Frankel Associates, Inc.

National Labor Relations Board - Board Decisions

May 12, 1964

146 N.L.R.B. 1556 (N.L.R.B. 1964)

1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sidered by the Board in its Supplemental Decision of June 8, 1962,
we find that neither the alleged increase in interchange,' nor the alleged
technological changes,1° are sufficient to render inappropriate the litho-
graphic production unit found appropriate on June 8, 1962. We
therefore reaffirm our prior determination that the lithographic pro-
duction employees constitute an appropriate unit. We also affirm the
finding in the Board's earlier Decision and Order herein that Re-
spondent, as of July 17, 1962, refused to bargain and has continued to
refuse to bargain with the Charging Union, the certified representa-
tive, in an appropriate unit, in violation of Section 8(a) (5) and (1)
of the Act. Further, we affirm the order in the said Decision and
Order.
Y Weyerhaeuser Company, supra . Compare Pacific Pre8s , Inc., 66 NLRB 458; and
Pacific Coast Association of Pulp and Paper Manufacturers , 130 NLRB 1031 , which we
find are distinguishable from the instant case on their facts.
10 See Allen, Lane & Scott, et al., 137 NLRB 223. Compare Weyerhaeuser Company,
142 NLRB 1169.
Frankel Associates, Inc. and District 65, Retail , Wholesale and
Department Store Union , AFL-CIO. Case No. 2-CA-9259. May
12, 1964
DECISION AND ORDER
On February 26, 1964, Trial Examiner Paul Bisgyer issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had unlawfully interrogated and made coercive remarks to one em-
ployee but that it had not engaged in the other unfair labor practices
alleged in the complaint, and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the Charging Party
filed exceptions to the Trial Examiner's Decision and briefs in support
thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer 's Decision, the exceptions, the briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications and
additions :
1. We find, in agreement with the Trial Examiner, and for the
reasons stated by him,'that the Respondent did not discriminatorily
discharge employees Melvin Richard, Samuel. Fluitt, and Joseph R.
Edwards in violation of Section 8 (a) (3) of the Act.
146 NLRB No. 182.
FRANKEL ASSOCIATES, INC. 1557
2. The Trial Examiner found,.and we agree, that-on April 5, 1963,
the Respondent's warehouse supervisor, Handsman, interrogated and,
threatened employee Jones, and that such conduct necessarily had a
restraining effect upon an employee's exercise of his statutory rights
and accordingly violated Section 8(a) (1) of the Act. The Trial Ex-
aminer nevertheless held that since this violation was an isolated one,
it would serve no useful purpose to issue a cease-and-desist order. We
disagree. In our view, Handsman's interrogation of an employee
about his and other employees' union activity without justification
therefor and his threat to an employee that "there would be trouble"
because employees engaged in union activity, which interrogation and
threat it could be presumed would be and in fact was communicated to
other employees, coerced employees in the exercise of their rights under
Section 7 of the Act. Such coercion, we believe, under all the circum-
stances of this case, warrants the issuance of a remedial order.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that' the
Respondent, Frankel Associates, Inc., New York, New York, its
officers, agents, successors, , and assigns, shall :
1. Cease and desist from :
(a) Interrogating any of its employees with respect to the activity,
membership, or interest of any of its employees in any labor organiza-
tion in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act.
(b) Threatening reprisals against any employees because of their
union activities and affiliations.
(c) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist District 65, Retail,
Wholesale and Department Store Union, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or to
refrain from engaging in such activities, as guaranteed in Section 7
of the Act, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8(a) (3) of the Act, as
amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
3 Alamo Linen Service, 136 NLRB 1127.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its installations in New York and Brooklyn, New York,
copies of the attached notice marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Respondent, be posted by the
Respondent immediately upon receipt thereof, and be maintained by'
it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said,
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges that the Respondent has violated
Section 8(a) (3) of the Act and that it has violated Section 8(a) (1)
except as herein found.
2 In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order," the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL NOT interrogate employees concerning their member-
ship in, or interest on behalf of, District 65, Retail, Wholesale and
Department Store Union , AFL-CIO, or any other labor organi-
zation, in a manner constituting interference, restraint , or coer-
cion violative of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees with reprisals because
of their union organizational activities and affiliations.
WE WILL NOT, in any like or related manner, interfere with,
restrain , or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join or assist
District 65, Retail, Wholesale , and Department Store Union,
AFL-CIO, or any other labor organization , to bargain collec-
tively through representatives of their own choosing , and to en-
gage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection , as guaranteed in
Section 7 of the Act, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
FRANKEL ASSOCIATES, INC. 1559
ment requiring membership in a labor organization as condition
of employment as authorized in Section 8(a) (3) of the Act, as
amended.
FRANKEL ASSOCIATES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York,
New York, Telephone No. 751-5500, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all the parties represented, was heard before Trial Examiner
Paul Bisgyer on October 2, 3, and 4, 1963, in New York, New York, on the amended
complaint of the General Counsel 1 and the amended answer of Frankel Associates,
Inc., herein called the Respondent. The issues raised by the pleadings and litigated
herein were whether the Respondent, in violation of Section 8(a)(3) of the National
Labor Relations Act, as amended, discriminatorily discharged employees Melvin
Richard, Samuel Fluitt, and Joseph R. Edwards on April 5, 1963, because they joined
and assisted District 65, Retail, Wholesale and Department Store Union, AFL-CIO,
herein called the Union, and otherwise interfered with, restrained, and coerced em-
ployees in the exercise of their statutory rights in violation of Section 8(a)( I) of
the Act. At the close of the hearing the parties argued their positions orally. There-
after, only the General Counsel filed a brief which has been carefully considered.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, is engaged in the business of importing,
selling , and distributing textiles, Christmas ornaments, and related products in New
York, Michigan, and California. Only its New York operations located in Manhat-
tan and Brooklyn are involved in this proceeding. In the course and conduct of its
business, the Respondent annually purchases materials valued in excess of $50,000
which are shipped to its New York operations from other States and foreign coun-
tries. In addition, the New York operations annually ship products valued in excess
of $50,000 to points outside that State.
No question of jurisdiction is raised and I find that the Respondent is, and has been
at all times material, engaged in commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate statutory policies to assert jurisdiction herein.
H., THE LABOR ORGANIZATION INVOLVED .
It is conceded, and I find, that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
1. The events leading up to the employees' decision to join the Union
Except for minor details, the evidence is substantially undisputed. Melvin Rich-
ard, Samuel Fluitt, and Joseph R. Edwards, the alleged discriminatees, and Ronald
' The charge was duly filed and served on the Respondent on April 10 and 12, 1963,
respectively.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones were employed in the Respondent's shipping department at its Manhattan
place of business. In December 1962,2 the Respondent's president, Joseph Frankel,
interviewed Richard concerning the disappearance of certain stock which Richard
had previously reported to the Company. Richard stated that he saw Jimmy Boykin,
who was in charge of the shipping room, steal merchandise. Expressing his dis-
pleasure at Richard's failure to reveal this information sooner, Frankel requested him
to repeat it to the police whom he was going to summon. A few days later Detec-
tive George Barrett and his partner arrived at the Respondent's establishment and
conducted a routine investigation during the course of which Richard made his dis-
closure? When confronted with this information, Boykin confessed his thefts to the
detectives and on December 28 he was discharged. The detectives assured Frankel
that they would keep his establishment under surveillance in the hope that other
culprits or accomplices might be apprehended.
On Friday, January 11, 1963, according to Richard, he was assaulted in the hall-
way of his home by three men, one of whom remarked that this beating was "a
present from Jimmy [apparently meaning Boykin] for being a rat." Richard did
not notify the police but the following Monday told the Respondent who immedi-
ately sent him to a doctor and reported the incident to the police. Detective Barrett
and his partner again questioned Richard but were not impressed by his varying
versions of the asserted attack and so advised the Respondent.
About the middle of January an expensive suit was stolen from Frankel's office
while he was out to lunch. Thereupon, Frankel questioned Richard, who was the
only shipping employee allowed to enter his office without special permission, as
to whether he had seen anyone leave his office with the suit. Richard denied seeing
anyone but suggested that it might have been a delivery boy from another company.
At Frankel's request, Richard searched the premises for the suit but was unable to
locate it.
About February 15, Frankel gave his secretary, Audrey, a box containing a coat
with instructions to address it to a named customer and to take the box down to the
shipping department for mailing. Upon learning in the early part of March that the
addressee had not received the package, Joseph Frankel sent his son to the shipping
department to check the parcel post book in which every mailed package was recorded
for information concerning the mailing of the coat. However, no record of such
mailing could be found? Joseph Frankel then spoke to Audrey who stated that she
had given the package to Richard or Nat Siegel, a Brooklyn employee then on tem-
porary detail to the Manhattan operation, but could not remember exactly which one
it was. Considering Richard as the person who normally would receive the pack-
age, Frankel summoned Richard and, notwithstanding Audrey's uncertainty, told
Richard that Audrey said she had given him the package to mail. Although Richard
denied receiving the package from her, Frankel told Richard that he had better find
the package or else he was going to fire everyone in the shipping department .5 The
thefts of the suit and coat were reported to Detective Barrett but were never solved.
According to Frankel, after discussing this unhappy situation with Barrett and com-
pany officials, he gave serious thought to the idea of cleaning house as a security
measure by discharging all the shipping employees and hiring new ones.
Believing that his and the other shipping employees' jobs were in jeopardy, Richard
promptly related his conversation with Joseph Frankel to Edwards, Fluitt, and Jones
and proposed that they join the Union to protect their jobs. All were aereeahle to
the idea. On March 7, in accordance with prior arrangements that Richard had
made with a representative of the Union, the four of them went to the Union's office
and signed membership application cards. There is no evidence that at this time any
company official was aware of this visit to the Union or of any employee interest in
that organization.
2 At this time, Edwards and Jones were not in the Respondent's employ, having been
hired more than n month later.
8 According to Detective Barrett, Richard stated he was furnishing this information be-
cause he had a police record and did not want to be involved in charges of theft.
' While so engaged in this search, Jay Frankel Informed Richard about the missing
coat.
5 Frankel testified that he was suspicious of Richard, as well as the other shipping de-
partment employees, because stealing had not ceased with Boykin's discharge in December
and' because of Richard's police record. Whether or not Frankel was justified in his sus-
picions, one thing is clear-and it is not otherwise contended-that Frankel's attitude
could not have been inspired by hostility to the Union, which the employees had not yet
joined, when he threatened to discharge all the shipping employees. , ,
FRANKEL ASSOCIATES, INC. 1561
2. Subsequent events ; the discharges
On March 23 , while Joseph Frankel was in Europe , the Respondent 's vice presi-
dent and general manager , Bernard Deutch , discovered that a drawer in a desk was
broken into and some $400 in cash was stolen . Deutch promptly notified the police
and Detective Barrett came to the Respondent 's place of business to investigate the
theft . Barrett recalled that at this time, as on a previous occasion , some discussion
was had with the Respondent about cleaning house as a means of eliminating the
stealing that the Respondent was experiencing . When Frankel returned to his office
from his trip abroad on April 1 or 2, Deutch apprised him of the latest theft.
Frankel testified that this occurrence brought to a head his earlier decision to dis-
charge the shipping room employees.
On or about April 1 or 2, while cleaning up behind the shipping desk , Richard
found an empty box which he correctly surmised was the box that originally con-
tained the missing coat . Richard thereupon called Jay Frankel and told him about
his discovery . Jay took the box and brought it to his father , Joseph . Thereafter,
Joseph Frankel summoned Richard to his office . ' Richard testified that when he
arrived Joseph Frankel asked him where he had found the box ; that he replied that
he had found it behind the shipping desk while cleaning there; that Frankel then
inquired if he had thought of looking there before ; and that he ( Richard ) answered
in the negative. Richard further testified that Frankel insisted that the coat be found
because it was an expensive one and warned that he was holding him responsible for
it. In reply , Richard testified , he denied responsibility , asserting that he was bur-
dened with many duties. Except for minor variations , the foregoing recital was
not contradicted by Frankel . However , there is a serious conflict in testimony
whether on this occasion Frankel also interrogated Richard concerning his union
membership and made certain coercive statements alleged to be unfair labor
practices .6
According to Richard , the following ensued after the above -exchange of remarks
regarding the coat : Frankel told Richard that he could leave the office but stopped
him short to inquire whether he had anything else to tell him . When Richard replied
in the negative , Frankel asked whether he wanted to tell him about the Union.
Richard then responded , "What union?" and Frankel added the one "you belong to,
don't you belong to a union ?" Richard then answered that he did . At that point
Richard quoted Frankel as saying , "If you need any money , you could come to me
and I would let you have it, but [ I] do not want my shop unionized ." After this
remark Richard returned to work . Frankel categorically denied that such a conversa-
tion ever took place.
I find Richard 's testimony concerning Frankel 's union interrogation and monetary
offer unconvincing . The record is devoid of any evidence which would indicate
that up to the time of the conversation in question that any company official was,
or would likely be, aware that any employee joined or was interested in, a union.
Indeed , as of that time the Union had not conducted any organizational campaign at
the Manhattan operations , much less an open one.7 Nor is there any evidence that
any employee engaged in union activity or solicitation under such circumstances from
which an inference of knowledge on the Respondent 's part may reasonably be drawn.
Moreover , at the time of the conversation , the Union had not yet advised the
Respondent that it represented any of its shipping employees , although Richard add
his three coworkers had joined about 4 weeks earlier . In addition , if Frankel had
previously learned of his employees ' interest in the Union which incurred his enmity,
as the General Counsel maintains , it is odd that Frankel would have waited for
Richard 's fortuitous discovery of the box in which the missing coat was packed to
summon him to his office to interrogate him about the Union and to offer him
money to forestall the unionization of his business . In view of the foregoing, and
6 Richard testified that Jay Frankel was present during the initial part of the foregoing
conversation but left before Joseph Frankel 's alleged union interrogation and coercive. re-
marks. However , in one of his pretrial affidavits given to a Board agent, Richard in-
dicated that Jay Frankel was present throughout the conversation . Richard admitted that
the affidavit was incorrect in this respect. Joseph Frankel , on the other hand, denied
that anyone was present during any part of the conversation.
7 Also indicating that the Manhattan employees desired to keep their membership and
interest in the Union secret is the testimony of Alvin Dicker , the Union 's vice president,
that "about the beginning of April," when he broached the subject of organizing the
Brooklyn warehouse employees to some of the Manhattan employees , the latter suggested
that he speak to the Brooklyn employees early in the morning before the warehouse
opened and the supervisors arrived.
1562 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
appraising Richard 's account of the purported interrogation and money offer in light
of the prior events, I find his testimony in this respect improbable and unbelievable
and credit Frankel's denial that he engaged in such conduct.
On April 5, Ronald Jones, a Manhattan employee, worked in the Brooklyn ware-
house on temporary detail for the day.8 He testified that about 9 or 10 in the
morning he and other employees had coffee in the office of Daniel Handsman, super-
visor in charge of the Brooklyn warehouse; that, after finishing their coffee and as the
employees were leaving, Handsman requested him to remain, which he did; that
Handsman told him that the warehouse employees had informed him that a man
had spoken to them about "the union"; 9 that Handsman then asked him (Jones)
whether he had joined; that he answered in the affirmative that he had signed a card;
and that, in reply to Handsman's further question as to who else had joined, he stated
that "the rest of the fellows" did, too, apparently referring to the other Manhattan
employees. Jones also testified that Handsman then followed this up with another
inquiry concerning the identity.of the individual who had mentioned the Union to
those employees, and that when be said.it was Richard, Handsman remarked, "Yes,
I figured that is who it would be." At that point, Jones testified, he told Handsman
not to blame Richard because "we all wanted to join the union to try to get better
benefits." Later in his testimony, Jones, explaining his interest in the Union, stated
he had signed a "card registering for the Union" but before he joined he wanted
"to investigate a little further." Jones also quoted Handsman as saying that the
boss (whom Jones identified in his testimony as Joseph Frankel) did not know any-
thing about the Union and that "if the boss would find out he [Handsman] thought
there would be trouble." 10 Furthermore, Jones testified that Handsman added that
"he did not blame any of us for joining the union, he has nothing against" it, and
that "any man is entitled to do anything he wants to do." Handsman denied having
had the conversation to which Jones testified or having had any knowledge of any
employee's union activity at that time.
Jones impressed me as a reliable and trustworthy witness. At the time of the
hearing he was no longer in the Respondent's employ and bad no demonstrable
interest in the outcome of this litigation which would induce him to fabricate a con-
versation that never occurred. Moreover, his testimony was inherently probable.
Indeed, a union representative was engaged in soliciting Brooklyn employees to join
the Union, as Jones stated Handsman told him. Furthermore, as indicated above,
Jones candidly testified to Handsman's sympathetic attitude toward the employees'
union interest and, although he quoted Handsman as expressing the belief that there
would be trouble if Joseph Frankel learned about the Union, Jones' recital of the
conversation reveals that Handsman's remarks were not uttered with any coercive
intent to discourage membership in the Union. Accordingly, I credit Jones' testi-
mony and reject Handsman's denial.
At the close of the workday on April 5, which was also the end of the regular
workweek, General Manager Deutch separately called Richard, Fluitt, and Edwards
into his office and told them that they were laid off or discharged because business
was slow 11 and that he was going to utilize the Brooklyn employees, who were the
more senior employees, to help out in Manhattan. Admittedly, this was not the true
reason for the termination. The Respondent's officials testified that, as a precaution
against a possible lawsuit, their attorney advised.them that, unless they had conclusive
proof of these employees' guilt for the thefts-which they did not have-they should
not inform the employees they were being discharged for stealing. The record is
also clear that prior to the discharges, on at least two occasions the Respondent's
officials, perturbed by the thefts and the inability to identify the culprits, discussed
with Detective Barrett the advisability of cleaning house by getting rid of the shipping
employees. Although the Respondent's officials testified that they followed Detective
8 Both Jones and Richard testified that when Jones was assigned to work in the
Brooklyn warehouse the day before, Richard asked him to solicit the Brooklyn employees
to join the Union and gave him some union cards for that purpose. There is no evidence
that Jones complied with this request . " Nor is there any evidence that Richard himself
ever solicited the Brooklyn employees.
0 According to Union Vice President Dicker's uncontradicted testimony, which I credit,
he spoke to the Brooklyn warehouse employees about joining the Union "the beginning of
April."
10 Under further questioning by the General Counsel, Jones stated that he was not sure
whether Handsman said "if" or "when" the boss found out.
11 There is conflicting testimony , which need not be resolved , whether the Respondent's
President Frankel repeated this reason to representatives of the Union when they appeared
at the Manhattan establishment to protest the discharges.
FRANKEL ASSOCIATES, INC. 1563
Barrett's recommendation, Barrett's testimony indicates that he was careful not to
take an affirmative position. However, the Respondent did not clean house com-
pletely. It retained Nicholas Jeremolovich and Jones, explaining that the former
had recently been hired to replace Richard and the latter to help this new employee.
On the other hand, the Respondent asserts that it selected Richard and Fluitt for dis-
charge because they were suspects and Edwards because of, his friendly association
with those two. Finally, the Respondent maintains that since the discharges it has
experienced no pilfering in its business.
B. Concluding findings
1. With respect to the discharges
As is usual in cases of this type, the question whether the Respondent discrimina-
torily discharged employees Richard,12 Fluitt, and Edwards is a factual one, depend-
ing principally upon circumstantial evidence for its determination. From my care-
ful appraisal of the record herein, I find insufficient evidence to support the allega-
tions of the complaint that these discharges were dictated by the employees' union
membership and activities and not by the Respondent's legitimate desire to eliminate
stealing in its Manhattan operations.
As shown above, the Respondent discharged these employees following a series
of unsolved thefts that occurred at its Manhattan place of business.13 Understand-
ably concerned that stealing persisted despite an earlier dismissal of an employee
who had confessed to thefts of merchandise, the Respondent, on at least two occa-
sions discussed with the police assigned to investigate these incidents the necessity of
cleaning house by discharging all the shipping employees as a security measure against
future thefts. Significantly, Richard testified that even before he and his coworkers
had joined the Union, the Respondent's President Frankel had threatened to take
such action unless a stolen coat had been returned. Indeed, it is admitted that he
and the other shipping employees thereupon joined the Union to protect their jobs
they feared were thus jeopardized.
While the timing of the discharges and the retention of employee Jones 14 may
possibly be cause for suspecting the Respondent's motives, the record is barren of
any credible evidence of hostility toward the Union on the part of any company
official or supervisor or that they made any antiunion remarks to employees deliber-
ately designed to discourage union activity. Jones' testimony concerning his con-
versation with Handsman, the Brooklyn supervisor, does not establish, the con-
trary. Rather it shows that Handsman was sympathetic with the employees' union
interest, unqualifiedly recognizing their right to join a labor organization. His in-
terrogation of Jones appears to me to have been prompted more by innocent curiosity
than by a desire to ferret out union adherents for reprisal by the Respondent. It
is true that Handsman told Jones that he thought there would be trouble if or when
the Respondent's President Frankel learned of the employees' interest in the Union.
However, there is no convincing evidence that Frankel or any other company official
or supervisor, save Handsman, knew at-the time of the discharges of the Union's
existence or the employees' membership in that organization. Although a super-
visor's knowledge of union activity is normally imputable to his employer, I hesitate
to find, on the record in this case, that company officials possessed this information
when they decided to terminate the employment of Richard, Fluitt, and Edwards.
1 Although Richard testified that he was head of the shipping department and referred
to himself In his pretrial affidavit given to a Board agent as foreman of the Ohl- Ing de-
partment, the record shows that the authority he actually possessed was merely of a
routine nature not requiring the use of independent judgment. Accordingly, I find that
he was not a supervisor within the meaning of Section 2(11) of the Act and is entitled
to the protection the Act affords employees.
r"The General Counsel disputes President Frankel's assertion that the $400 theft pre-
cipitated the discharges. He relies on the fact that this incident was not mentioned in a
pretrial affidavit prepared by a Board agent which Frankel signed with knowledge of his
attorney. However, the affidavit does not purport to give the reasons for the discharges.
It merely sets forth affiant's knowledge and version of certain other incidents conceivably
in response to versions given to the Regional Office In support of the charges filed herein.
Moreover, Frankel testified, without contradiction, that he had mentioned the $400 theft
when interviewed by the Board agent. I find it difficult to believe that the $400 theft
would not enter into the Respondent's discharge decision, if stealing at the Manhattan
establishment actually motivated the decision.
14 However, the record does not support the General Counsel's assertion that Jones was
retained In the Respondent 's employ because he had renounced the Union.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing , I find no substantial basis in the evidence for inferring
that the Respondent seized upon the theft problem as a pretext for ridding itself
of members of the Union , as the General Counsel argues. The most that can be
said for the General Counsel 's case is that the Respondent's asserted reason is not
beyond suspicion . But suspicion is not an adequate substitute for evidence. More-
over, whether or not the discharges were merited or unmerited or just or unjust
are not matters on which the Trial Examiner may pass judgment , and I therefore do
not determine whether any of the discharged employees were guilty of any of the
asserted offenses. It is axiomatic that an employer may discharge an employee for
cause or even no cause at all provided it is not for union membership or activity.
As the General Counsel has failed to sustain his burden of proving , by a pre-
ponderance of the evidence, that an antiunion purpose motivated the discharges, I
recommend that the allegations of discrimination set forth in the amended complaint
be dismissed,
2. With respect to interference , restraint, and coercion of employees
I have heretofore found that Handsman , the Brooklyn warehouse supervisor, had
'questioned Jones in private concerning his union membership and that of other
employees , and in the same conversation voiced the opinion that there would be
trouble if or when the Respondent 's President Frankel learned of the employees'
union membership . Although conduct of this type necessarily has a restraining
effect upon an employee 's exercise of his statutory rights and violates Section 8(a) (1)
of the Act , irrespective of good faith such as that exhibited by Handsman , I never-
theless find that, under all the facts and circumstances herein, it would serve no
useful purpose to issue a cease and desist order to remedy this isolated violation.
Accordingly , I recommend the dismissal of the Section 8(a)(1) allegations of the
amended complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and upon the entire record in the case,
I recommend that the amended complaint issued herein against Frankel Associates,
Inc., be dismissed.
Communications Workers of America Local 1104, AFL-CIO and
Frederick Bond d/b/a Bond Electric Company. Case No.
2-CC--817. May 12, 1964
DECISION AND ORDER
On February 20,1964, Trial Examiner Frederick U. Reel issued his
Decision in the above case, finding that the Respondent had not en-
gaged in the unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed, as set forth in his attached
Decision. Thereafter, both General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision
and the entire record in this case, including the exceptions and briefs,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
[The Board dismissed the complaint.]
146 NLRB No. 180.