Albert Simon, Inc.

1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election to authorize their inclusion in such a unit. We therefore find the cited case distinguishable and inapposite." In all the circumstances of this case, and considering particularly the long collective-bargaining history between the Employer and the Union in contracting on the basis of the combined unit here involved- a history which began some 6 years before the contract in issue was executed-we find no sufficient basis for holding that the contract unit was inappropriate. Nor do we interpret Section 9(b) (1) as requiring us in this proceeding to hold otherwise.12 As the union-security agreement fully met the requirements of the proviso to Section 8(a) (3), and was one therefore that the Union could lawfully enforce against members of the contract unit, we conclude that the Union did not engage in the unfair labor practices alleged, by attempting to cause the Employer to discharge Stevenson for refusing to comply with the provisions of that agreement. Ac- cordingly, we shall dismiss the complaint. ,ORDER IT IS HEREBY ORDERED that the complaint filed herein be, and it hereby is, dismissed in its entirety. MEMBERS LEEDOM and JENKINS took no part in the consideration of the above Decision and Order. "Nor do we find apposite Monsanto Chemical Co , 108 NLRB 870, and The William J. Burns International Detective Agency, Inc, 134 NLRB 451, upon which the General Counsel also relies. Both cases involved a different provision of the Act, relating to units of both guard and nonguard employees As the Board made clear in the Burns case, the Board is precluded from finding such units are appropriate for any purpose That is not true in the case of a unnt combining professional and nonprofessional employees n Thus we find it 'unnecessary to reach the further question whether Section 10(b) pre- cludes an attack in this proceeding on the validity of the union-shop agreement, which was entered into more than 6 months prior to the filing of the charge in this case Cf. Local Lodge No. 1424, International Association of Machinists , AFL-CIO (Bryan Manufactur- ing Company) v N L R B, 362 U.S. 411. Albert Simon, Inc., Simon Phonographs, Inc., American Photo Machine, Inc. and Local 917, International Brotherhood of- Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica and Joseph Phillip Grant. Cases Nos. 2-CA-9090, 2-CA- 9090-2,1 and 2-CA-9169. October 29, 1963 DECISION AND ORDER On July 16, 1963, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the- 1 The caption in the Intermediate Report inadvertently omitted this case number. 144 NLRB No. 117. ALBERT SIMON, INC., ETC. 1255 Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in -the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Fanning]. 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 General Counsel's exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner 2 2 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: 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 Respondents, their officers, agents, successors, and assigns, shall: INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed on March 7, 1963, by Joseph Phillip Grant, an individual, and on January 28 and February 1, 1963, by Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union or Local 917, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued his complaint, dated March 29, 1963, against Albert Simon, Inc., Simon Phonographs, Inc., and American Photo Machine, Inc., herein collectively called Respondents. With respect to the unfair labor practices, the complaint alleges, in substance, that: (1) Respondents' manager interrogated employees with respect to their union membership and activities, (2) Respondents discharged three named employees on specified dates and thereafter failed and refused to reinstate them because of their union and concerted activities, and (3) by the foregoing conduct Respondents en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, herein called the Act. In its duly filed answer, Respondents denied generally all unfair labor practice allegations. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at New York, New York, on May 6-9, 1963. The General Counsel and the Respond- ents appeared, were represented by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. None of the parties filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Albert Simon, Inc., a New York corporation, is engaged in the city of New York in the sale and distribution of vending machines and amusement games and related 1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products . Simon Phonographs, Inc., a New York corporation , maintains a place of business at the same address in New York City where it is engaged in the operation and servicing of photo machines in variety and chain stores in the New York City metropolitan area. American Photo Machine, Inc., a New York corporation, also maintains its place of business at the same address, and is engaged in the operation and servicing of photo machines in subways , airports , and railroad terminals for Simon Phonographs , Inc. During the year preceding the issuance of the complaint, which period is representative of its annual operations , Albert Simon, Inc., and Simon Phonographs , Inc., each purchased goods and materials, valued in excess of $50,000, which were delivered to its place of business in New York City directly from points located outside the State of New York. Respondents are affiliated businesses with common officers, ownership , and directors and operators who formu- late and administer a common labor policy for the employees of all three companies. Upon the above-admitted facts, I find, as the complaint alleges and the answer does not deny, that Respondents constitute a single integrated business enterprise and that, both separately and collectively, Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the record shows, and I find, that Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues All three corporations are located at the same premises and are herein collectively called the Respondents. Albert Simon is the president and Albert D'Inzillo is the manager of Respondents. D'Inzillo has been associated with Respondents since about 1945 and is the minority stockholder in Simon Phonographs, Inc. Exclusive of office and management personnel, the total work force at Respondents' shop consists of about eight employees. The employees alleged to have been discriminatorily discharged are Harmon Morrison, Otto Schmitt, and Joseph Grant. Morrison had been employed by Simon Phonographs, Inc., since 1952; Schmitt had been employed by American Photo Machine, Inc., since early 1960; and Grant had been employed by Albert Simon, Inc., since July 1962 All three employees were involved in trying to get the Union established at Respondents' shop. All three were summarily discharged, without any prior warning or notice, within a few days after they attended a scheduled organizational meeting with the Union's business agent at the union hall. The issues litigated in this proceeding are (1) whether these three employees were discharged because of their union and concerted activities, as the General Counsel contends, or for cause, as Respondents contend, and (2) whether Manager D'Inzillo unlawfully interrogated employees with respect to their union membership and activities. B. Discrimination in regard to hire and tenure of employment 1. Employee self-organization and the activities of Morrison, Schmitt, and Grant 1 Sometime in 1961, a labor organization identified in the record as the UAW won a Board election as the collective-bargaining representative of Respondents' employees It is conceded that Harmon Morrison was active on behalf of that organization and was a member of its bargaining committee, which met with Respondents to negotiate a collective-bargaining agreement. However, when the parties were unable to agree on the terms of a contract, there was no further activity in connection with the UAW so far as the record discloses. In September 1962, Otto Schmitt decided to contact a labor organization and selected the Union in the yellow pages of the telephone book because it was located near Respondents' plant Schmitt telephoned to the Union's office, inquired about the procedure for organizing, sand was told to come to the union hall. At the union hall Schmitt talked to Union Business Agent Wolchok, signed a union authorization card, and was given some cards to take with him. The next day Schmitt brought the i The findings in this section are based on admissions and credited testimony which is undenied ALBERT SIMON , INC., ETC. 1257 cards into the plant, gave some to Morrison, and was successful in soliciting Joseph Grant to sign one of the cards. Schmitt and Morrison discussed the progress of their organizational efforts with Wolchok by telephone . Subsequently, a meeting among the employees was held at a hotel, which was attended by Morrison , Schmitt, and Grant. At this meeting it was decided that the union drive was not strong enough to warrant further pursuit at that time. Morrison then informed Wolchok by telephone that they felt the employees were not ready for a union yet and to let the matter drop for the time being. The union movement thereupon died down. In early January 1963, some of Respondents ' employees received a wage increase. As a result of Respondents' failure to give all the employees a raise, employee interest in organizing a union was revived . Morrison and Schmitt took the initiative to fur- ther the union movement . They arranged with Wolchok to schedule an organiza- tional meeting of employees at the union hall for Wednesday evening, January 23, and informed the employees at the shop of the scheduled meeting. About four or five of Respondents' employees, including Morrison, Schmitt, and Grant, attended the meeting. The Union was represented by Business Agent Wolchok and Attorney Bush. At this meeting, the employees decided that they had sufficient support to organize a union this time and suggested that Wolchok petition for an election. 2. Manager D'Inzillo is informed about the activities of Morrison, Schmitt, and Grant On January 23 employee Andrew Wright was out on the truck, helping employee Buddy Dickerman with deliveries. Wright had been informed of the union meeting scheduled for that evening . About 5 p.m. Dickerman telephoned to the plant and checked in with D'Inzillo, as was the practice at the end of the day's work. Before hanging up, Dickerman said, "Al, Andy has something to tell you." Wright then spoke to D'Inzillo , and stated that there was something going on in the shop that he thought D'Inzillo should know about . When D'Inzillo asked what it was, Wright replied that "Harmon [Morrison] is trying to start a union again." In response to D'Inzillo's query as to who else was involved, Wright informed him that it was "Harmon, Otto, and your boy Joe." D'Inzillo then remarked that he did not think that Joe would do something like that. Wright then explained that he was telling D'Inzillo about it because he was afraid he might lose his job when D'Inzillo found out about it. D'Inzillo told Wright to forget about it , assuring him that he would not lose his job. 3. The discharge of Morrison President Simon admittedly was not in Respondents' shop on Wednesday, Janu- ary 23. On Thursday morning , January 24, he took a plane to Boston . About 11 or 11:30 a.m., he made a long distance telephone call to his shop and -spoke to D'Inzillo. As a result of D'Inzillo's report, Simon told D'Inzillo that he was coming back that day to discharge Morrison and asked D'Inzillo to see to it that Morrison waited for him. That afternoon Simon took an earlier flight back to New York 2 The findings in this paragraph are based on the credited testimony of Andrew Wright, who was still in Respondents ' employ at the time of his testimony . Wright had signed a union card during the abortive organizational efforts in September 19G2. He later told Morrison to tear it up, which Morrison agreed to do He did not attend the January 23 union meeting Wright testified , under subpena , in a candid and convincing manner, despite the presence in the hearing room of his superior , Manager D 'Inzillo, and was not shaken in any significant respect on cross-examination D'Inzillo testified that he remembered the telephone call from Buddy Dickerman and that Wright then spoke to him He testified that Wright mentioned that there was some talk about trouble in the plant and that "Harmon , Joe, and Otto were causing the trouble," and that D'Inzillo's response was that Wright should "just forget about it" and he would see Wright later. He denied that the word "union" was mentioned in the conversation, and further testified that he did not remember whether this telephone conversation oc- curred on January 23 or 24 or 25 D'Inzillo was a most unimpressive witness and testified in a manner which did not inspire confidence in his veracity. He displayed an extremely poor memory on important matters, was frequently hesitant, vacillating , confused , and contradictory in his testimony, and often changed his testimony . It is difficult to believe that the manager of the plant would not be sufficiently interested to inquire as to the nature of the trouble that three of his employees were reported to be causing in the plant. Upon consideration of all the foregoing, I do not credit D'Inzillo 's testimony to the extent that it conflicts with that of Wright, set forth in the text. 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than he had originally intended, in order to arrive at the plant in time to discharge Morrison. However, when he finally arrived at the plant about 5:15 p.m., Morrison had already left for the day.3 On Friday morning, January 25, Simon called Morrison into his office where the following statements were made during the course of the conversation which ensued: Simon stated that he had been in business for about 30 years and in all that time he had never found it necessary to fire anyone. He then picked up a check which was lying on the desk, handed it to Morrison, and stated, "But as of now you are through." When Morrison asked why he was being fired, Simon replied that he did not want to go into it. He called Morrison an "agitator" and stated that ever since the last affair a year ago Morrison had indicated that he did not care for his job. He added that he was a very busy man, that he had just returned from out of town, that he was having trouble with his Chicago company, that the collections of Simon Phonographs had gone down, that American Photo was not making money, and that besides all these problems, "now this." When Morrison asked what all this had to do with him, Simon again mentioned the affair of a year ago, emphasizing that he just was not going to have it. He pointed out that this was not General Motors but that it was a one-man organization which he himself ran and that he did not mind getting his hands dirty. He stated that nobody was going to make him give a man a raise if he did not think the man deserved it, that he did not want his money going to a "bunch of bums" that cannot work for a living, and that unions as a rule were not interested in the employees but were only interested in a contract. When Morrison asked what made Simon think that Morrison was interested in a union, Simon replied that he did not want to go into it. Morrison asked if there was anything he could do to talk Simon out of it Simon stated that he might feel dif- ferently "maybe in a week or two," adding that maybe he could give Morrison an "independent contract" whereby Morrison could give him a price per machine and get paid when the machine was finished. Simon also told Morrison that if he wished he could speak to D'Inzillo. Morrison left Simon's office and went into D'Inzillo's office. The conversation, which started in D'Inzillo's office, was continued in the basement and lasted several hours. During the course of this conversation, the following statements were made: Morrison asked why he was being discharged. D'Inzillo replied that he thought he was doing Morrison a favor because he would now be free "to devote all your time to union activities." D'Inzillo added that Morrison was not happy with his job, that nobody seemed to like him since the last affair, that he was an "agitator" and caused "a lot of unrest among the employees with this business of pulling them out of the field for an election, sitting up in Mr. Simon's office negotiating worthless contracts." Morrison asked if it had anything to do with Morrison's brother being a union official. D'Inzillo replied, "Maybe, partly . maybe they are egging you on," that maybe Morrison thought they expected it of him and that Morrison owed it to them. Morrison then asked why D'Inzillo was not suspected inasmuch as he also had "a brother in union activity." D'Inzillo replied that he and "his brother were at odds because of the last affair" and that Morrison was forcing D'Inzillo "to act like a boss." Morrison asked what made D'Inzillo think that Morrison was interested in and wanted a union. D'Inzillo replied that he had trusted Morrison one time but it did not do him any good, that he might believe Morrison if he were the only one but that he had heard from two or three people about Morrison belonging to a union and had gotten a "report [about] what was going on," that he did not believe anything Morrison said, and that he just could not understand Morrison's "timing." D'Inzillo added that the only way they could work something out was for Morrison to give some kind of "concrete proof" that he would not be "part of a new union movement " D'Inzillo suggested that maybe Morrison could give Mr Simon a con- tract whereby Morrison would be his own contractor. D'Inzillo further stated that "Mr. Simon isn't going to hold still for this business," that D'Inzillo used to work for International Viewerscope where "some fellows brought the union in," that the ones who brought the Union in are now fired, and that "a boss could always find a reason to fire an employee if he wanted to." He added that "no union has ever secured work for an employee," that "the only person who ever negotiated such a contract is Mr. Reuther," and that "it can't happen here." D'Inzillo further stated that they "definitely would not sign a contract for Simon Phonographs," and that before they would sign a contract they "would move the company to New Jersey," eliminate American Photo altogether, and contract the work out to Mr. Rosen in Philadelphia. The conversation was interrupted when Simon came downstairs to inform D'Inzillo that he was wanted upstairs on the telephone. Morrison at this point called out to 3 The findings in his paragraph are based on Simon's own testimony. ALBERT SIMON, INC., ETC. 1259 Mr. Simon, asking if he still felt the same way. Simon replied that he did but added that "maybe in a couple of weeks that something could be worked out." When Morrison stated that he could not afford to be out of work for 2 weeks, Simon said, "Call me tomorrow ... it might not do you any good, but it certainly can't hurt you." The findings as to the statements made during the conversations with Simon and D'Inzillo are based on the credited testimony of Harmon Morrison, who testified in a positive manner and with the detailed specificity which normally does not accompany a fabrication. Simon testified that he merely told Morrison that this was the first time he was personally firing a man, that he did not want "to go into a lot of details because it would only bring about ill feelings," that he had too many things to do, and that he just wanted to tell him that "he is finished as of now." Simon further testified that Morrison asked for another chance and that he replied there was no room for another chance but that Morrison might come in and talk to him in the future at which time it was possible he might change his mind. He also testified that he told Morrison he could talk to D'Inzillo and that he would then be willing to discuss it further with D'Inzillo if the latter wanted to. He denied that any mention was made of a union or union activity. He admitted that the conversation may have lasted as much as 20 minutes and that he "wouldn't remember every detail" that was said. He also admitted that he may have told Morrison that he had been in business about 30 years and that that was a fact. He further admitted that he might have said that "this is a small company and that we are not General Motors." He testified that "I don't believe there was any mention" of raises He admitted that he "may have said that American Photo was losing money" and that he "may have mentioned" the Chicago company which he owns. While he testified that he did not "believe" that he mentioned that Simon Phonograph collections were down, he admitted that that was a fact He also admitted that it was several hours later when he went down to the basement to call D'Inzillo to the telephone and that Morrison spoke to him again at that time. D'Inzillo admitted that the conversation with Morrison began in his office, continued in the basement, and lasted about 3 hours. He testified that Morrison wanted his job back and had stated that Simon asked him to talk to D'Inzillo to see if D'Inzillo could change Simon's mind, and that D'Inzillo told Morrison it was out of his hands and that he could not do anything about it Outside of Morrison's mentioning that he needed his job because he had lost money in a taproom venture, he had great difficulty remembering anything else that was said during the entire 3 hours In response to leading questions by Respondents' counsel, D'Inzillo stated that Morrison did ask if this was due to his past union activity, that he replied it was not, that Morrison tried to show him that in the past he was on D'Inzillo's side, and that no reference was made to any present union activity. He denied asking Morrison for any guarantees concerning his union activities. He admitted that in 1942 he had worked for International Mutoscope Reel Corporation, that he had a brother who was a union official, that he had known for over a year that Morrison had a brother in the UAW, that he knew Morrison had been active in the UAW drive about a year earlier and had met with management in an attempt to negotiate a contract, and that Morrison had mentioned his brother in the discussion that day. Simon had also ad- mitted that he had on occasion told D'Inzillo "to act more like a boss." Upon con- sideration of the demeanor of the witnesses, the admissions of Simon and D'Inzillo, the fact that neither Simon nor D'Inzillo admittedly gave Morrison any reason for his discharge which was unrelated to union activity, and the fact that I have already found that D'Inzillo was not a credible witness, I do not credit the testimony of Simon and D'Inzillo to the extent that it may conflict with the findings hereinabove detailed. 4. The discharge of Grant and Schmitt While Grant was eating lunch with Andrew Wright on Wednesday noon, Janu- ary 30, D'Inzillo walked in and told Grant, "You are through, pick up your check." When Grant asked why he was being fired, D'Inzillo replied that he did not care to talk about it. Grant then went upstairs to change into his street clothes. When he came out of the men's room, he told D'Inzillo, who was also upstairs, that he thought he had a right to know why he was being fired. D'Inzillo stated, "We just can't use you any more." Grant persisted and asked whether he was being fired because of his activities in affiliating with this Union. When D'Inzillo denied knowing anything about the Union, Grant stated that he knew D'Inzillo "knew about the Union because Buddy told him so." D'Inzillo reiterated that he "did not want to talk about it." He then asked Grant what was the matter with him and whether he did not think D'Inzillo was "treating him right." D'Inzillo then pointed out that he had been very good to Grant in the short time that he had been there, that he had given Grant a loan whenever he asked for it, and that Grant had been given a raise while other employees had not received one. When Grant explained that he was worried about 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being laid off at this time because of his family, D'Inzillo told Grant "to call him in a couple of weeks" and that "maybe after this was cleared up" he could use Grant. Grant left to cash his check and then returned to pay back a $15 loan which D'Inzillo had given him a week earlier.4 D'Inzillo testified that after Grant left, he remained upstairs waiting for Schmitt to return from lunch, and that in the meanwhile he spoke to employee Dominick Del Valle about the discharge of Morrison and Grant. During the conversation, D'Inzillo asked "who else was in that union thing." Del Valle replied that he had nothing to do with it. At that point, Schmitt walked in on them .5 D'Inzillo then came over to Schmitt, stated that he would have to let him go, and handed him his check. Schmitt asked, "Why?" D'Inzillo replied, "I have my reasons " Schmitt asked what the reasons were. D'Inzillo stated that in the first place work was slow and that there was nothing more for him to do. Schmitt asked how that could be inasmuch as he had "just started a machine yesterday and it's not even half finished yet." D'Inzillo then stated that he had "some other reasons." In reply to Schmitt's query as to the nature of the other reasons, D'Inzillo accused Schmitt of always coming late to work when he was on the route 1'/z years ago. When Schmitt remonstrated that that was no reason for letting him go "right now," D'Inzillo added that Schmitt did not get along with his fellow employees. After changing his clothes, Schmitt saw D'Inzillo again and called his attention to the fact that when Schmitt was working on the route they had an understanding that he could come in late if he worked overtime the preceding day. D'Inzillo replied that he had forgotten about that and stated that he would talk to Simon to see if he would take Schmitt back. Schmitt told D'Inzillo to let him know the following Friday when ,Schmitt would return to get the rest of his clothes.6 5. Further reinstatement efforts 7 Pursuant to Simon's suggestion that Morrison call back, as previously found, Mor- rison telephoned to D'Inzillo the following workday, Monday, January 28. D'Inzillo stated that no decision had been made and suggested that Morrison call again the next day. When Morrison called the following day, D'Inzillo told him to call again. On his next call, Morrison spoke to Simon, who said that he had received a letter from the Labor Board. Simon stated, "I see you have other ways of settling this dispute. I'm afraid now that you and I can't work out anything. I will leave it up .to my lawyer." 8 As he had told D'Inzillo before leaving the shop after his discharge, Schmitt returned on Friday to get the rest of his clothes. D'Inzillo, however, said nothing to him about whether Simon would take him back. 6. Respondents' defenses Simon testified that: the Woolworth Company had ordered a machine for delivery ,on the morning of January 24; during his long-distance telephone conversation from Boston about I 1 or 11:30 that morning, he asked D'Inzillo if the Woolworth machine had gone out; D'Inzillo replied that it was just being loaded on the truck, explaining that it had not gone out earlier because Morrison had come in late and that he had had to finish the machine himself; he asked D'Inzillo why he did not fire Morrison; D'Inzillo replied he would like Simon to do it himself; he (Simon) had been angry with Morrison over an accumulation of things and that this incident brought the matter to a head; and that was why he decided to discharge Morrison. Simon further testified that: when he returned to the shop about 5:30 that day, he decided that this was the time to do whatever firing had to be done and to "clean house and get rid * The findings in this paragraph are based on the credited and undisputed testimony of Joseph Grant. c The findings as to what D'Inzillo said to Del Valle are based on the credited testimony of Otto Schmitt who overheard this part of the conversation as he was approaching the room D'Inzillo testified that he did not "recall" asking Del Valle about the "union thing" and that there was nothing specific which lie could remember about his conversa- tion. I do not credit D'Inzillo's testimony to the extent that it may be regarded as a denial of that of Schmitt 6The findings in this paragraph are based on the credited and undisputed testimony of ,Otto Schmitt. 7 The findings in this section are based on the credited and undisputed testimony of Morrison and Schmitt. 8 The record shows that the Union filed a charge with the Board on Morrison 's behalf on Monday, January 28 ALBERT SIMON, INC., ETC. 1261 ,of the troublemakers"; he had been considering cutting down the help in American Photo Machine, which was losing money, in order to reduce expenses; he told D'Inzillo to fire Schmitt because they both agreed that he was the one who was least necessary; and he ordered D'Inzillo to discharge Grant for neglecting his work for several months. D'Inzillo testified that he believed it was in the telephone conversa- tion with Simon on January 24 that "Mr. Simon did state we will get rid of all of them," referring to Morrison, Schmitt, and Grant. I now turn to a more specific treatment of Respondents' defenses with respect to each of the three employees. a. As to Harmon Morrison Morrison had been employed by Respondents since 1952, and worked as a me- chanic. Shortly after the opening of the hearing in this proceeding, counsel for Respondents stated that Morrison "was discharged for a multitude of reasons, amongst which were insubordination . . . abuse of supervision ... acting against the best interests of his employers in that he either competed with them against their own customers on the sale of merchandise, or took the merchandise from his employers and sold [it] to others." Counsel further stated that "he was discharged for those reasons over a long period of time." Later, Respondents' counsel stated that he had left out another reason for Morrison's discharge, which was "smoking in dangerous areas." There is no evidence of any specific acts of insubordination by Morrison. I assume that counsel intended this to describe Morrison's alleged conduct in connection with getting the Woolworth machine ready. D'Inzillo testified that: on January 23 he told Morrison to get the machine ready to leave the first thing the next morning; Morrison arrived about 10:30 or 11 the next morning without having done any work on the machine; he himself had to finish the machine while the trucker was waiting; and the machine did not get out until 11 or 11:30 that morning. According to Morrison's testimony, he was told on the afternoon of January 23 to get a machine ready to go out to Woolworth the following day, without specifying that it had to be in the morning; he worked on the machine that afternoon but had not completed it; and he came in to work the next day about 9:15 a.m. and finished the machine without any help from anyone. I find it unnecessary to resolve this conflict because I am convinced that this incident did not play the important role in the decision to dis- charge Morrison that Respondents would have me believe. It is obvious to me that Morrison was not made aware of the alleged urgency or importance of this particular job. D'Inzillo concededly was not the type of person who tells anyone that some- thing must be done. He admitted that he did not tell Morrison there was any emergency about it. Simon testified that in his telephone conversation from Boston about 11 or 11:30 a in., D'Inzillo told him that Morrison came in late that morning and that the machine was just getting loaded. D'Inzillo testified that he told Simon the machine was not yet ready to go. D'Inzillo also testified at one point that at the time of his telephone conversation with Simon, Morrison had not yet come in that morning; at another point, he testified that Morrison may have been in at the time and he may have mentioned it to Simon; at still another point, he testified that he did not remember whether Morrison had arrived yet at the time of Simon's telephone call. D'Inzillo further testified that when Morrison came in around 10:30 or 11 a.m. on January 24, Morrison started working on the machine and D'Inzillo walked away without saying anything to Morrison. It seems unlikely to me, to say the least, that D'Inzillo would walk away without saying anything to Morrison if the latter's conduct were in fact regarded so inexcusable as to constitute the fuse which ignited his immediate and summary discharge. And it seems even more unlikely to me that Simon and or D'Inzillo would fail to mention this incident to Morrison, when the latter asked why he was being discharged, if the matter had in fact loomed so im- portant in Simon's mind as to cause him to rush back to the plant by an earlier plane in order to effect an immediate discharge of Morrison. Simon further testified that he had advised D'Inzillo to discharge Morrison on a number of occasions during the past 6 or 8 months because of D'Inzillo's reports that Morrison was not producing any work and not coming in on time D'Inzillo testified that for years Morrison had been coming in late and failed to get important parts out on time, and that he had reported Morrison's bad conduct to Simon for the past 5 years. There was no timeclock for the employees to punch and no specific supervisor to report to each morning. Although aware of Morrison's alleged habitual tardiness over such a long period of time, Simon admitted that he did not remember ever having talked to Morrison about it. Nor did D'Inzillo ever give Morrison any outright reprimand or warning. He admitted that, only when the opportunity arose, he would merely say that "it would be nice" if Morrison would come in early, and would sometimes "put it in the form of almost a joke." Re- 1262 DECISIONS or NATIONAL LABOR RELATIONS BOARD spondents' own witness, Isaac Gelman, testified that while Morrison at times was late in getting parts ready for him, he (Gelman) never voiced any dissatisfaction to his employers about it but "at times, not too often," would "grumble" to D'Inzillo. Gelman admitted that Morrison was "a skilled mechanic" a "pretty good photo machine mechanic." With respect to the alleged reason that Morrison either was competing for Re- spondents' customers in the sale of merchandise or took merchandise from Re- spondents to sell to others, evidence was adduced in connection with two incidents. The first incident involved Dave Epstein, the manager of the Market Amusement Company. According to the composite testimony of Epstein and Simon, Epstein told Simon about the middle of December that Morrison had approached Epstein with a story about Simon repossessing a machine from someone in Kingsbury, and that the man had some photo paper left over which Morrison sold to Epstein at a reduced price; and that about the middle of January, Epstein again asked Simon if he had checked out whether the paper belonged to Simon.9 Simon apparently was not sufficiently concerned about Epstein's report to take the trouble to ascertain the nature of the transaction or whether the paper came from Respondents. Despite the two reports by Epstein, Simon admittedly never questioned Morrison nor talked to him about it. The other incident involved Fred Carcone, who was in the amuse- ment arcade and souvenir business. The composite testimony of Carcone and Simon is to the effect that Simon happened to be at Carcone's place when Carcone pointed to a box of photo paper which was tied up and had a thermostat attached on the outside, that Carcone stated he had bought them from Morrison at a bargain, and that Simon told Carcone to hold the paper until Simon had it picked up because he believed it was his. Carcone testified that this took place "the end of January" and that he was "not too familiar with the exact date." Simon admitted that "un- fortunately my memory didn't serve me right . as to the timing of this" with reference to Morrison's discharge. He further admitted that he could not "pinpoint it to the day" it happened and that he was "not positive" whether it was before Morrison's discharge. On the other hand, Morrison testified that: when he left work on Thursday, January 24, he took the box of paper with him to the amusement place where he worked nights, with the intention of delivering it to Carcone later that evening; he worked too late that night and was therefore unable to deliver it that evening but left it at the amusement place; when he was fired the next day, he was "stuck" with the box; it was easier for him to deliver it to Carcone than to return it to the plant; an I he did deliver it to Carcone on the night after his discharge.'° Thus, the only positive and affirmative evidence in the record shows that Simon first learned of this transaction after Morrison's discharge. Indeed, Simon's subsequent conduct points to the same conclusion. Thus, despite the alleged importance and seriousness of this transaction, Simon never mentioned the matter to Morrison either before or after his discharge; instead, he left the box unopened and tied in its original condition, with the thermostat attached, until the instant hearing during which it was produced as evidence and opened for the first time. I am convinced and find that Simon did not learn of this incident until after Morrison's discharge. Yet, counsel for Respondents stated at the instant hearing that Morrison's conduct in sell- ing printing paper to Carcone "is precisely the reason why Harmon was discharged." There is no evidence of any abuse of supervision by Morrison, other than D'Inzillo's general testimony that Morrison's behavior was "very abusive" and that he used "strong and profane" language. Morrison admitted that Simon and D'Inzillo had spoken to him about smoking on the second floor. There was no testimony on this subject matter by any of Respondents' witnesses. Of all the numerous reasons dredged up by Simon and D'Inzillo for the discharge of Morrison, "smoking in dangerous areas" was not one of them. b. As to Otto Schmitt Schmitt was employed since early 1960. During the first 11/2 years he worked outside on a route, servicing the photo machines in the various subway stations. Since about October 1961 he was assigned to work inside the shop, repairing and remodeling machines . In addition, he continued to service a route on the road 9 While Morrison disputed Epstein's version of what he had told Epstein, the only evi- dence which is relevant for the purposes of this issue is the report made to Simon Morrison admitted on rebuttal that he bought some photo paper from a Mr. Klein in Keansbury, which the latter could not use, and that he sold it to Epstein "The issue as to whether Morrison had Respondent 's permission to take and deliver this paper and thermostat to Carcone is treated in "The Remedy" section, infra ALBERT SIMON, INC., ETC. 1263 as a relief man alternately on Saturdays and Sundays and also occasionally to make service calls during the week. Respondent's counsel stated shortly after the opening of the hearing that Schmitt was discharged "because he was insulting and abusive to people in the office; because he showed a lack of ability to do his job necessitating his removal from a job and into another job for a while where we had no room for him. He committed errors which were costly to the Employer. And it also happened that at that particular time we could no longer carry him or Mr. Grant on the payroll because of problems of economics within the company." No evidence was adduced to show that Schmitt "was insulting and abusive to people in the office." All that Simon could point to was an argument that he overheard Schmitt having with the bookkeeper about a month before his discharge, when the bookkeeper questioned a 30-cent claim that Schmitt had put in for carfare to go to the bank to cash his check. Nor was any evidence adduced to show that Schmitt "committed errors which were costly to the Employer." The contention that Schmitt "showed a lack of ability to do his job" which necessitated his transfer inside the shop, admittedly referred to Schmitt's first 1i/2 years when he was em- ployed full time on the route. Yet, there was no denial of Schmitt's testimony that nobody from management ever said anything to him about not being satisfied with his work. On the contrary, D'Inzillo admitted that when he transferred Schmitt to work inside the shop, he told Schmitt that he needed a man to work inside to remodel machines for export to Switzerland and France. Besides, he continued to use Schmitt as a route man on Saturdays and Sundays. D'Inzillo's further testi- mony that Schmitt was left on the payroll although there was nothing for him to do inside the shop since his transfer in October 1961 just strains credulity to the breaking point. As for the economic contention, Respondents failed to offer any of the best available evidence, such as books, records, audits and reports, to support Simon's self-servicing declaration that American Photo was losing money so as to justify a reduction in the work force. On the other hand, D'Inzillo admitted that neither Schmitt nor Grant would have been discharged at that time if it were not for the discharge of Morrison. Moreover, at the time of his discharge, Schmitt was working on a machine which was only half finished. Yet, he was summarily dis- charged in the middle of the day, without any prior warning or notice, and before he had completed fixing the machine. c. As to Joseph Grant Grant had been employed since July 1962 as a porter. He had received two merit raises; one came 2 weeks after he started working, and the other one came after New Year's in 1963. Respondents' counsel stated at the hearing that there was an economic need to lay off two people, that Grant was selected because he "could not get along with employees. He pushed them around. And also be- cause he enjoyed shooting crap on company time, or starting crap games on company time." Later, counsel added "inability to perform" as another reason. Simon testified that Grant did his job and "minded his business" during his first 3 or 4 months but then became a different person; that he was abusive to Matthews, an old employee; that he engaged in crap shooting; and that he was not doing his job. Simon further testified that he relied on reports from D'Inzillo concerning Grant's conduct in the above-described manner, although when he walked into the shop on one occasion he saw Grant and Morrison immediately stop wrestling. He admitted that whenever he happened to tell Grant to do something, Grant did it. D'Inzillo testified that he received complaints from Matthews that Grant used abusive language to him. He further testified that during the last 8 months Grant could never be found on the first floor when he was needed. Matthews testified that Grant failed to follow instructions and used abusive language to him. He admitted, however, that he made a practice of never reporting Grant's conduct to D'Inzillo or to Simon. Grant admitted that he wrestled with Morrison during lunchtime and that he played in dice games. It is obvious that D'Inzillo and Simon were aware that other employees were also parties to the dice games." Despite Grant's alleged shortcomings in the above respects for about 8 months before his discharge, it is significant that he was one of the employees who received a raise in January, and was summarily discharged in the middle of the day, without any prior warning or notice. Moreover, D'Inzillo made no mention of these matters when he discharged Grant. On the contrary, he told Grant, as previously found, that he might be able " Simon admitted that be realized that "they don't hold a crap game with two" em- ployees. Andrew Wright testified that he himself participated in the crap games. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to use him again "after this was cleared up ." And despite counsel's claim of the economic need for laying off another employee in addition to Schmitt , D'Inzillo admitted that Grant was replaced by an employee who was hired 10 days later. He further admitted that neither Grant nor Schmitt would have been discharged at that time, were it not for the discharge of Morrison. 7. Concluding findings Upon consideration of the foregoing and the entire record as a whole, I cannot accept the reasons advanced by Respondents as being the true motivating causes for the discharge of Morrison, Schmitt, and Grant. As previously found, about 5 p.m. on January 23 , employee Wright informed D'Inzillo by telephone that Morrison "is trying to form a union again," and that Schmitt and Grant were also involved. Simon admittedly was not in the shop that day. The first contact that D'Inzillo had with Simon after Wright's report was about 11 a.m. the next morning when Simon telephoned D'Inzillo from Boston. The discharges followed almost immediately after this telephone call. I am convinced and find, contrary to the denials of Simon and D'Inzillo, that during the telephone call from Boston , D'Inzillo informed Simon about Wright's report that Morrison "is trying to form a union again" and that Schmitt and Grant are also involved. Foremost among the factors which lead me to this conclusion are the following. The fact that Simon and D'Inzillo were well aware of the active role which Morrison played in connection with the UAW about a year earlier ; Simon's admission that he had decided later that day that this was the time to "clean house and get rid of the troublemakers"; D'Inzillo's admission that Simon "did state" in the telephone con- versation from Boston that "he will get rid of all of them, " referring to Morrison, Schmitt, and Grant; the hasty and summary manner in which the discharges were almost immediately effected, without any prior warning or notice; the nature and content of the reasons advanced at the hearing for the discharges , as previously detailed; and the statements made by Simon and D'Inzillo at the time of the dis- charges, particularly to Morrison , all as previously found. On top of all the troubles which Simon was having with some of his companies, now this" confronted him-the report about a union being formed again. Decid- ing to "get rid of the troublemakers ," he curtailed his Boston visit and rushed back to the plant for the express purpose of immediately and summarily discharging Morrison, who was regarded by Simon and D'Inzillo as an "agitator." Admittedly, this was the first time that he had ever personally discharged an employee during the 30 years that he had been in business . By his own testimony, he gave Morrison, an employee of 10 years' service, no specific reason for his discharge . A few days later, Schmitt and Grant, the other "troublemakers," were also summarily dis- charged in the middle of the workday, without any prior warning or notice. No reason was given to Grant other than that he could not be used any longer. The numerous reasons asserted at the hearing for the discharges , upon careful scrutiny, reveal themselves to be pretexts and afterthoughts . No evidence was adduced to support some of them; one occurred after the discharge ; others do not stand analysis;. and still others were known to exist and were tolerated anywhere from several months to several years. As D'Inzillo told Morrison at the time of his discharge, "a boss could always find a reason to fire an employee if he wanted to." Apparently, whatever alleged derelictions or work deficiencies may have existed , they "became intolerable only after" Simon became aware that these employees were involved in trying to form a union again.12 When all the foregoing is considered together- with the statements made by Simon and D'Inzillo at the time of the discharges, especially D'Inzillo's suggestion to Morrison that something might be worked out for - Morrison if he were to give some "concrete proof" that he would not be "part of a new union movement" and D'Inzillo's promise that he might be able to use Grant again "after this was cleared up," 13 I find that the discharges were primarily moti- vated by antiunion considerations.'' By such conduct, Respondents discriminated 12 N.L.R.B v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C.A. 3). 13 Also significant is D'Inz,llo 's conduct, after discharging Grant and while waiting for - Schmitt's return from lunch, in interrogating employee Dominick Del Valle concerning- "who else was in that union thing." 11 Under these circumstances , it would be immaterial even if their alleged derelictions and work deficiencies may also have been contributing factors N L R B. v Jamestown Sterling Corp ., 211 F. 2d 725, 726 (CA. 2). ALBERT SIMON, INC., ETC. 1265 in regard to the hire and tenure of employment of Harmon Morrison, Otto Schmitt, and Joseph Grant, thereby discouraging membership in the Union in violation of Section 8 (a) (3) and (1) of the Act. C. Interference, restraint, and coercion I find that Manager D'Inzillo's conduct (1) in interrogating employee Wright on January 23 concerning what other employees were involved with Morrison in trying to start a union again, and (2) in interrogating employee Dominick Del Valle on January 30 concerning "who else was in that union thing," considered in the context of the discriminatory discharges herein found, constitutes interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondents described in section I, 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondents unlawfully discriminated in regard to the hire and tenure of employment of Harmon Morrison, Otto Schmitt, and Joseph Grant, in violation of Section 8(a)(3) and (1) of the Act. At this point, it is necessary to determine whether Morrison's conduct in connection with his delivery of the box of photo paper and thermostat on the day after his discharge to Carcone, as pre- viously found, precluded him from the customary remedy of reinstatement with backpay. Morrison testified that: the photo paper and the thermostat had been ordered from him by Carcone at the regular price; prior to delivery, he told Carcone he would be billed by Respondents for these items; he had received permission from Larry Feigenbaum, who is in charge of Respondents' parts room and does most of the receiving and shipping, to take these items and to deliver them to Carcone; and he was not attempting to sell them on his own. Carcone testified that: it was Morrison who offered to sell him the thermostat and the photo paper at a very reduced rate; he was not present when Morrison delivered the items but had left the cash with his manager; Morrison, however, had not taken the money when he delivered the items and never showed up for the money, and on all prior occasions Carcone had always made his own pickup of any photo paper purchased from Respondents and was subsequently billed for it. Feigenbaum testified that he had never asked Morrison to deliver a package to Carcone, and that Morrison had never told him that he (Morrison) was taking paper to Carcone. While I have previously found that Morrison was a more credible witness than Simon and D'Inzillo, in this instance I cannot credit the testimony of Morrison over that of Carcone and Feigenbaum, both of whom impressed me as being candid and truthful witnesses. Of the three, certainly Carcone appears to be a neutral and impartial witness. Moreover, the probabilities point more strongly in favor of their version and against that of Morrison. For example, Morrison did not deny Feigenbaum's testimony that after Morrison's discharge Morrison telephoned to Feigenbaum at the shop on the pay station, that Morrison asked Feigenbaum if he had billed some paper to Carcone or had made a note of paper being delivered to Carcone, and that Feigenbaum replied that he had not. If Morrison had in fact received prior permission from Feigenbaum to take and deliver the paper to Carcone, there would have been no need for Morrison's subsequent inquiry. Moreover, Morrison admitted that when he delivered the items to Carcone's establishment, the man at the counter stated that he was told by Carcone to pay him $30, which Morrison refused to accept. It does not seem likely that if Morrison had in fact previously told Careone that he would be billed for these items, Carcone would nevertheless have left the cash. Further- more, the amount concededly was much less than the regular price of the items. Upon consideration of all the foregoing, I am convinced and find that Morrison's delivery of the paper and thermostat was unauthorized by, and without the knowl- edge of, anyone from Respondents and that Morrison took the items with the in- 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tention of selling them on his own and keeping the proceeds. I further find that by such conduct, Morrison has forfeited any right to reinstatement and backpay.15 I recommend that Respondents offer to Schmitt and Grant immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by the payment to each of a sum of money equal to that which each normally would have earned as wages from January 30, 1963, the date of their discriminatory ter- mination, to the date of Respondents' offer of reinstatement, less the net earnings of each during such period, with backpay and interest thereon computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716. In view of the nature of Respondent's violations, and because discrimination with respect to hire and tenure of employment, such as in the instant case, "goes to the very heart of the Act," 16 1 am convinced and find that there exists the danger of the commission of similar and other unfair labor practices. Accordingly, I find it necessary in order to effectuate the policies of the Act to recommend that Respond- ents cease and desist from infringing "in any other manner" upon the rights guaran- teed to its employees by Section 7 of the Act, in addition to those rights found to have been violated herein.i7 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act 2. By discriminating with respect to the hire and tenure of employment of Harmon Morrison, Otto Schmitt, and John Grant, thereby discouraging membership in the aforesaid labor organization, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct and by the conduct of Manager D'Inzillo in interrogat- ing employees as to the identity of the other employees who may be interested in or active on behalf of the Union, the Respondents have interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Respondents, Albert Simon, Inc., Simon Phonographs, Inc., and American Photo Machine, Inc., New York, New York, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Local 917, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminatorily discharging or laying off their employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees as to the identity of other employees who may be interested in or active on behalf of a labor organization, in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist the above- named or any other labor organization, to bargain collectively through representa- tives 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 that such right may be affected by an 16Offner Electronics, Inc, 134 NLRB 1064, 1077 16 N L R.B. v. Entwistle iffy Co., 120 F 2d 532, 536 (C.A 4). 17 See, e g., Carolane M. Layton White, d/b/a Layton Oil Company, 128 NLRB 252, 261. ALBERT SIMON, INC., ETC. 1267 agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Otto Schmitt and John Grant immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth above in the section entitled "The Remedy" for any loss of earnings each may have suffered by reason of the discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records pertinent to an analysis of the amount due as backpay. (c) Post at its plant in New York, New York, copies of the attached notice marked "Appendix A." 18 Copies of said notice, to be furnished by the Regional Director for the Second Region (New York, New York), shall, after being duly signed by the Respondents' authorized representative, be posted by the Respondents immediately upon receipt thereof and maintained by them for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Re- spondents have taken to comply herewith.19 18 In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 191n the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommended order 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 or activities on behalf of Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminatorily discharging or laying off our employees, or by discriminating in any other manner in regard to our employees' hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate employees as to the identity of other employees who may be interested in or active on behalf of a labor organization, in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for their 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 member- ship 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. ' WE WILL offer to Otto Schmitt and Joseph Grant immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their senority or other rights and privileges, and make them whole for any loss of earnings each may have suffered as a result of his discharge. , 727-083-64-vol. 144--81 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, remain, or to refrain from becoming or remaining, members of any labor organization. ALBERT SIMON, INC., SIMON PHONOGRAPHS, INC., AMERICAN PHOTO MACHINE, INC., Employers. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-designated employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must be altered, defaced , or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York 22, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Cumberland Shoe Corporation and Boot and Shoe Workers' Union, AFL-CIO. Case No. 26-CA-1469. October 29, 1963 DECISION AND ORDER On June 26, 1963, Trial Examiner Eugene E. Dixon 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 attached, Interme- diate Report. He also found that Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of these allegations of the complaint. Thereafter, Respond- ent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. _ Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. 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 In- termediate Report and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent they are consistent herewith. 1. The Trial Examiner found that Respondent did not violate Sec- tion 8 (a) (5) of the Act. We find merit in the General Counsel's exceptions to this finding. 144 NLRB No. 124.