Martin A. Gleason, Inc.

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin A. Gleason, Inc. and Gutterman Funeral Home, Inc. and Walter B. Cooke, Inc. and Local 100, Service Employees International Union, AFL-CIO. Cases 29-CA-3602, 29-CA-3604, and 29-CA-3605 December 6, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On July 30, 1974, Administrative Law Judge Irving M. Herman issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel, the Charging Party, and Respondents Gleason and Gutterman filed exceptions and supporting briefs, and Respondent Cooke and the General Counsel filed cross-exceptions and supporting briefs. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions' of the Administrative Law Judge and to adopt his recommended Order. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by re- questing its employees to provide it with copies of state- ments given by them to a Board agent. Contrary to our dissenting colleague, we find that the Respondent's conduct in the circumstances of this case would natu- rally inhibit its employees' desire to cooperate with the Board's investigative efforts and deter others from so cooperating. Backed by its economic power and in the context of other serious unfair labor practices, as in this case, an employer's request for statements given to the Board may be interpreted by the affected employees as an order with the consequent invasion of their Section 7 rights. Bayliner Marine Corporation, 215 NLRB No. ' As the record, exceptions, and briefs adequately present the issues and the positions of the parties , the Respondents ' requests for oral argument are hereby denied. 2 Chairman Miller would not adopt the Administrative Law Judge 's find- ing that Respondent Gleason violated Sec. 8(a)(1) of the Act by requesting employees to furnish copies of statements given in the course of the Board's investigation of the charges against Gleason. Chairman Miller would find the requests lawful inasmuch as they were made after the complaint had issued as part of Gleason's pretrial preparation . In addition, the requests were not accompanied by any coercive or threatening statements and com- pliance with the requests was completely voluntary . Furthermore, the Re- gional Office, which was aware of the purpose of the requests, did nothing to discourage the employees from obtaining copies of their statements and furnishing same to Gleason . The Chairman , therefore, would find that the requests were lawful . Robertshaw Controls Company, Lux Time Division, 483 F.2d 762 (C.A. 4, 1972). 11, and cases cited therein. Our dissenting colleague's reliance on the court's decision in Robertshaw Controls Company, Lux Time Division, 483 F.2d 762 (C.A. 4, 1972), is misplaced. There the court carefully distin- guished a long line of Board and court cases supporting our position herein, pointing out that in Robertshawthe request for statements was in the context of very minor unfair practices, involving a small number of em- ployees, and that there was no wholesale investigation by the Board of antiunion activities on the part of the company. The court concluded that the request in that case did not violate Section 8(a)(1) because of its "par- ticular and somewhat unusual facts." The instant case squarely meets the court's criteria for finding that, in cases, as here, where extensive unfair labor practices are alleged, an employer's request that its employees provide it with copies of statements given to the Board violates Section 8(a)(1). ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents Martin A. Gleason, Inc., and Gutterman Funeral Home, Inc., Brooklyn, New York, their offic- ers, agents, successors, and assigns, shall take the ac- tion set forth in said recommended Order; and the complaint against Respondent Walter B. Cooke, Inc., Brooklyn, New York, be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge : This con- solidated case was tried before me on April 30 and May 1, 2, and 6, 1974, at Brooklyn, New York. The charges were filed by Local 100, Service Employees International Union, AFL-CIO (herein called the Union) on October 18, 1973,' and duly served upon Respondents . 2 The primary is- sues are whether Respondents violated Section 8(a)(1) and (3) of the National Labor Relations Act, as ameded (29 U.S.C. Sec. 151 et seq.), herein called the Act, by locking out their funeral directors; conditioning the tatters' return to work upon their resignation from the Union ; and, in Case 29-CA-3602, requesting employees to furnish copies of state- ments given in the course of the investigation.' I All dates herein are in 1973 unless otherwise specified. 2 The consolidation was pursuant to order of the Regional Director dated January 25, 1974; Respondent's motions for severance were denied by the Chief Administrative Law Judge whose ruling was sustained on appeal to the Board on March 12, 1974. 3 The last issue was tendered by an amendment to the complaint at the hearing pursuant to notice of motion served February 20, 1974. Respondent objected on the ground that it had not been given an opportunity to address itself to the allegation by way of a response to the facts obtained by General 215 NLRB No. 33 MARTIN A. GLEASON, INC. 341 Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed on beha;" of the General Counsel and Respondent,' I make the following: FINDINGS AND CONCLUSIONS I RESPONDENT'S BUSINESS The complaint alleges, the respective answers admit, and I find that Respondents are New York corporations engaged in New York, New York, in the retail sale of funeral services and related products, that they each derived gross revenues therefrom in the past year in excess of $500,000, and each purchased and had delivered from other states to its places of business in New York goods and materials valued in excess of $50,000, and that each is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answers admit, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. bor Relations Division and Cooke each negotiated separately with the Union but they were unable to reach agreement. On October 12, the Union called a strike against three members of the Labor Relations Division other than Re- spondents Martin A. Gleason, Inc., and Gutterman Funeral Home, Inc. (herein called Gleason and Gutterman, respec- tively). Beginning in July a strike fund had been established by the Union through a $15 per week assessment on each unit employee as long as he remained at work during the negotia- tions. The Labor Relations Division members agreed that they did not want to support a strike against fellow members but left to each member the decision whether to lock out its employees as a countermeasure. Eighteen division members (involving 45 establishments) locked out all their unit em- ployees; 14 did not. Cooke also locked out all of its funeral directors at its 10 branches. The Union and the Labor Relations Division reached agreement on December 12. The entire union membership, including Cooke's employees, evidently participated in the ratification vote and, as a result of such ratification, all the locked-out employees, including Cooke's, returned to work.' We turn now to the facts relating to the lockouts by Glea- son, Gutterman, and Cooke. 2. Gleason III THE UNFAIR LABOR PRACTICES A. The Facts 1. Background For the 3-year period ending October 9, 1973, Respondents were parties to a collective-bargaining agreement with the Union covering all licensed funeral directors in the multiem- ployer unit comprising the Labor Relations Division of the Metropolitan Funeral Directors Association, Inc. (herein called the Association).6 In July 1973, and prior to the com- mencement of bargaining for a new contract, Respondent Walter B. Cooke, Inc. (herein called Cooke), withdrew from the Labor Relations Division (while retaining membership in the Association) and informed the Union of its intention to negotiate separately for a new contract.' Thereafter the La- Counsel through an ex parte investigation Quite apart from whether a departure from the usual practice (pursuant to the Board's Rules) of afford- ing such an opportunity ever forecloses proof of an allegation timely made in a complaint, Respondent here was put on notice over 2 months before the hearing that such amendment would be offered It thus had ample time to attempt to convince General Counsel that the allegation lacked merit I accordingly allowed the amendment 4 Sharing the view expressed in Respondents' brief (p. 12) that the tran- script of testimony herein "is a travesty of court reporting," but noting, as the parties evidently do, that complete reconstruction of the record is nei- ther possible nor necessary, I nevertheless believe some correction to be essential for sufficient understanding These errors have been noted and corrected 5 All briefs were due in Washington by June 3, 1974 Charging Party's brief was not received until June 7 Upon Respondent's protest, and absent any explanation for such untimely filing, Charging Party's brief has not been considered in arriving at my decision 6 The bargaining relationship long antedated that contract, the uncon- tradicted testimony of one employee of Respondent Gleason indicating the existence of a union shop as far back as 1961 a. The lockout On October 13, John Gleason (herein sometimes called Gleason), president of Gleason, informed Albert Philipps, Robert Gallagher, and Frank Connelly, Sr., that the Union had struck three members of the multiemployer unit as the result of an impasse in the negotiations, that a strike against one member of the group was a strike against all, that solidarity required the other employers in the unit to counter with a lockout of union members as a defensive, measure for "the duration of the strike," and that as of the close of busi- ness that day all of its employees who belonged to the Union were suspended.' Gallagher said he did not wish to be out of work and asked what his alternatives were, and whether there was anything he could do to continue working. Con- nelly testified that Gleason replied that since the contract had expired the men were no longer under any obligation to the Union and if they resigned they would be accepted back to work, and that in order to resign they would have to notify the Union by phone or telegram;1° that Connelly asked 7 Other Association members also bargain directly with the Union rather than through the Labor Relations Division 8 At least one Cooke employee who was on the Union's bargaining com- mittee in the direct negotiations with Cooke also participated on the Union's multiemployer bargaining committee 9 Gleason then employed four funeral directors, all of whom belonged to the Union and were in the bargaining unit The fourth such employee, Frank Connelly, Jr , was not working that day but got the message from his father that evening, and John Gleason likewise informed him by telephone the following day 10 Respondent's brief misreads this testimony as hearsay Although the transcript says "they stated that Mr John Gleason stated," the word "they" should read "he" and "he" refers to John Gleason, the witness simply having reidentified the speaker by name in lieu of the pronoun A dash between "that" and "Mr " would have reflected the testimony more accurately. Any other reading of this makes no sense 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether they would be able to rejoin the Union if a contract were subsequently reached, and Gleason said that the Union would have to readmit them so that at most it would cost them a new initiation fee and they could not be fined or otherwise discriminated against;" and that Gleason told them to think about it and let him know their decision, and whichever way it went there would be no hard feelings. According to Gleason, Gallagher, and Philipps, Gleason's response in substance to Gallagher's question about alterna- tives at the meeting was that he could not discuss that with them." Gleason, on cross-examination by his own counsel after being called as a witness under Section 43(b) of the Federal Rules of Civil Procedure, categorically denied that he had made any reference at the meeting to resignation from the Union. He twice testified, however, that he "believe[d] Gallagher had mentioned resignation and that he "continu- ously" replied that it was not his province to tell the men what to do. Gallagher, who followed Gleason to the stand, testified in this connection as follows: Q Did Mr. Gleason Make any comment at that meet- ing with regard to the option employees had to resign from the Union? A: No. He refused to comment on anything relating to that at all. Or relating to anything beyond what he had on a prepared text-sheet of paper. Philipps, the next witness, testified: Q: At any time did Mr. Gleason mention the word resigned or resignation from the union during that meet- ing? A: No, sir, he did not Q: At any time during that meeting did the subject of sending telegrams of resignation to the union come up? A No, sir. After a brief recess upon the conclusion of Philipps' tes- timony, Gleason was recalled to the stand for direct examina- tion by his counsel which began: Q: (By Mr. Gallay) Mr. Gleason, since we don't have a transcript of your earlier testimony I will try to avoid repetition. With regard to that meeting of the 13th did you or anybody else in that meeting raise the question of resignations and/or sending of telegrams to the union? A: Absolutely not. Further along in this examination Gleason was asked by his attorney whether he had had " any motivation for locking out [his] employees other than the one [he had] testified about earlier."" and he answered: 11 Gallagher recalled that Connelly had asked questions but could not recall their substance 12 General Counsel's brief gives too literal a reading to the testimony on this point by urging a distinction between Gleason's version that he could not tell the men what to do and Philipps' that Gleason gave "no responses . He could not discuss it with us," and by attempting to distinguish both versions from Gallagher's that Gleason said he could not comment beyond his prepared text Essentially their testimony is consistent that Gleason expressed an inhibition stemming from the Act A: You know, come to think of it, my mind is a little more refreshed in that regard, we were motivated to lock out the employees first in support of our members. And then also to bring an economic pressure upon the union in that regard. However, Gleason talked with Gallagher and with Philipps on the telephone later that day, according to the three of them. Gallagher again said he wanted to continue working, to which Gleason repeated that he could not talk about it at that time. Gallagher then said that he disagreed with the Union's stand and wanted to get out of the Union. Gleason replied, according to his testimony, "you know, you can't tell me that-I can't tell you what to do. When-whatever you do is within your own province. But I can't tell you what to do," and only when Gallagher insisted that he "had made up his mind" did Gleason discuss the details of resignation which required Gallagher's sending a telegram to the Union and furnishing a copy to Gleason as proof. Gallagher testified that Gleason's immediate reply to his statement that he would quit the Union was, "as long as you brought it up, I can speak about it, if you don''t want to belong to the union, he says, if you want to sever your membership in the union, he says, you can report to work"; and that Gallagher would have to bring a copy of the resignation he sent the Union as proof thereof. Gallagher dispatched a telegram of resignation to the Union on October 15 and gave a copy to Gleason who placed it in Gallagher's personnel file. Gallagher returned to work either the same day or the next day. On the evening of October 13, Gleason and Philipps testi- fied, Philipps telephoned Gleason." Gleason testified to that call as follows: •A. He said to me, he said I want to return to work. And he said I want to resign from the union . I said I can't tell you to do that. Q. And what did he then say? A. Well, he said I want to resign. He said and I want to return to work . I said to him again, I said I can't tell you to resign from the union . Whatever you do is within your own province. Q. And did he then make any proposals about resign- ing from the union to you? A. He said I am going to resign . He said my wife and I have talked it over and I have decided to resign. I said whatever you do, you do by yourself. That's within your own province to do whatever you do. Q. Do you recall when-whether he asked you what would happen if he sent a telegram to the union resign- ing his membership? A. No. He would ask me what would happen if he sent a telegram? Not in wording like that. Q. Did you give a statement to an agent of the Na- tional Labor Relations Board? A. Yes, I did. Mr. Joel Hoffman, I believe it was. i3 "[T]he one [he had] testified about earlier" was the defensive coun- teraction, the only motive he had mentioned at the October 13 meeting, according to the testimony of all witnesses 14 Philipps was then the Union's shop steward MARTIN A. GLEASON, INC. 343 Q. I call your attention to page four of this affidavit. With regard to the bottom paragraph, I ask you if you would read that to yourself. A. Yes. That's substantially correct. Q. Does that refresh your recollection of whether Mr. Philipps asked you-well, does that refresh your recol- lection as to what Mr. Philipps asked you? A. Yes. Q. Will you tell us what did he ask you at that point? A. Will you allow me to return to work? Q. And what was your response? A. I can't tell you what to do. Q. And then as you now recall the conversation would you tell us what was said? A. What would happen if he sent a telegram to the union resigning his membership. And I said you would have to show me a copy of your resignation, whichever way you handle it. He then said he would send a tele- gram. Q. This was the conversation-this was the context of a conversation about him returning to work? MR. GALLAY: Objection. JUDGE HERMAN: Overruled. A. The context of a conversation about his returning to work. Q. This was what the conversation was about, why he called you? A. He called me to tell me he was resigning from the union. Q. Wasn't the first thing he said-he asked you whether he could return to work? A. He asked me if he could return to work. I answered to him, I said I can't tell you what to do. No, I can't tell you to do that. Q. I am a little confused. You said you can't tell him what to do? A. He said also in that statement, I will resign from the union. I said I can't tell you to do that. Q. But Mr. Gleason, you state now that-and you stated in the affidavit-that you can't tell him what to do. At this point did he have any alternatives as far as you are concerned. Was he not locked out? MR. GALLAY: Objection. Argumentative? JUDGE HERMAN: Overruled. Answer the question. A. He was locked out. Q. So in effect he had no alternatives at that point, did he? MR. GALLAY: Objection. JUDGE HERMAN: Overruled. A. He had no alternatives to what? Q. As far as returning to work? A. He was locked out. Q. After this conversation did Mr. Philipps then come in to see you? JUDGE HERMAN: Before you get to that, let't get a little more on this telegram. So he was locked out, and how did the discussion of the telegram get into the conversa- tion? A. I'll have to refresh my memory on that and look in here again. He said what would happen if he sent a telegram to the union resigning his membership. JUDGE HERMAN: What was your reply? A. I said you would have to show me a copy of your resignation, whichever way you handle this,- JUDGE HERMAN: He would have to show you a copy for what purpose? A. Well, he would have to show me a copy to establish the fact that he did resign. JUDGE HERMAN: For what purpose? A. Because there was a lockout , and there was a strike on unions party against the bargaining unit of the Met- ropolitan Funeral Directors Associaton. JUDGE HERMAN: What would his resignation from the union accomplish? A. Well, the telegram would be indicative of the fact that if there was any reprisals and so forth he would be protected against those reprisals or fines. JUDGE HERMAN: What would you have to do with that? A. I wouldn't have to do anything with that. JUDGE HERMAN: What did you have-I mean when you say he would have to show you the telegram for what purpose? A. He would have to show me the telegram that he resigned from the union. JUDGE HERMAN: Why was it-why did you want to know if he resigned? A. Well, because why should I let him back to work. JUDGE HERMAN: You mean the resignation had some- thing to do with his coming back to work? A. The resignation had something to do with his com- ing back to work, no. I said-if he wanted to resign from the union, that was within his own province. That was not for me to influence him to do this . This was some- thing that he wanted to do, but I wouldn't accept him back unless he showed me a telegram. Philipps described the conversation thus on direct examina- tion: And I called him up, and I asked him, I said I would like to go back to work . He said well , do you know what you have to do? I said yes, I do. I believe I have to sever myself from Local 100. I was scheduled to come in to work the following morning, Sunday morning at nine o'clock. And I told him that I would be in the next morning, and when I got there I would send a telegram to th;, Local 100, and sever myself from the union in formal manner. On cross, he testified as.follows: Q. You stated to him that you would like to go back to work; is that correct? A. I did. Q. And you said that his response was do you know what you. have to do? A. No. He said you know what you have to do. Put it in a question form, you know what you have to do? And I said yes, I did. * * * 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. So that when you-when Mr. Gleason said to you do you know what you have to do or you know what you have to do, question mark, was there any particular backdoor statement that they gave you this knowledge of what to do? A. No. No. I just told him I believe I think I know what I have to do. Q. And then what was said at this point? What was his-you then said, I believe you stated on direct, you said I believe I have to sever myself from Local 100? A. Yes. Q. What was his response to that? A. He said all right, you come in to work tomorrow morning, nine o'clock and you can send the telegram then. Q. Had you suggested the telegram or was that the- A. No. I suggested the telegram. Philipps sent his telegram of resignation to the Union the following day (October 14). He then reported for work with a receipt from Western Union. Gleason at first refused to accept anything less than a copy of the wire as a condition of his return to work but ultimately settled for a certification by Philipps of its contents and a certification from Western Union that the wire had been sent. Frank Connelly', Jr., the unit employee who had not been at the October 13 meeting but who had been advised of the lockout by Gleason's phone call on October 14, talked with Gleason again on the phone on the morning of October 15 and arranged a meeting for that afternoon with Benson, a union official. In the course of that phone conversation, ac- cording to Connelly's undenied testimony, he asked Gleason what alternative he had to being locked out, and Gleason replied that the only thing he could do would be to resign from the Union, and to Connelly's questions to what would happen to him if he resigned, Gleason answered that he would not suffer because any contract thereafter concluded would contain a no-recrimination clause., The two Connellys later went to Gleason's office where they waited a considerable time until Benson arrived. Con- nelly, Jr., initially testified that while they were waiting they discussed the situation and he asked if they could resolve the matter without resigning from the Union, but he soon admit- ted that he could not recall whether he had raised that ques- tion on that particular occasion, and his father made no mention of that matter in his testimony concerning the period prior to Benson's arrival. After Benson joined them, accord- ing to Connelly, Jr.: Q., Do you recall what was said at that time, that meeting? A. Yes, let me think. At that time we were discussing the possibilities of going back to work other than resignation from the union and Mr. Benson was trying to, you know, find a solution as I am sure Mr. Gleason was at the time. I asked Mr. Gleason if it would be possible for-wait a minute now, I had told Mr . Benson beforehand, he told us our only alternative was resig- nation from the union. I believe Mr. Benson told him that that would be impossible for us to do. Wait a minute, I'm sorry, I didn't say that Mr. Benson-I'm getting very confused, I'm sorry. The event are very vague to me, I'm trying my best to recall exactly what happened. After refreshing his recollection, still on direct examination, by reading the affidavit he had given to the Board agent during the investigation, he added that he did ask Gleason at that time whether there were alternatives to resignation and Gleason responded negatively, saying that if he did not resign he could not work On cross, his testimony of the conversation in Gleason's office prior to Benson's appearance was as follows: A. We discussed this, we discussed the whole negotia- tions as a whole, you know, what problems were holding the thing up. This was the thing it was just a general discussion on the negotiations and of course, you know, we were trying to get ourselves back to work. That was the, you know, the point to the, what the point to the whole thing was. Q. Now you were looking for alternatives to being locked out? A. Right. Q. Was there anything else in that conversation A. Not that I recall at the moment. Q. You testified earlier that your wife was pregnant and you were concerned about benefits, is that correct? A. Yes. Q. Did you express that concern to Mr. Gleason? A. Yes. I asked-yes, I believe now that you bring it up that at that time this was part of the conversation also. What if we were to resign, what in effect would hap- pen to us, would we lose our benefits, our pension rights or whatever? Whatever fringe benefits were offered to us by the union, that was all part of the conversation. Q. You asked Mr. Gleason that question? A. Yes. Q. At anytime during that conversation did Mr. Glea- son suggest to you that you resign? A. Well, he during the conversation itself, yes, he said well in effect what he said was if you resign I will protect you, I will not sign a contract without a no-recrimination clause. Q. Did he ask you to resign or did he give you it as an alternative after you raised it he then told you what the facts of life were after you raised the question? A. Yes. Q. That's what you asked for the meeting for, wasn't it? A. Yes. Q But he never advised you to resign? A. It depends-I guess not. Q. He never asked you to resign? A. No, it was more an alternative. MARTIN A GLEASON, INC. Following Benson's arrival, according to Connelly, Jr., they talked about the possibility of resigning, and Benson said the Union would not accept their resignations during the negotia- tions; that in the past people had been disciplined by the Union therefor; and that Gleason repeated his positon that he would not sign a contract without a no-recrimination clause." Connelly, Sr., was unable to recall, on direct examination, any reference to the Union in his account of the October 15 meeting, recalling only that Benson asked that the lockout be terminated and Gleason replied that it could not because a strike against one employer was a strike against all: But on cross he testified that after Connelly's assertion of the princi- ple of solidarity "there was discussion about what could hap- pen later on," including whether "there would be any penal- ties assessed"; that Gleason said that the employees could return to work only if they resigned from the Union, which, he asserted, they were free to do because the contract had expired; and that Benson took the position that they were still bound to remain members and abide by the Union's rules, and that fining returning workers was "a possibility." He could not recall whether his son said anything during the meeting. He also testified, after having denied the possibility that any of the comments he had placed at the meeting of October 13 had actually been made on October 15, that "I could possibly transpose both meeting together. I am not that positive on it." Respondent offered no evidence regarding either Gleason's phone conversation with Connelly, Jr., on October 15 or any of Gleason's conversations that day with the Connellys or Benson. b. Gleason 's requests for the investigative statements Shortly after the issuance of the complaint herein, Gleason asked his employees if they would mind supplying copies of the statements they had given the Board agent during the investigation . He indicated he was not requiring them to do so. Each readily complied after obtaining a copy from the Regional Office.16 3. Gutterman At about 12:30-1 a.m. on the morning of October 14, shortly after returning to Gutterman's Manhattan location after completing the removal of a corpse, Frank Marinaro and August Tolomie" were informed by Michael Gutter- man (herein sometimes called Gutterman), secretary of Gut- terman, that "no members of the local can continue to work," or that "no members of local 100 would be allowed to 15 Connelly, Jr , conceded that he had falsely stated in .a prior affidavit he gave the Company that Gleason had not commented at that time on Ben- son's statement 16 The sole indication of hesitancy on the part of any employee in this connection was the following statement by Connelly, Sr , in his request to the Regional Office I am doing this at the request of my employer I would like to ask you if this will jeopardize my position in this matter I don't believe that it will but I want to be sure If you consider this hazardous please advise me 17 Marinaro was senior shop steward and a picket captain as well as on the Union's negotiating team, he and Tolomie were "the most conscientious picketers during the lockout " 345 work."'a He told them that this was at the direction of the Labor Relations Division's negotiating committee, and was akin to the strike action taken 3 years previously by all the employees. Gutterman expressed the hope that there would be no hard feelings and accepted Mannaro's offer to notify Gutterman's other unit employees. Gutterman denied that there was any mention by anyone of resignation from the Union. Mannaro and Tolomie testified, however, that Gut- terman did tell them that on advice of counsel, if they wanted to return to work they would have to notify the Union of their resignation in writing," and that they "would rejoin the union" after the settlement of the dispute; that Marinaro asked if Gutterman would compensate them for any fine imposed by the Union and Gutterman replied that there would be no fine. Tolomie testified he reported this con- versation to the Union the next day but Marinaro testi- fied he (Marinaro) did not report it until about a week later. None of the employees resigned. 4. Cooke Carlo Bonura, who was a member of the Union's bargain- ing committee, was officially informed of the lockout on Sun- day, October 14, by Manager Adams and Assistant Manager Montimurro20 of the Parkchester branch where he worked. On direct examination he testified that they said that "the employees belonging to [the] Union" were not to report to work and that they regretted this decision but could do noth- ing about it and hoped that there would be no hard feelings On cross, he did not mention the Union in describing this conversation but said he was told that "none of the licensed men" would be working from then on. Bonura was a picket captain and may have started picket- ing that day, but his first full tour of picket duty ran from midnight of October 14 to 8 a.m. on October 15. At around 8 a.m. of that day, according to his direct testimony, in front of the entrance, Montimurro told him that if he quit the Union he could come back to work. On cross, after having brought to his attention the affidavit he gave during the inves- tigation, he placed the incident in the afternoon of October 15. Bonura also testified that Montimurro made a similar statement to him at the same location on October 26 while another very active picket, Roger Davis, was only a foot or two away. Davis corroborated this testimony. According to both of them, Montimurro initiated the statements, although Bonura admitted, in answering a specific question on cross, that he (Bonura) might first have mentioned that there had been resignations at other funeral establishments Mon- timurro testified that the subject arose on just one occasion, within a week or two after the lockout, when employee Car- ' Gutterman denied using the word "lockout," insisting he said "defen- sive counteraction " Marinaro could recall no term other than "lockout" and specifically could not recall "defensive counteraction " Tolomie testi- fied Gutterman said they were "put out on the street" or "put out of the building", he could recall the use of no other term, and specifically "defensive counteraction," denied the term "lockout" was used, and testi- fied that Gutterman either shrugged his shoulders when Marinaro asked if it was a lockout or specifically denied that it was a lockout 19 By letter, according to Marinaro Tolomie said Gutterman had speci- fied letter or telegram and required notification to the Association as well 20 Cooke employs about 30 assistant managers overall In the negotiations the Union took the position that none of them were supervisors. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dinale- asked' him whether he had heard that some men had returned to work at another establishment after telegraphing their resignations from the Union; and he replied in the pre- sence of Bonura and Davis that' "I guess you guys can do the same thing . I'm not telling you to do this. You can come back any time you want to. You must let your conscience be your guide." Montimurro, however, denied the statements as at- tributed 'to `him by Boriura and Davis, specifically denying that he "mentioned `quit the union' per se," and testified that he had received no instructions from his superiors as to what to say about the lockout. None of the employees resigned. Bonura admitted that his attempts to uncover similar state- ments by Montimurro to other employees proved unsuccess- ful. Pickets entered the Company's premises at times during the lockout to use the toilet facilities and for other reasons, and engaged in conversations with many assistant managers and other corporate officials. B. Concluding Findings 1. Factual conclusions a. Gleason The foregoing recital shows that at the very least, Gleason conditioned a return to work during the strike upon its em- ployees' resignation from the Union," albeit upon the suggestion of the employees themselves and with the under- standing that the employees would rejoin the Union there- after. As I indicate below, it therefore becomes unneces- sary to resolve the testimonial conflicts between General Counsel's and Gleason 's witnesses. b. Cooke Nor is there a need to resolve any testimonial differences between Montimurro and General Counsel's witnesses in view of Montimurro's admission that in response to an em- ployee's question, in the presence of other employees, as to whether he had heard of locked-out employees at another company returning to work after telegraphing their resigna- tions from the Union, he stated, " I guess you guys can do the same thing. I'm not telling you to do this. You can come back any time you want to. You must let your conscience be your guide." This meant the employees could return any time they resigned from the Union-and not until then.22 c. Gutterman Although Michael Gutterman denied making any state- ment concerning the employees' return to work, he did testify to having told his employees, in announcing the lockout, that "no members of the local" could continue to work. While perhaps more subtle than a direct invitation to quit the 21 That resignation was indeed a condition of return , even on Gleason's evidence, is demonstrated by its firm insistence on proof thereof , especially in Philipps' case 22 I do not credit Bonura's testimony on direct examination that when the lockout was announced he was told that it applied to "the employees belong- ing to [the] Union," in view of his failure to mention the Union on cross and restating the announcement so as to confine its application to "the licensed men " Union, the statement's plain import was that nonmem- bers of the Union could work. Hence the Company's con- tention that the reference to members is not significant because all unit employees were union members is less than compelling. If non-members could work, resignation was the remedy. In view of this message, no credibility determinations are needed here either. 2. Legal analysis23 The principal precise question posed here is whether em- ployers who are part of a multiemployer bargaining unit may lock out their employees to avoid being whipsawed during contract negotiations and condition their return to work for the duration of the strike upon their resignation from the labor organization representing them in the bargaining. The General Counsel never quite faces up to this issue but rather treats the case in a more or less perfunctory manner befitting the usual situation where employees suffer coercion related to union activity. Thus he tersely urges the statement that the employees could return to their jobs if they resign from the Union as boilerplate 8(a)(1) violations wholly independent of the nature and legal posture of the employees' status at the time, and fails to consider the relation between such state- ments and the possibility that he may not prevail on his major contention as to the illegality of the lockouts.24 Indeed the conclusion that there has been an 8(a)(1) violation becomes a bootstrap for the alleged 8(a)(3). This is putting the cart before the horse because it fails to meet Respondent's conten- tion that their25 conduct here, even on the General Coun- sel's facts, constitutes only another privileged consequence of Buffalo Linen.26 It is necessary to keep in mind that unlike the ordinary situation where an employer is not free to base hiring or layoff on union activity, the employer here would have been free to lock out their union employees (all their employees in the unit) and replace them with nonunion per- sonnel for the duration of the strike. N.L.R.B. v. John Brown, et al., 380 U.S. 278, 286, 288, 297, (1965).27 The narrow le- gal issue, as I view it, is whether conditioning the employees' return on their resignation from the Union is a valid alterna- tive to the Brown power of replacement. As a matter of pure logic, it might appear so. If an employer may properly refuse to retain his employees and use "temporary nonunion [strangers] in preference to the locked out union members" (Brown at 288), he might logically-perhaps a fortiori-be able to recall the locked-out employees when they satisfy the same nonunion condition. Or, stated differently, since the employees' union status would warrant their continued exclu- sion from their jobs for the duration of the strike, logic would seem to permit the employer to condition their return, while the strike lasts, on their shedding that status. Resolution of the issue, however, involves further 23 Crystallization of the issues at the hearing, and as reflected in the briefs, has mooted Respondent's motions to dismiss certain allegations of the com- plaint on which I had reserved decision 24 The General Counsel sees no violation in any of the lockouts per se. 25 The applicability of this to Cooke is discussed infra. 26 NL.R.B. v. Truck Drivers Local Union, No. 449, 353 U S 87 (1957) 27 The case in respect to the statements may thus more closely resemble a threat of discharge under a valid union -security clause although the analogy is of course not entirely apt since the latter involved a duty as well as a power and since the separation of the employee there is permanent. MARTIN A. GLEASON, INC. 347 considerations.28 "The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility. . .." Truckdrivers Local 449 at 96 The propriety of preferring nonunion personnel as replacements was justified in Brown not becaue it was not discriminatory-the Court held it was-but only because "any resulting tendency to discourage union membership [was] comparatively remote,29 and that this use of tempo- rary personnel constitute[d] a measure reasonably adapted to the effectuation of a legitimate business end." Brown, at 288. The instant cases are distinguishable, in my opinion. The tendency to discourage union membership is certainly less "remote" where resignation from the Union, even just for the duration of the strike, becomes the price for keeping one's job during that period. In addition to the direct and immediate effect of such resignations, other natural and foreseeable consequences thereof may reasonable be expected to survive the end of the strike. Whereas the temporary hiring of stran- gers might well tend to solidify the Union's ranks both during and after the strike, the employees who resign are likely to return to the Union at the conclusion of the strike30 with a diminished loyalty to the Union and with the stage set for internal dissension." That the employees were in fact quite concerned about possible recriminations is manifested gener- ally by the references to fines in a prior strike and specifically as to Gleason. "Both Mr. Gallagher and Mr. Philipps were well aware that they would have eventually to reestablish t:iemselves with Local 100 and bear the ire of that organiza- tion for resigning and working during the lockout; particu- larly Mr Philipps who had been the Shop Steward." Of at !east equal importance is the fact that John Gleason, like the other Association members, was aware of this concern and its background. If these circumstances do not render the conduct "so inher- ently destructive of employee interests [that it] could not be saved from illegality by an asserted overriding business pur- pose pursued in good faith" (Brown at 287), they at least undermine any contention that the conduct was "reasonably adapted" to the effectuation of such a purpose (id. at 288). Employers should not be allowed to rely on the principle of solidarity to destroy or seriously weaken the solidarity of the union and jeopardize its future stability.32 As the dissenting Board members in John Brown, et al. d/b/a Brown Food Store, 137 NLRB 73, 77 (1962), (who ultimately prevailed in 28 See Holmes, The Path of the Law, in Collected Legal Papers (Harcourt, Brace, 1920), 167, 180-181, expanding on his "the life of the law has not been logic, it has been experience," from The Common Law 29 Respondent's reliance on the employees' Section 7 right to refrain from supporting the Union, including the right to resign, contributes nothing analytically That right is present in every case under the Act But it does not normally enable an employer to induce or encourage defection from a union, still less by conditioning job eligibility on withdrawal from the union 30 Assuming, as here, the existence of a union-security clause. ' 3i The 8(a)(3) proscription of discouragement of membership encom- passes discriminatory conduct designed to discourage "good" union mem- bership "as well as adhesion to union membership " Radio Officers' Union v NL.R B, 347 U S 17, 39-40 32 For this reason it is of slight moment that Respondents continued to bargain with the Union. A debilitated union becomes subject to decertifica- tion proceedings at an appropriate time and in any event a poor prospect for future bargaining if indeed it manages to remain a viable organization at all the Supreme Court) were careful to observe, the temporary replacement of the employees did not affect their "union adherence." And if the Court's observation there .that " a union member'would have nothing to gain , and much to lose, by quitting the Union" (380 U.S. at 289) is equally applicable here as to loss, it is somewhat less applicable as to gain in view of the continuing earnings specifically offered. Even crediting Gleason 's evidence that the offer followed Gallagher's and Philipps' announcements to John Gleason that they had decided to quit the Union provides small com- fort to that Company . If, as indicated above and as John Gleason believed , the Company could not itself have sought the resignations by conditioning return thereon , it could not have accepted their tender by the employees as the price of return just as it could not have withheld a wage increase until its employees "volunteered" to forgo their support for a union, or just as it could not have discharged its employees forjoining a union and rehired them when they "voluntarily" shredded their membership cards. Whether the price is de- manded by the employer or offered by the employee who is being deprived of the particular benefit at stake , the effect is the same : The employer is using his control over the employ- ment relationship as the lever for influencing the employee's exercise of his statutory right. The crucial question is whether the case fits Brown. If it does, the Employer may use his control as he pleases ; but if, as I believe, the requirement of resignation distinguishes the case from Brown, it does not matter whether the Employer expressly and affirmatively sol- icits the resignation or merely grasps the opportunity ex- tended by the employee, who, knowing resignation to be the only possible way of returning to work,33 himself proposes it. 34 The foregoing, except for the specific facts relating to Glea- son, also applies to Gutterman , and applies as well to Mon- timurro's conceded statement in Cooke so as to render that statement coercive, even according Cooke the full Buffalo Linen privilege despite its withdrawal from the multiem- ployer unit . 3S And if Montimurro's conduct cannot find jus- tification in Brown, which recognized a privilege to continue operation of a plant with temporary replacements during a defensive lockout in a multiemployer unit , even less can it 33 Philipps, whom I credit over Gleason, certainly "kn[e]w what [he had] to do," and said so when Gleason asked him There was no evidence that he possessed ESP, but it would not have mattered if he had 34 I am not impressed by Gleason's argument that the statements and events relating to the return to work were (on its evidence) "after the fact" and cannot "create retroactively any improper motivation with regard to the decision to lock out " All the events occurred on the same day, and the entire matter had to be in John Gleason's mind at the earlier meeting when he announced the lockout and (again on Gleason's evidence) refused to answer questions about "alternatives," saying he could not discuss that Cf Wire Products Mfg Corps, 198 NLRB 652 35 See Evening News Association, 166 NLRB 219, 222 ( 1967), cited by Cooke, holding a lockout valid on the basis of the Supreme Court's decision in American Ship Building Co. v N.L.R B, 380 U S 300 (1965), superim- posed on Buffalo Linen, where the respondent employer, although not technically engaged in multiemployer bargaining with the only other daily newspaper in Detroit (which had been struck), was in direct competition with the latter, was bargaining with the same union, was faced with virtually identical bargaining demands concerning renewal of contracts that had ex- pired on the same date , and had itself been threatened with a strike when the union suspended negotiations It is noteworthy , however, that the Board upheld the lockout on the ground that "The interest of the News in using economic pressure to implement its own bargaining *as thus grounded upon a very real, direct, and immediate bargaining monvatiorAon its own behalf " 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find support in American Ship36 where, on the same day that the Court decided Brown, it not only specifically reserved the question of the legality of operating with replacements during an offensive lockout (380 U.S. at 308, fn. 8),31 but also noted, "There is no claim that the employer locked out only union members, or locked out any employee simply because he was a union member; nor is it alleged that the employer conditioned rehiring upon resignation from the union." (id. at 312). I find that the imposition of the con- dition here, if attributable to Cooke, would supply the ingredient lacking in American Ship, i.e., "an intention to discourage union membership" (id. at 313).31 However, I am unable to conclude that either the statement admitted by Montimurro or the statements attributed to him by the General Counsel suffice to establish an unlawful mo- tive on the part of Cooke Even though that company is liable for the coercive tendency of the statement or statements, the validity of its lockout must turn on its motive." And while Montimurro's statements constitute some evidence of that motive they are not sufficient, standing alone, to warrant such a finding. He was but 1 out of 30 assistant managers (whose supervisory status was challenged by the Union in the negotiations), serving at a single branch out of ten operated by the company. If the statements in question reflected com- pany policy, it would be reasonable to expect that similar urgings would have emerged elsewhere, and possibly from a higher level of authority. Indeed I do not believe any order at all to be warranted against Cooke on the basis of the single statement or two made in these circumstances I accordingly conclude that Gleason and Gutterman vi- olated Section 8(a)(1) and (3), but that despite Cooke's viola- tion of Section 8(a)(1) through Montimurro's statement or statements, the complaint against Cooke should be dismissed. 36 Also urged as applicable to Cooke 31 See Inland Trucking Co ei al., d/b/a/ Oshkosh Ready-Mix Co, 179 NLRB 350 (1969), enfd 440 F 2d 562 (C A 7), cert denied 404 U S 858 (1971), but see Inter-Collegiate Press, 199 NLRB 177 (1972), affd sub nom Bookbinders Local No. 60v N.LR.B, 486 F 2d 837 (C A 8, 1974), Ottawa Silica Company, 197 NLRB 449, affd , 482 F 2d 945 (C A 6 (1973)), cert denied, 85 LRRM 2465 (1974) 38 I would reach the same conclusion in respect to Gleason and Gutter- man if certain ambiguous remarks of Respondent's counsel required passing on an American Ship defense as to those companies If such a contention is intended, however, despite the failure to advance it clearly, as it was advanced in the case of Cooke, I would reject it as not grounded on the record Both Gleason and Gutterman repeatedly testified to their having informed their employees that the lockouts were only defensive counterac- tions And Gleason's testimony in this respect was corroborated by his witnesses, Gallagher and Philipps The sole variance was Gleason's tes- timony when recalled to the stand after ample opportunity to consult with counsel about his earlier testimony, and in answer to the question whether he had had any other motive "than the one you have testified about earlier," he stated A You know, come to think of it, my mind is a little more refreshed in that regard, we were motivated to lock out the employees first in support of our members And then also to bring an economic pressure upon the union in that regard. I discredit this testimony as completely fabricated and entirely at odds with all the earlier testimony And since there is no credible evidence that either Gleason or Gutterman entertained any motive other than the defensive counteration, as explained to ther employees, they may not rely on any such motive now Cf NLR B v. Great Dane T r a i l e r s , Inc, 388 U S 26, 34-35 (1967) 39 As indicated supra, General Counsel does not attack the lockout except on the basis of Montimurro's alleged statements Gleason's Requests for the Employees' Statements Notwithstanding the voluntary character of Gleason's re- quests for the copies of the employees' statements and the willingness of the latters' compliance therewith, applicable Board law, supported by respectable judicial authority, re- quires a finding that Gleason's conduct in this respect vi- olated Section 8(a)(l) E g., Robertshaw Controls Co., 196 NLRB 449, 455-456 (1972), enforcement denied in this re- spect, 483 F.2d 762, 766-770 (C.A. 4, 1973); Braswell Motor Freight Lines, 156 NLRB 671, 672, fn. 1, 675 (1966); Texas Industries, Inc. v. N.L.R.B., 336 F.2d 128, 133-134 (C.A. 5, 1964); Surprenant Manufacturing Co. v N.L.R.B., 341 F.2d 756, 762-763 (C.A. 6, 1965); Retail Clerks Internation As- sociation v. N.L.R.B., 373 F.2d 655 (C.A. D C., 1967). CONCLUSIONS OF LAW 1 Respondents are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Gleason has violated Section 8(a)(1) and (3) of the Act by locking out its licensed funeral directors and conditioning their return to work upon their resignation from the Union. 4. Gleason has violated Section 8(a)(1) of the Act by re- questing its employees for copies of statements they furnished the Board in the course of the investigation of the charge herein. 5. Gutterman has violated Section 8(a)(1) and (3) of the Act by locking out its licensed funeral directors and condi- tioning their return to work upon their resignation from the Union. 6. Cooke has violated Section 8(a)(1) by Montimurro's informing its locked-out employees that the only way they could return to work was by resigning from the Union. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Cooke did not violate the Act by its lockout of its lic- ensed funeral directors. REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require Respondents Gleason and Gutterman to cease and desist therefrom and from any like or related conduct. In order to effectuate the policies of the Act, my recommended Order will also require said Re- spondents to make their locked-out employees whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he would have earned during the period of his lockout, less net earnings during such period, to be computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend the usual posting of notices by both of said Re- spondents. Upon the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: 11 MARTIN A. GLEASON, INC ORDER40 A. Respondent Martin A. Gleason, Inc., its officers, agents, successors, and assigns, shall- 1. Cease and desist from: (a) Informing any employee during a bargaining lockout that they will not be permitted to return to work for the duration of the bargaining dispute unless they resign from Local 100, Service Employees International Union, AFL-CIO. (b) Locking out its employees with the intention of barring their return to work for the duration of a bargaining dispute unless they resign from Local 100, Service Employees Inter- national Union, AFL-CIO. (c) Asking its employees for copies of statements they fur- nished the Board in the course of the investigation of a charge. (d) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Make whole its locked-out employees for any loss of earnings they may have suffered by reason of the discrimina- tion against them during the lockout period in the manner set forth in the section of this Decision entitled "Remedy." (b) Post at its principal place of business at New York, New York, and at such other establishments as it may operate, copies of the attached notice marked "Appendix A."41 Co- pies of said notice, on forms provided by the Regional Direc- tor for Region 29, after being duly signed by an authorized representative of Respondent Martin A. Gleason, Inc, shall be posted by said Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing, within 20 days from the date of this Order, what steps said Respondent has taken to comply herewith B. Respondent Gutterman Funeral Home Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Informing any employee during a bargaining lockout that they will not be permitted to return to work for the duration of the bargaining dispute unless they resign from Local 100, Service Employees International Union, AFL-CIO. (b) Locking out its employees with the intention of barring their return to work for the duration of a bargaining dispute 40 In the event no exceptions are filled as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board , the find- ings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 41 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States,Court of Appeals Enforcing an Order of the National Labor Relations Board " 349 unless they resign from Local 100, Service Employees Inter- national Union, AFL-CIO. (c) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Make whole its locked-out employees for any loss of earnings they may have suffered by reason of the discrimina- tion against them during the lockout period in the manner set forth in the section of this Decision entitled "Remedy." (b) Post at its principal place of business at New York, New York, and at such other establishments as it may operate, copies of the attached notice marked "Appendix B."42 Co- pies of said notice on forms provided by the Regional Direc- tor for Region 29, after being duly signed by an authorized representative of Respondent Gutterman Funeral Home, Inc., shall be posted by said Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken by said Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing, within 20 days from the date of this Order, what steps said Respondent has taken to comply herewith. C. The complaint against Walter B. Cooke, Inc. (29-CA-3605) is dismissed. 42 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT inform any of our employees during a bargaining lockout that they will not be permitted to return to work for the duration of the bargaining dispute unless they resign from Local 100, Service Employees International Union, AFL-CIO. WE WILL NOT lock out our employees with the inten- tion of barring their return to work for the duration of a bargaining dispute unless they resign from Local 100, Service Employees International Union, AFL-CIO. WE WILL NOT ask our employees for copies of state- ments they furnished the Board during the investigation of a charge WE WILL NOT interfere in any similar manner with our employees' rights under Section 7 of the National Labor Relations Act. WE WILL make whole our locked-out employees for any loss of earnings they may have suffered during the lockout period by reason of the discrimination against them. MARTIN A. GLEASON, INC. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT infrom any of our employees during a bargaining lockout that they will not ber permitted to return to work for the duration of the bargaining dispute unless they resign from Local 100, Service Employees International Union, AFL-CIO. WE WILL NOT lock out our employees with the inten- tion of barring their return to work for the duration of a bargaining dispute unless they resign from Local 100, Service Employees International Union , AFL-CIO. WE WILL NOT interfere in any similar manner with our employees' rights under Section 7 of the National Labor Relations Act. WE WILL make whole our locked-out employees for any loss of earnings they may have suffered during the lockout period by reason of the discrimination against them. GUTTERMAN FUNERAL HOME, INC.