Orthodontist's Service

National Labor Relations Board - Board Decisions

Oct 26, 1965

155 N.L.R.B. 338 (N.L.R.B. 1965)

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rings Construction Company, Inc., and Walter J. Barnes Elec-
trical Company, to engage in. a strike, or threaten, coerce, or
restrain Binnulgs Construction Company, Inc., and Walter J.
Barnes Electrical Company by striking or picketing, where in
either case an object thereof is to force or require said persons to
cease doing business with Markwell and Hartz, Inc.
BUILDING AND CONSTRUCTION TRADES COUNCIL
of NEW ORLEANS, AFL-CIO,
Labor Organization.
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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New
Orleans, Louisiana, Telephone No. 529-2411, Extension 6396, if they
have any question concerning this notice or compliance with its
prov isions.
James Rubin d/b/a Orthodontist's Service, Hawley's, Inc., and
Prior Plastics, Inc. and District 65, Retail, Wholesale and De-
partment Store Union, AFL-CIO. Case No. 2-CA-10352. Octo-
ber 26, 1965
DECISION AND ORDER
On July 1, 1965, Trial Examiner Leo F. Lightner issued his Decision
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 Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exami-
ner's Decision.
Pursuant to the provisions of Section 3(b) of the National. Labor
Relations Act, as amended, the National. Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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
Examiner's Decision, the exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of t:he Trial Examiner.
155 NLRB No. 37.
ORTHODONTIST'S SERVICE, ETC. 339
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondents, James Rubin d/b,/a Ortho-
dontist's Service, Hawley's, Inc., and Prior Plastics, Inc., New York,
New York, their officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified :
1. Add the following as paragraphs 2(c), 2(d), and 2(e) to the
Trial Examiner's Recommended Order, the present paragraphs 2(c),
2(d), and 2(e) and those subsequent thereto being consecutively
redesignated :
(c) If there is not sufficient work available for the remaining
employees and those to be offered reinstatement, all available positions
shall be distributed among them without discrimination against any
employee because of concerted activities, in accordance with such
system of seniority or other nondiscriminatory practice heretofore
applied by the Respondent in the conduct of his business. If, after
such distribution, any employees remain for whom no positions are
available, the Respondent shall place such employees on a preferential
list with priority in accordance with such system of seniority or other
nondiscriminatory practice heretofore applied by the Respondent in
the conduct of his business, and thereafter offer them reinstatement
as such employment becomes available and before other persons are
hired for such work.'
(d) Make whole for loss of earnings each unfair labor practice
striker may suffer by reason of the Respondent's refusal, if any, to
reinstate them, in the manner herein prescribed, by payment to each
of them of a sum of money equal to that which he normally would have
earned as wages during the period beginning 5 days after the date on
which he applies for reemployment or reinstatement, and terminating
on the date of Respondent's offer of employment or placement as the
preferential list herein prescribed, whichever is applicable.'
(e) Notify the above-mentioned employees if presently serving in
the Armed Forces of the United States of their right to full reinstate-
ment 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.
'The notice to all employees attached to the Trial Examiner 's Decision is corrected
accordingly.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in New York,
New York, on March 8 , 9, and 10, 1965, on the complaint of the General Counsel,
212-809-66-vol. 155-23
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as amended, and the answers of James Rubin d/b/a Orthodontist's Service, Haw-
ley's, Inc., and Prior Plastics, Inc., herein referred to as Rubin, Orthodontist's, Haw-
ley's, and Plastics, respectively, and Respondent collectively.' The issues litigated
were whether the Respondents, collectively, and Rubin, particularly, violated Sec-
tion 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. At the close
of the hearing the parties presented oral argument, and a brief was filed, thereafter,
by General Counsel. Said arguments and brief have been carefully considered
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The following facts relative to the modus operandi of Respondent are undisputed.
James Rubin, an individual, is, and has been at all times material herein, a pro-
prietor doing business under the trade name and style of Orthodontist's Service,
having his principal office and place of business at 141 West 17th Street, on the
third floor, in the city and State of New York.
Prior Plastics, Inc., is a New York corporation with its principal office and place
of business at 141 West 17th Street, third floor, in the city and State of New York.
Rubin is president of Plastics. Rubin, his wife, and his son are the sole stockholders.
Hawley's, Inc., is a New York corporation, having its principal office and place
of business at 43 West 16th Street, approximately two and one half city blocks from
141 West 17th Street, in the city and State of New York. Rubin is president of
Hawley's. Rubin, his wife, and his son are the sole stockholders.
Orthodontist's and Plastics occupy adjacent space on the same floor, separated by
a partition, which does not extend to the ceiling. In September and October 1964,2
Orthodontist's had 12 production employees, Plastics had 2, and Hawley's had 2.3
The materials produced by Orthodontist's were specific items for Hawley's, similar
,arclic appliances, and fixed appliances such as arches, bands, and other orthodontic
appliances. Hawley's likewise produces Hawley appliances and acrylic appliances.
It is undisputed that all of these appliances, whether produced at Orthodontist's or
at Hawley's, are cured at Orthodontist's? Rubin explained that the sole differentia-
tion of the products were the "types of clasps and tail pieces used."
It is undisputed that an employee of Hawley's would make two and three trips
each day to Orthodontist's, delivering work which had been done at Hawley's, which
were Hawley products, for curing at Orthodontist's, picking up these products and
returning them for delivery from Hawley's, also picking up work at Hawley's which
was done by Hawley employees, which in fact was work being done for sale by
Orthodontist's. Martinez credibly related that during the last month he was employed
at Hawley's, approximately 50 percent of the work he did was done on products of
Orthodontist's, as distinguished from Hawley's.5
It is undisputed that, when Hawley's was established by Rubin, Martinez, who
had been employed by Orthodontist's for approximately 17 years and Daniel Celli,
who had worked, previously, for a number of years at Orthodontist's, were assigned
to do the work at Hawley's by Rubin. Apparently as the result of a dispute between
Martinez and Celli, the latter left Hawley's and was rehired by Rubin at Ortho-
dontist's. When Celli left Hawley's, Rubin transferred Lopez from Orthodontist's,
where he had been employed for a substantial number of years, to Hawley's.
1 The charge herein was filed on October 30, 1964. An amended charge was filed on
November 13, 1964. The complaint issued on December 30, 1964.
2 All dates herein are 1964 unless otherwise Indicated.
8 However, Hawley's two employees were laid off on September 25, under circumstances
considered infra.
4 Rubin explained that he established Hawley's to cut price and compete with Ortho-
dontist's. Rubin related that several years previously a number of his employees, at
Orthodontist's, left and opened up their own laboratory and cut prices. Orthodontist's
Service had a reputation of being an excellent laboratory and had no reason to cut its
price but, Rubin explained, he was losing business to these former employees who cut
price, so he established Hawley's in order to be able to compete, for the same merchandise,'
at lower prices. -
5 While Rubin disputed this estimate, he produced no evidence to contradict It. For
reasons enunciated infra, I do not credit Rubin.
ORTHODONTIST'S SERVICE, ETC. 341
Plastics is a machine shop which also produces merchandise for the dental field,
and in addition for the optical field and Western Electric. Harold Armstrong, one
of Plastics' two production employees, related that he had to go through Ortho-
dontist's laboratory in order to reach his work station, and exited in the same man-
ner. Armstrong related that materials on which he worked, such as a labial bow,
were used at Orthodontist's in the making of appliances. Armstrong asserted they
were transferred to Betta Orthodontic Supplies and then to Orthodontist's Service.6
It is undisputed that during the year preceding the issuance of the complaint, on
December 30, 1965, Orthodontist's manufactured, sold, and distributed products
valued in excess of $50,000 which were shipped in interstate commerce directly to
States of the United States other than the State of New York. It is undisputed that
Orthodontist's is engaged in commerce within the meaning of the Act. Rubin, how-
ever, asserted that Hawley's and Plastics, each, do less than $50,000 worth of busi-
ness in a year. This evidence is undisputed.
General Counsel contends that Orthodontist's, Hawley's, and Plastics constitute a
single employer for jurisdictional purposes. Respondent disputes this premise, which
is next considered.
It appears undisputed that Rubin is the sole operative head of all three enter-
prises. No evidence was presented by Respondent to establish that anyone other
than Rubin occupied a supervisory position, within the meaning of Section 2(11) of
the Act. It may be inferred that Rubin alone controls the labor relations policies of
all three enterprises.?
The Board, in numerous cases, has held that, in determining the identity of an
employer for jurisdictional purposes, two or more separate enterprises or entities
may constitute a single employer where "the integration of ownership, management,
and operations, and centralized control of labor relations policies exists." 8 In such
instances the totality of an employer's operations determine whether or not juris-
diction should be asserted over a particular employer. The T. H. Roger Lumber
Company, 117 NLRB 1733, 1735.
In Siemons Mailing Service, 122 NLRB 81, 85, the Board established a jurisdic-
tional standard of inflow or outflow in excess of $50,000 for nonretail enterprises.
I find there is an integration of ownership, management, and operations, and a
centralized control of labor relations policies and that the three Respondents are a
single employer within the meaning of the Act. Accordingly I find that Ortho-
dontist's, Hawley's, and Plastics constitute a single employer for jurisdictional pur-
poses. I further find said Respondents are engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District 65, Retail, Wholesale and Department Store Union, AFL-CIO, herein
called District 65, is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The principal issues raised by the pleadings and litigated at the hearing are whether
the Respondent: (1) interfered with, restrained, and coerced its employees by: (a)
Rubin, on various dates commencing in June and continuing until October, warning
d Rubin produced no evidence to refute these assertions. Rubin's denials of Armstrong's
assertions are not credited. It appears undisputed that Betta Orthodontic Supplies is a
separate sales corporation. Rubin asserted he is president of Betta and his wife is the
sole stockholder. Betts is also located at 141 West 17th Street, third floor. Rubin
acknowledged that Betta sold some of Plastics merchandise, including sales to Ortho-
dontist's. However, It is undisputed that Betts Orthodontic Supplies had no production
employees and is not involved in this litigation.
71 find of no consequence the fact that Rubin's son usually answers the telephone for
Plastics, and is an officer of Betta, as well as a stockholder in Hawley's and Plastics.
Rubin asserted that his son and Leonard Schwartz answered the telephone, inferentially
in a common office, for Orthodontist's. Neither do I find of any consequence Rubin's
assertion that the fringe benefits for employees of the three corporations had variations.
8 Major Service Co., a Washington corporation, 129 NLRB 794, 796; Crenshaw's lee.,
et at., 115 NLRB 1374, 1376; Orkin Exterminating Company, Inc., 115 NLRB 622; New
England Web, Inc., et at., 135 NLRB 1019, 1026-1027; Editorial "El Impartial," Inc.,
123 NLRB 1585.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to refrain from becoming or remaining members of District 65, or other
labor organizations, and threatening said employees with discharge and other
reprisals if they became or remained members of District 65, or other labor organi-
zations, or gave any assistance or support to them, or (b) Rubin, in August and
September, warning employees that Respondent would never sign a contract with
District 65, and threatening plant closure and other reprisals if the employees became
or remained members of District 65, or gave any assistance and support to it; or
(c) Rubin, in August and September, interrogating employees concerning the
employees' membership in, activities on behalf of, and sympathy in and for District
65; or (d) Rubin, in August and September, caused to be kept under surveillance
the meeting places, meetings, and activities of District 65, and the concerted activi-
ties of the employees, conducted for the purpose of collective bargaining and other
mutual aid and protection, and warning said employees that he knew who among
them had joined District 65, or designated it as their collective-bargaining represent-
ative; or (2) by discriminatorily laying off or discharging Thomas Martinez and
Robert Lopez, on September 25, and thereafter failing and refusing to reinstate, or
offering to reinstate, said employees to their former or substantially equivalent posi-
tions, because said employees gave assistance and support to District 65; or (3),
since on and after October 28, and at all times since, refused to negotiate and bar-
gain with District 65, in good faith, and, on the contrary, negotiated in bad faith,
with no intention to enter into any final or binding collective-bargaining agreement
with it, and refused to negotiate and discuss with District 65 wages, hours, or other
terms and conditions of employment of the employees, when District 65 repre-
sented a majority of said employees, and had been certified as the exclusive collective-
bargaining representative of said employees in a specified appropriate unit,
unless and until District 65 first agreed that Respondent would have the unqualified
and unconditional right to fire employees forthwith, without any recourse; or (4)
whether a strike which ensued was caused and prolonged by the unfair labor prac-
tices alleged. Each Respondent filed a separate answer, specifically denying the
allegations of the complaint relative to the alleged unfair labor practices, and assert-
ing certain alleged affirmative defenses. In the latter category Respondent asserts
that: (1) it was ready, able, and willing to bargain in good faith, on condition, as a
prerequisite, that Respondent have the right to hire and fire employees "without any
interference, objection or hindrance on the part of the Union and its members"; and
(2) all of Rubin's statements, remarks, or utterances are protected by constitu-
tional guarantees of free speech, and, alternatively, any "Act, Rule, or Regulation
infringing upon such guarantees and rights and depriving the Respondent of Free-
dom of Speech is unconstitutional"; and (3) the layoffs were for cause.
B. Background
On an unspecified date, presumably in 1956 or 1957,9 District 65 and, inferen-
tially, Orthodontist's,19 entered into a collective-bargaining agreement, which, infer-
entially, extended over an approximate 2-year period. The circumstances leading to
recognition and its cessation are obscure.
The events with which we are herein concerned commenced with an organizing
effort by an unidentified union in June 1964. The efforts of District 65 to organize
Respondent's employees commenced, at the earliest, in August.
It appears undisputed that, at a meeting conducted by District 65 on September 9,
a substantial number of Respondent's employees signed union authorization cards.
On September 17 District 65 filed a petition for an election 11 In the original peti-
tion the Union sought to represent only the employees of Orthodontist's and Plastics,
being 14 in number.12 On October 5 an amended petition was filed by District 65
to include the two production employees of Hawley's. An agreement for consent
election was executed on October 5 covering two separate units, one of office clerical
employees and the other of production employees, of the three Respondents, with
i Rubin was vague and uncertain as to the exact period covered by antecedent events.
The record is otherwise obscure as to time.
10 It is patent that Hawley 's was not in existence at that time. It is obscure as to
whether Plastics' employees were included or excluded.
n Case No. 2-RC-13669, of which I have taken official notice.
"It is undisputed that at that time Orthodontist 's employed 12 and Plastics 2 produc-
tion employees.
ORTHODONTIST'S SERVICE, ETC. 343
customary exclusions.13 An election held on October 13 resulted in a certification
of District 65, as collective-bargaining representative for the unit of production
employees. The Board's certification was issued on October 21 14
C. Interference, restraint , and coercion
1. Interrogation and threats
On unspecified dates, in June and July, an unidentified organizer for an unidenti-
fied union appeared at the street level entrance of 141 West 17th Street. During
this period, Rubin held individual conferences with a number of the employees to
ascertain what, if anything, they knew about the organizer. The facts relative to
these conversations are set forth seriatim.
John McNeese, who had been employed by Rubin for 19 years, related that in
June Rubin called him into the office, advised him that union men were downstairs
and that he did not want them hanging around. McNeese responded that Rubin
did not have to worry about him, that he was not thinking about the Union.
Vincent Piccolo, an employee of Rubin's for 12 years, related that in June Rubin
advised him that Rubin had reports that there was someone downstairs from the
Union. Piccolo responded that it was news to him. Rubin then advised, "I am not
going through this anymore." Piccolo inquired, "Going through what?" Rubin
asserted, "If you people are going to start this junk again , I will not put up with it.
I will not sign anything, so don't sign anything because if I catch anybody that's
talking to any union delegate or in the shop, they will be fired on the spot." The
conversation was in the stock area of the plant.
James Woodyard, who had been employed by Rubin for approximately 20 years,
related that in July Rubin called the majority of the employees into his office , infer-
entially one at a time. Woodyard related that he was the last one called in. Rubin
advised Woodyard, "James, I understand some union representatives are downstairs,
and if any of these boys connect themselves with the Union, I am going to fire them
on the spot."
Arthur McFadden was employed by Rubin for 10 years. McFadden related that
he wanted to speak to him in the supply room. Rubin told McFadden that there
were some union men downstairs and asked what he knew about it. McFadden
responded he did not know anything about it. Rubin then advised him that if Rubin
caught McFadden, or any other workers, talking to anyone downstairs in regard to
the Union he would fire them on the spot. McFadden responded that he did not
know anything about a union.
It appears that Rubin engaged in additional interrogation, as alleged, in August
and September.
Harold Armstrong, an employee of Plastics for 5 years, related that, about the
middle of August, Rubin came to where he was working and told him that the
employees in Orthodontist's were getting together and trying to get a union. Rubin
advised Armstrong that if he heard of any men talking union or talking to any
organizer that he would be fired from his job on the spot. Rubin advised Armstrong
that Rubin was not going to go through again what he went through in 1959, which
was at a time prior to the hiring of Armstrong.
Leonard Rosser, an employee of Rubin for 14 years, related that in early August
he had a conversation with Rubin, in the supply room. At that time Rubin advised
Rosser that if he caught any of his employees talking to any union members he
would fire them on the spot.
McNeese credibly related that, when he returned from vacation in early Septem-
ber, Rubin called him into the office and advised him, "Joseph, I thought you were
my friend." McNeese responded that he was. Rubin then stated, "Well, I don't see
why you want to go out with the fellows and bring a union in." McNeese responded
that he was not trying to bring a union in, that he was going with a majority.
McNeese placed the time of this conversation as September 2 or 3. Rubin then
advised McNeese, "I'm going to tell you now, I'm not going to have no damn union
in here. If I catch any of you talking with any of the union guys I'll fire you right
on the spot."
18 By stipulation, dated October 13, the parties agreed that Minnie and Kenneth Rubin,
wife and son, respectively, of James Rubin, and Rebecca Rubin, sister-in-law of James
Rubin, were ineligible.
14 District 65's effort to organize the office clerical unit was unsuccessful.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McNeese related that on another occasion, prior to September 9, Rubin called
Leonard Rosser, Richard Rodriguez, and McNeese, all Orthodontist's employees,
into the office. At that time Rubin advised Rosser that he had been very nice to
him, and had taken him from a delivery boy and made him a technician. Rosser
responded that he had begun work as a technician. Rubin then stated to McNeese,
"I'm surprised at you. You are supposed to be my friend and you want to go and
get into the union-." McNeese advised Rubin that Rubin could not blame him,
because he had been with Rubin for 20 years and there were other employees who
had been there 12 years who were making more money than he was. Rubin there-
upon responded, "If you don't like it, quit."
Piccolo credibly related that, in early September, Rubin called him to the back
of the lab and told Piccolo that Rubin had found out that Woodyard was trying to
form some kind of a union. Piccolo identified Woodyard as a fellow employee.
Piccolo related that Rubin stated that Woodyard, after approximately 20 years of
employment, wants to start this ruckus of starting this union again . Rubin stated he
could not understand why Woodyard wanted to start so much trouble because he
had been good to him. Piccolo called Rubin's attention to the fact that he had fined
Woodyard $25 for being late one morning. Piccolo asserted that Rubin then asked
Piccolo how he stood and what gain he would get. Piccolo responded that he thought
he could gain a lot, that he had not had a raise for 4 or 5 years, and he thought that
the Union could get it for him. Piccolo said that Rubin responded by threatening him
again and telling him if he started something, that Rubin was getting older and did
not intend to go through this same disturbance he had the last time, and would fire
the man on the spot 15
2. Surveillance
McNeese credibly testified that he had a conversation with Rubin in Rubin's office,
about September 6 or 7, relative to a union meeting that was to be held.16 Rubin
told McNeese, "Joe. there is a meeting tonight at the union hall. I know you're
going." McNeese related that he lied and stated he was not going. Rubin then said,
"You're going. It you are going I will find out." McNeese again responded that
he was not going. Rubin then stated, "Well I will find out if you go because I have
two people there watching." McNeese attended the meeting and was called into the
office by Rubin 2 days later. At that time, Rubin advised McNeese that he had
attended the meeting. McNeese denied the assertion and requested Rubin to con-
front him with the person who said that he had attended the meeting.
3. Speeches and threats
A number of witnesses 17 related that Rubin turned off the plant radio and made
speeches on a number of occasions between early September and the date of the
election, October 13. The number of these speeches was variously estimated as
being from three to six.
Woodyard asserted in the first week in September, with substantially all employees
of Orthodontist's and Plastics present, Rubin advised them, "I understand that you
all have joined the Union, and James [Woodyard] you are the one that got it started.
Local 65 is no good. I have had trouble with them before." Rubin then referred
to the Union derogatorily. Rubin asserted that he had had trouble with them before
and that they could not do anything for the employees. Rubin called attention to
the fringe benefits in existence, and advised the employees that he was not going to
have any dealings with District 65. Rubin also advised the employees that he would
never sign a contract with District 65. The substance of these speeches, according
to each of the witnesses, was repetitive.
It is patent from the testimony of the same employees identified in the footnote
that Rubin made a speech on October 13, about 45 minutes after the election was
held, and after the union representatives had departed. Rubin advised the employ-
ees, according to McNeese, that the Union had lost its effort to organize the office
employees. He also advised them that they had won by a vote of 11 to 1, that no
one made them vote or compelled them to vote as they did. He repeated his prior
statement that he did not have to sign anything, "All I have to do is just talk." Piccolo
15 Woodyard , who appeared as a witness , acknowledged that it was he who contacted
District 65.
16 MeNeese related that there were two meetings . The record establishes that at a
meeting on September 9 many of the employees signed union authorization cards.
27 Including McNeese, Armstrong, Piccolo, Woodyard, and McFadden.
ORTHODONTIST'S SERVICE, ETC. 345
credibly related that Rubin asserted that even though the men had signed a union
card it did not mean that they had to participate in the Union, that they could do
what they wanted to anyway. Rubin also advised that if there was a strike, those
employees who wanted to work would be provided police protection.
McFadden, and other witnesses, testified that Rubin emphasized, in several
speeches, that he would never sign an agreement with the Union, and this statement
was made both prior to and after the election.
4. Respondent's defenses
During the hearing, Rubin asserted that the reason for his interrogations of the
employees was that previously some employees, inferentially in 1956 and 1957, had
complained that pressure was being used to compel them to join District 65.
McNeese acknowledged that Rubin did ask him if he was being forced into the
Union. Rosser also acknowledged that Rubin asked him if he was being coerced
into joining the Union. I find no merit in this defense. The events during the
organizing campaign of 1956, or the period of negotiations between Respondent and
District 65, in 1956 to 1958, are remote in point of time to the events with which
we are here concerned.
During the hearing Rubin, acting as his own counsel, asserted that he categorically
denied making the statements testified to by the various employee witnesses. As a
witness, Rubin acknowledged that he had a number of conversations with a number
of employees in which he related the trouble he had previously with District 65.
He also acknowledged that in September he called McNeese, Rodriguez, and Rosser
into his office because he had been informed that these employees had joined the
Union. He asserted his reason for calling them in was to determine if they had been
coerced into joining the Union. To the extent Rubin's testimony is at variance with
that of General Counsel's witnesses I credit the latter.
Rubin acknowledged making a speech on "one or two occasions" prior to the
election, but denied that he made as many speeches as testified to by some of the
witnesses. Rubin admitted that in a pretrial statement he had acknowledged making
"several" such speeches. He explained that by "several" he meant two.18
Rubin asserted the reason he addressed the employees was that he had been
informed that District 65 was organizing them. Rubin asserted these individuals
had been working for him for a long time and "I didn't want them to get involved
with something they didn't understand, so I therefore made it very clear that the only
thing I wanted was the right to hire and fire without review by the Union, because
of their own knowledge they knew what took place in the matter of Calvin Nesbit's
firing." 19 Rubin acknowledged advising the employees that any contract he signed
with District 65 would have to provide him with the unqualified right to hire and
fire, without review by the Union. Rubin categorically denied ever stating that he
would never sign a contract with District 65. I do not credit this denial.
Rubin, having categorically denied having made the statements testified to by the
witnesses, the denial being as a statement of counsel as distinguished from testimony
as -a witness, then urged that any statement, remark, or utterance that he made was
protected under the constitutional guarantees of freedom of speech. In support of
this contention, Rubin asserted that any fact, rule, or regulation infringing upon such
guarantees and rights and depriving the Respondent of freedom of speech is uncon-
stitutional. I find no merit in this contention.
Concluding Findings
The evidence establishes, and I have found, that Rubin, on various dates com-
mencing in June and continuing until October, warned employees to refrain from
becoming or remaining members of District 65, or other labor organizations, and
' Typical of the evasiveness engaged in by Rubin, both as counsel and witness, were
his efforts to avoid a direct answer as to whether he read his pretrial statement of
November 19, and whether its contents were true. Rubin asserted, in part, "Not wishing
at anytime to create any hindrance to an election, or so forth and so on, I did or may
have said yes to his [the investigator's] statements as he wrote them, but did not neces-
sarily infer that semantically they were absolutely correct " The election was held on
October 13, more than a month prior to the making of the statement How the statement
could "create a hindrance," a month after certification, is unexplained
za Rubin asserted that during the 1956 to 1958 contract period with District 65, he was
required to arbitrate the discharge of Nesbit. It was his contention that the Union's
protest, in that instance , was without merit.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened employees with discharge and other reprisals if they became or remained
members of District 65, or other labor organizations, or gave any assistance or sup-
port to them. I have also found that in August and September, Rubin interrogated
employees concerning the employees' membership in, activities on behalf of, and
sympathy in and for, District 65. I have also found that in September and October
Rubin, in speeches, advised the assembled employees that Respondent would never
sign a contract with District 65. It is particularly significant that this latter threat was
enunciated not only before, but also after, Rubin was aware that the employees had
overwhelmingly selected District 65 as their collective-bargaining representative on
October 13.
Numerous Board decisions have held that the interrogation of employees individ-
ually about union activities do not fall within the Blue Flash 20 doctrine and are
violative of Section 8(a)(1), where inquiries were not shown to be for the purpose
of determining the extent of the Union's representation, or for any legitimate pur-
pose, and were not in all instances, accompanied by assurances that there would be
no reprisals. Orkin Exterminating Company of South Florida, Inc., 136 NLRB 399.
It is well established that threats of economic retaliation to discourage activities
of the employees, protected under Section 7, constitutes an unfair labor practice
within the purview of Section 8 (a) (1) of the Act. Accordingly, I find Respondent's
interrogation, threats of economic retaliation, and threats that it would never sign a
collective-bargaining agreement with District 65, as found above, in each instance
constitute an unfair labor practice proscribed by Section 8 (a) (1) of the Act.
I have found that, on about September 7, Rubin advised McNeese that Rubin
knew of a union meeting scheduled to be held that evening, and further advised
McNeese that if he attended the meeting Rubin would be apprised of that fact. Two
days later Rubin advised McNeese of Rubin's knowledge that he did attend the union
meeting. As a minimum, this conduct constituted the creation of an impression of
surveillance, and an interference with the rights of the employees, protected by
Section 7 of the Act. Ainsworth Manufacturing Company, Springfield Division of
Precasco Corporation, 131 NLRB 273. I find this conduct of Respondent an unfair
labor practice within the meaning of Section 8(a)(1) of the Act.
D. The refusal to bargain
1. The appropriate unit-the Union's majority status
I find the following employees of Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All production employees, exclusive of all supervisors as defined in Section 2(11) of
the Act 21
It is undisputed that pursuant to an agreement for consent election, dated October 5,
the Board conducted an election in the unit described on October 13, and as a result
the Board, on October 21, certified District 65 as the collective-bargaining repre-
sentative of said unit, pursuant to the provisions of Section 9(a) of the Act.
Peter VanDelft, an organizer for District 65, filed the petition for election, on
behalf of the employees of Orthodontist's and Plastics, on September 17. VanDelft
related that, the same day, he advised Rubin that he had filed a petition, that the
employees had designated District 65 as their collective-bargaining representative,
and he asked Rubin to negotiate an agreement. Van Delft related that Rubin detailed
previous difficulties he had with District 65. Rubin also advised VanDelft that he
must have complete freedom to run his business as he saw fit "to hire and fire, to
have people work whenever and wherever he wanted " Rubin also advised that his
employees were as well paid and had as good conditions as anyone in the industry
and therefore if there were a contract, all it could do was to reflect what existed in
the shop at that time, that there was nothing more to give anybody, and if the
Union wanted a contract for the purpose of collecting dues, that would be all right
with Rubin. This ended the discussion.
While VanDelft and Rubin, and others, met at the Board office on September 28
and October 5, there was no further discussion of negotiations prior to the day of
the election, October 13.
VanDelft asserted that on October 13, after the ballots had been counted, he
advised Rubin that District 65 would like to negotiate as quickly a^ possible. Van-
Delft quoted Rubin as responding, "You better understand something. If we are
going to have a contract I better have the right to hire and fire equally without any
20 Blue Flash Empress, Inc., 109 NLRB 591.
21 The parties stipulated, on October 13, to the exclusion of Minnie Rubin, Kenneth
Rubin, and Rebecca Rubin , wife, son , and sister-in-law, respectively , of James Rubin.
ORTHODONTIST'S SERVICE, ETC. 347
objection by the Union and I better have the right to have people work overtime
anytime I want even up to and after 12 o'clock at night." VanDelft advised Rubin
that this seemed to be an extreme demand, but they should sit down and negotiate
about this and other questions.
It is undisputed that subsequently, on October 28, Rubin met, for the purpose of
negotiation, with VanDelft and a committee representing the employees comprised
of James Woodyard, Vincent Piccolo, and Harold Armstrong. In the interim, during
a telephone conversation relative to the meeting of October 28, Rubin reminded
VanDelft of his demand that he have the undisputed right to hire and fire and to
have people work overtime. VanDelft advised Rubin that they would discuss these
demands at the negotiating session Rubin responded that there was not much
point to a meeting unless he had an answer to these demands.
At the outset of the meeting, about 2 p.m, On October 28, Rubin demanded
knowledge of VanDelft's answer to Rubin's demand VanDelft responded that he
thought Rubin should state his problems so the committee members could hear
them. Rubin responded, "I told you what the problems were and you have got to
give me the answer." VanDelft advised that he could not provide an answer because
anything they discussed and any decision they made had to be made by the employ-
ees, and that he thought the employees should hear what the problems were. Rubin
thereupon advised those present that he had told VanDelft that he had to have the
right to hire and fire people whenever he wanted to "and I don't want the Union
interfering with me and I don't want anybody dragging me to arbitrations or any-
thing else when I want to get rid of somebody." VanDelft responded that he knew
of no union contract that contained provisions that just gave an employer the
unlimited right to hire and fire, and that this was a subject of normal collective bar-
gaining in every contract. VanDelft suggested Rubin's position was extreme and
they ought to work out some acceptable formula for handling this problem, giving
the Union the right to contest a discharge. Rubin asserted he would not agree to
that, that it was impossible, that he had to have the "absolute" right to hire and fire.
VanDelft advised Rubin that he wanted to be judge, jury, and executioner. Rubin
responded, "I don't care what you call it, I have to have the right to hire and fire
people." VanDelft responded that in this country, "even a murderer has the right
to have a trial and you want to deny this to a person you want to fire." Rubin
responded it did not matter to him, that he had had problems with the Union before,
and "I'm not going to have the Union abuse me. I have to have the right to hire
and fire." VanDelft then suggested that since they could not resolve this, they
should move on to other issues and see what they could settle and then perhaps
return to this at the end. Thereupon, Rubin asserted, "I have nothing to discuss
unless you give me the answer on this." VanDelft responded that they ought to go
further, on other matters, and work out an answer on this demand later on. Rubin
again responded, "There is nothing to discuss unless you give me the answer on
this." VanDelft then suggested that perhaps they could settle the question of wages.
Rubin responded that he was not discussing anything "until we settle this " VanDelft
then suggested they try to settle the other issues and then arbitrate this question.
Rubin responded that he was not going before any arbitrator, he said, "We have to
settle this before we talk about anything else." With the latter assertion Rubin left
the meeting.
VanDelft acknowledged that during the discussion he advised Rubin that if he
was adamant in his position that he was leaving the Union no alternative but to
strike. Rubin responded they could do whatever they wanted. Rubin then requested
that any strike be delayed for 3 days to permit him to clear up pending work.
At 4:30 p.m. on October 28 Rubin inquired of Piccolo as to what the employees
intended to do. Piccolo responded that they were probably going to strike. Rubin
told Piccolo that he knew of the trouble Rubin had with Nesbit. Piccolo responded
that affair was 6 years ago, that Rubin had the best crew he ever had, and could
trust them. Rubin responded that there was nothing that could be obtained by the
Union, "You are making a top salary. You are getting what you are getting, there
is not a penny more in it." Piccolo asserted that if that was the way it was, they
had no course but to strike. Rubin replied, "Go ahead and strike, but remember you
are going to stay out there a long time."
McFadden related that after Rubin returned from the negotiating meeting he
advised the employees he had to have the right to hire and fire as he saw it. He
said the Union told him be was being extreme, that they would not agree to such a
provision and would have to have the right to arbitration. Rubin said nothing else
was discussed, because he refused to go into other matters. Rubin then advised,
"If you boys want to go out on strike, you may do so, but you will be out there until
doomsday. I will never sign a contract with 65, unless I get the right to hire and fire."
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A strike ensued on October 29 and was still continuing at the time of the hearing
herein.22 The principal picketing was at the ground floor level of the building occu-
pied by Orthodontist's and Plastics. Hawley's, which had been closed on Sep-
tember 25, as discussed infra, was picketed for only a few days, then the picket was
removed.
VanDelft, on October 30, advised Rubin that the picketing was not doing either
of them any good, and that it was time for them to get together and try to resolve
the issues. Rubin responded that he still had to have the answer to the question
relative to his right to hire and fire. VanDelft advised Rubin that his position with
respect to hiring and firing was extreme, that they ought to try and work out some
kind of compromise. Rubin responded that VanDelft knew what Rubin wanted.
VanDelft then suggested that they bargain on the other issues, that if they could
resolve the other issues there should not be any problem trying to resolve that issue.
Rubin responded, "No, I have to have the right to hire and fire That's the first
thing we have to talk about " Rubin asserted that he wanted the right to hire and
fire "without any questions from anybody." The conversation ended on that note.
Armstrong related a conversation he had with Rubin, while Armstrong was on
the picket line, in November. Armstrong inquired of Rubin why he did not sit
down with the union officials and see if they could work the matter out. Rubin
responded, "Get your Union to give me the hiring and firing and we can sit down
and talk." Rubin also asserted, "I must have the right to hire and fire. Without
that, then there is no negotiations at all."
VanDelft called Rubin 2 or 3 weeks after the strike commenced, on October 29,
and inquired if he did not think it was time that they reached a settlement. Rubin
responded that his position was the same, that there was nothing to talk about unless
they worked out the question of hiring and firing. VanDelft then suggested they go
to the State Mediation Board or an impartial third party, to obtain aid in working
out a settlement. VanDelft related that he sought the services of the State Mediation
Board and was advised by Nathan Cohen that Rubin refused to appear. This was
in the latter part of November. VanDelft asserted that be made another effort to
obtain agreement from Rubin, at the end of December, without success.
It appears undisputed that there were telephone calls subsequently between Rubin,
on the one hand, and Al Bernknopf, vice president of the Union, and David Living-
ston, president of the Union, and a meeting between Rubin and Livingston, in the
period between December and an unspecified date in February 1965. Rubin was
adamant in his position relative to the condition precedent, stated supra, and there
is no other evidence of collective-bargaining negotiations.
2. Respondent's defense
Rubin did not dispute the recitation of VanDelft, and other witnesses, relative to
the events set forth. Rubin asserted, "In my very first meeting with Mr. VanDelft,
union organizer of District 65, I told him why I had to have the right to hire and fire
without review by the Union, that my previous experience with Local [sic] 65 made
it absolutely necessary. He assured me something could be worked out. In every
subsequent meeting with Mr. VanDelft he assured me something could be worked
out." Rubin acknowledged that when he subsequently offered to bargain with
District 65 he stated the same condition as a condition precedent, "but I always
added if they could find a suitable substitution for my condition, I would accept it."
Rubin acknowledged that he never negotiated as to other matters. His explanation
was, "Well, I can state that here if you will permit me, Mr Examiner. Only after
the election did Mr. VanDelft then tell me that he could do nothing on this issue."
Concluding Findings
I have found, supra, that Rubin, in several speeches prior to the election, advised
the employees that he would never sign a contract with District 65. These events,
in September and early October in point of time, were closely related to Rubin's
advice to VanDelft, on September 17, that he must have complete freedom to run
his business as he saw fit, to hire and fire, to have people work whenever and wherever
he wanted. I have also found that, on October 13, immediately after the election,
22 The testimony of VanDelft, relative to the events of October 28, were corrorborated
by Woodyard, Piccolo, and Armstrong. In view of the corroboration by other witnesses
of the testimony of Armstrong, and having in mind Armstrong's demeanor , I find of no
consequence Rubin's effort to impeach Armstrong on the basis of a prior conviction It is
evident that Rubin first hired Armstrong with full knowledge of the background he now
seeks to use for impeachment purposes.
ORTHODONTIST'S SERVICE, ETC. 349
Rubin advised the employees that he did not have to sign anything, "all I have to
do is just talk." It is patent and undisputed that Rubin demanded, as a condition
precedent to any bargaining, that he be given an unfettered and unqualified right
to hire and fire, without review by the Union.
General Counsel, in his brief, cites the holding of the Board in the Vanderbilt 23 case
in which the Board found that a demand for a condition of an absolute right to dis-
charge employees without restriction, as a condition precedent to negotiations, con-
stituted conduct violative of Section 8 (a) (5) and (1) of the Act.
In the Vanderbilt and other cases 24 reference is made to the characterization of
such conduct, as I have found, as giving rise to the pointed observation of the First
Circuit, concerning a similar proposal, in N.L.R.B. v. Reed & Prince Mfg. Co., 205
F. 2d 131, cert. denied 346 U S. 887:
It is difficult to believe that the company with a straight face and in good faith
would have supposed that this proposal had the slightest chance of acceptance
by a self-respecting union, or even that it might advance the negotiations by
affording a basis of discussion; rather, it looks more like a stalling tactic by a
party bent upon maintaining the pretense of bargaining.
In the Prudential case 25 the Supreme Court held:
Collective bargaining, then, is not simply an occasion for purely formal meetings
between management and labor, while each maintains an attitude of "take it or
leave it"; it presupposes a desire to reach ultimate agreement, to enter into a
collective bargaining contract.
At the same time as it was statutorily defining the duty to bargain collectively,
Congress, by adding Section 8(b)(3) of the Act through the Taft-Hartley
amendments, imposed that duty on labor organizations. . . . It intended to pre-
vent employee representatives from putting forth the same "take it or leave it"
attitude that had been condemned in management.
It is apparent from the legislative history of the whole Act that the policy of
Congress is to impose a mutual duty upon the parties to confer in good faith
with a desire to reach agreement, in the belief that such an approach from both
sides of the table promotes the overall design of achieving industrial peace.
Considering all of the evidence in the record, I find that at all times on and after
October 28, 1964, Respondent refused to recognize and bargain with District 65
as the exclusive representative of the production employees, in an appropriate unit,
for the purpose of collective bargaining, and that such conduct was violative of the
provisions of Section 8(a) (5) and (1) of the Act.
E. The layoff of Martinez and Lopez, and the failure to recall
It is undisputed that Thomas Martinez and Robert Lopez were laid off by Rubin
on September 25 and have not since been recalled. General Counsel contends that
the layoff and failure to recall were discriminatorily motivated. Respondent con-
tends that the layoffs were for cause, and the failure to recall was economically
motivated. These contentions are next considered.
Martinez was employed by Rubin at Orthodontist's for 20 years. When Rubin
established Hawley's, Martinez was transferred to Hawley's and continued working
there until his layoff on September 25.26 It appears undisputed that Martinez
was senior, in terms of service, of all of Rubin's production employees. Robert
Lopez was employed by Rubin at Orthodontist's for approximately 8 years, then
transferred by Rubin to Hawley's where he worked approximately 2 years prior to
his layoff on September 25.
93 Vanderbilt Products, Inc., 129 NLRB 1323, enfd. 297 F. 2d 833 (C.A. 2).
g' See Senorita Hosiery Mills, Inc., 115 NLRB 1304, 1313.
21 N.L.R.B. v. Insurance Agents International Union, AFL-CIO (Prudential Ins. Co.),
361 U.S. 477, 485, 486, 488.
21 There is confusion in the record as to precisely when Hawley's was established.
Martinez testified that he worked there "a little over 2 years," while Celli asserted he
went to work at Hawley's in March or April 1960, continued working there 2 years and
had worked at Orthodontist's for approximately 3 years since leaving Hawley's. Lopez,
who replaced Celli at Hawley's, worked there approximately 2 years prior to the layoff
of September 25. It thus appears that Martinez started at Hawley's in 1960.
,'350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have found supra, section I, that approximately 50 percent of all the appliances
produced at Hawley's, by Martinez and Lopez, were products prepared for sale by
-Orthodontist's, the other 50 percent being, inferentially, sold under the Hawley name.
It appears undisputed that Lopez, among other duties, made two or three trips each
day with cases which needed to be cured, covering products of both Hawley's and
Orthodontist's. Prior to January 31, 1964, this curing was done at a location other
than the plant occupied by the Orthodontist's employees. However, after January 31
the Hawley's products, and Orthodontist's products prepared by Hawley's employees,
were all cured at the Orthodontist's laboratory, and it was Lopez who transferred
'these cases from one place to the other. He also took Orthodontist's work to Hawley's
to be worked on by Martinez and Lopez.
Lopez related that on Friday, September 25, about lunchtime, he made one of his
usual trips with cases to Orthodontist's. At that time Rubin told him not to take
anything over to Hawley's and advised Lopez to wait, as Rubin was going to
fawley's.27 Rubin then accompanied Lopez to Hawley's saying nothing to him
while enroute. When they arrived at Hawley's, Rubin raised his arms and told
Martinez to stop. According to Lopez, Rubin advised Martinez, forthwith, "I am
going to let you go because of insubordination. I am going to let you go for 2
months until you've decided to come back on my own conditions." Lopez asserted
that Rubin did not state what he meant by "conditions." Rubin then turned to
Lopez and advised him that he was also going to let him go "because I did not say
hello to him when I came in the place." 28 Martinez' version of the events of Sep-
tember 25, during Rubin's appearance, substantially corroborates Lopez' version.
Martinez related that after being advised by Rubin, "I am giving you 2 months, or
something like that, layoff. When you are ready to return on my terms, you may,"
he and Lopez changed clothes and left.
The events preceding the precipitate action of Rubin on September 25 are next
set forth.
Martinez credibly related that about noon on Wednesday, September 23, Rubin
came to Hawley 's, called Martinez inside a dressing room , and closed the door.29
Martinez' version, which I credit, of the conversation follows. Rubin advised
Martinez that someone had said that Hawley's had a connection with Orthodontist's.
Martinez related that he responded that that was no secret since there was an exchange
of employees, and delivery boys had delivered work from one place to the other, that
the employees had worked for Orthodontist's and Hawley's. Rubin then asserted
that he understood that the employees at Orthodontist's were trying to get into a
union , stating, "If they do I'll fire everybody and I'll close the place." Martinez
asserted that he remained silent.30
On Thursday, September 24, in the early afternoon, Rubin returned to Hawley's.
Martinez and Lopez were both present. Rubin advised Martinez, "Those S 0 B
bastards are getting in the union. I'll close the place, I'll fire everybody, and if they
get in the Union it's your fault." Rubin then advised Martinez and Lopez that he
did not need Hawley's or Orthodontist's, that he could do without either, that he had
made his money. It is undisputed that Rubin advised Martinez at that time that
Rubin intended to take out a certain amount each week until Martinez repaid money
which Rubin asserted Martinez owed to Rubin.31
21 It is undisputed that Rubin customarily made two or three trips each week to
Hawley's.
" Lopez' assertion that Rubin had never complained about his not saying hello previ-
ously , and making no other explanation , stands undisputed.
s Hawley's was described as comprising a laboratory with a small dressing room, which
can be closed off.
80 Lopez did not hear this conversation . Rubin did not dispute Martinez ' recitation.
ffi The effort of Rubin to confuse the facts surrounding the layoff , and failure to recall
Martinez and Lopez, are illustrated by the evidence relative to an advancement of money
by Rubin to Martinez , 7 years prior to the time of the hearing, and Martinez ' alleged
misconduct , unrelated to work , some 20 years previously . These events are set forth
herein merely to avoid further confusion.
Martinez related the circumstances under which he obtained an alleged loan of $4,000
from Rubin 7 years previously He asserted that at that time District 65 was trying to
get into Orthodontist's, and Rubin advised him he was not going to take it sitting down
and was going to fight it. It does not appear 'disputed that a sum of money was advanced.
Martinez related that while he worked for Rubin at Orthodontist 's he received a bonus of
the total amount of $2,500 each year , $ 1,000 In June and $1 , 500 at Christmas , because
he was working very late each day and this was Rubin 's way of taking care of overtime.
After he started working at Hawley's, Rubin discontinued these bonus payments , although
ORTHODONTIST'S SERVICE, ETC. 351
It appears undisputed that about a week prior to September 25 Martinez called
Rubin telling him he wanted to discuss a personal matter with him. Martinez
explained to Rubin at that time that his son had been friendly with some boys who
were involved in a pilferage. The son was not involved. Martinez requested that
Rubin allow him do bring his son to Hawley's, to keep him around after school hours.
Rubin did not agree, asserting the place was not covered by compensation for such
contingencies . Rubin's suggestion that the son could sell papers was not well
received by Martinez.
Rubin's recitation as counsel, as distinguished from his recitation as a witness,
was that when he told Martinez that it was a question of occupying his son, he advised
Martinez that this was the reason Martinez had never paid him moneys which Martinez
owed him, and was always broke. Rubin asserted that on Friday, September 16,
Martinez responded, "You are no damn good, you take the blood and sweat from
me," and that all this was said in anger. Rubin asserted that he returned to the
laboratory again on Monday, told Martinez that they had been together too long,
and tried to explain just what he had to do and what the situation was. Rubin
asserted that Martinez became abusive and Rubin walked out. Rubin then stated,
"On thinking the matter over, over the weekend, it continued the same insubordina-
tion , insulating [sic] matter of talking and so forth. I felt we just couldn't go on.
So when I came in that Friday [September 25] I didn't raise my hands, I didn't holler,
I merely said " `Tom, you are laid off for insubordination. If in 3 or 4 weeks or so
you reconsider it, you will be back to work."' Rubin was asked to state the reason
he laid off Lopez. He responded that he had stated to Lopez, "Robert, you are not
happy working here anyway. You never say good morning to me, you never say
good night. I have to make you talk to me. You are insolent . I don't know what
ails you, but this lab cannot work You can't run this lab, and therefore, unfortu-
nately, you too are laid off " I do not credit these self-serving unsworn declara-
tions of Rubin.
Lopez corroborated Martinez' assertion that Rubin, on Thursday, September 24,
advised Martinez and Lopez that the employees at Orthodontist's intended to get a
union in the place and that Rubin intended to close it Lopez asserted that Rubin
then had an argument with Martinez relative to some money which Rubin asserted
Martinez owed him.
Lopez denied that on September 25 Rubin told him that he was continually insub-
ordinate by never saying good morning and never saying goodby and always being
insolent. Lopez denied that Rubin ever discussed his attitude Lopez acknowl-
edged that Rubin had stated that Lopez could not work by himself at Hawley's, and
therefore Rubin had to lay him off. I credit Lopez to the extent his testimony is at
variance with the statements of Rubin.
Next considered are the events following the layoff of Martinez and Lopez.
Martinez reported his layoff, and that of Lopez, to VanDelft, inferentially on
Friday, September 25. VanDelft arranged for them to meet him at the Board office
on Monday, September 28. Also present were Woodyard, who had been designated
shop steward, and Rubin. At that time Rubin, in the presence of Janes, a Board
agent, objected to the presence of Martinez, asserting that he had been fired and
did not belong in the room. Rubin insisted that Martinez leave. VanDelft raised
a question of the reason for the discharge. Rubin responded he had let Martinez
go for insubordination. VanDelft asked for the specifics. Rubin responded that
Martinez had been insubordinate, but refused to provide any details. Rubin, at the
same time, refused to reply as to whether Lopez had been insubordinate. VanDelft
requested the two employees be reinstated. Rubin refused, asserting that Martinez
"would never come back." VanDelft called to Rubin's attention the fact that Lopez
had worked at Orthodontist's previously, had long seniority, and that since Ortho-
Martinez asserted that he worked from 8 a.m. until 8 p.m. each day, 5 days a week.
Martinez asserted that he had offered voluntarily to have a part of the amount advanced
taken from bonuses, and that Rubin refused this offer on two occasions , and Rubin had
advised Martinez to forget about the money advanced.
Rubin, upon inquiry by me, denied that his claim of "gross insubordination" related to
the disclosure that Hawley's was owned by Rubin, or was related to the loan. Rubin
asserted that it was related to a personal matter involving Martinez.
Rubin then sought to inject an arrest, which he acknowledged occurred more than 10
years previously , and Martinez asserted occurred 20 years previously . Rubin acknowledged
that he had no evidence of a conviction relating to this matter.
I find , in accordance with Rubin's admissions, that neither matter was the underlying
cause of the layoff.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dontist's was working a tremendous amount of overtime, there was no reason Lopez
could not be put to work there. Rubin refused to reinstate Lopez. Following an
effort to work out a consent election, VanDelft again requested Rubin to reinstate
Martinez and Lopez. Rubin then responded, "Since people had joined the Union
it was now common knowledge that Hawley's and Orthodontist's were the same
thing" and therefore he could not use Martinez and would not put him back.
The next meeting between VanDelft and Rubin occurred on October 5 at a formal
hearing at the Board offices. At that time there was a discussion of the events at
Hawley's and Rubin asserted, "I had to let Martinez and Lopez go because they had
joined the Union, and if they were not in the Union I would have called them back
by now." 32
Respondent misplaces confidence in the recitation of a stipulation signed by
VanDelft and Rubin on October 13. The stipulation is a supplement to the consent-
election agreement and provides for the exclusion from the unit of certain relatives
of Rubin. The stipulation, as originally prepared, then provides: "The undersigned
further stipulate that Robert Lopez and Thomas Martinez are eligible to vote in the
election because they are on the payroll of Hawley's, Inc., in the eligible period and
have been temporarily laid off." To this typed statement there is added in ink,
at the end, "because of gross insubordination." VanDelft asserted that when he
was first shown, and read, the stipulation, the words "because of gross insubordina-
tion" did not appear thereon, or he would not have signed it. Asked if these words
appeared at the time he signed it, VanDelft asserted that he did not know, that he
simply did not notice them. I find the language upon which Respondent relies does
not establish the ultimate fact. Neither can it be said that a stipulation between the
Union and Respondent, assuming agreement, would be binding on either General
Counsel or the Board, nor does it establish the ultimate fact.
It is undisputed that Rubin has made no effort to recall either Martinez or Lopez.
Concluding Findings
There are numerous cases holding that an employee may be discharged for a
good reason, or no reason at all, provided only that the reason was not a dis-
criminatory one, or a mixed motive. Thus, the first question becomes one of the
union activity of Martinez and Lopez, and Rubin's knowledge thereof.
It is patent that District 65 had a meeting on September 9 which was attended
by many of the Respondent's employees, during which a number of the employees
signed union authorization cards.33 It appears undisputed that Martinez and Lopez
attended this meeting; however, the question of when they signed union authorization
cards is in dispute, and is next considered.
McNeese asserted that all 12 of the Orthodontist's employees signed cards on
September 9. McNeese then asserted that both Martinez and Lopez also signed cards
on September 9. Piccolo, without specifying who was included, asserted that every-
one signed an authorization card on September 9. While Armstrong asserted that
Martinez and Lopez were present when the cards were signed, his testimony contains
no statement relative to their signing a card. Martinez asserted that he signed a
82Rubin, whose answers were evasive and equivocal throughout the hearing, acknowl-
edged that in a pretrial statement he had asserted, "Actually when Martinez and Lopez
were temporarily laid off to begin with, for gross insubordination, as of September 25,
this layoff was changed into a permanent firing as of October 5." Rubin acknowledged
meeting VanDelft at the Board office on October 5, but denied advising VanDelft that
Martinez and Lopez were "through now." Asked if it was a fact that he permanently
fired Lopez and Martinez on October 5, Rubin responded, "That couldn't possibly be a
fact because Martinez and Lopez both told you, under their examination, they never spoke
it word to me after September 25." Rubin explained his pretrial statement as meaning,
"I had never intended to imply, and had explained to both Mr. VanDelft and Eisner and
the investigator in charge, that by their [Martinez' and Lopez'] own acts they just
Weren't working, they were never actually fired."
'Rubin then asserted that his agreement with Martinez and Lopez relative to their
employment with him was that they do not disclose to the public, in any way, their con-
nection, his connection with Hawley's since that was a condition of their employment ; if
it was ever broken they would not be working for him any longer Rubin acknowledged
that he took it for granted that Lopez and Martinez knew that they were fired.
Rubin did not dispute the testimony of numerous witnesses that all of the employees
of Orthodontist's knew that it was Rubin who was operating Hawley's.
To the extent Rubin's testimony is at variance with that of VanDelft, I credit the latter.
88 Including , according to the testimony of each, McNeese , Armstrong , Piccolo, McFadden,
Woodyard, Celli, and Rosser.
ORTHODONTIST'S SERVICE, ETC. 353
membership card, when other employees of Orthodontist's were present, that it was
"about September 9," and that Lopez was present on that occasion. Lopez asserted
that he was present at the meeting of September 9 but left the meeting early "so I
didn't have a chance to sign." Lopez then asserted that he signed a card later on
"in the middle of September." VanDelft, who distributed the membership cards
and had them returned to him, could not remember the exact date when Martinez
and Lopez signed their membership cards, but asserted it was prior to the layoff
of September 25.34
VanDelft acknowledged that when he requested Rubin to negotiate with him on
September 17, no mention was made of Hawley's. The initial petition, filed Sep-
tember 17, as I have found supra, lists only the employees of Orthodontist's and
Plastics, not Hawley's. I have found, supra, that the number of production employ-
ees at Orthodontist's and Plastics totaled 14, which is the number indicated in the
unit in the election petition.35 Eisner explained that when it was learned that Rubin
would agree to allow Martinez and Lopez to vote in the election, and not block the
election, an amended petition was filed including Hawley's. The amended petition
was filed on October 5.
I find it improbable that District 65 would not have included Hawley's in the
original petition for election if, in fact, Martinez had signed a union authorization
card, as related by the witnesses, on September 9 I find the witnesses who so
testified were in error and I do not credit that portion of the testimony of each.
However, I credit the testimony of Lopez that he signed a union authorization card
"around the middle of September." I find that his authorization card, and that of
Martinez, were received by District 65 on or after September 17, when the petition
for election was filed, and before the layoff of September 25. It is undisputed that
the layoff occurred at noon on Friday, September 25, and these layoffs were discussed
by District 65 representatives with Rubin, at a meeting early on Monday, Sep-
tember 28. I further find that Rubin knew of the union activity of Martinez and
Lopez prior to the layoff of September 25.
I turn next to the purported reason, assigned by Rubin, for the layoff of Martinez
and Lopez. He described, in each instance, the reason as "gross insubordination."
The record contains no credible evidence of insubordination by Lopez, an employee
of Rubin's for at least 10 years at Orthodontist's and Hawley's combined. Rubin
did not dispute Lopez' assertion that Rubin had never complained to Lopez about
Lopez' alleged failure to say hello to Rubin on the occasions when Rubin came to
Hawley's. Neither did Rubin dispute Lopez' assertion that Rubin said nothing to
him while the two walked together from Orthodontist's to Hawley's, immediately
prior to the layoff.
I have found, supra, that during an organizing effort by an unidentified union in
June, Rubin engaged in unfair labor practices by threatening to fire any employee
he observed talking to the union representative. While Rubin asserted he previously
had a problem with District 65, as a defense for his failure to bargain, it is thus
demonstrated that Rubin's real purpose, in June and thereafter, was to preclude the
employees from exercising rights guaranteed by Section 7 of the Act; to wit: The
right to organize and to select representatives of their own choosing.
I have also found, on the credible testimony of McNeese, that Rubin advised
McNeese that he had attended a union meeting, inferentially on or about September 9.
It may reasonably be inferred that Rubin was aware that Martinez and Lopez were
also among those who attended that meeting. I have also found that on September 24,
the day before the layoff, Rubin advised both Martinez and Lopez that the employees
at Orthodontist's were getting in the Union, that Rubin intended to close the place
and fire everyone, and advised Martinez that the union activity was his fault.
While Rubin sought to obscure the circumstances immediately preceding the lay-
off, it is patent from Rubin's admissions that neither the alleged loan of money nor
Martinez' involvement in a morals charge some 10 or 20 years previously was in any
way related to the layoff. I believe Martinez' assertion that when Rubin raised his
voice in anger, it was Martinez's policy to keep his mouth closed. It is thus most
m Respondent requested the production of the membership cards. General Counsel
asserted that he had returned them, inferentially at the conclusion of the election pro-
ceedings , to VanDelft and, General Counsel asserted, VanDelft had been unable to locate
them.
zs I do not credit the explanation of Eisner as to the reason for the omission of Ilawley's
at the time the petition for election was filed on September 17. Eisner related that
VanDelft had advised him that Martinez and Lopez had been discharged or laid off, that
the Union intended to file unfair labor practice charges, and that rather than block an
election it was his decision to omit Hawley 's from the petition. Obviously the layoff
did not occur until 8 days after the filing of the petition for election.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
difficult to find from the facts in this record, or to believe, that Martinez was in fact
grossly insubordinate. Rather, it appears, and I find, that Rubin's assertion of gross
insubordination as to both Martinez and Lopez was pretextuous.
Rubin did not dispute the assertion of Eisner that on October 5 Rubin asserted
to Eisner and VanDelft, "You know, if those two guys hadn't joined the Union they
would have been back already. I don't understand why they did it." Thereupon
Eisner turned to VanDelft, in the presence of Janes, Board representative, and asked
him if he had heard Rubin's statement. Eisner related that immediately thereafter
he gave an affidavit to this effect to a Board representative. Similarly, Rubin made
no effort to explain his statement to Martinez, at the time of layoff, that he could
return to work when "you've decided to come back on my own conditions."
Rubin does not dispute the fact that his failure to reopen Hawley's was due to the
fact that his ownership of Hawley's had become public knowledge to a degree. Rubin
does not dispute the fact that all of the Orthodontist's employees knew that Rubin
was the owner of Hawley's. Neither does Rubin dispute the fact that at least half
of the work done by Martinez and Lopez at Hawley's was transferred to and done
by Orthodontist's employees after September 25.36
The Board has found a discharge. or layoff, discriminatorily motivated by reason
of the unconvincing character of the reasons adduced to support the discharge,
including the timing. Pacemaker Corporation, 120 NLRB 987, 991; United Fireworks
Mfg. Co., Inc., 118 NLRB 883, 885.
Speaking for the court, Medina has said "the unexplained coincidence of time
with respect to the principal events was really no coincidence at all, but rather part
of a deliberate effort by the management to scotch the lawful measures of the
employees before they had progressed too far toward fruition. . . . If employees are
discharged partly because of their participation in a campaign to establish a union
and partly because of some neglect or delinquency, there is nonetheless a violation
of the National Labor Relations Act." N.L.R.B. v. Jamestown Sterling Corp., 211
F. 2d 725 (C.A. 2).
The Board has noted well-established Board and court precedent that direct knowl-
edge of an employee's union activities is not a sine qua non for finding that he had
been discharged because of such activities but may be inferred from the record as a
whole. The small number of employees, the abruptness and timing of the discharge
were among the factors considered. Wiese Plow Welding Co., Inc., 123 NLRB 616.
The United States Supreme Court in Universal Camera Corporation v. N.L.R.B.,
U S. 474, 477, defines the "evidence" required by Section 10(e) of the Act as "'such
relevant evidence as a reasonable mind might accept as adequate to support a con-
clusion.' Accordingly, it `must do more than create a suspicion of the existence of
the fact to be established.... it must be enough to justify, if the trial were to a
jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is
one of fact for the jury.' "
In view of the above facts, and upon the entire record as a whole, I find that
Rubin's purported reason for laying off, and subsequent refusal to recall, Martinez
and Lopez was a pretext, and that the real reason and "moving cause" was the known
union and concerted activities of said employees, and said layoffs and failure to
recall constituted discrimination with respect to their hire and tenure of employment,
to discourage membership in District 65, and were unfair labor practices, in violation
of Section 8(a) (3) and (1) of the Act.
F. Unfair labor practice strikers
During the hearing, General Counsel amended the complaint to allege that the
employees ceased work concertedly on October 29 and went out on strike, and that
said strike was caused and provoked by the unfair labor practices which I have found
herein. General Counsel urges that the strikers be granted the customary right to
reinstatement upon application.
Having found the existence of the unfair labor practices complained of, and finding
that the strike was precipitated by and a result of said unfair labor practices, I will
recommend the customary remedy.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with Respondents' operations described in Section I, above, have a close, intimate,
30 I find of no consequence Rubin's assertion that Hawley's was a subcontractor and
that after September 25, Orthodontist 's could either do its own work or subcontract to
someone else.
ORTHODONTIST'S SERVICE, ETC. 355
and substantial relation to trade, traffic, and commerce among the several States,
and such of them as have been found to constitute unfair labor practices tend to
lead to labor disputes obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act.
It will be recommended that Respondent, upon request, bargain collectively with
District 65, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclu-
sive representative of all employees in the unit herein found to be appropriate for-
the purpose of collective bargaining, and if an understanding is reached, embody
such understanding in a signed contract; that Respondent offer Thomas Martinez-
and Robert Lopez immediate and full reinstatement to the former or substantially
equivalent position of each,37 without prejudice to the seniority or other rights or-
privileges of employment of each, dismissing, if necessary, any replacement, and
make each whole for any loss of pay suffered by reason of the discrimination against
each by a payment of a sum of money equal to the amount each would normally have
earned as wages from September 25, 1964, to the date on which Respondent shall
offer each proper reinstatement, as herein provided, less net earnings, to be computed
on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB
289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
I have found that the employees who ceased work concertedly on October 29,,
1964, are unfair labor practice strikers. It will be recommended that Respondent,
upon appropriate application, offer to each striker immediate and full reinstatement
to his former or substantially equivalent position without prejudice to his seniority
or other rights or privileges, discharging, if necessary, any replacements in order to
provide work for each of the said strikers.38
It is also recommended that Respondent be ordered to make available to the
Board, upon request, payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the amount
of backpay due under the terms of this Recommended Order.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall there-
fore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire record in the case I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 8(6) and
(7) of the Act.
2. District 65, Retail, Wholesale and Department Store Union , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By engaging in the conduct set forth in the section entitled "Interference,
Restraint , and Coercion," to the extent herein found , Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. By discriminating with respect to the hire and tenure of employment of Thomas
Martinez and Robert Lopez, thereby discouraging the free exercise of the rights
guaranteed by Section 7 of the Act , and discouraging membership in and activities
for the above-named labor organization , the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the
Act.
5. All production employees of Respondent, exclusive of all supervisors as defined
in Section 2(11) of the Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act.
6. District 65, Retail , Wholesale and Department Store Union, AFL-CIO, is, and
at all times commencing and since October 21 , 1964, has been , the exclusive repre-
87 See The Chase National Bank of the City of New York, an Juan, Puerto Rico , Branch,
65 NLRB 827.
88 Fitzgerald Mtlls Corporation, 133 NLRB 877, 887.
212-809-66-vol. 155-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of all employees in the aforesaid appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9 ( a) of the Act.
7. By failing and refusing at all times, commencing and since October 28, 1964,
to bargain with District 65, Retail, Wholesale and Department Store Union, AFL-
CIO, as the exclusive bargaining representative of employees in an appropriate unit,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) and (1) of the Act.
8. The strike beginning on October 29, 1964, was at all times an unfair labor
practice strike.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that the Respondent James Rubin d/b/a
Orthodontist's Service, Hawley's, Inc., and Prior Plastics, Inc., 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 any other labor organization of its employees, by dis-
charging or refusing to reinstate employees, or in any other manner discriminating
against them in regard to their hire and tenure of employment or any term or con-
dition of employment.
(b) Refusing, upon request, to bargain collectively with District 65, Retail,
Wholesale, and Department Store Union, AFL-CIO, as the exclusive bargaining
representative of all of the employees constituting the unit herein found to be
appropriate for the purpose of collective bargaining.
(c) Interrogating any of its employees concerning their organizational activities,
or threatening economic retaliation by reason of said activities, or warning employ-
ees that Respondent would never sign an agreement with District 65, or creating an
impression of surveillance, each in a manner violative of the provisions of Section
8(a)(1) of the Act.
(d) In any other manner interfering with, restraining, or coercing its 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 any other concerted
activity for the purpose of collective bargaining or other mutual aid or protection,
or 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 modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Offer to Thomas Martinez and Robert Lopez immediate and full reinstate-
ment to the former or substantially equivalent position of each without prejudice to
their seniority or other rights and privileges previously enjoyed , and make each
whole for any loss of pay each may have suffered by reason of Respondents' dis-
crimination. against each in accordance with the recommendations set forth in "The
Remedy" herein.
(b) Upon application , offer to each of the unfair labor practice strikers immedi-
ate and full reinstatement to the former or substantially equivalent position of each
without prejudice to the seniority or other rights and privileges previously enjoyed
by each, in accordance with the recommendations set forth in "The Remedy" herein.
(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 to analyze the
amounts of backpay due and the rights of employment under the terms of the Rec-
ommendation Order herein.
(d) Upon request , bargain collectively with District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, as the exclusive representative of all employ-
ees in the aforesaid unit , and if an understanding is reached , embody such under-
standing in a signed agreement.
ORTHODONTIST'S SERVICE, ETC. 357
(e) Post at its several places of business in New York, New York, copies of the
-attached notice marked "Appendix." 39 Copies of said notice, to be furnished by the
Regional Director for Region 2, shall after being duly signed by Respondent's rep-
resentatives, be posted by the Respondent and maintained by it for 60 consecutive
days thereafter in conspicuous places, including each of Respondents' bulletin
Boards. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 2, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Decision, what steps the Respondent
has taken to comply with the foregoing Recommended Order.
It is further recommended that unless within 20 days from the date of the receipt
of this Trial Examiner's Decision, the Respondent shall notify the said Regional
Director, in writing, that it will comply with the foregoing recommendations,40 the
National Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
' 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 words "a Decision and
Order."
dU In the event 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 Respondents have taken to comply therewith."
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 our employees that:
WE WILL bargain collectively, in good faith, with District 65, Retail, Whole-
sale and Department Store Union, AFL-CIO, as the exclusive representative of
all the employees in the bargaining unit described below with respect to rates of
pay, hours of employment, and other conditions of employment, and if an
understanding is reached, we will embody such understanding in a signed con-
tract. The bargaining unit is:
All production employees of Respondent, exclusive of all supervisors as
defined in Section 2 (11) of the Act.
WE WILL NOT discourage membership in District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, or any other labor organization of our
employees, by discriminating in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT interrogate any of our employees concerning their organiza-
tional activities, or threaten them with economic retaliation because of said
activities, or warn employees that we will never sign an agreement with District
65, in a manner violative of Section 8(a) (1) of the Act.
WE WILL NOT do anything to create an impression of surveillance of union
activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right of self-organization, to form labor
organizations, to join or assist District 65, Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or 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 modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL offer to Thomas Martinez and Robert Lopez immediate and full
reinstatement to the former or substantially equivalent position of each, with-
out prejudice to their seniority or other rights or privileges previously enjoyed,
and we will make each whole for any loss of pay suffered as a result of the
discrimination against each.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon application, offer to each of the unfair labor practice strikers,
immediate and full reinstatement to the former or substantially equivalent posi-
tion of each, without prejudice to the seniority or other rights or privileges pre-
viously enjoyed by each.
JAMES RUBIN D/B/A ORTHODONTIST'S SERVICE,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
HAWLEY'S, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
PRIOR PLASTICS, INC.,
Employer..
Dated------------------- By-----------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of the right to full reinstatement upon appli-
cation 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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No.
751-5500.
Century Papers, Inc. and United Papermakers and Paperwork--
ers, AFL-CIO, Local Union No . 854. Case No. 23-CA-1994.
October 27,1965
DECISION AND ORDER
Upon charges duly filed by United Papermakers and Paperworkers,
AFL-CIO, Local Union No. 854, the General Counsel of the National
Labor Relations Board, by the Regional Director for Region 23, issued'
an amended complaint dated May 14, 1965, against Century Papers,,
Inc., herein called Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices within the meaning of
Section 8(a) (5) and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the charge, amended
complaint, and notice of hearing were served upon Respondent and the.
Charging Party.
On May 19, 1965, Respondent duly filed its answer admitting cer-
tain allegations of the complaint, but denying the commission of any
unfair labor practices.
On June 17, 1965, all parties to this proceeding entered into a stipu-
lation whereby they agreed that the charge, complaint, Respondent's
answer, amendment to complaint, and the stipulation of facts con-
stitute the entire record in the case and that no oral testimony is,
155 NLRB No. 40.