Julius Corn and Co.

National Labor Relations Board - Board Decisions

Jan 12, 1961

129 N.L.R.B. 1264 (N.L.R.B. 1961)

1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Robert Purper) in the laboratory excluding all other employees and
supervisors.
The employees in the nonprofessional voting group (a) will be
polled as to whether or not they wish the Petitioner to represent them.
The employee in the professional voting group (b) will be asked two
questions on his ballot : (1) Do you desire to be included in a unit
composed of the technical employees in the laboratory at the Em-
ployer's Morrisville, Pennsylvania, factory, for purposes of collective
bargaining? (2) Do you desire to be represented for the purposes of
collective bargaining by United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO? If the professional employee in
voting group (b) votes "yes" to the first question, indicating his wish
to be included in a unit with the nonprofessional employees, he will
be so included. His vote on the second question will then be counted
;together with the votes of the nonprofessional voting group (a) to
,decide the representative for the technical and professional unit. If,
on the other hand, the professional employee votes against inclusion,
he will not be included with the nonprofessional employees, and his
vote on the second question will not be counted."
Our unit determination is based, in part, then, upon the ballot of
the professional employee. However, we now make the following
findings in regard to the appropriate unit.
1. If the professional employee votes for inclusion in the unit with
• the nonprofessional employees, we find that the following employees
will constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All technical employees and the professional employee employed at
- the Employer's laboratory located at its Morrisville, Pennsylvania,
- factory, excluding all other employees and supervisors as defined in
the Act.
2. If the professional employee does not vote for inclusion in the
unit with the nonprofessional employees, we find the unit set forth
above to be appropriate, with the exclusion, however, of the pro-
fessional employee.
[Text of Direction of Elections omitted from publication.]
16 Southwestern Sales Corporation , 93 NLRB 936, 938.
Julius Corn and Sheldon Corn d/b/a Julius Corn and Co. and
Local 10 , Amalgamated Ladies ' Garment Cutters' Union,
I.L.G.W.U., AFL-CIO. Case No. 2-CA-7219. January 12, 1961
DECISION AND ORDER
On July 19, 1960, Trial Examiner William J. Brown issued his
-Intermediate Report in the above-entitled proceeding, finding that the
129 NLRB No, 144.
JULIUS CORN AND CO. 12 605
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 copy of the Inter-
mediate Report attached hereto . Thereafter , the Respondent filed
exceptions to the Intermediate Report, a supporting brief, and a
motion for oral argument.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Chairman Leedom and Members
Fanning and Kimball].
The Board has reviewed the rulings made by the Trial Examiner 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 brief , and the entire record in this
proceeding , and hereby adopts the findings,2 conclusions , and recom-
mendations of the Trial Examiner , with the following additions.
On February 5, 1960, Farraye , the alleged discriminatee , went to the
Union's office and signed a union card . Thereafter , lie inquired of
fellow workers if they were interested in the Union and on February
9 distributed union membership application cards to four other em-
ployees in the plant. Toward quitting time on the latter date, Shel-
don Corn, one of the two partners constituting the Respondent, asked
Farraye about the cards . Corn added that he knew about them, had
visited the Union's office , and did not want the Union in the plant.
When Farraye conceded he was thinking about signing with the
Union, Corn stated that he did not want Farraye at the plant if he
signed with the Union and, in effect, insisted that Farraye give him
a definite answer as to his intentions. Upon receiving an inconclusive
reply, Corn stated that that was not a good enough answer for him
and that he was going to have to "pay off" Farraye , who was there-
upon discharged.
Under these circumstances we need not decide if just cause may
also have existed for Farraye 's discharge as Respondent contends, for
it is, we find , unequivocally clear from the foregoing that the actual
cause of the discharge was Farraye 's union activity , not any other
dissatisfaction with him as an employee . Accordingly, we further
find that Respondent in so discharging Farraye violated Sections
8(a) (3) and ( 1) of the Act.'
1 As the record , including the exceptions and brief, adequately sets forth the issues and
the positions of the parties , the motion is hereby denied.
2 The record shows, contrary to the Trial Examiner ' s finding, that Louisa Fernandez,
who was called as a witness at the hearing , was interrogated as to the use made of the
lace cutter's book However, this error in his findings does not affect the correctness of
the Trial Examiner 's other findings and conclusions
s See The Plastic Holding Company, Inc, 110 NLRB 2137, 2138.
586439-61-vol. 129-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
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 the Respondent, Julius Corn and
Sheldon Corn d/b/a Julius Corn and Co., its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in, or activity on behalf of, Local 10,
Amalgamated Ladies' Garment Cutters' Union, I.L.G.W.U., AFL-
CIO, or any other labor organization of its employees, by discharging
employees or by discriminating in any other manner in regard to hire,
tenure, or any term or condition of employment, except to the extent
permitted under Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) Interrogating employees concerning their membership in, or
activities on behalf of, Local 10, Amalgamated Ladies' Garment Cut-
ters' Union, I.L.G.W.U., AFL-CIO, in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) of the
Act.
(c) Threatening employees with discharge or any other form of
reprisal on account of membership in, or activities on behalf of, Local
10, Amalgamated Ladies' Garment Cutter's Union, I.L.G.W.U.,
AFL-CIO.
(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 Local 10, Amalgamated Ladies'
Garment Cutters' Union, I.L.G.W.U., 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-
pose of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7 of the Act, and to refrain from any and 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 in Section 8(a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make Joseph Farraye whole for any loss of pay he may have
suffered by payment to him of a sum of money equal to that which
he normally would have earned from the date of the discrimination
against him to the date of his rejection on May 2, 1960, of Respondent's
offer of reinstatement, less his net earnings during said period, said
backpay to be computed on a quarterly basis in the manner established
by the Board in F. TV. Woolworth Company, 90 NLRB 289.
JULIUS CORN AND CO. 1267
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due Joseph
Farraye under the terms of this Order.
(c) Post in its factory at New York, New York, copies of the notice
attached hereto marked "Appendix." 4 Copies of said 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 immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(d) 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.
* 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 "Pursuant to a Decision and Order" the
words "Pursuant to 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 discourage membership in, or activity on behalf
of, Local 10, Amalgamated Ladies' Garment Cutters' Union,
I.L.G.W.U., AFL-CIO, or any other labor organization of our
employees, by discharging employees or by discriminating in any
other manner in regard to hire, tenure, or any term or condition
of employment, except to the extent permitted under Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT interrogate employees concerning their member-
ship in, or activities on behalf of, Local 10, Amalgamated Ladies'
Garment Cutters' Union, I.L.G.W.U., AFL-CIO, in a manner
constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act, nor will we threaten employees with
discharge or any other form of reprisal on account of such mem-
bership or activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Local
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10, Amalgamated Ladies' Garment Cutters' Union, I.L.G.W.U,
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 purpose of mutual aid
or protection as guaranteed in Section 7 of the Act, and to re-
frain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL make Joseph Farraye whole for any loss of pay he may
have suffered as a result of our discrimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization, except to the extent that this right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
JULIUS CORN AND SIIELDON CORN
D/B/A JULIUS CORN AND CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case began with a charge filed by Local 10, Amalgamated Ladies' Garment
Cutters' Union, I.L.G.W.U., AFL-CIO , hereinafter sometimes referred to as the
Union or the Charging Party. The ensuing complaint alleges, in addition to jurisdic-
tional facts, that: (1) On various dates in February and March 1960, Julius Corn
and Sheldon Corn d/b/a Julius Corn and Co., hereinafter sometimes referred to as
the Respondent, interrogated employees concerning membership in and activities on
behalf of the Union; (2) on various dates in February and March 1960, Respondent
threatened employees with discharge and other reprisals if they became or remained
members of the Union or assisted the Union; and (3 ) on or about February 9, 1960,
Respondent discharged employee Joseph Farraye and has since failed and refused
to reinstate Farraye, the reason therefor being that Farraye joined and assisted the
Union and engaged in other concerted activities for the purpose of collective bargain-
ing and mutual aid and protection.
Respondent's answer admits the jurisdictional allegations of the complaint and
denies the commission of any unfair labor practices . With respect to the discharge
of Farraye, Respondent 's answer admits his discharge , denies that it was for reasons
prohibited by the Act, and affirmatively alleges that it was for cause and pursuant
to a decision by Respondent to terminate certain operations at its New York City
premises.
Upon the complaint and answer , a hearing was held before the Trial Examiner,
duly designated by the Chief Trial Examiner, at New York, New York, on May 23
and 24, 1960 . All parties participated in the hearing . Briefs have been received
from the General Counsel and the Respondent.
JULIUS CORN AND CO. 1269
Upon the entire record herein, and from my observation of the witnesses, I
hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a copartnership whose partners are Julius Corn and Sheldon Corn,
father and son, respectively; Julius is concerned mainly with production, Sheldon
with selling. Respondent has its principal office and place of business at 31 East
32d Street, New York City, where it is engaged in the business of jobbers in the
sale and distribution of ladies' slips. The complaint alleges that Respondent during
the preceding year shipped products valued in excess of $50,000 in interstate com-
merce directly to States of the United States other than the State of New York.
This is not denied by Respondent's answer. Accordingly, I find that Respondent
is engaged in commerce within the meaning of the Act and that assertion of jurisdic-
tion is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Local 10, Amalgamated Ladies' Garment Cutters ' Union , I.L.G.W.U., AFL-CIO,
is a labor organization within the purview of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and summary of events
As noted above, Respondent is engaged in the jobbing of ladies' slips. Prior to
February 9, 1960, Respondent employed five persons in its factory and two in the
office. Of the five factory employees, Joseph Farraye was employed as a cutter and
marker; 1 Louisa Fernandez was employed as a lace cutter; the other three employees,
Dennis Kelly, John Sauri, and Milton Sampson, were employed as stock clerks
receiving and/or shipping goods. Farraye, hired in April 1953, was the oldest of
these employees in point of service with Respondent. He first started doing marking
in 1956 and since that time did all of the marking with occasional assistance from
Julius Corn. While Farraye was employed by Respondent, all marking was done
on Respondent's premises. The marking took approximately 15 percent of Farraye's
time and the balance was spent in cutting and performing other operations on the
goods. His employment history reveals that he started at a weekly salary of $85
or $90 and within a month his pay was raised $5. Thereafter, he was given further
raises in 1956 and in 1958, the latter raise being a substitute for bonuses theretofore
given him.
Beginning at sometime about a year prior to the events alleged in the complaint
the once harmonious relationship between Farraye and the partners of Respondent
commenced to deteriorate. Thus it appears that about 11/a years before his discharge
an incident occurred whereby, contrary to prior practice, Farraye's pay was withheld
for a day on which he was absent due to illness. At that time there was some ex-
change of unwontedly unpleasant words between Farraye and Julius Corn. Further-
more, a year or so before his discharge, Sheldon Corn deducted a dollar for lateness,
although Farraye asserted he had made up the lost time.
Sometime about the middle of January 1960 Farraye asked Sheldon Corn for
another raise. At that time Sheldon Corn told Farraye that he was displeased with
Farraye's practice of leaving early but that he would think about the request. There-
after, as a consequence of a real or fancied apprehension that his employment
situation was threatened, Farraye signed an application for membership in the Union
and pursuant to the request of the union official with whom he talked, secured
application cards for the other employees. On February 9, 1960, the day on which
Farraye distributed these application cards he was discharged.
It is the position of Respondent that Farraye was discharged pursuant to a
decision made as a result of a study of operating costs which indicated that it would
be economically advantageous to have the cutting done by outside contractors, be-
cause of errors in Farraye's work immediately prior to his discharge and because of
Farraye's intransigeance respecting his hours of work.
There is evidence tending to indicate that at the time of and after the discharge
of Farraye, the Respondent interrogated employees concerning their activities on
behalf of the Union and threatened them with reprisal for such activities. This
testimony is disputed by Respondent.
I Marking goods is the process of laying out the pattern on a pile of material as a guide
for the cutting.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharge of Farraye
1. The facts
On Friday, February 5, 1960, Farraye went to the office of the Union and there
signed an application card. It appears that his purpose was to protect himself in the
light of the deterioration of his relationship with his employer. Pursuant to the
encouragement of Dolgen, the union representative, Farraye inquired of his fellow
workers as to their possible interest in the Union and found that all were interested.
Thereafter, shortly before lunch time on Tuesday, February 9, Farraye distributed
union membership application cards to his four fellow workers. Employees Kelly
and Sauri signed and returned their cards at that time; 2 Sampson and Louisa
Fernandez took their cards home for consideration. It does not appear that Sheldon
Corn observed Farraye distributing the cards. Julius Corn was on vacation after
the middle of January. The General Counsel, presumably to show Respondent's
knowledge of Farraye's union activities, introduced evidence tending to show that
Respondent's salesman, Samuels, could have overheard employees Kelly and Sauri
discussing their action in signing the cards . I do not rely on this evidence in finding
as I do later herein that Respondent knew of Farraye' s union activities, inasmuch
as the evidence does not indicate that Samuels overheard any discussion. Rather,
I rely on the testimony of Farraye as to statements made by Sheldon Corn at the time
of the discharge.
It is clear that at or about 4 o'clock on the same afternoon, Sheldon Corn informed
Farraye that he wanted to see him at the close of the workday. The versions as
to what occurred and what was said at that meeting, held at or about 4:45 p.m.,
differ sharply. The discussion was held in the lace room and no other persons were
present nor did anyone overhear what was said . It is undisputed that Farraye was
discharged at the end of the talk. It is also established by uncontroverted testimony
that on May 2, 1960, Julius Corn offered to reemploy Farraye and Farraye refused
the offer.
Farraye gave the following version of the conversation: Sheldon Corn opened
by saying that Farr aye was going around with a chip on his shoulder and asked
what was wrong with him. Farraye said there was nothing wrong, whereupon
Sheldon Corn asked, "What about the cards?" and added that he knew all about
the cards, that he [viz Sheldon Corn] had been down to the union office at lunch
time and that he did not want the Union in the plant.
According to Farraye, after Sheldon Corn's disclosure that he knew about the
cards, Farraye admitted that he was thinking about signing with the Union. Then,
according to Farraye, Sheldon Corn said, "Are you going to sign or aren't you?",
and, being given an inconclusive answer, said: "That's not a good enough answer for
me. I am going to have to pay you off." Whereupon, Sheldon Corn went into
the office, figured up the time coming to Farraye, and gave him his check.
Sheldon Corn's version is essentially as follows: Sometime in the middle of
January, Farraye had asked for a raise and had been told by Sheldon Corn that it
would be necessary that he discuss it with his father. Sheldon and Julius Corn were
giving the matter of an increase for Farraye serious thought up to the time Julius
left for vacation about January 15 or 20 but had not come to a final decision. On
Friday, February 5, Farraye repeated his request for a raise. On Tuesday, Febru-
ary 9, Sheldon Corn went to Farraye about 4 or 4:30 and asked to see him before
he left. The ensuing discussion commenced by Sheldon's telling Farraye that he did
not see his way clear to a raise because the cost of cutting had increased substantially
and also because a few orders had been made costly. In this latter regard Sheldon
mentioned specifically style 983 where Farraye cut 60 dozen extra bodies, and also
mentioned an error occurring on the cutting of style 1007 which was made with a
shadow panel 3 back and front, whereas the model indicated that only a front panel
should have been cut. Sheldon also brought up the subject of Farraye's punching
out early, saying that he had become a clock watcher. In reply to this latter observa-
tion , Farraye stated that Sheldon was being given all the time he was entitled to.
Thereupon Sheldon stated that he would not be dictated to by an employee and that
Farraye was making it easy for him to decide whether or not to stop cutting. Where-
upon Farraye was paid off and discharged.
2 The cards of Kelly and Saurl, General Counsel's Exhibit No . 3 and Respondent's
Exhibit No. 3, respectively, bear dates of February 10, 1960, but the evidence indicates
and I find that they were In fact signed on February 9, 1960.
3A shadow panel is a section of doubled material designed to Insure opacity.
JULIUS CORN AND CO. 1271
Sheldon denied knowledge of any union membership on Farraye's part and denied
knowledge of any application cards having been possessed or signed by any
employees.
2. Conclusions with respect to the discharge of Farraye
The evidence clearly indicates that Farraye did in fact cut 180 dozen slip bodies
where only 120 dozen lace trimmings were cut and that this discrepancy was cited
by Sheldon Corn in the course of the talk culminating in the February 9 discharge.
Neither the cutting of the extra 60 dozen bodies on style 983 nor the extra shadow
panel cutting on style 1007 would, however, involve a total waste of goods. As to
the matter of leaving early the evidence establishes that Farraye had a special
arrangement with Respondent to report and leave earlier than other employees.
Timecards were not produced at the hearing.
Sheldon Corn testified that the usual, though not universal, practice is for the
cutter to determine the amount of bodies to cut from examination of the lace book
showing the number of lace cuttings for the particular pattern. He further stated
that with respect to style 983 no one told Farraye the number to cut. Farraye testi-
fied on rebuttal that he would normally receive specific instructions as to the amount
of his cuttings from either Sheldon or Julius Corn and that he rarely looked at the
lace book. -1 credit Farraye's testimony in this regard. In this connection it is
worthy of note that Julius Corn, admittedly the production head of the partnership,
was not called as a witness as to the nature and purpose of the lace cutter's book.
Furthermore the only other production worker, Louisa Fernandez, called as a wit-
ness by Respondent, was not interrogated as to the use made of the lace cutter's
book that she keeps.
I credit Farraye's testimony that, in the course of the February 9 discussion in
the lace room, Sheldon Corn complained of the distribution of the union application
cards, demanded Farraye's agreement to cease union activities, and discharged
Farraye on his refusal of the demand. This is sufficient to establish a violation of
Section 8(a) (3). Although the evidence establishes that Farraye cut 180 dozen of
style 983 where the lace cutter, Louisa Fernandez, had cut only 120 dozen lace
trimmings for that style, and that Farraye cut both front and back shadow panels
for style 1007, the evidence does not establish that Farraye was guilty of any error
in this regard. It also appears that the relatively insubstantial loss to Respondent
was not the genuine reason for the discharge. There had been previous arguments
about Farraye's cutting, and the fact that, notwithstanding such prior cutting errors,
the Respondent immediately prior to February 9, 1960, had under consideration the
matter of an increase in pay for Farraye also supports the conclusion that the dis-
charge on February 9 was motivated at least in part by antiunion considerations.
With respect to the contention that a determination had been made by February 9
to terminate cutting at the New York premises because it could be more economi-
cally done elsewhere, I find Respondent's evidence, consisting solely of the testimony
of Sheldon Corn, unconvincing in the light of the record. It appears that Farraye
was entrusted with the cutting of the higher priced goods. The unit cost of cutting
was not a determining factor in Respondent's allocation of operations as appears
from the fact that it contracted cutting to Bareville Garment Co. at a cost of 20 cents
per dozen (Respondent's Exhibit No. 4), whereas Quentin Garment Co. charged
only 15 cents per dozen (Respondent's Exhibit No. 5). Respondent's calculations
of a unit cost of 26 cents per dozen for Farraye's cutting is not shown to be
comparable, since Farraye cut the higher priced line which as Sheldon Corn con-
ceded involved more frequent size changes. Respondent had not discontinued its
higher priced line as of the time of the hearing although no replacement had been
hired for Farraye and the only cutting observed by employees had been lace cutting.
Furthermore, Farraye testified and his testimony was corroborated by former em-
ployee Kelly, a disinterested witness, that Julius Corn subsequently offered Farraye
his job back.
In view of the finding herein made to the effect that Farraye was discharged by
Sheldon Cornbecause, at least in part, of Farraye's circulation of the union cards
and Farraye's refusal to desist from further union activity, I find that the discharge
of Farraye was in violation of Section 8(a)(3) of the Act. General Industries, Inc.,
121 NLRB 1608. Even if valid cause existed and motivated in part the Respond-
ent's action, the presence of the antiunion animus was a partially causative factor
would make out a violation of the Act. Plastic Molding Company, Inc., 110 NLRB
2137.
C. The interrogation of employees
The complaint alleges and the answer denies that on or about February 9 and 10,
and on various unknown dates during February and March 1960 , Respondent in-
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terrogated employees concerning their membership in and activities on behalf of
the Union . In this regard the testimony of Farraye relating to his conversation with
Sheldon Corn on the afternoon of February 9 had been summarized above. In
addition, Dennis Kelly testified that on the afternoon of February 10, the day follow-
ing Farraye's discharge, Sheldon Corn asked Kelly if he had "joined the army"
meaning thereby , had he signed an application card. At the same time according
to Kelly's testimony , Sheldon Corn inquired as to whether or not Johnny Sauri had
signed a card . This testimony of employee Kelly was not shaken by cross-
examination.
John Sauri, who was still employed by Respondent at the time of the hearing,
testified that approximately 1 or 2 weeks after the discharge of Farraye, Sheldon
Corn asked Sauri if Farraye had signed a union card and at the same time asked
is Sauri himself had signed a union card. Sauri further testified that Corn also in-
quired as to whether Dennis Kelly, Milton Sampson, and Louisa Fernandez had
signed cards . Even assuming, as the record indicates , that this conversation was
initiated by Sauri's asking Sheldon Corn whether or not he should join the Union
and that in reply Sheldon Corn stated ,that if the Union would treat him all right he
should go ahead and join, no justification appears for the inquiry as to other
employees.
Milton Sampson , also still an employee of Respondent , testified that he was never
asked by either partner of the Respondent -as to his union status, or as to the union
status of Farraye. And, Sheldon Corn testified on his direct examination that he
had no knowledge of Farraye 's interest in any labor organization until he was served
with the charge in the instant case, and, further , that he did not know whether any
other employee had at any time signed any application for membership or indeed
had any application card in his possession . I credit the testimony of Farraye, Kelly,
,and Sauri , and find that on February 9 and 10 and on another occasion a week or
two later 4 Respondent interrogated employees as to their union activities and ,there-
by violated Section 8 (a) (1) of the Act. Cf. Blue Flash Express, Inc., 109 NLRB
591.
D. The threats of discharge and other reprisal
The complaint alleges and the answer denies that on or about February 9, 10, and
16, 1960, and on various unknown dates in February and March 1960 Respondent
threatened employees with discharge and other reprisals if they became or remained
members of the Union, or gave assistance or support to it. The only item of proof
appearing in the record appears to be in Farraye's account of his conversation with
Sheldon Corn , on the afternoon of February 9 fully reported above. As part of that
conversation Farraye testified that Sheldon Corn stated that he did not want Farraye
in the employ of Respondent if he signed with the Union and that it would not be
satisfactory for Farraye to remain in a state of doubt on the matter . I credit Far-
raye's account and find that this threatening statement was made and that Respondent
thereby violated Section 8 (a) (1) of the Act. Reeves Brothers , Incorporated , et al.,
116 NLRB 422.
General Counsel appears also to rely upon the post-discharge conversation be-
tween Julius Corn and Farraye on May 2, in the course of which , according to
Farraye's account, Julius Corn stated to him, "Boy, you sure loused yourself up"
and, when asked what he meant thereby explained , "You wanted to organize the
shop . Who are you working for, the Union or for me?" Employees who heard
part of this conversation did not hear the part quoted above. I do not rely on the
statements attributed to Julius Corn with respect to this item of the complaint. The
statements are, on this record , equally referable to the filing of the charge herein.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of 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 obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Inasmuch as I have found that Farraye was discriminatorily discharged in violation
of Section 8(a) (3) of the Act, I shall recommend that the Respondent be ordered
to make him whole for any loss of earnings from the date of his discharge to May 2,
4 Sauri could only recall that his interrogation was "a week or two" after Farraye's
discharge.
TAMPA SAND & MATERIAL COMPANY 1273
1960, the date of Farraye's rejection of an offer of reemployment. I shall not
recommend an order of reinstatement in view of he fact that the uncontroverted
testimony of both Farraye and Kelly establishes that Farraye has indicated that he
does not desire reinstatement.
The interrogation of employees respecting union activities and the particular
instance of a threat of reprisal for union activities herein warrant a remedial order
in view of the fact that they occurred in the setting of a discharge which I have
found to be discriminatory. In this setting I shall recommend that the Respondent
be ordered to cease and desist from such acts of -interference, restraint, and coercion.
Upon the basis of the above findings of fact, and upon the entire ,record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Joseph Farraye on February 9, 1960, thus discriminating in
regard to his hire and tenure of employment because he engaged in activities for the
purpose,of collective bargaining or other mutual aid or protection, and by failing
to make him whole for earnings lost thereby, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. By interrogating employees with respect to union activities and threatening
employee Farraye with reprisal for engaging in union activities, Respondent has
committed unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Tampa Sand & Material Company and Teamsters , Chauffeurs
& Helpers , Local Union #79, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America,
Petitioner . Case No. 12-RC-862. January 12, 1961
SUPPLEMENTAL DECISION AND ORDER
Pursuant to a Decision and Direction of Election issued by the
Board herein on May 24,1960,' an election by secret ballot was con-
ducted on June 7, 1960, under the direction and supervision of the
Regional Director for the Twelfth Region among the employees in the
appropriate unit. Following the election, the Regional Director
served upon the parties a tally of ballots which showed that of 189
ballots cast, 19 were for and 54 against the Petitioner, and 116 were
challenged. The challenged ballots Were sufficient in number to affect
the results of the election. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the election.
The Regional Director thereafter investigated the challenges and
objections and, on August 12, 1960, issued and duly served upon the
parties his report on challenged ballots and objections to election, in
which he recommended that the objections be overruled in their en-
tirety and that the challenges to 70 ballots be sustained and 46 be
1 Not published In NLRB volumes
129 NLRB No. 156.