Carpet Man, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1968

170 N.L.R.B. 368 (N.L.R.B. 1968)

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpet Man, Inc. and United Brotherhood of Car-
penters and Joiners of America, Local No. 254,
AFL-CIO, and its Agent William Fink and Stella
P. Mable, An Individual . Cases 8-CA-4565 and
8-CB-1 122
March 15, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 24, 1967, Trial Examiner George
J. Bott issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. He also found that Respondents had not
engaged in certain other unfair labor practices al-
leged in the complaint. Thereafter, the Respondent
Union filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General
Counsel-and the Respondent Employer filed excep-
tions to the Trial Examiner's Decision and support-
ing memoranda.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the exceptions the memoranda, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent that they are con-
sistent with the following.
The complaint in the instant case alleges two
separate violations of Section 8(a)(3) and (1) and
two corresponding violations of Section 8(b)(2)
and 1(A). The charges relate to the reduction in
compensation and eventual discharge of Mrs. Stella
Mable.
On April 4, 1966, Mrs. Mable was employed by
Carpet Specialty Company, a company engaged in
providing carpet installation services to carpet
dealers, to work in its office. She was hired by Le-
land Freedman, attorney for Carpet Specialty. In
addition to various fringe benefits, Mrs. Mable was
promised a substantial bonus for installing office
procedures and business forms. In November 1966
Carpet Specialty moved to a new location where
Respondent Carpet Man was also located. Mrs.
170 NLRB No. 45
Mable was told by Freedman, in the presence of
Carpet Man's owner, Edward Gurski, - that she
would -work for both firms. However, on January
23, 1967, Carpet Specialty went, out of business
because of tax difficulties. Thereafter, Freedman
became secretary of Carpet Man, Carpet Man took
over all of Carpet Specialty's accounts and carpet-
layers, and Mrs. Mable 'continued to work for
Respondent Carpet Man.
Mable's duties for both companies included
keeping books, answering the telephone, recording
work orders, scheduling carpet installation, and
orally relaying work assignments to the carpet-
layers.
On February 9, 1967, while working in Carpet
Man's office, Mable received a telephone call from
Respondent Union's business representative, Wil-
liam Fink, protesting Carpet Man's failure to pay its
carpetlayers on time.- (Carpet Specialty had had a
contract with the Respondent Union.) In the course
of their conversation Fink told Mable that, since
Mable's duties included the assigning of union car-
petlayers, he considered her to be similar to a
"foreman on the job" and therefore he wanted her
to join the Union. Mable refused and Fink then
threatened to call a strike. ^ Later that day, in
response to Mable's inquires , Gurski told Mable
that she would not be compelled to join the Union.
On February 11, Gurski met Fink at the union
hall and they executed a contract covering all of
Carpet Man's carpetlaying employees. During this
meeting , Fink commented that the carpetlayers had
complained about Mable's giving them orders. Fink
asked Gurski if it were intended that Mable con-
tinue performing this function. Gurski assured Fink
that Mable would be confined strictly to office mat-
ters and would no longer make work assignments.
On Monday morning , February 13, Freedman
told Mable that Gurski had met with the Union and
it had been decided that Mable had to leave Carpet
Man's employ. Freedman promised Mable time to
seek another position . However, he also informed
her that her salary would be reduced from $125 to
$90 a week and certain fringe benefits would no
longer be paid. The asserted reason for the reduc-
tion in Mable 's compensation was Carpet Man's
economic inability to pay the higher amount.
Despite being told again , sometime in March,
that the Company was under pressure of the Union
to discharge her, Mable continued to work for
Respondent Carpet Man. However, on a few occa-
sions during this period, Mable was also told by
Freedman that Carpet Man was experiencing
economic difficulties and it couldn't afford to retain
her much longer.
CARPhf MAN, INC. 369
Around the middle of March, Union Representa-
tive Fink telephoned Gurski, and, when Mable an-
swered the telephone, he commented, "Oh, you're
working now as secretary; you're getting $90 a
week. Fine. Just so we know its according to our
terms."
On Friday, March 31, Gurski again told Mable
that the Company was being pressured by the
Union and Mable would have to leave its employ.
Nevertheless, on Monday, April 3, Mable reported
for work. However, this time, Gurski emphatically
terminated Mable's employment telling her that he
could not withstand the pressure of the Union any
longer and had to discharge her.
On the same day that Mable was discharged,
Respondent Carpet Man also laid off four union
carpetlayers and its other office employee. Mable
has never been replaced and Freedman now per-
forms the bulk of the office work.
SUMMARY, ANALYSIS, AND CONCLUSIONS
The Trial Examiner found that, in reducing
Mable's compensation on February 13, the Respond-
ent was motivated primarily by economic con-
siderations. In addition, he noted the lack of
evidence to support a finding that the Union
requested that Mable's salary be reduced. There-
fore, he recommended that this aspect of the com-
plaint be- dismissed as not being established by a
preponderance of the evidence. We- agree with the
Trial Examiner's conclusion that the General Coun-
sel has not met his burden of proving that the
reduction in compensation violated either Section
8(b)(2) and (1)(A) and/or 8(a)(3) and (1).-In
reaching this conclusion, we find particularly rele-
vant the economic difficulties of Carpet Man and
its predecessor, Carpet Specialty, as establishing a
valid economic motive for Mable's salary reduc-
tion.
The Trial Examiner did find that Mable's
discharge violated 'Section 8(a)(3) and (1) and
8(b)(2) and (1)(A). He concluded that Mable's
failure to join the' Union resulted in continuing
union requests thatMable be discharged and' that
Carpet Man ultimately succumbed to this pressure.
We do not believe-that the record supports a find-
ing that Mable was discharged for discriminatory
reasons.
The available evidence does not indicate that the
Union sought Mable's discharge. In fact, Union
Business Representative Fink's statement to Mable
in the middle of March ("Oh, you're working now
as secretary; you're getting $90 a week. Fine. Just
so we know its according to our terms") indicates
that the Union was no longer concerned with Mable.
Fink appeared satisfied that Mable was being con-
fined to strictly office matters in accordance with
Gurski's assurance to him when they executed their
collective-bargaining agreement in February. The
above-noted conversation was the only contact that
Fink had with Mable after the contract was 'signed
on February 11.
The evidence is consistent with a finding that
Mable's discharge was prompted by economic con-
siderations. It has already been noted in relation to
Mable's reduction in compensation that Carpet
Man had a history of economic difficulties. On the
same date that Mable was terminated, four union
carpetlayers and Carpet Man's other office em-
ployee were also discharged. In addition, Mable has
never been replaced and most of her functions are
now being performed by Carpet Man's corporate
secretary, Freedman. Under the circumstances, of
this case, we do not believe that the General Coun-
sel has met his burden of proving, by a preponde-
rance of the evidence, that Mable's discharge was
motivated by discriminatory reasons and thereby
violated section 8(b)(2) and (1)(A) and/or 8(a)(3)
and (1) of the Act.
Accordingly, we shall order that the complaint,
in its entirety,' be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' We do not find it necessary to determine whether the statements to
Mable that the Union was seeking and ultimately caused her discharge
were in contravention of the Act. Under the isolated circumstances in
which these statements were made, any such finding would constitute
nothing more than a de nnnimis violation.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT , Trial Examiner : Upon charges
of unfair labor practices filed against Respondents,
herein called the Company and the Union respec-
tively, by, Stella P. Mable on April 12, 1967, and
May 29, 1967, in Case 8-CA-4565, and on April
12, 1967, in Case 8-CB-1122, the General Counsel
of the National Labor Relations Board issued a
consolidated` complaint and notice of hearing on
May 31, 1967, alleging violations of Sections
8(a)(1) and (3) and 8 (b)(1)(A) and (2)-of the Na-
tional Labor Relations Act, as amended , herein
350-999 0 - 71 - 25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Act.' Respondents filed answers denying
the essential allegations of the consolidated com-
plaint , as amended , and a hearing was held before
me at Cleveland , Ohio , on July 17 , 1967. Sub-
sequent to the hearing , General Counsel , the Com-
pany , and the Union filed briefs which I have care-
fully considered.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
pany until January 23, 1967 , when it went out of
business because of tax difficulties.
In November , 1966 Carpet Specialty Company
moved to a new location in Cleveland where
Respondent Carpet Man, Inc ., was also located.
Carpet Man was owned and managed by Edward
Gurski , and Freedman told Mable in Gurski's
presence , when she reported at the new location,
that she would work for both companies . This she
did until January 23, 1967 , when Carpet Specialty
closed . Her duties for both companies included
kkeeping books , answering the telephone , recording
COMPANY work orders, -scheduling carpet installation, and
Respondent Employer is an Ohio corporation
with its principal office and place of business in
Cleveland, Ohio, where it is engaged in the business
of providing carpeting installation services to carpet
dealers . Respondent Employer annually provides
services in excess of $50,000 to other business en-
terprises , one of which is engaged in the operation
of retail stores from which it annually receives
revenues in excess of $500,000 and receives at its
Ohio operations goods valued in excess of $10,000
directly from points outside the State of Ohio.
Respondents concede, and I find, that Respond-
ent Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The issue is whether Stella P. Mable, the Charg-
ing Party , had her compensation and other benefits
reduced and was subsequently terminated. by
Respondent Company at the instance of Respond-
ent Union because she refused to join the Union.
B. The Facts
Mrs. Mable was hired by Carpet Specialty Com-
pany as an office employee in April 1966. Mable,
who appears to have been competent and ex-
perienced in office procedures, was told when hired
by Leland Freedman , attorney for Carpet Specialty
Company, that she would receive, in addition to her
salary , a 2-week vacation , paid hospitalization and
life insurance, severance pay, increases in salary up
to a maximum of $150 a week , and a substantial
bonus for installing office procedures and business
forms. Mable worked for Carpet Specialty Com-
orally relaying work assignments to the carpetlayers
from Gurski.
On January 20, 1967, Freedman told Mable, in
Gurski's presence , that Carpet Specialty Company's
accounts were being transferred to Carpet Man,
and to telephone all customers and advise them
that Carpet Man would service them in the future.
Freedman also informed Mable that she would
work for him and Gurski and function as she had in
the past . After the accounts were transferred to
Carpet Man, Carpet Man employed all of Carpet
Specialty Company 's carpetlayers , and Mable's
responsibilities continued as before . Freedman
became secretary of Carpet Man, and Carpet Spe-
cialty Company dissolved.
When Freedman first hired Mable in April 1966
he told her that she would have some authority to
hire and fire carpetlayers . On December 15 Mable
terminated a carpetlayer , but after Fink, the
Union 's business representative , visited the shop
and talked with Freedman about the employee's
release, Freedman told Mable that she no longer
would have any power to hire or fire anyone.
Thereafter , however , Mable's duties remained the
same in every respect except that she no longer had
anything to do with hiring or firing carpetlayers.
On February 9, 1967 , while working in Respond-
ent's office , Mable got a telephone call from Fink
protesting Respondent's failure to pay its carpet-
layers on time. Fink seemed to hold Mable respon-
sible for the delinquency , but she explained that she
was blameless, since Freedman had not given her
the men 's checks . At that point, Mable said, Fink
told her that he wanted her to come to the Union's
office and join the Union . Mable refused , and she
said that Fink threatened to call a strike and put
her out of work if she did not comply . Mable con-
ceded that the entire conversation lasted about 45
minutes and that other topics which she could not
remember were discussed . On cross-examination
she recalled that during the conversation Fink ob-
jected to her practice of "calling the fellows and
telling them where to go ." She said she argued with
Fink that she, as an office employee , "dispatching
the work to the men, telling them where they had
' The complaint was amended on July 5, 1967, in a minor respect.
CARPET MAN,
to go from day to day" was not required to join the
Union as she would if she were a "foreman in the
job." According to her, Fink replied that if "she
continued to do the assigning" of work she would
have to become a member of the I Tnion.
Later that day, Gurski told Mable that the em-
ployees had complained to the Union about not
getting paid, and he intended to "find -out what it
was all about." He also told her that she "was not
to become a member of the Union." On February
10, while Gurski was driving Mable home after
work, he discussed "the union ... during the trip,"
according to Mable, and said he had a meeting ar-
ranged with Fink on the weekend.
Gurski met Fink at the union hall on February 11
and signed a contract with the Union covering all
carpetlaying employees. It is conceded that the
contract does not cover office employees, and it is
also clear that, during his meeting with Gurski, Fink
commented that the carpetlayers had complained
about Mable giving them orders, and asked if it
were intended that she continue to do so. I also
find, as Gurski testified, that he told Fink that
Mable would no longer make work assignments,
but would be confined to office matters.
On Monday morning, February 13, Freedman
told Mable that Gurski had met with the Union and
it had been decided that "they had to get rid of"
her. Freedman said he "felt bad" about the entire
matter, but he also intended to reduce her salary
from $125, to $90 a week and cease paying the
premiums on her hospitalization and life insurance.
Freedman- promised Mable time to seek another
position, but he added that "they are already under
pressure of the Union and had to dispose of" her.
IVlable reminded Freedman that she had not joined
the Union because she was loyal to the Company,
and she "begged him to fight this thing," but Freed-
man replied that-"he could not afford to fight it
because they could not afford to have their shop
closed down, and they had to, go along with it.
Mable responded that she would accept Freed-
man's decision if he paid her all he had agreed to
pay her when she was hired. Freedman said he
would think about it.
Mable did not leave Respondent Company's em-
ploy immediately, and, about a month later, she
had another talk with Freedman about her status.
Gurski was present during the conversation, and
Mable testified without contradiction that Freed-
man told her again that "they were under pressure
of the Union to get rid of her" and wanted to know
when she would resign. Once more she told him to
compensate her as he had agreed earlier, and'she
would leave, but not before. Mable also had one
other brief conversation with Union Representative
Fink before she left Carpet Man. I find, in accord
with her testimony, that, around the middle of
March, Fink telephoneed Gurski, and, when Mable
d There is also some evidence in Gurski's testimony , however, that an
employee, who he said works "on and off," takes telephone calls when he is
there and does some scheduling of work
INC. 371
answered the telephone, he commented, "Oh,
you're working now as secretary; you're getting $ 90
a week. Fine. -.lust so we know its according to our
terms."
Mable also testified without contradiction that
Gurski also told her on March 31, 1967, "that they
were under the pressure of the Union and that
[she] would have to leave." Nevertheless, on April
3, Mable reported for work, but this time Gurski
paid her off, telling her that "I can't have the pres-
sure of the Union. I just can't have you." Mable
telephoned Freedman at home and protested that
she had not been paid all that she claimed the
Company owed her. She asked him if he couldn't
afford to pay her, and he replied that "money is no
problem," but he felt that he owed her nothing.
Gilbert Kuhrt, a carpetlayer, was on layoff from
Carpet Man during part of February 1967, and, on
February 9, was sent to a job at the Sheraton Motor
Inn by the Union. Also working with him on this
job were other Carpet Man employees, including
Smullens , Carpet Man's shop steward, During a
coffeebreak conversation, Smullens told the em-
ployees that he had talked with Mable'"and from
now on the shop was going to be run according to
the Union contract." At that point, according to
Kuhrt, whose testimony I credit, Business
Representative Fink announced that he also had
talked, with Mable and informed her that since she
was "scheduling" the men she must become a
union member if she wanted to continue "schedul-
ing .. work." Kuhrt agreed on cross-examination
with the suggestion that Fink told the'group that
Mable, in order to be able to "tell the men what to
do" would have to join the Union, and that she
"couldn't be ordering Union men around unless she
was a Union member."
Edward Gurski, Respondent's president, actively
manages the business , and he stated that Mable
assisted him in operating his office. Some of her du-
ties up to the time of her discharge, he said, were to
"take calls, do the bookkeeping," talk with dealers,
and record the date on which carpets' were to be in-
stalled. He added that "she checked out the men
when they turned their time in," but he.did not in-
clude at this stage of his testimony Mable's activi-
ties concerning scheduling and assigning men to
jobs.
Gurski said that before Mable was' employed the
size of his business did not'require an office staff,
and, after she was hired his increased business did
not warrant the additional overhead incurred by
her employment. He said that because of increased
expenses he laid off four carpetlayers (mechanics)
and also told Freedman that there wasn't enough
business to justify having Mable employed in the of-
fice full time . Since Mable's dismissal , Gurski said,
he has done the office work himself, and Freedman
has done the billing and the bookkeeping.' Gurski
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that Respondent was not making a profit at the
time of the hearing, and he felt that he could not af-
ford additional office hel at the moment.
Gurski stated that Mable's salary was reduced
and her paid hospitalization eliminated by Respond-
ent Company on February 11 because he could
not afford to continue the payments, and he denied
that Fink or anyone else from" the Union requested
it. He also denied that Fink had ever requested
Mable's discharge.
Gurski signed the contract with the Union cover-
ing carpetlayers on February 11, 1967, and he said
while he, was at the Union's office executing the
agreement , Fink- inquire, "Now, what is Mrs.
Mable going to be?" He told Fink that because of
business conditions he was not sure that Mable
would continue to be employed, but he was an-
-ticipating more work, and, if he retained Mable, "it
will be a matter of working in the office, taking
care of the books; that it is my company, I would
run it." On cross-examination he added that Fink
told him that employees had complained about
Mable giving them their orders, and asked him if
this practice was going to continuue.3 This is what
prompted him to reply, "No, she isn't because its
my shop and I'-m running the shop." Fink men-
tioned Mable again when he telephoned Gurski on
another union matter about a month later. Gurski
said Fink said, "I see you have Stella working in the
office now. The men are all ,happy now. Lots of
luck." He denied, however, that Fink had ever
asked him to require Mable to join the Union or
that there had been strikes or threats of strikes by
the Union between February 11, 1967, the date he
signed the union contract, and March 31, 1967,
when Mable was terminated.
William Fink, Respondent Union's business
representative, testified that he talked with Mable
on the telephone on February 9, 1967, " in regard
to some of the complaints I had from the men
(about) her setting quotas on work and things, that
they came to see me ... about." Examples of com-
plaints were "she would dismiss them and she
would refuse to pay overtime and that sort of thing,
assignments ." Fink said he told Mable that if she
meant to "continue as -a superintendent" he would
"have to ask her to make application to join the
Union." He denied, however, that he insisted that
she come to his office to join or state that if she
failed to join he would, show her, by calling a strike,
that the Union was more powerful than the Com-
pany. He conceded that the Union's office was me-
tioned during the conversation, but he explained
this reference as just,', informing Mable that "if she
should want to come, down and find out any infor-
mation on the Union, she could come down when-
ever she wished."
Fink testified that on no occasion after February
9, 1967, did he ask Mable to join the Union or ask
anyone else to request her to join. He admitted that
he'mentioned Mable to Gurski at the contract sign-
ing, but he explained this - as being in the context
of "discussing some of the problems we had with"
Carpet Specialty Company, Respondent's predeces-
sor. He maintained that he did not at that time ask
Gurski to require Mable to join the Union because
Gurski told him that Mable would be "restricted to
the office" in the future, and so "There would be
no reason for her to belong to the Carpenters'
Union as an office worker."
Fink also said that to the best of his knowledge
he never discussed with Freedman. having Mable
join the Union, and he denied that he had ever
asked Respondent Company to dismiss her or
reduce her compensation. - -
C. Analysis, Additional Findings and Conclusions in_
Mable's case
1. The Company's responsibility
The Union was much preoccupied with and con-
cerned about Mable's office functions as they af-
fected the employees in the unit. Before Carpet
Man came into the picture, Mable had discharged a
carpetlayer at Carpet Specialty Company and, after
a visit from Fink, Freedman told her that she would
no longer have anything to do with hiring and fir-
ing. Yet, except for this diminution in functio..,
Mable's duties remained as they were in the past, as
she testified without contradiction. These duties
and functions, it is apparent from her testimony and
Fink's, included scheduling of installations and as-
signing carpetlayers to specific jobs. It was in this
area that friction between her and the Union
developed, for the record shows that the employees
and the Union were unhappy and complained about
her actions. Fink, for example, in his Februarry 9,
1967, telephone conversation with Mable, admitted
describing her as acting like a "superintendent"
and said he had complaints from the men about
many of Mable's actions, including "assignments."
Smullens, the Carpet Man job steward, according
to Kuhrt's undenied and credible testimony, said he
had talked with Mable and "from now on the shop
was going to be run according to the Union con-
tract." At.the same time, Fink said that he too had
talked with Mable and complained about her
"scheduling" work and giving orders to union men
when she was not a member of the Union. It is clear
that Mable occupied a position, or the Union
thought she did at least, more important than mere-
ly that of a bookkeeper or a telephone answerer,
' At another point in the record Gurski described Fink 's inquiry in this
fashion. "What about Stella' Is she going to run the workroom and give the
men orders?"
CARPET MAN, INC. 373
and this made- the men, and consequently the
Union, "unhappy. "4
' Respondent Employer knew that the Union was
"unhappy" about Mable and told her so. It is also
clear that Respondent attributed its decision to
eliminate Mable to this Union discontent or "pres-
sure," as Respondent's agents described it. Within a
few days of Fink's telephone call to Mable in which
he admittedly mentioned and criticized her activi-
ties in the employee area, and on the first working
day after Respondent signed a contract with the
Union and was questioned by Fink about Mable's
functions, Freedman told Mable that Respondent
Company was getting "pressure" from the Union
and had to "dispose" of her. About -a month later,
Freedman again asked for Mable's resignation, re-
peating that the Company was "under pressure of
the Union to get rid of" her. Gurski twice asked
Mable to quit her employment, explaining his
request by demands the Union was making on him.
Although Gurski denied that the Union had
requested Mable's discharge, all of Mable's
testimony concerning his and Freedman's state-
ments about the reasons for Respondent Em-
ployer's actions in her regard stands uncon-
tradicted, and is potent evidence of Respondent's
motivation.
Although Freedman and Gurski did not con-
tradict Mable in regard to their references to the
Union's pressure on them to get rid of her, Gurski
testified that he discharged her because the Com-
pany's business did not justify her retention. In my
opinion, and I find, Respondent Company did have
some economic problems and this may very well
have played some part in its decision to reduce
Mable's salary, eliminate her paid hospitalization
and other insurance, and abolish her job and spread
its functions among others. Respondent's predeces-
sor, Carpet Specialty Company, was a tax
delinquent, and Internal Revenue was apparently
involved in freezing its accounts receivable and new
business. It also appears from Fink's testimony that
employees were not being paid on time, and the
Company was behind in its payments to the Union's
health and welfare plan. Gurski (Carpet Man) took
over Carpet Specialty Company's accounts, but
Gurski also employed Mable who had made her
employment agreement with Freedman some time
before. Gurski said the business was not presently
making a profit, and, although Mable, who had
knowledge of Respondent's affairs, said that the
early, months of the year are normally slow months,
and although it also appears that, financially,
Respondent did better in March than it did in
February, it is also a fact that Respondent laid off
carpetlayers and an office clerical after it took over
Carpet Specialty Company's business.
I find that Respondent's motives in Mable's case
were mixed, that they were partly economic and
partly discriminatory. In my opinion, the economic
considerations were particularly overriding in- re-
gard to the reduction in salary and elimination of
hospitalization and insurance payments. In any
case, there is no evidence that-the Union suggested,
and it seems to me that it would have been point-
less for it to have suggested this course of conduct;
and I think it equally unrealistic that Respondent
Company would have utilized such a devious
method to make Mable quit when it was otherwise
so candid about why it was trying to get rid of her. I
will, therefore, recommend dismissal of the allega-
tion of the complaint that Respondent Employer's
conduct was illegal in this regard, as not being
established by a preponderance of the evidence.
On the other hand, I find on the basis of the
testimony of Mable, Kuhrt, Gurski, and so much of
Fink, as I have already referred to and credited,
and particularly on the basis of the uncontradicted
admissions of motive attributed by Mable to Freed-
man and Gurski, that Respondent Company was
substantially motivated in discharging Mable by the
Union's displeasure with her practice of assigning
work to union men while not a member of the
Union, and by a desire to placate the Union and re-
lieve itself of the "pressure" the Union was exerting
in its direction. Mable, as an office worker, was not
required to be a member of the Union, and there is
nothing in the record which would, in any case, jus-
tify the Union in insisting that she not perform her
regular office functions, including dispatching of
employees to jobs as she had done in the past, un-
less she joined the Union. By discharging Mable in
the circumstances described, Respondent Employer
violated Section 8(a)(3) and (1) of the Act.'
2. The Union 's responsibility for Mable's discharge
Although I " have found that Respondent Em-
ployer, through Gurski and Freedman, told Mable
that the Union wanted her to join the Union and
was pressuring the Company to get rid of her, ad-
missions of motive as clear as these are not found in
the remarks of Fink or any other union representa-
tive, and the case against the Union, therefore, is
not as strong as that against Respondent Employer.
In my opinion, however, and I find, the record does
support a finding that Business Representative Fink
caused the Company to discharge Mable by "pres-
suring," suggesting, or insisting that it make Mable
Whether Mable arrogated these functions or had them delegated to her
is not crystal clear in the record. Freedman told her she had no more
authority in the employment area in December 1966, but she said she con-
tinued to telephone men and tell them what jobs to go to as she had before.
Gurski, on the other hand, seemed to down play her functions in his
testimony,- suggesting that her contacts with the men were restricted to
merely checking them when they turned in their time worked , but he con-
ceded that he had complaints from Fink about Mable giving the carpet-
layers orders
'Radio Officers ' Union [A . Bull Steamship Company] v. N.L R.B., 347
U.S. 17, 42.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join the Union or relieve her from any responsibili-
ty for acting for the Company in the work assign-
ment area . Certain circumstances support this con-
clusion without reference to what Respo dent
Company told Mable about the Union's deman s.s
First of all, Mable was an impressively credible
witness , and I credit her testimony that Fink, in his
February 9, 1967, telephone call, after objecting to
her calling carpetlayers and telling them where to
report for work, told her that if she did not join the
Union she would no longer be able to perform that
assignment. I also find that when Mable argued that
she was not a foreman but an office employee who
did, not have to join the Union and could see no
benefit to be derived from union membership, Fink
threatened to call a strike, which would result in
the loss of her employment, if she did not come to
the union office and apply for membership. It is
clear from the testimony, including Fink's, that the
Union was seriously interested in Mable's activities
in the employee field. Fink said he had received
complaints about her from the men regarding "as-
signments," and he conceded that during his con-
versation with her he mentioned something about
her joining the Union and visiting the union office
as well . I discredit his version, which I thought was
softened and reduced in intensity to make it more
acceptable, that he did not tell Mable to come to
his office to join the Union but told her rather that
"if she should want to come down and find out any
information on the Union, she could come down
whenever she wished."
Mable's account of her conversation with Fink
finds corroboration in Kuhrt's testimony that Fink,
on the same or the, day after Mable said he talked
with her, announced to a group of union carpet-
Iayers that he had told Mable that she must become
a union member if she intended to continue'
scheduling work.
When Gurski met with Fink to sign a contract
with'the Union, Fink wanted to know what Mable's
duties were going to be. On the following Monday,
Respondent Employer began its efforts to rid itself
of Mable. Regardless of what Freedman'or Gurski
said about their reasons for this action, the timing
itself in relation to Fink's telephone call to Mable,
the signing of a union agreement , and his inquiry
about Mable's future, is some evidence that the
pressure that the Respondent Employer was putting
on Mable was a direct result of the "pressure" that
Fink was putting on it . Respondent Union did not
lose interest in Mable as time went on. In March,
Fink noted when talking to her that he understood
she was now restricted to the office, and had had
her pay cut. But Mable's duties had not changed,
for she was still relaying orders to the men, and
' Mable's testimony about what Freedman and Gurski told her motivated
them in her case was admitted for the limited purpose of establishing the
Company's motive, not as evidence of the Union 's attempts to cause her
Freedman and Gurski were continuing their efforts
to make her quit. I cannot believe that the Union,
under these circumstances , lost interest in Mable's
functions and her status ,' and I conclude that it
maintained its pressure on Respondent - Company
either to fire her or get her to join the Union.
Although there is no direct evidence of what Fink
said to Freedman or Gurski , I find that some
further representations were made to them about
Mable 's functions -and lack of union membership
which caused Respondent Employer to finally suc-
cumb to union "pressure" and terminate her. By
causing - Mable 's discharge in the circumstances
described , Respondent Union - violated Section
8(b)(I)(A) and ( 2) of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in sec-
tion III, above, occurring in connection with the
operations of the Respondent Company and other
employers set forth in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow
thereof,
V. THE REMEDY
Having found that the Respondents engaged -in
unfair labor practices, it will be recommended that
they cease and desist therefrom and take certain af-
firmative action in order to effectuate the policies
of the Act.
It will be` recommended that the Respondent
Company offer Stella P. Mable immediate and full
reinstatement to her former or substantially
equivalent position, without prejudice to her
seniority or other rights and privileges; and that
Respondent Union notify Respondent Company, in
writing, and furnish a copy to Mable, that it has
withdrawn its objections to the employment of
Mable- by the Respondent Company and requests
the Respondent Company to reinstate her.
Since it has been found that the Respondent
Union and Respondent Company are both responsi-
ble for the discrimination suffered by Mable, it will
be recommended that they jointly and severally
make her whole for any loss of pay she may have
suffered by reason of the discrimination against her,
by payment to her of a sum of money equal to that
which she normally would have earned as wages
from March 31, 1967, to the date of the Respond-
ent Company's offer of reinstatement, less her net
discharge. See Local 776, IATSE (Film Editors), 124 NLRB 842, 843; J.
Zzak & Sons. Inc., 152 NLRB 380, 383. -
'Radio Officers' Union v. N.L R B , 347 U.S. 17, 42; Armour Creameries,
96 NLRB 570, 579; The Englander Company, Inc, 108 NLRB 38.
CARPET MAN INC.
earnings during said period and in a manner con-
sistent with Board policy set out in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heat-
ing Co., 138 NLRB 716, provided, however, that
the Respondent Union's liability shall be tolled 5
days after it serves written notice on Respondent
Company of its withdrawal of objections to Mable's
employment and its request for her 'reinstatement.
It is also recommended that the Company make
available to the Board, upon request, payroll and
other records to facilitate computation of the
amount of backpay due.
On the basis of the foregoing findings, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
375
within the meaning of Section 2(5) of the Act,
3. By discriminating in regard to the hire and
tenure of employment of Stella P. Mable, thereby
encouraging membership in Respondent Union,
Respondent Company has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. By causing the Respondent Company to dis-
criminate against Mable in violation of Section
8(a)(3) of the Act, the Union has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
6. Respondent Employer did not reduce the
wages and cancel the employer -paid hospitalization
benefits of Stella P. Mable in violation of the Act,
1. Carpet Man , Inc., is an employer engaged in as alleged in the complaint.
commerce within the meaning of the Act. [Recommended Order omitted from publica-
2. Respondent Union is a labor organization ' tion.]