Bushnell's Kitchens, Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1976

222 N.L.R.B. 110 (N.L.R.B. 1976)

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bushnell's Kitchens , Inc. and Local 2584, New York
City District Council of Carpenters , United Broth-
erhood of Carpenters and Joiners of America, AFL-
-CIO. Case 29-CA-4051
January 12, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On June 26, 1975, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein?
On October 14, 1974, all Respondent's employees
walked out when Respondent declined to recognize
the Union and on the following day established a
picket line. On October 17, the striking employees
met with Respondent's president, "Bud" Bushnell,
and requested a meeting to discuss resolution of the
dispute. Bushnell agreed and the meeting was set for
October 21. It was attended by all but one of the
employees, the Union's president and business agent,
Roy Pessolano, and Bushnell. During the meeting,
Bushnell was asked to sign a stipulation recognizing
the Union. He refused, expressing doubt as to the
Union's majority representation. When Pessolano
suggested that an election be conducted on the spot,
Bushnell asked several of the employees whether
they favored union representation. All who were
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F 2d 362 (CA. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge that a bargaining order is
warranted here to remedy the unfair labor practices committed by Respon-
dent However, in accordance with our recent decision in Trading Port, Inc,
219 NLRB No. 76 (1975), our remedy will require Respondent to bargain
with the Union as of October 14, 1974, the date of the Union's demand for
recognition. We do not find an 8(a)(5) violation inasmuch as none was
alleged in the complaint and inasmuch as, in the circumstances of this case,
the prescribed remedy provides a full and complete remedy for the unfair
labor practices on which the bargaining order is based. American Map Com-
pany, Inc, 219 NLRB No 186 (1975)
asked responded affirmatively. However, Bushnell
still refused to recognize the Union, again stating his
preference for holding an election.
The complaint alleged that by interrogating em-
ployees at the October 21 meeting as to their support
for the Union, Respondent violated Section 8(a)(1)
of the Act. The Administrative Law Judge dismissed
the allegation upon the ground that, although not
conducted in accordance with the strictures laid
down in Struksnes Construction Co., Inc., 165 NLRB
1062 (1967), "the questioning of strikers, in the pres-
ence of the business agent and president of the
Union, at a time when their uniform support of the
Union had been overtly and unwaveringly manifest-
ed, could in no sense be considered as tending to
interfere with the exercise of Section 7 rights." We
agree with the Administrative Law Judge.
Member Jenkins disagrees. He would find that
Respondent's polling of the employees on October 21
violated Section 8(a)(1) because it did not conform
with the requirements of Struksnes. The issue in ev-
ery case of interrogation of employees as to their
union sympathies, desires, etc., or polling of employ-
ees as to their union desires, another form of interro-
gation, is whether the conduct interfered with, re-
strained, or coerced employees in the exercise of the
rights guaranteed in Section 7. The Struksnes formu-
la was established by the Board as a guideline to
determining whether polling of employees-in any giv-
en case is lawful. It has no statutory sanction. When
an employer acts intrusively to ascertain employee
views and sympathies regarding unionism, it may be
said that the employer thereby creates fear of reprisal
in the mind of the employee if he replies in favor of
unionism and therefore tends to impinge on Section
7 rights. But where, as here, the employees have pre-
viously expressed their unanimous adherence to the
Union by striking and picketing, and at an open
meeting with employees the union representative in-
vites an election on the spot, which could not but
indicate confidence that the employees were for the
Union, it strains credulity to believe that by asking
several employees if they desired to be represented
by the Union and receiving an affirmative answer in
each case, the Respondent caused the employees to
fear reprisal if they indicated that they favored
unionism. The requirements of Struksnes have their
place. But they are not a straitjacket to be applied in
any and all circumstances. Where employees openly
proclaim their adhereence to a union and invite veri-
fication, we do not believe that the employer can be
said to coerce employees by complying with their re-
quest.
222 NLRB No. 4
BUSHNELL'S KITCHENS- I I I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and -hereby orders that the Respondent,
Bushnell's Kitchens, Inc., Staten Island, New York,
its officers, agents, successors,- and assigns; shall take
the action set forth in said recommended Order, as
modified below:
1. Substitute the following for paragraph 2(b):
"(b) Restore its formica department and offer Gil-
berto Rodriquez and Luis Rivera reinstatement to
their former positions, as formica work becomes
available, and to substantially equivalent positions if
such work does not exist, pursuant to standards uni-
formly governing the recall rights of all participants
in the strike of October 14, 1974, without prejudice to
their seniority or other rights, and privileges, and
make them whole for any loss of earnings they may
have suffered by reason of the discrimination against
them, in the manner set forth in the section of this
Decision entitled `The Remedy.' " -
2. Insert the following as paragraph 2(c), reletter-
ing the subsequent paragraphs accordingly:
"(c) Offer reinstatement to strikers other than Gil-
berto Rodriquez and Luis Rivera as work becomes
available, in accordance with uniform procedures
governing the recall rights of participants in the
strike of October 14, 1974, without prejudice to their
seniority or other rights and privileges, as set forth in
the section of this Decision entitled `The Remedy.' "
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER JENKINS, dissenting in part:
I agree with my colleagues' adoption of the Ad-
ministrative Law Judge's Decision finding certain
8(a)(1) and (3) violations fully described therein, and
I also agree that a bargaining order is warranted here
to remedy the unfair labor practices committed by
Respondent. - However, contrary to my colleagues,
and as argued by the General Counsel, I would fur-
ther-find that Marion "Bud" Bushnell's interrogation
of employees in the absence of the safeguards pro-
vided for in Struksnes Construction Co., Inc., 165
NLRB 1062, violated Section 8(a)(1) of the Act.
The credited record evidence reveals that on Octo-
ber 21, 1974, 9 of Respondent's 10 employees accom-
panied by Roy Pessolanq, the Union's president and
business agent, met with Marion Bushnell. At this
meeting, Bushnell indicated that he could not afford
the Union and refused the request for recognition. In
addition, Bushnell also, indicated he could _not be
sure that - all: of^ the employees were for the Union,
that he could not be sure if they "were forced into it"
or were being "threatened," and that he would rather
have an election. Thereafter, Pessolano indicated
there was no reason for an election and that it would
take a lot of time but that an election could be con-
ducted-there and that he (Pessolano) would leave the
room. Bushnell indicated it wasn't necessary-to talk
to the men alone and he, then proceeded to point to
the individual employees and ask them if they were
for the Union.
I believe the foregoing conduct' is contrary to the
Board's teachings in Struksnes and violates Section
8(a)(1) of the Act. Here, it is plain that the require-
ments for lawful polling of the employees have not
been met-requirements which the Board de-
termined in Struksnes are "designed to allay any fear
of discrimination which might otherwise arise from
the polling, and any tendency to interfere with em-
ployees' Section 7 rights." Nevertheless, my col-
leagues discount such requirements, finding instead
that, as the poll was conducted "in the presence of
the business agent and president of the Union," there
could be no interference with the exercise of Section
7 rights. This conclusion overlooks a significant right
enjoyed by employees under Section 7, namely, the
right to refrain from union activities or commitment
to the Union. Thus, the so-called "protection" of
Section 7 rights found to be afforded by the presence
of the union president really compound the dilemma
faced by the employees when so interrogated in the
presence of both the employer official and union of-
ficial. Accordingly, I believe it far better policy to
adhere to the strict standards and guidelines estab-
lished in Struksnes-standards and guidelines de-
signed "to discourage intimidation of employ-
ees"-rather than embarking on a new course which
lends less protection to all Section 7 rights.
APPENDIX
NOTICE To EMPLOYEES -
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States_ Government
'WE WILL NOT threaten our employees that the
shop will close because they engage in activity in
support -of a-labor organization.
WE WILL NOT post or maintain new restrictive
working rules in reprisal for our employees' par-
ticipation in union activity.
WE WILL NOT promise our employees benefits
to induce them to withdraw their support of the
Union.
WE WILL NOT discharge, subcontract, or in any
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other manner discriminate against our employ-
ees because they have engaged in union activity.
WE WILL NOT In any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist Local
2584, New York District Council of Carpenters,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, or any other labor orga-
nization, to engage in collective bargaining
through representatives of their own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection as is guaranteed in Sec-
tion 7 of the Act, or to refrain from any and all
such activities.
WE WILL restore our formica department and
offer Gilberto Rodriquez and Luis Rivera rein-
statement to their former positions as formica
workers, if available and, if not, substantially
equivalent positions under standards recogniz-
ing the uniform right to recall of all employees
who participated in the economic strike of Octo-
ber 14, 1974, and we shall make them whole for
any loss of earnings they may have suffered by
reason of our discrimination against them as is
provided in the Administrative Law Judge's De-
cision.
WE WILL offer reinstatement to strikers other
than Gilberto Rodriquez and Luis Rivera as
work becomes available, in accordance with uni-
form procedures governing the recall rights of
those employees who participated in the strike
of October 14, 1974, without prejudice to their
seniority or other rights and privileges.
WE WILL, upon request, bargain collectively
with Local 2584, New York District Council of
Carpenters, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, as the exclu-
sive bargaining representative of our employees
in the unit described below, and, if an under-
standing is reached, embody such understanding
in a signed agreement. The appropriate collec-
tive-bargaining unit is:
All' production and maintenance employees
.employed at our Staten Island shop, excluding
office clericals, guards, and supervisors as de-
fined in Section 2(11) of the Act.
BUSHNELL'S KITCHENS, INC.
DECISION
STATEMENT OF THE CASE
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the parties at the hearing stipulat-
ed, and I find that Local 2584 , New York City District
JOEL A. HARMATZ, Administrative Law Judge: This pro-
ceeding was heard in Brooklyn, New York, on April 16 and
17, 1975, upon an unfair labor practice charge filed on
October 16, 1974, as amended on November 11, 1974, and
a complaint issued on January 31, 1975, alleging that Re-
spondent independently violated Section 8(a)(1) of the Act
by threatening employees with reprisals if they engaged in
union activity, by promising and granting benefits to in-
duce them to abandon union activity, by interrogating em-
ployees concerning their union activity, and by instituting
more stringent work rules in reprisal for union activity. The
complaint further alleges that Respondent violated Section
8(a)(3) and (1) of the Act by failing to reinstate strikers,
upon their unconditional application to return to work,
and by laying off certain employees because they engaged
in union activity. The complaint also alleges that the viola-
tions of the Act are sufficiently serious and flagrant to war-
rant the entry of a remedial order, requiring Respondent to
recognize and bargain collectively with the Union as exclu-
sive representative of employees in the appropriate collec-
tive-bargaining unit. Finally, the complaint alleges that a
strike which began on October 14, 1974, was prolonged by
Respondent's unfair labor practices. By letter dated Febru-
ary 8, 1975, Marion Bushnell, Respondent's president, an-
swered the complaint by denying the commission of any
unfair labor practices. After close of the hearing, a brief
was filed by the General Counsel.
Upon the entire record in this proceeding, including my
observation of the witnesses while testifying, and careful
consideration of the posthearing brief, I make the follow-
ing;
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent maintains a place of business in the bor-
ough of Staten Island in the city and State of New York,
from which it is engaged in the manufacture, sale, and dis-
tribution of kitchen cabinets. During the year ending De-
cember 31, 1974, Respondent in the course of its business
operations purchased goods and materials exceeding
$19,000 in value which were shipped directly to its Staten
Island location from States other than New York, and pur-
chased goods valued in excess of $31,000 from enterprises
within the State of New York which received said goods
and materials in interstate commerce directly from States
other than the State of New York.
The complaint alleges, the parties at the hearing stipulat-
ed, and I find that Respondent is, and at all times material
has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
BUSHNELL'S KITCHENS 113
Council of Carpenters , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR' LABOR PRACTICES
A. The Issues
1. Whether Respondent, upon learning that its produc-
tion workers were engaged in organizational activity, com-
mitted a variety of independent 8(a)(1) violations to dis-
courage continued support of the Union.
2. Whether a strike of Respondent's production and
maintenance employees was caused or prolonged by statu-
tory violations, thereby placing the strikers in the preferred
status of unfair labor practice strikers.
3. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by permanently subcontracting the work of em-
ployees Rodriquez and Rivera and discharging them fol-
lowing termination of the strike.
4. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by laying off reinstated strikers Prehn, Guarcel-
lo, Harrison, and Walsh.
5. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to reinstate all remaining strikers
following their unconditional offer to return to work.
6. Whether Respondent engaged in unfair labor practic-
es so serious and substantial as to warrant the issuance of a
remedial order requiring Respondent to recognize and bar-
gain with the Union as the exclusive representative of em-
ployees in the appropriate unit.
B. Preliminary Statement
Respondent is a small , family-managed manufacturer-of
kitchen equipment . At the time of the events giving rise to
the instant proceeding , Respondent employed 10 produc-
tion workers, who were not represented- by any labor orga-
nization . In the fall of 1974,' these employees discussed the
possibility of union representation . Pursuant thereto, Gil-
berto Rodriquez contacted a representative of the Union
and on October 11 hosted an organizational meeting in his
home. The meeting was attended by Roy Pessolano, presi-
dent and business agent of the Union , and all of
Respondent's production employees , except Robert Guar-
cello. At that meeting, all nine of the employees in atten-
dance signified their intention to designate the Union as
their representative by signing cards .2 At the conclusion of
this meeting, Pessolano advised the employees that he
would be present at the plant on Monday, October 14, to
seek recognition from Respondent.
i All dates refer to 1974-unless otherwise indicated.
z-Pessolano on this occasion did not have authorization cards in his pos-
session . As he did have dues deduction authorizations , in the interest of
obtaining some-formal evidence of the employees' support of the Union, he
distributed these cards , which all in attendance signed. Guarcello signed a
similar card sometime later in October On October 31, all employees except
Luis Rivera signed formal authorization cards designating the Union as
their exclusive collective-bargaining agent I find that since October 11,
1974, the Union, represented a majority of Respondent's employees in the
unit which all concede is appropriate under the Act.
On Monday, October 14, Pessolano appeared at
Respondent's shop. When he arrived, he spoke to Jim
Bushnell, the son of Marion "Bud" Bushnell , Respondent's
president. Jim Bushnell advised Pessolano that his father
was not then available, but that he would be contacted.
About 9:30 a.m ., Bud Bushnell arrived at the plant . Pesso-
lano advised the latter that he represented the employees
and was seeking recognition. When Bushnell expressed dis-
belief, Pessolano indicated that he had the cards signed by
the employees .3 Bushnell advised Pessolano that he would
not recognize the Union. Pessolano then walked out, and
all employees in the shop, who were then working, joined
him. They assembled on the street and, there, decided to
establish a picket line the next morning and to strike. On
October 15, the picket line was established.
On Thursday, October 17, at about 9 p.m., work was
being performed in the shop. Striking employees, including
Rodriquez, approached the premises to investigate who
was doing the work and met with Bud Bushnell. In the
course of their discussion, the employees requested that
Bushnell meet with them concerning resolution of the dis-
pute. Bushnell agreed , and a meeting was set for October
21 in the office of Bushnell's landlord.
The meeting of October 21 was attended by all employ-
ees except Guarcello. Also in attendance, and representing
the employees , was Pessolano . During this meeting, Bush-
nell was asked to enter a stipulation agreement recognizing
the Union. He refused, indicating that he could not afford
union benefits , and again expressing doubt as to whether
the Union actually represented his employees. Bushnell in-
dicated his preference for an election. When Pessolano
suggested that an election be conducted on the spot, Bush-
nell asked several of the employees whether they favored
union representation . All asked responded in the affirma-
tive. Bushnell still refused to enter any stipulation agree-
ment, continuing to express his preference for an election.
After close of the meeting, the- employees again met and
decided to continue their strike.
Several weeks thereafter, and in early November, Pesso-
lano accompanied by Rodriquez and certain of the other
strikers approached Bushnell , at the plant, expressing a
willingness to return to work. According to the credited
testimony of Gilberto Rodriquez, on that occasion Pessola-
no advised Bushnell that the unfair labor practice charges
then on file would be dropped, and the men would be able
to go back to work, if Bushnell gave a stipulation recogniz-
ing the Union. Bushnell refused and indicated that he
could not put the men back to work as work was not avail-
able. Pessolano, after this meeting, conferred with the strik-
ers and it was resolved that a telegram would be- sent to
Bushnell in which the strikers would offer to return to work
unconditionally. Such a telegram was sent on November 8,
which indicated that the strike had ended and that the em-
ployees would return to work on Monday, November 11 .4
3 A dispute exists as to whether Bud Bushnell actually looked at the cards.
According to Pessolano he did. Bushnell denies this, indicating that Pessola-
no simply waved the cards-in front of him , but that he declined to examine
them because he did not know the employees' signatures . This dispute is not
material to any issue in the proceeding , and hence is left unresolved.
4 The telegram inadvertendtly recites that the men` would return to work
Continued
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The= men did not appear at the plant on the morning of
November 11. Certain of them including Rodriquez were
then present at the-Regional Office of the NLRB in con-
nection with pending unfair labor practice charges. From
that location; Rodriquez called the plant and spoke to Jim
Bushnell advising him that the men would come to,the
shop later that day. At about 2 p.m. Rodriquez, in compa-
ny with-certain other strikers, -appeared at the shop and
asked when the men would be reinstated. Bud Bushnell
stated that most of the work had been finished, but that he
might be able to use two men, if he received further orders.
Bushnell asked- that they check back on November 13.
On November 12, Rodriauez called Bud Bushnell, in-
quiring if all the men would be recalled. Bud Bushnell ad-
vised Rodriquez that there were very few orders, as Bush-
nell had been working in the shop and.could-not go out
and-solicit as-he had in the past. Bushnell advised Rodri-
guez that at the most he could use two men. Rodriquez
responded that all the men must return or none would
come back and that in making this statement he was speak-
ing for all the men. Bud Bushnell indicated that this would
be impossible.
On November 14, Bud Bushnell, when the men did- not
show up, sent each a telegram, requesting that they report
to the shop immediately for a "-shape-up." In addition,
Bushnell called strikers Rodriquez, O'Connor, Schubert,
and Prehn, asking them to report on that afternoon. By 2
p.m. that same day all the men, except Luis Rivera and
Robert Guarcello, showed up at the plant. Bud Bushnell
told the men that he-had little work, but that he wanted to
start production by putting' two men back to work: The
men were asked-to select .the means by which they would
be recalled, that is, whether they wished to return on a
seniority basis or according to department. The men chose
to return by department. Bushnell on that occasion an-
nounced that Rodriquez, who was previously his formica
man, as well as Rivera, -Rodriquez'; assistant in formica
work, were terminated, as it had been- decided that all for-
mica- work' would be contracted out -m the future.
On November 15, Robert Fuarcello, a framer-trainee,
and Richard Schubert, an assembler , were returned to
work. On November 19, 1974, Steven Walsh, a sander, re-
turned to work; on November 22, 1974,-Harrison, a finish-
er, returned to work; and on November 24, 1974, Arnold
Prehn, a sander and delivery clerk, was recalled. All except
Schubert were laid off prior'to- November 28, Thanksgiv-
ing Day, with Arnold Prehn leaving on November 26, and
Guarcello, Harrison, and- Walsh laid off on November 27.
Since November27, 1974,and up to the date-of the hear-
ing, Respondent has not recalled or actively employed any
of the-strikers other than Schubert. Since the inception of
the - strike,- with the exception- of the employees named
above, Respondent conducted its shop operations with, ,a
limited work force consisting of Bud Bushnell, Jim Bush-
nell, and John Polachek. Polachek was a brother-in-law to
Jim Bushnell and was hired on October 31 to a -permanent
position, apparently as a strike replacement. -
Before passing to an-analysis-of the merits, it is noted
on October 1-1, 1974 All concerned understood this as November 11, 1974.
that the witnesses in this proceeding furnished a less than
ideal basis for resolving conflicts in testimony. Thus, not a
single witness was presented whose testimony was believa-
ble in its entirety. In consequence, as shall be seen infra,
witnesses are credited in part, and discredited in part, de-
pending upon my reaction to their demeanor while relating
various aspects of their accounts, the probabilities, the rela-
tionship of facts adduced through them to other testimony
offered in a like interest, and the bias conveyed by the
particular witness. Somewhat unusual is the fact that in a
number of instances, testimony offered by witnesses for the
General Counsel, though- uncontradicted, was unbelieva-
ble. In this regard, it is noted that I was generally unim-
pressed with the reliability of the witnesses offered in sup-
port of the complaint. A basic, mistrust, which developed at
the hearing, was confirmed upon study of the record,
which reveals their propensity toward prejudicial overstate
ments, argumentation, and a lack of uniformity among the
various accounts of highly material aspects of significant
events which provided the background for this dispute.
C. Concluding Findings
1. The nature of the strike; the alleged unfair labor
practices prior to the strike's termination
The contention by the General Counsel that the strike
was prolonged by certain alleged unfair labor -practices
turns exclusively upon the, independent 8(a)(1) allegations,
falling within -the time period preceding the strike 's termi-
nation on November 8.
With respect to these determinative allegations, the Gen-
eral Counsel claims that on October 14, 1974, Jim Bush-
nell threatened a close down of the plant in reprisal for
union activity. In support, Rodriquez testified that on Oc-
tober 14, prior to Bud 'Bushnell's arrival at the shop, Jim
Bushnell told Pessolano to wait in the office, and then told
men in the sanding department "that when my -father
comes down he is going to close this shop.'You guys went
and joined up with the Urrion."'According to Rodriquez,
the statement in issue was not directed to -him, but that he
was 30 feet away from Jim Bushnell at the time . Rodriquez'
testimony in this respect is uncontradicted. Nonetheless, it
is discredited. None of the "sanders" nor any other em-
ployees testified that they heard any such statement. Con-
sidering-the absence of corroboration, and Rodriquez" dis-
tance from Jim Bushnell at the time, together with my
basic distrust of Rodriquez, derived-from his tendency to
slant and color facts in a manner which would have them
appear in a light most prejudicial to the Respondent, I con-
sider his'testimony in this respect to be unreliable. It is true
that Jim Bushnell, though present throughout the hearing,
was not called to refute this testimony. However, consider-
ing the circumstances under which Respondent' s case was
litigated, to, on this basis, draw an adverse inference would
involve an artificial approach to the fact finding process. In
other words, I am more convinced as to the unreliability of
Rodriquez' testimony in this respect, than Bud Bushnell's
understanding of the implications that could-flowfrom his
failure to call his son to refute said -testimony. Accordingly,
I shall dismiss the. allegation - that Respondent violated
BUSHNELL'S KITCHENS 115
8(a)(1) by the threat imputed to Jim Bushnell.
The General Counsel also contends that Bud Bushnell,
after rejuecting Pessolano's request for recognition on Oc-
tober 14, and while the-men were preparing to walk out,
threatened employees that he would close the plant. In sup-
port, Guarcello and Harrison testified that while they were
in the locker area, preparing to join the other employees in
the walkout, Bud Bushnell stated, "you are making a big
mistake, once these doors close they will never open up
again." In accepting the testimony of Guarcello and Harri-
son in this regard, I discredit Bud Bushnell's denial that he
ever made threatening remarks to the employees. Although
I consider Bushnell's testimony as more reliable than cer-
tain testimony proffered by the General Counsel, in this
instance I believe Guarcello and Harrison. Guarcello was
one of the more reliable witnesses who testified in this pro-
ceeding. The probability that his testimony was truthful
and the corroboration from Harrison lead me to find that
the threat set forth above was in fact made. I find that
Respondent violated Section 8(a)(1) of the Act through
Bud Bushnell's statement that the plant would close and
not again reopen.5
The General Counsel also contends that Bud Bushnell,
by questioning certain employees as to their support of the
Union, at the October 21 meeting, violated Section 8(a)(1)
of the Act. There appears to be no dispute, that certain of
the strikers, were at that time asked whether they support-
ed the Union. These questions came, however, after Pesso-
lano had suggested to Bushnell that an election be con-
ducted "on the spot" to allay any doubt held by Bushnell
as to the Union's support among the strikers. Although the
questioning was not conducted in accordance with • the
strictures laid down in Struksnes Construction Co., Inc., 165
NLRB 1062, in the circumstances, I shall dismiss this alle-
gation. In my opinion, the questioning of strikers, in the
presence of the business agent and president of the-Union,
at a time when their uniform support of the Union had
been overtly and unwaveringly manifested, could in no
sense be considered as tending to interfere with the exer-
cise of Section 7 rights. Accordingly, I shall dismiss the
allegation of the complaint that Respondent interrogated
employees in violation of Section 8(a)(1) of the Ac t.6
The General Counsel also contends that Respondent
violated Section 8(a)(1) through Bushnell's offers of direct
negotiations and implied promises of benefit. In support of
this allegation, employee Walsh testified that on one occa-
s Employee Arnold Prehn also testified that after the strike began, when
he returned to the shop to pick up his check, he had a conversation with
Bud Bushnell concerning the Union , in which Bushnell referred to certain
favors he had done for Prehn in the past Although Prehn imputes no specif-
ic statements to Bushnell which would constitute a threat, he goes on to
describe Bushnell's utterances as conveying that the Union would never
come through and that he "would pretty much shut the shop if he couldn't
get through " From this vague account, I was left with the impression that
Prehn's reference to a closedown was based on his interpretation or impres-
sion gained from that conversation His failure to clearly articulate specific
statements that would warrant such an interpretation renders his testimony
deficient and unreliable - -
6 Prehn's testimony that Bud Bushnell's inquiries were directed to the
strikers as a group is discredited It conflicts with the balance of the evi-
dence on this issue adduced through the General Counsel's own witnesses.
the sense of which is that Bushnell directed his questions individually to
only three or four of the strikers who were present
sion when he was the sole picket on duty, Bud Bushnell
drove up in his car and called Walsh over, asking if Walsh
really wanted the Union. Walsh replied in the affirmative.
Then Bushnell advised that he could do everything that the
Union could do for the men and even better. He accused
Walsh of being stupid. When Walsh indicated that he dis-
agreed with Bushnell's criticism of the Union, Bushnell
left. Walsh further testified to an incident, which followed
the strike, and occurred after his recall to work, in which
Bud Bushnell told Guarcello, Schubert, and himself that he
could do for the men what the Union said it could do, that
he could get the men anything they wanted, and that they
were being misled. Harrison testified to a similar conver-
sation with Bud Bushnell after his recall. According to
Harrison, on that occasion Bud Bushnell stated "I don't
know what the Union can offer." Harrison responded a
dental plan. Bushnell said that if the men had come to him,
he could have arranged a dental plan better than that of
the Union. Bud Bushnell admitted that on numerous occa-
sions he stopped and spoke to some of the men on the
picket line, asking them to return to work, and indicating
that they could negotiate with him and still be working.
Upon the foregoing testimony of Walsh and Harrison, the
credibility of which is enhanced by Bud Bushnell's admis-
sion set forth above,,l find that both before and after the
strike Bushnell plainly proclaimed that employees could
attain better benefits from Respondent without the Union,
and that by doing so he violated Section 8(a)(1) of the Act.
Having found that Respondent violated Section 8(a)(1)
by threatening a closedown and by holding out benefits to
discourage employees from continuing their support of the
Union, it is necessary to consider the General Counsel's
claim that the strike between October 14 and November 8
was prolonged by unfair labor practices. Of relevance to an
assessment of this issue is Typoservice Corporation and Indi-
anapolis Typographical Union No. 1, 203 NLRB 1180
(1973), where the Board stated as follows:
An unfair labor practice strike does not result merely
because the strike follows the unfair labor practice. A
causal connection between the two events must be es-
tablished. -
In this case there can be no question that the strike from its
inception was in protest of Bushnell's refusal to recognize
the Union as exclusive representative of employees in the
appropriate unit. The strike ended only when the strikers
could no longer endure the economic hardships entailed in
their concerted action.- Indeed, the testimony of all the
strikers commonly suggests that they otherwise would not
have returned to work until such time as Respondent en-
tered a stipulation agreement with, or in some other man-
ner recognized, the Union as their representative. In any
event, the unfair labor practices involved here were not of
the type that could be said to have prolonged the strike,
but were of a nature which would tend to hasten, rather
than defer, the strikers' return to work. In -the, circum-
stances, it is concluded that the work stoppage commenc-
ing on October 14 was motivated by economic consider-
ations from its inception and that it at no time thereafter
was converted to an unfair labor practice strike:
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The imposition of new work rules
After the strike ended, those'strikers who were recalled
found that work rules had been posted throughout the
plant. Prior to that time, Respondent had no written work
rules. Furthermore, before the strike, smoking was permit-
ted in all areas, of the shop except near the spray booth,
card playing was permitted on the premises during non-
working time, employees could make and receive personal
phone calls in and out of the plant, and radios were permit-
ted in the shop. Another newly published restriction re-
quired employees with long hair to either wear a net or
have their hair tied back while working; no such require-
ment was strictly enforced prior to the strike. The newly
posted rules indicated that violation of this latter require-
ment, as well as new restrictions on playing cards on the
premises,. and smoking in the shop would result in "dis-
missal."
In addition to the posting of the new rules, shortly after
their return to work the reinstated strikers were instructed
to sign a card signifying their agreement to abide by the
rules. When some of the former strikers declined to sign
until discussing the matter with Pessolano, Bud Bushnell
spoke out against the Union, describing it as a mafia orga-
nization and also advised the employees that their signa-
ture was, necessary, if their employment was to continue.
Against a background demonstrating that working con-
ditions at Respondent's shop were somewhat flexible and
permissive prior to the employees' involvement with the
Union, the conclusion is inescapable that the newly im-
posed restrictions, which included the penalty of discharge
for conduct which in the past had been tolerated, constitut-
ed an extension of Bud Bushnell's hostility to the Union
and a reprisal for protected activity then engaged in by his
employees. No other explanation is offered for this turna-
bout in working conditions at, a time when work was slack,
and the work force was sufficiently small to permit close
scrutiny of performance on the job. Although I have no
quarrel with the reasonableness of the rules themselves, I
find that the posting of the new rules, in the light of past
practices, and Respondent's insistence that employees exe-
cute cards signifying an intention to abide by them, violat-
ed Section 8(a)(1) of the Act.
3. The alleged discrimination
a. The discharges of Rodriquez and Rivera
Prior to the strike Respondent's operation included, a
formica department, which had, been manned by two em-
ployees. Rodriquez was the senior employee in that depart-
ment and he was assisted by Luis Rivera.
On November 14, at the "shapeup" called by Bushnell in
response to the strikers' unconditional offer to return to
work, Bushnell terminated Rodriquez and Rivera and an-
nounced to the men that he was doing so because he had
elected to permanently contract out the formica work.
Rodriquez was initially hired by Respondent on April
14, 1967, and was among the highest paid and by far the
most senior of Respondent's employees. It will be recalled
that it was Rodriquez who made the initial contact with the
Union in the fall of 1974, and who hosted the initial union
meeting on October 11, where 9 of the 10 employees ap-
pended their signatures to documents signifying their de-
sire for union representation. After the strike began, on the
various occasions when groups of strikers met with Bush-
nell Rodriquez was always in attendance. Thus, on Octo-
ber 17, Rodriquez, Walsh, and Prehn were at the premises
of the plant to investigate reports that the plant had been
operating in the evening. At that time Bushnell and Rodri-
quez argued as to Bushnell's assertion concerning the good
treatment he had accorded Rodriquez over the years. Ro-
driquez was also present at the October 21 meeting be-
tween the strikers and Bud Bushnell. Later, in early No-
vember, Rodriquez, Pessolano, and Prehn went to the plant
to discuss the possibility of the men getting back to work
with Bushnell.
Aside from these direct confrontations between Rodri-
quez and Bud Bushnell, after the Union sent its telegram,
on November 8, offering to end the strike and to return the
strikers to work, Rodriquez called the plant to inquire as to
whether the Company had received the telegram. Rodri-
quez, that same afternoon, appeared at the plant with some
of the strikers seeking work. Finally, Rodriquez attended
the shapeup, at which he was discharged.
Nonetheless, Bushnell testified, that he did not regard
Rodriquez as the striker's spokesman. He further related
that his decision to terminate Rodriquez and Rivera was
based upon a discovery, which coincided with the strike,
that he could contract out the formica work at a savings
over 'the cost of maintaining his own formica department.
According to Bushnell, one night during the strike he sat
down and computed the costs entailed in his formica oper-
ation as against purchasing the formica tops outside and
found that subcontracting arrangement would be of great-
er cost effectiveness.
I discredit Bud Bushnell's testimony as to the economic
reasons behind his decision to terminate Rodriquez and
Rivera. Prior to the strike, and dating back for some 4
years, Respondent had been subcontracting formica work.
Bushnell's explanation that he first made the cost compari-
son during the strike, thereby implying that it had not pre-
viously occurred to him to do so, despite the history of
subcontracting formica work, did not have a ring of truth.
The suspicion aroused was enhanced by Bushnell's shifting
testimony as to when he decided to permanently subcon-
tract the work.
Furthermore, contrary to Bushnell, I believe he knew or
suspected that Rodriquez was the instigator and a key fig-
ure in the organizational effort. From the small size of the
plant, I think it properly inferable that Rodriquez was
marked as a leader of the men, by virtue of his length of
service with Respondent and his appearance at each of the
confrontations between the strikers and Bud Bushnell.'
This inference is also supported by Bushnell's admission
' Also relevant here is the testimony of Guarcello and Harrison to the
effect that , after the above discharges, Bud Bushnell , in the course of an
antiunion diatribe, singled out Rodriquez , criticizing him as one of the old
employees "that went against him," who "wants to be a little king." This
testimony was uncontradicted and is entirely believable when considered in
context with other undisputed facts
BUSHNELL'S KITCHENS 117
that in a phone conversation with Rodriquez on November
11 Rodriquez, in demanding reinstatement of all strikers,
specifically indicated that "he spoke for all the men."
Having rejected Respondent's economic defense, and
being persuaded that Bud Bushnell either knew or suspect-
ed that Rodriquez was a key figure in the organizational
effort, and taking account of the flexible manner in which
men historically were shifted between various jobs within
Respondent's operation, I find that Rodriquez was not giv-
en similar opportunities, but discharged outright, under the
guise of an economically justified subcontracting arrange-
ment, in an effort to thwart the openly declared and consis-
tentsupport of the Union manifested by Respondent's em-
ployees. In addition, I find that in order to perfect this act
of discrimination against Rodriquez, Bushnell sought to
veil the true underlying motivation by also terminating
Luis Rivera. Accordingly, I find that Respondent violated
Section 8(a)(3) and (1) of the Act by terminating both Ro-
driquez and Rivera on November 14, 1974.
b. The refusal to reinstate and layoff of other strikers
As heretofore indicated, on November 8, 1974, the
Union, by telegram, notified Respondent of the strike's ter-
mination and conveyed an unconditional offer to return to
work on behalf of all strikers. Thereafter, on November 14
at the shapeup called by Bud Bushnell, Rodriquez and Ri-
vera were discharged. As for the remaining strikers, when
Bushnell advised that sufficient work was not available for
all, the strikers agreed that, as work became available, re-
call would be effected on a departmental rather than a
seniority basis. Pursuant to this arrangement, Prehn, Guar-
cello, Harrison, and Walsh were reinstated for a brief peri-
od later in November, but laid off and not recalled thereaf-
ter. Schubert was recalled with this group, and at the time
of the hearing apparently was actively employed by Re-
spondent. The remaining strikers, Leske, O'Connor, and
Solomon, though never discharged, were not recalled at
any time following cessation of the strike.
,The complaint alleges that the failure to recall Leske,
O'Connor, and Solomon after November 14, 1974, as well
as the layoffs and failure to subsequently recall Prehn,
Guarcello, Harrison, and Walsh, violated Section 8(a)(3)
and (1) of the Act.
During the strike, Respondent hired a single new em-
ployee, John Polachek, to a permanent position. Since
Polachek's job duties were never defined, the record does
not disclose that he was a permanent replacement for any
identifiable striker. Accordingly, as unreplaced economic
strikers all alleged discriminatees-were entitled to their for-
mer positions, if those jobs remained in existence, upon
their unconditional offer-to return to work. If work at that
time was not available in accordance with Lafdlaw,8 they
would be entitled to an employment preference, over new
hires, as vacancies arose in the future.
However, it is plain from the record that Respondent,
following the strike, hired no new employees. Also, in the
period between termination of the strike and the hearing,
with the exception of the recall of five strikers in Novem-
ber, Respondent didnot perform work to a degree requir-
ing the recall of Leske, O'Connor, and Solomon at any
time, or the recall of Prehn, Walsh, Guarcello, and Harri-
son after their layoffs. Nonetheless, the General Counsel
contends that Respondent after the strike deliberately di-
minished its volume of business, so as to reduce the work
available in the unit, as a further step in its effort to defeat
union organization. In my opinion, the General Counsel
has failed to carry its burden with respect to, this claim.
It is true that Bud Bushnell opposed the Union and was
not above resort to unfair labor practices, including dis-
criminatory tactics in expressing his hostility. However,
Bud Bushnell afforded an entirely plausible and credible
explanation for the unavailability of work to the strikers
involved here on and after November 14.
The failure of Bushnell to expand sales during the strike
was perfectly reasonable. During the strike, he did not en-
gage in widescale employment of strike replacements.
Thus, production capacity during the period of the strike
was severely limited. As a result, Bud Bushnell, who prior
to the strike actively engaged in soliciting sales, remained
in the plant in order to meet current orders, to perform
production work.' Prior to November 8, the strikers were
militant in their demand for recognition as a precondition
for settlement of the strike, and, insofar as Bud Bushnell
knew, their return to some specific date in the future was
unpredictable. In these circumstances, it would indeed
have been foolhardy for Bushnell to continue to solicit or-
ders during this period of uncertainty, when the goodwill
of his business made it necessary that he engage in produc-
tion work.
After the strike sufficient work did become available to
warrant the recall of five strikers between November 15
and 27. On laying off Guarcello, Harrison, and Walsh on
the day before Thanksgiving, November 27, according to
the credited and uncontradicted testimony of Bud Bush-
nell, he informed all three that they would probably be
called back the following Monday, November 29, if more
orders were received. Bushnell went on to testify credibly,
with support from documentary evidence, that this proved
impossible because on November 29 an inspector from the
Occupational Safety Health Administration (OSHA) in-
spected the shop and cited Respondent for an unregistered
spray booth and an unguarded radial saw, and ordered
Respondent not to use either until the violations were
cured. The loss of this equipment was critical to production
operations, and, in consequence, the shop was_shut down
at that point with no new production starts. The next 3
weeks were spent in removing the alleged violations, clean-
ing the shop, hardwaring already finished cabinets, and
shipping them. This work could be accomplished by a
work force consisting of Bud Bushnell, Jim Bushnell, John
Polachek, and recalled striker John Schubert.
Thereafter on December 30 Bushnell received a certified
letter from OSHA, citing his shop with 21 alleged viola-
tions. Bushnell requested a hearing before that agency,
which was set for January 16, 1975. On that date the area
9 Respondent produces its wares only after orders are received and appar-
The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F 2d 99 ently maintains no finished goods inventory against which future orders
(C A. 7 1969), cert . denied 397 U.S 920 could be drawn
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
director of OSHA lifted the restrictions on Respondent's
equipment, and production operations, as of that date,
could be resumed-. However, as Bushnell credibly ex-
plained, sales could not be solicited prior to January 16,
1975, because of the inability of Respondent to predict
when production could be resumed so that delivery dates
could be promised to customers. Opportunities for sales
after that date was also reduced by a slowdown in new
home construction. Accordingly, between January 16 and
April 16, 1975, according to-Bushnell, Respondent has
been unable to maintain sales levels which would justify an
expansion of its work force beyond himself, his son, Pola-
chek, and Schubert.10 _
I, am satisfied that the decline in available work to unit
employees after the strike resulted from a decline in sales.
Absent clearer and more credible proof than is offered
here," I am unwilling to infer that Bushnell would have
embarked on a self-defeating course of depressing his sales
for a period of some 6 months and possibly longer in order
to avoid reinstatement of the strikers. The fact that an em-
ployer has exhibited animus does not itself warrant a total
disregard of plausible economic explanations. Apart from
Bushnell's hostility to union organization, the General
Counsel seeks to maintain its position on the basis of testi-
mony which in substantial, material part is incredible, as
well as speculative inference, which in my opinion would
be bottomed upon an improbable state of events; i.e., that
Bushnell while declining to replace the strikers when he
could do so legitimately, would thereafter seek to eliminate
the strikers by drawing the line on revenues for an indefi-
nite period.
Accordingly, with respect to unreinstated strikers Leske,
O'Connor, and Solomon, I find that, despite their preferen-
tial right 10 recall over new hires in the future, the failure to
reinstate them prior to the instant hearing was not violative
of Section 8(a)(3) and (1) of the Act, since caused by the
unavailability of work, which, in turn, rested entirely upon
economic conditions.
Rejection of the General Counsel's contention that Re-
spondent deliberately reduced the work available to unit
employees, also weighs heavily against the allegation in the
complaint that the layoff of Prehn on November 26 and
10 The record included summaries of orders placed by Respondent's cus-
tomers taken from the contract books used in the ordinary course of
Respondent's business, covering various periods relevant to the instant pro-
ceeding. It is noted that these summaries indicate that in the period Novem-
ber 29 , 1974, to the date of the hearing , orders were placed with Respondent
totaling some $30,106. In confirmation of the drastic reduction in
Respondent 's sales experience during this period is the evidence that during
the corresponding period , consisting of December 1973, January, February,
and March 1974, Respondent had a total sales volume of $74,561
11 1 discredit Prehn's testimony that in a conversation with Jim Bushnell,
he was asked by the latter "how do you feel you're going to win this case as
my father controls sales?" Aside from the self-serving nature of this testimo-
ny it is totally improbable that Jim Bushnell would have made such a state-
ment in the fact of the unfair labor practice charges then pending More-
over, other aspects of Prehn 's testimony left me highly suspect as to his
reliability. Thus, his testimony as to the circumstances under which Bud
Bushnell interrogated certain strikers at the October 21 meeting was at odds
with the account of all other witnesses . It is also noted that Prehn 's testimo-
ny that at the time of his layoff on November 26 there was at least I day's
sanding work , stands -in apparent conflict with admissions by Walsh and
Guarcello that Walsh was assigned to assist Guarcello on November 27
because of a lack of such work.
that of Guarcello, Harrison, and Walsh on November 27
violated Section 8(a)(3) and (1) of the Act. However, the
General Counsel's claim of unlawful motivation as to these
layoffs rests not only upon the foregoing, but also upon
testimony by the alleged discriminatees that (1) at the time
of their layoffs work remained available, and (2) the No-
vember 27 layoffs followed an appearance at noon of that
same day by Pessolano who was observed by either James
or, Bud Bushnell talking, to Guarcello, Walsh, and Harri-
son. This latter incident, of-course, casts no suspicion upon
the layoff of Prehn on the preceding day. Its significance is
also diminished by Harrison's grudging admission on
cross-examination that, on laying him off, Jim Bushnell
offered Harrison work on Friday, November 29, which he
declined. The testimony of Prehn, Harrison, Walsh, and
Guarcello as to the general availability of work at the time
of the layoff was unimpressive., In this respect, the testimo-
ny of all seemed argumentative and suggested an over-
reaching to create an inflated impression of the work situa-
tion in the shop at the time of their respective layoffs.
Particularly suspect in this regard was the testimony of
Walsh and Prehn that sanding work was then available. In
this regard Prehn, who during his recall was engaged in
sanding, was laid off at a time unrelated to any incident
which would cast suspicion on the timing of Respondent's
action in his case. Despite his testimony to the contrary,
the circumstances surrounding his layoff imply a lack of
sanding work. Furthermore, Walsh, who also testified to
the availability of sanding work at that time, on cross-ex-
amination admitted that he was assigned to help Guarcello
on November 27 in assembly work because of the limited
amount of sanding that was then available. Guarcello con-
firmed Walsh's testimony in this respect. I discredit the
testimony of all four of the General Counsel's witnesses on
this aspect of the case, and further find that they were laid
off for lack of work, and, in accordance with the credited
and uncontroverted testimony of Bud Bushnell, were in-
formed that they would be recalled on the following Mon-
day if conditions improved. Based on the findings hereto-
fore made it is concluded that they were not recalled on
and after December 1 because of the curtailment of
Respondent's productive capacity due to restrictions im-
posed by OSHA and by continuing depressed sales levels,
which enabled Respondent to meet its production commit-
ments without necessity for expansion of its work force.I2
Accordingly, for the above reasons, I find that Respon-
dent did not violate Section 8(a)(3) and (1) of the Act by
laying off Prehn on November 26 and by laying off Guar-
cello, Harrison, and Walsh on November 27, and by there-
after failing to recall these employees.
CONCLUSIONS OF LAW
1. Bushnell Kitchens, Inc., is an employer engaged in
12 Taking account of the fact that both Bushnells , in the period after the
layoffs , were serving in a productive capacity, as well as the fact that formi-
ca work was contracted out during that period, Respondent up to the date
of the bearing, was performing with four individuals work of a type which
before the strike was performed by eight employees. The reduction in the
size of the work force more than corresponds proportionately with the re-
duction in contract orders during this period , when compared with the sales
figures for the corresponding period in 1973-74 -
BUSHNELL'S KITCHENS 119
commerce within the meaning of Section 2(6) and (7) of
the Act. -
2. Local 2584, New York City District Council of Car-
penters, United Brotherhood of Carpenters and Joiners of
America, AFL CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the
Employer at its shop in Staten Island, New York, exclud-
ing office clerical employees,-guards and supervisors as de-
fined in Section 2(11) of the Act, constitute an appropriate
unit for purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
4. Since October 11, 1974, and all times thereafter, the
Union has represented a majority of employees in the
aforesaid appropriate bargaining unit.
5. On-October 1,4,-,1974, the Union requested that Re-
spondent recognize and bargain with it as the exclusive
representative of its employees in the appropriate bargain-
ing unit.
6. On October 14, 1974, and all times thereafter, Re-
spondent has-refused and has- continued to refuse to recog-
nize the Union as the- exclusive representative of its em-
ployees in the appropriate collective-bargaining unit.
7. By threatening employees with plant closure and
posting new restrictive work rules, in reprisal for their
union support, and by -promising benefits to induce em-
ployees to withdraw- their, support of the, Union, Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of Section 7 rights, thereby violating Section
8(a)(1) of the Act.
8. By discharging and refusing to reinstate Gilberto Ro-
driquez and Luis Rivera, in reprisal for union activities,
Respondent has violated Section 8(a)(3) and (1) of the Act.
9. The unfair labor practices found above constitute un-
fair labor practices burdening and obstructing commerce
within the meaning of Section 2(6) and (7) of the Act.
10. Respondent has not violated Section 8(a)(3) and (1)
of the Act by refusing to reinstate economic strikers
O'Connor, Leske, and Solomon, and by laying off and fail-
ing to recall Prehn, Walsh, Guarcello, and Harrison.
14, 1974, strike. It shall be further recommended that Ro-
driquez .and Rivera be made whole for- any loss of pay
sustained, by them between the date of their discharge and
the date of a proper offer of reinstatement," with said
backpay to be computed on a quarterly basis as provided
in F. W. Woolworth, Company, 90 NLRB 289 (1950), with
6 percent interest as provided in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).-
- I find merit in the General Counsel's claim that
Respondent's unfair labor practices were sufficiently fla-
grant to warrant entry of a remedial bargaining order, pur-
suant to the principles expressed by the Board in Steel=Fab,
Inc., 212 NLRB- 363 (1974) and by the Supreme Court in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).-In
considering the impact of Respondent's unfair labor prac-
tices upon the possibility for the conduct of -a fair election,
I have not overlooked the fact that 9 of the 10 strikers
involved in this proceeding might be viewed as so resolute
in their request for union representation as to be immune
from unlawful influences.14 Nonetheless, the multiple dis-
charges involved here included elimination of the principal
employee organizer, and were coupled with threatened
closedown of the shop, the imposition of discriminatory
working rules, and promises of benefits as an alternative to
union representation. Respondent's hard line against rec-
ognition of the Union, marked by these unfair labor prac-
tices, would tend to impress employees with the futility of
assertion, on an indefinitely prolonged basis, of their right
to organize and bargain collectively. The likelihood that a
fair election could be assured in such circumstances, upon
invocation of conventional Board remedies, is sufficiently
remote to warrant a recommendation that Respondent be
ordered to recognize and bargain with the Union- as the
exclusive bargaining representative of its employees in the
appropriate collective-bargaining unit.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of the Act, I shall
recommend that it cease and desist therefrom and take
certain affirmative action found necessary to effectuate the
policies of the Act.
It having been found that Respondent subcontracted the
work of Rodriquez and Rivera for discriminatory reasons,
thereby discharging them in violation of Section 8(a)(3)
and (1) of the Act, I shall recommend that Respondent be
ordered to restore its formica department and offer rein-
statement to Rodriquez and Rivera during periods when
product demands necessitate the use of formica. Respon-
dent, by the terms of the recommended order, shall also be
required to offer reinstatement at such times when work,
other than that involving formica, becomes available for all
strikers in sufficient quantity as to warrant recall of Rodri-
quez and Rivera, in accordance with uniform procedures,
governing the recall rights of all participants in the October
ORDER 15
Respondent, Bushnell Kitchens , Inc., Staten Island, New
York, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees that it will close the shop if
13 It is entirely probable that after the discharge of Rodriquez and Rivera,
there were periods when Respondent's contract orders required no formica
work whatever. As is customary, any reduction in the gross backpay attrib-
utable to this possibility should be resolved during the compliance stages of
this proceeding
14 A remedial bargaining order under Gissel, supra, is not rendered inap-
propriate solely by virtue of the fact that unit employees in numbers consti-
tuting a substantial majority cap their organizational activity with a strike.
See Best Industrial Uniform Supply Company, Inc. 203 NLRB 1166, 1170,
1171 (1973).
15 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 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
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they engage in activities in support of a labor organization.
(b) Issuing and maintaining restrictive work rules under
conditions constituting a reprisal for employee participa-
tion in union activity.
(c) Promising benefits to induce employees to withdraw
their support of the Union.
(d) Discouraging union activity by discharging, subcon-
tracting, or in any other manner discriminating with re-
spect to the wages, hours, or terms and conditions of em-
ployment.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activity for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed in Section 7 of the Act or to refrain
from any or all such activities.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Upon request bargain collectively with Local 2584,
New York City District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, as the exclusive bargaining representative of the em-
ployees, and, if an understanding is reached, embody such
understanding in a signed agreement, in the appropriate
unit described as follows:
All production and maintenance employees of the em-
ployer, employed at its Staten Island shop, exclusive
of office clericals, guards, and supervisors as defined
in Section 2(11) of the Act.
(b) Offer Gilberto Rodriquez and Luis Rivera reinstate-
ment to their former positions, as formica work becomes
available, and to a substantially equivalent position if such
work does not exist, pursuant to standards uniformly gov-
erning the recall rights of all participants in the strike of
October 14, 1974, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them, in the manner set forth in the
section of this Decision 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 Order.
(d) Post at its premises at Staten Island, New York, cop-
ies of the attached notice marked "Appendix." 16 Copies of
said notice on forms provided by the Regional Director for
Region 29, after being duly signed by an authorized repre-
sentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
16 In the event that the Board's Order is enforced by 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."