Reserve Supply Corp. of L.I., Inc.

330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to join or support the above Union or any other labor organization, or not to do so as they wish , except to the extent that this right could be affected by any contract with a labor organization, made in conformity with Section 8 (a)(3) of the Act, which conditions retention of employment on member- ship in a labor organization. TIDELANDS MARINE SERVICE, 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. Employees may communicate directly with the Board's Regional Office, T 6024 Federal Building, 701 Loyola Avenue, New Orleans, Louisiana, Telephone No. 529-2411, if they have questions concerning this notice or compliance with its provisions Reserve Supply Corporation of L.I., Inc. and Local 1205, affili- ated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. Case No. 92-CA- 8103. December 27, 1962 DECISION AND ORDER On April 3, 1962, Trial Examiner John C. Fischer issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 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 attached Interme- diate Report. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended that these allegations be dismissed. Thereafter, the Respond- ent, the General Counsel, and the Charging Union each filed exceptions to the Intermediate Report with supporting briefs. 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 Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent violated Section 8(a) (1) when Seaman, Respondent's general manager, asked Adams, the president of the Independent Union, whether it was true that "the boys at Pine Aire have been talking to the Union" (Local 1205, Teamsters) ; when Supervisor Berg threatened Vannoy that he might be transferred to another warehouse 25 miles from his place 140 NLRB No. 23. RESERVE SUPPLY CORPORATION OF L.I. 331 of work, because of his union activities, "talking to delegates, and so forth"; and when Respondent restored overtime work in its attempt to have the employees desert Local 1205 and revive the Independent which they had already voted to dissolve. The General Counsel and Local 1205 have each excepted to the Trial Examiner's failure to find other instances of unlawful interrogation and threats which are alleged to have been made by Seaman, Berg, and Crittenden, the former general manager of Respondent who had retired some time before the events in issue here.' As any additional findings of Section 8(a) (1) violations would not affect the scope of our Order, we find it unnecessary to con- sider other instances of alleged interrogations or threats litigated at the hearing. 2. The Trial Examiner found that the General Counsel had not sus- tained his burden of proving that Respondent's failure to recall Van- noy after his layoff was for discriminatory reasons. He came to this conclusion because he believed that Vannoy and Scully, at the Pine Aire warehouse, and Maiorino, at the Mineola warehouse, had volun- tarily gone on their vacations (which were thereafter extended into layoffs) because of their low seniority and because of the loss of busi- ness suffered by Respondent during the strike called by Local 1205. The Trial Examiner also adopted Respondent's contentions that it did not know that Vannoy was active in behalf of Local 1205 and that he was not recalled on July 24, 1961, when Scully and Maiorino re- turned to work, only because of Respondent's good-faith belief that Vannoy had the least seniority at the Pine Aire warehouse.' General Manager Seaman testified that Vannoy was laid off under his interpre- tation of the contract with the Independent Union that seniority, although companywide, was in fact determined by the length of em- ployment at the particular warehouse at which each employee worked. We do not need to decide whether this was the correct interpretation of the contract, although we note that Crittenden, the former general manager, was of a different opinion. The General Counsel does not in fact contend that Vannoy's layoff in June was discriminatory, but only that the failure to recall him the following month was prompted by Respondent's opposition to Local 1205. There is no question that Vannoy's membership in and support of Local 1205 was well known to the Respondent. He had signed one ' The Trial Examiner found that Crittenden was not an agent of the Respondent, so that any remarks he may have made to the employees about their union activities was not attributable to it we do not consider it necessary to determine whether Crittenden, despite his retired status, was an agent of Respondent since, as noted above, any further violations of Section 8(a) (1) would only be cumulative. 2 In noting his agreement with the Respondent's contention that Vannoy was not dis- criminatorily treated, the Trial Examiner expressed his opinion as to the excellence of the Respondent's brief to him and stated that he was adopting its entire rationale We regard blanket adoption of any party 's arguments, without independent analysis, as im- proper and we do not adopt the Intermediate Report insofar as it incorporates the Respondent's brief. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the checkoff cards which Local 1205 had shown to the Respond- ent, and Supervisor Berg had on two separate occasions made it plain to him that his support of the Union could have unpleasant con- sequences.' Thereafter, following its failure to recall Vannoy, Re- spondent decided to create an additional warehouseman's position at Riverhead. While Vannoy was actively seeking employment and Respondent was telling him that it had no need for his services, it was advertising for a warehouseman, and, in fact, hired an in- experienced applicant for the job a month later. Although Vannoy had been working at the Pine Aire warehouse, there was no con- tractual prohibition against transfer between warehouses. Transfers were not often made but were possible and, in point of fact, on one occasion Berg threatened Vannoy with a transfer, and on another occasion, as established by uncontroverted testimony not mentioned by the Trial Examiner, told Barker, another warehouseman, that if he wanted a transfer to a warehouse nearer his home, he should "use his imagination" on how to vote in the coming election. The failure in these circumstances to recall Vannoy, or even to consider him for the new position at Riverhead, while a new untrained employee was hired, is, in our opinion, so patently inconsistent with Respondent's contention that it was acting in accordance with the seniority pro- visions of the contract, as to warrant our conclusion that Respond- ent's failure to recall Vannoy was not preclicated on his seniority standing but that Respondent in fact had no intention of ever re- calling him. Under all the circumstances, and particularly Respondent's knowl- edge that Vannoy favored Local 1205; Respondent's unlawful at- tempts to persuade its employees to abandon Local 1205 in favor of the Independent, including its expression of union animus specifically directed toward Vannoy: and its failure, as set forth above, to re- call or consider Vannoy for the new position at Riverhead, we con- clude that Respondent failed to recall Vannoy on and after July 25, 1961, for discriminatory reasons, and that its reliance on Vannoy's purported low seniority was merely a pretext to conceal its true motive. That Scully and Maiorino may also have been union sup- porters who were nevertheless recalled, or that Vannoy may have been less active in the Union's behalf than other employees, does not in these circumstances establish that Respondent's treatment of Van- noy was not discriminatory .4 ' The first of these remarks has been found above to be a violation of Section 8(a) (1). The second remark made a few days later, and characterized by the Trial Examiner as "expressions of annoyance," was also to the effect that he would suffer if he did not change his way of thinking about Local 1205. 4 "The fact that respondent retained some union employees does not exculpate him from the charge of discrimination as to those discharged." N L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 276 (CA. 5). RESERVE SUPPLY CORPORATION OF L.I. TIIE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE 333 The activities of the Respondent set forth above and in the at- tached Intermediate Report, occurring in connection with its opera- tions as described in the Intermediate Report, 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 ob- structing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. We shall also order that Respondent make Fred Vannoy whole for any loss of pay he may have suffered be- cause of Respondent's unlawful and discriminatory actions, by pay- ment to him of the sum of money he would normally have earned as wages from the date of such discrimination to the date of an offer of reinstatement, less his net earnings during such period.' The backpay will be computed on a quarterly basis with interest at the rate of 6 percent per annum in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716.8 Upon the basis of the foregoing and the entire record in this case, we hereby renumber the Trial Examiner's Conclusion of Law No. 3 as No. 4, and make the following additional: CONCLUSION OF LAW 3. By discriminating in regard to the hire and tenure of employ- ment of Fred Vannoy, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 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, Reserve Supply Corporation of L.I., Inc., Mineola, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in, and activities on behalf of, Local 1205, affiliated with the International Brotherhood of Teamsters, 5A.P.W Products Co, Inc, 137 NLRB 25. O For the reasons stated in the dissenting opinion in the Isis case , Members Rodgers and Leedom are convinced that the award of interest in this case exceeds the Board's remedial authority While adhering to such view, for the purposes of this decision they are acceding to the majority Board policy of granting interest on moneys due. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chauffeurs, Warehousemen & Helpers of America, or any other la- bor organization of its employees, by discriminatorily refusing to recall employees from layoff, or by otherwise discriminating against employees in regard to hire, tenure, or other terms or conditions of employment, except as authorized by Section 8(a) (3) of the Act,. as amended. (b) Interrogating employees concerning their membership in, or activities on behalf of, the above-named Union, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) ; threatening employees with transfer to other locations or with other economic reprisals be- cause of their union activities or affiliations; and restoring overtime work in order to induce the employees to cease their affiliation with the above-named Union or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the right to self-organization, to form labor organiza- tions, to join or assist Local 1205, affiliated with the International Brotherhood of Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all such activities, except as authorized in Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Offer to Fred Vannoy immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section above entitled "The Remedy." (b) Post at its offices and warehouses at Mineola, Pine Aire, and Riverhead, Long Island, New York, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent's authorized representative, be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. T 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 " RESERVE SUPPLY CORPORATION OF L.I. 335 (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards , personnel records and reports, and all other records necessary to determine the backpay due under the terms of this Order. (d) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, What steps Respond- ent has taken to comply herewith. 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, as amended , we hereby notify our employees that : WE WILL NOT discourage membership in, and activities on be- half of, Local 1205, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization of our employees, by discrimina- torily refusing to recall any employee from layoff, or by other- wise discriminating against employees in regard to their hire, tenure, or other terms or conditions of employment. WE WILL NOT interrogate our employees concerning their mem- bership in , or activities on behalf of, the above -named Union or any other labor organization, in a manner constituting interfer- cnce, restraint , or coercion in violation of Section 8(a) (1). WE WILL NOT threaten employees with transfer to other loca- tions, or with other economic reprisals , because of their union activities or affiliations. WE WILL NOT restore overtime work in order to induce the em- ployees to cease their affiliation with the above -named Union, or any other labor organization. AVE WILL NOT in any other manner interfere with, restrain, or coerce employees in the right to self-organization, to form labor organizations, to join or assist Local 1205, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehouse- men & Helpers of America , 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 such activities , except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as amended. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Fred Vannoy immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. All our employees are free to become or remain members, or to re- frain from becoming or remaining members, of any labor organiza- tion. We will not discriminate in regard to hire or tenure of employ- ment or any term or condition of employment against any employee because of membership in, or activity on behalf of, any such labor organization. RESERVE SUPPLY CORPORATION OF L.I., INC., Employer. Dated---------------- By------------------------------------- (Iteprosentative ) (Title) NoTE.-We will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his right to full rein- statement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed by Local 1205 , affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union , the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region, issued a complaint against Reserve Supply Corporation of L.I., Inc , herein called Respondent, alleging that it had violated Section 8 (a)(1) and ( 3) of the National Labor Relations Act, as amended (61 Stat 136), herein called the Act. With respect to the unfair labor practices, the com- plaint alleges , in substance, that on or about July 25, 1961, Respondent discharged Fred Vannoy and since the date of the discharge Respondent has failed and refused to reinstate , or offered to reinstate, said employee to his former or substantially equivalent position of employment because he had joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . The complaint also alleges that Respondent by its officers, agents, and supervisors interrogated , coerced, made promises , and granted benefits to its employees to induce them to refrain from becoming or remaining members of Local 1205 thereby interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a) (1) of the Act. By its answer, Respondent denied the commission of any unfair labor practice. A bill of particulars on order of Trial Examiner James F. Foley was granted Respondent on October 16, 1961, and the complaint was amended at the hearing. At the hearing held before Trial Examiner John C. Fischer at New York, New York, on November 13 and 14, 1961 , the General Counsel , Respondent, and the RESERVE SUPPLY CORPORATION OF L.I. 337 Union were represented by counsel. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to file briefs. Since the close of the hearing, briefs have been received from the General Counsel and the Respondent and counsel for the Charging Party which have been duly considered. Upon the entire record in the case, and my observation of the witnesses, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times relevant herein, Respondent has maintained its principal place of business at 135 Roosevelt Avenue, in the city of Mineola, State of New York, and branch offices and places of business at Pine Aire and Riverhead, Long Island, in the county of Suffolk, where it is and has been, at all times material herein, engaged in the sale and distribution of lumber, millwork, and building materials and supplies and related products. During the year 1960, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business, purchased and caused to be transported and delivered to its places of business lumber, millwork, shingles, nails, and other goods and materials valued in excess of $50,000 were transported and delivered to its places of business in interstate commerce directly from States of the United States other than the State in which it is located. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 1205 is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background At the beginning of the hearing the Trial Examiner suggested that all matter possible in the nature of pretrial procedure be so handled and stipulated to, and further advised all parties of their entitlement to file briefs and proposed findings and conclusions with him. All counsel cooperated in the interest of expediting the hearing. From his study of the entire record, the Trial Examiner finds the following recitation by General Counsel McCreery to be a succinct narration of the background facts. Reserve employs 14 warehouse employees who handle the goods and materials at its 3 locations: Pine Aire, Mineola, and Riverhead. There are four warehousemen at Riverhead (Lawlor, Biancannello, Goodale, and Kapfer), three at Pine Aire (Bloxom, Scully, and Peterson), and seven at Mineola (Teiteman, Adams, Nunes, Maiorino, Gibson, Barker, and McCauley). For the past 6 years Reserve warehouse- men have been represented by the Long Island Independent Warehousemen's Union, herein called the independent. This labor organization was formed by and composed entirely of Reserve employees. These warehousemen, during the past year, dis.ussed joining a stronger union. In the month of February 1961, Reserve reduced the number of hours worked by the warehousemen from 8i/2 (the 1/2 hour at overtime) to 8 hours straight time. As a result of this reduction, the members of the Independent, at the next meeting, authorized the members of the executive committee consisting of President Adams, Gibson, Scully, Biancannello, and Peterson to contact Local 1205, IBT, and another union, Teamsters Local 285, to explore the possibility of affiliating with one of them. Thereafter, the executive committee met with the representatives of Local 1205 and in April 1961 prepared a report to the membership. A special membership meeting of the Independent was called for April 28, 1961, for the purpose of hearing the report and acting thereon. On April 25, 1961, Anson Seaman, general manager of Reserve, approached Donald Teiteman, leadman of the Mineola plant, and asked if the employees would stay after work for a meeting. Teiteman agreed to arrange for the men to stay. After working hours Seaman spoke to the men in a group stating that he had heard that there was to be a meeting of the Independent Union to decide whether that union should be dissolved. Seaman pointed out the benefits the men had obtained under the Independent and urged the men to remain with the Independent in the coining vote Seaman then asked for a statement of the men's co npli.ii,t^, Gr,c ances were aired including the reduction of working hours, dating 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from February 1961, and a complaint about job classifications. Seaman listened to the complaints, made no promises, nor did he give any indication that he would do anything to ameliorate these conditions. Fred Adams, president of the Independent, immediately prior to this meeting, was called into Seaman's office Seaman stated he heard that the boys had been talking to the Union. Adams admitted that this was true. Seaman then stated that he did not see what the men had to gain by going union. Adams replied that he did not know what the men would do but that they had spoken to Local 1205. Several hours before the scheduled Independent meeting of April 28, 1961, Seaman went to the Pine Aire plant and spoke to the four em- ployees there. Seaman stated that he thought that before the men did anything they should discuss the question of affiliation thoroughly, and stated that he did not think that affiliation was a wise move He gave no reason for his opinion. At the Independent Union meeting of April 28, 1961, the members voted, by 10 to 4, to dissolve the Independent and to affiliate with Local 1205 As part of the transaction the collective agreement between Reserve and the Independent was as- signed to Local 1205 and each of the 14 men signed a Local 1205 card and received a membership book. At this meeting, Fred Vannoy, who was the treasurer of the Independent welfare fund, had custody of the ballots and he passed them out. He also supervised the signing of the Local 1205 authorization cards and he distributed the Local 1205 membership books. During the following week representatives of Local 1205 approached the employees of Reserve with checkoff slips and solicited signatures. During this period Seaman approached Fred Adams and Teiteman and said he had heard that the Local 1205 representatives were coming around to have the men sign checkoff slips. He told them that they would not want to pay dues to two unions. Also, he informed them that the men in Riverhead had refused to sign checkoff slips. On May 1, by telephone, and on May 2 by letter, Local 1205 demanded recognition for the Company. (Charging Party's Exhibit No. 5.) The men whose authoriza- tions were included were: Vincent Maiorino, Manuel Nunes, Oliver P. Barker, Harold Gibson, Fred Adams, Sylvester McCauley, and Donald J. Teiteman-all from Mineola, and Joseph Scully, Oskar Peterson, and Fred Vannoy, all of Pine Aire. By letter dated May 18, Reserve returned the checkoff authorizations to Local 1205. Reserve stated that since the Company had no contact with that union, it would be illegal for them to deduct dues for them During the week after the vote to dissolve the Independent, Teiteman went into Seaman's office on routine business. As he was leaving the office Seaman said, "This has nothing to do with what is going on now, but you can tell the men that Dee Tatum is going to get all that he is entitled to from the pension fund." Dewitt Tatum was an employee who retired because of failing eyesight. A short discussion concerning the pension plan followed and Seaman then said, "Well, you know, that plan can be cut out anytime." About 2 weeks after April 28, Seaman approached the employees at Mineola and told them that they had made progress under the Independent and were making more money than they had made prior to the formation of the Independent. During this meeting he discussed seasonal work Seaman looked at Maiorino, formerly a mem- ber of Local 282, IBT, and said. "Vinnie, you belonged to a union before, and you know what seasonal work is." Seaman concluded his remarks by saying that if any employee wanted to discuss anything with him he should come into the office and talk. Approximately 2 weeks after the meeting of April 28, 1961, Seaman returned to Pine Aire and met again with the four employees. At that time he asked if there was anything that could be done to alter the decision to affiliate with Local 1205. Scully stated that the situation would never have arisen, in all probability, if the hours had not been reduced in February 1961. Seaman replied he would give the half,hour back. From that date, the half-hour overtime was restored. On June 14 Local 1205 filed its representation petition in Case No 2-RC-11436 (not published in NLRB volumes). On June 19, 1961, Local 1205 began to picket all of the three premises of Reserve. The picket signs stated that Reserve had re- fused to recognize Local 1205. Shortly after the commencement of picketing, Reserve began to reduce the working hours of the employees at Mineola and Pine Aire, at the rate of one-half hour per day until, by June 26, 1961, the men were working a 7-hour day. In late June the employees at Pine Aire and Mineola began to arrange for their vacations in an effort to decrease the size of the work force and reduce the possibility of layoff. Scully and Vannoy from Pine Aire, and Maiormo from Mineola. went on vacation and each was notified that he should not return to work until further notice. RESERVE SUPPLY CORPORATION OF L.I. 339 Picketing at all premises continued until July 12, 1961, when it was discontinued. Business then apparently returned to normal and on July 19, 1961, Scully and Maiorino were recalled to work as of July 24, 1961. Apprised of the recall of Scully and Maiorino, Vannoy asked Supervisor Vernon Berg of Pine Aire about his status and was told that he would soon receive a letter. On July 25, 1961, Vannoy was notified by letter that his services were no longer needed and that he had been ter- minated. Since that date the Pine Aire branch has operated with only three ware- housemen (Bloxom, Peterson, and Scully). However, during this time an office girl was added to the Pine Aire staff. At the time of the work reduction at Pine Aire and Mineola, Fred Adams and Teiteman protested to Seamen the reduction on the ground that the collective agree- ment provided that prior to any reduction of more than one-half hour, all men with less than 1 year of seniority must be laid off. This protest was directed at employee Lawlor (Riverhead) who, though employed in the period 1950 through 1960, had resigned in December 1960 and returned some 2 weeks later. Adams' position was that the break in employment, and in membership in the Independent Union, de- prived Lawlor of his seniority within the meaning of the contract. On August 21, 1961, Reserve hired another employee at Riverhead. Vannoy was not offered this position or any other by Reserve. On October 2, 1961, the Board held an election among Reserves' employees; eight voted for the Teamsters, six for the Independent, and three were challenged. B. The alleged 8(a) (1) violations It ,is axiomatic in labor relations collective bargaining that some unions are more palatable to management than others. Thus it was in the case at bar. Here the employees dissolved their Independent Union, divided its assets among the members, and assigned their contract with its rights and privileges to a Teamsters' Union local. As stated by management, its relations with the Independent have always been "a pleasant relationship, never any trouble, never any strikes, never any complaints." As previously set out, the complaint alleges interrogation of employees, threatening employees with seasonal layoff and other reprisals if they became or remained members of Local 1205, and the granting to employees one- half hour of overtime per day and other benefits to induce them to refrain from becoming or remaining members of the Teamsters' Union. Seaman called Adams into the office and asked him, "Is it true the rumor . I hear the boys in Pine Aire have been talking to the Union?" Adams replied that the rumor was true and told him that the boys in Pine Aire had no more to do with it than anybody else. Respondent Counsel contends that such state- ments are within the ambit of views which being devoid of any threat of reprisal or promises of benefit are permissive free speech under Section 9(c) of the Act. With this contention, the Trial Examiner is not in accord and finds such inter- rogation of the president of the Local Union to be illegal interrogation. The Trial Examiner, however, does not find that Seaman interrogated anyone at the group meetings. He did, however, and admits that he attempted to dissuade Adams from voting for Local 1205 by trying to impress upon him that the Company had always done the best for its employees saying: "I told him I thought they would be making a mistake if they did vote to dissolve the Independent Union." Such expression of views at the group meetings is permissive free speech and not violative of the Act. The vice lies in interrogation without proper safeguards. The alleged threatening of employees with reprisals first arises from Seaman's remarks concerning the company pension plan. Seaman advised warehouseman Teiteman in the office that he could tell the men that disabled employee Dee Tatum, who was being retired because of failing eyesight, would get his pension, but added: "Well, you know, that plan can be cut out any time." The Trial Examiner does not find this to be a threat as contended by General Counsel because Seaman had specifically qualified this observation by stating that his suggestion to tell the men of Dee Tatum's benefit had nothing to do with what was then going on, i.e., the union activity. The inference could well be that the pension feature could be eliminated after the distribution of the Independent's assets and assignment of the Company's existing contract to the Teamsters. General Counsel's contention that Seaman threatened seasonal layoffs arose out of his conversation with the group in Mineola. General Counsel stated that the company practice had been to keep the warehousemen working throughout the winter even when work was slow, and the men did nothing but shovel snow-citing 681-492-63-vol. 140--23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the severity of the winter of 1960-61. He relied on the testimony of Adams, Maiorino, and Teiteman who quoted Seaman as saying that presently they work all winter long, 12 months out of the year, and directing his remarks at Maiorino illustrated: "Vinnie [Maiorino] you know what it is to have a `shape-up' in the wintertime . . you belonged to a big union before and you know how it is in seasonal work." Testimony in this connection was that if he, Seaman, had to pay higher wages, he would have to lay off in the wintertime due to lack of work. Respondent Counsel interpreted this statement as being at most a recitation of how slack periods are handled in some companies with some unions and that Seaman was comparing the favorable existing conditions of employment with Respondent as contrasted with employees who find themselves in a union shop. The Trial Examiner finds that in the context of these group meetings, such a statement was not to be a threat, but a prediction as to how Respondent would be compelled to operate under a big union contract as distinguished from the more personal rela- tionship under the smaller Independent-therefore not violative of the Act. Vannoy testified that Supervisor Vernon Berg told him at the Pine Aire ware- house around the middle of June: "Well, you are going to be one of the first ones to travel to Mineola because of these union activities, talking to delegates, and so forth." Such a transfer from Pine Aire would entail travel of 25 miles. Coming from a supervisor under these circumstances, this remark constitutes a threat that is implicitly violative of the Act. This testimony is uncontradicted. Berg's attitude toward Vannoy is further borne out by his expressions of annoyance with Vannoy during a coffee break at the warehouse. There is considerable testimony brought in by the General Counsel as back- ground evidence, and also to affirmatively establish the allegations of the complaint, as to illegal interrogation and threats charged to former General Manager Crit- tenden. The introduction of this evidence was timely objected to by Respondent Counsel on the grounds that it was not comprehended in the bill of particulars as ordered by Trial Examiner Foley. Also, Respondent resisted the mtroduction of this testimony on the grounds that Crittenden, retired general manager of Re- spondent, was not an agent of the Company. This evidence was admitted in the record for purpose of background coverage, and on the premise that it would be connected up by General Counsel establishing company responsibility. How- ever, this Trial Examiner finds from a study of the record that Crittenden was only a retired employee who had been charitably "retained in an advisory ca- pacity and was not an agent of the Company." As a matter of fact, Crittenden, being in poor health, had been succeeded as general manager by Seaman prior to the union activities here involved. There is no evidence that management at any time took him into consideration -in this, or any other matter of company policy. On the contrary, the record shows that this elderly gentleman came by the warehouse occasionally, stopped in the loading yard, visited in the office, and was given only cursory recognition and a friendly wave by the employees. Ob- servation of Manager Seaman during the trial and as a witness on the stand negates all possibility that Crittenden carried any agency authority once he was replaced. The status of Crittenden, obvious from the testimony, was that of all loyal, re- tired, old former officials. Crittenden did not appear at the hearing because of a coronary condition. Under the circumstances, testimony imputed to him will be disregarded by the Trial Examiner since it was decided that Crittenden had no official status, either in the eyes of the men or the Company. The Company's restoration of the half-hour overtime work previously referred to was, however, violative of Section 8(a)('1) and (3) of the Act. It will be recalled that some 2 weeks after the meeting of April 28 in which the employees had dissolved the Independent and affiliated with the Teamsters, Seaman stated he was sorry about the affiliation and wondered if anything could be done "to alter the decision and to get the situation back the way it was." The employees explained to Seaman in the group meetings that they never would have affiliated with the Teamsters if they had not been cut the half hour. Thus the removal of the cause of their defection was designed and calculated to effect their return to the Independent Union. Seaman's state of mind is evidenced by letters which he wrote to the homes of the various employees, addressed both to the wife and husband. In each letter Seaman enclosed a copy of his letter to Teamster Official Sigmund J. Brovarski. These letters read as follows: MAY 5TH, 1961. DEAR RUTH AND JOE, I want you and your family to know what is going on here I want you to have this copy of a letter I have written to the Teamsters. This situation, I feel is unfortunate. I hope you and your family will give thoughtful consideration to the many years of uninterrupted employment that RESERVE SUPPLY CORPORATION OF L.I. 341 you have had with Reserve Supply, and the possible effects of what is going on. I shall continue to keep each of you informed. Sincerely yours, ANSON SEAMAN, General Manager. MAY 5TH, 1961. DEAR MR. BROVARSKI : We are in receipt of your letter dated May 2nd, 1961. I told you in our phone conversation on May 1st, 1961 , quite explicitly, that I did not believe that your local legally represented a majority of the employees of this company. Furthermore, I told you in our meeting of May 2nd, 1961, that there is cur- rently in effect, a contract between this company and Long Island Independent Warehousemens' Union. I further advised you that we intended to honor our obligations under this contract. I again advise you that we presently recognize Long Island Independent Ware- housemens' Union as the sole, exclusive bargaining agent, for the Production, Maintenance and warehouse employees of this company and we shall continue to recognize the contractual obligations in this instrument which is in effect between this Company and this Union for the term expiring on January 2nd, 1962. We further suggest to you that you read this contract when you are given the opportunity to do so. In the meantime, and until you do so, I want to advise you that there is no provision in the contract for any assignment of the contract, not even by inference. There is no successor and assigns clause in the instru- ment. We shall hold you and the Union you represent responsible for any action that you have taken heretofore or may take in the future, to induce a breach of any contractual relationship between this company and the Long Island Inde- pendent Warehousemens ' Union, or this Company and its constituents. Yours truly, RESERVE SUPPLY CORP. OF L.I., ANSON SEAMAN, General Manager. Although unsuccessful in getting the employees to abandon the Teamsters, the restoration of the half-hour overtime at this stage of the organizing activity consti- tuted illegal interference with employees and discrimination in regard to hire and tenure of employees engaged in the exercise of rights guaranteed in Section 7 of the Act. C. The alleged 8(a) (3) violations The complaint alleged that Respondent Company discharged Fred Vannoy and refused to reinstate him because he joined and assisted Teamster Local 1205. The alleged discriminatory discharge of Vannoy grew out of a layoff at the Pine Aire branch as a result of decrease in business occasioned by Teamsters picketing of all three of Respondent's premises . This picketing was not engaged in by any of Re- spondent's employees but was carried on by outside members of the Teamsters. The picketing began on June 19, 1961, after Respondent on May 5, 1961, refused to rec- ognize Teamsters Local 1205 as the bargaining representative of Respondent's em- ployees. Respondent Manager Seaman took the position that Respondent had a valid and subsisting contract with the Independent Union which could not be abrogated by either party except at a time certain and in accordance with the provisions of the contract. (Under Board rulings, Respondent was in error in this concept.) Nevertheless, within 1 week after the picketing began the Company suffered such loss of business that it was necessary to lay off some employees and on June 26 certain employees were given the option of taking their vacations or being laid off. Among the employees laid off were Vannoy and Scully at Pine Aire and Maiorino at Mineola. Manager Seaman, entirely in good faith , made these layoffs according to his construction of the contract. On July 24 Respondent, by letter, recalled Scully to Pine Aire and Maiorino to Mineola, but Vannoy was advised that he would be recalled when sufficient work was available. In the meantime Respondent had added an office girl to its Pine Aire branch. She took over certain office work and details which had formerly been performed by senior warehouseman Bloxom thereby obviating the necessity of employing four warehousemen . This was a proper exercise of a prerogative of management just as much as would have been a layoff by auto- mation. Manager Seaman predicated the layoffs on a policy of "company seniority, but layoff by branch." Vannoy, supported by union officials, contended that he had 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "barn seniority" over Scully at Pine Aire and companywide seniority over Maiorino and Nunes at Mineola, as well as company seniority over Lawlor at Riverside. There- upon, the Union charged, and the General Counsel complained, that Vannoy's failure to be recalled was discriminatorily motivated by the Respondent because of his union activity. The General Counsel failed to establish such illegal motivation by a preponderance of the evidence. The seniority rule involved in the contract in this case, section 10 entitled "Layoffs and Seniority Rights," reads: (a) The Employer shall have the right to discharge employees for good and sufficient causes but layoffs made necessary by lack of work shall be made strictly according to seniority. (b) In the event that layoffs become necessary by the Employer, a 30-minute unit shall become effective in reducing the hours worked by any employees. The hours shall first be reduced to 71/2 hours, then to 7. (c) Before the 30-minute unit becomes effective, all 'men with 1 year or less seniority shall be,laid off. (d) The purpose of this section 10 is to reduce the workday and the workweek of employees with at least 1 year's seniority before they are laid off. Therefore, should such action in the judgment of the Employer become necessary, then in that event, section 5d concerning 40-hour week and section 6, concerning hours, shall become null and void and without effect until such time as the Employer's business will permit the employment of all employees 40 hours per week. It is apparent that Manager Seaman honestly interpreted the seniority provisions of the contract one way and the union adherents another. There is extensive testi- mony in the record by the employees that Former Manager Crittenden had a different concept or construction of this provision. However, Seaman credibly testified and explained that Vannoy's layoff was consistent with the Company's policy on layoff and its desire to protect the older men. Vannoy's layoff before Scully was consistent. Scully joined the Company on September 20, 1954, and Vannoy on May 5, 1955. Considerable testimony was adduced by the General Counsel purporting to show Vannoy's extraordinary activity in the union meetings but such activity was not a matter of company knowledge. Company knowledge would be necessary to sustain an inference of discrimination. As pointed out by Respondent Counsel in his brief whether Seaman followed established company policy under the collective-bargaining agreement in the layoff of Vannoy is immaterial. Respondent Counsel Schnitzler stated that even assuming a breach of such agree- ment, the Board has no authority to attempt to remedy such a breach. In this connec- tion counsel cited and relied on D.L. & S. Manufacturing Co. Inc., et al., 123 NLRB 1524, 1530. The Trial Examiner adopts the rationale of Counsel Schnitzler that Vannoy was not discriminatorily laid off and denied rehire. In fact, the Trial Ex- aminer adopts the entire rationale in Respondent's excellent 43-page brief and makes it a part of this Intermediate Report by reference. As aptly stated by Counsel Schnitzler: This very testimony militates against the theory that the company laid off out of seniority in order to discriminate. Scully and Maiorino who were recalled from layoff were both as active if not more active on behalf of Local 1205 than Vannoy. Nunes also signed a check-off card for 1205 (R.p. 270). If the company had desired to layoff in order to retaliate for its employees' union ac- tivities, would not Scully, the most active on behalf of 1205, have been the most likely person to be discriminated against? Or Maiorino whom Seaman knew was formerly a member of the Teamsters. The contention that senior employee Lawlor had a broken seniority falls in the same category-an exercise of judgment by Manager Seaman who operated three widely separated plants-between 15 and 25 miles apart. Management was considered that there was no break in his seniority because of recent separation of 2 weeks from the Company, while the union adherents contended that this hiatus gave Vannoy seniority above Lawlor who was one of the Company's oldest employees. This is again a matter of definition, subject to arbitration agreement, and not within the province of the Board under the circumstances of this case. Conclusion The evidence shows that the Company sustained heavy losses as a result of the strike and because of business conditions in the operating area. Management was entirely within its rights in revamping the Pine Aire warehouse for economic reasons. True also is the fact that the Teamsters' picketing was abandoned. It is not before the Trial Examiner for decision, but the possibility exists that the Union was LOCAL 140, BEDDING , CURTAIN & DRAPERY WORKERS 343 motivated to lodge its charge, using Vannoy, in retaliation for the failure of its picket- ing activity. Vannoy even admitted that the reason he questioned his layoff was be- cause of the urging of his friends (?). Ill motives are not solely attributable to management. It is found that the General Counsel has not sustained the burden of proof of the 8(a) (3) allegations in the complaint by a preponderance of the evidence that Vannoy was discriminatorily discharged . It will be recommended that they be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Respondent set forth in section III, above , occurring in connection 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, the Trial Examiner will recommend that it cease and desist therefrom and take affirma- tive action to effectuate the policies of the Act. 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. Local 1205, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local 140, Bedding, Curtain & Drapery Workers Union , United Furniture Workers of America, AFL-CIO and Sealy Greater New York, Inc. and The Waterbury Mattress Company and The Waterbury Mattress Company and Jacob Davis d/b/a Jerome Furniture Co. and Sealy Greater New York, Inc. and The Waterbury Mattress Company and Major Furniture, Inc. Cases Nos. 2-CP-127, 2-CC-678, 2-CC-697, 2-CC-702, and 2-CC- 710. December 28, 1962 DECISION AND ORDER On August 13, 1962, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in unfair labor practices in violation of Section 8(b) (7) (C) and 8(b) (4) (ii) (B) of the Act and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, both the Respondent and the General Counsel filed exceptions to the Intermediate Report together with supporting briefs. 140 NLRB No. 17.