Stern and Stern, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1763 (N.L.R.B. 1977)

STERN AND STERN, INC.
Stern and Stern, Inc.' and Amalgamated Jewelry,
Diamond and Watchcase Workers Union, Local
No. 1, International Jewelry Workers Union, AFL-
CIO. Case 2-CA-13884
January 31, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On June 17, 1976, Administrative Law Judge Karl
H. Buschmann issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the Administrative Law
Judge'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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,2 findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.
We find merit in the Respondent's contention that
a bargaining order is not an appropriate remedy in
this case. The Administrative Law Judge concluded
that the Union had a majority in a unit of Yale's
production employees. However, contrary to the
Administrative Law Judge and for reasons set out
below, we cannot find that the Yale production
employees alone constituted an appropriate unit.
Rather, an appropriate unit would need to include
both the Yale production employees and the Stern
and Stern, Inc. (hereinafter Stern), inspection and
shipping employees. It is not disputed that the Union
did not have sufficient authorization cards to repre-
sent a majority of employees in the larger unit. Under
these circumstances, we shall therefore not issue a
bargaining order as part of the remedy.
Our reasons for finding only the unit of production
employees and shipping and inspection employees to
be appropriate are as follows: Even prior to the,
merger of Yale and Stern on January 1, 1976, and at
the time of the unfair labor practices in September
1975, Yale and Stern were a single employer. Yale
Inasmuch as Yale Jewelry Contractors , Inc., was merged into Stem and
Stern , Inc., on January I, 1976, we amend the Respondent's name to reflect
the situation subsequent to the merger
2 The Respondent excepts to the Administrative Law Judge's admission
of evidence as to the appropriate unit. The Respondent argues that the
Administrative Law Judge improperly allowed the General Counsel to
"reopen" his case after resting. However, it is clear that the General Counsel
only conditionally rested his case and reserved the right to submit evidence
227 NLRB No. 256
1763
was established by Michael Stern, president and part
owner of Stern, to serve as a jewelry maker. Ernest
Pollack became vice president of Yale and was given
a 50-percent interest in Yale because of his skills in
jewelry making. He managed the production employ-
ees of Yale-polishers, setters, jewelers, graders, and
platers-but overall management of both companies
was in the hands of Michael Stern. Stern served as
president of both companies, with a 57-percent stock
ownership in Stern and 33-2/3 percent in Yale.
Stanley Dershowitz, another principal in both com-
panies, owned 16-1/3 percent of Yale and 33 percent
of Stern. After the merger, Michael Stern owned 53
percent of Stern and Pollack had a 10-percent
interest.
Yale's function is to make jewelry from component
parts provided by Stern. Of its production, 65 to 75
percent is for Stern and the rest is for outside
contractors. Stern handles only Yale-produced jewel-
ry. Stern employees verify all incoming merchandise
and inspect it before it goes to Yale. Again, after Yale
assembles it, Stern employees inspect it and, if further
work is required, the job is returned to Yale. All
merchandise, whether going out in Yale's name or
Stern's, is boxed and shipped by Stern employees.
Both Yale and Stern operate on the same floor, with
a door between them, and there is a constant
movement of employees between them. Though
Pollack supervises the Yale production employees,
Michael Stern has responsibility for the overall
management of both Yale and Stern. Wages, hours,
and working conditions of all employees were de-
scribed by Michael Stern as "substantially the same."
He further testified that fringe benefits for employees
were "identically the same."
Under these circumstances , we find that the com-
munity of interest between the Yale production
employees and the Stern inspection and shipping
employees dictates that all employees should be
included in an overall unit.3 Having found that the
Union never represented a majority of employees in
the unit we have found appropriate, we shall not issue
a bargaining order as part of the remedy.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
as to the appropriate unit. The Respondent was offered full opportunity to
prepare and present a rebuttal to the General Counsel's evidence Under
these circumstances, we find that the Administrative Law Judge's admission
of the additional evidence was proper and that the Respondent was not
thereby prejudiced.
3 See L & S Construction Company, Inc., 155 NLRB 524 (1965); see also
Libbey Glass Division, Owens-Illinois, Inc., 211 NLRB 939 (1974).
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified below, and hereby orders that the Respon-
dent, Stern and Stern, Inc., New York, New York, its
officers, agents , successors , and assigns , shall take the
action set forth in the recommended Order, as so
modified:
1. Delete paragraphs 1(d) and 2(c) and reletter
subsequent paragraphs accordingly.
2. In relettered paragraph 1(e) substitute the
words "In any other manner" for the words "In any
like or related matter."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER FANNING, dissenting in part:
I agree with the Administrative Law Judge that a
unit of the Yale production employees was appropri-
ate and, finding that the Union represented a
majority in that unit, I would affirm the issuance of a
bargaining order as part of the remedy.
My colleagues, concluding that the only appropri-
ate unit would include both the Yale production
employees and the Stern inspection and shipping
employees, find that the Union never represented a
majority in an appropriate unit. Accordingly, they
conclude that a bargaining order is not appropriate in
this case. While I do not question that an overall unit
would be appropriate, it is also clear that the Yale
production employees alone shared a community of
interest warranting their being found to constitute an
appropriate unit.
Ernest Pollack managed the day-to-day operations
of Yale and had full responsibility for supervising the
production employees. Pollack owned 50 percent of
Yale but had no financial interest in Stern. Nor did
Pollack exercise any supervisory authority over the
Stern employees. Though Michael Stern testified that
he had responsibility for "overall management" of
both Yale and Stern, there is no evidence that he
actually participated in the supervision of or exer-
cised control over the Yale production employees.
Also, there was no interchange of employees
between the Yale production unit and the Stern
shipping and inspection unit . There was a substantial
difference in the skills and backgrounds of the Yale
employees ( i.e., jewelers , grinders, stone setters,
polishers, washers, and platers) and the Stern employ-
ees (i .e., inspectors and shipping and receiving
employees). In fact, it was not disputed that retrain-
ing would be required prior to transferring an
employee from one unit to the other.
Finally, uncontradicted testimony of Herbert John-
son, a union representative who has administered
over 100 collective-bargaining agreements involving
the jewelry industry in the New York area, indicated
that it has been the industry practice to keep the
inspection employees separate from the units of
production employees.
Accordingly, based on their separate supervision by
Pollack, a total lack of interchange with Stern
employees, the substantial differences between their
skills and backgrounds and those of the Stern
employees, and the practice in the jewelry industry,
the Yale production employees alone clearly consti-
tuted an appropriate unit. Therefore, inasmuch as the
Union represented a majority in an appropriate unit
and that majority was dissipated by the Respondent's
unfair labor practices, I would affirm the Administra-
tive Law Judge's issuance of a bargaining order as
part of the remedy.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been decided that
we violated the law and we have been ordered to post
this notice. We intend to carry out the order of the
Board and abide by the following:
WE WILL NOT discharge any employees because
of any union activity.
WE WILL NOT promise or grant any benefits or
otherwise change the terms and conditions of
employment of any of our employees for the
purpose of interfering with their freedom of choice
for or against a union.
WE WILL NOT offer any bribes to our employees
to induce them to vote against a union.
WE WILL NOT unilaterally promise or grant any
benefits or otherwise change the terms and
conditions of employment of our production
employees.
WE WILL NOT interfere in any other manner
with employees' rights under Section 7 of the
National Labor Relations Act, including the right
to vote for, join, or assist labor organizations.
WE WILL offer to David Grynberg immediate
and full reinstatement to his former or substantial-
ly similar job, without prejudice to his seniority or
other rights, privileges, or working conditions.
WE WILL make David Grynberg whole for any
loss of pay or other benefits suffered as a result of
the termination of his employment.
STERN AND STERN, INC.
STERN AND STERN, INC. 1765
DECISION
STATEMENT OF THE CASE
KARL H. BuscHMANN , Administrative Law Judge: This
case arises upon a complaint issued November 12, 1975, by
the National Labor Relations Board alleging in substance
that Yale Jewelry Contractors , Inc., violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended, by (1) granting employees pay increases and
numerous other benefits in order to undermine the employ-
ees' union support ; (2) by discriminatorily discharging an
employee for his union activity ; and (3) by refusing and
failing to bargain with the employees ' bargaining represen-
tative . In its answer , filed November 18, 1975 , Respondent
admitted certain jurisdictional and factual allegations, but
it denied that the Company is an employer within the
meaning of the Act, and that it had committed any unfair
labor practices.
The hearing on these charges was held on January 28, 29,
and 30 , 1976, in New York City. The General Counsel,
Charging Party, and Respondent were represented by
counsel and afforded full opportunity to adduce evidence,
to call , examine , and cross-examine witnesses , to make oral
argument , and to file briefs . Based on the entire record in
this case , including briefs of counsel and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Corporate Identity
At the time of the alleged unlawful practices in the fall of
1975, Respondent, Yale Jewelry Contractors, Inc. (Yale),
was a New York corporation, located at 71 Fifth Avenue,
New York City. The Company operated as a jewelry
contractor which took component parts of a jewelry item
and turned them into a finished piece of jewelry. The only
difference between an ordinary jewelry manufacturer and a
jewelry contractor is that the latter does not take title to the
raw products and primarily sells its expert labor for a fee to
produce the jewelry.
Yale's president was Michael Stern who also owned 33-
2/3 percent of its stock; Ernest Pollack who owned 50
percent of the stock was vice president and had all the
managerial responsibilities for the production aspects of the
Company, including immediate supervision over its pro-
duction employees.
As of January 1, 1976, Yale ceased to exist as an
independent company and has been absorbed without
change in its operation by Stem and Stem, a related
company. Stern and Stem is partially owned by Michael
Stem who is also its president. This company, located at the
same address as Yale, occupies adjoining facilities and is
separated by a hallway and a door. Since its inception in
1904, Stem and Stem has been a seller of jewelry which
other companies produced . Its customers are retailers,
wholesalers , and catalog houses . Between 1965 and 1970
the relationship between Stern and Stern, as sales agent,
and Yale, as jewelry contractor, grew closer until presently
all of Stern's sales consist of products manufactured by
Yale. In spite of the most recent change on January 1, 1976,
which eliminated Yale as an independent company, its
operation has not changed, as explained by Respondent's
counsel:
In other words, everything functionally is exactly the
same . The functions have continued and are performed
by, I assume, essentially the same people.
The mere fact that Yale now operates as a part of Stern
and Stern does not render this proceeding improper or
ineffective, since there has been a complete continuity of
operation and function of Yale as an employer and
business entity.
B. The Union Drive
Sparked by Respondent's decision in August of 1975 not
to pay its employees for the Fourth of July holiday, the
production employees at Yale decided to unionize. Raphael
Jimmez, a former employee at Yale explained:
Well, it happens that the foreman by the name of
Eddie, a foreman come to me and says that Mr. Stern or
Mr. Pollack they dont' want to pay for the 4th of July,
that we should get paid for. Mr. Eddie instruct me to tell
the rest of the people that they were not going to pay for
the 4th of July and that is when everything started.
So at this time the people wanted to go union. They
told me about it. I told the guy sitting in the back, I
think his name is David. He brought the card from 14th
Street and in May's luncheonette he passed the card to
me after working [hours].
I had the cards signed downstairs, some of them, and
the next day I had some signed on lunchtime.
David Grynberg, a polisher at Yale who had prior union
experience contacted the Union and met Pedro J. Ortiz the
union agent on September 4, 1975. Grynberg signed a
union card (G. C. Exh. 2(a)) and took additional ones back
to the plant where Jiminez distributed them to his fellow
workers. Through his personal knowledge of having wit-
nessed several cards being signed in his presence, Jimmez
could recall during his testimony those cards which were
signed in his presence. As a result 10 cards were admitted
into evidence without the objection of Respondent's
counsel (2a, b, c, e, g, k, 1, q, s, v).1 Certain other cards were
admitted over the objection of Respondent's counsel. For
example the card of Jose Rodriguez (2t) was dated 8-14-75,
which appeared inconsistent with Jiminez' testimony that
all cards were signed on September 4th or 5th. Jiminez
however, specifically recalled that Rodriguez had taken a
predated card out of his locker and signed it in his presence
either on September 4 or 5, 1975. Similarly, the card of Teo
Rivadeneina (2x) was objected to because it was dated 4-9-
75. Subsequent testimony revealed that the date was
intended to be September 4, 1975, but that according to
1 All union cards, identified as 2(a) through 2(x), were General Counsel's
exhibits
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
South American custom, the month was placed before the
day. The card was accordingly admitted. Respondent also
objected to the card of Luis Franco (20) because it was
signed twice. The objection was overruled and the card
admitted. Another card, that of Alberto Vasquez (2m), was
received into evidence over Respondent's objection. The
signature appeared scratched out. Jiminez, however, ex-
plained that Vasquez had "a problem with the pen [it
didn't ] want to write." The card of Jose Reynoso (2p) was
admitted even though Respondent objected on the ground
that the card was signed on the reverse side.
Most of the cards (including 2d and f) contained
10/4/75" or "10/5/75" as the signature date. Respondent
objected on the ground that this date was inconsistent with
both the Board's stamp showing September 11, 1975, as the
filing date, and the general testimony indicating September
4 or 5 as the date of the signatures. The record shows,
however, that the individuals simply mistook the month of
September for the 10th month of the year (see testimony of
Rudis Falcon). The cards were therefore admitted.
Seven additional cards (2h, i, j, n, r, u, w) which Jiminez
did not witness being signed were admitted through the
testimony of Teo Rivadeneia, a polisher at Yale who
unequivocally testified seeing the seven cards signed in his
presence. In sum, the record contains a total of 24 union
cards.
This number of cards constitutes a clear majority of the
production employees at Yale in September 1975. The unit
was appropriately described as "production employees"
exclusive of professional and office employees, salesmen,
watchmen, guards, and supervisors. General Counsel,
relying on the testimony of Ralph Jiminez who identified a
maximum of 44 production employees at Yale (20 polish-
ers, I or 2 jewelers, 2 to 7 grinders, up to 8 setters, 4 washers,
I plater, and 2 men on the engraving machine) argues that
there were a total of 43. Respondent, citing the testimony of
Jimenez on cross-examination and to Stem 's recollection of
additional employees-although a check of those figures
adds up to 44 employees-argues that there were 47
employees. I find that there were no more than 44
production workers at Yale. In any event, 24 union cards
amount to a majority of 43, 44, or 47 employees among
Yale's production employees.
C. The Discharge of David Grynberg
During the second day of the organizational drive,
September 5, 1975, David Grynberg, who had been
employed at Yale for almost 2 years as a repairman in
sizing of rings and who had made the initial contact with
the Union, was discharged by Ernest Pollack, Respondent's
vice president and general manager. Grynberg testified as
follows:
Five to one before lunch I finished my work and went
to get more work-Pollack-he is vice president, I
didn't know then-Pollack he says he wants to talk to
me. He says, I never believed in my life you are going to
do things to me like this. You signed for the union. He
says, you want your payroll the extra day. He gave me
the payroll for the week. He gave me a check for five
hours and for three quarters and he says take your tools
and get out.
I says, I don't have a bag to put tools, He took a bag
from the shop and I took my tools and went away. I
asked him if I was fired and he didn't answer me.
Grynberg subsequently applied for unemployment bene-
fits. Because of Respondent's contention that Grynberg
was not fired but that he voluntarily quit his job, his
application led to a contested hearing before the unemploy-
ment office of the State of New York. The referee's decision
disagreed with Respondent's contention and concluded
that Grynberg was in fact fired from his employment at
Yale.
In this proceeding, Respondent similarly contends that
Grynberg voluntarily left his employment at Yale for other
work. Yet the record shows that Grynberg's repeated
attempts to find other employment occurred after the
termination at Yale, and that these attempts were unsuc-
cessful. Respondent also characterizes Grynberg's testimo-
ny as evasive and contradictory and unreliable. Any
appearance of evasiveness, however, was due to the
witness's obvious difficulty with the English language. And
while his testimony may have been contentious to some
degree, I credit his testimony dealing with the episode on
September 5, 1975. The fact that Grynberg may have been
unhappy with his job and complained about being "treated
like a dog" is not sufficient to overcome the necessary
inference that he would not have left his job in the middle
of his efforts to bring the Union into the plant and without
first finding another place of employment.
Moreover, Respondent's suggestion that if Yale had
indeed intended to discharge Grynberg it would have been
accomplished with more subtlety at the end of the day or
the conclusion of a normal workweek ignores the usual
motive for the discharge of a union supporter; i.e., to serve
openly as an example to others.
D. Unilateral Promise of Benefits
Shortly after the organizational efforts by the employees
and following Grynberg's discharge on September 5, 1975,
Respondent became aware of a general feeling of unrest
among its employees. Mr. Stem recognized that the low
morale among the employees initially came about as a
result of the Company's unwillingness to pay for the Fourth
of July holiday or certain religious holidays. He acknowl-
edged that "there were gripes about working conditions,
there wre gripes about sick leave, there were gripes about
the fact that there were no coffee breaks, there were gripes,
oh, almost anything." On or about September 6, 1975, at
the behest of Michael Stem, Eddie Tedeschi, a foreman at
Yale, spoke to the employees, including Santos Nieves, and
promised that the Company would extend all the benefits
which the Union would offer provided they rejected the
Union. The employees, however, did not accept Tedeschi's
promises. Mr. Stem then requested each department at
Yale to select a representative who was conversant in
English for a meeting on September 9, 1975. At the meeting,
the Employer agreed to grant a pay increase, coffeebreaks,
and other benefits, except Blue Cross benefits. At a second
meeting, on September 10, 1975, management yielded to
STERN AND STERN, INC. 1767
the demands by its employees for the Blue Cross health
insurance program. Primarily because of Santos Nieves'
insistence that the promised benefits be put in writing, Yale
executed a formal agreement, printed in English and
Spanish which was distributed on September 11, 1975, for
signature and acceptance by the employees. The agreement
provides (G. C. Exh. 5 and 6):
To All Employees:
This letter will confirm our understanding and
agreement as to the following:
1. Each employee will receive an immediate salary
raise of $3.00 per week with another salary increase in
January of each year.
2. We will provide Blue Cross & Blue Shield at a
single person rate for each employee after six months
employment. After an employee is employed for 1-1/2
years, we will provide family coverage.
3. Each employee shall be entitled to 5 days of sick
leave with pay after one year.
4. We will clean up and maintain the lunch room
area.
5. Each employee shall be entitled to a 15 minute
coffee break in the morning from 10:00 AM to 10:15
AM. Lunch hour shall be extended 15 minutes from
1:45 PM to 2:00 PM in lieu of an afternoon coffee
break.
6. Each employee shall be entitled to the following
10 paid holidays: New Years Day, Washington's
Birthday, Memorial Day, Independence Day, Labor
Day, 2 days of Rosh Hashanah, Yom Kippur, Thanks-
giving Day and Christmas Day.
7. We will continue the profit Sharing Plan.
Of course, you understand that if the above terms are
not accepted by our employees, this letter of agreement
shall be deemed cancelled.
Respondent hoped that the employees would, by accept-
ing this offer of benefits, forego their union support. This
conclusion is supported by Mr. Stem's testimony:
However, it was our belief, because we had in essence
what we thought was a contract, where everybody
signed the form saying they were happy and all the
demands met . . . we felt in essence that whatever
union applications were made, were null and void.
Even without the testimony of Respondent's chief execu-
tive, it is reasonable to infer that by promising these
benefits only 5 or 6 days after a union drive by the
employees the Company hoped to frustrate any further
union support and to convince the employees to get along
without the Union.
This is particularly supported by a subsequent episode
between Michael Stem and Santos Nieves. Several weeks
later, Stern in a private conversation with Nieves offered
him "a hundred dollars to try to get the people not to get
into the union." Nieves refused the offer and was promptly
asked to resign. He testified as follows:
The foreman, Eddie, approached me and said if I
would like to resign and I said no. Then he said if I
would resign he would promise to get me a job starting
with $3 an hour and I refused and I sat down and I was
thinking-then I heard somebody say if I didn't resign
things would go hard for me, I would get accused of
something and forced to resign, so I thought about it
and I went in to see Mr. Stern but he was too busy.
I spoke to his brother and I came back and I
resigned.
II. ANALYSIS
A. The Discriminatory Discharge of David
Grynberg
The record leaves no doubt that David Grynberg was
discharged because of his union activity. It is impossible to
accept Respondent's proposition that Grynberg voluntarily
left his employment after almost 2 years of employment.
Grynberg's efforts to bring the Union into the plant would
have been a useless exercise for him if he had decided to
quit 1 day later. Moreover, it is reasonable to assume that
Grynberg would have located another place of employment
before giving notice to his employer. Respondent's refusal
to reinstate Grynberg following the visit by the two union
representatives support the conclusion that Yale had fired
Grynberg. Finally, the timing of Grynberg's separation
from his employment, only 1 day after his principal umon
activity, confirms that Pollack had summarily dismissed
Grynberg because of the Union. All surrounding circum-
stances support Grynberg's version of his final conversation
with his superior, Mr. Pollack.
Accordingly, I have no difficulty in finding that the
discharge of David Grynberg because of his umon support
violated Section 8(a)(1) and (3) of the Act, as alleged in the
complaint.
B. Promise of Benefits To Discourage Union
Support
The promise or grant of a benefit to stifle an organiza-
tional campaign constitutes an unlawful interference with
employees' rights guaranteed by Section 7 of the Act,
because it infringes upon the employees' freedom of choice
in favor of unionization. This is particularly so if the
benefits are conditioned upon a vote against the Union.
The circumstances in this case lead to only one conclusion
that Yale's "agreement" for employee benefits initiated
only after the union campaign began was conditioned upon
the employees' retraction of their union support. In his
testimony, Mr. Stem clearly indicated that by accepting the
"contract" the employees were expected to forego their
union support. The fact that the employees played a part in
negotiating for these benefits does not detract from the
unlawful conduct. It is natural that employees even while
attempting to organize are susceptible to direct promises for
improved working conditions. Nonetheless, the record here
shows that the Employer initiated the discussions for
improved working conditions when Eddie Tedeschi spoke
to them on or about September 6, 1 day after the signing of
the union cards. Moreover, initially, the employees actually
expressed their dissatisfaction with this approach until they
yielded to Stem's bargaining methods.
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even without any evidence of motive, Respondent has
clearly failed to carry its burden of rebutting the obvious
inference that the benefits were intended as an inducement
for the employees to disavow the Union. As alleged in the
complaint, Respondent thereby violated Section 8(a)(1) of
the Act.
Respondent's conduct in this regard is compounded by
Stem's offer of what can fairly be characterized as a bribe
to Santos Nieves. The credible and forthright testimony of
Nieves shows that Stern offered Nieves $100 to convince
him to work against the Union and persuade his fellow
workers not to support the Union. Obviously such conduct
is violative of Section 8(a)(l) of the Act. Heck's Inc., 166
NLRB 674 (1967).
C. The Necessity for a Bargaining Order
General Counsel generally argues that Respondent's
conduct which had the tendency to destroy the majority
status of the Union and to undermine the Union 's organiza-
tional drive requires a bargaining order in accordance with
N. L R. B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
Respondent naturally argues that "there were no company
actions which served to undermine the union" and that a
bargaining order is inappropriate . Significantly , Respon-
dent contends that the Union has not achieved a majority
among the production employees at Yale and surely not
among the production employees at Stem and Stem.
Respondent posits that the cessation of Yale as an
independent firm and its absorption into Stern and Stern
requires that 14 employees at Stern who perform shipping,
inspection , and checking functions on the products of Yale
be added to the unit.
I have already found , contrary to Respondent's conten-
tion, that 24 union cards constituted a clear majority among
the production employees at Yale in September 1975.
Moreover , the takeover of Yale by Stern and Stern in
January 1976 has not changed the functional aspects or the
status of the employees at Yale . This is particularly true
with respect to the 14 shipping and inspection employees of
Stern and Stern in their relation to Yale . In the words of
Respondent 's president , "I would say that at all times Stern
and Stern performed the function-excuse me , the inspec-
tion and the wrapping and the shipping and all functions
that they do now. There was never a time when Yale
Jewelry Contractors did anything but produce the item."
To be sure , Respondent may even be correct to the extent
that presently the production people at Yale and the 14
employees at Stern would constitute an appropriate unit,
but the inquiry here is not which of the employees at Yale
and Stern and Stern should be grouped into the most
appropriate unit , but whether a bargaining order is appro-
priate under the factual circumstances of this case, and
whether consideration of such a remedial order has been
frustrated by the corporate change in January 1976.
I find that a bargaining order is both appropriate and
necessary under the factual circumstances in this case.
First, Respondent violated Section 8(a)(5) of the Act by his
refusal to bargain . The record shows that a petition for
certification was filed on September 11, 1976 (G.C. Exh. 3).
According to the petition , a request for recognition was
made on September 8, 1976 , and refused by the Employer
on the same date. Moreover, it is well settled that the filing
of a petition itself constitutes a sufficient claim for
recognition ; and Respondent's refusal or failure to bargain
with the Union after it had achieved a majority among the
employees violates Section 8(aX5). Gary Steel Products
Corporation, 127 NLRB 1170, fn. 2 (1960); National Welders
Supply Company, Inc., 145 NLRB 948 (1964).
Respondent's unfair labor practices commenced when it
fired Grynberg during the organizational attempt by the
employees on September 5, 1975, and Respondent's unfair
labor practices continued by its unilateral negotiation and
promises of benefits on the heels of the Union's recognition
demand. The Employer's misconduct was clearly intended
to dissipate the Union's majority status . Since the demand
for recognition was made on September 8, 1976, the
Employer's obligation to bargain began as of that date.
Trading Port, Inc., 219 NLRB 298 (1975).
I further find that, even in the absence of Respondent's
violation of Section 8(a)(5), a bargaining order is necessary
to remedy the violation of Section 8(a)(1). As the Supreme
Court stated in N.LR.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969), the purpose of such a bargaining order is to
remedy past election damage and to deter future miscon-
duct. General Counsel has demonstrated, as evidenced by
the union cards and the petition for certification, that the
Union had a majority among Yale's production employees
between September 5 and 11, 1975. Respondent's practices,
particularly its "agreement" to grant wage increases and
other benefits, disclosed a disposition to destroy the
Union's majority and to evade its duty to bargain.
A bargaining order under these circumstances is neces-
sary as a remedial tool for past misconduct and as a
deterrent to future violations. N.L.R.B. v. Gissel Packing
Co., supra; J.C. Penney Co., Inc. v. N.L.R.B., 384 F.2d 479,
486 (C.A. 10, 1967).
Still to be determined is whether the corporate change of
Yale in January 1976 frustrates the effective imposition of a
bargaining order.
The record shows that there is a definite continuation of
the prior bargaining unit and a complete continuity of the
identity of Yale as an entity in spite of the change in the
status as an independent company. Yale continues to
occupy the same premises which are separated from those
of Stern and Stern. Pollack and Tedeschi remain in
supervisory positions . The working hours at Yale have
remained the same even though they are different from
those at Stern and Stern. In sum, the community of interest
at Yale has remained substantially the same. Accordingly,
the change in the corporate status of the two firms in
January 1976 does not render the entry of a bargaining
order inappropriate. Shop Rite Foods, Inc., 162 NLRB 1020
(1967); Interstate 65 Corporation d/b/a Continental Inn, 186
NLRB 248 (1970).
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
STERN AND STERN, INC. 1769
3. Respondent violated Section 8(a)(3) and (1) of the
Act by the discriminatory discharge of David Grynberg
because of his union activity.
4. Respondent violated Section 8(a)(1) of the Act by
promising wage increases and numerous other benefits, and
by offering a bribe to an employee to undermine the Union,
to destroy the majority status among the employees and to
interfere with the employees' freedom of choice in favor of
the Union.
5. Respondent violated Section 8(a)(5) of the Act by its
refusal and failure to bargain with the Union.
6. The unfair labor practices affect commerce within
the meaning of Section 2(6) of the Act.
THE REMEDY
Having found that Yale Jewelry Contractors engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, I recommend that Respondent be
ordered to cease and desist from its unlawful practices. I
further recommend that Respondent or its successor be
ordered to post an appropriate notice.
In addition, I recommend that David Grynberg be
offered full and immediate reinstatement to his former
position or, if such position no longer exists, to a substan-
tially equivalent position, without loss of benefits or
seniority, and that he be made whole for any loss of
earnings sustained by him by reason of the discrimination
against him, together with interest at a rate of 6 percent per
annum, in accordance with Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). I also recommend that Respondent
recognize and bargain with the Union as the exclusive
bargaining representative of the employees in the bargain-
ing unit described as "all production employees" (except
professional employees, watchmen, guards, supervisors,
office clerical as defined in the Act).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I issue the following recommended:
ORDER2
Respondent, Yale Jewelry Contractors, New York, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily discharging employees because of
their union support.
(b) Promising or granting any benefits or otherwise
changing the terms and conditions of employment of any of
its employees in order to interfere with their freedom of
choice for or against the Union.
(c) Offering bribes to its employees to induce them to
work against the Union.
(d) Refusing to recognize and bargain collectively with
the Union as the exclusive bargaining representative of "all
production employees" at Yale concerning rates of pay,
2 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
wages, hours of employment, and other terms and condi-
tions of employment.
(e) Unilaterally promising or granting any benefits or
otherwise changing the terms and conditions of employ-
ment of the production employees at Yale without consult-
ing the Union.
(f) In any like or related manner interfering with or
coercing its employees in the exercise of the rights to self-
organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer David Grynberg immediate and full reinstate-
ment to his former job or, if that job is not available, to
substantially equivalent employment, without prejudice to
his seniority or other rights or privileges, and make him
whole for any loss of earnings he may have suffered as a
result of his discharge in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of compliance
with paragraph (a) above.
(c) Upon request bargain collectively with Amalgamated
Jewelry, Diamond & Watchcase Workers Union, Local No.
1, International Jewelry Workers Union, AFL-CIO, as the
exclusive bargaining representative of all employees in the
bargaining unit, described as all production employees at
Yale Jewelry, Inc. (excluding professional employees,
watchmen, guards, supervisors, office clerical as defined in
the Act) with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and, if
an understanding is reached, embody such understanding
in a written signed agreement.
(d) Post at its New York City, place of business, copies of
the attached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."