Ray Nichols, Inc.

National Labor Relations Board - Board Decisions

Oct 3, 1939

15 N.L.R.B. 846 (N.L.R.B. 1939)

In the Matter of RAY NICHOLS, INC. and LOCAL No. 45-B, UNITED
FURNITURE, CARPET, LINOLEUM AND AWNING WORKERS UNION
Case No. C-871.Decided October 3, 1939
Venetian. Blind Manufacturing Industry-Employer: out of business at time
,of hearing-Interference, Restraint, and Coercion: anti-union statements in-
cluding warnings against organization of union and threats to close business
:should the employees do so-Discrmvination: discharges, for union activity-
Unit Appropriate for Collective Bargaining: production employees exclusive of
,guidance men and outside-installation workers-R-epresentafives: proof of
choice: designation of union-Collective Bargaining: refusal to bargain: since
respondent is out of business it is not affirmatively ordered to bargain with
the union upon request-Reinstatement Ordered: discharged employees in event
respondent has or does in the future reenter the same or a similar business in
which discharged employees are qualified to work-Bach; Pay: awarded dis-
charged employees: from date of discharge to date respondent went out of
business: also in event respondent has reentered business from date of reentry
.to date of offer of employment.
Mr. Mark Lauter, for the Board.
Schanzer, Radest cC Levine, by Mr. Joseph Radest, of New York
City, for the respondent.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local No. 45-B,
Upholsterers, Furniture, Carpet, Linoleum and Awning Workers
Union, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Second.
Region (New York City), issued its complaint dated May -12, 1938,
against Ray Nichols, Inc., herein called the respondent, alleging that
the respondent, had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Re-
lations Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint, accompanied by notices of hearings, were duly served upon
the respondent and the Union.
15 N. L. R. B., No. 96.
846
RAY NICHOLS, INC. 847
The complaint alleged in substance that the respondent had (a)
discharged and refused to reinstate certain named employees be-
cause they had joined and assisted the Union and engaged in con-
certed activities for the purposes of collective bargaining and other
mutual aid and protection; (b) urged and warned its employees not
to become or.remain members of the Union; and (c) on or about
November 15, 1937, and at all times thereafter, refused to bargain
.collectively with the Union as the representative of its employees in
:an appropriate unit.
On May 20, 1938, the.respondent filed its answer to the complaint,
denying that more than 25 per cent of the materials and products
used by the respondent have at any time been purchased, delivered, or
transported in interstate commerce and denying that it had en-
gaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held in New York City on June
27, 28, and 29, 1938, before I. L. Broadwin, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel, participated in the hearing, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues.
At the close of the Board's case and again.at the close of the hearing
the respondent moved to dismiss the complaint on the ground that it
was unsupported by the evidence and that affirmative proof adduced
at the hearing showed that there was no refusal to bargain and that
the discharges were justified. Ruling on these motions was reserved
by the Trial Examiner until filing of his Intermediate Report, in
which they were denied except in so far as they related to that part
of the complaint alleging that Stanley Borodin was discharged for
union activities. As to Borodin the Trial Examiner granted the
respondent's motion to dismiss the complaint and found there was
sufficient evidence that Borodin stole from the respondent to justify
his discharge even though his union activities may have made his
continued employment still less desirable to the respondent. At the
close of the hearing counsel for the Board moved to conform the
complaint to the proof. The motion was granted. During the course
of the hearing the Trial Examiner made several rulings on objections
to the admission of evidence. The Board has reviewed these rulings
of the Trial Examiner, and save where inconsistent with what is
set forth below, finds that no prejudicial errors were committed.
These rulings, so limited, are hereby affirmed.
On August 27, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served on all the parties, finding
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3), and (5) and Section 2 (6) and (7) of the Act, and -recom-
mending that the respondent cease and desist therefrom, offer full
reinstatement with back. pay to three of the individuals named in
the complaint and, upon request, bargain collectively with the Union.
Exceptions to the Intermediate Report and a request for oral argu-
ment before the Board were thereafter filed by the respondent. On
April 12, 1939, copies of a notice of hearing for oral argument were
sent by registered mail to all the. parties. The copy directed to the
respondent was returned undelivered. An investigation made by the
Regional Director for the Second Region revealed that the where-
abouts of Mr.. Nichols, president and secretary, and Mrs. Nichols,
vice president and treasurer of the respondent, was not known to the
Union -or to the respondent's attorney, who was served with notice
of hearing. The respondent did not appear at the time and place
set by the Board for oral argument. The Union waived oral argument.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Ray Nichols, Inc., a New York corporation, had its principal office
and plant in New York City and engaged until June 13, 1938, in
the manufacture, sale, and installation of venetian blinds. Ray
Nichols is president and secretary and his wife is vice president and
treasurer. The gross volume of the respondent's purchases of mate-
rials in States other than New York during 1937 was about $31,580
and represented 44 per cent of all materials purchased. The gross
volume of the respondent's sales shipped to points outside of New
York in the same period was about $30 ,237 or 44 per cent of the total
sales. The respondent, through its counsel, stipulated at the hearing
that it was engaged in interstate commerce within the meaning of
the Act.
After November 15, 1937, the date of the discharges complained of,
the respondent continued production until December 24, 1937, when
the factory was closed. From that date until March 18, 1938, only
two salesmen were employed. On March 18, 1938, the respondent
reopened its factory and resumed production until June 13, 1938,
when it was again closed. At the hearing Ray Nichols testified that,
"regardless of the ruling of the Board in this matter," he was per-
manently out of the venetian-blind business. The corporation had
not been dissolved at the time of the hearing. Nichols had by that
time given notice of wish to terminate the respondent's lease on 644
Broadway, New York City, where the plant was located, and had
laid off the remaining employees.
RAY NICHOLS, INC.
II. THE 'ORGANIZATION INVOLVED
849
United Furniture Workers of America, Local Union No. 45-B, is
n labor organization admitting to its membership production em-
ployees of the respondent, excluding clerical, supervisory, and out-
side-installation employees. Since January 1, 1938, it has been affili-
ated with the Committee for Industrial Organization. Prior to
January 1, 1938, the Union was known as Local No. 45-B, Uphol-
sterers, Furniture, Carpet, Linoleum and Awning Workers Union
and was affiliated with the American Federation of Labor. Although
its name and affiliation were changed on the date given, the Union
retained the same offices, assets, location, and memmbership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On November 5, 1937, during lunch hour, Lawrence Ross, an or-
ganizer for the Union, met and spoke to some of the respondent's
employees in the hall of 644 Broadway, New York City, on the
second floor of which the respondent's plant is located. He returned
to the same place on November 8, 1937, at which time lie spoke to
Stanley Borodin, Tony De Servio, Charles Maleski, James Ricardi,
and Anthony Roman, certain of the respondent's employees. He ex-
plained to them that the Union was starting a drive to organize the
entire venetian-blind industry so as to secure a 40-hour week, time
and a half for overtime, and security in their jobs. According to
Ross, the men "thought the Union was a swell idea and would like to
sign up," but they were afraid that, "if Mr. and Mrs. Nichols ever
found out, it meant their jobs, and jobs weren't easy to get these
days." Ross did tell the men that he wanted an opportunity to talk
to all of them at the union headquarters. He further stated that men
working as foremen or supervisors were not wanted. It appears
that the other employees regarded Bob Semel, Fred Osipowitz, and
Herbert Farrant as foremen or supervisory employees. Ross also
told the men present that Rongo and D'Arcy could not be taken into
the Union since they were outside-installation workers over whom
the Union did not take jurisdiction.
On November 10, 1937, Ross met and spoke with some of the
employees at a restaurant opposite the respondent's plant. The men
saw Osipowitz across the street and Ross crossed to engage him in
conversation concerning- organization in the plant. Rongo joined
them and said to Ross, "You better not bother about the Union around
here. You had better get away and not talk to anybody or we will
.move you away." That evening seven of the employees met Ross in
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same restaurant. Ross explained the' protection afforded by the
National Labor Relations Act; application cards for membership
were passed around; and Charles Maleski, Tony De Servio, Frank
McNevich, Stanley Borodin, and Anthony Roman signed.
At a second meeting in union headquarters held November 12, 1937,
James Riccardi and Joseph Fountalle signed application cards. The
seven men who had applied for membership then voted to- have the
Union represent them and Ross announced that he would see Mr.
Nichols on the following day.
Events of November 15, 1937, are of particular significance. Early
in the morning of that day Ross and Paul Green, a business repre-
sentative of the Union, called at the respondent's place of business..
Mr. Nichols was in conference and -unable to see them but Mrs.
Nichols came in after a short time. Ross and Green told her that
they were from the American Federation of Labor, that they repre-
sented a majority of the employees in the plant and wished to dis-
cuss the question of an agreement covering working conditions of
the employees. The two union representatives testified that Mrs..
Nichols replied that none of the employees had spoken to her about
signing union cards, that she did not believe they had signed, that
they ran their shop in an "American manner," that Mr. Nichols had
fought as a good American patriot in France and knew what was
good for the workers in the shop, and that nobody could come in
from the outside and tell them how to run the shop. Mrs. Nichols'
account of the November 15, 1937, visit differed from that of the
union representatives. She testified at the hearing that she told
the two men that she and her husband had had previous friendly
relations with the American Federation of Labor and that they could
see Mr. Nichols later in the day. Ross and Green left. In the light
of the subsequent conduct of the respondent, set out below, we find
that Mrs. Nichols made the statements ascribed to her above by Ross
and Green.
Borodin testified at.the hearing that sometime in the morning of
November 15, 1937, Farrant, Mrs. Nichols' brother, came over to
where he was working and told Borodin that if he had signed a union
card he should get it back from the Union and Farrant would see
that he did not lose his job. Borodin further testified that during
1 he same day Mrs. Nichols told him that before she would recognize
any union she would close up her plant. At about 4:30 p. in. on
November 15, 1937, Maleski, De Servio, McNevich, and Borodin were
called to the office and discharged by Mr. Nichols who gave them no.
reasons for his action. We find, as set forth more fully below, that
the four named employees were discharged because they had joined
and assisted the Union.
RAY NICHOLS, INC. 851
• That evening a union meeting was held. Ross testified that the
men told him that Maleski, De Servio, McNevich, and Borodin had
been discharged because it was found out that they had joined the
Union. Riccardi said, "I feel like a heel going back to work tomor-
row and these fellows were fired for Union activity and I did the
same thing they did." Tony Roman expressed the same sentiments
and suggested, "Shall we. walk out?" Ross and Green advised Ric-
cardi and Roman to stay on the job and announced that they would see
Mr. and Mrs. Nichols soon about reinstating the four discharged men.
Despite the reported statements above, Riccardi and Roman signed
a statement prepared at the direction. of either Mr. or Mrs. Nichols,
dated November 22, 1937, and signed by all the respondent's em-
ployees as of that date, stating in part as follows :
Today, November 22nd, voluntarily came Anthony Roman,,
James Riccardi, and in the presence of Miss M. A. Cole, Miss
Sara Arlette, William D'arcy and E. P. Nichols said that they
have been requested to sign a card for application to some asso-
ciation which they did, and at that time they had not talked the
matter over with other men and were unaware of the facts con-
cerning same, and they were under the impression due to,
their ignorance of the matter that it was sort of a get-together
social for our men workers. They claim that they do not even
know the name of the association or its address. However, after-
talking over this matter with other workers and freinds they
claim they have no desire to join and want to remain here to,
work under the condition which. they have found agreeable.
In view of the circumstances under which this statement was pre-
pared and signed, of the part taken by Riccardi and Roman at the
union meeting of November 15, 1937, and the. fact that both men
signed cards clearly designating the Union as their collective bargain-
ing agency in all matters pertaining to rates of pay, wages, hours,.
and conditions of employment, it seems highly improbable that the
statement represents the true wishes of Riccardi and Roman. It ap-
pears rather, and we find, that they signed it under pressure by the
respondent and in hopes of retaining their jobs after it seemed to
them that their Union had been successfully broken by the discharges
mentioned.
Summing up, we find that the respondent, by anti-union statements,.
coercive acts and threats of its officials and supervisory employees,,
by its conduct when the Union sought to have it enter into bargain-
ing negotiations, and by the discharge of four employees for union
activity, has interfered with, restrained, and coerced its employees
in, the exercise of their rights to self-organization, to form, join, or
assist labor organizations to bargain collectively through represent-
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
atives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining and other mutual aid and pro-
tection as guaranteed in Section 7 of the Act.
B. The discriminatory discharges
The complaint alleges that Maleski, De Servio, McNevich, and Boro-
din were discharged because they joined and assisted the Union.
The respondent's answer denies this and alleges as grounds for their
discharge that Maleski was loafing on his job and failed to attend to
his duties; that De Servio and McNevich.were temporary employees,
inexperienced and inefficient; and that Borodin had been stealing
merchandise from the respondent and absented himself from his
duties without permission, had become inefficient, careless, and neg-
lectful about his duties, smoked in violation of fire-department
rules, and had made a false statement with respect to his age. The
following evidence was adduced with respect to each of. these men :
Charles Maleski entered the respondent's employ in December 1936,
in its painting department at $12.00 a week. He worked in various
departments up to the time of his discharge on November 15, 1937, at
which time he was receiving $14.40 a week. He signed the union
designation and application card on November 10, 1937. Maleski
testified that on the afternoon before he was discharged he had a
conversation with Rongo and Osipowitz in which Rongo told him
that the Union was no good, "that all unions are gyps," and that if
Ross, the union organizer, came around, "we should not bother with
him." "'Ray Nichols testified that Maleski had, during the week be-
fore November 15, 1937, ruined 15 router drills through careless work,
that he had broken a washbasin and that his work never had been
really satisfactory. Maleski admitted having broken the washbasin
some time before but denied having ruined the router drills. Mrs.
Nichols, who acted as factory manager and apparently had much
greater opportunity to observe the men at work than did Mr. Nichols,
testified that the first time she found Maleski's work unsatisfactory
was during the week preceding his discharge. She testified as
follows :
Q. What was there that was unsatisfactory about his work?
A. (By Mrs. NICHOLS.) The manner in which he did it-the
manner in -which he conducted himself, the manner in which
he carried the materials in a careless way and threw them into
the racks and very arrogant.
These grounds for dissatisfaction are not persuasive, especially in
the light of the fact that Maleski had been in the respondent's em-
ploy since December 1936, and that the first dissatisfaction with his
RAY NICHOLS, INC. 853
work occurred during the week that Ross was active in attempting
to organize the respondent's employees. Maleski testified that he
wants his job back.
Tony De Servio and Frank McNevich entered the respondent's em-
ploy on November 5, 1937, working at a paint machine at a salary of
$14.40 weekly. Both men were recommended to Mr. Nichols by Stan-
ley Borodin. De Servio and McNevich signed union application and
designation cards on November 10, 1937, and were discharged on
November 15, 1937. De Servio testified that on the morning before
they were discharged Mr. Nichols came over to where he and Semel
were working and said to them that if the men were going to join
the Union he would shut down the plant. Shortly afterward,
Borodin came over and asked De Servio privately if he was going
to back out of the Union. De Servio replied that he was sticking
with it.
Mr. Nichols testified that the reasons for discharging De Servio
and McNevich were that they were inexperienced, their work was
poor, they were only temporary employees and they had ruined a
certain paint job. With regard to Mr. Nichols' last reason, it ap-
pears that certain blinds were given the two men allegedly to be
varnished. These they painted ivory. Certain other blinds were
given them allegedly to be painted ivory. These they varnished.
De Servio testified that lie had received and followed Semel's instruc-
tions on the two jobs and that if a mistake was made the responsibil-
ity was Semel's. Semel, on the other hand, testified that the mistake
was De Servio's. It does appear that Semel laid out the work and
after it was completed he did not notify either De Servio or Mc-
Nevich that the blinds had been improperly painted. Under the
circumstances we find that De Servio and McNevich were not at
fault.
With regard to Mr. Nichols' charges that De Servio and McNevich
were inexperienced and that their work was poor it appears that
until the time of the hearing no one had told them they were not
performing their jobs satisfactorily.
It is not clear from the record whether or not the two men were
told that their, jobs were temporary. Mrs. Nichols testified that she
told them when they were hired that "if they proved their ability
and business kept up we would keep them as long as we could."
Whether De Servio and McNevich were told that their jobs were
temporary is immaterial if they were discharged for having joined
the Union and in order to discourage membership in that organiza-
tion. De Servio testified that he wants his job back.
Stanley Borodin, entered the respondent's employ on September 9,
1936, in the assembly department at $14.40 per week. He worked
199549-39-vol. 15--55
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in various other departments and at the time of his discharge on
November 15, 1937, he was earning $16.00 per week. He signed the
union application and designation card on November 10, 1937. The
respondent admitted that his work had been satisfactory up until
the last week. The charge by Mr. Nichols that he smoked in violation
of fire-department rules is without substance in view of the fact
that the smoking took place in the washroom, that other employees
did the same thing, and that Nichols permitted smoking in the wash-
room during lunch hour.
With respect to the respondent's allegations that he had been
stealing, Borodin admitted on cross-examination that he recalled tak-
ing some wood from the plant without permission by way of the
back elevator; that he knew of complaints about employees using
the back freight elevator, and that employees were not allowed to
take wood without permission. Semel testified that on November 13,
1937, he observed Borodin pass packages out of the fire door to
somebody in the hall and that some time prior to November 15, 1937,
he saw him take paint through the back door. About 2 months prior
to the discharge, Samel saw Borodin take four or five paint machine
rollers (round brass moulds) and pass them out of the back door.
Semel testified that he told Borodin to bring them back because Mr.
Nichols would miss them and that Borodin did return two of them.
Not long before the discharges Mrs. Nichols confronted Borodin with
charges that he had been stealing and warned him against continuing
to do so.
Despite the evidence of Borodin's stealing, it is clear that the re-
spondent trusted him until shortly before his discharge. Mr. and
Mrs. Nichols frequently gave him checks and cash to take to the bank.
It was on his recommendation that" the respondent hired De Servio
and McNevich. It is also clear that Borodin was a leader in organ-
izing the employees. In view of the fact that his union activity, the
respondent's sudden dissatisfaction with his work and morals, anti-
union statements expressed by the respondent's officials and supervi-
sory employees to him, and his discharge all followed in rapid
succession, it is apparent, and we find, that Borodin's discharge was
occasioned by the respondent's desire to discourage labor organization.
After November 15, 1937, the respondent increased the pay of all
remaining employees in the plant 5 cents an hour, effective the week
following November 15, 1937. There was overtime work after that
date.
All the evidence in this case presents an integrated picture. First,
although warned against doing so by supervisory and confidential
employees, the production workers organized. Then the respondent,
while continuing to express an anti-union attitude, suddenly de-
RAY NICHOLS, INC. 855
velopecl an alleged dissatisfaction with the work and demeanor of
those employees who had first joined the Union. Shortly there-
after, after the respondent had been requested to bargain collectively
by the Union, it summarily discharged a majority of its organized
employees and raised the wages of other employees.
Upon all the evidence we find that Charles Zaleski, Tony De
Servio, Frank McNevich, and Stanley Borodin were discharged
because they joined and assisted the Union, and that by such dis-
charges the respondent has discriminated in regard to their hire
and tenure of employment, and has thereby discouraged member-
ship in the Union. We also find that by such action the respondent
has interfered with, restrained, and coerced its employees in the
rights guaranteed under Section 7 of the Act.
C. The refusal to bargain collectively
1. The appropriate unit
At the hearing the Union asked for the exclusion of outside-in-
stallation workers and "guidance men" from the unit of production
employees. Of employees listed on the November 11, 1937, and
November 18, 1937, pay rolls, William D'Arcy and James Rongo
were outside-installation workers and Robert Semel, Fred Osipowitz,
and Herbert Farrant were "guidance men." D'Arcy and Rongo
installed blinds at the point of use. They did little if any work in
the plant. The Union does not admit them to membership. We
shall exclude them from the unit. Other employees regarded Se-
mel, Osipowitz, and Farrant as foremen or supervisory employees.
At one time a sign had been posted by the respondent in the plant
announcing that Semel was foreman of the paint department, Farrant
was foreman of the assembly department, and Osipowitz was fore-
man of the cutting department. After the sign was up for about a
week the respondent removed it and announced that these three men
would henceforth be "guidance men" in their respective depart-
ments. The change in name from foremen to "guidance men" caused
no apparent change in their duties or positions. They continued to
direct and supervise the work of other employees. Their salaries had
been raised when they were appointed foremen and had not subse-
quently been reduced. That the three "guidance men" were at least
confidential employees whose interests were closely allied with the
management seems clear. We will accordingly exclude "guidance
men" from the unit.
We find that the production employees of Ray Nichols, Inc., ex-
clusive of "guidance men" and outside-installation workers, constitute
a unit appropriate for the purposes of collective bargaining and that
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said unit insures to the employees of the respondent the full benefit
of their right to self-organization and collective bargaining and
otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
As of the respondent's pay roll for November 11, 1937, employees
within the appropriate unit were Stanley Borodin, Tony De Servio,
Joseph Fountalle, Charles Maleski, Thelma Morton, Anthony Ro-
man, James Riccardi, and Frank McNevich. Joseph Fountalle
resigned during the following week. By November 12, 1937, all of
the above employees with the exception of Thelma Morton had desig-
nated the Union as their bargaining representative. Thelma Morton
resigned on November 14, 1937.
We find that on November 12, 1937, and at all times thereafter,
the Union was the duly designated representative of a majority of
the employees of the respondent in the appropriate unit. Pursuant
to Section 9 (a) of the Act the Union was, therefore, the exclusive
representative of all employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
3. The refusal to bargain
As has been stated, Ross and Green, the union representatives,
called at the respondent's office on the morning of November 15, 1937,
asked to see Mr. Nichols, the president, were told that he was not in,
and then spoke to Mrs. Nichols, vice president and treasurer. They
told her that they represented a majority of the employees in the
plant and that they wanted to discuss the question of a collective bar-
gaining agreement. As noted above, Mrs. Nichols refused to bargain,
saying that no one could come in from the outside to tell her and Mr.
Nichols how to run the shop. That same day Maleski, De Servio,
McNevich, and Borodin were discharged. On November 16, 1937,
Ross and Green tried to get in touch with Mr. Nichols and finally
reached him that evening. An appointment was made for the
following morning.
Ross and Green went to the respondent's plant on the morning of
November 17, 1937, and spoke to both Mr. and Mrs. Nichols. Green
announced that he and Ross had come representing the workers to
talk about an agreement and to request reinstatement of the four
employees discharged 2 days before. Green gave Nichols the Union's
business card to identify himself. Testimony concerning the con-
versation occurring at this interview is highly contradictory. Ross
and Green stated that Mr. Nichols told them that he was not in-
RAY NICHOLS, INC. 857
terested, that the venetian-blind industry was not his main source
of income, that he had other business interests, that he did not want
to bargain collectively, and that that was all there was to it. They
testified further that Nichols said he was not interested in dis-
cussing the discharges because he had good reasons for -firing the
four men on November 15, 1937, and that Mrs. Nichols told them that
her people came from Kentucky and that they would fight on the
drop of a hat and "by God they would fight the Union." Mr. and
Mrs. Nichols, on the other hand, testified that they stated their will-
ingness to bargain if their employees had actually joined the Union,
but that they did not believe this to be the case. Mr. Nichols asked
Green who had joined and Green refused to tell him saying that the
identity of the members was confidential. Mrs. Nichols testified that
she said to the union representatives, "If you thought for one minute,
that we did not want that shop Union, don't you think we could
prevent it?" In view of the respondent's course of conduct during
the entire period here involved, we find that the account of the
November 17, 1937, interview rendered by Ross and Green is sub-
stantially correct and that Mr. and Mrs. Nichols did make the state-
ments ascribed to them by Ross and Green.
Before the interview ended Mr. Nichols offered to go into the shop
then and there and take a vote among the employees to determine
whether they wanted to-be represented by the Union. It seems cer-
tain that a vote taken pursuant to Mr. Nichols' offer would not as a
practical matter have expressed the free choice of even the men then
employed. Since Maleski, De Servio, McNevich, and Borodin had
been wrongfully discharged by the respondent 2 days previously
for their union' activity their employee status and right to vote on
the question of union affiliation remained after November 15, 1937.
A determination on the terms offered by Mr. Nichols would have
deprived them of that right. In any event, under the circumstances
the results of an election conducted under the surveillance of Mr.
Nichols would not have represented the free choice of the employees.
In view of the respondent's discharge of the four employees who
had first joined the Union, its previous anti-union statements to them.
and others, its subsequent procurement of a renunciation of the
Union from the two members it did not discharge, and the fact that
its supervisory employees had witnessed certain of the Union's suc-
cessful organizational efforts, we find that the respondent's refusal
to bargain was not based upon doubt as to the Union's majority
representation but rather upon the respondent's antipathy to labor
organization.
We find that the respondent on November 17, 1937, and at all times
thereafter, refused to bargain collectively with the Union as the
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
representative of its employees in the appropriate unit with respect
to wages, hours of employment, and other conditions of employment.
IV. THE EFFECT OF THE 'UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from further
engaging in such practices. *We shall also order the respondent to
take certain affirmative action which we deem necessary to effectuate
the policies of the Act.
We have found that the respondent discriminatorily discharged
Charles Maleski, Tony De Servio, Frank McNevich, and Stanley
Borodin on November 15, 1937. We shall order the respondent to
make the said Charles Maleski, Tony De Servio, Frank McNevich,
and Stanley Borodin whole for any loss of pay they have suffered
by reason of their discharges by payment to each of them of a sum
of money equal to the amount which he would normally have earned
as wages from the date of his discharge to June 13, 1938, the date
upon which the respondent closed its plant, less his net earnings'
during such period. We shall further order the iespondent, in the
event it has reentered the business of manufacture, sale, and installa-
tion of venetian blinds, or any similar business in which Charles
Maleski, Tony De Servio, Frank McNevich, and Stanley Borodin
are qualified to work, to offer immediate reinstatement to the said
Charles Maleski, Tony De Servio, Frank McNevich, and Stanley
Borodin to their former or substantially equivalent positions without
-prejudice to their seniority and other rights and privileges and with
back pay to each less his net earnings, from the time the respondent
' By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge , and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440 . Monies received
for work performed upon Federal , State, county , municipal, or other work -relief projects
are not considered as earnings , but as provided below in the Order , shall be deducted from
the sum due the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county , municipal , or other government or governments
which supplied the funds for said work-relief projects.
RAY NICHOLS, INC. 859
reopened such business to the time of the offer of reinstatement; or,
in the event that the respondent shall in the future reenter the busi-
ness of manufacture, sale, and installation of venetian blinds or any
similar business in which the said Charles Maleski, Tony De Servio,
Frank McNevich, and Stanley Borodin are qualified to work, to
offer at that time reinstatement to the said men to their former or
substantially equivalent positions without prejudice to their seniority
and other rights and privileges.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local No. 45-B, Upholsterers, Furniture, Carpet, Linoleum and
Awning Workers Union, known since January 1, 1938, as United
Furniture Workers of America, Local Union No. 45-B, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. The production employees of Ray Nichols, Inc., exclusive of
"guidance men" and outside-installation workers, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. Local No. 45-B, Upholsterers, Furniture, Carpet, Linoleum and
Awning Workers Union, known since January 1, 1938, as United
Furniture Workers of America, Local Union No. 45-B, was, on No-
vember 12, 1937, and at all times since has been, the exclusive repre-
sentative of all such employees for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union on November
17, 1937, and at all times thereafter, as the exclusive representative of
its employees in an appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Charles Maleski, Tony De Servio, Frank McNevich, and
Stanley Borodin and thereby discouraging membership in the Union,
the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Ray Nichols, Inc., or its agents, successors, or assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in United Furniture Workers
of America, Local Union No. 45-B, or any other labor organization
of its employees by discharging any of its employees or in any other
manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining and
other mutual aid and protection as guaranteed in Section 7 of the
Act ;
(c) Refusing to bargain collectively with the exclusive repre-
sentative of its employees in an appropriate unit in respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment, in the event the respondent or its agents, successors, or
assigns has reentered, or does in the future reenter, the business of
manufacture, distribution, and sale of venetian blinds or any sub-
stantially similar business.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Make whole Charles Maleski, Tony De Servio, Frank
McNevich, and Stanley Borodin for any loss of pay they have suf-
fered by reason of their discharges by payment to each of them of
a sum of money equal to the amount which he would normally have
earned as wages from the date of his discharge to June 13, 1938, the
date upon which the respondent closed its plant, less his net earnings
during such period ; deducting, however, from the amount otherwise
due each said employee, monies received by him during said period
for work performed on Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said projects;
(b) In the event the respondent, or its agents, successors, or assigns
has reentered the business of manufacture, sale, and installation of
venetian blinds or any substantially similar business in which
RAY NICHOLS, INC. 861
Charles Maleski, Tony De Servio, Frank McNevich, and Stanley
Borodin are qualified to work, offer immediate reinstatement to the
said Charles Maleski, Tony De Servio, Frank McNevich, and Stanley
Borodin to their former or substantially equivalent positions with-
out prejudice to their seniority and other rights and privileges, and,
in such event, make whole Charles Maleski, Tony De Servio, Frank
McNevich, and Stanley Borodin for any loss of pay they may have
suffered by reason of the respondent's failure to reinstate them on
the date of reentering business by payment to each of them of a
sum of money equal to the amount which he would have earned as
wages from that date to the time of the offer of reinstatement, less
his net earnings, deducting, however, from the amount otherwise
due each said employee monies received by him during said period
for work performed on Federal, State, county, municipal, or other
work-relief projects, and pay ' over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said projects;
(c) In the event the respondent, or its agents, successors, or as-
signs shall in the future reenter the business of manufacture, sale,
*and installation of venetian blinds or any similar business in which
Charles Maleski, Tony De Servio, and Frank McNevich are qualified
to work, offer at that time reinstatement to the said men to their
former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges;
(d) In the event the respondent, or its agents, successors, or
assigns, has reentered its former business or a substantially similar
business, immediately post notices in conspicuous places throughout
its plants, buildings, and other places of employment, and maintain
such notices for a period of at least ninety (90) consecutive days,
stating that the respondent will cease and desist in the manner set
forth in 1 (a), (b), and (c), and that it will take the affirmative
action set forth in 2 (a), (b), and (c) of this Order; or in the event
the respondent, or its agents, successors, or assigns shall in the future
reenter its former business or a substantially similar business, at that
time immediately post such notices and keep them posted for the
same period ;
(e) Notify the Regional Director for the Second Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR:- WILLIAM ,1VI. LEISERSON took no part in the consideration of the
above Decision and Order.