Custom Quilting Corp.

CUSTOM QUILTING CORPORATION 51 the Board upon request payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Teamsters Local Union No. 391, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amenca, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Pine State Creamery Company, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating in regard to the tenure of employment of Howell L. Jones, Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By the foregoing conduct, and by privately interviewing its employees and by emphatically informing them of its opposition to the Union, and interrogating each and every employee as to his opinions and sympathies toward the Union in private, Respondent has interfered with, restrained, and coerced its employees in the exer- cise of their rights guaranteed them by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not violate Section 8(a) (3) or ( 1) of the Act by discharg- ing James Marshall Hilliard on or about November 12, 1960. [Recommendations omitted from publication.] Custom Quilting Corporation and District 65, Retail, Wholesale and Department Store Union, AFL-CIO. Case No. 12-CA-7635. November 7, 1961 DECISION AND ORDER On March 10, 1961, Trial Examiner Sidney Sherman issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Charging Party and the General Counsel filed exceptions to the Intermediate Report and the General Counsel filed a 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- mediate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. i In the absence of exceptions, we adopt pro forma the Trial Examiner's findings of a violation of Section 8(a) (1) relating to Respondent 's threatening its employees with re- 134 NLRB No. 9. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record indicates that the Respondent ceased operations at its only plant, at Bellmore, New York, 2 weeks prior to the hearing in this case. The day before the hearing, some of Respondent's assets were sold at an auction sale in satisfaction of a chattel mortgage. Stefko, Respondent's president and principal owner, stated that he ex- pected the business to wind up bankrupt. The Charging Union's and the General Counsel's exceptions contend that the Trial Examiner's recommended bargaining order, which orders Respondent to bargain with the Union in the event it resumes operations in Bellmore, New York, should be broadened to require the Respondent specifically to bargain now with the Union about employees' posttermination benefits and to resume bargaining with it whenever Respondent goes back into business either in Bellmore or Nassau or Suffolk County, New York. In view of the fact that Respondent, for nondiscriminatory reasons, has apparently gone out of business entirely, with little likelihood that it will ever resume operations, we do not believe that there is sufficient justification for the issuance of an affirmative order to require the Re- spondent to bargain now about prospective rights of its former em- ployees. Nevertheless, since the Respondent did illegally refuse to recognize the Union as the representative of its employees, we find it appropriate to remedy that violation by requiring the Respondent to bargain with the Union if and when it resumes operations in the vicinity of Bellmore, New York, the site of its former plant. We reserve the right to modify our remedial order if there is a substantial change of conditions in the future, or to clarify its application to specific circumstances not now apparent. Bermuda Knitwear Cor- poration, 120 NLRB 332. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, -as amended, the National Labor Relations Board hereby orders that Respondent, Custom Quilting Corporation, Bellmore, New York,-its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Refusing to bargain collectively with District 65, Retail, Whole- sale and Department Store Union, AFL-CIO, as the exclusive repre, sentative of the employees in the following appropriate unit : All production, maintenance, and shipping employees at the Respond- ent's Bellmore, New York, plant, including regular part-time employ- ees, but excluding part-time drivers; guards, watchmen, professional employees, and all supervisors as defined in the Act. (b) Threatening reprisals against employees for their union activi- prisals and promising them benefits in response to their organizational activities, and a violation of Section 8(a)(5) by its refusal to recognize the Union as the exclusive repre- sentative of its employees. CUSTOM QUILTING CORPORATION 53 ties or promising to grant unilaterally to employees the benefits that they were seeking through collective bargaining. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist a labor organization, to bargain collectively through representatives of their own choosing, to engage in 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 permitted by Section 8(a) (3) of the Act, as modi- fied 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) If the Respondent resumes operations in the Bellmore, New York, area, bargain collectively upon request with District 65, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of the aforementioned bargaining unit. (b) Send to each of the employees a copy of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent, be sent to employees employed by the Re- spondent prior to his discontinuance of operations, at their last known address. (c) Notify the Regional Director for the Second 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 Decision and Order. IIn 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 " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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, in the event we resume operations in the Bellmore, New York, area, bargain collectively, upon request, with District 65, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of the employees in the following unit : All production, maintenance, and shipping employees at our Bellmore, New York, plant, including regular part-time em- 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, but excluding part-time drivers, watchmen , guards, pro- fessional employees, and all supervisors as defined in the Act. WE WILL NOT threaten to close our plant because of the advent of a union, or promise to grant our employees the same benefits without a union as they are seeking to obtain through a union. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist a labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of mutual aid or protection or to refrain from any of such activities, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. CUSTOM QUILTING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) INTERMEDIATE REPORT This case was heard before the duly designated Trial Examiner in New York, New York, on February 1, 1961, upon a complaint filed by the General Counsel and an answer filed by counsel 1 on behalf of Custom Quilting Corporation, herein- after called the Respondent. The issues litigated were whether the Respondent violated Section 8 ( a)(5) and (1) of the Act by the conduct described below. Upon the entire record 2 and my observation of the witnesses , I adopt the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a New York corporation, has been engaged at its plant in Bellmore, New York, in the manufacture of materials for bedspreads. During the year pre- ceding the issuance of the instant complaint, Respondent purchased from out-of- State sources, and received at its plant, goods valued at more than $50,000. I find that the Respondent was at all material times engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. B. THE LABOR ORGANIZATION INVOLVED District 65, Retail, Wholesale and Department Store Union, AFL-CIO, herein- after called the Union, is a labor organization within the meaning of Section 2(5) of the Act.3 III. THE UNFAIR LABOR PRACTICES 1. The appropriate unit The complaint alleges, and I find, that the following employees of the Respondent constitute an appropriate, unit for purposes of collective bargaining: 'Respondent's counsel withdrew before the hearing and the Respondent was repre- sented at the hearing only by its president, Stefko 2 The transcript of testimony is hereby ordered corrected in the following respect: 1. On page 59, line 6, strike "not" at the end of the line. 2. On page 74, line 2, substitute "fired" for "hired " 8 Respondent refused to admit the allegation of the complaint that the Union is a labor organization within the Act. The foregoing finding Is based on evidence in the record. CUSTOM QUILTING CORPORATION 55 All production, maintenance, and shipping employees at the Respondent' s Bell- more, New York, plant, including regular part-time employees, but excluding part- time drivers,4 guards, watchmen, professional employees, and all supervisors as ,defined in the Act. 2. The Union's majority status The Union began to organize the Respondent's employees about September 15, 1960,5 and by September 29, when the Union first met with the Respondent, 12 employees had signed authorization cards.6 One more card was obtained on Oct. 18. Thus, the Union obtained a total of 13 cards. The Respondent conceded at the hearing that at all times here material there were only 13 employees in the unit hereinabove found appropriate. It is clear, therefore, and I find, that on September 29, when the Union made its first bargaining overture, and at all times thereafter, the Union represented a majority of the employees in the appropriate unit. 3. The refusal to bargain On September 29, Cohen, an organizer for the Union, met with Respondent's president, Stefko, claimed to represent a majority of the employees, showed him the cards already received by the Union, and asked for an appointment to discuss contract terms. Stefko mentioned certain business difficulties which might cause him to shut down, but agreed to contact Cohen the following week. At their next meeting on October 4 or 5, when Cohen presented the Union's proposals, Stefko indicated his willingness to sign a contract with the Union if mutually agreeable terms could be negotiated, and he discussed some of the Union's proposals.7 Another meeting was arranged for October 11. On that date Lockman, an attorney, called Cohen, advised him he had been retained by the Respondent, and it was agreed that the scheduled meeting would be postponed to October 18. On October 18, Dicker, representing the Union, and a committee of employees, met with Lockman, Cheshire,8 and Stefko. At that meeting the Respondent for the first time raised (1) the ques- tion of having the Board conduct an election to determine the Union's majority status, and (2) the "religious" issue discussed below. Finally, the Respondent waiving the religious issue, proposed a consent election, and Lockman agreed to meet the Union on October 19 at the Board's Regional Office to arrange for such an election. However, on October 19, Respondent's counsel announced that the Respondent would no longer agree to an election because Stefko's religious scruples prevented him from signing any collective-bargaining contract. At the hearing Stefko did not seriously question the Union's majority status but asserted that he had broken off negotiations with the Union only because he was conscientiously opposed to collective bargaining. He explained that he was a Seventh Day Adventist and that the tenets of his faith, as construed by him, de- barred him from signing a contract with a union. Stefko admitted that he had no official basis for his interpretation of the articles of his faith, but had reached this view after considerable reflection, indulged in between the Union's first bargaining overture and the final breaking off of negotiations. Stefko's reason for not bargaining appears suspect. It is based on a self-serving interpretation of the articles of his faith. His explanation of the basis for this interpretation was vague and confused. The General Counsel contends that Respondent throughout its negotiations manifested its lack of good faith by certain threats of reprisal and promises of benefit, calculated to induce the employees to renounce the Union. Thus, at an employee meeting called by Vice President and Plant Manager Cheshire 9 late in 4 Respondent regularly employs four part-time truckdrlvers, each for 6 or 7 hours a week. These drivers are otherwise employed full-time as policemen The General Counsel opposed their inclusion in the unit The Respondent, in the negotiations discussed in the text below, proposed the exclusion of these drivers from the unit and the Union agreed At the hearing, the Respondent took no position as to their inclusion As no party seeks their inclusion, and as they work for Respondent only 6 or 7 hours a week, I exclude them 5 Unless otherwise indicated, all dates hereinafter given relate to 1960 8 Eight of these cards were received by September 25 Four others were signed by September 28 and received by the Union on September 29 7 Cheshire, who was vice president and plant manager, was present at this meeting, as was Dicker, who was one of Cohen's associates. 8 See preceding footnote. 9 I find that Cheshire was a supervisor, and, in any event, an agent of Respondent. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September, he indicated to the employees that, in view of a recent decline in busi- ness, unionization would result in the closing of the plant, and that Stefko would have given the employees a "better deal" than the Union if they had come to him first. Also, later on the same day Cheshire asked employees Sanchez and Lopez what benefits the Union was offering to obtain and, after Lopez recited a number of fringe benefits promised by the Union, Cheshire stated that he would give the employees the same benefits. I find that by such threat and promises the Respondent violated Section 8(a)(1) of the Act. Moreover, these attempts to undermine the Union while engaging in a series of bargaining meetings which produced only a proposal by Respondent for a consent election despite the absence of any reason to doubt the Union's majority, the prompt withdrawal of such proposal, when put to the test, and the belated raising of the esoteric religious issue, all belie the Respondent's good faith throughout the negotiations. The pattern of Respondent's conduct is more consistent with a plan to engage in surface bargaining while seeking to undermine the Union , and the final abandonment of that plan, when it proved unsuccessful, in favor of a flat refusal to bargain on religious grounds. Accordingly, I find that Respondent from the inception of the negotiations, on September 29, did not bargain in good faith. Morevoer, even if it be assumed that the Respondent acted in good faith through- out and that Stefko honestly believed that it would be, and it was in fact, incom- patible with his religious principles to deal with the Union, I would still find that the refusal to bargain here was unlawful. The act does not exempt from the application of Section 8(a)(5) employers whose religion interdicts collective bargaining. As for the first amendment to the Constitution, the Supreme Court has indicated in a related context that no exemption from the requirements of the Act may be predi- cated thereon.10 I find therefore that Respondent has since September 29, 1960, refused to bargain with the Union as the exclusive representative of its employees in the appropriate unit, thereby violating 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 It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a) (5) and (1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Stefko testified that Respondent's operations had recently been discontinued, and that its assets had been sold at auction to satisfy the claim of a creditor. According to a newspaper advertisement displayed at the hearing by Stefko, such auction was held the day before the hearing. However, Stefko admitted that he did not yet know of the result of the auction, and that the amount of the claim of the creditor in question was for a relatively small amount. In view of these circumstances, I will condition the recommended bargaining order herein on the Respondent's resuming its former operation.tl Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I adopt the following: CONCLUSIONS OF LAW 1. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Since September 25, 1960, the Union has been, and now is, the exclusive repre- sentative of the Respondent's employees in the following unit, which is appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All pro- duction, maintenance, and shipping employees at the Respondent's Bellmore, New York, plant, including regular part-time employees, but excluding part-time drivers, guards, watchmen, professional employees, and all supervisors as defined in the Act. 10 Associated Press v N L R B, 301 US 103. u See Symns Grocer Co., and Idaho Wholesale Grocery Co, 109 NLRB 340, 348-349 DAVIDSON RUBBER COMPANY 57 4. By refusing since September 29, 1960, to bargain collectively with the Union in good faith as the exclusive representative of the foregoing employees , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (5) of the Act. 5. By such refusal to bargain, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their right to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining , thereby violating Section 8(a) (1) of the Act. 6. By threatening to close down its plant because of the advent of the Union, and by promising to grant employees unilaterally the same benefits as they were seeking through collective bargaining, the Respondent violated Section 8(a)( I) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. - [Recommendations omitted from publication.] Davidson Rubber Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Case No. 1-CA- 3426. November 7, 1961 DECISION AND ORDER On July 14, 1961, Trial Examiner David London issued his Inter- mediate 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 Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 McCulloch and Members Rodgers and Leedom]. The Board 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 exceptions and brief, and the entire record in this proceeding,' and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this 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, Davidson Rubber Company, Dover, New Hampshire, its officers, agents, successors, and assigns shall : 1. Cease and desist from : 1 The Respondent's request for oral argument is hereby denied as the record and the Respondent's brief adequately present the issues and positions of the parties. 134 NLRB No. 7.