Dependable Lists, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1979

239 N.L.R.B. 1304 (N.L.R.B. 1979)

I)t ('ISIONS ()F NA I IONAI. I.ABOR RE I.AIIONS BOARD[ I)ependable lists, Inc. and District 65, I)istribultie Workers of America. (':tses 2 ('A 1495() and 2 (A 15158 January 15, 1979 DEL(CISI()N ANI) ()ORD)R B, ('IIMIRNM \N I :\NNIN( AN\1) M:Nhlit RS P. 'iIl I) 'ANI) ' RI I S[)\l I On July 14. 1978, Administrative Lawv, Judge ticr- bert Silberman issued the attached Decision in this proceeding. 1 hereafter, the (General Counsel, the Charging Party Union, and the Respondent filed ex- ceptions, cross-exceptions, and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administra- tive Law Judge, as modified herein, and to adopt his recommended Order, as modified. Contrary to the Administrative Law Judge. we find that Respondent violated Section 8(a)(1) of the Act by issuing a written warning to Steven Rabino- witz and by interrogating Edward Gross. Rabinowitz was the leading organizer for the Union at Respondent's office. He was the employee who initially contacted District 65 and in December 1976 became the first employee to sign an authoriza- tion card. Thereafter, Rabinowitz solicited a substan- tial number of authorization cards on behalf of the Union. He was also an employee representative at the Board conference called in connection with the representation petition and a member of the employ- ee reception committee when union representatives visited Respondent's premises to demand recogni- tion. During a speech delivered by Respondent's vice president, Phillip Boehm, on May 6, 1977, Rabino- witz requested that the Union be given equal time to respond to Boehm's statements. When the meeting concluded, Respondent's supervisor, Jay West, told Rabinowitz, "You just crucified yourself," a state- ment which the Administrative Law Judge properly The Respondent and General Counsel have excepted to certain credibil- ity findings made by the Administrative Ltaw Judge It is the Board's elab - lished policy not to overrule an Administrative L aw Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Sltandard D)ri Will/ Products. Inc., 91 NL.RB 544 (1950), enfd. 188 F.2d 362 (id C'r 1951; We have carefully examined the record and find no basis for reversing his find- ings. found to he an unla-1 ful threat in violation of Section X(a )( I 1. F:ive da'ss latel Rabinowitz received a writien warnin, threatening discharge if he continued to re- port late for work. The Administrative Law Judge rejected the General Counsel's contention that the singling out of Rabinowitz, a leading union adherent. for disciplinary action, after having condoned the frequent lateness of Rabhinowitz and many other em- ployees for a long time prior thereto, violated Section 8(a)( I ) of the Act. fHe found that Rabinowitz had not been treated any differently in this regard from Re- spondent's other employees, with the exception of Ida Pesce, who had an ailing mother. He then con- cluded that, since Rabinowitz admittedly had a poor record for punctuality and had been admonished previously concerning his habitual tardiness, the General Counsel had not proved that the warning was issued in retaliation for his union activity and that Respondent. therefore, did not violate Section 8(a)( I). We disagree with this conclusion, since the evidence with respect to the timing and unprecedent- ed nature of the reprimand fully supports the Gener- al Counsel's allegation. 2 It is undisputed that Rabinowitz was habitually late for work. The record reveals, however, that a substantial number of Respondent's employees equaled or surpassed Rabinowitz' tardiness. In the 13-week period preceding the warning, four employ- ees, including Ida Pesce, were late for work more often than Rabinowitz, and two others had compara- ble tardiness records. In addition, two other employ- ees were late for work on a regular basis. Despite these numerous instances of tardiness on the part of Respondent's staff, no employee had ever been given a written reprimand for such conduct before Rabi- nowitz received one. Thus, Rabinowitz, the leading union adherent, re- ceived an unprecedented written reprimand for con- duct which had for a long time been condoned by Respondent. In addition, this obviously disparate treatment occurred shortly after Rabinowitz ex- changed words with Respondent's vice president in the presence of the other employees and was threat- ened by a supervisor. Under these circumstances, the clear inference is that the warning was given in retali- ation for his union activity, and the coercive message contained in this reprimand could not have been lost on Rabinowitz and Respondent's other employees. Accordingly, we find that this conduct tended to in- , Since in his complaint and at the hearing the General (ounsel alleged only that this warning violates Sec 8(a)( 1). we do not address the issue of whether the evidence presented would be sufficient to support a finding that Rabinowitz was the subject of unlawful discrimination in violation of Sec. 8(a )(3) !304 DEPENDABLE LISTS, INC terfere with the exercise of employee rights in viola- tion of Section 8(a)(1) of the Act. We also conclude, contrary to the Administrative Law Judge, that Respondent violated Section 8(a)( 1) when Vice President Boehm and Supervisor Else Harraghy interrogated Edward Gross. Both Boehm and Harraghy on separate occasions asked Gross if he knew which employees were leading the organiza- tional campaign. When Gross told them he did not, they asked him to find out and report back to them. The Administrative Law Judge erred in concluding that because both Boehm and Harraghy considered Gross to be a supervisor and Gross himself under- stood that these discussions were between manage- ment personnel 4 these conversations did not tend to restrain or coerce employees in violation of Section 8(a)(l). Under certain circumstances an employer may lawfully question an employee concerning union ac- tivity. In Pillows of California,5 an employer in good faith believed that a certain employee was a supervis- or. The employer's attorney questioned this employ- ee concerning her duties and whether she had solic- ited union authorization cards. He prefaced these questions with an explanation that the purpose of the interview was to determine whether she was a super- visor and, if so, whether her activities on behalf of the union provided a basis for seeking dismissal of the union's certification petition. The Board held that, in view of the prefatory remarks and the good- faith belief that she was a supervisor, the interroga- tion did not violate Section 8(a)(1).6 The situation presented here, however, is more akin to that in Campbell Soup Company,7 in which the employer, in addition to questioning an employee whom it believed to be a supervisor concerning his solicitation of authorization cards, interrogated him with respect to his knowledge of card solicitation by other employees. In finding this interrogation to have violated Section 8(a)(1), the Board distinguished those cases in which the questioning involves the al- leged supervisor's own activities from situations such as the one presented here, when the interrogation ex- tends to the protected activities of others. In the for- mer, the coercive effect of asking a purported super- visor about his own activities may be offset by 3See, e.g.. Guerdon Industries, Inc. Armor Mobile IHoIies Dzwon, 218 NLRB 658, 661. fn. 23 (11975). 4 The uncontradicted testimony disputes the implicatiln of this finding: namely. that Gross felt himself to be a member of management and did not feel coerced by these questions. On the contrar). Gross lied to both Boehn and Harraghy concerning his knowledge of the organizatonal drive and was himself a supporter of the Union. In any event. Gross' subjecllve vlev of the conversations is not critical to our determination here. 207 NLRB 369 (1973). 6 In addition to these factors. implicit in that decision was the conslder ation that the employer clearly had a legitimate purpose for obtaining the information requested. 7225 NLRB 222 (1976). appropriate prefatory remarks concerning the pur- pose of the interrogation and "may be balanced by the employer's right to protect itself from union ac- tivity by its supervisors." 8 There exists no justifica- tion, however, for questions by the employer aimed at determining which of its employees is engaged in protected activity. "Such questions convey to the purported supervisor the message that, even if he is an employee, the employer has an improper interest in his activities. There is an implied threat of possible retaliation in such interrogation," and thus employ- ees are coerced in the exercise of their Section 7 rights.9 The interrogation of Gross by Boehm and Harra- ghy included questions concerning the names of em- ployees engaged in union activity. Since Respondent had no legitimate purpose in requesting this informa- tion, the interrogation of Gross inherently conveyed a threat of possible retaliation against employees en- gaged in union activity and consequently violates Section 8(a)(1) of the Act.t° Despite the additional unfair labor practices found above, we do not believe a bargaining order is warranted in this case, since Respondent's unfair la- bor practices were not of so pervasive a character that use of the Board's traditional remedies cannot insure a fair election." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended. the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge. as modified below, and hereby orders that the Respondent. De- pendable lists, Inc.. New York, New York. its offi- cers. agents. successors. and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Insert the following as paragraphs I(c) and I(d} and reletter the subsequent paragraphs accordingly: "(c) Coercively interrogating employees concern- ing their union activity. "(d) Issuing written warnings for absenteeism in retaliation for employees' exercise of Section 7 rights." 2. Insert the following as paragraph 2(a) and relet- ter the subsequent paragraphs accordingly: "(a) Rescind its written warning of May 11, 1977. /d at 220 '~ lbl " See Re vH Dwpmihle. Dilwsion oif DIIJ Indurrres. Inc. 20)1 NI.RB 727 1973)1. enfd 49a4 F.2d 588 (5th ('ir 1974) We need not resolve the conflihc in ihe lestimion co.nerning the alleged further interrogation of Gross b, Susan Kraft. since a finding that Respondent violated Sec 8(al I) In this regard would nmerels he cumulative of Ihe violations already found with respec Ito ntcrrr1ga1t1ln oif this emplo.iee See lfwir, nteprprlrt Ic n . 10 N i RB 403 (1974) 1305 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued to Steven Rabinowitz and expunge from its records all memoranda thereof or reference thereto." 3. Substitute the attached notice for that of the Administrative Law Judge. Steven Rabinowitz and expunge from our rec- ords all memoranda thereof or reference thereto. DEPENDABLE LisTS. INC DECISION APPENDIX STATEMENT OF THE CASE NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELA TIONS BOARD An Agency of the United States Government After a hearing in which all parties were represented and afforded the opportunity to present evidence in support of their respective positions, it has been found that we have violated the National Labor Re- lations Act in certain respects, and we have been or- dered to post this notice and to carry out its terms. The National Labor Relations Act gives you, as employees, certain rights, including the rights: To engage in self-organization To form, join, or help a union To bargain collectively through a represen- tative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. Accordingly, we give you these assurances: WE WILL NOT make direct or veiled threats that we will engage in any reprisals against you be- cause you assist or support District 65, Distribu- tive Workers of America, or any other labor or- ganization. WE WILL NOT threaten you that if you select District 65, Distributive Workers of America, or any other labor organization, as your collective- bargaining representative we will withdraw ben- efits enjoyed by our employees or will engage in other reprisals against our employees. WE WILL. NOT coercively interrogate you con- cerning your union activity. WE WILL NOT issue written warnings for absen- teeism in retaliation for our employees' exercise of their Section 7 rights. WE WILL NOT direct any employee to remove a union button or other insignia indicating sup- port for District 65, Distributive Workers of America, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL rescind the written warning issued to HERBERT SILBERMAN. Administrative Law Judge: Upon a charge and an amended charge of unfair labor practices filed in Case 2-CA-14950 on June 3 and 6, 1977, re- spectively, by District 65, Distributive Workers of Amer- ica, herein called the Union, and upon a charge filed by the Union in Case 2-CA-15158 on September 22, 1977, an order consolidating the above-numbered cases and an amended consolidated complaint therein were issued on November 18, 1977. The amended consolidated complaint, which was further amended at the hearing, alleges that Re- spondent, Dependable Lists, Inc., herein sometimes re- ferred to as the Employer or the Company, has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. In substance, the complaint as amended alleges that Respondent unlawfully discharged its employee Edward Gross on June 1. 1977, and employees Shelly Feinerman and Larry Rosenberg on June 6, 1977, because they joined and assisted the Union and engaged in other protected concerted activities; that on June 6, 1977, Respondent's employees went on a strike which continued until August 19, 1977; that the strike was caused and pro- longed by Respondent's unfair labor practices; that on May 9 and 10, 1977, the Union requested the Company to recognize and to bargain with it as the collective-bargain- ing representative of a described unit of employees and since May 10, 1977, Respondent has refused so to do; that by reason of the foregoing and other conduct set forth in the complaint Respondent also has interfered with, re- strained, and coerced employees in the exercise of the nghts guaranteed in Section 7 of the Act; and that, on August 10, 1977, Respondent unlawfully refused to rein- state certain named employees who had made uncondi- tional offers to return to work. 2 Respondent duly filed an answer to the amended consolidated complaint denying that it has engaged in the alleged unfair labor practices and In his opening statement at the hearing. General Counsel asserted that 'Itlhe strike is an unfair labor practice strike.. precipitated by the firings of three individuals. Edward Gross, on June 1. and Shelly Feinerman and Larrs Rosenberg, who were both fired on June 6th. the da) that the strike began. We will introduce evidence to show the employees discussed those firings as the mrltolating factor for their strike." The evidence supports Gen- eral Counsel's assertion that the strike was called to protest the three dis- charges As I find that none of the three discharges was unlawful, that Respondent has not unlawfully refused to bargain with the Union. and that none of the other alleged unfair labor practices served to prolong the strike, I find. contrars to the complaint, that the strike is not an unfair labor practice strike 2 The allegation that Respondent unlawfully refused to reinstate strikers is premised on the assumption that the strike is an unfair labor practice strike As I find that General ( ounsel has not proved that the strike was caused or prolonged by Respondent's alleged unfair labor practices. I fur- ther find that Respondent has not violated the Act by refusing to reinstate the striking employsees who made unconlditional offers to return to work. 1306 DEPENDABLE LISTS, INC. asserting an affirmative defense. A hearing in these pro- ceedings was held in New York, New York, on various days between December 5, 1977, and March 1. 1978. Thereafter, briefs were filed with the Administrative Law Judge on behalf of General Counsel and Respondent. Upon the entire record in the case, and from my obser- vation of the witnesses and their demeanor. I make the following: FINDINGS OF FA(CT I. THE BUSINESS OF RESPONDENT Respondent, a New York corporation, is engaged in pro- viding mailing lists and related services to commercial en- terprises. Respondent's principal office and place of busi- ness is at 257 Park Avenue South, New York, New York, and it also maintains branch offices in Chicago, Illinois, and Washington, D.C. During the year preceding the is- suance of the complaint, Respondent's revenue from the conduct of its business exceeded $500,000, and it per- formed services valued in excess of $50,000 for businesses located in States other than the State of New York. The complaint alleges, Respondent admits, and I find that Re- spondent is an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The hearing in these proceedings occupied 14 hearing days, the transcript of the testimony is lengthy, and, in addition, more than 60 exhibits were introduced into evi- dence. I have read the transcript of the record in its en- tirety and all of the exhibits. My findings herein are based on the entire transcript of the record and all the exhibits in the case after having given careful consideration to the conflicts of testimony and to the extensive briefs filed with me by counsel. These proceedings arise from an effort on the part of the Union to organize the employees at the Company's New York office. The organizational drive began in December 1976, but Respondent did not learn of it until sometime in April 1977. The Company is opposed to the organization of its employees. The theory of General Counsel is that in seeking to counter the Union's campaign the Company en- gaged in the alleged unfair labor practices described in the complaint. The officials of the Company who were involved in the events embraced by the complaint are: Jack Oldstein, pres- ident; Phillip Boehm, executive vice president; Ted Malek, vice president; Robert Perez, vice president and regional manager of the Washington, D.C., office: Else Harrathy, manager of computer operations; Melvin Karsh, general manager or office manager: and Jay West, lists manage- ment administrator. B. Superisory Issues During the times material to these proceedings, Betty Weiss, who held the position of regional sales supervisor, was a supervisor within the meaning of the Act. 3 There is an issue as to whether June Hampson (Sengupta), who held the position of lists management supervisor, which was comparable in responsibility and salary with the position held by Betty Weiss, was a supervisor within the meaning of the Act 4 and whether Edward Gross, who initially was hired as the assistant office manager, an acknowledged su- pervisory position, but who later was transferred to the position of senior administrative assistant, was a supervisor during the times critical to this case.5 Edward Gross was hired in the fall of 1975 as assistant to the office manager, which is a supervisory position. His initial salary was $10,500 per year. In mid-1976. his salary was increased to $1 1,000, and a few months later, in Octo- ber or November 1976, his salary was further increased to $12,000 per year. Despite these increases the Company considered Gross' performance unsatisfactory, and in De- cember 1976 or January 1977, he was informed by Boehm in the presence of Harraghy that he was being moved to an administrative assistant position "for a short time." Ac- cording to Gross. he was further informed that he would be given other positions and that "the reason [he] was being moved was because Ihis] work as an office manager was not up to par." 6 In the position to which Gross was transferred, he worked for Account Executive Ted Malek. Unlike other account executives, Malek had more than one administra- tive assistant to process his orders. In addition to Gross, there were Larry Rosenberg, who worked full time, and Merrill Silverstein, who worked part time. The Company considered that the change in Gross' posi- tion was a lateral transfer and that he continued as a super- Betts Weis as a witness for General Counsel Initiall, (ieneral Coun- sel was of the ilew that she was not a supervisor and therefore adduced teslimons purporting to prove that the Company had interrogated her In regard Ito her union actviilies and otherwise had interfered with her organ- zanonal rights Hloveer. after Weiss was examined at length regarding her duties and responslbilitles General Counsel at the hearing conceded that \'reiss was a suner"isor within the meaning iof the Act. Weiss supported the L nion in its organizational effort. joined the strike which began on June 6. 1977. and did not return to work for Ihe (Compans thereafter 4June lampe,on executed a union aulhonzalln card on Mas 4. 1977. on which she ease her position as hsts management superslsor at the salar) of S12 I,)) Belt', elss also executed a union authorization card on the same dax and listed her position as regional sales supervlisor at the salars of $12 .6X) the administratlve assistants process orders obtained by accountant ex- ecutises. he ( ompans's practice is to assign one or more administrative assistants to assist each accountant executive. Philthp Boehm testified that Gjross was transferred out of the positl on of asslstant to office nmanager on September 29. 1976. and that at the tinme of the transfer he s as teold that despite the fact that he had not been perform- mI satisfactoril, as assistant to the office manager. "we felt that he was a good person and we w,ould like to hase him star with us." and that with more trainlng po s bl he could return to his former position or to another position Further according to Boehmr. "[ )e told him that we were not go in .o con,,ider this ansthing hut a lateral move when he learned more. If there iais some other opportunts, we would move him there if he xwanted it " 1307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visor after his transfer. Thus, unlike other administrative assistants, Gross was not required to punch a timecard, was paid considerably more than the other administrative assistants, 7 was given the same bonus as the other supervis- ors for Memorial Day 1977, which was twice the amount that was given to full-time administrative assistants, and had perquisites and benefits which other administrative as- sistants did not have, plus additional responsibilities.8 While such factors may set Gross apart from the other administrative assistants, they do not bear upon the criteria for determining whether he is a supervisor within the meaning of the Act. The statute's definition is based only on the authority that the individual has over other employ- ees. As senior administrative assistant, Gross had no au- thority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to adjust their grievances. Respondent argues that Gross assigned work to and directed the work of both Rosenberg and Silverstein. However, in this regard Gross' functions were of a routine nature, such as a more senior or more knowledgeable employee would exercise in relation to his juniors, and did not require the use of independent judg- ment. Contrary to Respondent, I find that, although the Company in good faith considered Gross to have been a supervisor while he held the position of senior administra- tive assistant, in fact he was not a supervisor within the definition of the Act. At the times in issue, June Hampson held the position of lists management supervisor. There is no question that company management considered her to be a supervisor. In April 1977, when Hampson complained to Boehm that she was not receiving sufficient recognition, he specifically reaffirmed to her that she was the supervisor in her depart- ment. Furthermore, when the bonus for Memorial Day 1977 was distributed, Hampson was given the same bonus as the other supervisors, which was twice the amount given to full-time employees. Extensive testimony was adduced, much of which is in conflict, concerning Hampson's au- thority over other employees in the lists management de- partment. Upon considering such testimony, I find that Hampson was responsible for overseeing the work of the administrative assistants in her department, training new employees, assigning the employees work, and making rec- ommendations to management regarding the evaluation and possible transfer of employees. I find that, during the times material hereto, Hampson was a supervisor within the meaning of the Act. C. The Organizational Drive In December 1976, employee Steven Rabinowitz con- tacted the Union and, at a meeting with its representatives, signed an authorization card and thereafter actively assist- ed the Union in its campaign to organize the Company's New York employees. Seven more authorization cards were secured by the Union in the months of January, Feb- 'Whereas Gross earned $12.000 per year, Merrill Silversteiln was paid $4.25 per hour and Rosenberg was paid $150 per week Gross was not paid for overtime hours, unlike other full-lime adminls- trative assistants, ruary, and March. The campaign thereafter accelerated and 8 additional cards were obtained in April and 10 more cards during the first 11 I days of May. Sometime in April, 9 company management learned of the Union's organization drive and made efforts to dissuade employees from sup- porting the Union. On Monday, May 9, Bernard Olff, an organizer, and William Tate, vice president of the Union, appeared at the Company's offices. They informed the receptionist that they wished to speak with either Mr. Boehm or Mr. Old- stein. Neither was in, and Office Manager Melvin Karsh spoke to them. Olff stated that the Union represented a majority of the Company's employees and tried to show Karsh a stack of authorization cards. Karsh informed them that he was not an officer of the Company, that he had no authority to accept the cards or to discuss recognition with them, and that they should make an appointment to speak with either Boehm or Oldstein. Later the same day, the Union filed a petition for certification of representative with the Board, which was docketed as Case 2-RC-17658. The next day, May 10, two union representatives, Ber- nard Olff and Ralph Pileggi, again went to the Company's offices without an appointment. They were informed by the receptionist that Boehm was unable to see them and that they should communicate with the Company's attor- ney. They then asked the receptionist to call Steven Rabi- nowitz. The latter, after being informed that the union rep- resentatives were present, opened a door between the reception room and the Company's inner offices and, ac- cording to Bernard Olff, "[W]e went in, Ralph [Pileggi] and I, and in pursuit of Mr. Boehm or Oldstein." As the union representatives were walking through the Company's of- fices, they were met by Melvin Karsh. He asked if they had called for an appointment, and Olff answered that they had not. Karsh informed them that they were trespassing and requested them to leave. In a loud voice, Olff shouted at Karsh that he did not want to speak with Karsh because Karsh was not an officer of the Company and he wanted to speak with Boehm. Olff also said that the Union repre- sented a majority of the employees and that some of them had not received a raise in years. As this interchange was taking place, a number of employees began to gather and to mill about. Olff and Pileggi continued advancing until they reached Boehm's office. Boehm came out of his office, and one of the union representatives said that they repre- sented a majority of the employees and they wanted to talk with him. Boehm said that he had no time and they should call the Company's attorneys for an appointment. Boehm asked the union representatives to leave and informed them that they were trespassing on company premises. Pi- leggi continued shouting that the Company's treatment of its employees had not been good, that some employees had not received a raise in 2 years, and that the Union repre- sented a majority of the employees. Boehm again asked the union representatives to leave, told them he was going to telephone the police, and shouted to one of the employees in the area to call the police. As the commotion was not abating and in order that the employees could get back to work, Boehm invited the union representatives into his of- Unless Iotherwise indicated. all dates refer to the year 1977 1308 DEPENDABI.E [ISTS. INC. fice. At first they refused.' 0 Boehm then went into his office and telephoned the police. Finall, Pileggi and Olff came into his office. Olff placed a business card on the desk and stated that the Union represented a majority of the em- ployees. Boehm responded that they should talk with his attorney and gave them the attorney's business card. The union representatives placed a recognition agreement on Boehm's desk and left before the police arrived. Later on the same day, May 10. Phillip Boehm. executive vice president of the Company. wrote to Bernard Olff to inform him that the Company doubted the Union's claim to represent the majority of its employees and that a secret- ballot election would be the best way to determine whether the Union had majority support. With the letter Boehm returned the recognition agreement which the union repre- sentatives had left in his office. On May 15, there was a conference called by the Board in connection with the representation petition filed by the Union, at which employees Steven Rabinowitz, Shelly Feinerman, and Edward Gross were present with the repre- sentatives of the Union. Also, on May 6. at a union meet- ing, a reception committee was designated to meet the union representatives when they appeared at the Com- pany's premises to demand recognition. On this committee were Rabinowitz, Feinerman, and James Kafadar.m D. Restraint, Coercion, and Interference General Counsel contends that threats to close the Com- pany's business were made by Executive Vice President Boehmn and President Oldstein during speeches to the as- sembled employees in the late afternoon on Friday, May 6. Boehm was the principal speaker. According to General Counsel, "Boehm spoke of the benefits which Respondent bestowed on its employees, of the militant nature of Dis- trict 65, and toward the conclusion of his remarks, Boehm said that Respondent might even have to close down." Fur- ther, "[a]fter Boehm had concluded, Oldstein, Respon- dent's president, also spoke to the assembled employees. Oldstein concluded his remarks by saying: 'Don't be led like sheep to the slaughter.'" Boehm spoke to the employees from an outline which he had prepared after consultation with the Company's attor- neys. There is no dispute as to what Boehm said in this speech except with respect to the alleged threat that the Company would close its business if the Union were desig- nated as the employees' representative. Boehm described at length the content of his speech. The portions of his testimony which are pertinent to the alleged threat to close the plant are as follows: I . . . told them . . . I did not feel that our type of work would lend itself favorably towards union activi- ty, particularly that union which, to the best of my 0 Bernard Olff testified that "since we were In the presence of all the other employees we felt that anything that had to he said could he said in their presence." Union Representative Bernard Olff. a witness for General Counsel who testified concerning the composition of this committee. also testifiei thai possibly Edward Gross was on the committee. but he was uncertain of thai fact. knowledge. they did rot enjoy a good reputation be- cause of their militancy. This union wai known to be strike happy . . . and they had been responsible for a number of businesses leaving the city because of the contracts that they had. I think I also mentioned that they had forced a num- ber of places to close down, that no matter what, if they need a union, that was not the union to belong to. * * * I had mentioned that if the union called a strike they would have to go out on strike and that if the) did go on strike that we were going to continue to operate for the benefit of our clients and no matter what hap- pened. and I think I compared it to the problem we had a few mor.ths or a year before where the phone exchange burned down and we were operating by ra- dio for a couple of months and working around the clock trying to take care of our customers. I said there's no need to strike. I said we didn't shut down at that time and we're not going to shut down for any reason, that we're going to keep going because it was the customers who paid our salaries and they were entitled to service. [I]f they did go on strike they would not get any unem- ployment benefits for seven weeks under the law. Dependable didn't feel there was any need for a union to get what they thought might be an improvement, that Dependable was against having a union in the place becuase of the kind of work we do. Then, in response to questions from Respondent's coun- sel, Boehm testified: Q. You testified earlier, Mr. Boehm, that you had mentioned that the union had caused many businesses to leave New York. Do you recall if you said anything about Dependable leaving New York? A. I think I mentioned before I said that, you know, we're not going to close down, we're not going to leave, we're going to stay' here and fight it out just as we did the last emergency. Q. The last emergency was what? A. When the phone office burned down and we were out of phones for a couple of months. Q. Let me just ask you specifically, Mr. Boehm, did you at any time during your speech say that "We will have to close down if the union comes in?" A. No way. That was one thing we were not going to do. Q. Did you at any time say that under any circum- stances if the union came in Dependable would leave New York? A. Absolutely not. 1309 DE:CISIONS ()F NAI IONAI. LABOR RELAI ONS BOARD General Counsel called a number of witnesses to testif, about the May 6 speeches. all of whorn testified in consid- erablv less detail than did Boehm. Pertinent to the alleged threat. Steven Rabinowitz testified that Boehm "referred to Ithe unionl as a militant organization. lie said that many times it had violated the law and if it hadn't violated the law it had violated the spirit of the law. lie said that the union had forced many employers in the New York area to close down due to its militant demands. That if need be he might have to close down." With respect to this statement, General Counsel asked Rabinowitz whether he remem- bered the exact words that Boehm used. Rabinowitz an- swered, "Yes, he said we might even have to close down." On cross-examination Rabinowitz testified: Q. Did [Boehm] say that they might ha'e to close down because of the union'? A. No, he didn't say that. Q. Now you testified earlier. I think, that he said that the union had made unreasonable demands upon other businesses or what Mr. Boehm considered to be unreasonable demands, and they had to close down. A. Yes. Q. And we might have to do that. Is that what you recalled him saying? A. Yes. Q. Yes. Okay, well, did you ever make the state- ment that Mr. Boehm said that he heard about us talk- ing about the union on company time and it was hurt- ing our customers because it was their business that made our salaries, and without their business he might h1-- to rlac drown nip ,,. vr m. 1- tht -t_ t- ment? A. He made Q. Well, let ness, and I aga and 6, and I statement you have to close d A. Yes. Q. And you A. Right. Q. Now any anything about he would have A. I don't sa Q. You don' A. No. Q. You say A. I say it n Q. (By Mr. ¥ mony, if my re the phrase "if X You remember A. I rememt Q. Do you r A. No, I rea June Hampson, a response to a quest fied. "No. IBoehml did not say that he might have to close down Dependable Lists." Hampson was asked again whether anything was said about Dependable lists going out of business, and she answered, "Nothing was said about Dependable. Mr. Boehm said that unions-some- thing to the effect that unions have been the cause of other businesses having to move out of New York City. He didn't sax anything about Dependable." James Kafadar testified that Boehm said that the Union "was responsible for 13 strikes in the past year. They had forced many, businesses to lease New York, and that they operate outside the law. And then he later amended this to say, 'If not outside the law then contrary to the spirit of the law.'. .. We will stay open no matter what .... We're going to fight this thing to the end. We've been through this before....We don't want to close down, but if we have to, which we d.mn't want to, we will." Shell) Feinerman. a witness called by General Counsel, on cross-examination testified with respect to the May 6 speech as follows: Q.... No benefits were promised during that speech, were they? A. No. Q. The employees weren't threatened during that speech with a cutback in jobs, were they? A. No. Q. Nobody was told that they would be fired or that they would lose their job if they joined the union. were they? A. No. "U""'IW. L' u you o 'r nlatF a""ul bILF - Thomas Tresser. a witness for General Counsel, perti- nent to the alleged threat testified that Boehm "referred to that statement in addition. Yes, he did. the union in terms of I think calling it 'Council 65' and said me show you your affidavit, Mr. Wit- that this union that we had chosen was known for its ag- in refer you to Paragraph 10 on Page 5 gressiveness and its radical nature, and had caused 13 want you to read it . . . .Now in that strikes in the previous year and was responsible for several say that without the customers we may businesses leaving the city, leaving this area. He said that .own. the union or the Council as he referred to it had violated attribute that to Mr. Boehm? the law which he amended that statement to say it hadn't acted against the letter of the law, it had acted contrary to the spirit of the law. . . . [H]e said that he would fight this y place in that statement do you sa'y to the end. They had done this before, and I believe he Mr. Boehm telling the employees that made a reference to sleeping in the office it it was neces- to close down for any other reason sary. And he said, 'We don't want to close, but if we have ty it in the statement, sir. to, which we don't want to, we will do it.' " 't say it in the statement. Boehm spoke to the employees for 15 minutes. It is not surprising that the recollections of the persons who heard it now. Boehm's speech differ. Boehm spoke about the Union's ow, sir. militancy, saying that it was responsible for strikes at other * * * * places of business and that it was responsible for other NWeinrich) Now during your direct testi- employers' moving out of New York City. In this context collection serves me correctly. you use Boehm further stated that if the Union should call a strike need be" he might have to close down. against the Company the Company would continue to op- ntestifying to that. if need be? erate. It is understandable that some persons who heard ber testifying to that, yes. the speech, because of inattentiveness or because of other remember Mr. Boehm saying that? reasons, might have telescoped Boehm's remarks about d that into it. other companiies having left New York City into his com- ment that should there be a strike the Company would a witness called by General Counsel, in resist to its fullest and would continue to operate, and that lion asked on cross-examination. testi- they remembered, more or less as did Rabinowitz, Tresser, !310 DEPENDABLE LISTS. INC. and Kafadar. that Boehm said the Compan b might have to close down. I find that Phillip Boehm was a reliable wit- ness. His testimony was given carefullb and considerately. He answered the questions put to him directly,. without seeking to develop any justifications or explanations or to avoid embarrassing answers. I credit Boehm's testimony as to what he said to the employees on May 6 and find that his speech did not contain a threat that the (ompani would cease operations in New York City if the Linion became the employees' representative. After Boehm finished his talk to the employees. (Compa- ny President Jack Oldstein spoke briefly. Among other things he said to the employees was that they should exer- cise their independent judgment. keep an open mind, and not follow like a bunch of sheep. Steven Rabinowitz and Thomas Tresser remembered the latter remark to be "not to follow like a bunch of sheep to the slaughter." Whether or not Oldstein actually used the words "to the slaughter." that expression is normally conjoined to the remark "don't be led like sheep." The meaning is the same whether or not the specific words "to the slaughter" were used. However. contrary to General Counsel, I find no basis for interpret- ing Oldstein's remark to be a veiled threat that the Compa- ny would close its New York operations. A more logical interpretation of that remark. following a speech by Boehm, who was trying to explain to the employees why union representation would not be to their advantage, would be that the employees should use their independent judgment and not permit themselves to be led into joining or supporting the Union. because it would not be in their best interests to do so. I find, contrary to General Counsel, that during their speeches on May 6 neither Boehm nor Oldstein threatened the employees that the Company would cease operations in New York City or otherwise would close its business. During the May 6 meeting, Steven Rabinowitz pointedly stared at his watch. Before the meeting ended. Boehm asked Rabinowitz whether he had an appointment. Rabi- nowitz replied that he did not and further stated that Boehm had been speaking for 15 minutes and he would like equal time for his side. Boehm answered that Rabi- nowitz would have his chance later. When the meeting ended and the employees were leaving the area in which they were assembled, Supervisor Jay West, as he passed Rabinowitz. said, "You just crucified yourself." I agree with General Counsel that the implication of this remark is that Rabinowitz would suffer some form of reprisal be- cause of his impertinent interruption of Boehm during the latter's speech and the indication he gave of aggressive sup- port for the Union. The fact that West was a low-level supervisor and that there is no evidence that West had any basis for believing that company management was offend- ed by Rabinowtiz' conduct or resentful of Rabinowitz' union activities does not exculpate the Company for the coercive statement made by one of its supervisors. Accord- ingly, I find that West's remark to Rabinowitz is a viola- tion of Section 8(a)(I). In accordance with arrangements made among the em- ployees who had attended earlier union meetings. follow- ing the appearance of the union representatives at the Company's premises on May 9. many employees began to wear District 65 buttons. Among such employees were Bet- ty, Weiss. June Hampson. and Edward Gross. The Compa- ny considered all three to be supervisors. and they were instructed to remove their union buttons. As I find that Betty Weiss and June Hampson were supervisors, the Company did not violate the Act by instructing them to remove their union buttons. Also. for the same rea- son, evidence of other conduct on the part of the Company purporting to show that officials of the Company had in- terrogated Betty Weiss and June Hampson about their union activities does not prove such conduct to be violative of the Act. However. I have found that Gross was not a supervisor. On May 10. Phillip Boehm called Gross into his office and expressed surpnse that he. a supervisor, was wearing a union button. According to Boehmn. "I told him that we took a dim view of that and that I wanted him to remove that button because he represented management." However, Gross voiced some disgruntlement about the way he was being treated by the Company and did not remove his union button. He continued to wear the button during the balance of his employment with the Company.' 2 I find that by directing Edward Gross to remove his union button, despite the fact that Gross ignored such instruc- tions, the Company. in violation of Section 8(a)( I). inter- fered with its employees' right to self-organization and to assist labor organizations. General Counsel contends that the following written ad- monishment given to Steven Rabinowitz by Melvin Karsh on May II constitutes a violation of Section 8(a)( 1): This is to inform you that pursuant to our conversa- tions of April 27, 1977 and May 9, 1977 regarding your lateness, further lateness will not be tolerated and will be cause for dismissal, especially during your pro- bationary period which ends July 4. 1977. This will also advise you that this is now part of your ser ice record. From the beginning of his employment, Rabinowitz was chronically late. He had been admonished several times. After each warning, according to Karsh. Rabinowitz' at- tendance improved, but then he reverted to his cutomary pattern of tardiness. At the hearing General Counsel ar- gued that the May II warning violated the Act because "at no time prior to May I lth had [Rabinowitz] been threat- ened with discharge or told that discharge might result, and secondly, that he had been on the payroll for some time and that he had a history of being late and the company had never previous to May 11th acted against him." In his brief General Counsel expands his argument. According to General Counsel, "Respondent had, for a lengthy time. si- lently condoned the continued and flagrant lateness of many employees. (See G.C. Exh. 33.) Never before had Respondent issued a written warning. Suddenly. having learned of the Union campaign, and knowing of Rabino- 2 According to Gross. Boehm samd -Iile .as, ers surprised hecu.lc hc had always considered me part of the famil. and he , g[]is. nit thine. that he hasn't given other people and he .as ter, hurt .n.d surprcid h it" 1311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witz' support of District 65, Respondent chose Rabinowitz out of all the possible employees who might have received such a warning. And having given this one, extraordinary. written warning, Respondent has never given another . . . In the instant case Rabinowitz, as well as many others, had been consistently late over a period of time. (G.C. Exh. 33.) No one had ever before been given a written warning. The written warning was given to Rabinowitz in violation of Section 8(a)( I)." The fact that Rabinowitz was actively supporting the Union and had made known to the Company that he was promoting the Union's organizational effort does not ex- cuse Rabinowitz from observing the Company's rules and regulations or insulate him against discipline. Evidence was adduced that the Company tolerated consistent tardiness on the part of Ida Pesce because she was attending her ailing mother. Ultimately the Company changed Pesce's hours of work. The fact that the Company extended con- sideration to Ida Pesce is not proof that it discriminated against Rabinowitz by insisting that he report to work on time. Even before the Company learned of Rabinowitz' union sympathies, he had been reprimanded for lateness. I find that General Counsel has not proved that the letter of admonishment given to Rabinowitz on May 11 was in re- taliation for his union activity. It was no violation of the Act for Respondent to give Rabinowitz such letter of ad- monishment because of his habitual tardiness after he had been warned several times about the subject. For Memorial Dav 1977, the Company gave its employ- ees bonuses in the following amounts: $50 to supervisors, $25 to full-time employees, $10 to part-time and probation- ary employees. Rabinowitz had begun working for the Company as a part-time employee. In April 1977, he was given full-time employment and was serving a probation- ary period for 90 days. Accordingly, as of Memorial Day, he was a probationary employee and was given a $10 bo- nus. General Counsel contends that the Company discrimi- nated against Rabinowitz because several other employees who had not completed their probationary periods by Memorial Day 1977 had been given a $25 bonus. The fact that the Company favored several other employees is not evidence that it discriminated against Rabinowitz. As Ra- binowitz was given the bonus to which he was entitled, I find that the Company thereby did not violate the Act. General Counsel contends that Robert Perez, on May II, during a telephone conversation with employee Thomas Tresser, made statements which constitute viola- tions of Section 8(a)(1). According to General Counsel, "Perez told Tresser that he would 'never get anywhere'" and ended the conversation "by telling Tresser that if the Union comes in, he could forget Friday night booze and Christmas parties." The conversation between Perez and Tresser was lengthy. In large part, Perez was contending that union representation limits the opportunities of better motivated employees such as Tresser. According to Tres- ser, the alleged objectionable remark that he would "never get anywhere" was made in the following context: "1 would not rise to the level commensurate with my abilities under a union. He said that a union would be bad for me and then, 'you'll never get anywhere,' he said. Referring to himself he said, 'l will tell you that under a union environ- ment a person like me, there's no way that I would be a VP sitting in D.C. running the D.C. office." In context, the remark that Tresser would "never get anywhere" was not a threat that the Company would retaliate against Tresser because he supported the Union or was represented by the Union but merely that a union promotes mediocrity and does not reward ability and a highly motivated person such as Tresser would "never get anywhere" working in a union environment. I find, contrary to General Counsel, that this remark was not an unlawful threat. Tresser further testified that Perez concluded the conver- sation with the remark, "I'll tell you that if the union comes in you can forget the Friday night booze parties and the Christmas parties." Despite Perez' denial, I credit Tresser that this statement was made. I find this statement consti- tutes a threat in violation of Section 8(a)(1). General Counsel contends that on three occasions Ed- ward Gross was unlawfully interrogated about the employ- ees' union activities. According to Gross, sometime in April Else Harraghy telephoned him and asked if he knew who the union leaders were. He said he did not. She asked if he would find out, and he said he would. Then on April 29, Boehm asked Gross if he knew about the Union and if he knew who was in charge of the union movement. Gross responded that he did not know who was leading the union movement. Boehm then asked Gross if he would try to find out, and Gross said that he would. Both Boehm and Harra- ghy considered that Gross was a supervisor and a member of management. Gross understood tha: these conversations were intended to be discussions between management per- sonnel. Thus, Gross testified that when he spoke with Boehm on April 29 the latter told him that Boehm consid- ered him to be part of management. Further, in a conversa- tion with Boehm on May 10, Boehm told Gross that Boehm considered him part of the "family." In this con- text, I find that Harraghy's and Boehm's conversations with Gross about what he knew concerning the Union's organizational drive and whether he would transmit to them any information he might acquire do not constitute violations of the Act in that such conversations would not tend to coerce or restrain employees in the exercise of their self-organizational rights. In late April Gross invited Susan Kraft, who had suc- ceeded him in the position of assistant to the office manag- er, to lunch. During their luncheon conversation, Gross revealed to her that he was earning more than she was. This brought forth from Kraft complaints about her treat- ment by the Company. The conversation then drifted to the subject of the Union's organizational drive. According to Kraft, each merely told the other that they knew almost nothing about the movement. According to Gross, how- ever, after Gross mentioned that he was of the view that it was time that a union drive was begun at the Company, Kraft mentioned the names of Feinerman, Rabinowitz, and Tresser as the employees behind the union movement. Gross and Kraft considered that they were holding compa- rable positions with the Company. In the circumstances. I find no element of restraint or coercion present in the con- versation even if I credit Gross' version. 1312 DEPENDABLE LISTS. INC. 1. Discharge of Gross When Gross was hired, he was informed that he would be required to work on Saturdays. Accordingly, he worked most Saturdays during the time he was assistant to the of- fice manager. When Gross was transferred to the position of senior administrative assistant, he was informed that the transfer was a lateral move, that he would continue to re- ceive the same salary, which was substantially higher than that of other administrative assistants, and that he was ex- pected to continue to work on Saturdays. At first Gross observed the injunction, but gradually he began to miss some Saturdays. He was admonished by both Executive Vice President Boehm and Office Manager Karsh on sev- eral occasions for failing to be at work on Saturdays. Prior to Saturday, May 28, Gross was informed that he was ex- pected at work on Saturday. Despite the specific instruc- tion, Gross failed to work on that Saturday and was dis- charged on June I. Gross did not work on five consecutive Saturdays be- tween April 30 and May 28. At no time prior thereto had he missed more than two consecutive Saturdays. His expla- nation for not having worked the last five Saturdays before his discharge was that the workload had become lighter and although "[t]here were a few things, customer service problems, that I could have solved on Saturday, but I didn't think that they demanded it. That I come in on those Saturdays." In addition, he testified that he did not work on those Saturdays for "[just personal reasons." The personal reasons were, according to Gross, antiunion speeches by management, the comments being made by nonunion individuals, and Gross' suspicions that Boehm was interrogating employees about their union activities. Although considerable testimony was adduced concerning the events leading to Gross' discharge, I find that Gross was discharged for cause; namely, that he refused to work on Saturdays as he was required and was instructed to, and that Gross was not discharged because of his union activi- ties. 2. Discharge of Feinerman Feinerman was hired by the Company in February 1977 as an administrative assistant to work in the lists manage- ment department. She was discharged on June 6. Accord- ing to the Company, she was discharged for two reasons: first, because her work was unsatisfactory and second, be- cause of her participation in the incident on June 2 de- scribed below. On the morning of June 2, Union Organizers Olff and Pileggi, together with Edward Gross, went to the Com- pany's premises to discuss the reinstatement of Gross. By coincidence, when they entered the elevator, Boehm and Karsh were in the same elevator. While in the elevator, the union representatives told Boehm that they wished to dis- cuss the reinstatement of Gross. Boehm responded that they should talk with the Company's attorneys. When the elevator reached the 17th floor, where the Company's of- fices are located, Boehmn told Pileggi that he would call the Company's attorneys and asked Pileggi, Olff, and Gross to wait in the reception room. Boehm went into the inner offices, telephoned the Company's attorneys, and within a few minutes returned to the reception area. Pileggi again asked Boehm to discuss the reinstatement of Gross, and Boehm replied that he did not have the time. Pileggi then stated that he wanted to talk to his union members, to which Boehm responded that Pileggi was not going to speak to them on company premises. Pileggi insisted that he had a right to see his members. Pileggi started towards one of the doors leading from the reception room into the inner offices. Boehm moved in front of one of the doors to block Pileggi from entering and Karsh stationed himself in front of the other door, which is the door employees nor- mally use. At this point Pileggi and Boehm were shouting at one another. Pileggi was insisting that he had a right to see the employees, and Boehm was answering that the Union had no right to be on company premises and he was going to call the police. While the commotion was developing in the reception area, the receptionist informed Steven Rabinowitz that Olff and Pileggi were present. Rabinowitz had been informed in advance that the union representatives were coming to the Company's premises and had been asked to look for them. Both Feinerman and Rabinowitz went into the reception area from the Company's inner offices by squeezing past Karsh, who was blocking the door, despite the fact that Karsh instructed them not to enter the reception room. The situation in the reception room was becoming up- roarious. At one point Shelly Feinerman stuck her head into the receptionist's window and called to some of the employees, "Come on, let's go." At another time Edward Gross grabbed the public address system microphone at the reception window and yelled, "Strike." Also, Boehm called to the receptionist and instructed her to telephone the police. While the commotion in the reception area was at a cre- scendo, the door behind Boehm was opened. When this happened Boehm completely blocked the door with his body and outstretched arms. Nevertheless, Shelly Feiner- man tried to force her way past Boehm into the offices behind him, saying, "I work here. I have a right to be here. I have a right to go in." Feinerman struck Boehm's body with such force that she bounced back from him. Boehm then moved aside to let Feinerman pass him. When Feiner- man entered the inner offices she screamed, "He hit me. He hit me." After Feinerman gained entrance into the in- ner offices, Pileggi shoved Boehm aside and he and the other people in the reception room entered the inner of- fices. The turmoil continued until the police arrived. I agree with Respondent that the "attempt by Feinerman to get past [Boehm] was a clear physical challenge to his authority to keep the organizers out of the office." Feinerman's conduct on June 2 was unprotected. She as- sisted the union organizers and Gross, who then had been discharged and was no longer in the Company's employ, to trespass upon company property and to disrupt the Com- pany's business operations. Accordingly, I find that Feinerman's discharge for having engaged in such conduct was not unlawful. 1313 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Discharge of Rosenberg Larry Rosenberg was hired by the Company in Septem- ber 1976 to work as an administrative assistant. Initially he was assigned to work for Account Executives Jack DeMar- co and Michael Miller. His work for them was unsatisfac- tory. In November he was transferred to work for Account Executive Norman Newman because it was thought that he would do better if he worked for a single account execu- tive rather than two. However, his performance in this job also was unsatisfactory. A few months later he was trans- ferred to work for Ted Malek, because at this desk he would be working under the supervision of Senior Admin- istrative Assistant Gross and would have more guidance than in his previous assignments. His work in this position also was not satisfactory. After Gross was discharged, his successor, Phyliss Stein, complained to Office Manager Karsh that Rosenberg did not do his job and that he was a liability not an asset. Karsh decided to switch Rosenberg and Steven Rabinowitz, because Rabinowitz'job as admin- istrative assistant to Account Executive Stan Roberts was less demanding than the position held by Rosenberg. On Friday, June 3, Karsh informed both Rabinowitz and Ro- senberg that they were to exchange positions. At the end of the day, Karsh informed Boehm of these plans. Boehm, however, instructed Karsh to discharge Rosenberg because Rosenberg had proved unsatisfactory in three different po- sitions and there was no reason to try him in a fourth. Rosenberg's union activity was minimal. He wore a union button and displayed another union button on his desk. In addition, he posted at his desk literature issued by the Company relating to the Union's organizational cam- paign and had underlined certain portions of the docu- ments. I find that Rosenberg was discharged for cause and that his minimal union activities did not in any way contri- bute to the Employer's decision to terminate him. General Counsel advances the following argument: Harraghy's recollection of Rosenberg's entire work history, leads one to the inevitable conclusion that either Respondent puts incompetent employees on the payroll and keeps them there, or that Ms. Harraghy exaggerates. If the former, why was Rosenberg given two raises? And why, suddenly after he became active in the Union, did Respondent "clean house?" And why, in the same conversation in which he spoke of overzealousness, did Boehm suddenly decide that Rosenberg had to be fired? There is only one plausible explanation. Rosenberg was discharged because he had joined and actively supported District 65. He was the third employee to be discharged within three working days, all 3 was [sic] supporters of the Union. Rosenberg was discharged in violation of Section 8(a)(3) and (I). Rosenberg was hired in September 1976 and was dis- charged approximately 9 months later on June 6, 1977. The fact that Respondent gave Rosenberg several opportunities to prove himself and did not hastily terminate his employ- ment does not establish either that the Company "puts in- competent employees on the payroll and keeps them there" or that Rosenberg was not discharged because of his in- competence. Rosenberg was given two raises, both of which were automatic raises. The second raise, which brought his salary to $150 per week, was considered the minimum wage for administrative assistants. The Compa- ny had delayed giving Rosenberg the second automatic wage increase because of its dissatisfaction with his perfor- mance. Contrary to General Counsel, the two increases given to Rosenberg do not indicate that his work was con- sidered good or even satisfactory. General Counsel asks the question, "And why, suddenly after he became active in the Union, did Respondent 'clean house?'" The record shows no connection between the day or time that Rosen- berg became active in the Union and the discharge of Ro- senberg and the discharges of Gross and Feinerman. Final- ly, General Counsel asks, "And why, in the same conversation in whizh (Boehm] spoke of overzealousness, did Boehm suddenly decide that Rosenberg had to be fired?" At the end of the day on June 3, Boehm instructed Karsh to discharge Feinerman because of her conduct the previous day. The word "overzealousness" was used by Boehm to describe Feinerman's objectionable conduct. In the same conversation, Karsh informed Boehm about the contemplated interchange of positions between Rosenberg and Rabinowitz. Boehm then instructed Karsh to dis- charge Rosenberg. Other than that the two decisions were made at the same time, there was no connection between the discharge of Feinerman and the discharge of Rosen- berg. Contrary to General Counsel, I find that Rosenberg was discharged for cause and not because he had joined or actively supported the Union. E. Other Alleged Violations In view of my findings hereinabove made, I further find that General Counsel has not proved that Respondent has violated Section 8(a)(5) of the Act or that the strike which began on June 6 was an unfair labor practice strike. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES LEPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Company has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: 1314 DEPENDABLE LISTS. INC. CON(' I t SIoNS OF LAW 1. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 3. Respondent has not engaged in any unfair labor prac- tices in violation of Section 8(a)(3) and (5) of the Act as alleged in the amended consolidated complaint herein. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in these proceedings. and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 1' The Respondent. Dependable Lists. Inc.. New York. New York. its officers. agents, successors, and assigns, shall: 1. Cease and desist from: In the event not exceptlon, are filed as provided bN Sec 10246 of the Rule, aind Regulalion, of the Nallonal Labor Relations Board, Ihe findings. conclusions, and recommended Order herein shall, as ?roslded In iet 110248 of the Rules and Regulallons, he adopted ha the Board and hecome its findings. conclusions. and Order, and all obJections Ihereto shall he deemed walsed for all purposes 14 In the event Ihat this Order is enforced by a judgment of a LUnted States ( Court of Appeals. the 'o,rds In the notice reading "Posted ha Order of the National Labor Relations Board" shall read "Posted Pursuant to) a Judgment of the United States ( Court of Appeals Enforcing an Order of the National Iahbor Relations Board" (a) Making direct or veiled threats to employees that the Company will retaliate against employees who assist or support District 65, Distributive Workers of America, or an, other labor organization. (b) Threatening employees that if they select District 65. Distributive Workers of America. or any other labor orga- nization. as their collective-bargaining representative the Company will withdraw benefits enjoyed by the employees or engage in other reprisals against employees. (c) Directing employees to remove buttons indicating their support of District 65, Distributive Workers of Amer- ica,. or an\ other labor organization. (d) In ans like or related manner interfering with, re- straining, or coercing employees in the exercise of the nghts guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary tit effectuate the policies of the Act: (a) Post at its place of business in New York, New York. copies of the attached notice marked "Appendix." i4 Cop- ies of said notice. on forms provided by the Regional Di- rector for Region 2, after being duly signed by Respon- dent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter. in conspicuous places. including all places where notices to employees are customanly post- ed. Reasonable steps shall he taken by Respondent to in- sure that said notices are not altered. defaced. or covered b: any other material. (b) Notify the Regional Director for Region 2, in writ- ing. within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is Ft RTHFR RECOMMENDED that the allegations in the complaint of violations of Section 8(a)(1), (3). and (5) of the Act be dismissed except insofar as specific violations of Section 8(a)( I) are hereinabove found. 1315