Drapery Manufacturing Co., Inc.

DRAPERY MFG. CO. 805 Drapery Manufacturing Co., Inc. and American White Goods Company and Paint, Varnish and Lacquer Makers Local No. 754 , Kansas City, Mis- souri, affiliated with Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO. Case 17-CA-2899 July 19,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On February 14, 1967, Trial Examiner Herzel H. E. Plaine issued his Decision in the above-enti- tled proceeding, finding that Respondents Drapery Manufacturing Co., Inc., and American White Goods Company had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and that Respondent Drapery Manufacturing Co., Inc., take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Decision and a supporting brief, the Charging Party filed excep- tions, and the Respondents filed an answering brief to the said exceptions of the Charging Party. More recently, based on allegedly changed circumstances concerning Respondent Drapery, the General Counsel has filed a motion to reopen and remand to the Trial Examiner, and the Respondents have filed an opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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, as well as the said motion and opposition thereto, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner,' as amended herein with respect to remedy. The motion of the General Counsel to reopen and remand is hereby denied.2 We agree with the Trial Examiner that the two Respondents are a single, integrated employer who have jointly and severally violated Section 8(a)(1), (3), and (5) of the Act as established by the record in this proceeding. However, the Trial Examiner directed to both Respondents only the restraining portion of his Recommended Order and limited the affirmative portion -including reinstatement of dis- criminatee Newton, backpay to Newton and other discriminatees, and an order to bargain on request with the Union and embody any understanding reached in a signed agreement-to Respondent Drapery. The theory of the Trial Examiner was that the bargaining contract sought by the Charging Union in its attempts to bargain with the Respond- ents would have been limited to the employees of Respondent Drapery. In our opinion this limitation of affirmative responsibility to only one of the Respondents results in an order entirely inadequate to remedy the joint unfair labor practices which have been committed. Accordingly we shall amend the order so that it will be applicable to Respondent American White Goods Company as well as to Respondent Drapery Manufacturing Co., Inc.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified herein, and hereby orders that the Respondents Drapery Manufacturing Co., Inc., and American White Goods Company, both of Kansas City, Mis- souri, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order as amended. 1. Reword paragraph 1(a), to read as follows; "(a) Refusing to recognize and, upon request, to bargain with Local No. 754 as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment." 1 Member Zagona concurs in the finding that Respondents refused to bargain in violation of Sec 8(a)(5) of the Act He does not, however, adopt the Trial Examiner's reliance on H & W Construction Company, Inc., 161 NLRB 852, but relies instead, in view of Respondents' inde- pendent violations of Section 8(a)(1) and (3), on Joy Silk Mills, Inc., 85 NLRB 1263. Z In its motion the General Counsel adverts to the Respondents ' alleged closing down of the "Drapery plant" and terminating the employees at that plant on April 20, 1967, followed by a union charge alleging viola- tions of 8(a)(1) and (5) based on the plant closing, and the issuance of a complaint thereon The motion requests the Board to issue an order reopening the record herein and remanding the case to the Trial Examiner for the purpose of receiving further evidence of the changed conditions at the Drapery plant and to reconsider the Recommended Order herein. The General Counsel's motion further requests a consolidation of the instant proceeding with the complaint recently issued, which complaint the 166 NLRB No. 96 General Counsel has already consolidated with an additional complaint involving a July 1967 incident. Inasmuch as we are, in this Decision, amending the Trial Examiner' s Recommended Order to remedy fully the unfair practices litigated in this proceeding , we see no purpose in reopen- ing the record herein for additional evidence , or in consolidating this proceeding with those now pending in Cases 17-CA-3250 and 17-CA-2963. 3 The exceptions of the Charging Party concern the Trial Examiner's failure to recommend a monetary remedy to make the employees whole for losses they may have suffered as a result of the Respondents ' unlawful refusal to bargain, the measure of such damages to be determined in a sup- plementary proceeding. We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases involving violations of Sec. 8(a)(5), and therefore find no merit in the Charging Par- ty's exceptions. See Monroe Auto Equipment Company, Hartwell Divi- sion, 164 NLRB 1051. 308-926 0-70-52 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. In paragraph 1(b) delete the words: "of Drapery." 3. In paragraph 2 change "Respondent Drapery" to "Respondents." 4. Reword paragraph 2(f) to read as follows: "(f) Mail to each of the employees at the Drapery plant and post at said plant premises and at the premises of American White Goods in Kan- sas City, Missouri, copies of the attached notice marked "Appendix". Copies of said notice, on forms provided by the Regional Director for Region 17 (Kansas City, Missouri), after being duly signed by an authorized representative or representatives of the Respondents, shall be mailed as aforesaid and posted by the Respondents immediately upon receipt thereof, and be 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 Respondents to insure that said notices are not altered, defaced, or covered by any other material." 5. In paragraph 2(g) change "Respondent has" to "Respondents have." 6. Add to the notice which is marked "Appen- dix," below the signature of Drapery Manufactur- ing Co., Inc., additional signature lines for Amer- ican White Goods Company. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERZEL H. E. PLAINE, Trial Examiner: This proceed- ing was initiated, pursuant to Section 10(b) of the Na- tional Labor Relations Act (referred to as the Act), upon a charge by the Union (the Charging Party) filed April 20, 1966, amended April 22 and May 24, and complaint issued June 15, 1966. The complaint alleged that the Respondents (referred to as Drapery and American, respectively) constituted a single employer for the purposes of this proceeding and had engaged in unfair labor practices, violating Sections 8(a)(1), (3), and (5) of the Act, by refusing to recognize and bargain collectively with the Union as the exclusive bargaining representative of the unit of Drapery's produc- tion and installation employees, and by engaging in coer- cive conduct against the employees of Drapery and discharging them from employment because of their union activities. The Respondents entered general deni- als. On due notice, the matter was heard before me in Kan- sas City, Missouri, on July 19, 1966. The General Coun- sel and Respondent Drapery have filed briefs. Respond- ent American, though it participated vigorously in the hearing, filed no brief. Upon the entire record of the case and from my obser- vation of the witnesses, I make the following:' FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS, AND THE LABOR ORGANIZATION INVOLVED The Respondents are Missouri corporations with their principal places of business located in Kansas City, Mis- souri. Respondent American is in the business of selling linens, drapes, bedding, furniture, and related merchan- dise to hotels, motels, hospitals, and public institutions.2 Respondent Drapery is in the business of manufactur- ing draperies, to specifications and from materials sup- plied to it, and installing draperies. At the time in issue the bulk of Drapery's output was on orders from and for American and it was part of Drapery's function to make direct delivery to and installation for American's customers when installation was required. The same men who are the officers, directors, and shareholders of American are the officers, directors, and shareholders of Drapery with the exception of one man, who owns one-third of the shares of stock of Drapery and is an inactive officeholder of Drapery. Drapery shares common administrative facilities with American, and as a practical matter is controlled and operated as a drapery manufacturing and installation service arm or division of American, maintaining, however, separate corporate identity for purposes of billing, bookkeeping, and cor- porate accounting. Within the meaning of the Act, the Respondents are integrated enterprises constituting a sin- gle employer.' During the past calendar year, which is representative of the times material herein, the Respondents in the con- duct of their business operations caused to be manufac- tured, sold, or distributed merchandise valued in excess of $500,000, of which more than $50,000 worth was shipped directly to customers in States other than Mis- souri.4 The Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Bcckground and Issues American is principally in the business of selling at wholesale linen supplies and furnishings to hotels, hospitals, and public institutions. The shares of stock of American are owned equally by two brothers, Elmer and Edward Price, except for a "qualifying" 1 percent owned by the attorney for the Company. The Price brothers are actively engaged in the day-to-day business of American. Prior to 1962, whenever draperies (also called drapes) were involved in American's bids and contracts, Amer- ' To correct certain inadvertent errors in transcription which appear in the transcript of the record, I order the following corrections* p. 99, 1. 14- "Newton" should be "Earley"; p. 104,11.6 and 8 - "April 15" should be "April 19." 2 According to President Elmer Price, American 's business is 99 per- cent wholesale 3 The details supporting this finding are discussed infra. 4 Viewed separately , American has done about a $3 million business annually, of which over $500,000 has been out -of-State by direct outflow. Drapery has averaged under $25,000 annually (for the year ending November 30, 1966, it was about $ 18,000) of which less than $10,000 has been the annual out-of-State average by direct outflow (Testimony of Elmer Price, president of American and vice president of Drapery, and stipulation G. C. Exh. 2.) DRAPERY MFG. CO. ican looked for its needs to any one of a number of com- panies who made and installed draperies. American had large requirements for draperies and in late 1961 or early 1962 the Price brothers were approached to buy out Drapery, one of the drapery manufacturing and installing companies in Kansas City. They discussed the opportuni- ty with a Louis Lesky, who was in the fabrics business, and on the basis that Lesky would give part of his time to run the business, and their assurances to Lesky that American would provide the business, the two Price brothers and Lesky bought Drapery, each acquiring a one-third stock interest and each becoming an officer of the Company. Lesky devoted part of his time to running Drapery until 1964 when, having disposed of his fabric stores, he went into a garment business that left him no time for Drapery. Thereafter the daily supervision of Drapery was delegated by the Price brothers to a succession of managers. The function of the manager in charge, at the time union activities commenced in April 1966, was to work with the interior decorators of American in measur- ing the jobs for draperies, assisting them in preparing figures, assuring delivery of their orders, and where in- stallation was called for, installing the finished drapes on the premises of the ultimate customers. The manager had general charge of the shop, but immediate surpervision of the women who prepared the drapes at Drapery's shop devolved largely on a woman supervisor who worked along with the women. The books and records of Drapery were kept at American by an employee of American. The work complement at Drapery, in addition to the manager and supervisor of the women, comprised a half dozen women who cut and finished drapes and a male assistant for drapery installations. In April 1966, the employees of Drapery asked the Union to organize and represent them and on April 11 all seven employees signed union authorization cards. The Union sent Drapery a written demand for recognition and bargaining, requesting a reply in 5 days. The demand was received April 13, but failing a reply, the employees went on a protest strike April 19. The strike was discussed that day by the union representative with Elmer Price, pres- ident of American and vice president of Drapery, who referred the Union to American's lawyer. The employees returned to work the following day. In a meeting with them that day the manager suggested they forget the Union in return for certain benefits or the shop would be closed. The employees went on a protest strike again the next day, April 21. When they returned to work the following morning, Friday, April 22, they were paid off and discharged. In the ensuing several days, the em- ployees picketed Drapery, and then, except for the drapery installer, were recalled to work commencing April 28 on the promise if the Board found Drapery to be under its jurisdiction, the Company would bargain with the union designated by the employees. Meantime the Union had filed unfair labor practice charges with the Board against Drapery on April 20 and 22, and then amended the charges on May 24 to name both American and Drapery as the employer. Following issuance of the Board complaint against both American and Drapery on June 15, the employees of Drapery went on strike a third time to obtain union recognition and a s Testimony of President Elmer Price, and stipulation, G. C. Exh. 2. Vice President Edward Pnce did not testify in this proceeding, nor did Secretary Koenigsdorf who took an active part in the hearing as Counsel 807 contract, picketing both American and Drapery, and remained away from work for about a week without suc- ceeding in the objective. The General Counsel concedes that Drapery by itself does not do enough dollar volume of business to qualify as a covered employer under the Board's minimum dollar standards for assuming jurisdiction. He contends, how- ever, that American and Drapery constitute a single em- ployer for the purposes of the Act which, if so, would eliminate the question of a sufficient qualifying dollar volume to establish jurisdiction, as the Respondents con- cede. The General Counsel contends further that the ac- tions of the Respondents, in refusing union recognition, making promises and threats to the employees, and discharging them on April 22, were unlawful under Sec- tions 8(a)(1), (3) and (5) of the Act and that the 8(a)(1) and (5) misconduct provoked the strikes of April 19 and 21. The Respondents deny they are a single employer and contest the Board's jurisdiction over Drapery. They further deny that their actions affecting the Drapery em- ployees constituted unfair labor practices. B. Respondents' Business Operations Elmer Price is the president and treasurer of American. His brother. Edward Price. is vice president of American. American's lawyer, William J. Koenigsdorf, is secretary of American. The capital stock of American is owned 49- 1/2 percent by President and Treasurer Elmer Price,-49- 1/2 percent by Vice President Edward Price. and 1 per- cent by Secretary and Attorney Koenigsdorf. The same three men comprise the board of directors of American.5 The Price brothers are actively engaged in the opera- tions of American. President Elmer Price's principal job is to head the contract department, supervising sales and sales personnel, following through on orders, and signing all purchase orders. About $2 million of American's $3 million annual business is in linens , the remainder is in other white goods, draperies, bedding, furniture, and re- lated items, purchased and 99 percent resold at wholesale to hotels, motels, hospitals, and public institutions. Sales are by negotiated contracts or by bids. American has had large requirements for draperies, and prior to 1962 ob- tained its needs from several drapery manufacturing and installing companies.6 In late 1961 or early 1962, the Price brothers discussed with Louis Lesky, a man who owned and ran two retail fabric stores in Kansas City, the opportunity presented to them to buy out Drapery, then owned and operated by a man named Perrin and engaged in manufacturing and in- stalling drapes. According to President Price, the brothers did not have the time, and felt they needed one such as Lesky, to run the business; and Lesky on his part, as he testified, needed and obtained the assurance of the Price brothers that American would supply the business to make Drapery a profitable venture. Drapery was purchased from Perrin under an arrangement that gave the Price brothers two-thirds ownership of the capital stock and Lesky one-third ownership. Lesky became the president of Drapery, Elmer Price (American's president and treasurer) became Drapery's vice president, Edward Price (American's vice president) became Drapery's trea- surer, and William Koenigsdorf (American's lawyer and for American. 6 Testimony of President Elmer Price. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secretary) became Drapery's secretary. All four men comprised Drapery's board of directors. Lesky was to give Drapery, and gave at the start, part- time supervision, usually stopping in at Drapery in the mornings and evenings, and only occasionally during the day since he had his retail fabric stores to look out for. He received a $50-per-week drawing account at the start. He had no salesmen and the manufacturing operation (cutting, sewing, trimming, and pinning of draperies) was performed by about a half dozen women, some of whom including their supervisor, Maxine Harris, had worked under the previous ownership. According to the testimony of Lesky, Supervisor Harris was very com- petent and did "a good part of the managing," and she, not he, did all of the hiring of the women employees.7 Additionally, according to Elmer Price, Mrs. Harris gave the women their assignments and supervised the manu- facture of the drapes. As Lesky and Elmer Price testified, Drapery had machines but no materials for making draperies and main- tained no inventory other than $200-$300 worth of ac- cessories such as pins, hooks, thread, and crinoline or stiffening." American would send over its materials and linings, and Drapery would cut and finish the draperies to measurements provided to it. American employees would pick up the finished draperies or Drapery would make the delivery. The same procedure applied whenever Drapery made up draperies for anyone else, and Lesky submitted a list of others in the period of a year ending March 31, 1966 (Resp. Exh. 2, par. 2), indicating that Drapery had not done work exclusively for American. However, as Elmer Price testified, Drapery has done no advertising and has not entered into displays or promotional shows, in contrast to American, which does all of these things. Lesky testified that he did some soliciting of orders for Drapery while he took an active part in the business. Sometime later he sold his fabric stores and became full- time general manager of Kansas City Garment Com- pany. Thereafter, and for the past 1-1 /2 to 2 years, he no longer spent any time at Drapery. There was no one now soliciting orders for Drapery, he testified. Lesky's draw- ing account at Drapery also was terminated some un- specified time back. Lesky did not relinquish his title of president, but his functions, in varying degrees, were passed on to a succession of managers - Wilson, Puckett, and finally Raymond M. Earley. The latter was hired by Elmer Price at the beginning of April 1966, and never met Lesky and never saw him at Drapery. While Lesky was active, according to Elmer Price, Drapery was getting outside work in addition to Amer- ican's work, and American was taking about 55 to 60 per- cent of Drapery's output, he said. Also during Lesky's period of activity Drapery put some bids in on jobs bid by American.9 Outside work for others than American fell off when Lesky became inactive, particularly under Manager Earley, according to Elmer Price. As Manager Earley testified while he had been hired under an arrange- meat to receive, in addition to his salary, one-third of the profit on any jobs he brought in, he was kept so busy with the work in hand, particularly installing American's work, he had no time to "sell." Raymond Earley had been an installer of draperies for 13 years before he became manager of Drapery. None of his previous work had been for American or Drapery. He was hired by Elmer Price in his office at American, with Edward Price present. In the course of his employment Earley never met Lesky and never saw him at Drapery. Earley was hired prior to the commencement of any union organizing at Drapery. He was not and had never been a member of a union. When hired, Earley testified, he was told by Elmer Price that his duties were to manage Drapery and do the installing of draperies. His salary was $100 per week, with an understanding that he would also receive a one- third share of the profit on any work he brought in, an ar- rangement which did not materialize, as indicated above, because he was kept so busy with the work in hand. Manager Earley testified that he was also told by Elmer Price he had authority to run the business as though it were his own, but when he tried to exercise such authori- ty found that he was under restrictions. As an example, in getting out orders for drapes for American he referred to his being stopped from giving preference to an order or orders of any one decorator over another notwithstanding the purpose to assist a decorator in keeping a promise of an early delivery to the customer. In discharging his duties, Manager Earley testified, he worked directly with the interior decorators of American (naming three in particular- Peggy Cramer, John Jordan, and Jacques or Jack). Earley would measure the jobs for the interior decorators and, when they had compiled their figures, go over the figures with them either at Drapery or at their offices at American. He also figured jobs for Pres- ident Elmer Price, according to the latter's testimony. The decorators would then write up the orders on a worksheet or order on each of which would appear the name of the person who sold the job, usually the interior decorator, and an okay by Elmer Price.10 These orders were then mailed from American to Manager Earley at Drapery where the drapes would be made by the women employees (headed by Maxine Harris) from the materials delivered to Drapery. Manager Earley notified Edward Price at American of what materials had come in so that Price "could keep his books straight," and Supervisor Maxine Harris and her girls would take over the cutting of the materials and the finishing of the drapes required by the written orders. In this connection Manager Earley testified that in the approximately 3-1/2-month period of his employment (from early April till mid-June 1966) the orders were predominantly for American. When the draperies were finished Manager Earley took the greater part of them directly to the hotels, motels, or institutions where they were required and installed them. In the case of orders not requiring installation by him, 7 Employee Essie Hurt, who testified, was one of the employees hired by Supervisor Harris, and Mrs. Hurt in turn named several other em- ployees hired by Mrs. Harris. Employee Hurt also testified that Super- visor Harris assigned the work to be done by the women employees. 8 Drapery would usually purchase these accessories itself, but occa- sionally Drapery would acquire them through American , as in the case of an advantageous purchase of crinoline negotiated by American for Drapery. 9 But, from Lesky's testimony that he prepared price lists in consulta- tion with the'Price brothers, it can be inferred that this was not wholly in- dependent bidding. On the one bid that Drapery made against American in 1966 under Manager Earley, it was apparent from President Price's testimony that employees of American and Price himself had consulted with Earley on the matter of the bid before the bids were placed. 10 Some orders may have been okayed by Edward Price, since Manager Earley testified at another point that he got all of the orders by mail and from Edward or Elmer Price and no others Employee Essie Hurt testified that the orders she worked on showed American's name (or company ini- tials "AWG"), the name of the American interior decorator , and approval by Elmer Price. DRAPERY MFG. CO. 809 Manager Earley would telephone American that the draperies were ready and often delivered them himself to American for mailing by American to their customers. Thus, Manager Earley's duties had him in regular com- munication with American and regularly took him in and out of the plant and offices of American. He also testified that on these visits to American he frequently called on Elmer Price and occasionally on Edward Price. In contrast, according to Elmer Price and Earley, Su- pervisor Maxine Harris usually remained on the Drapery premises where she worked alongside her girls cutting drapes and assigning to the girls their portions of the work. Supervisor Harris had achieved supervisory status under Perrin, the previous owner of Drapery, and when Perrin sold out, Mrs. Harris told employee Hurt that American was keeping her on as supervisor, employee Hurt testified. Supervisor Harris communicated directly by telephone with the people at American, according to the testimony of Manager Earley and two employees." While Supervisor Harris did not testify, two longtime em- ployees, Essie Hurt and Essie Cobbins, told of regular, frequent, back-and-forth communications by telephone between Supervisor Harris and the people at American, including the interior decorators about the drapery or- ders, and Elmer Price about supplies such as soap and toilet paper. 12 According to both Elmer Price and Lesky, the books and records of Drapery have been kept at American by an employee of American who does the billing and makes out the payroll and paychecks. The paychecks are signed at American by Edward Price as treasurer for Drapery and usually picked up by Drapery' s manager. For her ser- vices, which require a few hours work each week, the bookkeeper, first a Mrs. Littleton and currently a Mrs. Moore, has been receiving $17.50 per month (originally $15) in addition to her salary from American of $435 per month. No books or records other than the orders in process are kept at Drapery and President Lesky kept no separate records for himself. Drapery maintains a separate bank' account, and its accounting and taxes are not con- solidated with American. No office is maintained at Drapery other than a desk and telephone. Drapery does receive mail addressed to it at its separate address in Kansas City. There was no direct testimony on how the mail is generally handled after receipt at Drapery, except that work orders mailed from American to Drapery are retained until manufacture and delivery of the draperies are completed. It can be presumed that since the books and records of Drapery are kept at American all other mail to Drapery is trans- mitted by Drapery to American for action or retention. This was clearly the case with the union demand, discussed infra, mailed to Drapery, received there by Manager Earley, and promptly transmitted to Elmer Price at American. C. The Union Demand and Respondent's Refusal to Bargain13 Donald Newton, an employee of Drapery whose job was to install draperies after doing the necessary prepara- tory work at the shop, called Business Agent Charles Graham of the Union on April 11, 1966, asking on behalf of the employees of Drapery that the Union organize and represent them. Union Agent Graham came down to the shop at lunchtime the same day and in an open parking lot across the street had all six women employees and Donald Newton sign cards authorizing the Union to represent them in collective bargaining.14 Supervisor Maxine Harris waited across the street while employee Essie Cobbins signed an authorization card and then walked off with her, but neither Supervisor Harris nor Manager Earley signed cards nor were they asked to sign. On April 12, Business Agent Graham sent by certified mail a letter to Drapery stating that the Union represented a substantial majority of the employees in an appropriate unit of production and installation em- ployees. The letter offered to prove this by a card show- ing, requested recognition and immediate collective bar- gaining, and asked for a reply in 5 days from receipt of the letter. (G. C. Exh. 10.) At the end of work on Monday, April 18, Union Agent Graham told the seven employees not to go to work the next day. April 19, in protest of the unfairness of the em- ployer and to "prove" themselves as a unit. The em- ployees remained away from the job April 19 and did not individually call in, but Agent Graham notified Elmer Price by phone of the strike and the reasons and reiterated the request for recognition and bargaining. Price replied he would look into it. Price admitted to Union Agent Graham that he had received the Union's . letter and had not answered. In a subsequent phone talk that day, President Price told Graham that he had not asked the employees to leave and referred Graham to American's attorney, William Koenigsdorf. Union Agent Graham tried to reach Attorney Koenigsdorf but did not succeed. On the next day, Wednesday, April 20, the employees returned to work. However, at the end of the workday,15 after reporting to Union Agent Graham certain promises of benefits and a threat to close the shop if they did not give up the Union, made by Manager Earley (discussed infra), the employees accompanied Union Agent Graham to the Board offices where he filed a charge against Drapery (G.C. Exh. 1A). The seven employees adopted Graham's advice to stay away from work in further protest on Thursday. April 21. They returned to work Friday, April 22, but were met by Manager Earley who handed them their paychecks and discharged all six women and Don Newton. That day the Union filed an 11 It also appeared from employee Hurt's testimony that American or Drapery employees, and on occasion Supervisor Hams, had taken the timecards over to American (for making up the payroll and paychecks) and that usually Manager Earley, and before him Manager Puckett, and sometimes Supervisor Hams, brought the paychecks from American for the Drapery employees . Employee Hurt had occasion to go to American to have Edward Price sign her paycheck. 12 The employees testified that they had taken some of the calls when Mrs. Harris could not. They also testified to occasional, but only in- frequent, visits to Drapery by Elmer and Edward Price. Elmer Price agreed that he and his brother visited Drapery only infrequently. I do not credit his further assertion, however, that neither he nor his brother ever provided any guidance for Supervisor Harris but left her (an hourly work- ing supervisory employee) unsupervised and generally on her own in running the manufacturing operation except as the manager, who was ex- pected to be working elsewhere for most of the day, happened to be there. 13 The testimony under this heading was provided by Union Agent Charles Graham, Manager Earley, and employee Essie Hurt, with no con- tradiction from President Elmer Price or others for Respondents. 14 G. C. Exh. 3, Essie Cobbins; G C. Exh. 4, Claudine Hicks; G. C Exh. 5, Essie Hurt; G. C. Exh. 6, Donald Newton; G. C. Exh. 7, Shirley Smith , G C Exh. 8, Rose Traylor (card misdated April 12), and G C. Exh. 9, Ella Woods. 15 Work hours at the shop were 7 a.m. to 3:30 p.m 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended charge against Drapery with the Board. (G.C. Exh. I C.) There had been no picketing of Drapery' s premises in the protest strikes of April 19 and 21, but following the discharges in the early morning of April 22 the employees began picketing that ended with resumption of work April 28. The previous afternoon, Wednesday, April 27, at President Elmer Price's office at American, Manager Earley was handed, to read and then distribute, a batch of notices typed in his name as manager on a Drapery letter- head, each addressed to one of the employees except Donald Newton, requesting their return to work while the Board was determining whether Drapery was under Board jurisdiction (G.C. Exh. 11).16 Manager Earley took the notices back to Drapery's premises, and distributed them to the employees on the picket line except Newton The employees returned to work on April 28 on advice of Union Agent Graham. On May 24, the Union filed a second amended charge naming both American and Drapery as the employer (G.C. Exh. I E). On June 15 the Board issued the complaint in this case against Drapery and American as a single employer, and on June 16 last- ing until June 25 the Drapery employees went on strike picketing the premises of American and Drapery in an unsuccessful attempt to compel bargaining and to show the employees' strength, according to Union Agent Graham.' 7 D. Threats, Promises, Discharges 1. Concerning the employees generally As indicated under heading C, above, the employees of Drapery, other than their two supervisors, Manager Ear- ley and Supervisor Maxine Harris, stayed away from work April 19 in protest of the refusal of the employer to recognize and bargain with the Union. On April 20, the employees returned to work, and at 8 a.m. Manager Earley called a meeting. According to em- ployee Essie Hurt, Manager Earley told them "if we for- get about having the union in there" the employer had agreed to give the employees Essie Cobbins and Essie Hurt (the two most senior girls) a 10-cent (per hour) raise, and the other employees lesser raises in accordance with seniority, and all of the employees 4 days' sick leave. In response to a question he said he didn't know about vaca- tions. Some of the women employees said that they were not going to give up on the Union, because they had had promises from managers before that were not kept. The discussion became heated, and Manager Earley said he didn't have time to fool with it, that the employer did not want a union and would close the shop and go back to using "ready mades" in draperies, and concluded the meeting.' 8 Thereafter, as already related under heading C, above, at the close of business that same afternoon, April 20, the employees went with Union Agent Graham to file a charge against Drapery with the Board and in protest stayed away from work the following day, April 21. When they reported back for work early Friday morning, April 22, they were met by Manager Earley who handed them their paychecks and told them they were discharged. Follow- ing 4 subsequent days of picketing (excluding the weekend) all of the employees but Don Newton were asked to return by notices from Drapery prepared by or for Elmer Price at American and distributed by Manager Earley on April 27, and these employees returned to work on Thursday, April 28.19 2. Concerning the discharge of employee Don Newton 20 Don Newton was the only one of the seven employees who was not asked to come back to work by the employer on April 27. He was the one rank-and-file employee of Drapery at the time who spent part of his time away from the shop installing draperies and part of his time at the shop doing preparatory work for installing the draperies. He came to work for Drapery in 1965 or early 1966, ac- cording to Elmer Price, and was working for Drapery for a considerable time before Manager Earley was hired in April 1966. Employee Newton acted as spokesman for the other six employees in requesting Union Agent Graham to or- ganize them on April 11, 1966, and Newton signed an authorization card along with the other employees on the open parking lot across the street from Drapery, while Supervisor Harris waited in front of the shop for one of the participating employees. Newton took part in the two 1-day strikes, of April 19 and 21, was among the seven employees discharged on April 22, and appears to have been involved in the subsequent picketing. Manager Earley testified he had recommended em- ployee Newton's discharge at the beginning of April, even before the union organizing took place, which was almost immediately after Early arrived on the job. Manager Earley testified he made this recommendation to either Elmer or Edward Price because Newton was in- efficient and took too long on jobs, but the recommenda- tion was not adopted at that time. On April 22, said Ear- ley, employee Newton was included in the blanket discharge of all of the employees. When the notices for rehiring the discharged and picketing employees were handed to Manager Earley by Elmer Price on April 27, Earley testified he again recom- mended to Price against Newton and that he not be rehired, and Newton was not given a notice to return along with the others on the picketing line, April 27, and was not returned to work with the others on April 28, or thereafter. Elmer Price testified that considerably-earlier, in 1965 or early 1966, when Newton was hired "for our drapery shop, as an installer," he needed but didn't have an au- 16 The letter also stated that if the Board determined that the Company was covered under the Act, it would immediately enter into collective bar- gaining with the Union designated by the employees. 1' This proceeding is not concerned with the merits of the strike that began on June 16 18 Manager Earley testified in general though not total accord, conced- ing that he told the employees the Union would probably not get into the shop but that the plant would probably be closed down, and that he would try to get the employees raises according to seniority and to get them 4 days' sick leave. He claimed he had not conditioned the promises of benefits on the employees' giving up the Union, but his other testimony concerning the discussion makes it plain that unionizing or not was central to the discussion, and I do not credit Earley 's disclaimer 19 The third strike by the Drapery employees from June 16 to 25, 1966, noted in the testimony of Union Agent Graham and Manager Earley under heading C, above , came after the filing of the complaint in this case on June 15, and is not the subject of any charge or complaint in this proceeding Manager Earley testified that he quit his employment with Drapery after this strike began on June 16. 20 Employee Newton did not testify. The testimony concerning him was given by Elmer Price, president and treasurer of American and vice pre- sident of Drapery, by Manager Earley , and by employee Essie Hurt. DRAPERY MFG. CO. 811 tomobile to carry the rods and drapes from the shop to jobs, and that be, Elmer Price, and brother Edward Price, "personally" loaned Newton "probably four hundred fif- ty, five hundred dollars" to buy a used car.21 The loan ar- rangement was made at Elmer Price's office at American and the Price brothers did not ask for a note at the time, but arranged with employee Newton to take $10 per week out of his paycheck "on the repairs." They also sug- gested at a later time, said Price, that Newton get a loan on the car as a means of paying the Price brothers their loan. On April 18, 1966, several days after the union de- mand for recognition and the day before the Drapery em- ployees went on their first protest strike, Elmer Price summoned employee Newton to a meeting at Price's of- fice at American. Also present were Edward Price and American's attorney, Koenigsdorf. Elmer Price was the only participant who testified. Allegedly, Newton was told by the others present that they wanted to collect the loan by having him sign papers for it which Price said, were proffered to Newton. According to Price, employee Newton told them he could not give a chattel mortgage because he had already borrowed on the car to help his brother with the proceeds, and that he wanted to consult a lawyer before signing a note, which was drawn on the basis of paying by taking $10 per week out of Newton's pay. Elmer Price said we told him to see his lawyer and get the papers straightened out before doing anything else. Price said employee Newton promised to come back the same day, but did not.22 Price denied there was any discussion of union activity at this meeting.23 E. Conclusions 1. The Respondents constitute a single employer within the Board's jurisdiction Although Respondent Drapery alone does not meet the Board's self-imposed dollar standard for asserting ju- risdiction over nonretail operations.24 Respondents Drapery and American constitute a single-integrated en- terprise well within the Board's dollar standards for tak- ing jurisdiction.25 Under the tests for "single employer" developed by the Board, Twenty-first Annual Report of the National Labor Relations Board, pp. 14-15 (1956), restated and approved in Sakrete of Northern California, Inc., v. N.L.R.B., 332 F.2d 902, 905-908 (C.A. 9, 1964), cert. denied 379 U.S. 961, and by the Supreme Court in Radio & TV, etc., Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965), integrated to consider the business of both together in applying the jurisdictional standards. The principal factors weighed in deciding that sufficient integration exists include the extent of (1) inter- relation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. None of the factors has been held to be controlling, but stress has been laid upon the first three factors to show operational integration par- ticularly centralized control of labor relations. Id. In the present case all four factors are present. The Price brothers are the owners of the corporate stock and the principal officers and directors of both com- panies, except for the one-third ownership of Drapery's stock by Lesky who holds the title of president of Drapery but admittedly has been inactive for the past 2 years. The operations of the companies are such that Drapery is the manufacturing or production arm of American for all of American's custom-made drapery requirements in supplying its hotel and institutional trade. In this connec- tion the production operation includes assistance in providing measurements and estimates before manufac- ture, and installing of the manufactured draperies where required after manufacture. In performing the Drapery operation in the period in is- sue, April-May 1966, the Drapery manager worked directly with the interior decorators of American, and oc- casionally with President (and Treasurer) Elmer Price of American (also Drapery's vice president), measuringjobs and assisting in providing estimates. The American interi- or decorators wrote their orders for the draperies on 21 According to Elmer Price the loan comprised $350 for the car and the balance for repairs and license. 22 Elmer Price also testified he had "not heard from Mr. Newton since that day," April 18, and was holding a paycheck for him, implying that employee Newton quit his job. But Pnce did not comment upon, let alone contradict, Manager Earley's clear testimony, supra, that employee New- ton was one of the seven employees who reported for work April 22 and was fired along with the rest, and that Manager Earley recommended to Pnce on April 27 that Newton not be rehired and not be given a notice of reinstatement along with the other picketing employees, which recom- mendation was followed. 23 Pars. X(d) and (e ) and par. XI(a) of the complaint apparently referred to this meeting as taking place April 20 , the day after the first strike, and encompassing a threat by Edward Price to discharge employee Newton for union activity , interrogation of Newton concerning union activity by American's attorney, Koenigsdorf, and discharge of Newton that day by the Respondents These allegations of the complaint were not established. However, the allegation of par. XI (b), that Newton, along with the six other named employees, was discharged on April 22, was established. 24 For nonretail operations, the standard is outflow or inflow across State lines of at least $50,000 whether such outflow or inflow be regarded as direct or indirect, Siemons Mailing Service, 122 NLRB 81, 85 (1958). Drapery's average annual out-of-State business , computed separately from that of American, has been less than $10,000 out of a total of $25,000 average annual business . See fn. 4, supra. 25 This is so whether the nonretail business $50,000 out -of-State stan- dard, fn 24, supra, or the retail business gross $500 ,000 standard, Carolina Supplies and Cement Co., 122 NLRB 88, 89 (1958), is applied American alone, whose business is 99-percent nonretail and I-percent retail, fn. 2, supra, does a $3 million business annually, of which over $500,000 is out-of-State , fn. 4, supra. Moreover, Drapery alone, as well as Drapery and American, is within the Board's statutory jurisdiction which extends, under Sec 10(a) of the Act, "to prevent any person from engaging in any unfair labor practice... affecting commerce." Since, as found herein, interstate commerce would be adversely affected if the business of Drapery (as well as the business of Drapery and American) were disrupted as the result of a labor dispute, the Act applies regardless of the volume of commerce affected , provided it is more than "de minimis." N L.R B . v. Fainblatt, 306 U S . 601, 607 (1939); N.L R.B v. Denver Building and Construction Trades Council, 341 U.S 675, 684-685 (1951), and see N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U S. 224, 225-226 (1963). De minimis means trifles, matters of a few dollars or less, N.L.R .B v Suburban Lumber Company, 121 F.2d 829, 832 (C.A. 3, 1941), cert. denied 314 U.S. 693 It has been held that $2,000 was not de minimis, N G.R.B. v. Aurora City Lines, Inc , 299 F 2d 229, 231 (C.A 7, 1963), that a little over $3,000 was not de minimis, N.L.R.B. v Inglewood Park Cemetery Association, 355 F 2d 448, 450-451 (C.A 9, 1966), cert denied 384 U.S 951; and that $12,000 was not de minimis, N L.R.B . v. Harvey Stoller, 207 F . 2d 305, 307 (C.A. 9, 1953), cert denied 347 U S. 919. Accordingly, the less than $10,000 annual out-of-State business of Drapery would not appear to be de minions and would sustain the assumption of statutory jurisdiction, in the Board's discretion, N L.R.B v Carroll-Naslund Disposal, Inc, 359 F.2d 779 (C.A. 9, 1966). 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worksheets, which were approved usually by Elmer Price and turned over to Drapery for production along with the materials and linings provided by American. The women employees at Drapery cut and finished the draperies. Any communications pertaining to the work in progress were usually by telephone between the decorators at American and the immediate supervisor of the women at Drapery, Mrs. Harris The manager of Drapery accounted regu- larly to American's Vice President Edward Price (also Drapery's treasurer) for the materials received, and in- stalled the finished draperies at the hotels and institutions that had ordered them. Where installation was not part of the order the Drapery manager notified American of completion and either delivered the finished draperies to American for mailing to the customers or had them picked up by American ze The orders were predominantly American's orders for its customers, but to the extent that there were orders for others they came through American, presumably through the efforts of the Price brothers Drapery had no salesman or separate sales promotion. Manager Earley produced no independent business, and Drapery did no direct mailing of finished drapes or direct delivery other than in connection with installations What was not in- stalled by Drapery was turned over to American for disposition. While American and Drapery were at different loca- tions in Kansas City and maintained their corporate identities for billing, accounting, banking, and tax pur- poses, the office administration of Drapery by American was consistent with the integrated production operations described Drapery maintained no separate offices or clerical assistance on its premises All of Drapery's books and papers (other than orders being processed) were maintained at American, and bilking, payroll, and paychecks were prepared at American uy an employee of American who received a small extra monthly stipend for the extra work entailed. Paychecks were signed by Drapery Treasurer Edward Price at his office at Amer- ican, and both he and brother Elmer Price conducted business affecting Drapery from their offices at American with only rare visits to Drapery. As already indicated, work orders for Drapery were prepared by American em- ployees at American and there was regular daily com- munication and reporting between the establishments, as described. Drapery's Manager Earley was hired by Elmer and Edward Price at Elmer Price's office at American. Manager Earley took his orders and instructions from Elmer or Edward Price, whom he saw with regularity at American He never met or saw the nominal president of Drapery, Lesky, at anytime While Manager Earley was given authority, when hired, to run Drapery as though it were his own business, it turned out that the Price brothers retained a veto over his policy actions (as when he unsuccessfully attempted to vary the order of production of draperies for the Amer- ican interior decorators), and they retained control of Drapery's labor relations. Thus the Price brothers did not accept Manager Earley's initial reccmmendation to discharge the drapery installer Newton It appeared to Earley that had they accepted his similar second recom- mendation, not to reinstate Newton after_jhe discharge of the group of striking workers, but it was the decision of the Price brothers and not Earley's decision that ended Newton's employement, as discussed infra. Indeed it was the Price brothers at American, and not Lesky or any manager or supervisor at Drapery, who hired employee Newton as an installer for Drapery in the first instance, many months previous, and it was American that even earlier continued Maxine Harris as supervisor of the women employees at Drapery. The written demand for union recognition in April 1966 was turned over by Drapery Manager Earley at American to President Elmer Price, who concluded not to reply It was with President Elmer Price at American that the union agent had his telephone discussion of the demand for recognition and the protest by the employees, and it was Elmer Price who referred the union agent to American's attorney it was the Price brothers' decision which Manager Earley implemented when he discharged the striking employees in a body on April 22, and it was the decision of the Price brothers discussed with Manager Earley and prepared in notice form at American that Ear- ley carried out in reinstating all of the strikers other than the employee Newton on April 27. It would be difficult to conceive of more complete in- tegration of the two business operations and manage- ment, or more centralized control of their labor relations, short of putting the operations under one roof and eliminating the separate corporate forms (which would appear to provide little advantage and considerable tax disadvantage to the common owners of the two enter- prises). American and Drapery constitute a single em- ployer under the Act.27 2. The 8(a)(5) violation a. The Union's demand. As detailed under heading 11, C, above, the Union's written demand for recognition and bargaining as the representative of Drapery's production and installation employees was received by President Elmer Price of American (also vice president of Drapery) at his office at American on April 13, 1966, and was complete in all respects. At the time of the demand, the Union had the signed authorization cards of all seven of the production and installation employees. b. The appropriate unit. The production employees engage in cutting and sewing of the draperies and the in- stallation employees initially prepare the draperies in the production shop for installation, by cutting to size and stringing traverse rods and attaching drapery hardware. When the preparation is complete the installers carry the draperies from the shop to the ultimate locations and in- stall them. Both installers and production workers are under common supervision of the manager (who also par- 1^ The evidence did not indicate any different method of operation of Drapery under predecessor managers or in the eai her period when Pres- ident Lesky performed the functions of manager except that Lesky did some "selling" himself and brought in some order, on his own efforts, whereas Manager Earley brought in no orders in the ;-112 months of his tenure (Apnl-June 15, 1966) 'T Among the useful precedents supporting a like conclusion is N L R B v Jones Sausage Co, 257 F 2d 878, 879-880 (C A 4, 1958), involving an abattoir and a sausage company, held to ..onstitute a single employer within the dollar volume standard, and the sausage company alone held within the statutory standard even though below the dollar volume standard See also Darlington Manufacturing Company, 139 NLRB 241, 255-257 (1962), reversed on other grounds 325 F 2d 682 (C A 4), remanded 380 U S 263, 268, 277 (1965), Pizza Produc tr Cor- poration v N L R B , 369 F 2d 431 (C A 6, 1966) Wenatchee Thrifiv Drugs, Inc , 151 NLRB 752, 753-755 (1965), Chuago Theatrical Pro- tective Local No 2 (Midwest News Reel Theatres, Inc ), 151 NLRB 857, 860-861 (1965), B & B Industries, Inc , 162 NLRB 832,834 DRAPERY MFG. CO. 813 ticipates in the installations), and enjoy a sufficient daily relationship and community of interest among themselves to warrant finding that the appropriate unit is "all produc- tion and installation employees at the Kansas City, Mis- souri, shop of Drapery Manufacturing Co., Inc., exclud- ing all supervisors as defined in the Act." c. The minor supervisors. In this connection Respond- ent Drapery in its brief (pp. 4, 5, 11) identified Manager Raymond Earley and Supervisor Maxine Harris as super- visors within the meaning of the Act, and the evidence noted under heading II, B, above, bears this out. Manager Earley had authority "responsibly to direct" the day-to- day activities of all of the Drapery employees and to recommend hiring or firing, and Supervisor Harris had like authority over the women production workers. Both Earley and Harris shared with and under direction of Elmer and Edward Price, the principal officers, the "power of management," N.L.R.B. v. Southern Bleachery & Print'Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958), cert. denied 359 U.S. 911, and were supervisors under the Act, Brewton Fashions, Inc. v. N.L.R.B., 361 F.2d 8, 12 (C.A. 5, 1966), cert. denied 385 U.S. 842, not- withstanding the fact that both also performed manual labor, N.L.R.B. v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (C.A. 6, 1948), cert. denied 335 U.S. 908; N.L.R.B. v. Southern Airways Company, 290 F.2d 519, 523-524 (C.A. 5, 1961); N.L.R.B. v. Gary Aircraft Corp., 368 F.2d 223, 224 (C.A. 5,1966). d. The unlawful refusal to bargain. The Union's de- mand included an offer to demonstrate its majority. How- ever, President Price made no reply to the written request for recognition and bargaining; nor did he answer the renewed telephone request by Union Agent Graham that included notification of the employees' protest strike on April 19, other than to refer Graham to American's attor- ney, whom the union agent was unable to reach. No question was raised then or later respecting the Union's majority nor was there any question with respect to the appropriate unit. Indeed, if the employer had any unex- pressed doubt concerning the Union's majority and the Union's status as spokesman for the employees, there was no room for doubt after the protest strike of April 19 by all of the employees in the unit and their return to work on the following day, under the Union's guidance. See N.L.R.B. v. Preston Feed Corp., 309 F.2d 346, 350-351 (C.A. 4, 1962). The employer, through Manager Earley, responded to the protest strike of April 19 by offering the employees on the following day, April 20, certain pay raises and sick leave benefits to "forget" the Union, and a threat to close the shop if they did not. When the employees went on strike again on April 21 in further protest, the employer discharged them the next day. Following the ensuing picketing by the employees, the employer reinstated all of the employees, except Newton, by individual notices handed out on the picket line April 27, but again raised no question respecting representation of the employees by the Union. Only the jurisdiction of the Board was questioned. Indeed the notices of rein- statement promised that if the Board determined that the Company was covered under the Act, the Company would immediately enter into collective bargaining with the Union designated by the employees. As already found under heading II, E, 1, above, the em- ployer's challenge of Board jurisdiction was without merit. "In this posture of the case," the Board recently wrote in H & W Construction Company, Inc., 161 NLRB 852,854 (1966): ... the Act imposes an obligation upon an employer to bargain upon request with a union that has been designated by a majority of employees in an ap- propriate unit, and this obligation exists whether or not the union has been certified by the Board. An employer is warranted in refusing the request of such a union only if his refusal is motivated by a• good-faith doubt of the union's designation by a majority. [Footnote citing United Mine Workers of American v. Arkansas Oak Flooring Co., 351 U.S. 62, and others.] And conversely, good or bad faith is irrelevant where an employer's refusal is bottomed upon reasons other than those related to the union's majority status. Thus the Sixth Circuit Court of Ap- peals has stated that "good faith is not available as a defense to a charge of refusal to bargain where the' refusal to bargain is based on an erroneous view of the law." [Footnote citing Old King Cole, Inc. v. N.L.R.B., 260 F.2d 530, 532.] .... In the case now before us the Trial Examiner found, and we agree, that the Respondent's response to the Union's recognition request, asserting a lack of ju- risdiction over the Respondent's operations, was clearly without merit. In these circumstances it fol- lows that Respondent, in rejecting the Union's bar- gaining request for a reason that was insuffiecient as a matter of law, thus failed to comply with its lawful bargaining obligation [Footnote citing, cf. Polish Na- tional Alliance of the U.S. v. N.L.R.B., 136 F.2d 175, 180-181 (C.A. 7), affd. 322 U.S. 643], and we agree with the Trial Examiner's conclusion that Respondent's conduct thereby was in violation of the Act.28 In my view, the Respondents violated Section 8(a)(5) of the Act and a bargaining order should issue. 3. The 8(a)(1) and (3) violations a. The unlawful promise of benefits and threat to close the shop. The employees' protest strike because of the refusal by the Respondents to acknowledge and meet the Union's request for recognition and bargaining was a work stoppage of 1 day, April 19, 1966. On the return of the employees to work, April 20, Manager Earley called them into a meeting and informed them that if they would forget about the Union, the employer had agreed to give the two senior women employees a 10-cent-per-hour raise, lesser raises based on seniority to the others, and 4 28 In the cited and quoted case, H & W Construction Co., supra, the respondents expressed for the first time, in their pleadings, a good-faith doubt of the Union's status as majority representative , a defense which the Board rejected as "an afterthought ... urged in bad faith." Id., 856. In the instant case, there was no such defense or contention at the hearing. There was present, however, unmistakeable evidence of bad faith sur- rounding the Respondents' refusal to recognize and bargain with the Union, in the 8 (a)(1) and (3) violations found infra, that entailed employer promises of benefits and a threat to the employees to induce abandonment of union organization, and discharges of the employees for engaging in protected concerted activity As was held in Crown Tar and Chemical Works, Inc v. N.L.R.B., 365 F.2d 588, 590 (C.A. 10, 1966), respecting 8(a)(1) violations, the similar misconduct here was likewise a violation of Section 8(a)(5). These 8(a)(1) and (3) violations , intended to destroy the Union's majority status, would also justify the bargaining order directed herein, Mock Road Super Duper, Inc., 156 NLRB 983, 986-987 (1966), and cases cited 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days' sick leave to all. The promise by the employer of benefits to employees to discourage unionization was a clear violation of Section 8(a)(1), N L.R.B v. Exchange Parts Co., 375 U.S. 405, 409-410 (1964), N.L R.B v. Grand Foundries, Inc., 362 F .2d 702. 708-709 (C.A. 8, 1966).19 At the meeting, a heated discussion ensued between Manager Earley and the employees. Some of the women said they were not going to give up the Union and Manager Earley said he didn't have time to fool with the matter, that the employer did not want a union and would close the shop and go back to using ready-made in place of the custom-made draperies. The threat of the employer to the employees to close the plant rather than accept the Union constituted interference and restraint in violation of Section 8(a)(1) of the Act. Marshfield Steel Company v. N.L R.B , 324 F.2d 333,336 (C.A 8, 1963) Respondent Drapery's argument that Manager Earley was not authorized to make the foregoing promises or threat to the employees, even if true, would not relieve the Respondents from liability for them. See H. J Heinz Company v N.L.RB., 311 U.S 514. 521 (1941); N.L.R.B v. Franks Bros. Company, 137 F 2d 989, 992 (C A. 1, 1943); N L R B. v Sea-Land Service, Inc :356 F 2d 955, 964-965 (C.A. 1, 1966), cert denied 385 U S. 900. b. The discharges for engaging in protected activity. Following the making of the promises and threat on April 20, at the close of business that day the union agent, ac- companied by the employees, filed a charge with the Board concerning the unfair labor practices, and the em- ployees went on a second protest strike or work stoppage the following day, April 21. When they reported back for work the next morning, April 22, they were all discharged. Section 7 of the Act guarantees, and Section 8(a)(1) protects from employer interference, the rights of em- ployees to engage in concerted activities, including the right to strike, N.L.R B. v. Erie Resistor Corp., 373 U.S. 221, 233 (1963), and to protest grievances or employer misconduct connected with work by strike or lesser forms of protest, such as temporary work stoppage, of orderly character, N.L R.B v J. 1. Case Company, 198 F.2d 919,922 (C.A. 8, 1952). The Respondent's unfair labor practices provided adequate ground for the orderly strike or work stoppage that occurred here, and the rule is firmly settled that un- fair labor practice strikers are protected against discharge and permanent replacement, Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278 (1956); N L.R.B. v Comfort, Inc., 365 F.2d 867, 874 (C A. 8. 1966). The discharges of the seven employees on April 22, 1966, were therefore in violation of Section 8(a)(3) and (1) of the Act, and each employee was entitled to rein- statement with backpay. Id. Six of the seven employees were reinstated effective April 28, 1966, so that these six are due backpay for the few intervening days between discharge and reinstatement The seventh employee, Donald Newton, was not rein- stated with the others when they were handed notifica- tions of reinstatement on the picket line, April 27, 1966. In the testimony, as set down under heading Il. D, 2. supra, management gave conflicting stones concerning the time and circumstances of the discharge and failure to reinstate employee Newton. Manager Earley was quite clear that he discharged em- ployee Newton in the group discharge on April 22 and that on April 27 he recommended to President Elmer Price that Newton not be rehired with the others because he was inefficient and slow, and accordingly Newton was not handed a notice to return to work when Manager Ear- ley distributed the notices to the picketing employees Manager Earley also testified he had made a similar recommendation advocating Newton's discharge shortly after Earley took the manager's job in early April, before the union organizing began, but the Price brothers did not adopt his recommendation. On the other hand President Elmer Price testified in ef- fect that employee Newton quit his job April 18, 4 days before the mass discharge, after refusing to sign a note for the Price brothers for an alleged loan to Newton made many months before, when the Price brothers first hired Newton as an installer for Drapery. In its telling, as well as from contradictory testimony, this account had a ring of implausibility President Price was not sure of the precise amount of the total loan ("probably four hundred fifty, five hundred dollars"). The money was allegedly laid out by the two Price brothers, personally, not by either company, to obtain a used car for employee New- ton as a necessary part of his equipment to carry and in- stall draperies. Yet, no note or other paper was asked of Newton at the time of his hiring to indicate that in fact a loan had been made, rather than the furnishing of essen- tial transportation without which the employee could not function in this type of operation. Allegedly, the em- ployee had paid for the repairs portion of the loan over the intervening months by the Price brothers withholding $10 weekly from his Drapery pay without his giving a note, but at this point in time (5 days after the Union's request for recognition following organization of the work- ers on an arrangement made by employee Newton), the obtaining of a written pledge from Newton appeared necessary to the three officers-in-common of American and Drapery-the Price brothers and Attorney Koenigs- berg-although it involved the same method of payment by deducting $10 weekly from Newton's pay. Newton, in a meeting with these three officers of American and Drapery on April 18, allegedly refused to sign without consulting a lawyer, left on a promise to consult one and return, and hadn't been heard from since that day, accord- ing to Elmer Price, although he was still holding a paycheck for Newton at the American office. I find it hard to believe that an employer, who by his own account was still owed $350 on a loan to an em- ployee from whom the employer had been collecting regularly by withholdings from the employee's pay, would continue to hold the last pay of lesser amount for the debtor-employee months after the employee last worked for him. The contradictory assertion by the em- ployer that he still owed the employee his last pay (made, no doubt, to underscore the employer's contention that the employee quit) suggests, along with the other weak- nesses in the account, that the story of the loan and its handling is fiction to cover up what actually occurred in the meeting of April 18 and Price 's participation in and reasons for the decision to refuse reinstatement to New- 29 And, in relation to the union organizational efforts and pending de- mand for recognition , was also a violation of Sec 8(a)(5) See Crown Tar and Chemical Works v N L R B , supra , in 28 365 F 2d 588, 590 DRAPERY MFG. CO. 815 ton. President Price made no comment on Manager Ear- ley's testimony that Newton was discharged at the shop 4 days after April 18 and that Newton was denied rein- statement at the shop another 5 days later; and employee Essie Hurt testified, as did Earley, that Newton was part of the employee group involved in the activities com- mencing April 19 and thereafter. It is perfectly clear that President Elmer Price placed no confidence in the new manager's recommendation at the start of his tenure to discharge a presumably tried em- ployee of much longer standing, and Price disregarded it, as Manager Earley testified. It is also clear that employee Newton was discharged along with the other rank-and- file employees on April 22 for engaging in protected ac- tivity under the Act. Alleged inefficiency and slowness had nothing to do with Newton's discharge at that point, indeed no one, not even Manager Earley, made any such claim. Nor did President Elmer Price indicate at the hear- ing that he gave any heed to the claimed inefficiency of employee Newton at any time. And no one told Newton that he was being discharged and not reinstated because he was inefficient and slow. The foregoing analysis demonstrates that there was no credible explanation or reason given for the refusal to reinstate employee Newton, either when his fellow work- ers were reinstated or at the hearing. Absent any plausi- ble and reasonable explanation that would justify denying the unfair labor practice striker his reinstatement, the in- ference is that employee Newton's union activity and support, and the employer's desire to discourage union support in the shop, provided the real motive behind the employer's refusal to reinstate him. Cf. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965). Employee Newton took the leadership in inviting the Union to organize the employees. The organizing was done openly, the signing of the authorization cards was performed in broad daylight across the street from the shop while Supervisor Harris waited and was able to watch. This was a very small shop, so that even without this direct supervisory knowledge, Respondents' knowledge of Newton's activities could be inferred. Id. at 697-698. Respondents demonstrated their antiunion animus by their refusal to have anything to do with the union representatives immediately followed by attempts to subvert the union organization with promises and a threat to the employees and by the mass discharge of the employees for engaging in concerted activities protected under the Act. Employee Newton was entitled to reinstatement as an unfair labor practice dischargee along-with his fellow workers who were reinstated directly from the picket line. The fact that they were handed notices of reinstatement on the picket line, and he was not, made unnecessary an application for reinstatement by him, since it was plain that such an application would be rejected. N.L.R.B. v. Valley Die Cast Corp., 303 F.2d 64, 66 (C.A. 6, 1962); N.L.R.B. v. Comfort, Inc., supra, 365 F.2d 867, 878. Employee Newton is entitled to an order reinstating him to his job with backpay from the time of his discharge, April 22, 1966. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents jointly and severally, set forth in section II, above, occurring in connection with the operations of the Respondents described in sec- tion 1, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes adversely affecting and burdening and obstructing the free flow thereof. IV. THE REMEDY In assessing the remedial responsibilities of the two Respondents I have taken into account their joint viola- tions as a single employer under the Act, but have also recognized that a collective-bargaining contract of either Respondent would not necessarily cover the employees of both, cf. B & B Industries, supra, 162 NLRB 832, 834-835 (1967), and that the contract sought here is limited to the employees of Drapery. Accordingly, while the restraining portions of the Recommended Order are directed to both Respondents, the affirmative portions are directed to the Respondent Drapery. Because the Respondents have engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that they cease and desist therefrom and from interfering in any like or related manner with the efforts of the Union to bargain collec- tively with the Respondent Drapery. Also, because the Respondents by their conduct violated fundamental em- ployee rights guaranteed by Section 7 of the Act and there appears from the manner of the commission of this conduct a disposition to commit other unfair labor prac- tices, it will be recommended that the Respondents cease and desist from in any manner infringing upon the rights guaranteed employees by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Affirmatively, to effectuate the policies of the Act, it will be recommended that the Respondent Drapery bar- gain with the Union upon request. This provision would be recommended under all the circumstances, even if there had been no violation of Section 8(a)(5) of the Act, in order to remedy the violations of Section 8(a)(1) and (3) that were designed to destroy the Union's majority status and to avoid the Respondent's obligation to recog- nize and bargain with the Union. N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344, 347 (C.A. 6,1965). Because Respondent Drapery discriminatorily laid off and discharged employee Donald Newton, it will be recommended that the Respondent offer him immediate and full reinstatement to his former position or to a sub- stantially equivalent position, without prejudice to his seniority or other rights or privileges. It will be recom- mended that the Respondent make him whole forany loss of earnings he may have suffered as a result of the dis- crimination against him by payment of a sum of money equal to that which he normally would have earned as wages from April 22, 1966, the date of discharge, to the date of the Respondent's offer of reinstatement, less net earnings, if any, during this period. The backpay shall be computed on a quarterly basis as prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), ap- proved in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344 (1953), and shall include in- terest at 6 percent per annum as provided by the Board in Isis Plumbing & Heating Co., 138 N LRB 716 (1962), ap- proved in Philip Carey Manufacturing Company, Miami Cabinet Division v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), and cases cited. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inasmuch as Respondent Drapery also discriminatorily discharged on April 22 but reinstated on April 28, 1966, its employees Essie Hurt, Essie Cobbins, Ella Woods, Rose M. Traylor, Shirley Smith, and Claudine Hicks, it will be recommended that the Respondent make them whole for any loss of earnings in the period April 22-28, 1966, computing the backpay on the basis described above. Additionally, I have adopted the recommendation of counsel for the General Counsel that Respondent Drapery be required to mail to each of its employees, as well as post in the shop, copies of the signed notice pro- vided for herein. H. W. Elson Bottling Company, 155 NLRB 714, 716 (1965) Upon the basis of the foregoing facts and upon the en- tire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents are employers, and constitute a single employer, within the meaning of Section 2(2) of the Act and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 2. The following employees of the Respondent Drapery constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All production and installation employees at the Kan- sas City, Missouri, shop of Drapery Manufacturing Co., Inc., excluding all supervisors as defined in the Act. 3. The Union at all material times has been and is the exclusive representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of their rights under Section 7 of the Act, and by discriminating with respect to the em- ployment and tenure of Donald Newton, Essie Hurt, Essie Cobbins, Ella Woods, Rose M Traylor, Shirley Smith, and Claudine Hicks, as found above, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By refusing, on and since April 13, 1966, to permit Drapery to recognize and bargain collectively with the Union as the exclusive representative of the employees in the aforesaid bargaining unit, and by Drapery so refus- ing to recognize and bargain with the Union, Respond- ents have jointly and severally engaged in and are engag- ing in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The said unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing facts and conclusions of law, and upon the entire record in this proceeding, I recommend that Respondents Drapery and American, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to permit Respondent Drapery to recog- nize and, upon request, to bargain collectively with the 30 In the event that this Recommended Order is 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 Union as the exclusive representative of the employees in the bargaining unit described (in paragraph 2 of the Conclusions of Law) above, and that Respondent Drapery cease and desist from refusing to so recognize and bargain with the Union. (b) Interfering with, restraining, or coercing the em- ployees of Drapery in their union activities, or concerted activities for the purpose of collective bargaining, by discharge, threat to close the shop or other reprisal, or by promise of benefits to discourage their union support. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights of self-organization, or to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from engaging in any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) and recognized in Section 7 of the Act. 2. Respondent Drapery take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Recognize and upon request, bargain collectively with the Union, as the exclusive representative of the em- ployees in the bargaining unit described above, and em- body any understanding reached in a signed agreement. (b) Offer to employee Donald Newton immediate and full reinstatement to his former position or to a substan- tially equivalent position without prejudice to his seniori- ty or other rights and privileges, and make him whole in the manner Eet forth in the section of this Decision enti- tled "The Remedy," for any loss of earnings he may have suffered as a result of the discrimination against him. (c) Notify Donald Newton if serving in the Armed Forces of the United States of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Ser- vice Act, as amended, after discharge from the Armed Forces. (d) Make whole, for any loss of earnings suffered, em- ployees Essie Hurt, Essie Cobbins, Ella Woods, Rose M. Traylor, Shirley Smith, and Claudine Hicks, in the manner set forth in the section of this Decision entitled "The Remedy," for the period April 22-28, 1966, as the result of the discrimination against them. (e) 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 ascertain the backpay due under the terms of this Recommended Order. (f) Mail to each of its employees and post in the Respondent's shop at Kansas City, Missouri, copies of the attached notice marked "Appendix. "31 Immediately upon receipt of the copies of said notice, to be furnished by the Regional Director for Region 17 (Kansas City, Missouri), the Respondent shall cause the copies to be signed by one of its authorized representatives and a copy mailed to each of its employees, the remaining copies to Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " DRAPERY MFG. CO. 817 be posted and to be maintained 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 Respondent to in- sure that the posted notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply therewith.31 31 In the event that this Recommended Order is adopted by the Board, this provision shalt be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: After a trial, with presentation of evidence on both sides, before a Trail Examiner of the National Labor Re- lations Board, it was found that we had violated the Na- tional Labor Relations Act. We have been directed to post this notice, to mail a copy to each employee, and to keep our word about what we say in the notice. WE WILL recognize and, upon request , bargain with Paint, Varnish and Lacquer Makers Local No. 754, Kansas City, Missouri, A/W Brotherhood of Painters , Decorators and Paperhangers of America, AFL-CIO (the Union), as the exclusvie representa- tive of our employees in the bargaining unit described below, and embody any understanding reached in a signed agreement. The bargaining unit is: All production and installation employees at the Kansas City, Missouri, shop of Drapery Manu- facturing Co., Inc., excluding all supervisors as defined in the Act. WE WILL NOT discharge you, or threaten to close the shop, or threaten you in any other way, because of your support of the Union. WE WILL NOT promise you employment benefits to discourage your support of the Union. WE WILL NOT discourage your activity or member- ship in the Union or any other labor organization, by discriminating against you if you choose to engage in activity for or to join the Union or any other union because the Board found that we did so discriminate when we fired employee Donald Newton and tem- porarily laid off employees Essie Hurt, Essie Cob- bins, Ella Woods, Rose M. Traylor, Shirley Smith, and Claudine Hicks. WE WILL offer to Donald Newton full reinstate- ment to his old job, and WE WILL pay him for any loss of earnings that he suffered because we fired him. If he is presently in the Armed Forces of the United States, we will notify him of his right to full reinstatement upon application after discharge from the Armed Forces. WE WILL pay Essie Hurt, Essie Cobbins, Ella Woods, Rose M. Traylor, Shirley Smith, and Clau- dine Hicks for any loss of earnings in the period of their layoff. WE WILL respect the rights of our employees to self-organization, or to form, join, or assist any labor organization, or to bargain collectively concerning terms or conditions of employment through representatives of their own choosing, or to refrain from any such activity; and WE WILL NOT interfere with, restrain, or coerce any employee in the exercise of these rights, except as these rights might be af- fected by a contract validly made under the National Labor Relations Act with a labor organization, whereby membership in the labor organization is a condition of employment after the 30th day following the date of the contract or the beginning of the in- dividual's employment , whichever is later. You and all of our employees are free to become or remain, or to refrain from becoming or remaining, mem- bers of any labor organization. Dated By DRAPERY MANUFACTURING CO., INC. (Employer) (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street , Kansas City, Missouri 64106, Telephone FR-4-5181.