C-F Air Freight, Inc.,

National Labor Relations Board - Board Decisions

Jan 18, 1980

247 N.L.R.B. 403 (N.L.R.B. 1980)

C-F AIR FREIGHT, INC.
C-F Air Freight, Inc. and Local Union 851, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 29-
CA-5860
January 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On August 14, 1979, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed exceptions, a supporting brief and a supplement
thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions,2 of the Administrative Law Judge and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, and hereby
orders that the Respondent, C-F Air Freight, Inc.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
' Respondent 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 credibility 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In finding that Respondent's decision to cease its JFK facility and
subcontract the work was not made prior to the advent of union activity, the
Administrative Law Judge relied, in part, on statements showing animosity
toward the Union herein made by Respondent's counsel at a settlement
conference. In adopting the Administrative Law Judge's finding, we do not
rely on these statements, but we base our decision herein on his other stated
reasons which are fully set forth in his Decision.
' The Administrative Law Judge found that on March 15, 1977, Respon-
dent made an unlawful implied promise of benefit in violation of Sec. 8(aXI)
of the Act. He ordered that Respondent cease and desist from engaging in
such conduct; however, he inadvertently failed to include such specific
prohibition in the notice. Accordingly, we hereby modify the attached notice
to conform to his recommended Order.
247 NLRB No. 60
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportuni-
ty to present their evidence, it has been decided that
we violated the National Labor Relations Act, as
amended. We have been ordered to post this notice.
We intend to carry out the Order of the Board and
abide by the following:
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives whom they themselves select
To engage in activities together for purposes
of collective bargaining or to act together in
order to seek improvement in their wages,
hours, working, conditions, and other terms
and conditions of employment
To refrain from any and all such activities.
WE WILL NOT threaten our employees with the
closing of any of our facilities because the
employees engage in union activities.
WE WILL NOT discriminate against any of our
employees because they engage in union activi-
ties.
WE WILL NOT promise our employees econom-
ic benefits in order to dissuade them from
engaging in union activities.
WE WILL offer Michael O. Lynch, Gene
Reichardt, Mildred Sipolino, and Marguerite
Sommese immediate and full reinstatement to his
or her former job with us, without loss of
seniority or other rights benefits, or, if that job no
longer exists, then we will offer him or her
employment to a substantially equivalent posi-
tion; and WE WILL make each of them whole, for
all loss of earnings and other benefits suffered as a
result of our discrimination against them by
having failed to reinstate them after the strike in
1977 at our John F. Kennedy airport terminal,
plus interest.
WE WILL immediately resume the clerical
operations formerly performed at our John F.
Kennedy airport terminal. This work will be
performed either at our former location of the
John F. Kennedy terminal or at some other
reasonable location within the metropolitan New
York area. The clerical services which will be
performed will be done by our own clerical
employees. Preference for those clerical positions
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will be given to Michael O. Lynch, Gene Rei-
chardt, Mildred Sipolino, and Marguerite
Sommese.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any of our
employees because they engage in any of the
protected activities described in Section 7 of the
Act.
C-F AIR FREIGHT, INC.
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: The
hearing in this case was held in Brooklyn, New York,
beginning July 17, 1978, and continued for 2 consecutive
days thereafter, based on the complaint issued by the
Regional Director for Region 29 on December 7, 1977,'
which in turn was based on a charge filed on August 29 by
Local Union 851, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
called the Union. Briefly stated, the complaint alleges that
Respondent, by its eastern division manager, David Condon,
in March threatened to close Respondent's John F. Kennedy
airport terminal if the employees persisted in their union
activity and also made sundry threats and promises in order
to dissuade the employees from engaging in union activity.
In addition, the complaint alleged that Respondent discrimi-
nated against employees by failing to recall certain employ-
ees to work after they unconditionally applied for it at the
end of a strike, and further discriminated against its
employees by closing down one of its facilities and unlawful-
ly subcontracting its clerical work. By these acts the
complaint alleged that Respondent engaged in unfair labor
practices violative of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the National Labor Relations Act, as amended. In
its answer dated December 8 Respondent admitted certain
jurisdictional allegations but denied that it had engaged in
any conduct violative of the Act.
Upon the entire record in the case, including my observa-
tion of the witnesses as they testified, and consideration of
the briefs filed with me on or about September 25, 1978, by
counsel for both parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, at all times material
maintained its principal office and place of business in San
Mateo, California, where it was and is engaged in the
business of interstate air freight forwarding and performing
related services.
All dates hereinafter are 1977 unless otherwise stated.
Substantially all material facts are not in dispute. Thus, the facts recited in
this section are a composite of the credited testimony of witnesses of the
General Counsel and Respondent where they agreed or which otherwise
appears uncontradicted. Where variations exist which are deemed material
they are discussed and resolved. Although only the facts considered relevant
During the calendar year immediately preceding issuance
of the complaint, a representative period, Respondent
performed services valued in excess of $50,000, of which
services valued in excess of $50,000 were performed in and
for various enterprises located in States other than Califor-
nia.
The activities involved herein relate to its terminal
maintained by Respondent in Queens, New York. This
location will be hereinafter called the JFK facility.
Respondent admits, the record reflects, and I find that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The parties agree, the
record reflects, and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts'
Among the employee complement at the JFK facility
were alleged discriminatees M. Sommese, M. O. Lynch, M.
Sipolino, and G. Reichardt. These individuals, together with
T. Vessell and P. Jiminez-Alicea,' comprised Respondent's
clerical staff at the JFK facility.
In addition, Respondent maintained a sales and manage-
ment force at this facility, the functions of which were to
consolidate customer air shipments destined for transit from
the airport, and act as an agent for receipt, forwarding, and
distribution by truck of shipments which had arrived by air
at the airport. The actual trucking service was provided to
Respondent by an independent contractor, Air-Surface
Coordinators, Inc. (hereinafter called Air-Surface). The
president and chief executive officer of Air-Surface was
Todd Breen.
Edward Ryby was terminal manager of Respondent's
JFK facility. It is undisputed that Ryby was a statutory
supervisor at all relevant times.
It is conceded that the JFK facility had been consistently
losing money for approximately 7-y: years before the events
surrounding the instant case. Thus, Respondent's operations
at the JFK facility never succeeded in turning a profit for
more than 2 consecutive months during the entire 7-y-year
period it was open. In that timespan Respondent's overall
financial picture, nationwide, improved from one of a loss of
S700,000 in 1970 to a profit at the end of 1977 in excess of
$1.8 million. During this time the JFK facility continued to
fail to produce any profit.
Apparently in an attempt to make the JFK facility a
profitable operation, Condon was appointed division manag-
er for Respondent's eastern division. This appointment was
made on approximately February 7. Condon's first assign-
ment was to reverse the chronic operating losses of the JFK
facility.
Condon's appointment was made by Respondent's eastern
area manager, Donald G. Berger. Without contradiction,
Berger testified that he visited the JFK facility during the
to the issues are recited, I have considered all matters litigated and arguments
of counsel thereon. Omitted matter is deemed not credible, irrelevant, or
superfluous.
Vessell and Jiminez-Alicea are not alleged as discriminatees. Their status
will be more particularized, infra.
404
C-F AIR FREIGHT, INC.
second or third week of September 1976. At that time Berger
spoke to Ryby about the "uneconomical standing of that
facility." Berger asked Ryby for suggestions for improve-
ment. Ryby told Berger that he had heard rumors the JFK
facility would be closed and its work transferred to another
of Respondent's locations situated at the neighboring Ne-
wark, New Jersey, airport.
When Condon was appointed division manager in Febru-
ary, Berger introduced Condon to Ryby and told Ryby that
Ryby was to continue as terminal manager responsible for
operations, subject to the overall direction of Condon, who
was to concentrate his efforts on increasing sales. Berger also
told Ryby that he wanted the JFK facility to continue
operating, commenting that this would depend upon the
facility becoming financially profitable.
In February Condon hired some new sales people and a
sales manager. Condon also made certain other personnel
changes at the JFK facility. Among those changes was the
acquisition of a new personal secretary. As a result, alleged
discriminatee Sipolino, who could not take dictation, was
moved from being a personal secretary to more general
secretarial work.
On February 23 Respondent's president, Roger Curry,
wrote a memorandum to Berger. The full text of Curry's
memorandum appears as follows:
DON BERGER-IND
cc: Rich Bryner-EXO'
SUBJECT: JFK Operation
Don, at the February 23, 1977 Meeting of the Board of
Directors, of C. F, Air Freight, Inc., it was agreed that
we will track on the operation of the JFK facility based
on the operating plan submitted in late 1976. I have
attached a copy of the schedule which was submitted to
the Board with an agreement that it will be up-dated
monthly to reflect the actual operating results. I know
that you and Dave [Condon] are already working on
the rates from JFK, however, feel that we must
consider charging a premium rate to ever make JFK
profitable. I think that most customers that are cogni-
zant of service requirements in the New York City area
will tolerate the high rate. The customers that are
completely rate conscious probably will never contrib-
ute to profitability [sic] and should not be solicited
anyway. Additionally, it is imperative that Dave and his
sales organization follow the marketing plan precisely
so that we are soliciting profitable freight. I am
confident that Dave and the new organization in the
Metropolitan New York area will be able to achieve and
surpass this plan.
W. Roger Curry
W.R.C.:js
Rich, I really took more heat about this than is
indicated in Don's letter. We did buy some time
however, and will continue to report to the Board on
' Rich Bryner is not otherwise identified. The text of the memorandum
reveals that he is a managerial official of Respondent.
I do not consider that the apparent inaccuracy of recall of dates impedes
the veracity of any witness. Rather, my credibility resolutions are based upon
the demonstrated ability of a witness to recall events my observation of the
demeanor of each witness, the weight of the respective evidence provided by
the attached schedule. However, I think we need to
start formulating a study approach to determine how
we can wind down in JFK in the event we are forced to.
Also, I want to look at the Dean Whitter account
pretty carefully. I think all of the specials that we are
eating probably results in this account being pretty
marginal. If the service is required we should be talking
to the customer about it. If on the other hand, if they
want something for nothing we should do without the
account.
In early March clerical employee Sipolino asked Ryby to
investigate rumors that she had heard that she would be
discharged or laid off. Ryby met with Condon privately to
inform him that Sipolino was upset. Condon told Ryby he
intended to lay off Sipolino for 2 weeks and then recall her.
At Ryby's suggestion Condon agreed to speak with Sipolino.
That same day he met with Sipolino, Ryby, and clerical
employee T. Vessell in his office.
Ryby and Vessell testified to what occurred at this
meeting. Each of their versions is in substantial accord with
the other. Sipolino, who appeared as a General Counsel
witness, was not asked to relate what occurred at this
meeting. Condon testified that he did not recall having the
meeting with Sipolino, Ryby, and Vessell. I credit Ryby and
Vessell in their descriptions of this conference.' I consider
Ryby and Vessell to have been forthright in their narrations
of what occurred at this meeting. Moreover, each of them
demonstrated a positive recall of this event. In contrast,
Condon simply had no recollection of this incident, although
he did not explicitly deny that it took place. I place little
significance in Sipolino's failure to testify about this conver-
sation. In general, Sipolino exhibited only faint memory of
events. In this and other aspects of the complaint allegations
Sipolino cast very little light upon factual occurrences. Thus,
her overall testimony was relatively brief and of limited
probative value.
In accordance with my findings contained in the para-
graph preceding above, I find that a meeting among Condon,
Ryby, Vessell, and Sipolino did occur between March I and
15. At this meeting the following occurred. Condon told
Sipolino that he would lay her off for 2 weeks but then
would recall her. Vessel remarked that if Condon could do
that to Sipolino no one had any security, and "we needed a
union there to be secure." Condon responded that the JFK
facility would be closed if a union were brought in to
represent the employees.
At approximately the same time as the meeting described
above, Condon was informed by Breen that Respondent's
employees were engaged in union organizing. After speaking
with Breen, Condon decided to hold a general staff meeting.
He advised Berger of his intention. Berger supported the
idea and said that he wanted to attend that meeting.
On March 15 the general staff meeting was held. It was
attended by the clerical, sales, and managerial personnel of
the JFK facility. Berger did not attend because of inclement
the witnesses, established or admitted facts, inherent probabilities, and
reasonable inferences which may be drawn from the record as a whole.
Northridge Knitting Mills, Inc.. 223 NLRB 230 (1976): Warren L Rose
Castings. Inc.. d/b/a V & W Castings. 231 NLRB 912, 913 (1977); Gold
Standard Enterprises Inc. e al., 234 NLRB 618 (1978).
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weather. Berger testified that he told Condon to assure all
employees there would be no loss of jobs to discover what
their complaints were, and to report to him what occurred.
Condon, Ryby, and Operations Manager R. Madison
testified as to this general meeting. Also, clerical employees
Reichardt, Vessell, and Sipolino recounted what occurred on
March 15. In addition, sales representatives C. Pohlig and T.
Thomas were presented by Respondent to describe the
events of that date.
My factual findings, infra, of what happened at the March
15 meeting are derived from a composite of the testimony of
each witness who testified on the subject, except Pholig and
Thomas. I find no substantial variation of testimony in the
relevant and critical areas among the witnesses on whom I
rely. Pholig's version is vague and generalized. Pholig
explicitly was unable to recall what Condon may have said
about a union. Similarly, Thomas testified that he could only
remember that Condon apologized for a communications
gap between "operations and sales." Thomas could recall
absolutely nothing else Condon might have said at the
meeting. In fact, Thomas was not sure that the meeting had
been attended by clerical employees.
A fair examination of the probative testimony depicts the
March 15 meeting as follows. Condon said that he hoped to
reestablish communications with the employees. He noted
the poor financial situation of the JFK facility. He discussed
his plans for improvement.
Condon also said that he knew the employees were
considering unionizing. I find that he told the employees if
they unionized the JFK facility would close.
Condon denied he made the threat to close. I do not credit
this denial. I conclude that it is plausible that the threat to
close was made. Respondent's concern over the financial
plight of the JFK facility was a recurring theme for
discussions among Respondent's managerial personnel be-
fore March 15. Indeed, that fiscal problem pervades Respon-
dent's defense. It is reasonable to presume unionization of
employees at the JFK facility was viewed by Respondent's
management as an impediment to their efforts to reverse the
financial losses. The record reflects that Respondent dealt
with unions at others of its terminals. Thus, Respondent had
experienced the additional cost potential of unionization. In
these circumstances, together with my finding that Condon
uttered the same threat to Vessell a few days before the
March 15 meeting, it is likely that Condon made the threat
(on March 15) attributed to him by Reichardt and Sipolino.
Further, at the March 15 meeting Condon pleaded for
more time in which to implement his plans to make the JFK
facility more profitable. Condon testified that he said "in the
event that I am successful [in ameliorating the financial
situation], that they [the employees] would be successful
because . . . increased sales . . . means the jobs would
grow, there would be additional jobs, there would be
promotions within the terminal."
Condon also told the employees that he would personally
drive them to the union hall if they still were not satisfied.
' To the extent that this action is contrary to the use of Condon's testimony
in developing the composite view of the March 15 meeting, it is permissible.
"[Nlothing is more common than to believe some and not all of what a
witness says." Edwards Transportation Company. 187 NLRB 3 (1970), enfd.
per curiam 437 F.2d 502 (5th Cir. 1971).
' Ryby testified that the conversation occurred in the street. Berger claimed
Finally, Condon apologized for the manner in which he had
treated Sipolino and told the employees that he rescinded
Sipolino's layoff order.
After Condon concluded his remarks he turned the
meeting over to Scott Holbrook (not otherwise identified).
Holbrook elaborated on the plans for increasing sales. This
was followed by a question and answer period, after which
the meeting ended.
Two days after the meeting held by Condon, Berger spoke
with Ryby privately.' Ryby testified that Berger spoke to
him about the Union. Berger testified that he could not
recall whether Ryby mentioned a union to him. Also, Berger
testified that he did not recall whether he mentioned
"anything about a union to him [Ryby]." I credit Ryby
because he was specific and certain in his recollection of this
conversation while, in contrast, Berger was vague on this
issue. Moreover, Ryby's account is inherently consistent
with other incidents in the scenario of events. Thus, it is
undisputed that at a June meeting of employees where they
were discussing unionization Ryby apprised other employees
of Berger's earlier references to a union. Finally, it is
reasonable to believe that erger addressed the union issue
as asserted by Ryby. Such a conversation is probable, given
Berger's earlier comment to Condon that he approved of
Condon's meeting and intended to attend it.
Accordingly, I find that within days of Condon's March
15 staff meeting Berger asked Ryby for a report on the union
activity. Ryby told Berger that most of the employees were
not satisfied. He said that the employees were afraid of
losing their jobs and were considering a union. Berger
replied, "Well, you know, if they join a union, tell them I'm
going to padlock the door."' Ryby told Berger that he
thought the employees were willing to take that chance, but
Berger asked him to talk to them to see what he could do.
There is no evidence of the extent either the employees or
Respondent's management officials considered or discussed
an organizational effort between the Berger-Ryby conversa-
tion and early June.
In early June, at the request of some of Respondent's
clerical employees, Ryby contacted Union President Mi-
chael Hunt. Ryby told Hunt that the employees were
considering joining a union. Hunt gave Ryby copies of the
local contract and pension and welfare booklets. Hunt also
explained the Union's benefits to Ryby. Ryby then signed a
union authorization card.
On June 10 Respondent's six clerical employees, together
with Ryby, met at the home of a clerical employee, alleged
discriminatee M. Lynch. There they discussed what benefits
they hoped to obtain if they joined the Union. It is at this
meeting that the threats of plant closure earlier made by
Condon and Berger were discussed and considered. Ryby
participated in those discussions. He told those present that
Berger and Condon had earlier threatened to close the JFK
facility if the employees unionized.
On June 12 Ryby and the six clerical employees met with
Hunt at the Union's office. They discussed the benefits that
that it occurred indoors on a stairwell. This conflict needs no resolution. What
is relevant is that Ryby and Berger agree that they had an impromptu
discussion shortly after the March 15 staff meeting.
' Apparently because Ryby was a supervisor, the quoted statement is not
alleged to be a violation of the Act.
406
C-F AIR FREIGHT, INC.
the Untlion hoped to obtain for them. The employees signed
authorization cards. Hunt told them he would request
Resporldent to recognize the Union. In addition, the
employees agreed to strike against Respondent the next day.
Shortly after the June 12 meeting ended Hunt telegraphed
Respondent demanding recognition. The telegram was
received by Respondent on June 12.
The following day the clerical employees began their
strike and picketed the JFK facility. About 10 a.m. Hunt,
together with Ryby and Vessell, met with Condon, who
asked how the strike could be terminated. Hunt told Condon
the picketing would end if he signed a contract or a letter of
recognition. Condon said that he did not have the authority
to sign a contract or issue a recognition letter. Condon said
that he would contact Respondent's headquarters in this
connection.
On July 10 the Union, by telegram, unconditionally
offered to return the striking employees to work the
following day. On July 11 the employees and Ryby appeared
with Hunt at the JFK facility at approximately 8 a.m. They
were denied entrance by a security guard. Hunt immediately
took the employees to the Board's Office.
Also on July 1II Condon responded to the Union's offer to
return the strikers to work. He telegraphed that it would
take time to reinstate normal operations at the JFK facility.
Condon wrote "as soon as operations are reinstated, [Re-
spondent] will communicate with each of the employees and
offer employment to the extent that jobs become available."
On July 14 Respondent offered reinstatement to Vessell
and Jiminez-Alicea. Those two employees returned to work
on July 18. They remained in Respondent's employ for
approximately 2 weeks when, on advice of the Union, they
left their employment and once again joined the picket line.9
None of the other four striking clerical employees has
been offered reinstatement to his or her former or substan-
tially equivalent position of employment.
Representatives of the parties met at the union office on or
about August 13. Their counsel appeared with them. Thus,
Attorneys Burstein and Simon were present for Respondent
and the Union, respectively. During this meeting the parties
discussed how they might resolve their differences. Burstein
said that Respondent desired to continue to operate in New
York City and indicated that it could do so at a location
other than at JFK and with a unionized trucker. Hunt asked
Burstein who would comprise Respondent's clerical comple-
ment and to which labor organization would they belong if
Respondent opened a facility away from JFK. Burstein
responded that it would be any union but his [Hunt's]; that
there was nothing personal involved, but it would not be
Local 851 that would represent Respondent's clericals at any
facility Respondent opened away from the existing JFK
facility.
The strike and picketing at the JFK facility which began
on June 13 continued on a 24-hour-a-day basis to approxi-
mately Labor Day. During this 2-y-month period the Union
also picketed Respondent's Newark, New Jersey, facility, as
well as facilities in Chicago and San Francisco. The
picketing at Respondent's Newark airport facility ended
sometime before Labor Day. The Newark facility resumed
normal operations after the picketing terminated and contin-
ued to operate at least until the instant hearing. There is no
evidence that the Union sought to represent any of Respon-
dent's employees at the Newark facility.
During the first week of September, Respondent consum-
mated a subcontracting arrangement with Chimento Truck-
men, Inc. Respondent leased space in Chimento's building at
11 West Street, Brooklyn, New York. Respondent contract-
ed out all its clerical and trucking work to Chimento.
Chimento assigned three full-time and at least two part-time
clerical employees to perform the clerical functions of
Respondent's operation. Respondent continues to employ its
own supervisory personnel as well as salesmen. These
individuals operate out of I I West Street. Some of these
personnel are identical to those who were at work for
Respondent when it was physically located at the JFK
facility.
B. Analysis and Conclusions
I. The threat
Complaint paragraph 8(a) alleges that in March Condon
threatened employees with "discharge, plant closure and
other reprisals" for engaging in union activity.
This allegation emanates from two incidents, one during
Condon's discussion with Sipolino, Vessell, and Ryby a few
days before the March 15 staff meeting, and one during the
March 15 staff meeting.
No extensive discourse is required to resolve this allega-
tion. The credited testimony demonstrates that a violation
occurred, as alleged. Thus, the facts reveal that Condon told
Vessell, Sipolino, and Ryby the JFK facility would be closed
if a union became the employees' bargaining representative.
This statement was made during Condon's meeting with
those individuals.
Also, at the March 15 general staff meeting Condon told
the employees that if they unionized the JFK facility would
close.
The question of the propriety of Condon's statements to
the employees about plant closure must be decided in light of
the principles stated in N.LR.B. v. Gissel Packing Co., Inc.,
395 U.S. 575 (1969). There the Court established certain
standards for determining whether an employer's statements
about the effects of unionization are permissible. The Court
indicated that any evaluation of such employer's statements
"must take into account the economic dependence of the
employees on their employers, and the necessary tendency of
the former, because of that relationship, to pick up intended
implications of the latter that might be more readily
dismissed by a more disinterested ear" (395 U.S. at 617).
Accordingly, the Court continued:
. . . an employer is free to communicate to his
employees any of his general views about unionism or
any of his specific views about a particular union, so
long as the communications do not contain a "threat of
reprisal or promise of benefit." He many even make a
predicion as to the precise effect he believes unioniza-
tion will have on his company. In such a case, however,
' Neither Vessell nor Jiminez-Alicea is alleged as a discriminatee.
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his con-
trol or to convey a management decision already
arrived at to close the plant in case of unionization. If
there is any implication that an employer may or may
not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation based
on misrepresentation and coercion.... [395 U.S. at
618.]
Judged by these standards, I find Condon's plant closing
remarks unlawful. First, the statements did not convey a
management decision already arrived at to close the plant in
the event of unionization. Clearly, Condon's remarks convey
the impression such a decision would be made after the
employees exercised their right to select the Union as their
bargaining representative. Second, I shall find hereinbelow
that the economic ground advanced by Respondent as the
basis of a lawful prediction relative to the plant closing
remarks is spurious. Thus, I perceive the unquestioned poor
financial situation of Respondent to have been no serious
factor in the decision to close the JFK facility and
subcontract its work until there was overt union activity
among Respondent's clerical employees. When Condon
made the plant closing statements the employees had not
even approached the Union. Respondent was not yet
confronted with contract demands. In light of the continua-
tion of the JFK facility for over 7 years of losing financial
standing, there is no predicate on which to base a claim that
Condon's comments merely were predictions.
Upon the foregoing, I find that Respondent issued the
threats to close the plants in violation of Section 8(a)(1) of
the Act, as alleged in paragraph 8(a) of the complaint.
2. The promises
It is alleged in complaint paragraph 8(b) that in March
Condon offered and promised promotions, job security, and
other unspecified benefits to its employees to dissuade them
from engaging in union activity. This allegation is derived
from certain of Condon's March 15 remarks.
As stated above, at the March 15 staff meeting Condon
asked the employees' indulgence to give him a chance to
make the JFK facility more financially secure. In this
connection Condon opined that his success would innure to
the employees' benefit "because . . . increased sales . . .
means the jobs would grow, there would be additional jobs,
there would be promotions .... "
Arguably, there is merit to Respondent's contention that
the above-quoted statements are privileged. Obstensibly the
words are lawful predictions within the Gissel rationale.
Moreover, Condon's words are ambiguous when viewed in
isolation.
However, examination of the total circumstances herein
persuades me that the General Counsel's position should
prevail. The test of legality is whether Respondent engaged
in conduct which it may reasonably be said tends to interfere
with the free exercise of employee rights under the Act.
Electrical Fittings Corporation, A Subsidiary of I- T-E Imperi-
al Corporation, 216 NLRB 1076 (1975). The key to
resolution of the instant issue is based upon a conclusion as
to whether the conduct has coercive or interfering effect
upon the free exercise of the employees' statutory rights.
Impact Die Casting Corp., 199 NLRB 268, 271 (1972).
Condon's alleged promises were made in the context of a
discussion undeniably designed to improve communication
between Respondent and its employees, to advise them that
their interest in unionization was known, and to ponder the
effect of that activity relative to Respondent's untenable
financial condition. After establishing these items as his
purposes in meeting with the employees, Condon clearly
asked them to forebear in their organizing efforts. Standing
alone, such a request is not necessarily unlawful. However, it
is in this setting that Condon spoke the alleged unlawful
phrases.
There is convincing evidence that he meant his words to
contain the implication that the forebearance he requested
would result in improved working conditions such as
promotions. Thus, Condon's offer to drive the employees to
the union hall if they were not satisfied sheds light upon the
meaning of his message. From such a challenge, the
employees reasonably could have expected that promotions
would be forthcoming if they were to delay their organiza-
tional efforts.
In my view, though this issue is not free from doubt, the
totality of circumstances present in the case at bar warrants
the conclusion that Condon's March 15 reference to promo-
tions constitutes an unlawful implied promise of benefit in
violation of Section 8(a)(1) of the Act. I so find.
3. The discrimination
Complaint paragraphs 10(a) and (b) allege that Respon-
dent discriminatorily failed to recall the four strikers
identified in the complaint. It is alleged, in complaint
paragargaph 12, that the subcontracting to Chimento also
was discriminatory.
In effect the General Counsel contends that both the
failure to recall all the strikers to work after having
unconditionally applied to return from the strike and
thereafter closing the JFK facility and the subcontracting of
its clerical work were part of a studied scheme to prevent
unionization among clericals at the JFK facility.
Respondent agrees that it has not offered reinstatement to
the four alleged discriminatees. Also, Respondent acknowl-
edges that its clerical functions had been subcontracted to
Chimento. It claims that both circumstances were based
solely on economic conditions. Specifically, Respondent
contends the decision to close the JFK facility had been
made in February, clearly before any hint of union activity
among the employees. Moreover, Respondent asserts that
the only cause for that decision was the concededly
unprofitable position of the JFK facility.
An employer has a right to abandon all or part of his
business rather than deal with a union. Textile Workers
Union ofAmerica v. Darlington Manufacturing Co., 380 U.S.
263 (1965). However, if he chooses to avoid dealing with the
union by staying in business and subcontracting the work
that would have been done by the employees who favor the
union, thereby effectively discharging such employees, the
408
C-F AIR FREIGHT, INC.
employer violates Section 8(a)3) and (1) of the Act. Walker
Company, 183 NLRB 1322 (1970), and cases cited therein.
The facts in this case persuade me that Respondent
subcontracted its JFK facility work and failed to reinstate
the four alleged discriminatees after the strike because of
their union activities. Respondent has not gone out of
business. It simply subcontracted the work of one of its
many facilities. The subcontracted work would have been
performed by the clerical employees whose interest in the
Union was obvious.
As earlier noted, the JFK facility consistently lost money
for 7-Y years before the alleged unlawful conduct. It is clear
that Respondent considered the JFK facility a strategically
important operation. Thus, the consistent financial losses
were countenanced for the protracted time involved because
the facility was located at an eminent east coast international
airport.
As a prudent employer, Respondent tried to correct the
poor financial operation of the JFK facility. Thus, when
Berger visited that facility in September 1976 he asked Ryby
for suggestions to improve the operations; Respondent
appointed Condon in February to provide a fresh managerial
outlook to that operation; at Condon's appointment, Berger
told Ryby that he wanted the facility to continue operating;
Condon's personnel changes included enlarging the sales
staff; and Curry's memorandum of February 23 discussed
procedures for monitoring the JFK facility's operations
according to a plan conceived in late 1976. This plan
admittedly projected those operations through 1977. The
foregoing factors warrant the conclusion, which I make, that
at least into February, Respondent's highest management
officials had not definitely decided to terminate the opera-
tions of the JFK facility. Instead, the enumerated activities
point to strenuous efforts to continue the existence of the
JFK facility.
Why then did the Respondent precipitously subcontract
the work performed at the JFK facility and fail to recall the
four alleged discriminatees? The answer is found in Respon-
dent's motivation.
It is the General Counsel's burden to establish a particular
motivation on the part of an employer-a discriminatory
motivation-in order to prove the instant allegations. Sup-
port for a finding of unlawful motivation "is augmented
[when] the explanation of the [employer's conduct] offered
by the Respondent [does] not stand up under scrutiny."
N.LR.B. v. Bird Machine Company. 161 F.2d 589, 592 (Ist
Cir. 1947).
A fair assessment of all the record evidence persuades me
that Respondent's defense does not withstand scrutiny.
While I have considered all the relevant evidence and
arguments thereon, I perceive the following factors vitiate
Respondent's defense and provide the basis for finding that
Respondent harbored a discriminatory motive:
(a) Condon's response to Vessell's suggestion that the
employees possibly needed a union and to Breen's advice
that organizational efforts began was immediate and strong.
Thus, Condon unlawfully threatened to close the plant and
promised economic benefits.
(b) Respondent's contention that the decision to close was
made in February, before the advent of the union activity, is
a patent contrivance. Curry testified that he and Respon-
dent's board of directors made the decision to close in
February. However, a careful reading of his February 23
memorandum reflects only that such a decision was in
contemplation.
Similarly, on this subject Berger was inconsistent. He
claimed that the decision to close was made in February.
Nonetheless, when he introduced Condon to Ryby, Berger
told Ryby that the JFK facility would remain open. Clearly,
this remark does not reflect the purported decision to close
the operation. Additionally, Berger later instructed Condon
to assure the employees at the March 15 meeting that they
would suffer no loss of jobs. This directive, too, belies the
existence of the February decision to close.
As previously noted, but not to belabor the point, Curry's
February 23 memorandum is phrased in positive language,
contrary to an intention to close the JFK facility. Specifical-
ly, the February 23 memorandum refers to the operating
plan developed "in late 1976." Further, the text shows that
Respondent's board of directors apparently approved that
plan. Thus, the February 23 memorandum indicates that
there would be monthly updates of the JFK facility
operations. That memorandum cautions adherence to the
plan by Condon.
Moreover, the memorandum contains a hopeful note that
Condon "and the new organization . . . will be able to
achieve and surpass" the plan.
Also, the memorandum strongly suggests the continued
and uninterrupted operation of the JFK facility for an
indeterminate period when Curry used the words "we did
buy some time."
Finally, there is language in the memorandum which
virtually destroys the contention that a formal decision to
close had already been made. Thus, Curry wrote to Bryner
"we need to startformulating a study approach to determine
how we can wind down in JFK in the event we areforced to. "
(Emphasis supplied.) The italicized words reflect the antici-
patory nature of management activity regarding a possible
closing of the JFK facility. It is straining to conclude that
the closing of the JFK facility was a fait accompli in
February.
Viewed against the backdrop of this documentary evi-
dence, I consider the oral testimony of Curry and Berger
that the decision to close and subcontract was made in
February is incredible and illusory.
(c) Shortly after the March 15 staff meeting Berger
revealed, in direct terms, Respondent's true motivation.
Thus, he told Ryby that if the employees unionized he would
"padlock the door." Ryby was a supervisor at the time. It is
entirely appropriate to use a conversation between two
supervisors as evidence to uncover motivation. I find
Berger's "padlock" remark a persuasive and valuable tool in
evaluating Respondent's motive.
(d) There is some evidence that Respondent engaged in
disparate treatment against the JFK facility employees. As
indicated above, the Union picketed Respondent also at the
nearby Newark, New Jersey, facility. There is no evidence
that any Newark employee was adversely affected or that
Respondent made any move to terminate the Newark
operation. I acknowledge that the record does not show
Newark was operating at a financial loss. Nonetheless, for all
the reasons set forth herein (particularly the extended length
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of time which JFK lost money), I do not consider the
financial situation of Newark as significant an element as the
simple fact that there was no union activity among the
Newark employees.
(e) Respondent's underlying motivation was finally dem-
onstrated at the August 13 "settlement" conference. There,
Respondent's counsel expressed antagonism specifically
against the instant Union. Expressions of attitude toward
unions made subsequent to the alleged unfair labor practices
are appropriately considered as evidence of animus. Jeffrey
P. Jenks d/b/a Jenks Cartage Company, 219 NLRB 368,
369 (1975).
The above-stated factors provide the basis for finding a
discriminatory motive based on both direct and circumstan-
tial evidence. Respondent has argued that circumstantial
evidence is not appropriately used to determine unlawful
motives or intent. This argument is erroneous. In Shattuck
Denn Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966), the Ninth Circuit Court
of Appeals observed:
Actual motive, a state of mind, being the question, it
is seldom that direct evidence will be available that is
not also self-serving. In such cases, the self-serving
declaration is not conclusive; the trier of fact may infer
motive from the total circumstances proved. Otherwise
no person accused of unlawful motive who took the
stand and testified to a lawful motive could be brought
to book. If he finds that the stated motive . . . is false,
he certainly can infer that there is another motive. More
than that, he can infer that the motive is one that the
employer desires to conceal-an unlawful motive-at
least where . . . the surrounding facts tend to reinforce
that inference.
The Shattuck Denn principle was expressly adopted by the
Board in Atlantic Metal Products, Inc., 161 NLRB 919, 922
(1966).
The test for appraisal of Respondent's defense is aptly
stated by the Eighth Circuit Court of Appeals in McGraw-
Edison Co. v. N.L.R.B., 419 F.2d 67, 75 (1969) as follows:
Intent and motive are subjective and often may be
proved only by circumstantial evidence.... Illegal
motive has been held supported by a combination of
factors, such as "coincidence in union activity and
discharge.... general bias or hostility toward the
Union" . . . variance from the employer's "normal
employment routine" . . . and an implausible explana-
tion by the employer for its action ...
Applying the above teachings I conclude that the record
as a whole supports the General Counsel's contentions that
the subcontracting and the failure to reinstate the alleged
discriminatees was motivated by antiunion considerations.
In evaluating Respondent's motivation and its principal
defense, I have accorded due consideration to the unrefuted
economic analyses in evidence and to the testimony of each
of Respondent's witnesses who testified as to the poor
financial situation of the JFK facility. Even assuming the
validity of the economic defense, I would find it pretextual.
so At the hearing, I reserved ruling on Respondent's motion to dismiss the
complaint. Based on the conclusions herein. Respondent's motion to dismiss
is hereby denied.
Accordingly, the subcontracting and failure to offer rein-
statement nonetheless would violate Section 8(a)(3) and (1)
of the Act. The applicable legal authority results from the
case of Townhouse T. V. & Appliances, 213 NLRB 716
(1974), as explicated in N.LR.B. v. Townhouse T. V &
Appliances, Inc., 531 F.2d 826, 828 (7th Cir. 1976), which
stated "it is well settled that an employer violates Section
8(a)(3) and (1) of the Act by subcontracting part of an
integrated business and dismissing the persons employed
therein if the action is motivated at least in part by antiunion
considerations."
Upon the assumption that the dire economic strait of the
JFK facility presented a justifiable ground to terminate its
operations I would find, based on the evidence of unlawful
motivation, that the closing was accelerated by the overt
union activity among Respondent's employees.
Finally, although Respondent's financial evidence of the
JFK facility's losses is impressive, I find that reliance on
those statistics is misplaced and illogical. It is fallacious to
say on the one hand that the JFK facility proves such an
economic disaster as to warrant its closing, yet on the other
hand to subcontract its work in the circumstances herein. It
is undisputed that the subcontracting arrangement with
Chimento has not prevented Respondent from suffering
financial loss attributable to the subcontracted work. More-
over, the record shows no substantial diminution of work
after Chimento began performing it. Thus, the managerial
and sales force is substantially the same, except that the
personnel are on Chimento's payroll. Similarly, the clerical
force is approximately identical, Chimento using three full-
time and three part-time clericals for Respondent's work.
The entire arrangement looms as a charade.
Upon all the foregoing I conclude that the record proves
by a preponderance of credible evidence that the failure to
offer reinstatement to the alleged discriminatees and the
closing of the JFK facility were discriminatorily motivated
and in violation of Section 8(a)(3) and (I) of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW10
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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 interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act in March
1977 by threatening to close its JFK facility because its
employees engaged in union activities.
4. Respondent interfered with, restrained, and coerced its
employees in violation of Section 8(a)(l) of the Act on
March 15, 1977, by promising its employees benefits if they
would refrain from engaging in union activities.
5. Respondent discriminated against employees in viola-
tion of Section 8(a)(3) and (1) of the Act in and after July
1977 by failing to offer reinstatement to its employees
Michael O. Lynch, Gene Reichardt, Mildred Sipolino, and
Marguerite Sommese after they made an unconditional
410
C-F AIR FREIGHT, INC.
application to return to work and by thereafter closing its
JFK facility and subcontracting the clerical work formerly
performed at that location.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that by the above-described conduct Re-
spondent violated Section 8(a)(1) and (3) of the Act, I shall
recommend that it cease and desist from engaging in such
conduct in the future and affirmatively take such action as
will dissipate the effects of its unfair labor practices.
To remedy the violations of Section 8(a)(1) of the Act, the
Order will require Respondent to refrain from engaging in
such conduct in the future and advise its employees of that
intention in writing.
With respect to the discriminatory conduct in violation of
Section 8(a)(3), the General Counsel urges that Respondent
be required to resume its clerical operations with its own
employees and that Lynch, Reichardt, Sipolino, and
Sommese be offered reinstatement and be awarded backpay.
The General Counsel avers that the discrimination would be
adequately remedied if Respondent were required to offer
reinstatement to the discriminatees anywhere within the
metropolitan New York City area, as an alternative to
reopening the JFK facility.
Respondent, naturally, advancing the righteousness of its
conduct urges that none of the requested remedies should be
awarded, and that in any event, resumption of clerical work,
reinstatement, and backpay is "unfair" and "unjustified."
Additionally, relying on pleadings and the settlement agree-
ments from three unfair labor practice cases brought against
the Union which derive from the strike herein, it" argues
that reinstatement and backpay should not be awarded
because the alleged discriminatees had not disclaimed
responsibility for or knowledge of the acts which were the
subject of the settlement agreements. Respondent asserts
that the participation of the discriminatees in the strike is
tantamount to their ratification of the Union's alleged
misconduct."
It is clear that the Board's remedy for discriminatory
subcontracting includes a requirement that the offending
employer reinstate its former operation together with the
discriminatees who had performed such operations. R & H
Masonry Supply, Inc., 238 NLRB 1044, fn. 3 (1978); Bashore
Meat Products, Inc., 218 NLRB 528, 530 (1975); Florida-
Texas Freight, Inc., 203 NLRB 509, 511 (1973). As
indicated, Respondent contends that such a remedy herein
would be "unfair" and "unjustified." No evidence was
adduced to prove these contentions of Respondent. Indeed,
the fact that Respondent formulated an operating plan for
the JFK facility for the entire year 1977 shows that
" Those cases are two secondary boycott cases docketed as Cases 29-CC-
572 and 29-CC-573 and one picket line misconduct case docketed as Case 29-
CB-2939.
2 No evidence of specific misconduct engaged in by any of the alleged
discriminatees was adduced in the instant hearing. Inasmuch as it is
Respondent's burden to prove its contention that any discriminatee is
disqualified from reinstatement by virtue of strike misconduct, I do not
consider the pleadings and settlements received in evidence sufficiently
probative to disqualify any of the discriminatees from reinstatement and
backpay.
Respondent had intended to persist in operating that facility
with its own employees. Accordingly, I conclude that the
record does not sufficiently establish that Respondent would
suffer undue hardship by application of the Board's usual
remedies. Townhouse T. V. & Appliances, supra, particularly
the Board's Decision. Therefore, the Order will require that
Respondent resume the clerical operations formerly per-
formed at the JFK facility and that such resumption could
be either at its former location or some other reasonable
location within the metropolitan New York City area.
Additionally, Respondent will be required to use its own
employees to perform those clerical services. Preference for
those clerical positions will be accorded to the discriminatees
herein.
Because I have found that Respondent discriminatorily
failed to reinstate Michael O. Lynch, Gene Reichardt,
Mildred Sipolino, and Marguerite Sommese, the Order shall
require Respondent to offer each of them immediate and full
reinstatement to his or her former position and make each
whole for any loss of earnings each may have suffered as a
result of the discrimination by payment of a sum equal to
that which would have been earned absent the discrimina-
tion. Those earnings and interest thereon shall be computed
in accordance with the Board's established standards con-
tained in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977)."
Finally, in order to insure that the Board's customary
notice is brought to the attention of all interested employees,
the Order will require Respondent to mail a copy of the
notice to each employee on Respondent's payroll at the JFK
facility during the payroll period immediately prior to the
date the strike began.
Respondent will also be ordered to refrain from engaging
in unfair labor practices by conduct of a like or related
manner to the activites found unlawful herein."
Upon the above findings of fact, conclusions of law, the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER"
'The Respondent, C-F Air Freight, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening to close any of its facilities because its
employees engage in union activities.
(b) Promising its employees economic benefits in order to
dissuade them from engaging in union activities.
(c) Discriminating against its employees in regard to
tenure of employment or other terms and conditions of
employment because they engage in union activities.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
" See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962).
" Hickmot Foods, Inc.. 242 NLRB 1357 (1979).
" 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.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed in Section 7 of the Act, except to the
extent that such rights might be affected by a lawful union-
security agreement in accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Offer Michael O. Lynch, Gene Reichardt, Mildred
Sipolino, and Marguerite Sommese immediate and full
reinstatement to his or her former job or, if that position no
longer exists, to a substantially equivalent position of
employment without prejudice to his or her seniority or
other rights and privileges, and make each whole in the
manner described above in the section entitled "The Reme-
dy" for any loss of earnings or other benefits suffered by
reason of Respondent's discrimination against them which
has been found unlawful.
(b) Forthwith resume the clerical operations formerly
performed at its JFK facility either at the former location or
some other reasonable location within the metropolitan New
York City area. Those clerical services will be performed by
clerical employees of Respondent. Preference for those
clerical positions will be given to the four discriminatees
ordered to receive offers of reinstatement herein.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
'' In the event that this 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
analyze the amounts of backpay and interest due under the
terms of this Order.
(d) Mail, postage prepaid, copies of the attached notice
marked "Appendix"'" to each employee on Respondent's
JFK facility payroll during the payroll week ending immedi-
ately before the beginning of the June 13, 1977, strike. The
Regional Director for Region 29, after the notice has been
duly signed by an authorized representative of Respondent,
shall forward sufficient copies of that notice to Respondent
for mailing in accordance with this Order. Respondent shall
mail copies of the notice provided by the Regional Director
immediately upon their receipt, and shall notify the Regional
Director, in writing, within 2 days of said mailing to the
employees, that the mailing has been accomplished and the
date on which the notices were mailed.
In the event that Respondent resumes its operations under
this Order within 60 days of the date of this Order,
additional copies of the notice shall be posted by Respondent
and shall be maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
412