I. Posner, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1964

145 N.L.R.B. 1190 (N.L.R.B. 1964)

1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory treatment accorded by Respondent to other active union adher-
ents, I find inescapable the conclusion that Respondent discriminated
against Ortega in his recall from layoff status because of his protected
concerted activity and union adherence. Accordingly, I would order
that Ortega be made whole for the loss of pay suffered by the dis-
criminatory delay in his recall.
1. Posner, Inc.; Posner Distributing . Corp .; Posner Beauty and
Barber Supply Corp .; and Hamilton Posner and District 65,
Retail, Wholesale and Department Store Union , AFL-CIO.
Cases Nos. 2-CA-8867, 2-CA-8936, and 2-C, A-9021. January 22,
1964.
DECISION AND ORDER
On September 3, 1963, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom, and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that the Respondents had not en-
gaged in certain other unfair labor practices and recommended dis-
missal of the complaint as to them. Thereafter, the Respondents and
the General Counsel filed exceptions to the Trial Examiner's Decision
and briefs in support thereof and the General Counsel filed a brief
in answer to the Respondent's exceptions and brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases 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 Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner 2 with the following modifications.
The Respondents except to the Trial Examiner's findings that Jose
Greenberg and Bill Brown were supervisors as defined in the Act.
We agree with the Trial Examiner's findings in this respect for the
following reasons :
Jose Greenberg: Relying on testimony which he credited, the Trial
Examiner found Jose Greenberg to be a supervisor in that he possessed
I The Respondents ' request for oral argument is hereby denied as the record , exceptions,
and briefs adequately present the issues and the positions of the parties
2 we find without merit the contention of the Respondents that the Trial Examiner was
biased or prejudiced against them . A consideration of the entire record shoos no basis
for so finding
145 NLRB No. 117.
I. POSNER, INC., ETC. 1191
and exercised authority to assign work, report to Posner any employees
who violated rules, grant time off, and recommend applicants for em-
ployment. The Respondents contend, however, that Greenberg pos-
sessed no such authority, acted in essence as an interpreter for Posner's
orders, and received the same pay ($90 a week) he had when previously
employed as a shipping clerk by Posner. Credited testimony on the
record reflects, however, that Greenberg gave the girls their orders,
told them what to do, supervised their work, gave out the work, checked
the work and corrected errors, called employees' attention to it when
they arrived late for work, on several occasions granted employees
permission to leave the plant early, and on at least one occasion dis-
charged an employee. Furthermore, an employee testified that he was
hired by Greenberg and got his job after Greenberg spoke to Posner.'
Finally, the record reflects that Posner was on the floor for only a few
minutes a day when he might give orders for translation, and that
shortly after being rehired in mid-June 1962, Greenberg's pay was
raised from $90 to $110 a week. In view of the above, we agree with
the Trial Examiner and find that Jose Greenberg was and is a su-
pervisor within the meaning of the Act.
Bill Brown: The Trial Examiner found Bill Brown to be a super-
visor, taking judicial notice of the Board's previous finding to that
effect 4 The Respondents contend that there is no evidence that the
Bill Brown referred to in the instant case is the same Bill Brown
who was found to be a supervisor in the previous case mentioned
above. The Respondents further contend that the record is "barren"
of evidence showing Brown to be a supervisor while Posner's testi-
mony demonstrates that he is not.
However, uncontradicted evidence on the record before us discloses
that Bill Brown gave orders to employees and was a supervisor. On
the other hand, the only evidence offered by the Respondents to refute
Brown's supervisory status is the testimony of Posner himself to the
effect that Brown did not possess the authority to hire or fire em-
ployees, which testimony is in accord with the Board's finding in the
earlier case. The Board in its prior decision did not rely on the
absence of that one indicium of supervisory authority, however, but
found that Brown responsibly directed employees in their work.
Furthermore, the record here reflects that the shipping department
consists of only 9 to 12 men, and Posner himself testified that Bill
Brown had been in his employ for 3 or 4 or 5 years. We find it im-
3 The Respondents contend that the only evidence of Greenberg recommending an appli-
cant for employment is the testimony of Cuellar who was hired in January or February
1962 , while Greenberg was employed as a shipping clerk and before he was even alleged to
be a supervisor This contention is without merit as the testimony in question is not that
of Cuellar but of another employee who was hired after Greenberg was rehired and assumed
supervisory status
4 I. Posner, Inc, et at., 133 NLRB 1573 , 1580-1581.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probable that such a small department contained two men named
Bill Brown both of whose supervisory duties would be in issue in
such a short period of time as elapsed between the earlier case and the
instant one, particularly as Respondents have not identified any other
Bill Brown in the record. In these circumstances we agree with the
Trial Examiner's inference that the Bill Brown alleged to be a super-
visor in the instant case is the same Bill Brown previously found to
be a supervisor. Accordingly, both on the basis of the record before
us and upon the Trial Examiner's conclusion, we find Bill Brown
was at all pertii' eiit times it supervisor as defined in the Act.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.5
'The Recommended Order is hereby amended by substituting for the first paiagi aph
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 Respondents, their otrceis, agents, successors, and assigns, shall.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On September 27, 1962, an original charge was filed by the above-named labor
organization in Case No. 2-CA-8867. On October 31, 1962, the same union filed
an original charge in Case No. 2-CA-8936 On November 30, 1962, the General
Counsel of the National Labor Relations Board issued and served an order con-
solidating these two cases, a consolidated complaint, and notice of hearing. There-
after, the Respondents filed an answer dated December 10, 1962. Thereafter, the
hearing was twice rescheduled By the same union an original and an amended
charge in Case No 2-CA-9021 were filed, respectively, on December 17, 1962, and
January 17, 1963. A complaint and notice of hearing in the last-mentioned case
was issued and served by the General Counsel on January 30, 1963. An answer
to this complaint was filed by the Respondents, dated February 5, 1963. On Febru-
ary 19, 1963, General Counsel issued his order consolidating the three cases and
another notice of hearing thereon The Respondents filed another answer on Febru-
ary 28, 1963. In substance, the last-mentioned consolidated complaint alleges, and
the answer denies, that the Respondents have engaged in unfair labor practices in
violation of Section 8(a) (1), (3) and (4) of the National Labor Relations Act, as
amended Pursuant to notice a hearing was held in New York. New York, on
March 11, 12, 13, 14, and 15, 1963, before Trial Examiner C. W. Whittemore.
On April 12, 1963, James Davis, an individual, filed a charge in Case No 2-CA-
9271 and on May 9, 1963, General Counsel issued and served his complaint in said
case. On May 22, 1963, the Trial Examiner received from counsel for General
Counsel a motion to reopen the hearing and consolidate, with the three original
cases, Case No. 2-CA-9271. On May 23, 1963, the Trial Examiner issued a show
cause order upon all parties concerning the granting of said motion On May 27,
1963. objections to the granting of the motion were received from the Respondents,
said objections being based, among other grounds, upon the fact that there was still
pending, before the Board General Counsel's application for special permission to
appeal a ruling by the Trial Examiner at the hearing concerning the same individual,
Davis On the same day the Trial Examiner received from General Counsel notifica-
tion that his application for special permission to appeal had been withdrawn, and
on May 28, 1963, the Trial Examiner granted the motion to consolidate the cases
and to reopen the hearing, scheduling the reopened hearing for June 10. 1963. On
Tune 6, 1963. General Counsel requested an indefinite postponement of the reopened
hearing on the ground that the Charging Party in Case No 2-CA-9271 had sought
withdrawal of his charge Indefinite postponement was granted the same dav. On
June 11, 1963, the Trial Examiner received from General Counsel a motion to sever
I. POSNER, INC., ETC. 1193
Case No 2-CA-9271 from the original three other cases , and to close the reopened
hearing. Said motion was granted.
At the hearing in March all parties were represented by counsel and were afforded
full opportunity to present evidence pertinent to the issues , to argue orally, and to
file briefs . A brief has been received from General Counsel
Disposition of the Respondents ' motion to dismiss the complaint , upon which ruling
was reserved at the hearing , is made by the following findings, conclusions, and
recommendations.
Upon the record thus made , and from his observation of the witnesses , the Trial
Examiner makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
I Posner, Inc., Posner Distributing Corp, and Posner Beauty and Barber Supply
Corp. are New York corporations. During a period material to the complaint and
until November 12, 1962, I. Posner, Inc., and Posner Distributing Corp. maintained
their principal office, place of business, and plant at 117 West 128th Street, New
York City, and since November 12, 1962, at 112 East 129th Street, New York City.
(At the time of the hearing, in March 1963, it appears that I. Posner, Inc., and Posner
Distributing Corp. were then located in Long Island City, New York.) Posner
Beauty and Barber Supply Corp. has been and at the time of the hearing was still
located at 111 West 128th Street, New York City.
1. Posner, Inc , and Posner Distributing Corp. are engaged in the business of manu-
facture, sale, and distribution of hair and cosmetics products. During the material
period Posner Beauty and Barber Supply Corp. was engaged in the sale of cosmetic
products on both a wholesale and retail basis.
At the hearing the Respondents conceded, and it is found, that the three corpora-
tions at all times material have been affiliated businesses with common officers,
ownership, and directors, and that they constitute a single integrated business en-
terprise. It is likewise conceded and found that the directors formulate and ad-
minister a common labor policy for the three companies affecting the employees of
the companies.
During the year preceding issuance of the consolidated complaint the Respondents
manufactured, sold, and distributed products valued at more than $500,000 Prod-
ucts valued at more than $50,000 were shipped by them directly to States of the
United States other than the State of New York.
The Respondents are engaged in commerce within the meaning of the Act
II. THE CHARGING UNION
District 65, Retail , Wholesale and Department Store Union , AFL-CIO, is a labor
organization admitting to membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
In preliminary summary it appears that the facts revealed in this record, all of
which occurred in 1962, indicate an extension-in-kind of unlawful antiunion con-
duct indulged in by Hamilton Posner, individually and through his agents, in 1959
and fully described in 133 NLRB 1573, a proceeding involving the same Respondents
and the same Charging Union. Hamilton Posner is the secretary and active head of
all three corporations; an aggressive individual who, as the record in these proceedings
show, was not restrained in his efforts also to run the hearing.
District 65 made an unsuccessful attempt to organize the majority of Posner's em-
ployees in 1959. Whether its lack of success was directly attributable to Posner's
unlawful interference is immaterial to the issues in this case, but the relevant back-
ground is noted that following that campaign the Board found, in the decision above
cited, that the same Respondents had violated Section 8(a)(1), (2), and (3) of
the Act.
In the early summer of 1962, the same labor organization repeated its organiza-
tional campaign. It is General Counsel's contention that promptly upon becoming
aware of such activities Posner and his agents again engaged in prohibited conduct
in his continued resolve to deprive employees of their statutory rights In brief, it
is claimed that the Respondents, by acts of Posner and his responsible agents,
threatened, interfered with, interrogated, reviled, spied upon, discharged, laid off, and
refused to reinstate employees to discourage their membership in and activities on
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of the Charging Union All such unlawful conduct, of course, the Respond-
ents deny.
B. Relevant events
1. Overt and repeated efforts to defeat union organization
The several discharges placed in issue by the complaint must be considered in the
light of certain contextual items, including unlawful interrogation by Jose Green-
berg, a supervisor within the meaning of the Act, and Hamilton Posner's public
display of hostility toward his employees' exercise of rights guaranteed by the Act.
About the time organization began in July at the home of Norma Pinero (whose
discharge is described below), Jose Greenberg, in charge of the room where Pinero
and some 20 other female employees worked, went to the home of employee Cuellar,
who like himself is a Honduran and with whom he had previously roomed, and in-
terrogated him as to what he knew about the union activities and as to the identity
of the leaders.'
On August 6, Al Evanoff, a union official, came to the plant at closing time to
speak to employees on the public sidewalk as they left work. Posner came out
and demanded to know what he was doing on the sidewalk.
On August 10, in the morning before work hours began, Posner was again out-
side the plant as Evanoff spoke with employees on the street. With four of them,
Evanoff approached Posner and asked if they could talk to him regarding recent
layoffs. Posner declined to talk to anyone from the Union. During the lunch
period an even larger group went to Posner's office and asked to speak to him.
After calling Posner, his secretary reported that he declined to talk to any em-
ployees while a union representative was present 2
In the morning before worktime on August 15, Posner told a small group of
employees talking with Evanoff on the street that they did not need to check in-
they could let the Union pay for their time. He also told them that they could
never have an election.
In mid-September, while Evanoff was talking with an employee committee mem-
ber on the street, Posner told Evanoff he had no right to be there, and called the
police.
On many occasions, during Posner's open surveillance of employees talking with
Evanoff on the public street outside the plant, he called out to them that he only
wanted "friends" there working for him and that no election would be held .3
2. The discharge of Norma Pinero
Until July 20, Norma Pinero worked with some 25 or 30 other employees, most
of whom spoke only Spanish, on the second floor of Posner's plant, under the
direct supervision of Greenberg, previously identified. During the preceding few
weeks, Pinero had opened her home to employees in the organizing campaign.
The last of such meetings before her discharge was on July 16.
On July 20, without previous warning, Greenberg discharged her, telling her
that Posner was dissatisfied with her and that she had been talking with other
employees.
In September, Pinero returned to the plant and asked Posner to give her work.
Posner bluntly told her to "go to the Union." When she replied that she did not
care for the Union, Posner asked if she was sure. He then told her to come back
the next month. When she returned in October, Posner again told her there was
no work for her (despite the fact that Posner as a witness admitted that at least
eight new female employees were hired in August and September) and added that
he had plenty of money to fight the Union. Posner's mother joined them about
'Greenberg admitted visiting Cuellar at this time, but denied the interrogation. The
Trial Examiner, having observed Greenberg as he testified, does not credit the denials
Contrary to the Respondent's contention, the Trial Examiner finds that Greenberg was
and is a supervisor within the meaning of the Act. Credible evidence establishes that he
possessed and exercised authority to assign work, report to Posner employees who violated
rules, grant time off, and recommend applicants for employment
2 On August 3 the Union filed with the Board a petition for certification with the
Board in Case No. 2-RC-12220 The same day a letter was sent to the Respondent claim-
ing majority representation. The Respondent did not reply to the letter On August 10,
another letter was sent to the Respondent, the Union's name being on the outside of the
envelope The letter was refused delivery by the Respondent.
3 Posner's denials to some of the incidents above described are not credited. His anti-
union conduct here is consistent with that found in the earlier Board decision.
I. POSNER, INC., ETC. 1195
this time , and she asked what had happened. Posner replied that Norma had been
laid off in July because she tried to cause a "revolution" on the second floor.
Credible testimony establishes, and it is found, that before her discharge Posner
well knew of her union leadership. His open opposition to such activity has been
found. It is concluded and found that Pinero was dismissed to discourage union
membership and activity, and that such action interfered with, restrained, and
coerced employees in the exercise of their rights under the Act.4
3. The discharges of Ricardo and Marcos Ortiz
Although, as will be found below, other unlawful discharges intervened, the
dismissals of these two brothers will be considered together. The relevant circum-
stances point up the contrasting courses pursued by Posner in his efforts to discourage
union membership.
Both employees put in most of their time as helpers on the second floor. where
wigs were made, although part of it was in the basement, where hair was cleaned.
Both began wearing buttons when others, on August 3, first similarly displayed
their union adherence. Jose Greenberg, on the same day, warned both that if they
did not abandon the Union they would be fired and further told them that Posner
could do more for them than the Union.5 Late the same day, Greenberg handed
Ricardo a slip of paper which he told the employee was a "layoff" slip, adding
that he did not know "why." The Respondent concedes that this employee's services
were terminated that day.
Surprisingly different treatment was accorded Marcos Ortiz, who had become the
union delegate on the second floor upon Pinero's discharge. On the same day his
brother was fired, Marcos was approached by Benny Glasser, an employee of long
service, who is the father of Leon Glasser, the latter having charge of helpers in
the basement. Benny Glasser promised Marcos a "big" increase if he would abandon
the Union. It is undisputed that for the week ending August 8, Glasser's promise
was fulfilled-Ortiz received a weekly increase of $7.50. The next week Glasser
promised him another raise. Again the promise was kept, this time the raise was
$2.50 a week. Furthermore, despite the claim made by Posner that Ricardo was
laid off for lack of work, Marcos was offered, both by Leon and Benny Glasser,
as much overtime work as he wished to put in.
As a result of the Union's petition a Board hearing was held on September 17,
20, and 24 and October 2. Between the first and second sessions Greenberg asked
Marcos if he was going to attend the next. The employee indicated that he so
intended. At Greenberg's request both went to see Posner. Posner also asked
if he was going, and the employee gave a similar reply. Posner then suggested that
Marcos come into the plant early the morning of the hearing and avoid offending his
fellow employees, but not go to the hearing. Posner also told Marcos that if the
Union continued to "bother" him, he would close the plant. Marcos apparently
followed Posner's request and did not attend the next hearing session. He did,
however, testify at the hearing on September 24.
Immediately upon his return from the hearing Posner had his workplace shifted
to a table, removed from all other employees, in storage space.
In October, while Marcos was talking with the union representative outside the
plant Posner came up to them, shook his fist at Marcos, and told him that from
then on his work would be confined to the basement, and that he was not to go again
to the second floor for anything
After working hours on November 12, a fire burned the plant Marcos reported
for work at the usual time the next morning, met Greenberg outside the building,
and was told that there would be no work for him that day. Others, however,
were permitted to remain and help in the salvage operations. At the time of the
hearing he had not been recalled to his employment.
4 Further support for this conclusion is the fact that shortly after August 3, during
another visit to Cuellar's home, Greenberg told this employee that Pinero, as well as Ortiz
(whose discharge Is next described) had been fired because they belonged to the Union
The record, furthermore, lacks any credible evidence to support the wholly unreliable
claim that Pinero frequently left her work to talk with other employees
5 Although Ricardo placed this Incident as occurring a few days before his layoff, which
was on August 3, the Trial Examiner bases the date upon Marcos' testimony and the fact,
well established by other evidence, that union buttons were not distributed to and worn
by employees until August 3, when the Union sent its first demand for recognition to the
Respondent It may well be that this, as well as other minor inconsistencies appearing in
the record, finds explanation In the fact that most of the employees testifying spoke little
or no English
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner concludes and finds that both Ricardo and Marcos Ortiz
were discharged , on August 3 and November 13, respectively , to discourage union
membership and activity . It is further found that Marcos Ortiz was also discharged
because he testified at a Board hearing after Posner had tried to persuade him not to.
Much of the employees ' testimony , upon which the foregoing findings rest, is un-
disputed. Such denials as were given by Greenberg and Posner are not credited.
Posner 's claim that the only reason Marcos did not work following the fire was that
he believed he had obtained a job elsewhere is unreasonable upon its face. Had
such understanding been a fact , and had he actually wanted Ortiz to remain in his
employment-as he insisted he did when a witness-Posner would plainly and
promptly have offered him reinstatement upon receipt of the charge involving the
employee's termination . Far more reasonable , in the opinion of the Trial Examiner,
is the conclusion that, having failed , by (1) promises and actual financial benefits.e
(2) threats of closing the plant and other reprisals , and (3 ) repeatedly shifting his
place of work , to discourage Marcos ' union activity, Posner finally rid himself of
the employee by failing to permit him to reutrn to work after the fire.
Nor is there merit in Posner 's contention that Ricardo Ortiz was laid off for lack
of work. Not only was his brother immediately offered unlimited overtime , as noted
above , but one new helper had been hired just before Ricardo's discharge and two
more were hired shortly thereafter.
The discharges of these two employees and the threats and promises of benefit
made to them constituted interference , restraint , and coercion of employees in the
exercise of rights guaranteed by the Act.
4. The discharge of George Gordon
The service of this employee , a Panamanian , at the Respondents ' plant was remark-
ably brief . At the recommendation of another employee originating in the same
country ( Selwyn Hutchinson , whose discharge will be discussed below ), Posner
offered Gordon a job even before he left Panama . He began work August 1, in
the shipping department under Traffic Manager Evers and Supervisor Brown. The
Trial Examiner takes official notice that Brown has been found by the Board (133
NLRB at 1580 ) to be a supervisor within the meaning of the Act . The Respondent
offered no credible evidence that Brown's status has been changed since that finding.
Two days after starting work Gordon went to a union meeting . His supervisor,
Brown, was also present . Shortly thereafter , Posner informed Evers that they had a
"new" union member in the department.
At the end of his first week of employment Gordon was summarily dismissed
As a witness, Posner explained his abrupt action by merely claiming that he had
found the employee unsatisfactory Gordon's testimony is undisputed that during
his brief employment no supervisor had complained of his work, and the Respondent's
witnesses testified as to no specific dereliction on his part.
The Trial Examiner infers that Supervisor Brown 's knowledge of Gordon's at-
tendance at the union meeting was transmitted to Posner and that such information
prompted Posner to utter the above-noted remark to Evers. Posner's open hostility
toward the Union and its adherents has been established beyond question.
The Trial Examiner therefore concludes and finds that Gordon was discharged
to discourage union membership and activity and that such unlawful action interfered
with , restrained , and coerced employees in the exercise of rights guaranteed by the
Act.
5. The discharges of Guillermo Cuellar and Antonio Coello
Employees Cuellar and Coello were both discharged on the same day, Septem-
ber 21 , during the period when the representation hearings were in progress.
Coello, like Greenberg , had for a time roomed at the home of Cuellar, and at
the latter's request Greenberg had recommended to Posner his employment a few
months after Cuellar himself had been hired . Both were helpers in Posner's
cosmetics department.
Greenberg's unlawful interrogation of Cuellar in July has been noted above. In
August Greenberg again visited at this employee's home. After informing the
employee ( according to Cuellar's credible testimony ) that Pinero and Ortiz had
been fired because of their union adherence , Greenberg added that others in the
Union would , in effect, suffer similar reprisals. Greenberg also boasted that by
There is clear merit in General Coun,el's contention that Benny Glasser in nronnsine
and obtaining the successive increases for Marcos, an inexperienced and comparatively new
employee, was acting as Posner ' s agent and representative . ( Fiore Brothers Oil Co , 137
NLRB 191 ) Glasser himself was not a witness
I. POSNER, INC., ETC. 1197
getting a raise for him, he had "liquidated" the union delegate on the second floor-
obviously referring to Marcos Ortiz, who became the delegate after Pinero's dis-
charge. Greenberg also declared that Posner and his lawyers had "made arrange-
ments" so that discharged employees could not vote in the election.?
Coello was one of the union adherents who, with the union representative, made
an unsuccessful effort to talk with Posner on August 10.
It is found that Posner well knew that both employees were union adherents.
On September 19, Cuellar was solicited on a number of occasions by supervisors
and then by Posner himself to sign up for an insurance plan which the latter,
despite the pending Board election, was attempting to get employees to subscribe
to Cuellar refused to sign. Later the same day Greenberg informed him that
Posner did not "like" him.
The next day the timecards of both Cuellar and Coello were not in the rack. The
former asked Greenberg if they were fired Greenberg countered by asking if he
and Coello were still members of the Union The employee replied that they were.
Greenberg then said that this was all he wanted to know, and the following day
both were laid off without reason for such action being given them.
Posner's contention -that the two were only fitted to do light work so he let them
go and hired eight female employees to do light work is manifestly so unbelievable
as to lack any merit
The Trial Examiner concludes and finds that both employees were discharged to
discourage union membership, and that by such unlawful action, by Greenberg's
above-found threats of reprisals to Cuellar, and by Posner's offer of implied benefits
in submitting an employees' insurance plan during the pendency of a Board elec-
tion, the Respondent interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act.
6. The dismissals of Pedro Santiago and Arthur Cooper
As in the case of Marcos Ortiz, credible and substantial evidence sustains General
Counsel's contention in her able brief that the Respondent used the plant fire of
November 12 as a pretext for ridding itself of known union leaders The Respond-
ent was informed of such leadership of the two above-named employees in a wire
from the Union on August 15, naming each of them as a union committeeman.
Santiago, a shipping department employee, had high seniority at the plant. In
August, after Santiago and others had unsuccessfully tried to see Posner in his office,
Posner accused him of being ungrateful and a troublemaker. In September, when
Santiago was consulting with a union representative outside the plant before working
hours, Posner ordered them not to hold any meetings there. Later Posner told this
employee, in effect, that he would not recognize a union for 50 years
Cooper had been a delivery-truck driver since 1960, making deliveries for all
three Posner companies. In August, when in Posner's presence he asked his su-
pervisor, Mendelsohn, for a raise, Posner bluntly told him to go to the Union for it
It appears that Mendelsohn, at the time, was giving Cooper $5 a week extra for his
work After the employee had requested the raise it is undisputed that the super-
visor warned him that if the Union came in he would have to pay back the extra
money he had been receiving
When Santiago reported for work the morning after the November 12 fire, he
was told by Traffic Manager Evers, who made note of his telephone number, that
when operations resumed he would be called. He was not called, but returned the
following Friday for his paycheck. Before receiving this check, however. he was
told by Posner that he should go to the Union for it He had not been recalled to
work, although Posner admitted both that there was work for him immediately after
the fire and that shipping employees with less seniority had been retained
Cooper continued to make deliveries on Tuesday and Wednesday after the fire of
Monday, November 12. On Tuesday he overheard Posner tell Mendelsohn that
there would be no more "kidding around," that employees who were "with him"
could continue to work there, but others could go to the Union for a job. On
Wednesday, after working that day, Mendelsohn told him he was laid off temporarily.
He returned on Thursday and asked Posner why he had been laid off. Posner said
there was no work for him. At the time of the hearing Cooper had not been
recalled
As a witness, Posner claimed that Santiago had not been dismissed but that he
simply had not reported for work after the fire. This claim is refuted, not only by
the employee's credible testimony, but also by the fact that in December, in reply
° Greenberg 's denials as to this meeting are not credited
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to inquiry by the Regional Director as to why the Respondent challenged Santiago's
vote at the election of December 10, the Respondent's counsel replied, in writing,
that this employee had been "laid off" as a result of the fire on November 12.
Posner, as a witness, contended that Cooper had been laid off because he was not
needed. Even if it be accepted that deliveries were interrupted by the fire, Posner's
other testimony completely refutes his contention that Cooper's services as a truck-
driver were not needed. He admitted that for a period of several weeks he had hired
outside trucks and drivers to engage in salvage operations.
The foregoing facts amply support the conclusion set out at the beginning of this
subsection. Both Santiago and Cooper were clearly denied employment after the
fire to discourage union membership and activity. This unlawful action, as well as
Posner's ordering Santiago not to consult with a union representative on a public
street, telling this employee that he would not recognize the Union, informing
Mendelsohn, in Cooper's presence, that only employees who were "with him" would
be retained after the fire, and Mendelsohn's threatening Cooper that if the Union
came in he would have to return the moneys paid him, all constituted interference,
restraint, and coercion.
7. The discharge of Selwyn Hutchinson
This employee's services were terminated on September 21. He worked under
Evers in the shipping department. Although credible evidence establishes that Posner
was aware of his union adherence, as a witness Hutchinson admitted that no one had
ever threatened him because of his union -activity.
According to Evers, Hutchinson was discharged because, on the same day, the em-
ployee had refused to obey his instructions to assist another employee. While the
Trial Examiner has not credited other testimony of the traffic manager, as to this
discharge he is inclined to believe him. Hutchinson's demeanor as a witness cast
doubt upon his own version of the incident leading up to the dismissal. Furthermore,
Hutchinson candidly admitted that when he left the plant he had no intention of
going back to work for Posner, and that his intention was the same at the hearing.
In any event, the Trial Examiner concludes and finds that the preponderance of
credible evidence is insufficient to sustain the allegations of the complaint as to
Hutchinson.
It will therefore be recommended that the complaint be dismissed as to him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent set forth in section III, above, occurring
in connection with the operations of the Respondent described in section I, 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 com-
merce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employees,
as described herein, to discourage membership in a labor organization , and because
one of them testified at a Board proceeding, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 ( a)(3) and (4),
respectively, of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. As to Selwyn Hutchinson the Respondent has not engaged in unfair labor prac-
tices within the meaning of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
I. POSNER, INC., ETC. 1199
It will be recommended that the Respondent offer each of the employees, found
herein to have been unlawfully discharged and refused reinstatement, immediate
and full reinstatement to his or her former or substantially equivalent position, with-
out prejudice to their seniority or other rights and privileges, and make them whole
for any loss of earnings they may have suffered by reason of the discrimination
against them by payment to each of them of a sum of money he or she would
normally have earned, absent the discrimination, from the date of the discrimina-
tion to the date of the offer of reinstatement. Backpay due shall be computed in
the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., Inc., 138 NLRB 716.
In view of the serious and extended nature of the Respondent's unfair labor
practices it will be recommended that it cease and desist from in any manner in-
fringing upon the rights of employees guaranteed by Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends that I. Posner, Inc.;
Posner Distributing Corp.; Posner Beauty and Barber Supply Corp.; and Hamilton
Posner, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in District 65, Retail, Wholesale and Department
Store Union, AFL-CIO, or in any other labor organization, by discharging, laying
off, or refusing to reinstate any of its employees because of their union membership
or activities, or in any other manner discriminating in regard to hire or tenure of
employment, or any term or condition of employment.
(b) Discriminating in any manner against any employee because he has filed
charges or given testimony under the Act.
(c) Unlawfully interrogating employees as to their union sympathies, threaten-
ing reprisals or promising benefits to discourage membership in any labor organization.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as
a condition of employment, as authorized by Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action, to effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by reason of
unlawful discrimination against them, in the manner set forth in the section above
entitled "The Remedy," to the following named employees:
Norma Pinero Pedro Santiago Antonio Coello
Marcos Ortiz Ricardo Ortiz Arthur Cooper
Guillermo Cuellar George Gordon
(b) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all records necessary for the
determination of the amounts of backpay due and right of reinstatement under
terms described herein.
(c) Post at its plants in New York and Long Island City, New York, copies of
the attached notice marked "Appendix." 8 Copies of the notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly signed by
the Respondent's authorized representative, be posted by the Respondent immedi-
ately upon receipt thereof, in conspicuous places, including all places where notices
to employees are customarily posted, and maintained by it for a period of 60
consecutive days. Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
8In 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 words "A Decision
and Order."
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Second Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply therewith.9
It is further recommended that the complaint be dismissed as to Selwyn
Hutchinson.
9In 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 Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT unlawfully discourage our employees from being members of
District 65, Retail, Wholesale and Department Store Union, AFL-CIO, or any
other union.
WE WILL NOT discriminate against any employee because he or she files
charges with, or testifies at any proceedings of, the National Labor Relations
Board.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your choice or not to engage in any union
activities.
WE WILL offer each of the employees named below reinstatement to his or her
former job and will give them backpay for loss of earnings:
Norma Pinero Pedro Santiago Antonio Coello
Marcos Ortiz Richard Ortiz Arthur Cooper
Guillermo Cuellar George Gordon
All our employees are free to become or remain members of the Union named
above, and they are also free to refrain from joining any union.
1. POSNER, INC.; POSNER DISTRIBUTING
CORP.; POSNER BEAUTY AND BARBER
SUPPLY CORP.; and HAMILTON POSNER,
Employer.
Dated------------------- By-------------------------------------------
(Itepresentative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their 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, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No.
751-5500, if they have any questions concerning this notice or compliance with its
provisions.
Mary Chess, Inc., Marie Earle Corporation , Parfums Lucien
Lelong Corporation and Parfums Schiaparelli , Inc. and Local
8-149, Oil, Chemical and Atomic Workers International Union,
AFL-CIO and The Plant Committee , Party in Interest. Case
No. 9-CA-9174. January 22, 1964
DECISION AND ORDER
On October 1, 1963, Trial Examiner David London issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
145 NLRB No. 115.