Keystone Universal Carpet Co.

4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Has the majority here demonstrated the wisdom, necessity, or ad- visability of its reversal of Board policy? I think not. As concerned as I am about capricious change in policy, I am more disturbed about the violence being done to one of the most explicit and. emphatic directives set forth in the Act. Section 9 (b) directs the Board to decide which of several possible units is appropriate "in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act." Certain limitations and amplifi- cations of this congressional mandate are set forth in Section 9(b) and (c) (5), but,they are not germane to the issue involved. herein. The fact is that Congress could not have been more emphatic. It prescribed that the Board in each case make such appropriate unit finding as would assure to employees the "fullest freedom" in exercising the rights guaranteed by the Act. It is elementary to point out that one of those rights is the right to self-organization. It is further noted that in footnote 6 the majority implies that, if there were no petition filed at the present time for the overall unit, it might direct an election in the maintenance group. The majority, therefore, seems to recognize that the Council's petition is for an appro- priate unit, but that the fortuity of the filing of another petition renders such appropriate unit inappropriate. I cannot accept this. I believe that the maintenance employees in this case constitute a distinct and homogeneous group, such as the Board has long per- mitted-in the absence of bargaining history on a broader basis-to be separately represented if they so desired, and that they are entitled to a self-determination election. Keystone Floors, Inc. d/b/a Keystone Universal Carpet Com- pany and Retail Clerks International Association , Retail Store Employees Union, Local 1407, AFL-CIO. Case No. 6-CA-193,9. February 6, 1961 DECISION AND ORDER On September 19, 1960, Trial Examiner John P. von Rohr issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed. the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 130 NLRB No. 6. KEYSTONE UNIVERSAL CARPET COMPANY 5 mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations. 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 Re- lations Board hereby orders that the Respondent, Keystone Floors, Inc. d/b/a Keystone Universal Carpet Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to recognize or to bargain collectively with Retail Clerks International Association, Retail Store Employees Union, Local 1407, AFL-CIO, as the exclusive representative of all salesmen at the Respondent's Pittsburgh, Pennsylvania, establishment, exclud- ing the out-of-town salesmen, office and professional employees, guards, and supervisors as defined in the Act. (b) Discouraging membership in Retail Clerks International As- sociation, Retail Store Employees Union, Local 1407, AFL-CIO, or in any other labor organization of its employees, by discharging, re- fusing to reinstate, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (c) Threatening employees to close its establishment to discourage membership in or activity on behalf of any labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form la- bor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to William J. Augustine, Michael Dyakon, Conrad M. Brook, and Orazio Caramela immediate and full reinstatement to their former or substantially equivalent positions. 1 The Trial Examiner found that the Respondent was subject to the Board 's jurisdiction because its direct inflow for a recent 12-month period was in excess of $100 ,000. We note that the Respondent also admitted in its answer to the complaint that it is engaged in a retail business and that its gross volume of sales for the 12-month period ending March 1960 exceeded $500,000 in value. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make William J. Augustine, Michael Dyakon, Conrad M. Brook, Orazio Caramela, and Joseph Mance whole for any loss of earnings suffered in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." (c) Upon request, bargain with Retail Clerks International Associ- ation, Retail Store Employees Union, Local 1407, AFL-CIO, as the exclusive representative of the employees in the aforesaid appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, and all other personnel records necessary for computation of the amount of backpay due under the terms of this Order. (e) Post at its offices in Pittsburgh, Pennsylvania, copies of the notice attached to the Intermediate Report marked "Appendix." 2 Copies of this notice, to be furnished by the Regional Director for the Sixth Region, shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive clays thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above De- cision and Order. 2 The notice shall be modified by substituting the words "Pursuant to a Decision and Order" for the words "Pursuant to the Recommendations of a Trial Examiner ." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and amended charges , duly filed, the General Counsel of the Na- tional Labor Relations Board, for the Regional Director for the Sixth Region (Pitts- burgh, Pennsylvania), issued a complaint against Keystone Floors, Inc. d/b/a Keystone Universal Carpet Company , herein called the Respondent or the Company, alleging that the Respondent had engaged in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended . The Respondent duly filed an answer in which it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Pittsburgh , Pennsylvania, on May 23, 24, 25, and 26, 1960 , before the duly designated Trial Examiner . All parties were repre- sented by counsel and were afforded full opportunity to adduce evidence , to examine and cross-examine witnesses, and to file briefs. The parties waived oral argument. KEYSTONE UNIVERSAL CARPET COMPANY 7 Briefs received from the General Counsel and the Respondent have been carefully considered. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Pennsylvania corporation with its principal office and place of business located in Pittsburgh, Pennsylvania, where it is engaged in the retail sale of carpeting material and the furnishing of carpet-laying services. During the 12-month period preceding March 1960, Respondent purchased and received materials valued in excess of $100,000 from suppliers located outside the State of Pennsylvania. I find that the Respondent is and has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, Retail Store Employees Union, Local 1407, AFL-CIO, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The status of Respondent's salesmen The controversy involved in the case at bar evolves from the union organization of Respondent's carpeting salesmen. It is Respondent's position that these salesmen are independent contractors and are thus not entitled to the various statuory rights which the Act accords employees. The General Counsel, on the other hand, takes the position that the salesmen in fact are employees under the definition of the Act. Accordingly, a determination of the status of these individuals must be made before reaching the merits of the case, for the General Counsel's allegations that Respondent unlawfully refused to bargain with the Union and that it discriminatorily discharged five of its salesmen must fall if Respondent's position is correct. It is now well settled that the resolution of whether any particular individual is an independent contractor depends on the facts of each case with no one factor as de- terminative. As indicated by the Supreme Court in the Greyvan case,' it is the total situation and particularly the risk undertaken, the control exercised, and the oppor- tunity for profit from sound judgment which is determinative of the status of the individuals. In support of its contention that the salesmen are independent contractors, Respond- ent relies considerably upon a document entitled "Dealers Agreement Form," copies of which were executed between the Respondent and all but one of its salesmen. That agreement provides in full as follows: KEYSTONE-UNIVERSAL CORPORATION Dealer's Agreement Form Keystone-Universal Corporation, a Pennsylvania Corporation, having its princi- pal place of business in the City of Pittsburgh, Allegheny County, Pennsylvania, hereby grants to Mr. -------------------- of -------------------- to act as an Independent Dealer for the purpose of soliciting orders from consumers for such merchandise as dealt in by Keystone-Universal Corporation in the following territory -------------------- as of this ------ day of ---------- 19 ---------- - REMUNERATION TO BE AS FOLLOWS- A The above named Dealer will be paid at the rate of 7% on all ma- terials sold on Company furnished leads and 12% on all material sold from personal leads. Payment to be made weekly, at time designated, on all qualified orders. 1 Greyvan Lines, Inc. v. Harrison, 156 F. 2d 412 (C.A. 7), affd. sub nom. United States v. Silk, 331 U S. 704 See also United Insurance Company, 108 NLRB 843; Provident Life and Accident Insurance Company, 118 NLRB 412; Toledo Scale Company, 82 NLRB 826; Golden Age Dayton Corporation, 124 NLRB 916; Smith's Van & Transport Company, Inc., et at., 126 NLRB 1059. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. In addition, an incentive bonus will be paid at the close of each as- signed four (4) week period as follows: 1% Bonus on Period Sales of $4,000.00 to $5,000.00 2% " " " $5,000 00 to $6,000.00 3% " " " $6,000.00 and up. It is understood that Keystone-Universal will do all humanly possible to ful- fill each order Dealer submits exactly as specified. I hereby acknowledge receipt of sales outfit, which is the property of Keystone- Universal Corporation. I agree that Keystone-Universal Corporation may deduct $5.00 per week for the first five weeks as rental for said sales outfit. I accept this sales equipment with the knowledge that it is only loaned to me and must be returned immediately upon request. It is clearly understood that I am an independent agent and not subject to control, rights or privileges of an employee. -------------------- -------------------- (Approved by) (Applicant's Signature) Since the above agreement is silent with respect to other material aspects con- cerning the employment relationship of the salesmen, we must now turn to the testi- mony on the subject. On the whole there is no substantial dispute as to the facts in this regard. Accordingly, except in those instances where there is some conflict, the -evidence may be summarized without reference to the particular individuals who testified. The majority of the salesmen's time is spent in direct house-to-house selling, at retail, of Respondent's carpeting.2 While the salesmen do some door-to-door can- vassing, as they are expected to, and while they also do some business through so- called "personal leads," the greater amount of their efforts is devoted to following and contacting leads which are furnished them by the Respondent. Thus, the Re- spondent at weekly and sometimes daily intervals solicits business by advertising in Pittsburgh newspapers. Prospective or interested customers respond by writing or calling the Respondent directly. The contacts thus received by the Respondent are known as leads and they are passed on to the salesmen in the manner hereinafter indicated. As indicated in the Dealer's Agreement Form, each of the salesmen are assigned a certain designated territory as their exclusive area of selling operations. Each day between approximately 8 and 9 a.m. (with the exception of Mondays), Respondent's sales manager, John D. Miller, will telephone each of the salesmen at their homes and notify them of leads which Respondent has received through its advertisements in their respective territories. The salesmen thereupon schedule their day by con- tacting and following the leads which have thus been furnished to them. While Miller personally exercises supervision over all of the salesmen, Respond- ent's sales force is segregated into two groups for the purpose of further supervision by two group leaders. When a new salesman is hired, one of the group supervisors will accompany him for about a week for training purposes Weekly sales meetings are held on Monday mornings at the Company's offices with the salesmen, Miller, and the group leaders present. It appears that Marcus Shafer, Respondent's president, also attends some of the meetings. The purpose of these meetings was credibly described by Shafer as being "primarily . . . for the dis- tributing of the information to the men concerning patterns, the discontinuation of other patterns, sales techniques and a generally inspirational meeting in order to inspire the men to go out with a clear mind and produce their work." In making their calls the salesmen use their own cars and pay for their own oper- ating expenses, including gasoline and insurance. When a call is made which culmi- nates in a sale, the terms are written out on an order sheet and the salesman will sign his name in a space designated for the signature of a "salesman." The orders are then submitted to the Respondent for approval and processing It is not infrequent that due to such causes as lack of a particular style of carpeting or errors in the order sheet, changes must be made in the orders as submitted. In these instances the Respondent will make direct contact with the customer and make the necessary changes without consulting or without the approval of the salesmen. If the change in the order results in a sum less than the original, the salesmen, who are paid entirely on a commission basis, will receive a proportionately less commission. In the event 2 The Respondent is a retailer and obtains its carpeting from various rug manufacturers. KEYSTONE UNIVERSAL CARPET COMPANY 9' the change in the order results in a greater sum than the original, the salesmen receive commission only on the basis of their original sale. The carpeting is installed by other of Respondent 's employees known as installers. The salesmen have no control over the installers whatsoever . Moreover, the un- contradicted testimony of William Augustine reveals that the salesmen are not allowed to handle customer complaints . There are handled by Respondent's supervisors. Prices. at which carpeting, is sold are fixed exclusively by, the Respondent . If cash is received from a sale it is turned in by the salesmen to the Company. When a customer pays by check the check is made out to the Company, not to the salesman. The salesmen do not have the authority to give or approve credit . All applications for credit are submitted to the Respondent and turned over to a bank for processing. As noted above, each salesman is assigned a particular territory . The dealer's agreement which assigns such territory is terminable at the will of either party and it is quite clear that the salesmen have no authority to sell or assign his territory to any other person. Although there is no direct testimony on the subject , it appears clear that the salesmen are not free to hire additional help. The evidence reflects that the salesmen work alone and from the very nature of their work it is unlikely that they would or could use the services of others.3 B. Conclusions with respect to the status of the salesmen While many cases involving the -issue of the status of persons alleged to be inde- pendent contractors are difficult to decide because of the closeness of the question, I do not find this to be the case here. In the opinion of the Trial Examiner , the evi- dence as a whole clearly demonstrates that the salesmen in the instant case function as employees , not as independent contractors . That is not to say there are no factors present which are normally associated with an independent contractor relationship. Thus, the salesmen here pay their own taxes and the Respondent makes no deductions of any kind on their behalf. They do not receive paid vacations and they provide their own automobile which they operate at their own expense. It is well settled, however, that none or all of these factors are by themselves controlling. Nor is the fact that the Dealer's Agreement Form designates the salesmen as "independent dealers," a determinative factor. In a similar case 4 where the contract stated that the salesman was not an employee but a dealer, the Board, in finding on all the evi- dence that the salesmen in fact were employees , stated that "attempts to label a relationship under a contract are not controlling . [Emphasis supplied.] The fact of the matter is that the salesmen here do not enjoy the rights and re- sponsibilities which are fundamentally characteristic of an independent contractor status, viz, the element of risk undertaken (with its correlating opportunity for profit-or risk of loss ) and the right to control the manner and means by which their services are to be performed The salesmen here are afforded no more opportunity for profit or loss than any other type of employee who works on a piecework or commission basis. Except for the use of their automobile , the ownership of which no doubt they would enjoy apart from business considerations , the salesmen here have no capital whatsoever invested in the business . Even the advertising, the travel kits, and the telephone calls from which they obtain leads are provided and paid for by the Respondent .5 As previously noted, Respondent fixes the prices at which the carpeting is sold and the salesmen are not allowed to deviate from the prices so established . The Respondent determines the commission which the salesmen receive and the evidence establishes that in the past those commissions have been unilaterally changed at the will of the Respondent. From the foregoing it is evident that the "risk" element or the opportunity for profit or loss to the salesmen here involved is nil. Apart from the fact that the nature of the buiness requires that the salesmen spend most of their time "on-the-road," the evidence establishes that they have little control over the manner and means concerning which their work is accomplished As here- tofore described , the entire pattern is set by the Respondent Beyond their skill as 3 There is also evidence that the salesmen were not allowed to handle products of any other company. Thus, the credited and uncontradicted testimony of Salesman Michaer Dyakon reveals that Shafer and Miller told him he would be discharged if he sold any other products. 4 Toledo Scale Company, supra, citing Rutherford Food Corporation v McComb, 331 U.S. 722. 5 Although newly hired salesmen pay Respondent $5 per week for the first 5 weeks as rental for the sales outfit, this sum is refunded to them if and when their employment is terminated. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD salesmen, room for independent judgment is practically nonexistent.6 Furthermore, and contrary to the apparent assertion of the Respondent, they are not free agents in any real sense of the word. It is clear from the record as a whole that Respondent sets certain working requirements with which the men must comply if they wish to retain their jobs. Thus, the evidence establishes that it was obligatory for the men to call upon the leads in their territory which were furnished them by the Respondent through Miller.? Although Sales Manager Miller at one point testified that the acceptance of leads was a voluntary rather than a compulsory matter, he later testi- fied "because we have such a high lead cost they [the salesmen] were expected to follow their leads up"; that "those leads had to be taken care of." Also that "when customers call in, it is absolutely necessary that we take care of them as quickly as possible." Concerning this matter of leads, Shafer in his testimony conceded that "we practically insist that they make the calls. These leads are very expensive to us " Indeed, the evidence reflects that one salesman, a Richard Waterson, was terminated for failing to take care of his leads. From the evidence it is thus apparent, and I find, that the salesmen had no freedom of choice to refuse leads assigned to them by the Respondent in their territory. Notwithstanding Respondent's contention that the salesmen "are under no obli- gation to work at any particular hours or on any particular days," the evidence shows that the salesmen are required to put in a full workweek. As we have just seen, the salesmen were required to go out and follow the leads which were furnished them at the beginning of the day, and this on a daily basis during the week. When they were not following leads given to them by the Respondent the salesmen were re- quired to do their own canvassing. Salesman William J Augustine credibly testified that Miller expected 8 hours a day from the salesmen on the job. Michael Dyakon, also a salesman, credibly testified, "I recall very vividly Mr. Green [his immediate supervisor] stressing the fact that the minimum of hours worked should be eight; and at our sales meetings he would question us." In this regard Joseph Mance testi- fied credibly and without contradiction that as a salesman he was required to call the office each day in the afternoon. There can be doubt that Respondent kept close check to see that the men were out working and that they followed their leads. Thus, not only were the salesmen required to give an account as to why certain leads were not sold (this usually at the sales meeting) but Sales Manager Miller conceded that he personally checked on the men in this regard. Thus Miller testifed, "When time permitted I would check back on leads that were not sold to find out why those leads were not turned in as sales." Dyakon credibly testified also that his group leader, Mr. Green, would call on customers when leads were not sold for the purpose of ascertaining whether the salesmen in fact had called upon these customers. There was considerable testimony concerning whether Respondent required the men to attend the Monday morning sales meetings. Several of the witnesses credibly testified that they were told by Miller that it was obligatory for them to attend these meetings and that they always did 8 Two salesmen who lived outside the Pittsburgh area testified that they did not always attend these meetings .9 Although Shafer testi- fied that the men were not under compulsion to attend the meetings, I am convinced from the credited testimony and the evidence as a whole that there was a general requirement, understood by the salesmen and the Respondent, that they be present at the sales meetings. This is not to say that they would be discharged if they missed an occasional meeting, but there is no doubt in the mind of the Trial Examiner that they would not continue to hold their jobs for long if they made it a practice to absent themselves from these meetings.io 6 Respondent makes much of the fact that the salesmen schedule their own workday. This, however, is but a routine matter. Once the leads have been furnished it is simply a matter of the salesmen arranging to meet the customers at their convenience 7 Although each salesman had a territory of his own, some territory in the Pittsburgh area was unassigned and is known as "free territory." It appears that the salesmen were not required to follow leads outside their own territory, i e, in free territory. s Testimony of Michael Dyakon, Joseph Mance, and William J Augustine. 9 Testimony of Harry S. Coleman and Thomas J Bainbridge. John E. Shanley testified that the meetings were not compulsory but that he was "asked to attend " As noted hereinafter, the special status of Coleman and Bainbridge is such that they should be excluded from the appropriate bargaining unit IU If the men missed a meeting they were required to pay $1 to the "Positive Thinkers Club." The club was set up by the sales manager, Miller, and the proceeds were used to contribute toward a monthly salesmen's dinner. KEYSTONE UNIVERSAL CARPET COMPANY 11 From all of the foregoing, it is my conclusion, and I find, that under the test set forth in the Grey van and other cases cited in the preceding section hereof, the sales- men of the Respondent are employees, not independent contractors.ll C. The principal events The events leading up to the organization of Respondent's salesmen started when the Respondent proposed certain changes with respect to their commissions. This proposal was made to the salesmen by President Shafer and Sales Manager Miller on the morning of January 25, 1960. On the afternoon of the same day the salesmen met among themselves and decided that the new proposal did not appear acceptable. However, a committee consisting of salesmen, William J. Augustine, Orazio Cara- mela, and John E. Shanley was appointed to study the proposal and report back to the Company. The latter committee met with Shafer and Miller on January 30, reported that the men were not in favor of the new plan, but suggested that the men could come up with a plan of their own. A regular weekly meeting of the salesmen was held on February 1. William Augustine credibly testified that at this meeting Miller told the salesmen that he had heard there was going to be some picketing at the plant and that if such picketing occurred the Company would close its doors. On that same afternoon the committee of three again met with Shafer and Miller and proposed certain changes in the new plan which Respondent desired to place in effect. According to the credited testi- mony of Augustine, Shafer was somewhat receptive to the committee's proposal, but when he left the meeting Miller stated that he did not care what Shafer said, that the Company would put into effect the plan which it had originally proposed whether the men liked it or not. When the committee reported the result of the -latter meeting to the other salesmen, it was decided that a union be contacted. Augustine thereupon telephoned Robert Lieberman, business representative of the Union, and a meeting was arranged for the next morning, February 2, at the Cottage Inn Restaurant. Eleven of the sales- men attended this meeting, which was held as scheduled with Union Representatives Lieberman and Thomas Best, and all signed union authorization cards. A new com- mittee consisting of Salesmen Augustine, Caramela, and Joseph Mance was appointed and it was decided that they, together with the union representatives, meet with the Respondent for the purpose of requesting recognition. The committee, Lieberman, and Best met with Shafer at Respondent's office on the afternoon of the same day, February 2. The meeting was an explosive one. After being introduced as a representative of the Union, Lieberman stated that a majority of the salesmen had selected the Union to represent them for collective-bargaining purposes. He thereupon requested that Respondent recognize the Union and at the same time offered to show proof of the Union's majority status. Shafer, who unquestionably was taken by surprise at this turn of events, immedi- ately reacted by stating that he would not tolerate any outside union. Pointing his finger in turn to Augustine, Caramela, and Mance, he called each one of these employees by their first name and told them they were "fired." At this Augustine spoke up and said that he would like to continue working for the Company, but that he also wanted to belong to an outside union. Shafer answered, according to the credited testimony of Augustine, by saying "You will not belong to a union and work for Keystone Universal Carpet." In the meantime Miller and Group Leader Green entered the room. Green mentioned that Augustine had belonged to a union about 2 years ago (apparently while with another company) and that he had been fired. Augustine acknowledged that this had happened. Lieberman in the meantime at- tempted to calm things down and suggested that a meeting be held at another time, but the meeting ended with Shafer saying that it was no use, that they were just wasting their time. There is no dispute in the facts thus far related. Shafer conceded that a "heated discussion" took place and that he told the salesmen and the union representatives that he would not recognize the Union. Shafer also conceded that he told Augustine, Caramela, and Mance they were discharged. At this point, however, there is a material dispute in the facts. Shafer testified that after having told the u The Respondent attached to its brief an apparently unpublished case, Sickler Con- struction Co. v US. (U.S., DC., Dist. of N.J.), which held that certain home improve- ment salesmen were independent contractors, not employees. However, the question there arose under the definition of "employees" as the term is defined by Title 26, Sections 1426(d) and 1607(i) of the United States Internal Revenue Code, which is not applicable here 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three salesmen they were discharged, "I immediately rescinded the statement within a half a minute. . I apologized to Mr. Lieberman and Mr. Best for being hurt with them . and I said that, `I can't fire these men anyhow because they're not employees of the concern, they're independent agents.' " Shafer testified further that "And I repeated that possibly three or four times during that meeting, that I made a mistake in shying it',,that I didn't mean it, and I asked the men to continue working under the original contract." Augustine, Caramela, Mance, and Lieberman all testified on direct examination concerning the statements made by Shafer at this meeting, but none testified that Shafer in any way rescinded his statement that the men were discharged. Lieberman, when called on rebuttal, testified that Shafer made no apology whatsoever and he denied that Shafer in any way rescinded his statement or offered to reinstate the men. Under all of the circumstances of this case, including my observation of the witnesses, I cannot believe that at this meeting Shafer rescinded his discharge of Augustine, Caramela, and Mance and his testimony to this effect is not credited.12 On February 4 Caramela went to the office to pick up his check. According to the credited and uncontradicted testimony of Caramela, Shafer took this occasion to tell him that he had another plan and requested that he submit it to the men. With respect to the plan, which apparently did not relate to commissions , Caramela testi- fied, "So he told me the plan, that we could have our own union and our own grievance committee; and he would have his lawyer meet with us and draw up a contract-to that effect." Pursuant to Caramela's conference with Shafer, the men were contacted and a meeting of the salesmen was arranged and held at the Cottage Inn Restaurant on February 5. Nine salesmen were present. Although the testimony is somewhat confused as to what was discussed at this meeting, it is clear that the salesmen's committee of three (Augustine, Caramela, and Mance) was increased to six with the addition of John Shanley, Michael Dyakon, and Conrad Brook. This committee, with the exception of Shanley who did not attend, met with Shafer and Miller at the Respondent's offices on the afternoon of February 5. The substance of this meet- ing is best described in the undenied and credited testimony of Augustine, who testified, "The committee met in Mr. Miller's office; and Marcus Shafer started the meeting out by saying, `Well, there's no use of us wasting our time here. I want to get this straight. This is probably illegal but I don't give a damn. We will draw up a contract; we will have a grievance procedure in it, as long as you have a com- pany union, but I will not tolerate an outside union coming into our sales group.' At that time I asked Mr. Shafer if it would be possible to bring the union repre- sentatives in because we were about 15 minutes away from them down the Boule- vard . . . [and] Mr. Shafer again replied that he will not tolerate any outside union there and he didn't want to talk to Mr. Lieberman or any other outside labor representative." 13 As will be noted more fully hereinafter, the majority of Respondent 's salesmen, particularly those who had signed union authorization cards, did not work and re- fused to accept leads during the period beginning on approximately February 1. The testimony shows that the results of the February 5 meeting were reported by the salesmen's committee to the other salesmen. The salesmen thereafter decided to present themselves at Respondent's offices on February 8, which was the day of the regular sales meeting, for the apparent purpose of finding out just what was happening. The meeting took place with the majority of the salesmen, Shafer, Miller, and Green in attendance. Shafer began by asking the salesmen what they had decided to do. The salesmen responded by indicating that they still wanted union representation. According to the credited and corroborative testimony of five witnesses,14 Shafer thereupon told the men that he would not tolerate an outside union and that if they persisted in their attitude of wanting an outside union they should turn in their kits and make an immediate report to Miller of their leads for 12 In making this finding I have also taken into consideration Shafer 's subsequent anti- union conduct, further of which is set forth hereinafter. ii Thus the meeting ended Although Shafer did not testify about this February 5 meet- ing, he conceded that at one of the meetings he "suggested that rather than they organize into the Union as such . . . that they form an organization . . Shafer testified fur- ther that "I referred to it as an organization of our own men If they had anything they would like to discuss with us, select a committee ; we'd be very happy to do so. I did not refer to it as a company union." 14 Augustine , Dyakon , Mance, Brook , and Caramela KEYSTONE UNIVERSAL CARPET COMPANY 13 the last 90 days.15 As shall be seen , Salesmen Brook and Dyakon took Shafer at his word and left the employ of the Respondent at this time. D. Interference, restraint, and coercion In accordance with the findings made in the preceding section, I find that Re- spondent independently violated Section 8(a)(1) of the Act by the following acts and conduct: (1) Miller's statement to the salesmen on February 1 that Respondent would close its doors if the salesmen engaged in picketing. (2) Shafer's statements to Augustine, Caramela, and Mance on February 2 that he would not tolerate any outside union and that the employees could not belong to the Union and work-for the Respopdep:t. (3) Shafer's statement to the employees on February 5 and February 8 that Re- spondent would not tolerate an outside union among its salesmen. E. Conclusions with respect to the discriminatory discharges 1. William J . Augustine, Orazio Caramela, and Joseph Mance As has been hereinbefore noted and found , Augustine, Caramela, and Mance were discharged by Shafer on February 2, 1960, concededly because of their union activities and union affiliations . It has been found, also , that Shafer did not retract these discharges on the same date. In view of Respondent's contention that these employees voluntarily terminated their employment relationship with the Respond- ent, and also for further clarification of the issues herein , certain additional facts must be noted. Reference already has been made to the fact that the majority of Respondent's salesmen did not work following the sales meeting of February 1. This situation continued until the , thee tingt^of Feb'ruary' 8 at which time Shaferaold the-men" they could no longer work for the Respondent if they wanted an outside union . Although no strike vote or any other formalized strike action was taken, the record indicates that most of the salesmen engaged in a spontaneous refusal to work during the period indicated.16 With respect to the meetings which took place after February 2, Augustine, Cara- mela, and Mance testified that they attended these meetings not as employees but as members of the committee to which they had been appointed. Now as to the specific individuals . Augustine did not perform any work for the Respondent after February °2 and he testified : credibly that he;received no leads or calls from Shafer and Miller subsequent to that date . He turned over his leads to the Respondent after the meeting on February 8 and turned in his sample kit on or about February 25.17 Caramela turned in his sample kit on February 2. It will be recalled that on the occasion of Caramela's returning for his check on February 4, Shafer proposed that he (Caramela ) submit to the men a new plan whereby the men could have a "com- pany" or an "inside" union. In addition, Shafer at this time also told Caramela that all the men were working again . ActingTon this statement , Caramela advised Shafer that he would,come back also and on this day picked'up his kit again. I do not regard the fact that Caramela picked up his sample kit on February 4, with Respondent's apparent permission, as in any way tending to show that he was unconditionally reinstated at this time. In the first place, Caramela was misled is Shafer did not deny that at this meeting he told the men to turn in their kits if they still wanted an outside union. Concerning this meeting Miller testified, "At that meeting I did tell the men that I had legal advice to the effect that being independent agents they did not have the right to organize and I was under no obligation to recognize them as a group." While I have no doubt that Shafer did make this statement, this does not deter from the finding that he also made the other statements set forth above. 11 Shafer testified that Salesmen Shanley, Botti, Bainbridge , Feasler, and "possibly a few others" continued to work during this period. It is clear that the majority did not. With the exception of the dischargees herein, it appears that all of the other salesmen re- sumed work on February 8. 17 Augustine and the other salesmen alleged to have been discriminatorily discharged re- turned on one or more occasions after February 8 and had further discussions with Miller or Shafer The discussions which they had on these occasions need not be related herein since they primarily pertained to the amount of the commissions owing them. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Shafer's statement that the other salesmen had resumed working for the Re- spondent. He ascertained shortly thereafter that this was not a fact and, in fact, he did not perform any work for the Respondent subsequent to February 2, the date of his discharge.18 In any event, in view of Shafer's statement at the February 8 meeting, it is clear that Respondent would not have Caramela in its employ absent his renouncing the Union. Mance performed no work for the Respondent from February 2 until April 4, 1960, at which time he returned to work for the Respondent as a salesman. But with relation to his discharge on February 2, Mance returned his sample kit to the Respondent about February 15, this pursuant to a call from Miller that it be returned. On March 31, 1960, Respondent sent the following letter to Caramela and Mance: 19 Mr. CARMELLA: I am writing you this registered letter to remind you that on February 3rd, 5th, 15th, 18th and numerous other occasions, I spoke to you regarding your dealer agreement with us, at which time I suggested that you continue to operate with us in the same territory under the same terms and con- ditions that were in effect in the past. As you know, both occasions you refused my offer and I have not heard from you for quite some time. In order to plan our Spring Sales Program, it is necessary that we know whether or not you will continue to turn your business into our office. Will you, therefore, please let me know what your intentions are-if it is not your intention to continue operating under your contract with us, will you please return all samples, literature and sales materials of our firm as soon as possible. Should we fail to hear from you with the next ten days, we will consider your dealer agreement terminated. Conrad M. Brook, whose discharge is discussed hereinafter, also received a letter similar to the one set forth above. Brook credibly testified that when he called Miller concerning this letter, Miller merely laughed and said, "It's a legal maneuver." And a tactical maneuver it was, for the evidence establishes, and I find, that Re- spondent did not in fact talk to Caramela and Mance on the dates or in the manner indicated in Respondent's letter. In any event, these letters do not contain an uncon- ditional offer of reinstatement which at this point Respondent was bound to make. Once again we must recall that at the February 8 meeting, which Caramela and Mance attended, Shafer stated that the men could not have an outside union and continue to work for the Company. The letters of March 31 did not rescind this statement and mentioned only that they could return "under the same terms and conditions that were in effect in the past." In view of all the foregoing, and upon the record as a whole, I find that Respond- ent discriminatorily discharged Augustine, Caramela, and Mance on February 2 in violation of Section 8(a)(3) and (1) of the Act, and that it at no time thereafter offered these employes full and unconditional reinstatement to their former posi- tions as salesmen 20 2. Conrad M. Brook and Michael Dyakon The complaint alleges that Brook and Dyakon were discriminatorily discharged by the Respondent on February 8. The Respondent's defense to this allegation is that these employees voluntarily terminated their employment on the date indicated. Brook and Dyakon were among the salesmen who attended the February 8 meet- ing, to which we must again refer, wherein Shafer delivered his ultimatum that those employees who still wanted an outside union must turn in their sample kits. Brook and Dyakon reacted by refusing to accept the sole alternative of having to, discontinue their union activities as a condition of remaining in Respondent's employ. is Shafer conceded that Caramela did not make any calls after February 2 1 do not credit Miller's testimony that Caramela accepted leads after that date 19 It appears that a similar letter was sent to Augustine but is undisputed that he never received it. 2O The evidence does not establish Respondent's assertion that Augustine and Caramela, as well as Dyakon, voluntarily left Respondent's employ to establish a competitive carpet business known as Carpet Fashions, Inc. Although these employees established this busi- ness in March 1900, this was not the reason for their leaving Respondent's employ. The- reason, as herein found, was that they were discharged KEYSTONE UNIVERSAL CARPET COMPANY 15 Brook credibly testified that on the afternoon of February 8 he told Shafer and Miller that he would like to continue working for the Company but that he could not see his way clear until the entire matter was cleared up . At this time he received a termination check in partial payment for commissions due him . Brook subse- quently returned to speak to Shafer and Miller on one or two occasions with respect to commissions still owing him on several outstanding carpeting jobs. On one of these occasions he returned his sample kit when reminded by Shafer that he had failed to do so. Respondent in its brief infers that Brook voluntarily terminated his employment to accept employment with a real estate firm. The evidence does not so establish . All that is shown is that on one occasion subsequent to February 8 Brook advised Shafer that he then had a job with a real estate company. The evidence establishes that Michael Dyakon also was discharged pursuant to Shafer's ultimatum of February 8. As Dyakon testified, "On February 8 we were finished with the Company." Although the record does not reveal what conversa- tion if any, Dyakon had with Miller or Shafer at this time, Dyakon testified credibly and without contradiction that after the February 8 meeting ended he received a termination check in partial payment of commissions owing him. In explaining why he did not turn his sample kit in on the same day (as Shafer said they should), Dyakon testified , "On February 8 there was too much confusion ; and primarily I wanted to come in at a time when I could turn in my kit . . . cause there was some things in it they wanted to check , such as metal and so forth; and I wanted to be sure that I received my $25 deposit ." Dyakon subsequently returned on two occasions to receive further commissions owing him, the last of which was on or about March 10 at which time, pursuant to a telephone call from Miller, he turned in his sample kit. Upon a consideration of all the evidence , I am satisfied , and I find, that Respondent never offered Brook or Dyakon unconditional reinstatement to their former posi- tions subsequent to February 8. In view of all the foregoing, and upon the record as a whole, it is found that on February 8 Brook and Dyakon were constructively discharged. The circumstances surrounding the termination of their employment are closely parallel to those found in Ra-Rich Manufacturing Corporation,21 wherein the Board stated: Under the circumstances including the treatment accorded the other nine em- ployees on the same day, Superintendent Resko's statement reflected the Re- spondent's policy, as announced by President Hendel , that union adherence was incompatible with continued employment with the Respondent . While Resko permitted Baker to decide whether to continue in the Respondent's employ, Baker could not so continue in conformity with the Respondent 's policy unless he repudiated the Union . Under the Act, a choice of this character may not validly be imposed upon employees and is in contravention of the Act. An employee who, when forced by his employer to make such a choice, chooses to exercise his right under the Act to join or assist a labor organization and leaves his employment rather than to conform to such a management policy, is con- structively discharged. Accordingly, and in view of this precedent which is determinative here, I find that Respondent discharged Brook and Dyakon by conditioning their further em- ployment upon abandonment of the Union and that Respondent thereby discrim- inated against them with respect to their tenure of employment in violation of Section 8(a)(3) of the Act. I find also that by such conduct Respondent infringed upon the rights guaranteed employees in Section 7 of the Act and that it thereby violated Section 8 (a) (1) of the Act. F. The refusal to bargain 1. The Union's majority status ; the appropriate unit At the hearing Respondent put the General Counsel to his proof as to the Union's majority status . Although Respondent appears to have abandoned any contention that the Union did not have a majority, as evidenced by absence of any mention of this phase of the case in its brief, it is nevertheless incumbent that findings be made with respect to the Union's majority status. As previously noted, the uncontroverted evidence establishes that 11 of Respond- ent's salesmen signed union authorization cards on February 2. At the hearing Respondent took the position that on February 2 it had 23 salesmen in its employ, m 120 NLRB 503. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these including, in addition to the 11 who had signed, Lex Farris, Art Hustad, Joe Dlock, Robert Price, William Wallace, and Ed Welch. However, Respondent's own records clearly show, and I find, that Farris, Hustad, Wallace, and Welch were not in fact employees of the Respondent on February 2 or at any material time thereafter 22 With the unit thus reduced to 19, it is apparent, and I find, that the Union represented a majority of Respondent's salesmen on February 2 With respect to the unit, it is undisputed that on February 2 Union Representative Robert Lieberman requested that Respondent recognize the Union as bargaining representative of Respondent's salesmen. Although for other reasons the Respond- ent refused to recognize the Union, the Respondent has not questioned that a unit of salesmen, as such, is appropriate for the purpose of collective bargaining. More- over, the Board has held,thata unit composed' of salesmen -or employees'-in'a similar category constitute an appropriate unit 23 Accordingly, I find that the following unit is appropriate for the purpose of collective bargaining: a4 All salesmen of the Respondent, excluding the out-of-town salesmen, office em- ployees, guards, professional employees, and supervisors as defined in the Act. 2. Conclusions with respect to the refusal to bargain As we have seen, on February 2 the Union represented a majority of Respondent's employees in an appropriate unit and on that date made a valid demand upon Re- spondent for recognition. Respondent, without questioning the Union's majority status or the appropriateness of the unit, declined recognition solely on the ground that the salesmen were independent contractors. By letter dated February 10, 1960, the Union wrote the Respondent, stating, inter alia, "We are again requesting recog- nition for the purpose of negotiating a collective bargaining agreement for the sales- men employed by our company." Respondent's attorney replied by letter dated February 15, the pertinent part of which states as follows: - Please be advised that our client' employs no "salesmen," and we are therefore at loss to understand your request that we recognize your Union for collective bargaining purposes. The individuals referred to in your letter of February 10, namely, Orazio Caramela, Joseph Mance, and William J. Augustine, are independent dealers, working under written agreements with our client. If you desire any further information with respect to the foregoing, please advise. The Union made no further contact' with the Respondent, but on March 15 it filed an amended charge alleging that Respondent.refused to bargain in violation of Section 8(a) (5) of the Act. The Respondent's sole asserted reason for its refusal to bargain is predicated upon its claim that it in good faith "did not regard the salesmen as `employees,' but rather as 'independent contractors.' " In view of the Board's decision in an analogous case, Tom Thumb Stores, Inc., 123 NLRB 833, this contention must be rejected. In that case the Board held that an employer may not refuse to bargain for a tradi- tionally appropriate unit upon the bare. claim that such a unit is inappropriate. In so holding the Board stated: ' In the instant case the Union was the representative of a majority of the employ- ees and unit is appropriate. The statutory requirements had been met by the Union and the obligation on the part of the Respondent to bargain had become fixed. We cannot agree that the Respondent could evade its, obligation by rejection of the unit. We have imposed considerable risk upon a union which 22 The parties stipulated that Respondent's records show that the last sale made by each of the above employees was made on the date appearing after their names, as follows Farris, May 2, 1959; Hustad, September 22, 1959; Wallace, September 2, 1959; Welch, May 22, 1959. 2a Golden Age Dayton Corporation, 124 NLRB 916. 24 Henry S. Coleman and Thomas J. Bainbridge live in towns outside the Pittsburgh area and sell carpeting for the Respondent in these localities. Coleman also has his own sales and appliance service and he does some advertising in the local paper Bainbridge, in addition to selling for the Respondent, also works an 8-hour day in a steel mill. Unlike the in-town salesmen, Respondent does not require the out-of-town salesmen to attend sales meetings. Whether 'Coleman and Bainbridge be regarded as independent contractors or as part-time salesmen, the interests of these out-of-own salesmen in comparison to the others are such that I will exclude them from the unit. See Golden Age Dayton Corporation, supra. KEYSTONE UNIVERSAL CARPET COMPANY 17 seeks to enforce its rights under Section 8(a)(5). It must establish that it has been designated by an uncoerced majority of the employees, that the unit is appropriate, and that there has been both a demand and a refusal. If there is failure of proof in any one of these conditions its resort to the Board will have been in vain. It seems both equitable and in conformity with the statute to impose the same risk upon the employer who denies his obligation. . . . In electing to rely solely on a contention we find to be without merit, it acted at its peril and in violation of the Act. In finding that the Respondent in the instant case violated Section 8(a)(5) and (1) of the Act by its refusal to bargain, the Trial Examiner does not rely solely upon the Tom Thumb case, however. Assuming that Respondent did have a good-faith doubt that its salesmen were not employees, but independent contractors, this is a question that Respondent properly could have placed before the Board in a repre- sentation hearing for resolution. Instead, Respondent immediately resorted to tactics designed to undermine the Union and to thwart the organizing activities of its employees as evidenced by the discriminatory discharges and the other acts of interference, restraint, and coercion in which Respondent engaged. Such conduct is manifestly inconsistent with any claim that Respondent acted in good faith when it refused to recognize and bargain with the Union.25 Accordingly, and in view of all the foregoing, I find that Respondent has failed and refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent, upon request, bargain collectively with Retail Clerks International Association, Retail Store Employees Union, Local 1407, AFL-CIO, as the exclusive bargaining representative of employees in the appropriate unit described herein and, in the event an understanding is reached, embody such understanding in a signed agreement. Having found that Respondent discriminated in regard to the hire and tenure of employment of William J. Augustine, Michael Dyakon, Conrad M. Brook, and Orazio Caramela by discharging them on the dates indicated herein, the Trial Examiner will recommend that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of said discrimination by payment to them of a sum of money equal to that which they would have earned as wages from the date of the offer of reinstatement less their net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. Having in like manner discriminated against Joseph Mance, it is recommended that he be made whole for any loss of pay from the date of his discharge on February 8, 1960, until the date of his reinstatement on April 4, 1960, in the manner aforesaid. Since the violations of the Act which the Respondent committed are related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is reasonably to be anticipated from its past conduct, the pre- ventive purpose of the Act may be thwarted unless the recommendations are co- extensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: R5 Joy Silk Mills, Inc., 85 NLRB 1263 ; enfd as mod. 185 F. 2d 732 (C.A D C) ; cert. denied 341 US 914; Laabs, Inc, 128 NLRB 374; N L.B B . v, Wheeling Pipe Line, Inc., 229 F 2d 391 ( CA. 8) ; Emma Gilbert, et al, d/b/a A. L. Gilbert Company, 110 NLRB 2067. 597254-61-vol. 130-3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All salesmen of the Respondent , excluding the out-of-town salesmen, office employees , guards, professional employees , and supervisors as defined in the Act, constitute, and at all times material have constituted , a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times material since February 2, 1960, the Union has been the exclusive bargaining representative in the aforesaid unit within the meaning of Section 9(a) of the Act. 4. By failing to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of William J. Augustine, Michael Dyakon , Conrad M. Brook, Orazio Caramela, and Joseph Mance, thereby discouraging membership in the Union , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX 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: WE WILL NOT discourage membership in Retail Clerks International Asso- ciation, Retail Store Employees Union , Local 1407, AFL-CIO, or any other labor organization , by discharging any of our employees because of their concerted or union activities , or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with reprisals for engaging in union or concerted activities 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, join, or assist the above-named labor organization , or any other labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor -Management Report- ing and Disclosure Act of 1959. WE WILL bargain collectively upon request with Retail Clerks International Association, Retail Store Employees Union, Local 1407, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, and other conditions of employment , and, if an understanding is reached , embody such under- standing in a signed agreement . The bargaining unit is: All salesmen of the Respondent , excluding the out-of-town salesmen , office employees, guards, professional employees , and supervisors as defined in the Act. WE WILL offer William J. Augustine , Michael Dyakon , Conrad M. Brook, and Orazio Caramela immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them. WE WILL make Joseph Mance whole for any loss of pay suffered as a result of the discrimination against him. WEIL-McLAIN COMPANY 19 All our employees are free to become or refrain from becoming members of the above-named Union, or any other labor organization , except to the extent that said right may be affected by an agreement in conformity with Section 8 (a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. KEYSTONE FLOORS, INC. D/B/A KEYSTONE UNIVERSAL CARPET COMPANY, Employer. bated------------------- 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. Weil-McLain Company and Pattern Makers' League of North America, So. Bend Association and Michigan City Branch, Petitioner. Case No. 13-RC-7066. February 6, 1961 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued by the Board on July 7, 1960,1 an election by secret ballot was conducted on July 29, 1960, under the direction and supervision of the Regional Director for the Thirteenth Region, among the employees in the ap- propriate voting group defined by the Board. Following the election, the parties were furnished with a tally of ballots, which showed that of approximately 10 eligible voters, 10 cast valid ballots, of which 5 were for the Intervenor, International Molders and Foundry Workers Union of North America, Local 316, AFL-CIO, and 5 were for the Petitioner. There were no challenged ballots. Thereafter, the Peti- tioner filed timely objections to conduct affecting the election. After an investigation the Regional Director on October 14, 1960, issued his report on objections in which he recommended that objec- tions numbered 2 and 3 be overruled, but he found that objection numbered 1 raised material and substantial issues concerning conduct affecting the election results and recommended on this basis that the election be set aside. Timely exceptions to this finding and recom- mendation were filed by the Employer. No exceptions were filed by the other parties. 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 [Members Rodgers, Fanning, and Kimball]. The Board has considered the objections, the Regional Director's report, and the Employer's exceptions thereto, and upon the entire record in the case, makes the following findings : 2 1 Not published in :NLRB volumes 2 As no exceptions were filed with respect to the Regional Director's recommendations that objections numbered 2 and 3 be overruled , such recommendations are adopted pro forma 130 NLRB No. 2.