E. Mishan & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1979

242 N.L.R.B. 1344 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Mishan & Sons, Inc. and District 65, Distributive
Workers of America. Case 2-CA- 15179
June 21, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On January 10, 1979, Administrative Law Judge
Donald R. Holley issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended Or-
der, as modified herein.
We agree with the Administrative Law Judge that
Respondent engaged in various conduct violating
Section 8(a)(5), (3), and (1) of the Act which warrants
the issuance of a bargaining order.' However, for the
reasons set forth below, we do not adopt the Admin-
istrative Law Judge's conclusion, to which the Gen-
eral Counsel excepts, that Respondent did not violate
Section 8(a)(3) and (1) by discharging employee Jose
Vasquez and by constructively discharging employee
Michael Katz.
Facts
In August 19772 District 65, Distributive Workers
of America (herein the Union), commenced an or-
ganizational campaign among Respondent's shipping
and receiving employees. Employees Michael Katz
and Steven Lustgarten were the Union's initial con-
tacts among the employees and became the leading
union advocates in the shop. On or about September
9 Ike Mishan, Respondent's president, accused Katz
of participation in a union organizing campaign in
the shop and thereafter repeatedly questioned most of
the employees about their union activities.'
On October 3 Bill Cavanaugh, a union representa-
I The Administrative Law Judge found that Respondent had engaged in
unlawful threats. interrogation, promises of benefits, discharges, and a re-
fusal to bargain. Respondent filed no exceptions to these findings.
2 All dates herein are 1977 unless otherwise indicated.
3 The Administrative Law Judge found that in September Mishan accused
Katz of having signed a union card and "stabbing" him in the back by trying
to organize the shop.
tive, advised Mishan that the Union represented a
majority of Respondent's shipping and receiving em-
ployees, offered the authorization cards for inspec-
tion, which Mishan refused, and requested recogni-
tion of the Union as bargaining agent of the
employees. Mishan responded that he would not rec-
ognize the Union at that time.
Immediately following the above-described meet-
ing with Cavanaugh, Mishan approached employees
Willie Vega and Jose Vasquez and asked Vega if he
had joined the Union. Vega, who until then had told
Mishan when asked that he knew nothing about the
Union, responded that he had joined the Union,
whereupon Mishan called Vega a liar and said that he
hated liars. Mishan then turned to Vasquez and told
him that he was fired and to "get out of here." Also
on the afternoon of October 3 Mishan, as found by
the Administrative Law Judge, unlawfully discharged
employee Lowell Fein and in so doing stated that
Michael Katz was the ringleader of the Union.
On the night of October 3 Mishan called employee
Lustgarten's home and spoke to his mother about his
union activities. Mishan called her son a trouble-
maker and stated that if anything happened to him
(Mishan) Lustgarten "was going to get it and would
be hurt for it." He then stated that Lustgarten could
return to work if he would agree to forgo union ac-
tivity. Mishan stated that Lustgarten and Katz had
obtained employment for Fein so that he could join
the Union. Mishan further stated that he had tried
unsuccessfully to contact Katz' and Fein's parents
and asked her where they could be located.
On October 5 Mishan again called Mrs. Lustgarten
and asked her if she had spoken with her son, to
which she answered that she had not. That evening
Mrs. Lustgarten related her conversation with Mi-
shan to her son and to Katz. On October 6 Katz, in a
telephone conversation, asked Mishan about the con-
tent of Mishan's conversation with Mrs. Lustgarten;
Mishan responded that he should ask Mrs. Lustgar-
ten "what it is all about." Katz then stated that Mrs.
Lustgarten was too upset to talk about it, to which
Mishan replied, "Well, Mike, you're too smart for
me. If you want to talk about it, come in and we'll
discuss it." Lustgarten and Katz did not return to
work the following day because they claimed that
they feared for their lives as a consequence of
Mishan's various threats. On October 7 Katz accom-
panied Vega, Lustgarten, and union representative
Cavanaugh to Respondent's shop where Mishan al-
legedly told Cavanaugh that Katz and Lustgarten
had not been fired and could immediately return to
work. The record fails to reveal that Cavanaugh ad-
vised either Katz or Lustgarten of Mishan's state-
ment.
242 NLRB No. 147
1344
E. MISHAN & SONS. INC.
Vasquez' Discharge
The General Counsel, as indicated above, contends
that Vasquez was discharged because he signed a
union card. Respondent claimed at the hearing that it
had discharged him because of a dock strike which
eliminated the need for his services. The Administra-
tive Law Judge found, however, that although Vas-
quez' discharge was suspicious, absent more evidence
he would not infer that Respondent had discharged
Vasquez for discriminatory reasons.
Although there is no evidence that Respondent had
actual knowledge of Vasquez' union sentiments, we
find, contrary to the Administrative Law Judge, that
he was unlawfully discharged. The discharge immedi-
ately followed the Union's demand for recognition
and accompanied Respondent's simultaneous unlaw-
ful interrogation of Vega. Such timing clearly sup-
ports the inference that the discharge was precipi-
tated by Cavanaugh's claim of union majority and
demand for recognition. Furthermore, Respondent's
belated dock strike defense is without substance.
First, Respondent did not tell Vasquez at the time
that he was being discharged because of a dock strike
and a consequent lack of work. Second, the record
fails to reveal that Respondent made any attempt to
rehire Vasquez when the dock strike ended. Finally,
the Administrative Law Judge rejected such a defense
as pretextual in finding that Respondent had unlaw-
fully discharged employee Fein, and it appears that
with respect to Vasquez it was nothing more than an
attempted coverup. There is, we conclude, no basis
for finding that Vasquez' discharge was caused in
whole or in part by the dock strike. As the Board has
often held where, as here, an employer asserts a false
reason for discharging an employee, it can properly
infer that the real reason for the discharge was unlaw-
ful.4 Such an inference is clearly warranted here.
Consequently, having found that Respondent's as-
serted reason for discharging Vasquez was pretextual
and in view of the timing of the discharge in relation
to the Union's demand, the context of Respondent's
unlawful interrogations, promises of benefits, threats,
other discharges, and refusal to bargain, we conclude
that Respondent discharged Vasquez in reaction to its
employees' union activities, specifically the Union's
demand for recognition, and thereby violated Section
8(a)(3) and (1) of the Act.
Katz' Constructive Discharge
The General Counsel contends essentially that
Katz failed to report to work on and after October 6
'Shattuck Denn Mining Corporation (Iron King Branch) v. N. LR.B., 362
F.2d 466, 470 (9th Cir. 1966).
because of certain threats made by Mishan and thus
that his "quitting" was an unlawful, constructive dis-
charge. In this regard, he relies on the telephone call,
mentioned above, made by Mishan to the mother of
employee Lustgarten in which Mishan explicitly
made threats towards Lustgarten because of his union
activity and stated that Lustgarten, who was on vaca-
tion at the time, could return to work only if he aban-
doned his union activity. Indeed, the Administrative
Law Judge did find-and we agree-that Lustgar-
ten's failure to return to work on October 6 was
caused by Mishan's unlawful threats and thus was an
unlawful, constructive discharge. Nevertheless, he
concluded that Katz' quitting was not a constructive
discharge because Mishan did not threaten him di-
rectly. We disagree with this conclusion.
The record clearly shows that Mishan not only had
knowledge of Katz' union activities but also bitterly
resented them, having on one occasion accused Katz
of "stabbing [him] in the back" by trying to organize
the shop. He also knew that Katz was a friend of
Lustgarten, and that both were strong union support-
ers. Further, in his October 3 conversation with Mrs.
Lustgarten he accused her son and Katz of having
arranged the hiring of a certain employee in order to
increase the Union's strength. On October 6, in a tele-
phone conversation, Katz told Mishan that Mrs.
Lustgarten had said that Mishan wanted to contact
him and inquired why. Mishan replied that he should
ask Mrs. Lustgarten. Thus, we believe that the facts
fully support a conclusion that Mishan could clearly
foresee and anticipate and intended that his threats of
bodily harm concerning Lustgarten for his union ac-
tivity would be brought to Katz' attention. In fact,
Katz was present when Mrs. Lustgarten related the
content of her conversation with Mishan to her son.
Furthermore, there was nothing in the situation to
suggest to Katz that Mishan's threats to Lustgarten
were personal. On the contrary, Mishan's referring
Katz to Mrs. Lustgarten for an explanation of why he
(Mishan) wished to contact Katz clearly confirmed
Katz' apparently previously reached conclusion that
Mishan's threats applied to him as well as to Lustgar-
ten. In view of the foregoing considerations, we find
that Katz' failure to report to work on and after Octo-
ber 6, 1977, was caused by Mishan's threats of bodily
harm for engaging in union activities, and thus that
Katz' failure to come to work was a constructive dis-
charge unlawful under Section 8(aX3) and (1) of the
Act.
REMEDY
Having found that Respondent unlawfully dis-
charged employees Jose Vasquez and Michael Katz,
we shall order Respondent to make them whole in the
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner and to the extent set forth in the Administra-
tive Law Judge's Decision with respect to unlawfully
discharged employees Lustgarten and Fein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, E.
Mishan and Sons, Inc., New York, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(b) of
the recommended Order:
"(b) Offer Lowell Fein, Steve Lustgarten, Jose
Vasquez, and Michael Katz full and immediate rein-
statement to their former positions or, if such posi-
tions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority, or other
rights and privileges previously enjoyed, and make
them whole for any loss of pay or other benefits suf-
fered by reason of the discrimination against them in
the manner described in the section of the Adminis-
trative Law Judge's Decision entitled 'The Rem-
edy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our em-
ployees concerning their union activities or the
union activities and sentiments of their fellow
employees.
WE WILL NOT warn our employees to refrain
from joining or supporting District 65, Distribu-
tive Workers of America, or any other labor or-
ganization.
WE WILL NOT threaten our employees with re-
prisals if they join or assist the above-named
Union or any other organization.
WE WILL NOT offer or grant our employees pay
raises, benefits, or cash money to cause them to
refrain from joining or supporting the Union or
any other labor organization.
WE WILL NOT discharge employees or other-
wise discriminate against them to discourage
them from engaging in union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of rights under Section 7 of the Act.
WE WILL, upon request, recognize and bargain
with District 65, Distributive Workers of Amer-
ica, as the exclusive bargaining representative of
all employees in the appropriate bargaining unit
and, if an understanding is reached, WE WILL
embody same in a signed document if asked to
do so. The appropriate unit is:
All shipping and receiving employees of Respon-
dent, employed at Respondent's place of busi-
ness, excluding salesmen, office clerical employ-
ees, guards, and supervisors as defined in Section
2(11) of the Act.
WE WILL offer Lowell Fein, Steve Lustgarten,
Jose Vasquez, and Michael Katz immediate and
full reinstatement to their former jobs or, if such
jobs no longer exist, to substantially equivalent
positions of employment without prejudice to
their seniority or other rights and privileges pre-
viously enjoyed, and WE WILL make each of
these employees whole for any loss of pay he
may have suffered by reason of our discrimina-
tion against them, with interest.
E. MISHAN & SONS, INC.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: Upon a
charge and an amended charge filed by District 65, Dis-
tributive Workers of America (herein called the Union), the
Regional Director for Region 2 of the National Labor Rela-
tions Board issued a complaint herein on November 14,
1977. Summarized, the complaint alleges that E. Mishan
and Sons, Inc. (herein called Respondent), violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended, on various dates since September 3, 1977, by in-
terfering with, restraining, and coercing employees in the
exercise of their Section 7 rights by engaging in specified
conduct during the months of September and October
1977; discharging employees Lowell Fein and Jose Vasquez
for discriminatory reasons on October 3, 1977; construc-
tively discharging employees Steven Lustgarten, Michael
Katz, and Willie Vega on October 5 or 6, 1977. for discrimi-
natory reasons; and dissipating the Union's majority status
while refusing to recognize and bargain with it. Respondent
duly filed its answer denying the commission of the unfair
labor practices alleged.
Pursuant to notice a hearing was held before me on Feb-
ruary 27 and 28, and March 1, 1978, at New York, New
York. All parties appeared and were afforded full opportu-
nity to participate and to introduce and to meet material
evidence. Respondent and General Counsel filed post-hear-
ing briefs which have been carefully considered.
1346
Upon the entire record in the case, the briefs, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT'
I. JURISDICTION
Respondent, a New York corporation, maintains its of-
fice and principal place of business at 1 170 Broadway, New
York, New York, where it is engaged in the nonretail sale
and distribution of toys, novelties, and related products. It
annually sells and ships from its place of business goods
and materials valued in excess of $50,000 to customers lo-
cated outside the State of New York, and it annually pur-
chases from suppliers located outside the State of New
York goods and materials valued in excess of $50,000. It is
admitted, and I find, that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
It is admitted, and I find, that District 65, Distributive
Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
E. Mishan and Sons, Respondent, is a family business
which employs slightly more than 20 employees, including
family members. The business is owned by three brothers-
Isaac (Ike) Mishan, Alan (Al) Mishan, and Morris (Morey)
Mishan. Each of the brothers has a son whose first name is
Eddie and whose middle initial corresponds with the first
letter in his father's first name. Thus, Eddie I. (Ike's son),
Eddie A. (Al's son), and Eddie M. (Morey's son) all work
for the corporation. The employees who testified at the
hearing uniformly indicated that Ike Mishan and Al Mi-
shan are their main bosses, and that they consider each of
the brothers and each of the sons to be their bosses. 2
In early August 1977, the Union commenced an attempt
to organize Respondent's shipping and receiving employ-
ees. At that time, Respondent employed four full-time em-
ployees and four part-time employees in its shipping and
receiving department.3 The union campaign and Respon-
dent's reaction to it are described below.
B. Status of Martin Domforl and Walter Weiss
A threshold issue in this case is whether shipping and
receiving department employees Martin Domfort and Wal-
ter Weiss are supervisors within the meaning of the Act, as
contended by General Counsel. For the reasons set forth
All dates herein are 1977 unless otherwise indicated.
2 The complaint alleges, and I find, that Ike Mishan is, and has been at all
times material herein, president of Respondent and an agent of Respondent
who is a supervisor within the meaning of Sec. 2(1 1) of the Act.
3 Martin Domfort, Walter Weiss, Albert Tyler, and Willie Vega were full-
time employees. Michael Katz, Steve Lustgarten. Samuel Otero, and Alex
Kopatsis were part-time employees.
E. MISHAN & SONS, INC.
hereinafter, I find that the employees in question are not
supervisors in the statutory sense.
The record reveals that Respondent's shipping and re-
ceiving department employees, including Domfort and
Weiss who have both been employed for over 18 years,
gather, pack, and ship merchandise which has been ordered
by customers and receive incoming merchandise which is
stored in appropriate locations on Repondent's premises.
The Mishan brothers, principally Ike Mishan, hire new em-
ployees; and if they are to work in shipping and receiving,
they tell them to report to Domfort or to Weiss. Domfort is
the head order picker, packer, and shipper. He, together
with a full-time employee and available part-time help, ob-
tains an order form from a clip board in the store area,
picks the ordered items from the bins and storage locations,
packs the merchandise, and contacts a common carrier so
that the orders can be placed on trucks for shipment to
customers. Weiss, together with a full-time employee and
available part-time employees, performs many of the func-
tions performed by Domfort and his crew, but he concen-
trates on loading and unloading merchandise from trucks
and storing incoming merchandise in appropriate places in
Respondent's three or four warehouses. The record reveals
that the work in question is routine, and that new employ-
ees need little direct supervision once they become ac-
quainted with Respondent's operation and premises. In ad-
dition to the above-described functions, shipping and
receiving employees fill sample orders placed by customers
and make some deliveries.
With respect to authority, the record reveals that the Mi-
shan brothers, primarily Ike and Al, hire, fire, and award
raises to employees. Domfort and Weiss both testified that
they have no authority to hire, fire, or reward employees.
General Counsel's employee witnesses credibly testified
that on one occasion Domfort, during an argument with
employee Lustgarten, told him that he was fired, only to tell
him 5 minutes later that he had been kidding and that Lust-
garten should return to work. 4 With regard to Weiss, the
record reveals that he keeps notes which reveal what full-
time shipping and receiving employees work each day, and
he notes the specific hours worked by part-time employees
assigned to work with him.'
Respondent's full-time employees are salaried, receive
paid vacations, participate in a profit sharing plan, and re-
ceive holiday pay. Part-time employees are hourly paid and
enjoy no fringe benefits. Domfort is paid $175 per week,
and Weiss is paid $160 per week.6 Domfort and Weiss have
keys to Respondent's premises and warehouses, and Dom-
fort frequently opens the doors to the premises in the morn-
ing. The remaining shipping and receiving employees have
no keys to the premises.
General Counsel's witnesses uniformly indicated that
they speak to one of the Mishan brothers when they want a
raise or when they want time off.
'Employee Katz testified that Domfort informed him during 1977 that he
had caused the discharge of two employees by telling Ike Mishan that the
employees had to go or he would quit.
I All part-time employees-other than Lustgarten-kept their own time
records.
'The Mishan brothers are salaried at $400 per week, and the sons are
salaried as follows: Eddie A.. $350 per week: Eddie 1., S275 per week; and
Eddie M.. 5275 per week. See Resp. Exh. I(a).
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering the evidence discussed above, I conclude
that Domfort and Weiss are working leadmen rather than
supervisors in the statutory sense. It is clear that the six
Mishans who work in this family business provide abun-
dant supervision of the operation, and General Counsel has
failed to prove that Domfort and Weiss possess any of the
indicia of a statutory supervisor. In sum, these employees
simply direct shipping and receiving employees in the per-
formance of routine work which requires little, if any, exer-
cise of independent judgment. Accordingly. I find that they
are not supervisors within the meaning of Section 2(11) of
the Act.
C. Facts
In early August some undisclosed person from the Union
contacted student employee Michael Katz, and on August
16 Katz and student employee Steve Lustgarten met with
union organizers Billy Cavanaugh and Artie Robbins at the
Union's offices.7 Katz and Lustgarten signed authorization
cards at the meeting and were given blank cards to be used
to solicit other shipping and receiving employees. Full-time
employee Willie Vega signed a card given to him by Katz
on August 16.
Around the end of August or the first of September
someone from the Union telephoned Domfort and Weiss to
solicit their membership in the Union. At or about the same
time a second meeting was held at the union offices and
Katz, Lustgarten, and full-time employees Willie Vega and
Albert Tyler attended. Domfort, Weiss, and Tyler refused
to join the Union, and each of them discussed his contact
with the Union and his sentiments with Ike Mishan or his
brother Al Mishan.
Ike Mishan admitted during his testimony that he inter-
rogated every employee then working in Respondent's ship-
ping and receiving department when he learned in late Au-
gust or early September that the Union was attempting to
organize the employees. Lustgarten credibly testified that
about I week after Labor Day, Ike Mishan approached him
and asked, "Steve, do you know anything about Unions?"
Lustgarten answered, "No." Similarly, full-time employee
Vega testified that Ike Mishan asked him to come into the
office shortly after the second Union meeting and there
asked if he knew anything about the Union. Vega told him
that he knew nothing, and Mishan commented, "Well, I've
heard about the Union around here." When Vega contin-
ued to claim that he knew nothing, Mishan observed that
the Union was offering a better job, more money, and a
good pension, and he stated, "By the way, do you know I
have a pension for you." Mishan concluded the conversa-
tion by telling Vega that he thought Mike Katz was the
ringleader and by asking Vega to let him know if he heard
anything. Vega testified that after the above-described inci-
dent Ike Mishan came to him almost everyday to ask if he
had heard anything about the Union. On each occasion
Mishan advised him not to join the Union. In all the discus-
sions Vega indicated that he knew nothing about the
Union.
' All of Respondent's part-time employees are college students. They work
a full 40 hours during the summer but varying hours as dictated by their
schedules and school loads while attending college.
Michael Katz testified that Ike Mishan questioned him
concerning the Union twice in early September. On the first
occasion, which occurred the day after the second union
meeting. Mishan approached the employee, stated that he
had been hearing some things about the Union, and asked
if Katz had heard anything. Katz replied, "No." Mishan
then indicated that he had heard something about a meet-
ing and some of "our" people attending it. Katz again indi-
cated that he knew nothing about it and Mishan asked,
"Well, are you sure you don't know anything about it?"
When Katz again said, "No," Mishan observed, "Well,
that's funny. They seem to know everything that's taking
place in here."
On September 9 Ike Mishan informed Katz that the
Union had called Martin Domfort and observed that they
"knew what we're wearing, what we take to lunch, they
seem to know everything" and then asked Katz if he was
sure he had no idea what was happening. Katz said, "No"
and Mishan informed him that he thought he was involved
in it. When Katz denied being involved, Mishan told him
"Well, Walter's [Weiss] been saying that you are involved
in it." Katz ended the conversation by stating he did not
know where he [Weiss] got that because he was not in-
volved with it.
In mid-September Ike Mishan asked Katz to step into an
office and when the employee complied Mishan stated
"Mike, I know you signed a card. I know that you're part of
the Union. I know you're trying to organize my shop, and
you're stabbing me in the back." Katz informed Mishen
that he did not know anything about it, and Mishan re-
plied, "What are you talking about? I see you hanging
around with that black guy next door, the organizer from
65." When Katz indicated that he just saw the man on the
street, Mishan stated "Well, I know that you're part of the
Union and everybody says you are. How could you do this
to me? What can they give you that we can't give you and
what are they promising you?" Katz then claimed that he
did not know what Mishan was talking about and Mishan
then said "All right, all right, you're not part of the Union.
You didn't sign, but are you sure you don't know anything
about it?" When Katz replied. "No," Mishan made some
other comments and then asked Katz if he was sure he
knew nothing about the Union. When Katz said that he
knew nothing, Mishan informed him "Well. I'm sure you
joined the Union." Mishan concluded the conversation by
wishing Katz a good weekend.
On September 23 Ike Mishan discussed the Union with
Lustgarten for the second time. Mishan opened the conver-
sation by asking Lustgarten if he had joined the Union.
When he replied, "No," Mishan stated, "Well don't [join].
you're one of us, and the Union, they're not like us at all
and you should not join the Union." Lustgarten asked what
would happen if it came in and Mishan said, "Just do not
sign anything."
On September 27 Willie Vega gave a union membership
application card to Jose Vasquez, a shipping and receiving
employee of Respondent. Vasquez read the card. signed
and dated it. and returned it to Vega on that date.'
s Vasquez testified that he was hired by Respondent in early September
and worked about I month. Respondent's payroll records do not reflect any
1348
E. MISHAN &
On September 27 Respondent hired Lowell Fein as a
part-time shipping and receiving employee. He indicated
that his school schedule would permit him to work Mon-
days from I a.m. to 6 p.m. and all day on Thursdays. Fein
reported for work on Thursday, September 29, and worked
all day.
On September 29 Willie Vega gave Lowell Fein a union
membership application card. Fein read it, filled it out, and
returned it to Vega on the same day.
Sometime in late September Samuel Otero. who left Re-
spondent's employ to vacation in Puerto Rico in August,
discussed possible reemployment with Ike Mishan. After
agreeing to rehire him, Mishan informed him that the
Union was trying to come in and advised him to do himself
a favor and not join. Otero signed a union authorization
card dated September 19, 1977, on the face of the card and
September 26, 1977, on the reverse side of the card.9
At approximately 10 a.m. on October 3, union Repre-
sentative Cavanaugh appeared at Respondent's premises.
Ike Mishan met him when he entered the premises, and
Cavanaugh informed Mishan who he was and then indi-
cated that a majority of Respondent's employees had
signed authorization cards which Cavanaugh said he would
like for Mishan to inspect. Mishan declined the offer to
inspect the cards, and Cavanaugh indicated that the Union
desired recognition. Mishan informed Cavanaugh that his
brother was out of the country, and he could do nothing
until he returned. Cavanaugh then indicated that he wanted
recognition by October 20, and the meeting ended.
Immediately after Cavanaugh concluded his meeting
with Mishan, the latter went to the area in which employees
Vega and Vasquez were working. Mishan approached Vega
and asked him if he had joined the Union. When Vega
replied, "Yes," Mishan said, "You're a liar, you're a liar. I
hate liars." Mishan then saw Vasquez and told him,
"You're fired. Get out of here." As Vega continued to work
and walked towards a truck where union representatives
Robbins and Cavanaugh were standing, Ike Mishan
shouted to Vega, "You're a Puerto Rican thief." °0
Ike Mishan admitted during his testimony that, after
Cavanaugh's departure on the morning of October 3, he
asked each of the shipping and receiving employees then
working if he had joined the Union.
Shortly after he fired Vasquez, Ike Mishan found Vega in
the downstairs part of the store building and told him that
payment to Vasquez, and Ike Mishan testified that Vasquez worked only I
week (during the last week in September), and his name does not appear on
the payroll because no one knew his last name, and he was paid in cash for
the I week. As Vasquez was admittedly not interrogated concerning his
union activities while all other shipping and receiving employees were being
questioned, I find that Ike Mishan's testimony regarding his period of em-
ployment is accurate. In addition, I note the fact that Vasquez was not an
impressive witness.
9 Otero testified that he was rehired by Respondent in late September.
Respondent's payroll records reveal that he did not resume employment
until the week ending October 7, 1977. 1 find Respondent's records to be
more reliable than Otero's testimony and refrain from crediting his claim
that he resumed work in September.
'0 Mishan testified that he laid Vasquez off before Cavanaugh came to the
premises on October 3. I find that Vega's version of the incident its more
reliable than the versions given by Mishan and Vasquez and credit Vega's
version, thus finding that Vasquez was terminated after Cavanaugh de-
manded recognition.
1349
he wanted to talk to him. Mishan pulled out his wallet and
asked Vega, "Look, how much do you want. I give it to you
right now." When Vega said nothing, Mishan repeated the
offer and added that he would give Vega $500. Vega re-
sponded that he would think about it.
At or about I p.m. on October 3 Lowell Fein reported to
work at Respondent." Fein was told to report to Ike Mi-
shan. Ike Mishan asked Fein if he had signed a union card.
Fein said that he had. Mishan asked why; Fein stated be-
cause everyone else had. Mishan then stated that he'd "al-
ways been no good" and that he was "going to get it for
this." Mishan called Michael Katz the ringleader: Fein de-
nied that Katz was ringleader. Mishan told Fein that he
was "not satisfied" with his work and that he was fired.'2
Mishan then called out to Martin Domfort and asked him
whether he was dissatisfied with Fein's work. Domfort said,
"No, everything was fine with his work." Domfort then left.
Mishan told Fein that he had been employed on a trial
basis. Fein responded that he had never been told that, and
that he thought it was unfair. Mishan yelled at Fein "you
boys have sinned and you'll have to repent once again."
Mishan also yelled, "You Orthodox Jews are no good." At
this point Fein asked to be paid for Thursday's work. Mi-
shan then instructed his bookkeeper, Lillian Goldberg, to
make a check for Fein. When the check was prepared Mi-
shan asked Fein to fill out a paper saying that he could not
work late on Fridays or all day on Saturdays. Fein refused.
Mishan then offered to write the statement and started writ-
ing it. When he finished Mishan asked Fein to sign it. Fein
refused. Mishan then gave Fein a check for $20 and wrote
on the back of it "temporary worker." Fein then left.'3
On the evening of October 4 Ike Mishan called Steve
Lustgarten's home and spoke to his mother. The conversa-
tion lasted about 2 hours. In that conversation Ike Mishan
asked Mrs. Lustgarten if she knew what her son had done.
Mishan said that Lustgarten had joined and signed up with
the Union. Mrs. Lustgarten denied any knowledge of her
son's activities. She told Mishan that her son was not home
and was away for the Jewish holidays. Mishan called Steve
Lustgarten "a troublemaker" and asked her what kind of
son she had brought up. Mishan stated that he had given
her son a part-time job and asked her to speak to her son.
Mishan then stated that if anything happened to him Ste-
ven was going to get it and would be hurt for it. Mishan
asked her for her work number so that he could talk to her
after she had spoken with her son. She refused. Mishan also
asked for Steven's rabbi so that he could talk to him and
have him speak to Steven. Again Mrs. Lustgarten refused.
Mishan then mentioned Michael Katz and Lowell Fein and
stated that Steven and Mike (Katz) had brought in Fein so
that he could join the Union. Mishan stated that he had
Il It is undisputed that Ike Mishan telephoned Fein's home the preceding
Friday and left word with Fein's mother that he was not to report on Mon-
day as a dock strike was in progress. Fein received the message when he
returned home Monday afternoon.
12 At or about 2 p.m. that afternoon. Cavanaugh returned to Respondent
with Fein or Vasquer, according to Mishan. I make no findings regarding the
afternoon visit as Mishan's testimony was ambiguous. and I am unable to
determine who Cavanaugh was representing.
13 Mishan denied that he had asked Fein if he had joined the Union: he
claimed that he simply told Fein he was laying him off because of the dock
strike, and he denied that he attempted to get him to sign any statement. I
credit Fein.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tried to call Fein's and Katz' parents and asked her where
they were. Mrs. Lustgarten answered that she did not know.
Mishan asked her to try to get in contact with them. She
refused. Mishan asked her to talk to her son and tell him
that he could come back to work if he did not join the
Union and that he would be given a raise. Mishan also
stated that because of "Jews like Steven, we have Hitler in
Europe." The conversation then ended." About 2 days lat-
er, on October 5, Ike Mishan again called Mrs. Lustgarten
and asked if she had spoken to her son. Mrs. Lustgarten
answered that she had not since he had not arrived. That
was the end of the conversation.
On October 4 Ike Mishan asked Vega whether he had
decided to accept his offer of money. Vega indicated he had
not decided, and Mishan told him to think about it.
On October 5 Vega told Ike Mishan that he could not
take it anymore and was going to leave. Mishan asked him
to step into his office. Vega did so. Mishan locked the door
and asked Vega where he was going. Vega said that he
might go to Puerto Rico. Vega asked for the money he had
been offered. Mishan said that since he had a majority then
he could fire Vega. Mishan then said that because Vega had
been a good worker he could give him $200. Vega asked for
vacation pay since he had not taken any vacation. Mishan
agreed to give Vega I week's vacation pay and I week's
salary. Mishan then asked Vega to go with him to the back
of the store. Mishan gave Vega the $200 as promised. Mi-
shan also gave Vega a check for $210 and asked him to sign
it. Vega signed the check and returned it to Mishan. Mi-
shan then gave him $210 in cash, making the total $410.
Mishan told Vega not to come back. Vega then left.
Employees Katz and Lustgarten credibly testified that
during the week ending September 30 they arranged to be
excused from work until October 6. Neither employee re-
ported for work on October 6. They indicated that they did
not report because Mrs. Lustgarten informed them of
Mishan's October 3 telephone call, and they feared for their
lives.
On October 6 Katz telephoned Ike Mishan. During the
conversation Katz informed Mishan that Lustgarten's
mother had indicated Mishan was trying to contact "us,"
and he asked what it was all about. Mishan replied that
Katz should ask Mrs. Lustgarten, and Katz indicated that
she was too upset. Mishan ended the conversation by stat-
ing, "Well, Mike, you're too smart for me. If you want to
talk about it come in and we'll discuss it."
On October 7 Katz, Lustgarten, and Vega accompanied
union agents Cavanaugh and Robbins to Respondent's
place of business. Ike Mishan allowed only Cavanaugh to
enter the premises. Mishan testified without contradiction
that Cavanaugh accused him of firing Katz and Lustgarten,
and that he [Mishan] replied he had never fired them, they
never came in, and if they wanted to come in then they
could come in. Mishan indicated that Cavanaugh dis-
agreed, stating that he had fired the employees, and that he
[Cavanaugh] intended to go to the Board. Mishan con-
cluded the discussion by telling Cavanaugh that he was wel-
l4 Ike Mishan acknowledged that he spoke with Mrs. Lustgarten. but he
gave a fragmentary account of the conversation. I credit Mrs. Lustgarten.
come to go to the Board, that he had not fired Katz and
Lustgarten.' Katz, Lustgarten, and Vega made no further
attempt to return to work for Respondent after October 7.
In mid-October Ike Mishan told Samuel Otero that if he
rejected the Union he would receive some money. Mishan
told Otero that he would be given a wage increase to $4 per
hour and was told that if he signed an agreement that he
would reject the Union, he would be given $500. Mishan
mentioned that Albert Tyler had refused a wage increase
that Mishan had offered him, and that he had given Willy
Vega some money. The offer was repeated about I week
later. Subsequently, in late October, Otero told Ike Mishan
that he would accept the $500 that he had been offered.
Otero also told Mishan that he would sign the agreement
previously disussed. Mishan then dictated the terms of the
agreement to Otero. Otero then wrote the agreement out on
a piece of paper. The paper stated, "I, Samuel Otero, under
my own free will, have decided not to join a union. I, in no
way, shape or form, was forced into this decision .... "
Otero signed it. Mishan and Peter Roberts, a salesman for
Respondent, also signed it. Mishan kept the signed paper.
Roberts left, and Mishan and Otero went to another office
where Mishan gave Otero the $500 in cash.' 6
Analysis and Conclusions
A. The Alleged 8(a)(1) Violations
General Counsel alleges in paragraphs 10. I11, and 12 of
the complaint that Respondent violated Section 8(a)(i) of
the Act on numerous occasions during the months of Sep-
tember and October by unlawfully interrogating employees,
by warning them not to join the Union and threatening
reprisals if they failed to heed such warnings, and by prom-
ising them benefits to cause them to forgo participation in
union activities.
Section 8(a)( ) of the Act prohibits employers from inter-
fering with, restraining, or coercing employees in the exer-
cise of their Section 7 rights which include the right to
"join, or assist labor organizations . . . and to engage in
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection."
Respondent made no serious attempt to controvert the
evidence offered by General Counsel to prove that Ike Mi-
shan repeatedly interrogated Respondent's employees con-
cerning their union activities and sentiments. Thus, the tes-
timonies of employee witnesses which reveals that they
were interrogated, warned, and threatened with reprisals
stand substantially unrebutted. Indeed, Mishan freely ad-
mitted during his testimony that he openly interrogated em-
ployees to ascertain whether they had joined the Union im-
mediately after he learned of union activity in late August
or early September and again immediately after union
agent Cavanaugh demanded recognition on October 3,
1977. Mishan denied that he offered and/or paid employees
Vega and Otero money to cause them to refrain from join-
ing or supporting the Union but his denial was unconvinc-
1' Cavanaugh was not called as a witness.
6 Mishan denied the transaction described by Otero. I credit Otero who
was by far the more candid witness.
1350
E. MISHAN & SONS, INC.
ing, and I have credited the testimonies given by Vega and
Otero.
Moving to the specific violations alleged, the record as
summarized in the portion of this Decision entitled "Facts"
clearly reveals, and I find, that Respondent, through the
actions of Ike Mishan, engaged in unlawful interrogation of
employees concerning their union membership, activities,
and sentiments by: (1) asking employee Lustgarten in early
September and on September 27 what he knew about
unions and whether he had joined the Union; 7 (2) asking
employee Vega in early September if he knew anything
about the Union, by asking him if Katz was the ringleader,
and by asking him repeatedly thereafter if he had heard
anything about the Union; (3) asking employee Katz in
early September, on September 9, and in mid-September if
he knew anything about the Union, whether he had heard
anything about it, and whether he had joined the Union;
(4) asking employee Otero on October 3 if he had joined the
Union; (5) asking employee Vega on October 3 if he had
joined the Union; and (6) asking employee Fein on October
3 if he had joined the Union and asking him if Katz was the
ringleader. Similarly, I find that Respondent, through the
actions of Ike Mishan, violated Section 8(a)(I) of the Act,
as alleged, by: (1) promising employee Vega a pension in
early September to cause him to forgo participation in
union activities; promising employee Vega $400 or $500 if
he would refrain from joining the Union and by paying him
$200 pursuant to such promise at the time of Vega's termi-
nation on October 5;" (2) telling employee Otero in late
September that he should not join the Union; (3) telling
employee Lustgarten on September 27 that he should not
join the Union; (4) telling employee Katz in mid-September
that he [Mishan] knew that he had signed a union card and
was "stabbing" him in the back by trying to organize his
shop; (5) intimidating employee Lustgarten by telephoning
his mother on October 3 as described in the portion of this
decision entitled "Facts"; (6) calling employee Vega a
"liar" when he admitted on October 3 that he had signed a
union card; (7) telling employee Fein that he was "going to
get it for this" when he admitted signing a union card on
October 3; (8) promising employee Otero a raise to $4 per
hour and $500 in mid-October to cause him to reject the
Union; and (9) by paying Otero the sum of $500 to cause
him to execute a written promise to refrain from supporting
the Union.
B. The Alleged 8(a)(3) Violations
General Counsel alleges that Respondent violated Sec-
tion 8(aX3) of the Act by discharging employees Lowell
Fein and Jose Vasquez on October 3, 1977, because they
joined and assisted the Union and by constructively dis-
1" I find the early September interrogation to be violative of Sec. S(aX)I) of
the Act, as Mishan simultaneously asked all other available shipping and
receiving employees if they had heard anything about a union and/or asked
if they had joined a union. In such circumstances, Lustgarten could conclude
that Mishan was seeking the same information from him.
[ I find that the payment of S200 to Vega on October 5 constitutes a
violation, as Mishan thereafter induced Otero to accept SS00 by telling him
that he had given money to Vega to cause him to abandon the Union and
informing Otero that employee Tyler had been offered a raise and money for
the same reason.
charging employees Steve Lustgarten, Michael Katz, and
Willie Vega on October 5 or 6, 1977, because they joined or
assisted the Union. As indicated below, I conclude that
General Counsel has failed to offer sufficient evidence to
prove that Vasquez, Katz, and Vega were discharged by
Respondent for discriminatory reasons. The facts, as they
relate to each alleged discriminatee, are briefly summarized
below.
Lowell Fein
Lowell Fein is a student who was hired by Ike Mishan on
September 27, 1977, to work part time as his school sched-
ule permitted. He reported for work in Respondent's ship-
ping and receiving department on September 29, indicating
that he could work all day on Thursday of each week. Fein
worked a full 8-hour day on September 29 and thereafter
reported for work on October 3 at I p.m.'9 Immediately
after he reported for work, Fein was instructed to talk to
Ike Mishan before he commenced work. Fein credibly testi-
fied that Mishan opened the conversation by asking him if
he had signed a union card. When he replied that he had
signed a union card, Mishan asked why. The employee re-
plied that he had signed because everyone else had. Mishan
thereupon informed him that he had "always been no
good" and he was "going to get it for this," indicating that
he was not satisfied with his work. Fein's unrebutted testi-
mony is that Mishan then asked Martin Domfort if he
(Domfort) had been dissatisfied with Fein's work. Domfort
replied no. Mishan then stated, "you Orthodox Jews are no
good" and instructed his bookkeeper to prepare Fein a
check for Thursday's work. On presenting the employee
with the check, Mishan asked Fein to fill out a paper saying
he would not work late on Fridays or all day on Saturdays.
When Fein refused, Mishan wrote "temporary worker" on
the back of the check.
Respondent contends that a finding that Fein was dis-
charged for discriminatory reasons would be unwarranted,
as uncontroverted record evidence reveals that Mishan de-
cided to terminate this employee on September 30 for a
valid business reason, i.e., the dock strike. I reject this de-
fense. While Mishan did, in fact, decide on September 30
that he did not need Fein's services on October 3, and his
decision was communicated to Fein's mother, it is clear that
Mishan decided on October 3 to rid Respondent of Fein's
services permanently rather than merely during the period
of time during which the dock strike caused disruption to
Respondent's business. Having credited Fein's testimony, I
find that Respondent discharged Fein on October 3 because
Ike Mishan then learned that he had signed a union card.
By engaging in such action Respondent violated Section
8(a)(3) and (I) of the Act, as alleged.
Jose Vasquez
Jose Vasquez was hired by Respondent as a full-time
shipping and receiving employee at some undetermined
9 Ike Mishan credibly testified that he had telephoned Fein's home on
September 30 and informed Fein's mother that Fein was not to report on
October 3 because Respondent did not need his services due to a dock strike
then in progress in New York. Fein credibly testified that he did not receive
the message before reporting for work on October 3.
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time in September 1977.20 His starting wage was $110 per
week.
On September 27, 1977, Vasquez signed an authorization
card for the Union. The record fails to reveal. however, that
any Respondent official was aware that Vasquez signed a
card. In this regard, Ike Mishan strenuously denied during
his testimony that he discussed the Union with Vasquez at
any time. Significantly, Vasquez did not claim that any of
Respondent's officials discussed the Union with him.
Apparently, General Counsel's theory is that Respondent
must have suspected that Vasquez signed a card because
union organizer Cavanaugh informed Ike Mishan at about
10 a.m. on October 3 that a majority of Respondent's em-
ployees had signed cards. Thereafter, Mishan immediately
went to the shipping and receiving department where he
interrogated employee Vega. as previously described, and
precipitously terminated Vasquez by telling him that he
was fired.
Respondent claims that Vasquez was terminated because
his services were not needed due to the dock strike then in
progress.
While the record creates a suspicion that Respondent
did, in fact, terminate Vasquez immediately after Cava-
naugh's visit on October 3 because Ike Mishan suspected
that he had signed a union card, I am not inclined to infer,
absent more, that Respondent terminated this employee for
discriminatory reasons. Accordingly, I find that General
Counsel has failed to prove by a preponderance of the evi-
dence that Vasquez was terminated in violation of Section
8(a)(3) and (1) of the Act. I recommend that the complaint
allegation relating to Jose Vasquez be dismissed.
Willie Vega
Willie Vega was hired as a full-time employee by Re-
spondent in September 1976. He started to work for a sal-
ary of $100 per week and received regular raises. He was
admittedly a good worker. When he quit on October 5,
1977, he was making $140 per week.
During the Union's organization campaign Vega signed
an authorization card dated August 16, 1977, and he subse-
quently signed a second card for some unexplained reason
when he was approached by one of the union organizers
near Respondent's premises. He credibly testified that he
gave cards to employees Vasquez and Fein, and that they
returned them to him after completing and signing them.
As previously indicated in the section of this Decision
entitled "Facts," Ike Mishan interrogated Vega in early
September to ascertain what he knew about the Union.
During that conversation Vega denied knowing anything
about the Union, and Mishan encouraged him not to join
by telling him that he had a pension for him. At the same
time Mishan informed Vega that he knew Katz was the
20 General Counsel claims that Vasquez worked 3 or 4 weeks in Septem-
ber, and Respondent contends that he worked only the last week in Septem-
ber. The testimonies of General Counsel's witnesses. including Vasquez, fail
to reliably reveal when this employee was hired, and the state of Respon-
dent's payroll records is such that they fail completely to reveal that this
employee was paid for any work. I find it is unnecessary for me to resolve the
conflict as to his hire date, as all are agreed that he worked the last week in
September.
ringleader, and Vega was asked to report anything he heard
about the Union to Mishan.
Vega credibly testified that Ike Mishan asked him repeat-
edly after their first conversation concerning the Union if he
had heard anything about the Union. After Vega had dis-
avowed any knowledge of the Union for several weeks, Ike
Mishan offered him money, $400 or $500 according to
Vega, to refrain from joining the Union. Vega informed
Mishan that the would think it over. He subsequently dis-
cussed the money offer with union organizer Cavanaugh
who advised him to take the money.
As previously indicated, Ike Mishan accosted Vega im-
mediately after Cavanaugh had requested recognition on
October 3, and the employee admitted that he had signed a
card. Mishan then called him a "liar," stated that he "hated
liars," and called him a "Puerto Rican thief." Subsequently,
on October 4, Vega asserts that Ike Mishan asked him if he
would take the money previously offered, and Vega re-
sponded by saying that he would talk it over with his
mother.
On October 5 shortly after he came to work Vega told Ike
Mishan that he could not take it any more and was going to
leave. Mishan asked what he was going to do, and Vega
replied that he might go to Puerto Rico with his girlfriend.
Vega asked Mishan for the money he had been promised,
and Mishan informed him that he had a majority then and
could fire Vega. He then relented and told Vega that he
would give him $200 for that week's work although Vega
had worked only 2 days. Vega then demanded vacation
pay, and Mishan agreed to give him an additional $200.
Mishan gave the employee $200 in cash and then caused his
bookkeeper to make out a check for the vacation pay. The
check was supposed to be for $201, but Mishan gave Vega
$210 when he cashed the check, making the total given to
Vega $410. While waiting for the bookkeeper to prepare the
check, Vega informed one of the office girls, Eve, that he
was quitting and might go to Puerto Rico. As he left the
premises, Ike Mishan told him not to come back.
On October 7 Vega accompanied union organizer Cava-
naugh, Katz, and Lustgarten to Respondent's premises.
Cavanaugh, who did not testify during the hearing, was
permitted to enter but the employees were not. Ike Mishan,
who was the only witness to describe the conversation
which took place between him and Cavanaugh on the occa-
sion under discussion, testified that on entering the premises
Cavanaugh accused him of firing Katz and Lustgarten. Mi-
shan indicated that he replied, "I never fired them. They
never came in, and if they want to come in they can come
in now." Mishan claims that Cavanaugh replied he had
fired them, and that he indicated he was going to see about
the Board. Repeating his assertion that he had not fired
them, Mishan told Cavanaugh that he could go to the
Board if he wanted to. According to Mishan, whose testi-
mony I credit as Cavanaugh was not called as a witness,
Vega was not mentioned during the discussion.
General Counsel claims that Vega quit his job at Respon-
dent's because Mishan harassed him to the point that he
could not take it anymore. I find no merit in General Coun-
sel's claim that Vega was constructively discharged.
The underlying theory in a constructive discharge situ-
ation is that an employer is responsible for an employee's
1352
E. MISHAN & SONS. INC.
termination if the employer is responsible for creating a
situation so unbearable to an employee that he or she quits
rather than continue to work in the face of harassment.
John S. Barnes Corporation, 165 NLRB 485 (1967). How-
ever, an employee's private thoughts and feelings, standing
alone, do not provide a sufficient basis for a finding of un-
lawful discrimination, and an employer is not guilty of a
discriminatory discharge because an employee takes um-
brage at its antiunion actions or attitudes. Action Wholesale,
Inc., d/bla A. L. French Co., 145 NLRB 627 (1963):
Omark-CCI, Inc., 208 NLRB 469. 480 (1974).
Applying the above principles to the Vega situation, I
conclude that General Counsel has failed to prove that
Vega was constructively discharged by Respondent. In my
view, Mishan's interrogation of this employee and his offer
of money to him which was intended to cause him to aban-
don the Union did not constitute the kind of misconduct
which would normally cause an employee to quit. While
Mishan's behavior on October 3, if continued, might have
produced a situation which would have caused Vega to
conclude that he was compelled to involuntarily terminate
his employment, I note that the record fails to reveal that
Vega was subjected to any harassment on October 4 or
October 5. Significantly, Respondent has not been shown to
have altered his duties in any way. In reaching my conclu-
sion, I have also considered the fact that Vega decided to
take the money Respondent unlawfully offered and paid to
him. Since he was apparently motivated to quit, at least in
part, by his desire to obtain as much money as possible
from Respondent, I am disinclined to conclude that he ac-
tually felt that he had been placed in a position where he
had to quit to avoid harassment.
For the reasons stated, I find that Vega's voluntary quit-
ting was not tantamount to a constructive discharge viola-
tive of Section 8(a)(3) of the Act.
Steven Lustgarten
Steven Lustgarten was hired by Respondent as a ship-
ping and receiving clerk in March 1977. His starting rate as
a part-time student employee was $2.50 per hour, and he
received a raise to $2.75 per hour in August.
As previously indicated, Lustgarten accompanied Mi-
chael Katz to the mid-August meeting at the Union's offices
and there signed an authorization card which is dated Au-
gust 16, 1977.
On October 3 Ike Mishan, during his telephone conversa-
tion with Lustgarten's mother, which is fully described in
the section of this Decision entitled "Facts," informed Mrs.
Lustgarten that he knew Steve had signed a card. After
thoroughly indicating to Mrs. Lustgarten that her son had
betrayed him, Mishan informed Mrs. Lustgarten that if
anything happened to him his sons would take care of
Steve. In addition, he informed her "he [Steve] could come
back to work and not join the Union and they'll give him a
raise and he'll be all right."
During his testimony Lustgarten indicated that he re-
frained from reporting to work after he learned of Mishan's
telephone call because he feared for his life.
As previously indicated, Lustgarten accompanied Vega,
Katz, and union organizer Cavanaugh to Respondent's
premises on October 7. While Ike Mishan claims that he
told Cavanaugh on that occasion that Katz and Lustgarten
had not been fired and they could resume work at that time
if they wanted, the record fails to reveal that Lustgarten
was informed that Mishan had made such statements.
Applying the constructive discharge principle set forth
above in connection with the discussion of the Vega dis-
charge to Lustgarten's situation, I conclude that Ike Mi-
shan engaged in conduct on October 3 which was intended
to cause Steven Lustgarten to quit his employment at Re-
spondent unless he decided to abandon the Union. Steven
Lustgarten could reasonably conclude that his life had been
threatened when his mother informed him of the ambigu-
ous remark made by Mishan on October 3 to the effect that
if anything happened to him his sons would take care of
Steve. In sum, I find that the harassment visited on Lustgar-
ten through his mother was sufficient to cause this employee
to involuntarily terminate his employment at Respondent. I
further find that Ike Mishan intended to cause Lustgarten
to quit when he telephoned Mrs. Lustgarten on October 3,
1977. Accordingly, I find that Respondent constructively
discharged Steven Lustgarten on October 3, 1977, for dis-
criminatory reasons, and it thereby violated Section 8(a)(3)
and (I) of the Act, as alleged.
Michael Katz
Michael Katz was hired by Respondent in March 1977.
He was assigned to work in the shipping and receiving de-
partment at a weekly salary of $120. From the time he was
originally hired until late May, he worked only 4 days per
week.2 Katz left Respondent's employ for 2 weeks at the
end of May: he was hired in early June and thereafter
worked 5 days per week through the end of September.
During his period of employment, Katz was frequently
asked to pick samples from stock, as he was sufficiently
intelligent to perform such work effectively.
General Counsel's evidence clearly reveals that Katz was
the principal employee organizer. Thus, Katz was the first
employee contacted by the Union; he and Lustgarten were
the first two employees to attend a union meeting and sign
cards. Katz engineered the second union meeting and par-
ticipated in the solicitation of signatures on the cards signed
by Vega, Vasquez, Fein, and Otero.
Respondent, through the actions and comments of Ike
Mishan commencing September 9 and extending through
the month of September and into early October, clearly
demonstrated the fact that it was aware of Katz's participa-
tion in the union campaign. Thus, Mishan accused Katz of
being "involved" on September 9, and accused him of hav-
ing signed a card and "stabbing" him in the back by trying
to organize the shop during mid-September. In addition,
during his conversation with Mrs. Lustgarten on October 3.
Ike Mishan indicated that he was aware that Katz was at-
tempting to organize Respondent's shop.
Katz last worked on Friday, September 30, 1977. He tes-
tified without contradiction that he spoke with Ike Mishan
on September 30 and told Mishan that he would not be in
on Monday because he had school, Tuesday or Wednesday
21 He was paid four-fifths of $120.
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they were religious holidays, but would be in on
Thursday, October 6.
Prior to October 5 Katz was informed by Mrs. Lustgar-
ten of Ike Mishan's October 3 telephone call to her. Katz
testified that he did not report for work on October 6 as
scheduled because he was too scared to go to work. How-
ever, at or about 3 p.m. on October 6, Katz telephoned Ike
Mishan. Katz testified that he stated, "Ike, I heard you've
been trying to get in touch with us. Steve's mother says
you've been calling and you wanted to speak to us. What's
it all about." Katz indicated that Mishan told him to ask
Mrs. Lustgarten what it was all about, and when Katz
stated Mrs. Lustgarten was too shaken to talk Mishan
stated, "Well, Mike, you're too smart for me. If you want to
talk about it come in and we'll discuss it."
On October 7 Katz, Lustgarten, and Vega accompanied
Cavanaugh to Respondent's premises as described above.
Ike Mishan refused to permit the employees to enter origi-
nally, but testified that he informed Cavanaugh he had not
fired Katz or Lustgarten, and that they were then free to
come on in if they so desired. The record fails to reveal that
Cavanaugh transmitted Mishan's message to Katz and
Lustgarten.
Applying the above-described constructive discharge
principles to the facts revealing Katz's termination situ-
ation, I conclude that Katz voluntarily quit his employment
on October 6, 1977. While Ike Mishan did link Katz with
Steven Lustgarten during his conversation with Mrs. Lust-
garten on October 3, I note that Mishan did not then
threaten reprisal against Katz nor did he indicate to Mrs.
Lustgarten that Katz would have to agree to forgo partici-
pation in union activities before Respondent would permit
him to return to work. Mishan merely indicated that during
the conversation in question he was aware of Katz's union
activities and desired to get in touch with the employee. In
sum,' I find that Respondent did not, prior to October 6,
1977, engage in conduct which could reasonably have been
expected to cause Katz to involuntarily terminate his em-
ployment. Unlike Lustgarten, Katz did not have his life
threatened, and he was not informed that he would have to
abandon the Union if he wanted to work for Respondent.
For the reasons stated, I find that General Counsel has
failed to prove by a preponderance of the evidence that
Michael Katz was discharged in violation of Section 8(a)(3)
of the Act, as alleged. I recommend that the applicable
complaint allegation be dismissed.
C. The Alleged 8(a)(5) Violation
The complaint alleges, and General Counsel contends,
that Respondent has unlawfully refused to bargain with the
Union as the exclusive collective-bargaining agent of its
shipping and receiving employees since October 3, 1977.
Respondent's defense is twofold: it claims that the appro-
priate unit consists of the four full-time persons employed
in Respondent's shipping and receiving department; and it
maintains that General Counsel has failed to show that Re-
spondent engaged in unfair labor practices which would
preclude the Board from conducting an election among em-
ployees in the appropriate bargaining unit.
1. The appropriate unit
Paragraph 6 of the complaint alleges:
All shipping and receiving employees of Respondent,
employed at Respondent's place of business, excluding
salesmen, office clerical employees, guards, and super-
visors as defined in Section 2(11) of the Act constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
Respondent admits, and I find, that the unit set forth in
paragraph 6 of the complaint constitutes a unit appropriate
for the purposes of collective bargaining.
While Respondent agrees that a unit composed of Re-
spondent's shipping and receiving department employees is
appropriate, it would exclude all student employees on the
ground that they do not share sufficient community of in-
terest with full-time shipping and receiving employees. In
this regard, Respondent points to the fact that student em-
ployees work those days and hours that their college sched-
ules permit. In addition, Respondent notes that full-time
employees are salaried, receive paid holidays and vacations,
and are covered by a pension plan, while students are
hourly paid and receive no fringe benefits. I find no merit in
Respondent's contention that students should be excluded
from the unit. The student employees perform the same
work performed by full-time employees, working under the
same supervision. When not in school they work full time
and, upon entering school again, they work on a regular
part-time basis, their days and hours of work being deter-
mined by their school schedules. I find that Respondent's
student employees share sufficient community of interest
with full-time employees and find, in accord with normal
Board practice, that they are appropriately included in the
unit. See's Candy Shops, 231 NLRB 156 (1977); Sandy's
Stores, Inc., 163 NLRB 728, 729 (1967).22
Respondent claims in its brief that employees Fein and
Vasquez should be excluded from the unit because together
they worked only an aggregate of 6 days, and neither was
assured permanent employment by Respondent. The diffi-
culty with Respondent's contention is that the record is bar-
ren of facts which would reveal that Vasquez and Fein were
casual employees. To the contrary, Vasquez was hired by
Ike Mishan in late September as a regular full-time em-
ployee at a stated weekly salary.
Similarly, Fein was hired with the understanding that his
school schedule would permit him to work half of a day on
Monday and all day each Thursday. It is clear, and I find,
that Fein and Vasquez were regularly employed, the former
as a regular part-time employee and the latter as a regular
full-time employee. Both employees are includible in the
bargaining unit.
2. The Union's majority status
On October 3, 1977, when union Representative Cava-
naugh requested Respondent to recognize the Union as the
22 Respondent contends that I should find the student employees to be
temporary or casual employees as they are merely working for Respondent
until they become trained for totally different types of employment. As I
conclude the students are regular part-time employees. I deem their ultimate
objectives immaterial.
1354
E. MISHAN & SONS, INC.
bargaining agent of Respondent's shipping and receiving
employees, the Union had signed authorization cards from
Michael Katz, Steve Lustgarten, Willy Vega, Jose Vasquez,
Lowell Fein, and Samuel Otero. While there is some dis-
pute as to when Vasquez and Otero went to work for Re-
spondent, both were employed, as were other named em-
ployees, when Cavanaugh demanded recognition at 10 a.m.
on October 3, 1977.23
On October 3, 1977, at 10 a.m., Respondent employed
the following persons in its shipping and receiving depart-
ment: Martin Domfort, Walter Weiss, Albert Tyler, Willy
Vega, Jose Vasquez, Alex Kopatsis, Michael Katz, Steve
Lustgarten, Samuel Otero, and Lowell Fein. The Union
then had valid signed authorization cards from Vega, Vas-
quez, Katz, Lustgarten, Otero, and Fein. It is thus apparent
that at the time it demanded recognition, the Union repre-
sented 6 of Respondent's 10 shipping and receiving depart-
ment employees. Accordingly, I find that the Union repre-
sented a majority of Respondent's shipping and receiving
employees when it requested recognition on October 3,
1977.
3. The demand and refusal
Although Respondent claims that it lawfully refused to
recognize the Union on October 3, 1977, and thereafter,
General Counsel contends that Respondent has violated
Section 8(a)(5) of the Act since October 3, 1977, by engag-
ing in unfair labor practices designed to destroy the Union's
majority status and render the conduct of a fair Board-
conducted election among Respondent's employees impos-
sible. I agree with General Counsel's contention.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), the United States Supreme Court approved the use
of authorization cards as an indicator of employee senti-
ment and further approved reliance on such cards as a basis
for a bargaining order where there is "a showing that at one
point the union had a majority" and the employer has en-
gaged in unfair labor practices which "have the tendency to
undermine majority strength and impede the election pro-
cesses" (395 U.S. at 614). Both criteria have been satisfied
in the instant case. Thus, as I have previously found, the
Union represented 6 of the 10 employees in the appropriate
bargaining unit on October 3, 1977. Immediately after the
Union demanded recognition, Respondent, tnrough Ike
Mishan, interrogated each available shipping and receiving
department employee to ascertain whether he had signed a
union authorization card; it thereafter terminated employ-
ees Fein and Lustgarten for discriminatory reasons and
paid employees Vega and Otero cash money to cause them
to abandon the Union. It is clear, and I find, that by engag-
ing in the conduct described Respondent evinced its rejec-
tion of the collective-bargaining principle and sought to de-
stroy the Union's majority status before an election could
be held. Accordingly, I find that Respondent violated Sec-
23 Otero dated his card September 19. 1977. on the face and September 26.
1977, on the reverse side. I am convinced that Otero actually signed the card
and placed the two dates thereon. His reason for putting two dates on the
card was never fully explained. Nevertheless, I find the card (G.C. Exh. 6) to
be valid, and I count it to determine the Union's majority status.
tion 8(a)(5) of the Act, as alleged, from October 3, 1977,
forward, as it immediately embarked on an unlawful course
of action designed to eliminate employee support of the
Union and to make a fair election impossible when the
Union, which then represented a majority of its employees,
demanded recognition and bargaining.
In sum, I find that these unfair labor practices "are of
such a nature that their coercive effects cannot be elimi-
nated by the application of traditional remedies, with the
result that a fair and reliable election cannot be had."2 4
Finally, I find that the possibility of erasing the effects of
the unfair labor practices and of insuring a fair election by
use of traditional remedies, though present, is slight, and
that employee sentiment as reflected by their execution of
union authorization cards during the period August 16 to
September 29, 1977, would, on balance, be better protected
by a bargaining order. Ibid. For the reasons stated, I find
that Respondent violated Section 8(a)(5) of the Act by re-
fusing to bargain with the Union on and after October 3,
1977.2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section 111,
above, occurring in connection with its operations de-
scribed in section 1, 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 burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the conduct described in section III, A,
above, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(l) of the
Act.
4. By terminating Lowell Fein for discriminatory reasons
and constructively discharging Steve Lustgarten for dis-
criminatory reasons Respondent violated Section 8(a)(3)
and (I) of the Act.
5. All shipping and receiving employees of Respondent,
employed at Respondent's place of business, excluding
salesmen, office clerical employees, guards, and supervisors
as defined in Section 2(11) of the Act. constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6. On or about October 3, 1977, and at all material times
thereafter, the Union represented a majority of employees
in the appropriate unit and has been the exclusive repre-
sentative of said employees for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
'4 N.L.R.B. v. Gissel Packing Co., supra 395 U.S. at. 614.
2' The refusal-to-bargain violation dates from the time Respondent com-
menced its unfair labor practices on October 3, 1977.
1355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) of the Act since October 3, 1977.
8. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1). (3), and (5) of the Act. I shall recommend
that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Respondent will be required to offer Lowell Fein and
Steve Lustgarten reinstatement to their former positions of
employment or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, making them whole for
loss of earnings or other benefits within the meaning and in
accordance with the Board's Decisions in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). ' 6
Having found that Respondent has unlawfully refused to
bargain collectively with the Union, shall recommend that
it be ordered to bargain collectively with the Union. upon
request, with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
for the employees in the appropriate unit described above. I
shall also recommend that any understanding that the par-
ties may reach shall be embodied in a signed agreement.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that Re-
spondent cease and desist from in any other manner inter-
fering with, restraining, or coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act. I hereby issue the following recommended:
ORDER27
The Respondent. E. Mishan and Sons. Inc., New York,
New York, its officers, agents, successors. and assigns. shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their union
activities and sentiments or concerning the union activities
and sentiments of their fellow employees.
(b) Warning employees not to join District 65, Distribu-
tive Workers of America, or any other labor organization,
and threatening reprisals is such warnings are not heeded.
26See. generally. Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
27 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
(c) Promising or granting employees new benefits or
things of value, including cash, to cause them to forgo par-
ticipation in union activities.
(d) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment or any
term or condition of employment because of their union or
protected concerted activities.
(e) Refusing to recognize District 65, Distributive Work-
ers of America. as the exclusive collective-bargaining repre-
sentative of its employees in the appropriate unit described
below.
(f) In any other manner interfering with, restraining, or
coercing employees in their exercise of rights under the Act.
2. Take the following affirmative action:
(a) Upon request, recognize and bargain with District
65, Distributive Workers of America. as the exclusive repre-
sentative of all employees in the appropriate unit, and, if an
understanding is reached. embody it in a signed document
if asked to do so. The appropriate unit is:
All shipping and receiving employees of Respondent,
employed at Respondent's place of business, excluding
salesmen, office clerical employees, guards. and super-
visors as defined in Section 2(11) of the Act.
(b) Offer to Lowell Fein and Steve Lustgarten immediate
and full reinstatement to their former positions or. if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
previously enjoyed, and make them whole for any loss of
pay or other benefits suffered by reason of the discrimina-
tion against them in the manner described above in the
section entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards.
personnel records and reports. and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at Respondent's place of business at New York.
New York, copies of the attached notice marked "Appen-
dix."28 Copies of said notice, on forms provided by the Re-
gional Director for Region 2. after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof. and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 2. in writing.
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
:2 In the event that this Order is enforced by a Judgment of' a United
States court of appeals, the words in the notice reading "Posted by Order of
the National l.abor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional abhor Relations Board."
1356