority in any event, but the Board nonetheless applied to
the replacements the principle that new employees are pre-
sumed to support the union in the same ratio as those
whom they have replaced. However, the instant case does
not present a situation where there was a refusal to bargain
during an outstanding strike in which the strikers had the
status of employees. Here the refusal to bargain occurred
when there were no employees on strike. All of those em-
ployees had been lawfully discharged. The Union had been
bargaining agent for those discharged employees and there
can be no question that the Union's loyalty lay with these
employees The interests of the discharged employees were
diametrically opposed to those of the strike replacements.
If the discharged employees returned to work, the strike
replacements would lose theirjobs.ll Respondent was well
aware of the situation and a serious argument can be made
that Respondent thus had a reasonable basis for doubting
that the strike replacements wanted the Union to represent
them.
In N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240
(1939), the Supreme Court considered a case where strikers
were discharged and their positions filled with replace-
ments. The Court held:
In view of the change of the situation by reason of the
valid discharge of the "sit-down" strikers and the fill-
ing of positions with new men, we see no basis for a
conclusion that after the resumption of work [the
Union] was the choice of a majority of respondent's
employees for the purpose of collective bargaining.
11 On November 26, 1975, when Bruckner told Grossman that the strikers
were prepared to return to work , Grossman replied that he had hired other
salesmen that he could not replace Bruckner told Grossman that if he
wanted to he could
In N L.R.B. v. Ohio Calcium Co., 133 F.2d 721 (C.A. 6,
1943),12 Court of Appeals for the Sixth Circuit also consid-
ered a situation where strikers were discharged. Relying on
Fansteel, Court of Appeals for the Sixth Circuit held:
The filling of the positions of the striking employees
with new ones removes any basis for a conclusion that
after the resumption of work [the Union] was the
choice of a majority of respondent's employees for the
purpose of collective bargaining.
The Board reached a similar conclusion in Fort Smith
Chair Company, 143 NLRB 514 (1963), enfd. 336 F.2d 738
(C.A.D.C., 1964), cert. denied 379 U.S. 838 (1964).13 In that
case the Board held:
In sum, we here decide that the Respondent did not
violate Section 8(a)(3) and (1) by its conduct with re-
spect to the strikers . . . . Also as the strikers ' employ-
ee status was lawfully terminated, it follows, and we
find, that the Respondent's breaking off of negotia-
tions with the Union and its unilateral changes in
working conditions did not violate Section 8(a)(5) and
(1), as alleged. Accordingly, we shall dismiss the com-
plaint.
As of November 25, 1975, when Respondent refused to
bargain, Respondent employed 13 employees in the bar-
gaining unit. Three of those were nonstrikers and 10 were
strike replacements. As all the strikers had been lawfully
discharged prior to that date, there were no striking em-
ployees. Under these circumstances I do not believe that it
can be presumed that the strike replacements supported
the Union in the same ratio as the discharged strikers.
General Counsel has not established that Respondent en-
gaged in any conduct tending to encourage employee dis-
affection from the Union.
I find that Respondent, at the time it refused to bargain,
had a reasonably based doubt that the Union continued to
represent a majority of the employees in the bargaining
unit. I shall therefore recommend that those portions of the
complaint alleging that Respondent violated Section
8(a)(5) and (1) of the Act be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the
complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
12 The Board had found that some of the strikers were unlawfully dis-
charged (34 NLRB 917) and therefore had to be counted as employees in
determining the Union's majority status The court disagreed, holding that
theT had been lawfully discharged
See also Stoner Rubber Company, Inc, 123 NLRB 1440 (1959), Celanese
Corporation of America, 95 NLRB 664 (1951)
BEACON UPHOLSTERY COMPANY 1369
ORDER 14 Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec
The complaint is dismissed in its entirety. 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
14 In the event no exceptions are filed as provided by Sec 102 46 of the deemed for all purposes