Marriello Fabrics, Inc.

MARRIELLO FABRICS , INC. AND MICHAEL MARRIELLO 333 Company should also be ordered to cease and desist from discriminating 'against employees for union or concerted activity and from like or related violations of employee rights under the Act. Although the Company violated Section 8(a)(2) and ( 1) by recognizing and dealing with an employer-dominated labor organization , several circumstances tend to mitigate the normal disestablishment remedy. In the first place, the Employer was reluctant to appoint any members to the Committee. Second, the Company promptly canceled their appointments as soon as advised of the illegality inherent in the Committee as then constituted . To be sure, to some extent the present Committee is a continuation of the formerly dominated organization. I can see no good purpose to be served , however, by "disestablishing" this Commit- tee, as the employees would be free to select a new similar Committee. In my judgment, the statutory purposes would be adequately served by making it clear that the Employer may not recognize and deal with a bargaining agent which includes employer appointed members. Finally, I shall recommend the posting of an appropriate notice. For reasons explicated in Melrose Processing Company, 146 NLRB 979, I shall include the reference to the Armed Forces in the order, not in the notice. [Recommended Order omitted from publication.] Marriello Fabrics, Inc. and Michael Marriello and District 65, Retail, Wholesale and Department Store Union , AFL-CIO. Case No. 2-CA-9607. October 30, 1964 DECISION AND ORDER On July 8, 1964, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that the 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 Trial Examiner's De- cision. Thereafter, the Respondents filed exceptions and the General Counsel filed cross exceptions to the Trial Examiner's Decision, 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 [Chairman McCulloch and Mem- bers Leedom and Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, and orders that the Respondent, 149 NLRB No. 36. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marriello Fabrics, Inc., New York, New York, its officers, agents, successors, and assigns, and Respondent Michael Marriello, an indi- vidual, shall take the action set forth in the Trial Examiner's Recom- mended Order with the following additions : Renumber paragraphs 2(c), (d), and (e) as 2 (d), (e), and (f), and add as paragraph 2(c), the following: "Notify John Collins and Joseph Stephanini if presently serving in the Armed Forces of the United States of their right to full re- instatement upon application in accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on October 8, 1963, by District 65, Retail , Wholesale and Department Store Union, AFL-CIO, herein called the Union, 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 December 11, 1963, against Marriello Fabrics, Inc. and Michael Marriello, herein individually called Respondent Corporation and Respondent Marriello or Marriello , and collectively called the Respondents. With respect to the unfair labor practices, the complaint alleges, in substance, that : ( 1) Since October 1, 1963, Respondents have refused, upon request, to recognize and bargain with the Union , which was designated as bargaining representative by a majority of the employees in a specified appro- priate unit; (2) Respondents laid off or discharged two named employees, and thereafter refused to reinstate them, because of their union membership and activi- ties, and in order to undermine and destroy the majority status of the Union; and (3 ) named agents of Respondent Corporation engaged in specified acts of interference, restraint, and coercion ; and (4 ) that by the foregoing conduct, Re- spondents have engaged in unfair labor practices within the meaning of Section 8(a)(1), (3 ), and (5 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. In its duly filed answer, as amended at the hearing, Respondents deny generally all unfair labor practice allegations. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at New York City on March 18 and 19, 1964 . All parties were represented at the hearing, and were given full opportunity to be heard , to examine and cross-ex- amine witnesses, to introduce relevant evidence , and to file briefs . On April 20, 1964, the General Counsel filed a brief, which I have fully considered. Upon the entire record 1 in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT CORPORATION Marriello Fabrics, Inc., a New York corporation , maintains its principal office and place of business in New York, New York , where it is engaged in the wholesale sale and distribution of fabrics and related products . During the past fiscal year, a period representative of its annual operations, Respondent purchased and received at its New York plant materials , valued in excess of $50,000, from 1I hereby note and correct the following obvious errors in the typewritten transcript of testimony: Page 5 , line 25, change "1863" to "1963 11; page 9, line 8, change "bold" to "bolt"; page 19, line 15, change "photographic " to "photostatic" ; page 52 , line 25, change "to" to "do"; page 65, line 17, change "Find" to "Fine"; page 105 , line 5, change "you" to "they"; page 159, line 21, change "Is" to "It" ; page 160 , line 8, change "meand" to "means"; page 166, line 8 , change "shoed" to "showed"; page 180, line 21, change "case" to "cast" , page 182, line 17, change "she say" to "she, Mrs. Marriello, say", page 306 , line 14, change "that" to "than". MARRIELLO FABRICS, INC. AND MICHAEL MARRIELLO 335 points located outside the State of New York; during the same period, Respondent sold and shipped from its New York plant products, valued in excess of $50,000, to points located outside the State of New York. Upon the above admitted facts, I find that said Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, the record shows, and I find, that District 65, Retail , Wholesale and Department Store Union , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues Marriello Fabrics, Inc., is a small, family owned corporation ; all the stock is owned by Michael Marriello and his wife , Anna Marriello . The officers of the corporation are: Michael Marriello,2 president; his wife, Anna, secretary -treasurer; and his brother, Anthony, vice president . All three comprise the board of direc- tors. Mrs. Marriello and Mrs. Coco, a part-time bookkeeper, work in the main office, also referred to as the "front" office. A Mr. Bergman is the general house salesman who spends most of his time on the outside, calling on customers and selling. The remainder of Respondents' work force are employed in the ware- house. During the times material herein , there were four employees and the Mar- riellos' son , Vincent, working in the warehouse. All relevant events concern Respondents ' warehouse employees and occurred during the period from July 24 to October 7, 1963. Self-organization among Respondents' warehouse employees began on July 24 . By September 11, a ma- jority of Respondents' warehouse employees had signed union authorization and membership application cards, paid their initiation fees, and became "book" mem- bers of the Union . On October 1, a union representative informed President Mar- riello of the Union's majority representation claim, and requested a meeting to negotiate a contract . At the end of that workday, Marriello laid off two of the union members , Joseph Stephanini and John Collins . The following day, Respond- ent reinstated them , at the Union's intercession . Stephanini was again laid off on October 4 and there is a dispute as to whether John Collins quit or was terminated about the same time. Respondent failed and refused to meet with the Union to negotiate a contract, despite the Union's repeated requests, and on October 7 filed a representation petition with the Board. The Union filed the unfair labor practice charges in this proceeding on October 8. Thereafter, processing of the Respond- ents' representation petition was suspended. The issues litigated in this proceeding are (1 ) whether during the period from the latter part of July through October 7, President Marriello and his wife en- gaged in acts of interference , restraint, and coercion violative of Section 8 (a) (1) of the Act, including interrogation, threats of reprisals , solicitations of renuncia- tion of union membership , and promises of wage increases and other economic benefits; (2) whether the employment terminations of Joseph Stephanini and John Collins were discriminatorily motivated in violation of Section 8(a)(3) of the Act; and ( 3) whether the failure and refusal to meet and bargain with the Union was violative of Section 8(a) (5) of the Act. B. Sequence of events 3 1. Commencement of employee self-organization On July 24 employees Stephanini and Santos attended a union meeting at union headquarters, where Union Organizer Levine explained how they would benefit with respect to their wages , hours, and working conditions by belonging to the Union. He gave each of them a union authorization and membership application card and asked them to sign it if they wished to have the Union represent them. Levine further explained that in order to become a full-fledged union member they would have to pay a $5 initiation fee, either in lump sum or in in- 2 Hereinafter also referred to as Darriello 'Unless otherwise indicated, the factual findings In this section are based on credible evidence which is either admitted or undenied. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD staliments, and that that would be their only financial obligation until the Union executed a contract with the Company, at which time dues would go into effect. Stephanini and Santos signed the union authorization and membership application cards that evening in Levine's presence. Shortly thereafter, Stephanie and Santos paid their $5 initiation fee, received their union book, and became full fledged union members. Employee John Collins signed a union authorization and membership applica- tion card in Levine's presence on August 21, after Levine had given him a similar explanation about the Union and the possible benefits he could derive from having the' Union represent him. Collins paid his initiation fee and received his union membership book on September 11. 2 President Marriello's immediate response President Marriello admittedly first became aware that any of his employees were interested in the Union sometime in August, when he found on the plant floor Santos' receipt from the Union for the payment of his $5 initiation-fee. Marriello then approached Stephanini, while the latter was working at a packing table in the plant, and told him, "Please, don't cooperate" with anyone who might ask him to join a union because he (Marriello) "can't afford the union." Stephanini re- plied, "Okay." At the end of the workday, Marriello called Santos into his office where, in the presence of Mrs. Marriello, the following conversation occurred: Mr. Marriello showed Santos his union receipt, stated that he had found it on the floor, and asked Santos if he was a member of any union. Santos replied that he was. Marriello then stated that his plant was not big enough to be unionized, and asked Santos if he was happy working for the company. Santos replied in the affirmative. Mar- riello then warned that he could not continue to employ Santos if he belonged to a union, and asked how much the initiation fee was. Santos replied that it was $5. Marriello then stated that he would talk to Santos again the next day, and sent him hone The next day, Marriello spoke to Santos while the latter was at work in the basement, and asked if Santos had thought about their conversation of the preced- ing day Santos stated that he had decided not to continue with the Union. Mar- riello then said that since Santos did not want to continue with the Union he would give Santos the money which he paid to the Union for the initiation fee. Santos accepted the $5 which Marriello gave him. Marriello then reminded Santos of the fact that he would get vacations. When Santos again stated that he would not continue with the Union, Marriello told Santos that he would never be laid off, that the employees were getting periodic wage increases, that Santos should speak to him if he wanted a wage increase, and that Marriello would then help him. The findings in the first paragraph of this section are based on the credit and undenied testimony of Stephanini. The findings in the last two paragraphs of this section are based on the credited testimony of Jose Santos, who testified under subpoena as a witness for the General Counsel. Marriello admitted that he found Santos' union receipt on the floor and that he then asked Santos if he was interested in joining the Union. He testified that Santos replied that one of his friends had talked him into it, that he had signed up and paid his initiation fee, but that he was not interested in the Union. Marriello admitted that he told Santos, "Here is the $5 you laid out for your initiation fee as long as you are not interested." He further admitted that he mentioned vacations during one of the conversations with Santos He denied at any time threatening Santos with being laid off for union activities. Although Mrs Marriello was present in the hearing room throughout the instant hearing, she was not called to testify. Santos impressed me as an adverse and hostile witness. His reluctance to testify in full detail was clearly apparent, and most of his testimony was elicited after frequently having his recollection refreshed by showing him his pretrial affidavit which he admittedly gave to a Board agent in Spanish. He was still employed by Respondents at the time he testified in the presence of Mr. and Mrs. Marriel- lo. Mr. Marriello did"not impress me as a candid and forthright witness, but rather as one who was reluctant to disclose the true facts as he knew them. More- over, in his pretrial affidavit, dated November 1, he stated that he told Santos that "this was not a union place and we didn't care to have our boys join the union because we would not sign a union contract." Finally, Respondents' unexplained failure to call as a witness Mrs. Marriello, who was present during the first conver- sation with Santos, warrants the inference, which I herein make, that her testimony MARRIELLO FABRICS, INC. AND MICHAEL MARRIELLO 337 would have been unfavorable to Respondents . Interstate Circuit, Inc. v. U.S., 306 U.S. 208, 226; Michael Benevento and John Benevento d/b/a M . Benevento Sand & Gravel Co., 131 NLRB 358, 364, enfd . 316 F. 2d 224 (C.A. 1). Upon consideration of all the foregoing , I do not credit Marriello's testimony to the extent that it conflicts with that of Santos. 3. September 30 (Monday) -employees reaffirm union adherence After Marriello's conversation with Santos, the latter spoke to a Spanish em- ployee of another company about the Union. As a result, Santos decided to con- tinue to adhere to the Union. Marriello was away on a business trip during September. About 5:30 p.m. Tuesday, September 30, Union Organizer Levine met at union headquarters with employees Stephanini, Santos, and Collins. Levine told the employees that he would visit the plant the following afternoon to notify Marriello that the Union represented them and wanted to negotiate an agree- ment. He also advised them to return to the union headquarters the following evening so that he could report to them the results of his visit to the plant and they in turn would relate anything that Marriello may have said to them. Levine asked if they were prepared to go ahead with this, and told them that it was a matter of all "sticking together, no one chickening out." All three employees agreed to go ahead with this, and shook hands in a general handclasp as a pledge to each other. 4. October 1 (Tuesday)-Union makes majority representation claim and requests meeting to negotiate agreement About 1:30 p.m. October 1, Levine and Martin Green, a union steward from another company in the area, visited the plant. Levine gave Marriello his business card, told him that the Union represented a majority of his warehouse employees and that the wanted to arrange an appointment at his convenience to negotiate an agreement for the warehouse employees. Marriello admitted that Levine named Santos, Stephanini, and Collins as the warehouse employees who had signed union cards. Marriello's first response was that "these kids are too young to belong to a union." 4 Levine said that age had no bearing on the question, that they were his employees and had a right to be represented, that they were members of the Union, and that he would like to make an appointment to discuss a union contract. Having just returned the preceding day from a 3-week business trip, Marriello replied that he had no idea all these employees, and particularly Stephanini and Collins, were interested in the Union and that he would have to verify it with the boys and let him know. They agreed to meet the following day, Wednesday, October 2, at 3 p.m.5 5. October 1-Marriellos interrogate employees; Marriello threatens reprisals After Levine left, Marriello approached Collins where he was working alone and asked if anyone had spoken to Collins about the Union. When Collins replied in the affirmative, Marriello said, "you shouldn't have joined the Union because it's going to cost me a lot of money and I can't afford it." Marriello then asked Collins how old he was. Collins stated that he was 17 years old. Mariello then said, "I did not know the Union took anybody under 18. The union grabs any- body as long as they get their money." With this parting shot, Marriello walked away. During the same afternoon, Marriello called Stephanini into his back office in the stockroom, and asked him if he had joined the Union. When Stephanini replied in the affirmative, Marriello stated that he was not going to "join" the Union and that he would rather "close up than join the union." Marriello then went to Santos where the latter was working in the basement and told him that Levine had been to the plant and had said that all the boys were in the Union. Marriello told Santos that if the Union came in he would lay off the boys, and asked Santos why he had continued with the Union after he had promised to forget about the Union. Santos replied it was because he had been told he would be discharged if he did not belong to the Union when the Union came 4 Collins was 17 years old ; Stephanini, 19; and Santos, 20. 5 The findinsg in this paragraph are based on a composite of the mutually consistent testimony of Levine and Marriello. 770-076-65-vol. 149-2'3 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in.6 Marriello told Santos not to be a member of the Union, that he, Marriello would not sign a contract with the Union because the Union was a racket and his plant was too small, that he was going to lay off Stephanini and Collins now that the slow season was coming, and that Santos would be laid off if he continued to remain in the Union. When Santos promised not to continue to adhere to the Union, Marriello told him he would never be laid off. During the course of the conversation, Marriello also asked Santos if Billy Turner, the remaining warehouse employee, was a member of the Union. Santos replied that he was not. After Santos went upstairs, Mrs. Marriello asked him if Billy Turner was in the Union. When Santos replied in the negative, she stated that they were going to lay off the two boys, Stephanini and Collins.? 6. October 1-Stephanini and Collins are laid off About quitting time, 5 p.m., of that same day, Marriello laid off Stephanini and Collins. He told Stephanini that business was slowing down so that he was "go- ing to start laying off a few guys" and that "you are the first to go because of this little incident." At quitting time, Marriello called Collins over where they could be alone. He then told Collins that business is slow 6 months of the year and that "since this little incident came up, I have to lay off two of my workers." 7. October 2 (Wednesday morning)-Stephanini and Collins are reinstated On Tuesday evening, as previously agreed upon, Stephanini and Collins met with Union Organizer Levine at the Union hall, told him about their layoff, and related Marriello's conversations with them about the Union. Early the following morning, Wednesday, October 2, Stephanini, Collins, Levine, and Alvin Dicker, an assistant vice president of the Union, went to Marriello's main office. Dicker and Mrs. Marriello were introduced. Dicker said to Marriello, "You know the men have signed up with the Union?" Marriello replied that he had asked them and had been told that they had signed up with the Union. Dick- er then stated that Marriello violated the law by dismissing the two employees, and suggested that they be reinstated and that they sit down and discuss a contract. Marriello replied that he was too small and could not afford to sign a union contract; he asked Dicker why he did not go after the big ones. At this point, Mrs. Marriello stated that they were just a small, family business and could not afford to have a union because it would be too costly, that they hire these boys as youngsters that train them and the reward and thanks they get is that they join the Union; she told them, "Don't bother with us, we are small, go after the real big ones, we're not important to you, leave us alone." Dicker pointed out that most of the firms represented by the Union in this industry were small The Marriellos continued to insist that their financial condition was poor and that they could not keep all the people employed. Dicker explained that the Union's object was not to put him up "against the wall economically" and that "we would make special 9 The record shows that Stephanini told Santos something along that line after Santos had related Marriello's conversation with him on the occasion when Marriello found Santos' union receipt for his initiation fee. 7 The findings in this section are based on the credited testimony of Collins, Stephanini, and Santos. Mrs. Marriello did not testify. Marriello did not deny the content of his conversation with Collins and Stephanini, set forth in the text. He admitted that after Levine left, he asked each one of his warehouse employees, individually, whether he had signed a union card, that Stephanini and Collins answered in the affirmative, and that he then told them that the slow season was coming up and that there would be some layoffs shortly He testified that Santos replied that he was not interested In the Union and promised that he didn't want any part of the Union Marriello denied ever threatening Santos with being laid off for union activity but did not deny having made the other statements to Santos, set forth in the text. In his pretrial affidavit, dated November 1, Marriello stated that be told Stephanini and Collins, after they admitted joining the Union, that he "could not afford to pay the union demands and would have to close down rather than sign a union contract." I have previously credited Santos' testimony over that of Marriello. Upon consideration of all the foregoing, I do not credit Marriello's testimony to the extent that It may conflict with that of Collins, Stephanini, and Santos, as set forth in the text. MARRIELLO FABRICS, INC. AND MICHAEL MARRIELLO 339 arrangements with you based on your economic conditions." When Marriello did not agree, Dicker stated that Marriello had violated the law by firing the em- ployees because they joined the Union and that if he did not reinstate them, the Union would file unfair labor practice charges. Dicker also suggested that Mar- riello contact his attorney and make an appointment to negotiate Marriello de- murred that business was slow and that he had to make some layoffs. Dicker told him to take the men back and when they sat down with his attorney they would work out an agreement which would be fair to everyone and' would not require him to keep an entire work force during a slow period. Marriello then made an appointment to meet the group with his attorney on Friday afternoon, October 4, subject to his attorney confirming the date. He further agreed that in the mean- time he would reinstate Collins and Stephanini and keep them on the job until the end of the week when they would meet and decide what to do. The meeting then adjourned, and Stephanini and Collins returned to work.8 8. October 2 (afternoon)-Marriello interrogates Stephanini, makes promises and threats After lunch that day, Marriello called Stephanini into his back office in the stockroom, and asked if Stephanini knew what he was doing. Stephanini replied in the affirmative. Marriello stated that he was not going to join the Union because he could not afford it, and then asked Stephanini what the Union was offering him. Stephanini replied that "they offered me hospitalization and a salary increase." Marriello asked how much they were offering. Stephanini stated, "$85 a week." 9 Marriello then said, "I'll give you $85 a week." However, Stephanini refused, stating that he felt safer with the Union. Marriello reiterated that he was not going to join the Union under any circumstances; he further stated that he was going to speak to his lawyer, and warned that "I'm going to fight you." 10 9. October 4 (Friday morning)-Marriello's telephone conversation with Union Representative Dicker About 10 or 11 a.m. Friday, October 4, Dicker telephoned to Marriello and asked when and where they were to meet with his attorney. Marriello stated that his at- torney was not available, and then went on to say that he would like to lay off one of the employees. Dicker remonstrated that they had agreed that no one would be laid off pending their meeting with Marriello's attorney and that then the contract would provide for it. Marriello replied, "Look, if I lay this person off, then, I have a girl in the office, I have one fellow in the back, and therefore if we go to an election the Union will not have a majority. It will be very nice and plain. And I don't have to sign a contract with you." Dicker pointed out that Marriello was wrong. Dicker explained, "First of all, I'm not going to agree that people just get fired by you so that the Union will walk away. We don't have a racket. Secondly, the history of this industry is one where we have always had two defined and separate units. One for warehouse employees, and one for office employees. So in either event, you are barking up the wrong tree. Let's not do anything wrong." Dicker further pointed out that he was ready to meet with Marriello's attorney on Saturday or Monday, or Tuesday if he was not available that Friday. When Marriello stated that his attorney was out of town and would not be back till Monday morning, Dicker suggested meeting on Tuesday, Octo- ber 8. Marriello replied, "Well, maybe it will be only one more week, the expense of 6 The findings in this paragraph are based on a composite of the mutually consistent testimony of Levine, Dicker, Stephanini, Collins, and Mr. Marriello, the only witnesses who testified with respect to this meeting 9 At that time, Stephanini was earning $60 a week. 10 the findings in this paragraph are based on the credited testimony of Steplianini. Marriello did not deny having had a conversation of this kind with Stephanini on Wednes- day afternoon He merely denied that he ever promised Stepbanini an increase in salary if he would abandon the Union. I do not credit Marriello's testimony to the extent that it conflicts with that of Stephanini, set forth in the text. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - one additional person for that time is not so terrible. We'll go along" They thereupon agreed to meet at 3 p.m. Tuesday, October 8, again subject to confirma- tion by Marriello's attorney." 10. OCTOBER 4 (FRIDAY AFTERNOON)-MARRIELLO INTERROGATES EMPLOYEES, MAKES PROMISES AND THREATS, AND LAYS OFF STEPHANINI When Stephanini and Collins walked into the stockroom after having had lunch that Friday, Marriello called them over to his desk and asked them it they were going to stay with the Union. When both replied in the affirmative, Marriello stated that it would cost him a lot of money and he could not afford it. Marriello also spoke to Santos and told him that he was going to lay off Collins and Stephanini and that Santos would receive 2 weeks' vacation for Christmas. He again reminded Santos that he was to forget the Union and that he would be laid off if he continued with the Union. Santos promised to forget the Union. About 4 or 4.30 p.m., Marriello took Collins aside in the stockroom where they were alone. Marriello told Collins, "You are a bright boy and I could do some- thing with you." He then asked Collins if he was going to stay with the Union. When Collins replied in the affirmative, Marriello asked why. Collins stated that he did not "want to let Joe [Stephanim] down" and that he intended "to stick with the Union." Marriello then told Collins to "forget about Joe. All Joe wants is hospitalization and benefits. Forget about Joe . . . . Listen, if you quit the Union, I'll give you a hundred dollars now, a raise, and another bonus at Christmas time." When Collins reiterated that he did not want "to let Joe down," Marriello told Collins to go home and talk it over with his father and to come back in or call him Monday morning and give his answer.12 At quitting time, about 5 p in, Marriello handed Stephanini his pay envelope and said, "Well, Joe, it's the end of the week." Stephanini replied, "Yes, I know." Marriello then said, "Please, Joe, don't hurt me . let the Union take care of you. They will give you hospitalization and a raise increase " Stephanini said, "Okay, Mr. Marriello." He then left the plant and had the Union notified that he had been fired.13 11. OCTOBER 4-MARRIELLO CONSULTS HIS ATTORNEY AND CANCELS UNION MEETING Marriello testified as follows: On Friday morning, October 4, he telephoned his attorney and stated that "from what I could gather, the Union did not have a majority of the employees in their favor." The attorney advised him to go to the Labor Board on Monday morning and file a petition for an election and to cancel the meeting with the Union for that afternoon. Later, when Union Organizer Levine telephoned to inquire about the appointment, Marriello told him that the meeting for that afternoon was canceled as it was not necessary. n The findings in this paragraph are based on the credited testimony of Dicker. Marriello did not testify with respect to this conversation, but merely denied agreeing to meet with Dicker and Levine on Tuesday, October S. However, in his pretrial affidavit, dated October 7, Marriello states that "I am supposed to meet tomorrow with Dicker and Levine." He admitted that he read this affidavit and swore to it before he signed it on October 7. Under all the circumstances, I do not credit Marriello's testimony that he was In error when he made that statement. u The findings in the preceding paragraphs are based on the credited testimony of Stephanini, Collins, and Santos Marriello merely denied that he ever offered Collins a wage increase if he abandoned his union activities or that he ever threatened Santos with being laid off for union activities. He admitted mentioning vacations in a conversation with Santos. He testified that he told Santos that, as lie had been employed 1 year, he was entitled to 2 weeks' vacation in accordance with the Company's policy, that- Santos expressed a preference to have his vacation at Christmas time, and that he told Santos that was agreeable to him. I do not credit Marriello's denials and testimony to the extent that they conflict with the findings set forth in the text. 13 The findings in this paragraph are based on the credited testimony of Stepbanini. Marriello did not deny having made the statements set forth in the text. He testified that he told Stephanini that because of the downward business trend he was closing up the downstairs store and bringing Santos upstairs to be the packer for the Company, that he would have to lay Stephanini off, and that he would be glad to call him again if he needed him in the future. I do not credit Marriello's testimony that he so informed Stephanini at that time. ;MARRIELLO -FABRICS,- INC.,AND MICHAEL MARRIELLO 341 12. OCTOBER 7-(MONDAY MORNING ) -COLLINS' TELEPHONE CONVERSATION WITH MARRIELLO During the weekend, Collins discussed Marriello's offer with his father, and decided to stay with the Union. On Monday morning, October 7, Collins left for the plant to tell Marriello about his decision. On his way he changed his mind and decided to telephone instead. About 9 a.m. he telephoned and spoke to Marriello. Collins testified as follows with respect to this telephone conversation: Marriello asked Collins what he was going to do. Collins answered that his father had told him to stay with the Union and that he had decided to stay with the Union. Mar- riello then stated that he was not depriving Collins of the opportunity to make more money and that if Collins wanted to stay with the Union he should "go ahead." Collins said that a store was opening up in his neighborhood and that he thought he might be able to get a job there if the Union did not get him a job. Marriello replied, "That's stupid. Why would you take a job that pays less money than the Union would?" Collins explained that he would take it if the Union did not get him a job. At no time during the conversation did Marriello tell Collins to report to work at the plant or that his job was still available. Marriello testified that about 9 a in , Mrs. Coco, the bookkeeper in the front office, switched the telephone call to him in the back where he was working and that the following conversation occurred: Marriello asked Collins why he had not shown up at the plant, that he had promised Friday afternoon that he would come back to work. Collins replied that he was quitting. Marriello asked, "Why, what happened?" Collins replied, "I got a job in the neighborhood, it pays less money and I'm taking it." Marriello then said, "What do you want to do that for9 You are supposed to be a union man. You are supposed to get $85 a week and all that goes with it. Why don't you go back to the Union, get a union job?" Mar- riello testified that that was the extent of the conversation. Sydell Coco, the part-time bookkeeper in the office, testified, that she listened in on the telephone conversation and overheard the following. Marriello asked Col- lins how come he was not in. Collins replied that he was not coming in any more and that he either had a job or was going to get a job in the neighborhood. Marriello then said, "But your job is here." Collins reiterated that he was not coming in any more At that point Mrs. Coco hung up the telephone. Collins denied that he told Marriello he was quitting He testified that at the October 2 meeting with Marriello and the union representatives, Marriello said that they were being reinstated until Friday, as I have previously found, that Fiiday afternoon Marriello merely told him to give his answer about remaining in the Union on Monday, as previously found, that he therefore figured he was no longer in Marriello's employ, because his decision was to remain with the Union, and that that was why he mentioned the possibility of getting a job in the neighborhood if the Union did not get him one. On cross-examination, Marriello admitted that Collins did state that he wanted to stay with the Union. Even the version of Mrs. Coco, a witness who was obviously friendly to Marriello's position, does not attri- bute the use of the word "quitting" to Collins. Moreover, contrary to Mrs. Coco's version, Marriello did not testify that he told Collins his job was still there. And contrary to Marriello's testimony, Collins had made no promise on Friday that he was coming back to work, as previously found All that Marriello had asked and that Collins had promised on Friday was to give his answer on Monday, in person or by telephone, about remaining with the Union, as previously found Further- more, Mrs. Coco testified that Mrs. Marriello had also listened in on the telephone conversation. Yet, Mrs. Marriello, although available and present in the hearing room, was not called as a witness . Finally, Collins' version is more consistent with the facts herein found and with his subsequent conduct. Upon consideration of all the foregoing and the demeanor of the witnesses, I- credit Collins' ' version of his telephone conversation with Marriello. 13. OCTOBER 7 (MONDAY MORNING)-MARRIELLO FILES REPRESENTATION' PETITION After the telephone conversation with Collins, Marriello went to the Board's Regional Office in New York City and filed a representation petition (Case No. 2-RM-1309). This petition is docketed as having been filed at 10:25 a.m. In this petition, Marriello claimed that there were three employees in the warehouse unit. These three obviously had reference to Santos, Turner, and Marriello's son. 342 DECISIONS OF -NATIONAL LABOR RELATIONS --BOARD -14.' OCTOBER-7' (MONDAY NOON)-COLLINS AND LEVINE MEET WITH'MARRIELLO Meanwhile, Collins called,Levine and reported what had happened, including Marriello's conversation on- Friday afternoon. At Levine's suggestion, Collins and Levine arrived at • Marriello's office about noon. Mrs: Marriello and Mrs. Coco were present, in addition to Mr. Marriello. The following conversation ensued: Levine told Marriello, "We had an understanding that the men would be retained until we met and sat with our attorney and worked things out." Mar- riello replied, "We have no contract here. We have no obligation to these people." Marriello said that Collins had called in this morning and had stated he was quitting, and that Marriello had two witnesses to testify that Collins had quit. Collins interjected and said that he had not quit. Mrs. Marriello said that she and Mrs. Coco were listening to the telephone conversation and heard Collins say he was quitting. Thereupon Levine stated, "What do you mean? All three of you heard this conversation with Collins, your big employee? What is this, a frame of some kind?" Levine then added, "If he was quitting, why did he call the Union to tell me what happened? Why is he down here with me? He didn't quit. The fact is you attempted to bribe him on Friday. You told him you would give him a raise, you would give him a bonus Christmas if he would desert the Union. You told him to think it over the weekend and discuss it with his folks. He did. And he felt that he is sticking with the union." Mrs. Marriello told Levine that they were a small firm and asked him to pick on big companies to organize. Levine asked Marriello why he had selected Collins and Stephanini, adding that "you have a man that came in after them by the name of Turner, you are doing this out of seniority." Marriello retorted, "You don't tell me who to hire and who to fire. There is no union here yet, and I will make those decisions by myself." The Marriellos continued to maintain the position that Collins had left them and that they would not take him back. They said that they had filed a petition for an election with the NLRB and "that will resolve the whole problem." Levine disputed the latter statement, and said that the Union would proceed with charges against the Company because the discharge of Stephanini and Collins were unfair labor practices. Marriello then took out of his pocket Santos' receipt for the Union's initiation fee and said, "See, I have this. He is not paying any more dues to the Union." Marriello accused Levine of "brainwashing" Santos. Levine replied, "You brainwashed Santos. If you have his receipt in your pocket, you must have brainwashed him." Collins was not reinstated.14 C. Interference, restraint, and coercion That Marriello's conduct, previously detailed, is violative of Section 8(a)(1) of the Act, is too well settled to require citation of authority. This conduct consist- ed of soliciting employees Santos, Stephanini , and Collins to withdraw and re- nounce their membership in and support of the Union, of threats of layoffs for their continued adherence to and support of the Union, of threats to close the plant rather than sign a contract with the Union, and of promises of wage increases , bonuses, vacations, and steady employment if they would withdraw from the Union and refrain from further adherence to and support of the Union. Equally coercive and violative of the Act is the conduct of President Mar- riello in interrogating Stephanini , Collins, and Santos concerning their union membership, interests, activities, and support, in the setting and under the cir- cumstances previously detailed, as well as the conduct of Mrs. Marriello, Respond- ent's secretary-treasurer, in interrogating Santos as to the union membership of employee Turner.15 I find that Respondents, by the above-described conduct of the Marriellos, interfered with, restrained, and coerced their employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. D. Discrimination with respect to hire and tenure of employment Joseph Stephanini was employed by Respondent on May 7, 1963, at $44 a week. He resigned on June 21 because his family was planning to move to California. On July 5, Stephanini telephoned to Marriello, advised that he had 14 The findings in this paragraph are based on the mutually consistent testimony of Levine, Collins, Marriello, and Coco, the only witnesses who testified in this subject. 15 See, e g , Johnnie's Poultry Co , 146 NLRB 770, and cases cited therein MARRIELLO FABRICS, INC . AND MICHAEL MARRIELLO 343 decided not to go to California , and asked if he could have his job back. - Mar- riello replied that he would be glad to have -him back and told him to report to work, without making any comment as to how long he would be able to keep him.16 Stephanini returned to work that day and by October 1 was earning $60 a week, having received several raises.' John Collins began working for Respondent on, August 13. He worked in the stockrooms and operated machines which did the ' cutting, doubling, and rolling. Marriello admitted that he was satisfied with Collins' work. Respondents contend that Stephanini and Collins were laid off because of a downward business trend in the fall and winter months and to make room for the return of a serviceman , Francisco Rodriguez . In addition, Respondents contend that Collins voluntarily quit his employment on October 7. I find that the rea-, sons advanced by Respondents were not the true motivating causes for the em- ployment termination of Stephanini and Collins. The record shows that overtime work was performed by employees on Satur- days during each of the 7 weeks for the period from October 1 to November 15, 1963 . ' But even assuming , without deciding , that there would have been an economic need for the layoff of an employee during the fall or winter months, there is no convincing evidence that such action was necessary during the first week in October or that the selection of the employee for layoff was made on a nondiscriminatory basis. Thus, William Turner, who was the last one to be employed, was retained . In addition, the undisputed evidence shows that at the time of the layoffs, Marriello had no information as to when Rodriguez would be released from the service , having had no communication from Rodriguez since September 1962.17 On the other hand, the record convincingly demonstrates that Marriello was discriminatorily motivated in effecting these terminations . Stephanini and Col- lins were laid off Tuesday, October 1 , in the middle of a pay period , without any prior notice or warning, under the following circumstances , as previously found: In August, as soon as Marriello found Santos' union receipt, he coercively inter- rogated him and, with threats of a layoff and promises of economic benefits, induced him to promise to renounce any further interest in and support of the Union. In September, Marriello was away for 3 weeks on a business trip. Tues- day, October 1, Union Organizer Levine told Marriello that the Union represent- ed a majority of the warehouse employees , requested a meeting to negotiate a contract, and informed Marriello that Santos, Stephanini, and Collins had signed union cards. Immediately upon Levine's departure, Marriello coercively interro- gated these employees about the Union , told Collins he should not have joined the Union, told Stephanini that he would rather close the plant than "join up" with the Union, upbraided Santos for continuing with the Union after having promised Marriello to forget about the Union , and told Santos that he was going to lay off Stephanini and Collins and that he would also lay off Santos if he continued to adhere to the Union . When Santos again promised not to continue to adhere to the Union, Marriello in turn promised that Santos would never be laid off. At the end of the workday, Marriello told Collins and Stephan- ini, individually , that business was slowing down, that he would have to lay off some employees, and that they were the first to go "because of this little inci- dent." The only incident to which Marriello could have had reference was-Levine's' visit to the plant and the nature of Levine's conversation with Marriello. Upon consideration of all the foregoing , I find that in selecting Collins and Stephanini for layoff and in laying them off October 1, Marriello was motivated by antiunion considerations in violation of Section 8 (a) (3) and ( 1) of the Act. 19 Marriello at one point testified that in this telephone conversation he told Stephanini that he could not promise how long he would be able to keep him because he had an em- ployee returning from the service in September or October . At another point , Marriello testified that "I am not too sure whether I mentioned at that time that I had a serviceman who had notified us he was coming back in the fall ." Stephanini denied that Marriello made any mention of the possibility of a serviceman returning to work or that he said anything concerning how long he would be able to retain Stephanini . In view of the foregoing, the fact that the undisputed evidence shows that 1llarriello bad received no communication from this serviceman since September 1962 , and did not know when he would be released from the service , and the fact that I have previously found Marriello not to be a credible witness, I do not credit Marriello 's testimony in this respect. 17 Rodriguez was released from the military service on October 11 , 1963, and did not communicate with Marriello until after'his release. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next morning, October 2, at the Union's intercession and Dicker' s accusa- tions that Marriello had violated the law by laying off Collins and Stephanini, Marriello reinstated them, with the understanding that he would keep them on the job until the end of the week when he would meet with his attorney and the union representatives to try to work out some satisfactory arrangements, all as previously found. That afternoon, also as previously found, Marriello again coercively interrogated Stephanini, and offered to meet the Union's promise of a wage increase to $85 a week if he would withdraw his support of and adherence to the Union. When Stephanini refused the offer, stating that he felt safer with the Union, Marriello warned that he would consult his attorney and "I' m going to fight you." In his telephone conversation with Union Representative Dicker Friday morning, October 4, Marriello reported that his attorney could not meet with the group that afternoon, and a new meeting was scheduled for Tuesday, October 8. During this conversation, Marriello informed Dicker that he would like to lay off one of his employees. When Dicker remonstrated that this would be contrary to their previous understanding, Marriello pointed out that "if I lay this person off, then I have a girl in the office, I have one fellow in the back, and therefore if we go to an election the Union will not have a majority." At no time during this conversation did Marriello advise Dicker that he was expecting a serviceman to return to work and that that would necessitate the layoff of one of the working employees. After lunch that day, Marriello called Stephanini and Collins to his desk and asked them if they were going to stay with the Union. When they both replied in the affirmative, Marriello told them that he could not afford it. That afternoon, Marriello told Santos that he was going to lay off Stephanini and Collins, promised Santos 2 weeks' vacation for Christmas, and reminded him that he was to forget the Union or he, too, would be laid off. Santos promised to forget the Union. At the end of the workday, Mar- riello gave Stephanini his pay envelope and said, "Well, Joe, it is the end of the week." He urged Stephanini to let the Union take care of him and not to hurt Marriello, all as previously found. Upon consideration of the foregoing and the entire record as a whole, I am convinced and find that Marriello again laid off Stephanini on Friday, October 4, because of Stephanini's refusal to renounce and abandon the Union, despite Mar- riello's offer to meet the Union's promised wage rate, and in order to dissipate the Union's majority and thereby insure its defeat in a Board election By such conduct, Respondents further violated Section 8(a) (3) and (1) of the Act. Shortly before quitting time that same Friday afternoon, Marriello called Col- lins aside in the stockroom and again asked if he was going to stay with the Union. Collins replied in the affirmative, and, in answer to Marriello's further interrogation, explained that he did not want "to let Joe (Stephanini) down." Marriello urged Collins to forget about Joe, promised him $100, a raise, and a Christmas bonus to "quit the Union," and suggested that he go home and talk it over with his father and either to come in or call in Monday morning to give his answer to Marriello, all as previously found. Monday morning,' October 7, Collins telephoned and informed Marriello that he had decided to stay with the Union, also as previously found. In view of Marriello's statement at the meeting with Dicker Wednesday morning, October 2, that he would reinstate Collins and Stephanini until the end of the week, Friday, the fact that Marriello did not tell Collins at the end of the workday on Friday that Collins could continue to work for the Company but instead gave him the ultimatum of reporting by Monday his decision as to whether he would continue to adhere to the Union, and the fact that Marriello did not advise Collins in the Monday telephone conversation that he could still have his job despite his decision to adhere to the Union, it was reasonable for Collins to conclude, as he credibly testified, that he was no longer in Marriello's employ. It was for that reason, he further credibly testified, that he told Marriello in the Monday telephone conversation that he might be able to get a job in the neighborhood if the Union did not get him one. Upon consideration of all the foregoing and the entire record as a whole, I am convinced and find that Marriello's conduct was tantamount to conditioning Collins' continued employment upon his leaving the Union and constituted a discharge of Collins when the latter decided to adhere to the Union, and that Marriello's claim that Collins had announced in his Monday telephone conversation that he was quitting was advanced as a pretext to cloak his dis- criminatory motivation. Moreover, even assuming that Marriello in good faith, albeit mistakenly, interpreted Collins' conversation as constituting an announce- ment that he was quitting, he nevertheless admittedly refused to take him back MARRIELLO FABRICS, INC. AND MICHAEL MARRIELLO 345 only a few hours later when Collins and Levine pleaded in Marriello's office that Collins had not quit and wanted to be reinstated. Instead, he told Levine that he had filed a petition for an election with the NLRB (a petition which he filed immediately after the telephone conversation with Collins that Monday morn- ing), and "that will resolve the whole question." At the hearing in the instant proceeding, Marriello bluntly admitted his discriminatory motivation for having refused to reemploy Collins when he testified that the real reason was because he felt that the Union wanted Collins back in the plant as a union supporter. I find that Marriello discriminated with respect to the hire and tenure of em- ployment of Collins because of Collins' announced decision to adhere to the Union, despite Marriello's offer of wage increases and bonuses if he would "quit the Union," and in order to dissipate the Union's majority and thereby insure its defeat in a Board election. By such conduct, Respondents violated Section 8(a)(3) and (1) of the Act. E. The refusal to bargain 1. The appropriate unit and the Union's status as exclusive bargaining representative therein The parties stipulated to the appropriateness of the unit alleged in the com- plaint. Accordingly, I find that all warehouse employees of Respondents, em- ployed at their New York City place of business, exclusive of office clerical, salesmen, professional and technical employees, watchmen, guards, and supervi- sors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. The parties stipulated that as of October 1, 1963, the following were employed by Respondents as warehouse employees: Joseph Stephanini, John Collins, Jose Santos, and William Turner. All but Turner had, prior to October 1, signed union membership and authorization cards and paid their initiation fees. None of them had previously revoked his union membership and authorization On the contrary, all three reaffirmed them at the meeting at the union hall on the ,evening of September 30, as previously found. The only other person working in the warehouse was Vincent James Marriello, the son of Mr. and Mrs. Marriello. The Board has held that an individual em- ployed by a corporation wholly owned by his parents, as in the instant case, is not an employee within the meaning of Section 2(3) of the Act. The Colonial Craft Inc., 118 NLRB 913, 914; P. A. Mueller and Sons, Inc., 105 NLRB 552, 553. In any event, Marriello's son did not share the same community of. interests as those admittedly in the unit His salary was approximately twice that of any of the other employees in the unit. An examination of the October payroll summary shows that his salary was included with that of his mother and father in the category "officers' salaries." He was excused from signing in like the other employees and was used by his father to relay messages to the other employees. In his pretrial affidavit, dated November 1, 1963, Michael Marriello stated that his son is not worth his salary but that he has to take care of his son because he has a wife and a child. It is thus apparent that Marriello's son enjoyed a special status, with interests substantially dissimilar from those concededly in the unit. For each of the foregoing reasons, I find that Marriello's,son is not included in the appropriate unit.'5 As the union was designated by a majority of the employees in the appropriate unit, I find that at all times on and after October 1, 1963, the Union has been, and is, the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act.19 18 Respondents' counsel stated at the hearing that he made no claim that Francisco Rodriguez, who was in the military service as of October 1, 1903, should be counted in determining the Union's majority status In any event, the Board has held that the num- ber of employees in the military service are not to be added to the number of employees in the appropriate unit, who are working at the time the Union makes its demahd, for the purpose of determining the Union's status as majority representative Supers¢oeet Feed Company, Incorporated, 62 NLRB 53. 19I find that any subsequent possible numerical loss of majority status is attributable to Respondents' unfair labor practices herein found and therefore must be disregarded Franks Bros. Company v N.L.R.B., 321 U S 702; bfedo Photo Corporation v N.L R B., 321 U S. 678, 687. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The refusal to bargain As previously found, on October 1, 1963, Union Representative Levine in- formed Marriello that the Union represented a majority of his warehouse em- ployees, naming Stephanini, Collins, and Santos as the employees who had signed union cards, and requested an appointment to negotiate a contract. Although appointments to meet with Marriello and his attorney were made, Marriello and his attorney never kept these appointments and Marriello finally refused outright to meet with the union representatives, all as previously found. Instead, also as previously found, after verifying the fact that Stephanini, Collins, and Santos had signed union cards, Marriello engaged in a series of flagrant unfair labor practices designed to dissipate the Union's majority status and to insure its defeat in a Board election , and then filed a petition with the. Board for an election. I find, as is clearly apparent from the facts previously detailed herein, that Marriello's failure and refusal to meet and bargain with the Union was motivated, not by any good-faith doubt of the Union's majority status, but rather by a desire to gain time within which to dissipate the Union's verified majority status and' by a rejection of the collective-bargaining principle. By such con- duct, Respondents violated Section 8(a) (5) and (1) of the Act.20 F. Respondent Marriello Michael Marriello is named as a Respondent in this proceeding. As president of Respondent Corporation, . Marriello acts as an agent thereof, as is admitted in Respondents' answer, and therefore is an "employer" within the meaning of Section 2(2) of the Act. Marriello is therefore properly named as a Respondent and, as such, is liable for the unfair labor practices in which he engaged, as previously found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondents' activities set forth in section III, above, occurring in connection with the operations 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Corporation, Marriello Fabrics, Inc., has en- gaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Inasmuch as Respondent Michael Marriello, as an agent of the Corpo- rate Respondent, was an active participant in the violations herein found, I will recommend that the cease-and-desist provisions of the Order also be directed against him.2' Having found that Respondents violated Section 8(a)(3) and (1) of the Act by unlawfully terminating and refusing to reemploy Joseph Stephanini and John Collins, I will recommend that Respondent Corporation offer them 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 as a result of the discrimination against them, by payment to each of a sum of money equal to that which they normally would have earned as wages from the date of their termination or failure to be reemployed to the date of Respondent's offer of reinstatement or reemployment, less the net earnings of each during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.; Inc., 138 NLRB 716. Having further found that Respondents unlawfully refused to meet and bar- gain with the Union in violation of Section 8(a)(5) and (1) of the Act, I will also recommend that, upon request, Respondent Corporation meet and bargain collectively with the Union as the exclusive representative of all its employees in 20 See, e.g., Johnnie's Poultry Co , 146 NLRB 770, and cases cited therein. 21 Bon Hennings Logging Co., 132 NLRB 97, 98. MARRIELLO FABRICS, INC. AND MICHAEL MARRIELLO 347, the appropriate unit with respect to rates of-pay, wages, hours, and other terms and conditions of employment, and if -an undei-standing is reached, embody such understanding in a signed agreement. Because of the character and scope of the unfair labor practices found to have been engaged. by Respondents, I will recommend that they cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act.22 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. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All warehouse employees employed at Respondent Corporation's place of business in New York, New York, -exclusive of office -clerical, -salesmen, -profes- sional and technical employees, watchmen, guards, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for purposes • of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since August 21, 1963, the above-named Union has been, and still is, the exclusive representative of all the employees within the aforesaid appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section 9(a) of the Act 4. By discriminating with respect to the hire and tenure of employment of Joseph Stephanini and John Collins, thereby discouraging membership in the above- named 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. 5. By refusing to meet and bargain with the above-named Union as the exclu- sive representative of the employees in the aforestated appropriate unit, as detailed in section III E, supra, the Respondents have engaged and are engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the foregoing conduct; by the conduct of President Marriello in interro- gating employees concerning their union membership, activities, interest, and support, in soliciting employees to withdraw or renounce their Union membership and support, in threatening employees with layoffs for continued adherence to, and support of, the Union, in threatening to close the plant rather than sign a contract with the Union, in promising employees wage increases, bonuses, vaca- tions, and steady employment if they would withdraw their union membership and adherence and refrain from further adherence and support of the Union; and by the conduct of Secretary-Treasurer Marriello in interrogating an employee con- cerning the union interest and support of a fellow employee, all as previously detailed, the Respondents have engaged and are engaging in unfair labor prac- tices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and' pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that: 1. Respondent Marriello Fabrics, Inc, New York, New York, its officers, agents, successors, assigns, and Respondent Michael Marriello, an individual, shall cease and desist from: (a) Discouraging membership in or activities on behalf of District 65, Retail, Wholesale and-Department Store Union, AFL-CIO, or any other labor organiza- tion, by discriminatorily laying off, discharging, or refusing to reemploy, any employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (b) Refusing to meet and bargain collectively with the above-named labor organization as the exclusive representative of the employees of Mariello Fabrics, Inc., in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: 21 N L.R B v Entwistle Mfg Co., 120 F 2d 532, 536 (C.A. 4) ; Columbine Beverage Company, 138 NLRB 1297, 1301. 348 ' DECISIONS ` OF 'NATIONAL LABOR RELATIONS- BOARD r "All warehouse employees employed at its place of business in New York, New York; exclusive of office clerical, salesmen,' professional and technical employees, watchmen, guards, and supervisors as defined in Section 2 (11) of the Act. "(c) Interrogating employees as to their own and other employees' union mem- bership, activities interest and support, in a manner constituting interference, restraint, or coercion within the meaning of Section.8 (a),(1) of the Act. (d) Soliciting employees to withdraw or renounce their membership in and 'support of the above-named or any other labor organization. (e) Threatening to close the plant rather than sign a contract with the above named or any other labor organization, and threatening employees with layoffs or other economic reprisals for continued adherence to, and support of, the above named or any other labor organization. (f) Promising employees steady employment, wage increases, bonuses, vaca- tions, or other economic benefits, as inducements to withdraw their union mem- bership and adherence and to refrain from further adherence and support of the above-named or any other labor organization. (g) In any other manner, interfering with, restraining, or coercing em- ployees 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 the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8(a) (3) of the Act. 2. Respondent Marriello Fabrics, Inc., its officers, agents, successors, and as- signs, shall take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, meet and bargain collectively with the above-named labor organization as the exclusive representative of all the employees in the above-des- cribed appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agree- ment any understanding reached. (b) Offer to Joseph Stephanini and John Collins immediate and full reinstate- ment 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 as a result of the discrimination practiced against them, in the manner set forth in the section of this decision entitled "The Remedy." (c) Preserve and, upon request, make available to the board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to deter- mine the amount due as backpay. (d) Post at its place of business in New York, New York, copies of the attached notice marked "Appendix A." 23 Copies of said notice to be furnished by the Regional Director for Region 2 (New York, New York), shall, after being duly signed by authorized representatives of the Respondents, be posted by Respondent Marriello Fabrics, Inc., immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Decision and Recommended Order, what steps the Respondents have taken to comply therewith.24 "In the event that this Recommended Order shall 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 that the Board's Order is 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 " m In the event that this Recommended Order is 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." MARRIELLO FABRICS, INC. AND MICHAEL MARRIELLO 349 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of District 65, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, by discriminatorily laying off, discharging, or refusing to reemploy, any employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment WE WILL NOT interrogate employees as to their own and other employees' union membership, activities, interest and support, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT solicit employees to withdraw or renounce their membership in and support of the above named or any other labor organization. WE WILL NOT threaten to close the plant rather than sign a contract with the above-named or any other labor organization, and We Will Not threaten employees with layoffs or other economic reprisals for continued adherence to and support of the above named or any other labor organization. WE WILL NOT promise employees steady employment, wage increases, bonuses, vacations, or other economic benefits as inducements to withdraw their union membership and adherence and to refrain from further adherence and support of the above-named or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, loin, or assist the above-named or any other labor organization, to bargain collec- tively through representatives of their own choosing, 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 right may be affected by the provisos in Section 8 (a) (3) of the Act. Marriello Fabrics, Inc, will offer to Joseph Stephanini and John Collins immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and will make them whole for any loss of earnings suffered as a result of the discrimination against them. Marriello Fabrics, Inc., will, upon request, meet and bargain collectively with District 65, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of all the employees in the following appro- priate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agree- ment any understanding reached. The bargaining unit is: All warehouse employees employed at our place of business in New York, New York, exclusive of office clerical, salesmen, professional and technical employees; watchmen, guards, and supervisors as defined in Section 2 (11) of the Act. All employees of Marriello Fabrics, Inc., are free to become, remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. MARRIELLO FABRICS, INC., Employer. Dated------------------- By----------------------------------------- (Representative) (Title) Dated------------------- By------------------------------------------- (MICHAEL MARIIELLO) NOTE.-In the event any of the above-named employees are presently serving in the Armed Forces of the United States we will notify them 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. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any questions concerning this notice or compliance with its provisions. C. L. Frank, Inc. and Chauffeurs, Teamsters and Helpers Local Union 215, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 25-CA-1863. October 30, 1964 DECISION AND ORDER On July 15, 1964, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that 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 Trial Examiner's De- cision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal of those allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, 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 this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board adopts as its Order, the Order recommended by the Trial Examiner and orders that Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case commenced with a charge filed on December 12, 1963 ,1 by the Charging Party, hereinafter sometimes referred to as the Union . Thereafter the 1 Dates hereinafter refer to the year 1963 unless otherwise indicated. 149 NLRB No. 32.