Hock and Mandel Jewelers

National Labor Relations Board - Board Decisions

Dec 16, 1963

145 N.L.R.B. 435 (N.L.R.B. 1963)

HOCK AND MANDEL JEWELERS 435
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
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, 1015
Tijeras Avenue NW., Albuquerque, New Mexico, Telephone No. 243-3536, if they
have any question concerning this notice or compliance with its provisions.
Samuel Levine, doing business as Hock and Mandel Jewelers and
Local No. 1, Amalgamated Jewelry , Diamond and Watchcase
Workers Union , AFL-CIO. Case No. 2-CA-9010. December 16,
1963
DECISION AND ORDER
On June 20, 1963, Trial Examiner Sidney D. Goldberg issued his
Intermediate report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices as alleged in the complaint,
and recommended dismissal of the complaint as to them. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting 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 [Members Leedom, Fanning, 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted
below.'
Based upon his resolutions of credibility and the inferences drawn
from the record facts, the Trial Examiner found that Respondent had
made an unconditional offer of reinstatement to Juan Garcia which
Garcia refused unless Respondent first agreed to recognize the Union
as the employees' bargaining representative. The Trial Examiner
therefore concluded that Respondent's backpay liability ceased when
'Contrary to the Trial Examiner , we find that Respondent's interrogation of its em-
ployees as to whether they had joined the Union was coercive and violated Section 8(a) (1)
of the Act In this connection , we note that Respondent had indicated to the employees
that it was opposed to the Union and had discriminatorily discharged Garcia. We shall
therefore modify the Trial Examiner 's Recommended Order to provide that Respondent
cease and desist from engaging in this type of conduct
145 NLRB No. 46.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garcia responded to this offer with his conditional acceptance. Our
dissenting colleague, however, takes a different view of the facts.
In his opinion, Garcia's failure to accept reinstatement was not due
to Respondent's refusal to accord recognition to the Union, but
stemmed instead from Respondent's unlawful insistence that Garcia
refrain from engaging in concerted, protected activity as a condition
to reemployment, i.e., cease belonging to or supporting the Union.
If the record unequivocally demonstrated that Garcia's reemploy-
ment was conditioned upon the abandonment of his statutory rights,
we would readily agree with our dissenting colleague that Respondent
should be responsible for backpay until such time as an unconditional
offer of reinstatement was made to Garcia. However, we are not
prepared to say that the Trial Examiner's credibility resolutions
should not stand, and that the credited testimony does not pre-
ponderate in favor of the Trial Examiner's contrary conclusion. In
these circumstances, we perceive no compelling reason for upsetting
his findings, conclusions, or recommendations.
ORDER
The Board adopts as its Order the Recommended Order 2 of the
Trial Examiner with the following modification :
Delete paragraph 1(b) thereof and substitute therefor the fol-
lowing :
(b) Indicating, by statements to employees, surprise or dis-
pleasure at their having joined a union, or interrogating them
concerning their union adherence or sympathies, or in any other
similar, like, or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed by
Section 7 of the Act.
The notice shall also be amended by deleting the third prohibitory
paragraph and substituting therefor the following :
WE WILL NOT, by means of discharges or statements, or by inter-
rogating our employees concerning their union adherence or sym-
pathies, or in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their right to self-
"The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , his agents , successors , and assigns , shall:
The following shall be added immediately below the signature line in the Appendix attached
to the Intermediate Report:
NOTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
HOCK AND MANDEL JEWELERS 437
organization, to join or assist the above-named Union or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection or to refrain from any or all such activities.
MEMBER BROWN, dissenting in part:
On the facts herein I would find that Respondent's offer of rein-
statement to Garcia contained an unlawful condition. Therefore, it
was not a bona fide offer which Garcia was obligated to accept or
otherwise place himself in the status of a striker, as found by my
colleagues. Respondent's offer should not be considered in isolation,
but must be read in the light of the fact that Garcia was a Spanish-
speaking employee and in the context of Respondent's other conver-
sations and statements on the same subject.
Thus, after having discharged Garcia in violation of Section 8(a)
(3) and (1) of the Act, and after the other employees manifested a
willingness to talk over problems as a group instead of through union
representation, Respondent indicated to the employee group a will-
ingness to reinstate Garcia. In response to their expressions of fear
of retribution by Respondent against Garcia because the latter "tried
to join" the Union, Respondent promised only to "forget about every-
thing" and not "pick on him." Respondent made no promise that
he would not interfere with any renewed exercise of Section 7 rights
by the employees-a minimum required in a posting to remedy such
unfair labor practices. That Respondent's assurances were purposely
limited in this fashion becomes apparent from the response given that
same day to the request by union officials that Respondent reinstate
Garcia. For, although he had earlier promised employees that Garcia
could come back to work, the request by union representatives was
flatly denied on the ground that the operation was too small for a
union shop. Parenthetically, it should be noted that the representa-
tives had made no demand for, or even referred to, a union shop. Un-
doubtedly Respondent was referring to employee unionization, the
objective of the activity for which Garcia had been fired. Respondent
testified he also told the union representatives that if Garcia wanted
to come back to work he could do so on his own initiative and there
was no need for any "arbitrator." In my opinion, by this entire
conversation with the union representatives Respondent indicated his
continued opposition to union activity in the plant and his continued
unlawful denial of Garcia's Section 7 rights.
It was in this directly relevant background that, when Garcia
appeared at the plant for his pay and personal property, Respondent
asked Garcia to come back to work as if nothing had happened. The
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form of the offer implied a forgiveness of past conduct but contained
no assurance that Respondent would not repeat the unlawful response
to renewed collective activity which it so emphatically disapproved.
Garcia rightfully requested an explanation of what this ambiguous
offer meant when he inquired, "what about the union," impliedly
referring to his status as a union supporter. The reply that Respond-
ent would not have "anything to do with the union" was a clear an-
nouncement of Respondent's unalterable opposition to the principle
of collective bargaining and concomitant designation of the condition
placed upon the offer of reinstatement, namely, that Garcia abandon
his interest in and efforts on behalf of the Union. This could hardly
be the kind of offer which could stand as a substitute for a remedy
to the unfair labor practices committed against employees in the un-
lawful discharge of Garcia. Further, it was not sufficient that Re-
spondent specified this unlawful condition for reinstatement of Garcia,
he proceeded to conduct himself so as to get the most mileage possible
from the incident in his antiunion campaign. Accordingly, he pro-
ceeded to follow Garcia into the workroom where, in reiterating the
previous exchange with Garcia in a loud voice for the benefit of other
employees, Respondent made clear to them the condition just conveyed
to Garcia.
As there was never an unconditional offer of reinstatement, Garcia
was under no legal obligation to respond in any particular way.
Nevertheless, I do not agree that the response that Garcia gave
amounted to a demand for recognition of the Union, and made that
a condition to his returning to work. Respondent knew that Garcia
was not the spokesman for the Union. Respondent had personally
met the union representatives only 2 days before when they requested
Garcia's reinstatement. They did not at that time, or at any time
subsequent to filing their pending representation petition, demand
recognition. Thus Respondent had no reason to believe that any
means other than an election would be used to obtain recognition,
much less that Garcia was making such a demand. Garcia had been
fired for his union adherence and activities. In these circumstances,
if Respondent did not know from Garcia's comment that the dis-
criminatee was attempting to obtain assurance that he would retain
his statutory rights, it certainly was incumbent upon Respondent to
clarify the situation or suffer the consequences. I see no justification
in permitting an articulate Respondent to hide behind well-chosen
words of ambiguity and then interpreting the statements of an em-
ployee who was unfamiliar with the English language in such a way
as to redound to his detriment and deny him backpay.
In view of the foregoing, I would require that Respondent offer
Garcia reinstatement with backpay from the date of discharge.
HOCK AND MANDEL JEWELERS 439
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, under Section 10(b) of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151 et seq., herein called the Act), was commenced by
a complaint I alleging that Respondent had, in violation of Section 8(a) (1) and
(3) of the Act, interfered with, restrained, and coerced his employees In their
exercise of the right to join a labor organization and that he had discriminatorily
discharged and refused to rehire Juan Garcia because he had joined and assisted
the Charging Party (herein called the Union).
Respondent answered, denying the allegations of the complaint, and a hearing on
the issues so raised was held before Trial Examiner Sidney D. Goldberg at New
York, New York, on March 4, 1963, at which all parties were represented and
afforded an opportunity to present evidence, to examine and cross-examine witnesses,
and to argue the case.
For the reasons hereinafter set forth in detail, I find that Respondent's inter-
rogation of his employees concerning their membership in the Union was not
coercive and was justified by his need to investigate the Union's statement that it
represented a majority thereof. I also find that Respondent discriminatorily dis-
charged Juan Garcia because of his union activities but that the offer of reinstate-
ment was valid and that the conditions Garcia imposed upon his return to Respond-
ent's employ were unjustified.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent ( herein sometimes called Levine ), as sole proprietor of the business
conducted under the name Hock and Mandel Jewelers, is engaged in the city of
New York in the manufacture and sale of emblematic jewelry, including medals,
trophies , and pins. He admits that he annually purchases and receives , from States
outside the State of New York, goods and materials valued at more than $50,000
and that he annually manufactures and ships , from his place of business in the
State of New York to places in other States , products valued at more than $50,000.
I find that Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, for the purpose of this proceeding, that the Union is a
labor organization. I find that it is.
III. THE UNFAIR LABOR PRACTICES
A. Introductory
Respondent's business establishment consists of a manufacturing shop and an
office located on the same floor but some distance down the public corridor. In
the shop, which itself consists of two connecting rooms, Respondent employs a
foreman and four workmen.
Testimony concerning the events involved in this proceeding was given by all
five of the shop employees and by the Respondent himself. The facts are, in large
measure, undisputed.
B. Organization and the demand for recognition
Juan Garcia had been employed by Respondent for more than 5 years. Some-
time in November 1962 2 he became a member of the Union and obtained, from
each of his three fellow workers, signed authorization cards which he delivered to
the Union. On November 23, the Union wrote a letter to Respondent, stating
that it represented a majority of his employees and requesting an early conference
for collective bargaining. Respondent received this letter in the morning on No-
vember 26.
1 Issued January 24, 1563, on a charge filed December 5, 1962, and an amended charge
filed January 18, 1963
2 All dates, unless otherwise specified, are In 1962
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Interrogation on November 26
Immediately upon receiving the Union 's letter , Respondent went to the workrooms
and, after telling the foreman about the letter , asked each of the employees in turn,
including the foreman , whether they had joined the Union . The rank-and-file
employees , pursuant to Garcia 's previous instructions , denied any knowledge of the
Union and Levine left the shop.
D. Interrogation on November 27
On November 26 the Union filed a petition for a Board election 3 and the usual
letter of notification was sent to Respondent . He received it in the morning on the
27th; again he went to the workrooms and asked each employee whether he had
signed up with the Union and, once again , the employees said they had not. This
time Respondent pressed the point and again asked Garcia whether he had joined
the Union . This time Garcia said he "didn't know" whereupon Levine , growing
angry, said , "Don't tell me you don't know . Answer me yes or no." Garcia then
told Levine to call the Union if he wished to get the answer. At this point , Levine
testified , he said:
Look: I am receiving notices here that this place is unionized , and what are
you afraid to tell me that a union is here? ... I'm with you a hundred per-
cent. Tell me. Sooner or later it 's got to come out.
The employees , first Garcia and then each of the others , admitted that they had
joined the Union and Levine, shaking his head, walked out of the workrooms.
E. The "firing" of Garcia
It is clear from the record that the foregoing incident , during which Respondent
learned that his working force had signed union cards, was followed by at least
15 minutes of quiet.
Garcia testified that "later that day," while he was talking with employee Salvaggio,
Levine came in and said : "What 's going on here?" Salvaggio said that he had not
liked the arrangement whereby the men, having signed union cards , were required
to answer Levine's questions by saying they knew nothing about it; that he had
felt like a liar and had wanted to say he had joined . Levine answered that he
was angry because he did not like people doing things without telling him.
At this point Levine and Garcia , continuing their conversation in normal tones,
went into the other workroom . Garcia testified that Levine asked him what he ex-
pected to get out of the Union ; 4 that he said he expected to get a better salary and
better working conditions and that Levine responded that he wanted nothing to do
with a union ; that he (Garcia ) was not going to get anything out of him and that
if he did not like it he could quit . Garcia also testified that he then said he would
not quit; that if Levine wanted to fire him it was up to him [Levine] and that Levine
thereupon said: "You are fired."
I cannot fully credit Garcia's account of this conversation . While it is clear
that Levine , on his return to the workrooms , resumed the discussion of union or-
ganization and, therefore , I accept Garcia 's testimony that Levine asked him what
he expected to get out of the Union , Garcia's account of the course of their argu-
ment to the point where Levine fired him appears to have been carefully tailored
to prove that the discharge was solely for his union activities . Moreover , Garcia's
continuity conficts with the testimony of the other employees who heard parts of
the conversation . From all the evidence . I find that Garcia , in answer to Levine's
question , referred to the fact that Oppenheimer , an employee at that time for only
2 months, was being paid only slightly less than he was 5 and that Garcia claimed
that he was being underpaid . There is no doubt that, at the culmination of their
argument , Levine told Garcia that if he was not satisfied he could quit ; that Garcia
said he would not quit but that Levine would have to fire him and that Levine
thereupon said: "All right , you are fired." 6
Case No 2-RC-12421 , withdrawn December 5 on filing of the charge herein
d It is not clear that Levine , at this time, knew that Garcia had recruited the others,
although Garcia 's suggestion that he call the Union may have inspired at least a suspicion
5 Levine testified that Garcia compared his own salary of $ 80 with Oppenheimer's $70 ;
Garcia testified that he referred to a difference of only $5 in their salaries ; the variation
is too slight to be important.
6 Garcia placed the discussion about comparative salaries after Levine had "fired" him
It is this part of his testimony-and his testimony that Levine said , during the discussion,
that he wanted to have "nothing to do with " a union-which I do not credit
HOCK AND MANDEL JEWELERS 441
When he had finished firing Garcia, Levine turned to employee Vasquez, stand-
ing nearby, and said: "If you want to follow him, go ahead." Vasquez started to
take off his working clothes but Garcia stopped him, telling him to wait until he
(Garcia) went to the Union for advice and Levine said: "Yes, yes, he is going to
see his boss." Vasquez did not leave and Levine told him and employee Salvaggio
to "go back to work."
Subsequent to Garcia's departure, Vasquez asked Levine whether he "liked"
the Union. Levine answered in the negative and added that a union was good for
a large place with many employees. On the same day, employee Oppenheimer testi-
fied, Levine said to him: "I didn't expect you to join the Union, you are a new man."
F. The offer of reinstatement
Garcia was discharged on Tuesday morning. On Wednesday morning the shop
employees gathered in the toolroom and asked Levine whether they might talk to
him "as a group." He said they could and they asked hun to take Garcia back.
Levine agreed to do so. Employee Salvaggio expressed a fear that, if Garcia re-
turned, Levine might "pick on him" because he had "tried to join" the Union 'r but
Levine assured them that he would "forget about everything" and would not "pick
on him." The Union was not otherwise mentioned. At the end of the conference
Levine asked Vasquez, the other Spanish-speaking employee, to call Garcia and
tell him to come back to work.
On the same day, Benny Sher, the business representative of the Union, accom-
panied by its president, Leon Sverdlove, visited Levine and asked him to put Garcia
back to work. Sher testified that Levine said he would not and, when asked for a
reason, said: "Because my place is too small for a union shop here." Levine testi-
fied that he also told them that if Garcia wanted to come back to work he could
do so on his own initiative and there was no need for any "arbitrators."
Garcia did not return to Respondent's premises until Friday, November 30, when
he went to the office for his pay and some personal property he had left there. The
office clerk told Levine that Garcia was there and Levine came over to talk to him.
According to Garcia's credited testimony, Levine asked him to come back to work
as if nothing had happened; that he then said: "What about the Union?" and that
Levine answered: "I don't want anything to do with the Union." Garcia then
said: "Without the Union I am not coming back to work here" and Levine told
him to get his tools and go home. Levine's testimony concerning this conversa-
tion is credited to the extent that it indicates that the tone at its conclusion was not
friendly.
Garcia went to the workrooms and Levine followed him. As they entered Levine
said, loudly enough for all the employees to hear: "I'm offering him his job
back-he can sit down right now and go to work." Garcia then said that Levine
had refused "to have anything to do with the Union" and that he would not come
back to work unless it was a union shop. Levine confirmed Garcia's statement by
saying that he did not want a union in the shop and Garcia left.
Although Garcia used the phrase "union shop" and there is evidence that he had
some knowledge of the techniques of union activity, there is nothing in the record
to indicate that he was using the phrase as a term of art, i.e., the requirement im-
posed by a collective-bargaining contract that the employees be or become members
of a particular union .8
Determination of this aspect of the case, however, requires a finding of what
Garcia did mean when he rejected Levine's proposal that he return to work. It
was Garcia who persuaded his fellow employees to sign union cards and it is a
fair inference that he expected some reward-if only that of self-satisfaction-upon
the completion of his work by Respondent's recognition of the Union. When he
was offered reinstatement he was already employed at another plant, having gone to
work there almost immediately upon leaving Respondent, and this new job was ob-
tained for him by the Union. He was not, therefore, in need of employment, he
had not completed his self-assigned task of organizing Respondent's shop, and he
was obligated to the Union. Moreover, the record does not show any basic union
animus on the part of Respondent, although Levine had displayed anger when he
learned that his employees, notwithstanding their denials to him, had designated
7 The signed cards are not in evidence and it does not appear whether the employees had
merely apnlied for membership and authorized the Union to represent them or whether
they had actually become members of the Union. Garcia testified that, on November 27,
"nobody belonged" to the Union.
8 See System Federation No. 91, Railway Employees Department, AFL-CIO v. 0. V.
Wright, 364 U S 642, 644, footnote 3.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union as their agent, and there had been no threats of reprisal against the em
ployees for having joined the Union. From all of the evidence, I find that Garcia,
by his statement that he would return to work only "with the union," meant that he
would accept reinstatement only if Respondent recognized the Union as the collective-
bargaining representative of its employees. In this context, I also find that Levine's
answer that he did not want "anything to do with the Union" was simply a re-
statement of his refusal to recognize it 9 and not the imposition of a condition affect-
ing Garcia's right to become or remain a member of the Union.io
G. Conclusionary findings
1. As to the interrogation
On November 26, when Levine first interrogated his employees, he had just
received a letter from the Union informing him that it represented a majority of
his employees and requesting that he communicate with the president within 3 days
to arrange a bargaining conference. Levine went into the shop and asked each of
the four employees there whether he knew anything about the Union There is
no evidence of coercion, either by words or implication, and there is no indication
of interference by Levine with the employees' organizational rights. I find that
Levine's only purpose in asking the question was to determine whether the Union's
claim of representation was justified so that he could guide himself in dealing with
the Union's demand. Notwithstanding the absence of proof that Levine informed
each employee that he had received the letter from the Union 11 and his failure
to give express assurances against reprisals, the questioning was properly motivated
and conducted in an atmosphere free from employer hostility to union organization.
Upon all the evidence I conclude that Respondent's interrogation was justifiable
within the limits set by the Board in Blue Flash Express, inc., 109 NLRB 591,
and was not in violation of Section 8(a)(1) of the Act.
With respect to the interrogation of November 27, I reach the same conclusion.
Although the Board's notification that a petition had been filed does not, of course,
have the same legal effect as the Union's demand for recognition, it is doubtful
whether, under the circumstances , Levine could recognize the distinction . Coming
only a day after he received the demand from the Union, Levine might reasonably
have interpreted the Board's letter as some sort of approval or implementation of
the demand-and he still had 2 days to respond to that. In any event, his interroga-
tion of the men at their work was free from coercion and I find it, also, to be
justifiable under the Blue Flash rule.
2. As to the discharge of Garcia
Although I have found, contrary to the testimony of Garcia, that he and Levine
angrily discussed the small wage differential between Garcia's salary and that of
Oppenheimer, a new employee, before Levine suggested that Garcia quit and the
argument culminated in Levine's firing of Garcia, it is also clear, and I find, that,
absent Garcia's union activity, the argument would not have started. I also find
that Levine's angry reaction to Garcia's salary comparison, his suggestion that
Garcia quit if not satisfied, and his prompt response to Garcia's refusal to quit by
discharging him would not have occurred without the resentment that Levine felt
because of the union activities of Garcia and the other employees. Accordingly,
I conclude that Garcia was discriminatorily discharged to discourage membership
in the Union and that Respondent thereby violated Section 8(a) (3) and (1) of the
Act.
3. As to the offer of reinstatement
It has been found that Respondent's offer of reinstatement to Garcia was bona
fide and not invalidated by the imposition of any unlawful conditions but that Garcia,
insisting that he would not return unless Respondent recognized the Union, rejected
the offer. A discriminatorily discharged employee taking this position, the Board
has held, places himself in the status of a striker, preventing the further accrual of
any backpay to which he might be entitled by reason of his discharge.12
9 The complaint does not allege an unlawful refusal to bargain.
10 Compare Wings & Wheels, Inc, 139 NLRB 578.
11 Levine told the foreman, Russo, about the letter and Russo was in the same room as
the others
12 Coca-Cola Bottling Company of St Louis, 95 NLRB 284, 286, enfd 195 F. 2d 955
(CA. 8) ; Interior Enterprises, Inc., 125 NLRB 1289, 1290, reversed for lack of jurisd2e-
tion 298 F 2d 147 (CA 9) ; Knsckerbocker Plastic Co , Inc., 132 NLRB 1209, 1236
HOCK AND MANDEL JEWELERS 443
4. As to independent coercion or restraint
I have found that Respondent's discharge of Garcia on the morning of Novem-
ber 27 was because of his union activity, which consisted of his signing a union
card and persuading the other employees to do likewise. Accordingly, Levine's
statement to Oppenheimer at lunchtime on the same day that he did not think that
Oppenheimer, as a new man, would join, must be evaluated against the morning's
events. So viewed, I find that Levine's statement had the probable effect of restrain-
ing his employee in his exercise of the rights guaranteed in Section 7 and, therefore,
violated Section 8 (a) (1) of the Act.
Levine's negative answer to Vasquez' question whether Levine liked the Union
and Levine's statement that a union was "good for a large place with many em-
ployees" lacked any element of coerciveness. While there is testimony indicating
that Vasquez became nervous and upset during the argument leading to the dis-
charge of Garcia and Levine had invited Vasquez to follow Garcia, at least an hour
had passed since the incident, and, moreover, Levine's comments were made in
answer to a question put him by Vasquez. Accordingly, I find them to be expressions
of views and opinions protected by Section 8 (c) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of Respondent described in section I, above, occurring in connec-
tion with the unfair labor practices described in section III, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY'
Having found that the Respondent has committed certain unfair labor practices,
it will be recommended that he cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Although I have found that Respondent discriminatorily discharged Juan Garcia
on November 27, I have also found that Respondent made a bona fide offer to re-
instate him on November 30. Accordingly, Respondent should not be required again
to offer Garcia reinstatement 13 and I shall recommend that his right to be made
whole for any loss of earnings as a result of his discriminatory discharge terminate
as of that date. Any backpay to which Garcia may become entitled should bear in-
terest as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
I shall also recommend that Respondent be required to preserve and make available
to the Board or its agents, on request, payroll and other records to facilitate the
computation of backpay due.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local No. 1, Amalgamated Jewelry, Diamond and Watchcase Workers Union,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By discharging Juan Garcia on November 27, 1962, Respondent discouraged
membership in a labor organization and thereby engaged in an unfair labor practice
within the meaning of Section 8(a) (3) of the Act.
4. By the said discharge and by his statement to an employee that he was surprised
at his signing a union card, Respondent has interfered with, restrained, and coerced his
employees in the exercise of rights guaranteed in Section 7 of the Act and has
thereby engaged in an unfair labor practice within the meaning of Section 8 (a) (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not, since November 30, 1962, refused to reinstate Juan Garcia
and Respondent has not committed the other violations of the Act alleged in the
complaint.
11 Stafford Operating Company, 96 NLRB 1217, 1221.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that Samuel Levine, doing business as
Hock and Mandel Jewelers, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local No. 1, Amalgamated Jewelry, Diamond
and Watchcase Workers Union, AFL-CIO, or in any other labor organization of
its employees, by discriminatorily discharging any of its employees or by dis-
criminating in any other like or related manner in regard to their hire or tenure of
employment or any term or condition of employment.
(b) Indicating, by statements to employees, surprise or displeasure at their having
joined a union, or in any other similar, like, or related manner, interfering with,
restraining, or coercing employees in the exercise of the rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Make whole Juan Garcia for any loss of earnings he may have suffered by
reason of the discrimination against him for the period November 27 to 30, 1962,
in the manner set forth in the section of this report entitled "The Remedy."
(b) Upon application, offer Juan Garcia immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and dismiss, if necessary, any person hired since
November 30, 1962, to make room for him.14
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
an analysis of backpay due under the terms of this Recommended Order.
(d) Post at his plant in New York, New York, copies of the attached notice
marked "Appendix." 15 Copies of this notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by a representative
of the Respondent, be posted by him immediately upon receipt thereof and be
maintained by him 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 such notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in writing, within 20 days
from the date of receipt of this Recommended Order, what steps he has taken to
comply herewith.1°
3. It is further recommended that the complaint herein , insofar as it alleges the
commission of unfair labor practices not found in the Intermediate Report, be dis-
missed.
14 Stafford Operating Company, supra, at 1223
is In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the wards "A Decision
and Order "
1e In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discharge any employee because of his activity on behalf of
Local No. 1, Amalgamated Jewelry, Diamond and Watchcase Workers Union,
AFL-CIO, or any other labor organization.
WE WILL make Juan Garcia whole for any loss of earnings suffered by him
by reason of his discharge on November 27, 1962. Because a bona fide offer
MILK WAGON DRIVERS, ETC., LOCAL 603 445
of reinstatement was, on November 30, 1962 , made to and refused by him,
reinstatement to his former position is not being offered but , upon application,
he will be reinstated.
WE WILL NOT, by means of discharges or statements , or in any other like
or related manner, interfere with , restrain , or coerce our employees in the
exercise of their right to self-organization , to join or assist the above-named
Union or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection or to refrain
from any or all such activities.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members of Local No . 1, Amalgamated Jewelry, Diamond and Watch-
case Workers Union , AFL-CIO, or any other labor organization , except to the
extent that this right may be affected by an agreement in conformity with Section
8 (a) (3) of the National Labor Relations Act, as amended.
SAMUEL LEVINE, DOING BUSINESS AS
HOCK AND MANDEL JEWELERS,
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, Squibb
Building, Fifth Avenue , New York, New York , Telephone No. Plaza 1-5500, if
they have any question concerning this notice or compliance with its provisions.
Milk Wagon Drivers and Dairy Employees Union Local 603,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Drive-Thru Dairy, Inc.
Cases Nos. 14-CC-172 and 14-CE-7. December 16, 1963
DECISION AND ORDER
Upon charges duly filed by Drive-Thru Dairy, Inc., herein called
Drive-Thru, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Fourteenth Region, on
May 8, 1961, issued a consolidated complaint alleging that Milk
Wagon Drivers and Dairy Employees Union Local 603, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called Respondent, had engaged in and was en-
gaging in unfair labor practices within the meaning of Section
8(b) (4) (i), (ii) (A) and (B) and 8(e) of the National Labor Rela-
tions Act, as amended. Copies of the charges, consolidated complaint,
and notice of hearing before a Trial Examiner were duly served upon
the Respondent.
With respect to the unfair labor practices, the consolidated com-
plaint alleges, in substance, that Respondent violated Section 8(e)
of the Act by entering into an implied agreement with Pevely Dairy
Company, herein called Pevely, which is prohibited by that section;
that Respondent violated Section 8 (b) (4) (A) by inducing and en-
145 NLRB No. 42.