Pierce Brothers

PIERCE BROTHERS 317 WE WILL NOT discourage membership in MORTUARY EMPLOYEES UNION, LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, A. F. OF L., or in any other labor organization of our employees, by dis- charging or refusing to reinstate any of our employees or discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT inquire of employees concerning the identity of employees who contemplate organizational activity or who attend union meetings ; or inquire of them concerning their expectations of gain from organizational activity, or characterize as disloyalty to us their attendance at union meet- ings and their refusal to identify proponents of organizational activity, or tell employees that a choice must be exercised between loyalty to us and to the Union, or seek to induce any employee to disrupt union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist MORTUARY EMPLOYEES UNION, LOCAL No 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, A F. OF L., or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay and vacation allowance suffered as a result of the discrimination. Ralph M. Bailey Harlan E. Phillippe Donald J. Isham Darrell E. Ward All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. FOREST LAWN MEMORIAL-PARK ASSOCIATION, INC. (Employer) Dated ------------------------------- By ------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. PIERCE BROTHERS and MORTUARY EMPLOYEES UNION, LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS , A. F. OF L. Case No. 21-CA-1078. December 10, 1951 Decision and Order On July 24, 1951, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 97 NLRB No. 63. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The request of the Respondent for oral argument is hereby denied, as the record, including the brief and exceptions, adequately presents the issues and positions of the parties. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner 2 Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Pierce Brothers, Los Angeles, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the Mortuary Employees Union, Local No. 151, International Brotherhood of Firemen and Oilers, affiliated with American Federation of Labor, or in any other labor organization of its employees, by discharging or refusing to reinstate or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of their employment. (b) Promising benefits or threatening reprisals in order to dis- courage membership in the Union, threatening union adherents with discharge, interrogating employees regarding their union member- ship and sympathies, or in any other manner interfering with, re- straining, or coercing its employees in the exercise of the right to self- organization, to form, join, or assist the Mortuary Employees Union, Local No. 151, International Brotherhood of Firemen and Oilers, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and to refrain from any and all such activities, I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Styles]. 2 We find, in agreement with the Trial Examiner, that the Respondent is engaged in commerce and that it would effectuate the policies of the Act to assert jurisdiction in this case. See Forest Lawn Memorial-Park Association, Inc., 97 NLRB 309. PIERCE BROTHERS 319 except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative steps, which the Board finds will effectuate the policies of the Act : (a) Offer to Enrico D. Fennel, Doris E. Art, Charles J. Woodward, Howard W. Givens, Joseph May, Earl Sanders, Levern C. Davis, Betty Jean Fenton, John Lipsey, Walter Zinzer, Dale Bullard, J. D. Angel, Victor Hartman, Harold Bryant, and William S. Jehlen full and immediate reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights or privileges. (b) Make whole the aforesaid 15 individuals for any loss of pay they may have suffered by reason of the Respondent's discrimination in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Upon request, make available to the Board or its agents for examination and copying all payroll and other records necessary to determine the amount of back pay due under the terms of this Order. (d) Post immediately in each of its 15 mortuaries copies of the notice attached to the Intermediate Report and marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immedi- ately upon receipt thereof and maintained by it for sixty (60) con- secutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply therewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon an amended charge duly filed on April 23, 1951, by Mortuary Employees Union, Local No. 151, International Brotherhood of Firemen and Oilers, affiliated with American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued his complaint on May 29, 1951,1 against Pierce 8 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." If this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by inserting the words "A Decree of the United States Court of Appeals Enforc- ing," before the words "A Decision and Order." I Unless otherwise noted, all dates referred to herein occurred in 1951. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brothers, Los Angeles, California, 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 (a) (1) and (3) and Section 2-(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the original charge, and the amended charge, together with notice thereon, were duly served upon the Respondent and upon the Union. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent (1) since March 15, by certain stated acts and conduct, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and (2) on certain stated dates between March 27 and 31, discharged 19 named employees Z and thereafter refused to reinstate them, or any of them, because they, and each of them, had engaged in .concerted and union activities for the purposes of collective bargaining and -other mutual aid and protection. On June 11, the Respondent duly filed an answer denying the commission of the .alleged unfair labor practices. Pursuant to notice, a hearing was duly held on June 11 and 12,8 at Los Angeles, California, before the undersigned, the duly designated Trial Examiner. The -General Counsel and the Respondent were represented by counsel, the Union by an official thereof. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. At the conclusion of the submission and receipt in evidence of a written stipulation, entered into by and between the General Counsel and counsel for the Respondent, with respect to the Respondent's corporate structure and the extent of its business operations, counsel for the Respondent moved to dismiss the complaint on the ground that the Board lacked jurisdiction over the Re- spondent because of the nature and local character of the Respondent's business. The undersigned reserved decision. Thereupon counsel for the Respondent with- drew from the hearing after stating upon the record, ". . . inasmuch as you are reserving decision and the record is complete on the jurisdictional issue, we prefer to rest our defense principally on the issue of jurisdiction. We sincerely Date of 2 Name of Employee Discharge Enrico D.Fennel ---------------------------------------------------- March 27 Doris E.Art -------------------------------------------------------- March 27 Charles J. Woodward________________________________________________ March 27 Howard W. Givens-------------------------------------------------- March 27 Joseph May-------------------------------------------------------- March 28 Levern C. Davis---------------------------------------------------- March 28 Hovey J. Sparks---------------------------------------------------- March 28 Dennis Stewart----------------------------------------------------- March 29 Earl Sanders ----------- ------------------------------------------- March 29 Betty Jean Fenton-------------------------------------------------- March 29 John Lipsey-------------------------------------------------------- March 29 Walter Zinzer------------------------------------------------------ March 29 Dale Bullard------------------------------------------------------- March 29 J. D. Angel-- ------------------------------------------------------ March 29 Victor Hartman ---------------------------------------------------- March 29 Harold Bryant----------------------------------------------------- March 29 Frank Daniels ------------------------------------------------------ March 29 William S.Jehlen --------------------------------------------------- March 29 Billy J.Simmons ---------------------------------------------------- March 31 On June 29, a motion to reopen the record (joined in by all parties ) to receive a stipula- tion, dated June 26, entered into by and between the General Counsel and counsel for the Respondent, relating to, among other things, further facts relative to the Respondent's business operations, was submitted by the General Counsel. The motion is hereby granted and the said stipulation is received in evidence as General Counsel's Exhibit No. 2A. - PIERCE. BROTHERS 321 feel the Board does not have jurisdiction and will not take jurisdiction on the basis of the complaint and the record at the present time, reserving our right to file abrief with the Examiner and the Board on the jurisdictional issue we are going to withdraw from the hearing and let the General Counsel proceed as he desires on the issues in the complaint, without admitting the allegations of the complaint or the charges. As I say, we prefer to rest our defense solely on the jurisdictional issue." The motion to dismiss is hereby denied. During the course of the hearing, the General Counsel moved to dismiss the complaint as to Dennis Stewart, Hovey J. Sparks, Frank Daniels, and Billy J. Simmons. The motion was granted with- out objection. At the conclusion of the taking of the evidence the General Counsel moved to conform the complaint to the proof with respect to minor variances. The motion was granted without objection. The General Counsel then took the opportunity, afforded all parties, to argue orally upon the record. The parties were then advised that they might file briefs or proposed findings of fact and conclusions of law, or both, with the undersigned on or before June- 27.4 A brief confined to the jurisdictional issue has been received from Respondent's counsel which has been carefully considered. Upon the entire record in the case, and from his observation of the witnesses,, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Pierce Brothers, a California corporation, has its offices and principal mor- tuary in Los Angeles, California, where it is engaged in the business of acting as a funeral director, commonly referred to as a mortician or undertaker. Briefly, its function is to prepare the remains of deceased persons for burial and conduct the interment services. It also operates 14 other mortuaries, all being located in Los Angeles County, and employs 207 persons, 40 of whom are either licensed embalmers or licensed apprentice embalmers. During the 12-month period ending Mareh 31, 1951, the Respondent purchased equipment, materials, and supplies valued at approximately $590,000, of which amount approximately $7,500 in value was shipped directly to the Respondent from points located outside the State of California, and $45,000 (purchased and shipped locally) was originally manufactured outside the State of California. During the aforesaid period, the Respondent handled 5,780 corpses and re- ceived $1,900,000 for services and supplies in connection therewith. Of this amount, the sum of $4,350 was received from the sale of shipping cases, $5,220 was received from the sale of caskets, and $5,848.91 was received for embalming and other services rendered in connection with handling and shipping 87 corpses to points located outside the State of California at the request of out-of-State clients. The total receipts also include the sum of $136,575.13 for embalming and other services rendered, $68,287.56 was received from sale of caskets, and $22,850 was received from the sale of shipping cases in connection with handling and shipping 457 corpses to points located outside the State of ialifornia at the request of California clients. In the total receipts there is also an item of $42,611.22 received by the Respond- ent through its wholly owned subsidiary, Pierce Brothers Crematorium, for cremating 178 corpses, after the Respondent had rendered services with respect to said corpses; of the said 178 corpses, 144 were local clients ($36,927.48) and 34 were out-of-State clients ($5,683.74). Sometime after the cremation of the 4 At the request of Respondent 's counsel the time to file briefs was extended to July 9. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aforesaid 178 corpses the remains or ashes were shipped to points located out- side the State of California by the Crematorium. The Crematorium received for its services in the 144 local client cases $7,224.98 for the cremations and $980 for shipping cases and expenses, and in the 34 out-of-State client cases, $1,816.90 for the cremations and $254.40 for shipping cases and expenses. The Respondent also owns and during all times material herein owned, approximately 98 percent of the capital stock of Pierce Insurance Company' a California corporation, which is engaged in the funeral insurance business and which has its principal place of business in Los Angeles, California. The insurance company is licensed to do business in a number of the States of the Nation and in the Territory of Hawaii and has in its employ 4 general agents, direct selling agents, 200 of whom are located in the State of California, and 65 other employees. During 1950, the insurance company did more than $25,000 worth of business in each of the States of California, Missouri, and Washington and over $20,000 worth of business in the Territory of Hawaii. Pierce Insurance Company is associated with Pierce Brothers and 60 other independent mortuaries in the State of California in offering insured funerals. In their advertising literature, each of said 60 mortuaries urges the adoption of its own plan of prepaid funeral services and expenses (a policy of Pierce Insur- ance Company), and usually refers to such plan in the name of the mortuary. Thus, the Fillbach Funeral Home, Burbank, California, in its literature describes such plan as "The Fillbach Plan," and the Respondent refers to it as "The Pierce Plan." Many of said _ 60 mortuaries also have other arrangements for prefinancing funeral expense in addition to the method of a Pierce Insurance Company funeral insurance policy. For example, the Respondent has a plan for prefinancing funeral expenses by the purchase of preferred stock in the Respond- ent which is accepted in payment for the mortuary services upon the death of the purchaser. Many of the employees of the Respondent and of a number of the other above-referred-to 60 mortuaries are licensed agents of the Pierce Insurance Company and sell the funeral insurance of that company on a commission basis. In addition, the employees of all the mortuaries of the Respondent and of most of the aforesaid 60 mortuaries are authorized to receive and do accept premium payments on policies of the Pierce Insurance Company, and have a special receipt book for that purpose. Furthermore, the employees of the Van Nuys, California, mortuary of the Respondent are authorized to and do accept premium payments on the insurance policies of Homestead Life Company, an insurance company in nowise affiliated with either the Respondent or with the Pierce Insurance Company. Respondent's counsel contended at the hearing, and in their brief, that the complaint herein should be dismissed because the Respondent is not engaged, and during all times material was not engaged, in commerce within the meaning of the Act, and even if so engaged, the Board should not assert jurisdiction because of the nature and the local character of the Respondent' s business. Upon the basis of the aforesaid admitted facts with relation to the Respond- ent's business, the undersigned finds that during all times-material herein the Respondent was, and now is, engaged in commerce within the meaning of the Act. Furthermore, upon the aforesaid admitted facts, the undersigned finds that it will effectuate the policies of the Act for the Board to assert jurisdiction over the Respondent' 5 Some officers of the Respondent are also officers of the insurance company. See Riverside Memorial Chapel Ino., 92 NLRB 1594. PIERCE BROTHERS II. THE LABOR ORGANIZATION INVOLVED 323 Mortuary Employees Union,•Local No. 151, International Brotherhood of Fire- men and Oilers, affiliated with American Federation of Labor, is a labor organi- zation admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES Interference, restraint, and coercion; the discriminatory discharges 1. The pertinent facts The complaint, as amended at the hearing, alleged that the Respondent, in violation of the Act, discharged 15 named employees.' In its answer the Respond- ent averred that the said discharges were not violative of the Act. The answer further averred that Sanders, Lipsey, and Jehlen, because of their supervisory status, were not employees within the meaning of Section 2 (11) of the Act. The facts pertaining to the 15 discharges will be discussed separately : Walter P. Zinzer was first employed by the Respondent on April 5, 1949. He voluntarily quit his employment on November 7, 1950, and was rehired on January 1, 1951. He was discharged on March 29. Throughout his employment with the Respondent, Zinzer was a chauffeur. Zinzer testified,8 and the undersigned finds, that on December 11, 1950, during the course of a conversation with James Pierce, Respondent's vice president and general manager, wherein he proffered his apologies to Pierce for certain state- ments he had made (presumably about Pierce or about the Respondent prior to his quitting in November), Pierce stated, "there is no apologies in order at all. You were perfectly right in your assertions. . . . We are not in the habit of re-employing anyone who quits or is discharged from our organization. In these circumstances you were right and we would like to have you back . . . you are a very valuable man" ; that on the afternoon of March 23, his supervisor, C. N. Pickett, supervisor of transportation, asked him if he would work overtime that day and when he agreed to do so, Pickett said, "I will let you in, in a couple of days, on why I want you to work tonight" ; that the following morning, March 24, one of his coworkers told him that the Union was organizing the Respondent's establishment and that same morning Pickett said to him, "I guess I won't have to tell you now, I guess you know why I asked you to work last night. Mr. Pierce wanted to be sure, and I wanted to be sure, that you didn't attend that meeting" ; ° that on the night of March 28, he attended a union meeting ; that the next morning Pickett told him to report to Webb Hendrix, the personnel manager, who handed him a check for the wages due him and then told him that his serv- ices were being terminated because the Respondent was "economizing"; that he then sought out Pickett and said to him, "How come you sent me over to Webb to fire me when you are the superintendent of transportation with the authority to hire and fire?"; and that Pickett replied, "You know, I lost a $20 bet on you last night. I bet $20 that you wouldn't appear at that union meeting." Zinzer further testified, and the undersigned credits his testimony, that while he was working about the lawn of his house on Saturday, April 7, Roy Donovan, ' The complaint originally alleged that 19 employees were discriminatorily discharged. During the course of the hearing, the allegations of the complaint that Stewart, Sparks, Daniels, and Simmons were discriminatorily discharged were dismissed upon motion of the General Counsel. 8 The Respondent called no witnesses nor did it offer any evidence with respect to the discharges of the 15 persons here involved. 6 The Union held a meeting of the Respondent's employees on the night of March 23. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD superintendent of maintenance, who was driving a hearse of the Respondent, stopped the hearse and said to him, "Walter, who the hell started this union business, anyway? You know I haven't worked a Saturday or a holiday in 16 years, and now look at me." Charles J. Woodward was employed by the Respondent as an embalmer from April 1, 1946, until March 27, 1951. Woodward credibly testified that in January, during the course of a conver- sation with Pickett and about three other employees about unions and about the previous unsuccessful attempt of a certain union to organize the employees, Pickett stated, among other things, "Well, you know what will happen if any- body joins the union around here. Mark Pierce (Respondent's president) will fire the bunch of you" ; that around mid-February he and employee Enrico D. Fennel circulated among the employees separate petitions bearing the legend, "I, the undersigned, do hereby affix my signature to this document and would recognize the AFL as my bargaining agent" ; that he and Fennel each secured about 10 or 12 signatures to the said petitions;'that sometime early in March the said petitions were destroyed by him (for reasons not disclosed in the record) ; that around March 15, Fennel and he met a representative of the Union, received from said representative union membership application cards, 'which they dis- tributed among their coworkers ; that on or about March 22, he was called into the private office of James Pierce and there, in the presence of Clarence Pierce, a brother of James and vice president of the Respondent, Pierce said, "Well, Mr. Woodward, what is this I hear about the Union" ; that when he denied knowledge of any union activities, Pierce said, "Well, I have here before me a paper with your name and a few of the others on this slip of paper which say that you were active in a union" ; and that the following then ensued : He (Pierce) then told me that "I understand you are taking a petition around." I said, "No, I am not taking any petition around in regards to any union whatsoever." Then he said, "Well, just what are you doing?" I said, "I am not doing anything." And . . . he said, "Well, what is this about all these embalmers and all thinking that they can join a union and then stop all caskets from coming in, and everything else?" And I said, "I know nothing about it. However, I have been contacted in regard to the association (California Embalmers' Association which at one time was the bargaining representative for the employees of certain mortuaries) which had been in force." Woodward also credibly testified that in answer to Pierce's query as to the identity of the person who contacted hind on behalf of the association he said, "Well, Mr. Pierce, you wouldn't expect me to give you that man's name any more that I would expect you to give me the man's name who told you of me and the other men that are supposed to be active in this union" ; and that Pierce replied in the negative, adding, "Anybody or any man in here that thinks they can walk out of this place, they can keep on walking and will not be rehired by us . . . We still have a few faithful employees and they will be protected by us"; and that as he was leaving Pierce's private office at the conclusion of the interview Pierce said , "And, Charles, if you did not circulate this petition . . . you tell the men what I have just told you." Woodward further testified that when he reported for work on the evening of March 27, he was met by Hendrix who said, "Charles, I have been instructed by the management to give you this [a check for wages due up to April 1, and his Federal tax withholding statement] . . . Your services will no longer be needed, and it is effective immediately . . . it is for economy reasons." PIERCE, BROTHERS 325 John Q. Lipsey was employed by the Respondent from the latter part of March 1948 until his discharge on March 29, 1951.10 During his employment he acted variously as apprentice embalmer, embalmer, funeral director," arrangements man," and also as a "first call" man.13 Lipsey first became interested in the unionization of the employees in Feb- ruary ; he signed a petition similar to the petition circulated by Woodward and Fennel ; on March 22, he was handed a union membership application card by employee Joseph May which he signed and at the same time handed May the required initiation fee and his first month's dues ; and he attended the Union's meeting on the evening of March 28. Lipsey testified, and the undersigned finds, that when he reported for work at his usual hour on March 29, Leo Harris, the manager of the branch mortuary at which he worked, said to him, "it had come" and that Harris then told him to report to Hendrix ; and that when he reported to Hendrix, the latter handed him a check for the wages due, saying that his services "were terminated due to economy reasons." Betty Jean Fenton was first employed by the Respondent in June 1948 as an apprentice embalmer at a branch mortuary and in September 1950 became a cosmetician at the main or head mortuary. She was discharged on March 29. About a week or so prior to March 28, Fenton signed a union membership application card and returned it to Fennel. She also paid the required initiation fee and dues. Fenton credibly testified that on either March 27 or 28, Joseph Wiley, the supervisor of the embalming department, told her, shortly after he had returned from a meeting of Respondent's executives, "I don't know whether you joined the union or not, but it will be those who haven't who will be a lot better off" ; that she attended the March 28 union meeting ; that the following morning, March 29, Hendrix telephoned Wiley and requested Wiley to send her to him; that she did as instructed ; that Hendrix told her, to quote Fenton,"he had been instructed by the management to terminate my services as of this minute, and for economy reasons" ; and that Hendrix then handed her a check for the wages due through March 31 " Earl H. Sanders, an embalmer, was in the Respondent's employ from October 1, 1946, until his discharge on March 29. At the time of his discharge Sanders was the assistant manager of the Santa Monica, California, branch mortuary.16 Sanders credibly testified that about mid-March he signed a petition ( presum- ably pertaining to unionism ) which had been circulated among the employees of the Santa Monica mortuary ; that he attended the March 23 meeting of the Union ; that on March 27, his supervisor, James Burson, the manager of the Santa Monica mortuary, called him into the former's private office ; that there 10 Contrary to the Respondent's contention, the undersigned finds that Lipsey is not, and during all times material herein was not, a supervisor within the meaning of the Act. 11 The funeral director's main duties are to comfort, counsel, and advise the family of the deceased throughout the funeral services. 32 The arrangements man makes the initial contact with the family of the deceased and arranges with it for the time and place of the funeral services, for the type of casket to be used, and for all matters incident to the disposition of the remains li The first call man picks up and beings the body of the deceased to the mortuary. 14 The employees' normal pay days are the 15th and the last day of each mouth 15 Although Sanders held the title of "assistant manager" he testified and the under- signed finds , that he never was empowered with, nor did he ever exercise, any supervisory authority. There is no evidence in the record to indicate that Sanders ever exercised any authority or that any employee considered him a supervisor. Under the circumstances, and contrary to Respondent's contention, the undersigned finds that Sanders , at all times material herein, was an employee within the meaning of Section 2 (11) of the Act. 981;209-52-N of 97-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burson queried him about the petition which had been circulated among the employees ; that when he asked what petition Burson referred to, Burson replied, "Good God, is there more than one?"; and that the following then ensued : - And I said, "Well, that I don't know. Are you referring to one about the Union? And he says, "Yes." And I said, "If you want to know how I stand on it, I signed it." And he shook his head, and he says, "I could just kick you in the pants for doing something like that " . . . Do you know that you were one of the men they were considering as manager of the new mortuary that they were going to purchase , or they have already purchased? . . . By signing the union paper you threw your chances right out of the window of ever becoming a manager for Pierce Brothers." Sanders further testified, and the undersigned credits his testimony, that shortly after 7 o'clock on the morning of March 29, Burson instructed him to see Hendrix ; that when he arrived at Hendrix 's office the latter handed him a check for the wages due him up to and including March 31 , together with his Federal tax withholding statement, and informed him that he was dis- charged for economy reasons ; that during the course of a conversation he had with Burson on March 31, Burson remarked , "Earl, if you just wouldn't have signed up with the union . . . your chances of becoming a manager were good .. , you just threw all those chances right out of the window when you signed for the union"; and that about a week after the aforesaid conversation with Burson, Vice-President Clarence Pierce said to him , among other things, that Pierce was sorry to see his name on the union list and if he forsook the Union, Pierce would attempt to have him reinstated to his former job. Enrico D. Fennel was first employed by the Respondent on or about April 1946 as an apprentice embalmer . At the time of his discharge, on March 27, Fennel was an embalmer. In February 1951 Fennel signed and circulated a petition similar to the petition circulated by Woodward among the Respondent 's employees ; in March he and Woodward met with a representative of the Union , received union membership application cards which he and Woodward distributed to the employees ; on March 23 he and about 15 other employees of the Respondent attended the first meeting of the Union at which he was elected vice president ; when he reported for work at about 5 p. in . on March 27, he was met at the entrance of the mortuary by Hendrix who handed him his check saying, "Mr. Fennel, the higher ups have designated me to let you go due to economy reasons." Arthur L. Woodmansee testified , and the undersigned credits his testimony, that the evening that Fennel was discharged, James Pierce telephoned him at his home and said that Fennel and three other employees had been discharged and asked him to return to the mortuary to take over Fennel's shift ; that during the said conversation , Pierce requested a definite answer from him as to whether he desired to remain in the Respondent's employ or affiliate with the Union ; that when he did not give Pierce a direct answer to the inquiry , Pierce asked him to report to his private office the next morning ; that Pierce opened the conversation the following morning by asking, "Do you still want to work for Pierce Brothers ?" to which he replied; "Sure I do, Jim. We all want our jobs" ; that Pierce then said, "Had we thought for a minute that you were" one of the persons who "was stirring up all this trouble . . . your check would have been waiting for you the same as the others that were ready"; and that Pierce also stated during the conversation that those who continued their union affiliation were "going to get their heads cut off." PIERCE BROTHERS 327 Victor Hartman was an apprentice embalmer and chauffer for the Respondent from July 26, 1948, until his discharge on March 29. Hartman signed the petition seeking representation by American Federation of Labor, joined the Union, and attended the Union's meetings of March 23 and 28. On March 29 he was instructed by Supervisor Wiley to report to Hendrix and when he did so, Hendrix handed him a check for wages due him and his Federal tax withholding statement explaining that he was discharged for economy reasons. Hartman testified, and the undersigned finds, that 2 weeks before his discharge he received a 10-percent increase in salary. Dale 0. Bullard was first employed by the Respondent in December 1943 as a first-call man. About a month later he was made an assistant manager of the Respondent's Alhambra, California, branch mortuary. He held that posi- tion for about 2 years when he was transferred to the main mortuary as an assistant funeral director, funeral director, and arrangements man. Bullard was discharged on March 29. Bullard credibly testified that he signed the A. F. of L. petition circulated by Woodward and attended the Union's March 28 meeting; that on the morning of March 28 he heard Pickett ask employee Folner whether Folner was interested in the Union ; that when Folner replied in the negative, Pickett stated, "Well, that's fine because if you attend that union meeting tonight you will be fired the same as the men that attended the other meeting a few days ago" ; and that sometime in February he heard Pickett say to a group of employees, to quote Bullard, "If anyone joined the union or talked union around him he would fire" the person; and that on March 29 Hendrix handed him his pay check and discharged him. William S. Jehlen worked as an apprentice embalmer for the Respondent from January 15, 1946, until August 14, 1947. On the latter date he received his license as an embalmer and thereafter worked in that capacity until his discharge on March 29.10 Jehlen testified, and the undersigned finds, that he attended the March 23 and 28 meetings of the Union ; that on March 29, he was instructed by his superior, Manager Neel of the Van Nuys branch mortuary, to report to Hendrix ; that he immediately did as instructed ; that when he saw Hendrix, the latter handed him a check for the wages due through March 31,'and discharged him saying that he was being discharged for economy reasons. Jehlen further credibly testified that on March 30, the day following his discharge, he was handed a letter by Vice-President Paul McClure demanding that he vacate the apartment which he was then occupying under lease from the Respondent within 3 days; that in due course he removed from the said apartment, and that the rent of his present apartment is higher than the Respondent's apartment. Joseph C. May was in the employ of the Respondent from December 1, 1947, until he quit in August 1948. He was reemployed on April 1, 1949, and re- mained in its employ until his discharge on March 28. During the aforesaid period, May worked as an attendant and in certain other capacities. May testified, and the undersigned finds, that he attended the March 23 and 28 meetings of the Union ; that he was the secretary of Local 151; that at about noon on March 28, he was instructed not to proceed to the 2 o'clock funeral to which he was assigned but, instead, to report to Respondent's main 16 The Respondent's contention that at the time of Jehlen's discharge he was a super- visor within the meaning of the Act, and hence his activities were not protected, is not supported by the record. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD garage ; that when he arrived there, Pickett told him to see Hendrix ; and that when he saw Hendrix, the latter discharged him saying it was for economy- reasons. Harold V. Bryant was employed by the Respondent as an apprentice em- balmer from April 1, 1949, until March 29, when he was discharged. Bryant lived with his wife and their 'two infant children in an apartment located in the same building housing the branch mortuary at which he worked. The building either was owned or was under the legal control of the Respondent. On March 30 the Respondent ordered Bryant to vacate within 3 days the premises which it had leased to Bryant. Bryant, however, was unable to find suitable living quarters for approximately 20 days and as soon as he did so, he removed from the aforesaid apartment. Bryant testified, and the undersigned credits his testimony, that about a weeks prior to the union meeting of March 23, he was asked by Woodward if he was interested in joining a union and that he replied in the affirmative; that he attended the Union's March 23 and 28 meetings ; that at the former meeting he signed the Union's membership application card and paid the required initiation fee ; that during a conversation he had on March 24 with Charles Mcllrath, the manager of the branch mortuary at which he worked, Mcllrath said that he had heard that a union had "started" in the Respondent's establishment, adding, "that any employees that would join the union were going against Pierce's policy and that they would be terminated from their" jobs ; and that the following then ensued : _ He (Mcllrath) asked me if I had attended the meeting the night previous. He said .. . Mr. Pierce and another executive of the firm observed me entering the building where we had the meeting. I answered . . . "if you knew I was there you know. He asked again, and I said, "Well, you ought to know, Charles." And he said, "I would be sorry if I attended any more meetings :.. "I was really hurt when I found out who they have elected as secretary. I didn't think she (Doris Art, a complainant herein) could do such a thing to me . . . I suppose you will be going to the meeting on Wednesday." I said, "Well, that will be my night off. I think I can do anything I want to on my night off." Bryant further testified, and the undersigned finds, that on March 25 or 26 Mcllrath warned him, during the course of a conversation wherein the former denounced the Union, that those who joined or supported the Union's activities "were marked men" and that the Respondent would "find reasons for firing" the union adherents ; that on the morning of March 29 Mcllrath told him, "Go in and see Webb Hendrix and pick up your check" ; and that when he saw Hendrix, the latter handed him his pay check saying he was discharged for economy reasons. Bryant's wife, Marcella, credibly testified that Mcllrath told her on March 29, among other things, that he had warned Bryant that Bryant would be discharged if Bryant joined the Union. Levern C. Davis was employed by the Respondent as a chauffeur or as a garage employee from September 3, 1949, until his discharge on March 29. Davis testified, and the undersigned finds, that he attended the March 23 and 28 union meetings ; that on March 26 Pickett asked him if he would work over- time on the night of March 28; that when he replied that he could not because he had made other arrangements, Pickett replied, "You mean the meeting Wed- nesday night?"; that he said, "I do," Pickett said, "You will be sorry if you attend" ; that on March 29, Hendrix handed him his pay check and told him PIERCE BROTHERS 329 he was discharged for economy reasons ; that immediately after leaving Hendrix, he returned to the garage to get his personal belongings ; and that when Pickett saw him , Pickett said to him, "I told you what would happen." Doris E. Art was first employed by the Respondent as an apprentice from 1932 until 1934. She was reemployed in April 1945, and worked continuously there- after as an embalmer, cosmetician, receptionist, and saleswoman of flowers and clothing until her discharge on March 27. Art testified, and the undersigned finds, that she attended the March 23 meet- ing and was elected secretary-treasurer thereat ; that on March 27 Hendrix dis- charged her ; that when she asked Hendrix, "Does this mean now?" the latter replied, "Yes, right now" ; and that the discharge took place during her shift. Howard W. Givens was employed by the Respondent from November 12, 1945, until his discharge on March 27, first as an apprentice embalmer and later as a licensed embalmer. Givens testified, and the undersigned credits his testimony, that he attended the Union's March 23 and 28 meetings ; that he joined the Union ; that during the course of a conversation he had with James Pierce on March 22, Pierce said, "I understand you have signed the union petition" to which he replied in the affirmative ; that Pierce also said that "we are not afraid of any union threat . . . Don't you suppose we could handle the union threat by getting rid of those individuals who are at the bottom of it?"; that on March 24 he asked Pickett, "What do you think of this union thing?" that Pickett replied, "Well, I don't know too' much about it. But, I would hate to be in anyone's shoes when Mark Pierce [Respondent's president] gets hold of this because they will be gone, every one of them. That is the way Mark operates. It's not a laughing matter" ; and that on March 27, Hendrix said, after handing him his pay check, "The man- agement has instructed me to terminate your employment for economy reasons." J. D. Angel was in the Respondent's employ as an apprentice embalmer from September 1947 until his discharge on March 29. Angel testified, and the undersigned finds, that he attended the Union's March 23 meeting ; that on March 27, during the course of the conversation he had with Tom MacDonald, the manager of the branch mortuary where he worked, the latter asked him and the two other employees present how they felt about the Union ; that he replied he was 100 percent in favor of the Union ; that the two other employees stated that they were "for it but were unable to do anything about it"; that MacDonald then said, "Anything . . . of a union nature, was definitely against the company policy" ; that, MacDonald asked him if he had joined the Union and he replied in the affirmative ; that in response to similar questions, the other two employees replied in the negative ; and that 2 days later, March 29, he was called to Hendrix's office, given his pay check and dis- charged by Hendrix, who said the discharge was due to economy reasons. 2. Concluding findings The uncontroverted and credible evidence, as epitomized above, leads to the conclusion that the 15 persons here involved were discharged because of their union and concerted activities and not for economy or business reasons as each was advised by Hendrix at the time the discharges took place. This conclusion becomes inescapable when consideration is given to the fact that between March 26, 1951, and the date of the hearing herein, 20 employees had been discharged and 16 others had quit, or had failed to report for work, or had taken leaves of absence, and that during the said period the Respondent augmented its staff by 37 persons. Furthermore, the record clearly indicates, and the undersigned finds, that the Respondent discharged the 15 complainants as soon as their 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union membership, activities, or sympathies became known to it. The under- signed also finds that the Respondent received from some undisclosed source the names of the employees attending union meetings or who exhibited favorable interest in the Union and in its activities. This latter finding is buttressed by the credible testimony of Woodward, who testified that during the course of a conversation with James Pierce on or about March 22, the latter informed him that he (Pierce) had a list of names of the employees active "in a Union" and that Woodward's name appeared on said list. The undersigned finds, upon the record as a whole, that by discharging the aforesaid 15 persons the Respondent discouraged membership in a labor organization in violation of Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned further finds that the Respondent by (1) James Pierce's (a) demand of Woodmansee on March 27 that Woodmansee immediately elect whether he wanted to continue in Respondent's employ or affiliate with the Union, (b) Pierce's statement to Woodmansee on March 28 that if Wood- mansee affiliated with the Union he would-be discharged as the Respondent already had done with respect to other known adherents of the Union, and (c) Pierce's statement to Woodward on March 22, that he (Pierce) had a list of the persons active in behalf of the Union and Woodward's name appeared thereon ; (2) Pickett's various statements to the effect that all union adherents would be discharged; (3) Pickett's questioning various employees as to their union membership and sympathies and Wiley's statement to Fenton on March 27 or 28, "I don't know whether you joined the Union or not, but it will be those that haven't who will be a lot better off"; (4) Harris' query of Sanders on March 27 as'to the latter's union affiliation and sympathies and the dire consequences resulting from Sanders' union adherence; (5) Manager MacDonald's interro- gating Angel and others regarding their union memberships; and- (6) Mcllrath's statements to Bryant that union members would be discharged by the Respond- ent ; the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) thereof. 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 Respondent's operations described in Section I, above, have a close, intimate, and substantial relationship 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, the undersigned will recom- mend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that the Respondent discriminated against the 15 persons here involved by discharging them because of their union and concerted activities, the undersigned will recommend that the Respondent offer the aforesaid indi- viduals full and immediate reinstatement to their former or equivalent positions,17 11 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. PIERCE BROTHERS 331 without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the Re- spondent's discrimination against them by the payment to each of a sum of money equal to the amount he or she would have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement, less his or her net earnings, during such period.fe The undersigned further recommends that Bryant and Jehlen be made whole for any expenses incurred in finding and moving from the apartments rented by them from the Respondent to other living quarters and for any sums paid for such new quarters in excess of the amount paid for the apartments rented from the Respondenti9 Back pay shall be paid in accordance with the formula enunciated by the Board in F. W. Woolworth, 90 NLRB 289. The unfair labor practices found to have been engaged in by the Respondent are of such a character and scope that in order to insure the employees here involved their full rights guaranteed them by the Act, it will be recommended that the Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in their right to self-organization. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. Mortuary Employees Union, Local No. 151, International Brotherhood of Firemen and oilers, affiliated with American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Enrico D. Fennel, Doris E. Art, Charles J. Woodward, Howard W. Givens, Joseph May, Earl Sanders, Levern C. Davis, Betty Jean Fenton, John Lipsey, Walter Zinzer, Dale Bullard, J. D. Angel, Victor Hartman, Harold Bryant, and William S. Jehlen, thereby discouraging membership in the Union, the Respondent has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interrogating its employees regarding their union membership, activities, and sympathies, by threatening the employees with discharge if they remained or became members of the Union, by advising an employee that the Respondent was aware of his and of'other employees' union activities, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: 18 See Crossett Lumber Co., 8 NLRB 440. 19 See Industrial Cotton Mills Company, 50 NLRB 855. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in MORTUARY EMPLOYEES UNION, LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, affiliated with AMERICAN FEDERATION OF LABOR, or in any other labor organization of our employees, by discriminatorily refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees as to their membership, activities, and sympathies ; threaten employees with discharge or the loss of their jobs or threaten not to employ or reinstate them because of their union activities ; promise our employees benefits or threaten them with reprisals in order to discourage membership in any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist MORTUARY EMPLOYEES UNION, LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, A. F. OF L., or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of 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. WE WILL offer to the 15 individuals whose names are listed below im- mediate and full reinstatement to their respective former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay or expenses they may have suffered by reason of our discrimination against them : Enrico D. Fennel Dale Bullard Betty Jean Fenton Charles J. Woodward Victor Hartman Walter Zinzer Joseph May Doris E Art J. D. Angel Levern C. Davis Howard W. Givens Harold Bryant John Lipsey Earl Sanders William S. Jehlen All our employees are free to become or remain members of MORTUARY EM- PLOYEES UNION, LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, A. F. OF L., or of any other labor organization, except to the extent above stated. - PIERCE BROTHERS Employer. Dated-------------------------------- By-------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SAXE-GLASSMAN SHOE CORPORATION and UNITED SHOE WORKERS OF AMERICA, CIO. Case No. 1-CA-839. December 10, 1951 Decision and Order On July 31, 1951, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair 97 NLRB No. 53.