Lewis, Fred, Carpets, Inc.

FRED LEWIS CARPETS, INC. Fred Lewis Carpets, Inc. and International Brother- hood of Painters and Allied Trades, Painters Union Local No. 294, AFL-CIO. Case 32-CA- 3044 March 11, 1982 DECISION AND ORDER BYs CHAIRMAN VAN IE. WATElR AND MEMBERS FANNING AND ZIMME RMAN On August 4, 1981, Administrative Law Judge Burton Litvack issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order,' as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied and set out in full below, and hereby orders that the Respondent, Fred Lewis Carpets, Inc., Fresno, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing the discharge of employees because they engaged in union or other protected concert- ed activities. I We noir , inl r rclt c I tile Adfrliltltraic I iax J tig¢' taterltnicl ill sec 1. par 2. it hils I)etllrll. that d the Board ha, , eil .I Ih;lr.rlilllnig orlCer appropriate alhCl tIlllllig O' ellilill o llajrls s.oilllt , i,uhlbseqlCii t I1 hit Decilsirln [iI reiriiid froirn ti . ' S tilurt iof Appeals tfir tie I hlud (' i- cuit the IBardil il d rampd Dair t rx ('l(a, pr C t ,i rati, lidIl. 2 7 NLKRB 772 II ihl). I rs t'l d . h argaliiling order l t i i. ilhcil. co ta rd llal Iorll MSlerihber I .lililig ;Idheres It his pr(itirnill as setr for It 1 the origl- nal Decision taid ()rder irl (l irlid D)il, Far r. C,, ',r r r l .livi . ' I..llltOl, 242 NI Rlt 112h ('l)7')), that the rBoard pr'ssesses tile Lthorit to1 Istic iL nloinnlajorit. hbargalnirllg order tic del,o nolt h}o10euer. tiiid tlhe ilrt inil- stlle',S in this :as'e \iarrant uch aii order Nicltlhc[ Ziliiefrr rllerl, Ahoi participated in tilh SupplrlCementl Decisiil inl I ilid D)oirl. recitglil/i] 1th Third Circ.lll t's decisir is hinding (im the iiori-d onir for purpo es oft dle ciding that cilse In the insltarl calse. hi' and (h.illrmalri \a .1i dJti Water ftid II unnecessary to dtcernlile \t rhclher rte IBolardl ti' .aluthAori t 1ti IIrfi)OSe noliiai Jrrit}l harg.illllriig order 'inI'e the\! ,ouldII .i. ii i illi '\! sC i gri lli huch air order herc Chairman \ iii de z aitcr hiis erliol, rescr';t\lo 's ithair clpll..\, Schlveiler anrd i.arlram.r ,cr [coi'risic I \e] di}lLargCi 011 iilt.' ftsrs oti forth bh the AdmirliistIal'it I ;I; Judge a ] i' .is i adoplriig tsiul liidilngs soler, , heCinC a it tile i hIr ci 'l . .1 1 \i t 'pIt11. thItrvi ' re sh;ll ii .l..ti Ill ir,\rlllrll irallc I ix\ JIudIge s rec, ilrTiTitlleClll Order tIi cX rrect l . riiii il;ltJI 'rtIe tri t e rs i111.d 1o i-wlrSii till eilT (b) Threatening to close the business for unspeci- fied periods of time because employees engaged in union or other protected concerted activities. (c) Warning employees that it would never go union, in order to induce them to believe that union activities are futile. (d) Threatening employees that it would become bankrupt as a consequence of their choosing a union as their collective-bargaining representative. (e) Inviting union supporters to work elsewhere and Warning employees that union activities and continued employment are incompatible. (f) Impliedly promising economic and other benefits to employees in order to induce them to forgo union activities. (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer employees William Schweizer and Robert Bartram immediate and full reinstatement to their former positions of employment or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of wages they may have suffered by reason of their discharges, in the manner described in the section of the Admin- istrative Law Judge's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Fresno, California, office copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Di- rector for Region 32, after being duly signed by Respondent's authorized representative, shall be posted by 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 Re- I 1 1i c11 '\ nll I t t I 1 11 (} rcl is Cll]'lltc' il hi ;I i JId ellg n 1 i l aI .I t rnicd Stlate', lt t ' r Appeal.' , thi . iuord, in1 the mm1tice reading I'-i(, d hs ()rdcl tI N iiiiinal l. hor RclilonI. rs ltoard" Ial.l read s I'Io',tl lilro II" 1111 III ,l I '. 1 'li 11 e l hi lt lr d SliteI, ( 'Mr1 1 u f .\ppcAl, Ir i, lllrl, I iI ()hdcl I. t ,1l Nii a [l.l I ahl RKL./R itl llm iB r.l"rd 260 NLRB No. 108 843 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent vio- lated Section 8(a)(l) of the Act by unlawfully in- terrogating employees and requests that a bargain- ing order remedy be issued herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT cause the discharge of em- ployees because they engaged in union or other protected concerted activities. WE WII.L NOT threaten to close the business for unspecified periods of time because em- ployees engaged in union or other protected concerted activities. WE WIL L NOT warn employees that we will never go union, in order to induce them to be- lieve that union activities are futile. WE WILL NOT threaten employees that we would become bankrupt as a consequence of their choosing a union as their collective-bar- gaining representative. WE WILL NOT invite union supporters to work elsewhere and warn employees that union activities and continued employment are incompatible. WE WILL NOT impliedly promise economic and other benefits to employees in order to induce them to forgo union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WIL. offer William Schweizer and Robert Bartram immediate and full reinstate- ment to their former positions of employment or, if those positions no longer exist, to sub- stantially equivalent positions, without preju- dice to their seniority or any other rights or privileges previously enjoyed, and WE WIl L make them whole for any loss of wages they may have suffered as a result of our discrimi- nation against them, with interest. FRED LEWIS CARPETS, INC. DECISION STATIIMENT OF THE CASE BURTON LITVACK, Administrative Law Judge: This matter was heard before me in Fresno, California, on February 24, 1981. On October 16, 1980,1 the Regional Director for Region 32 of the National Labor Relations Board, herein called the Board, issued a complaint, based upon original and first amended unfair labor practice charges filed on September 5 and October 14, respective- ly, by International Brotherhood of Printers and Allied Trades, Painters Union Local No. 294, AFL-CIO, herein called the Union, alleging that Fred Lewis Carpets, Inc., herein called Respondent, engaged in acts and conduct violative of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act, and re- questing, as a remedy for the aforementioned allegations, that a bargaining order should issue. Respondent filed an answer, denying the commission of any unfair labor practices. All parties have been afforded full opportunity to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to file briefs, which have been care- fully examined. Based upon the entire record, the post- hearing briefs, and upon my observation of the demeanor of the witnesses, I make the following: FINDI)INGS OF FACT 1. JURISDICTION Respondent, a California corporation, with an office and principal place of business in Fresno, California, is engaged in the nonretail installation of carpeting. During the 12-month period immediately preceding the issuance of the complaint, w hich period is representative, Re- spondent received in excess of $50,000 for services pro- vided to A & M Carpets, a California corporation en- gaged in the retail sale of carpets. A & M Carpets pur- chases and receives goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. Based upon the foregoing stipulation of the parties and the record as a whole, I find that Re- ' ulles, othcr .ic ,tartd, all daie, herell n c:uLrrcd inl 1980 844 FREI) I.1 WIS CARPFIS. IN( spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. I 111 I AHOR OR(;ANIZAI ION The record establishes that the Union is an organiza- tion in which employees participate and which bargains collectively with employers concerning wages, rates of pay, hours of work, and other terms and conditions of employment and processes grievances on behalf of em- ployees. Respondent does not contest, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. iiI. THE ISSUES 1. On or about August 28 did Respondent violate Section 8(a)(1) and (3) of the Act by causing the termina- tion of employees William Schweizer and Robert Bar- tram? 2. On or about August 28 did Respondent violate Section 8(a)(1) of the Act by the following acts and con- duct: (a) Informing its employees that selection of a union to represent them would be futile by stating that it would never accept a union. (b) Threatening to close the business for 3 weeks be- cause of the employees' union activities. (c) Threatening to terminate employees by informing those employees who desired union representation that they could work out of the union hall. (d) Impliedly promising benefits to employees in lieu of union representation. (e) Interrogating employees regarding their union sym- pathies. 3. Assuming the commission of unfair labor practices, should a bargaining order remedy be issued, ordering Respondent to recognize and bargain with the Union? IV. THE AI. lCi EI) UNFAIR lABOR PRACTICES A. Facts Respondent is engaged in the nonretail installation of carpet in Fresno, California, performing said work for retail carpet dealers in the Fresno area. Fred Lewis is the owner of Respondent and the supervisor in charge of all installation work.2 Henry Webber is the vice president, and an individual named George Noroian is the secre- tary-treasurer of the corporation. Webber's title appears to be a nominal one inasmuch as he works full time as an installer and was given his title by Lewis "because you have to have a vice president of a corporation."3 Re- spondent employs a work force consisting of carpet layer/installers and helpers. Its principal account is A & M Carpets, the chief operating officer of which is Morris Horwitz. William Schweizer, who was employed by Respondent from December 17, 1977, until August 28 as a carpet I Respondent admits Ihat Lewis is a supervisor within Ihe meaning of Sec 2(11) of the Act and an agent of Respondent within the meaning of Sec 2(13) or the Act Counsel fior the General Counsel, in his posl-hearing brief, conceded that Webber is an employee and a member of Ihe bargaining unit herein layer/installer,' stated that on August 21 he and three other employees of Respondent decided to seek represen- lation from the Union. According to Schweizer, prior to that date Henry Scharnick, a union business representa- tive, had appeared at different jobs, on which Respond- ent's employees were working, and had questioned the workers about their wages and fringe benefits. On August 21, Scharnick spoke to the employees on a job- site and invited them to come to the union hall so that they could "listen to what the Union had to offer." Ac- cordingly, later that day, employees Schweizer, Robert Bartram. Larry Neyman, and Mark Juarez arrived at the Union's office and spoke briefly to Scharnick; however, as he was unable to answer their questions satisfactorily, Scharnick scheduled a meeting for August 25 for the em- ployees to speak to the Union's attorney. On Monday, August 25, the four employees returned to the union hall; spoke to the Union's attorney, Barry Bennett; and affixed their signatures to a sheet of paper, indicating their desire that the Union represent them for purposes of collective bargaining.5 The next day, employee Larry It is clear that Respondent nesver contended that Schweizer was a su- pers isor wv.ithin the meaning of Sec 2(1 ) of the Act or even considered that he was such until, in response to a cross-examination question con- cerning who is "in charge" while he is gone, Fred Lewis testified "Bill Schweizer was" This response opened a Pandora's box of testimony frorln I eis and engendered substantial argument in the poxst-hearing briefs Respondent's arguments regarding the nature of Schweizer's su- pers sory status were summarized in the following testimony of Lewis: "[Schweizer] could route ihe men, he could tell them where to go, he could call them, disburse them. He could do anything that I could " When more closely examined. Lewis offered the following specifics re- garding Schweizer's alleged supervisory status. Initially, the latter was placed in charge by Respondent because Lewis ordinarily operates sever- al jobs concurrently and cannot spend an inordinate amount of time at ally one location While Schweizer was. thus. in charge approximately 2(X) limes a year, these occasions never lasted more than I day in dura- lion, and Schweizer would visit daily to check on how the jobs pro- gressed If l.ewis was scheduled to be away more than a day. the secre- tar)-ireasurer was assigned to monitor the work As to Schweizer's au- thorily and responsibility when in charge, Lewis testified that the former could not hire, fire. or write checks Further, while Schweizer did have authority to give employees permission to leave earl), any job instruc- lions he gave were in strict accord with instructions given to him previ- ously by Lewis and, if job problems arose. Schweizer was required to notify Lewis and had no independent authority Io rectify them Also, the work of Respondent's employees appears io ;lave been of a rather routine nature (" I think everybody was pretty well capable unless he was just a green kid"), and Schweizer spent at least 80 percent of his time installing carpet. Finally, while he was one of two employees who was given a company truck and unlimited gasoline, Schweizer's wages and other fringe benefits were no, greater than other employees. From the foregoing, it is clear that, when in charge. Schweizer acted merely as a conduit for Respondent's instructions. spent almost all his working time Installing carpet, was not authorized to independently re- solve work-related problems, and, as the work was routine in nature, did not use discretion in assigning work. In these circumstances, noting that such was not raised until late in the hearing, it cannot he said that Schweizer's authority was that of a supervisor within the meaning of Sec 2(11) of the Act Judd Valve Co., Inc., 248 NLRB 112 (1980), Unimedra Corporation, 235 NLRB 1561 (1978).; ferland Managemen Company. 233 NLRB 467 (1977); LIoal fUnon No 915. International Brotherhood of Elec- trical iorkiers. .4A.-CIO (Borrell-Btgby Electrical Company. Inc.). 225 NLRB 317 (1976}1 Highland relephone Cooperative, Inc. 192 NLRB 1057 (1971) 'As will bt explained later. I do not deem it necessary to recount what specifically was said at this meeting I have assumed arguendo that each emnployee indicated his desire to he represented by the Union for pur- poses ,of collectlve bargaining N45 I) i ( 'SI()NS ()I NA I()NAI. I A ()R RI IA IO()NS I()ARI) Ioiinc, accomlnpanied by Schwveizer, acunt to tihc union hall and also placed his signature on a similar sheet of paper. It Nwas the normal practice of Fred Lewis to meet his emnployees at a restaurant near the A & M Carpets facili- ty and discuss that day's assignments. On Thursday, August 28X, t approximately 7 a.mi., Bartrain and Schwcizcr twere alrcady seated at a table in the O()live Branch restauranlt when Neyman and Juarez arrived- followed shortly by Fred [.ewis. Unaccountahlby [.ewis sat at the counter, while Neyman and Juarez joined the two other employees. After a few moments, Bartram beckoned L.ewis to join them, and the latter did so. Ac- cordinig to Schweizer, "[Bartram] told him that he knew it was about the union activities so we might as well just discuss it and get it out in the open." Lewis replied, .. I'm not going to go Union," and "he said if we really wanted to go to the Union, you'd have to go out and burn trucks to let the nonunion workers know that you mean business." Lewis continued, asserting that he was too old to fight the Union; that going union would cause Respondent to become "bankrupt"; and that he would "try it" only if Henry Scharnlick guaranteed that Respondenlt would make money. The employees individ- ually responded that they had nothing against Lewis per- sonally but that they viewed the Union as a different ap- proach to bettering themselves. Lewis said that he under- stood. The meeting lasted approximately I hour; as it ended, Lewis told the employees to meet him at the A & M Carpets building at 2:30 p.m. Averring that "my memory ain't too good," Fred Lewis testified to a different account of this meeting. Ac- cording to Lewis, Bartram asked him to join the others at a table and surprised Lewis, saying, "[W]e'd just as well get this off our chest. We went to a union meeting . .and we'd like to have a union in here." Lewis re- plied that he did not know but that he did not "think it's feasible but we'll see." They proceeded to discuss unions with Lewis saying that he had once belonged to a union but that he did not think a union was feasible for Fresno as there were at least 100 nonunion carpet layers in the area. Denying that he ever uttered the word bankruptcy, Lewis agreed that he might have mentioned the burning of trucks. Lewis also admitted saying that, if Scharnick would guarantee that Respondent could make money, "I could see it would be feasible but there's no guarantee." To this, according to Lewis, the employees replied that they could not understand why a union would not work. Lewis concluded, testifying that he made no reply but merely directed the employees to go to their work as- signments. Employees Neyman and Juarez, both of whom testi- fied on behalf of Respondent, contributed significantly less detailed and more conclusionary versions of the Olive Branch meeting. Neyman testified that the entire conversation lasted 45 minutes and that Bartram began: "[He] ... told Fred that we had a meeting and that they would like to see the Union start up.... Bobby asked different questions on seeing if Fred would go for it or what he felt about it . . . we talked about what we were told about the Union." Lewis replied that he would have liked to have gone to the union meeting with the employees, that it would be impossible to bid union swages and receive work, but that he would be willing to discuss the matter further with the employees Both Bar- tram and Schweizer stated that they wanted the Union "For the money,''" and, according to Neyman, "I said that I . . more or less . .. liked the benefits of it." Neymanl corroborated Lewis that the latter did not men- tion bankruptcy but also contradicted him, stating that I.ewis said nothing about the burning of trucks. Mark Juarez recalled that the meeting lasted just 20 minutes and that, at first, the participants were silent. Fi- nally, Bartram mentioned the Union, telling Lewis that "we wanited to get into the Union." Lewis replied that "he had been in the Union before and it didn't work before . . . he'd wished he would have been there during our meeting with the Union. He could have told his side of the story . .. but we didn't give him a chance." Echoing Neyman, Juarez corroborated but later contradicted Lewis, testifying that the latter said nothing about either bankruptcy or the burning of trucks. Ac- cording to Juarez, despite having previously gone to two union meetings and ostensibly indicating receptivity to the benefits of union representation and despite the bre- vity of the Olive Branch meeting, he decided after the conversation that he no longer wished to support the Union. Asked during cross-examination why he changed his mind, Juarez testified, "Well, Fred had told us things through his experience about the Union and . . . he wished he could have been there at our meeting . . . so he could tell his side ... " Asked further to specify what Lewis might have said, Juarez answered that Lewis explained that "ten years ago he'd been with the Union and it just didn't work because there was a lot of scabs in Fresno who would do the job for a lot cheaper than what the Union wages would be." Finally, when asked to clarify his testimony on this point, Juarez said, ". .. I can't recall everything . . you know I wasn't planning on remembering everything he said." Pursuant to Lewis' request, Respondent's employees gathered at the A & M Carpets building at approximate- ly 3 p.m. that day. Lewis ushered the employees into a conference room, and everyone sat around a conference table. The employees present were Schweizer, Bartram, Neyman, Juarez, Ron Giovanetti, Henry Webber, and perhaps Ken Schram. Schweizer testified that Lewis shut the door "and he said, he's been thinking about what we'd told him this morning all day long and he figured the best thing to do was shut the shop down in three weeks and have Jim Dutcher [an A & M Carpets sales- man] just quit bidding the work. And that way we could all cool down or just let everything blow by." Next "He said there was no way [Morris Horwitz] would go Union." Lewis continued, saying that he was sorry that the employees did not trust him enough to invite him to go with them to the Union hall so that they "could have heard his side on the Union matter and could have heard the [Union's] side and those people that wanted to stay with the Union could work out of the Union hall, and those that elected to go with Fred Lewis could go with Fred Lewis." Schweizer asked why Lewis felt that the Union would not work, "and he said there's no way its 847 going to happen. He's just going to go bankrupt if he tries to go union. There's no w avi he can make tile money." At that point lHenr Vy ebher spoke in Lewis' behalf, opining that Lewis did not earn enough to pay union wage rates. Schweizcr r spoke again, raising the sub- ject of fringe benefits and saying that with a family to support, such would mean a lot to him. Lewis responded "that if it wvas just benefits they could have discussed them." Schweizer replied that the) had discussed the subject for 2 years but nothing had ever been accom- plished Bartram kept asking why Lewis believed Re- spondent could not go union--Lew`is replied that "he'd go bankrupt if he did but he wasn't going to do it. He [was not] going to do it. He [was not] going t(o go Union." To that, Juarez said that he told Lewis his opin- ion that morning and that "he was behind Fred all the way." Neyman also spoke up, saying "that he didn't want to bankrupt [Lewis] so he'd stick by his side." At that point, according to Schweizer, Lewis "asked each one of us what our feel about it was, what our grounds were." Schweizer. who was seated closest to Lewis, re- plied, "Well, I guess I'd better hit the road." Ron Gio- vanetti, who was sitting next to Schweizer, said that he would stay with Lewis. Neyman and Juarez followed, each saying that he would stay with Respondent. Bar- tram was next, and he said, "I guess I'll hit the road with Willie. . $7.00 an hour is pretty hard to live oni . . I was making more money in '75 [due to the cost of living]." Lewis responded to Bartram that he had just given the employees a $1 per hour raise, that such was his limit this year, and that maybe he would give a simi- lar raise the next year. With Lewis' response to Bartram, the meeting ended. Both Bartram and Schweizer went outside and unloaded their equipment from Respondent's truck. They then went back inside the building and encountered Fred Lewis near the building coffee area. According to Schweizer, Lewis "said he was very unhappy that we didn't counsel him first on the matter. He said he'd done a lot for me when I first started out in the company as far as I had a brand new baby girl, helped me get my house, he said he was hurt by it. He told us if we did want our jobs back we could have them." Schweizer re- plied, "[T]here's really no way I can do it. I've got to go down the road because I feel like I'm just spinning my wheels here. I'm not advancing myself." Bartram then once again asked if Lewis would try the union. As during the employee meeting, Lewis responded, " . . no . . . Absolutely not." The employees thereupon left the building. During cross-examination while maintaining that the following occurred "about the middle of the meeting" and denying that Lewis asked what the employees thought of it, Schweizer admitted that Lewis told the as- sembled employees "that Morris had asked him previous- ly since . . . a few of us had just got a dollar an hour raise, that if this was going to happen often, because he was concerned about if we were going to keep asking for more raises or what. He said Morris was out of town . . .and he would talk to him . . anid consult . about the matter that was at handd" Also, Schweizer became contradictory regarding the question that preci- pitated his announced intention to quit. lhus, he testified that lIewis "asked how our feelings on the matter ;Ias," and denied that Lewis said anything about "grounds"-- "To me. it was the same thing." While corroborating Schwveizer on at least one signifi- cant point. I ewis testified to a substantially different ver- sion of this meeting. On direct examination, he said that he began the meeting by asking. "... .hat's the prob- lem.." Bartram answered by asking why L.ewis felt the Union would not work, and, "I explained to him I don't think it's feasible. . . How can I pay you tw ice as much whell I only get the operating capital to pay you $7 an hour . . . said . . if you want insurance you should've brought that up to me ... " No employee responded,' and, according to Lewkis. he next "told them if you guys want to go Union, let's don't hurt A & M . [L]et me tell them how it is, take the price list and see if [Horwitz will] go for it." At that point, I euwis states, he "asked them what they thought about it." Schweizer abruptly responded by saying he quit, and "I went all around the table and they--it just automatically went around the table, I didn't force it around, it just wvent around the table . . . then it went to [Bartram] and he said I quit and it went around the table."; Finally, Le.wis specifically denied talking about bankruptcy, going out of business, or shutting down the business but failed to deny any other aspect of Schweizer's testimony regarding this meeting. Under cross-examination by counsel for the General Counsel. Lewis initially denied having any further con- versation with either Schweizer or Bartram regarding their job status. He also denied that either individual said that he could not continue working because of low `wages and benefits. Later during cross-examination, Lewis contradicted himself, stating that he did speak to the two employees in the coffeeroom. While denying that either employee offered an explanation for quitting, I ewis stated, "I told them I hate for you to leave. You've got a job here anytime," and the employees just responded that "it wasn't feasible." However, a moment later Lewis again altered his testimony, "I said . . I don't know why you guys quit and they said . . . we just don't want to work for this wage no more." Larry Neyman related a rather limited version of this meeting. "Fred started out the meeting and asked you know, what we wanted to do about this [and] . .. he w anted to hear . . what they had to say about it. Most of the talking was done between [Schweizer and Bar- tram] saying they felt that they could go union and bid the Union prices and get jobs." Lewis responded that "he would like Morris to get involved in the meeting . . . so we could talk w\ith Morris about it and he asked " I jItr during hli llrc.t e.atmlrl.ltiir l. I ect is ctritrlidicild hlinels .f ft ,l- fllmg Ihil SichI izer did. Iilaldci recpoind th;i tihe? hlilt pre.lcou.lx beef] di',t ll, iig henclt its ; Notcillhlt,i dllting lhit fihe .I[ ll,'cr, -ere iII no \%ai r.,ponslc .o lbi, ,iitit il I eNt deniedl cither tllhi he nlenlOlledti Ihl', i the cmpl se,' or }ilt allt. nile ,ketl l haiiT kc h.ti t'e (I c-c i. mIc rli h hic t(ic-ti-l iTl A,Ltoiritng ti. I eCki,. "l zas Alirtlld IN i}is ask .1 p ict'sll ;iti ] IU a'k ti.lil u1 thilk i liilt ii. slll kLi,',1 t \.i- goillg t,l gie t nl (t 1lm 1; ll ciliti til t i it'ell e t th r/igti \ha!h l lht l O t Ihit ii rid g ! aNs. tic q1l[ 1 I Ifi'll1, t\l d \llkh. II, ilill' ge fllSng the ITll/lVliln g .1, I .l:l[ 1 I llt l11 " FR 1: 1) I l-Wi S CA R IT I S. I N C DIlCISIONS OF NAIO()NAL. LABOR RELA-IONS BOARD how we felt about it." Lewis turned to Schweizer and the latter "said . . . what would be the use of talking to Morris if we couldn't do it . . . and he said that he'd quit." Schram and Juarez then responded, each saying he would stay with Respondent. Bartram was next, "... and Bobby said that he would have to find another job." Giovanetti then announced that he was staying. Finally, it was Neyman's turn. "I sat there and I had to think for a minute. I thought you know, hey, what's going on here? Why is everybody quitting or staying? This Nwasn't what it was about. I told him I was staying but I didn't understand why everybody was quitting as the question had nothing to do with that."' Neyman denied that Lewis mentioned bankruptcy or that Lewis said he would tell Dutcher to stop taking job orders. Mark Juarez testified that the meeting in the A & M Carpets conference room lasted between 30 and 45 min- utes, but that he could not recall how it began. He did remember that everyone began speaking "about wages and this and that, you know, or saying about going union or the benefits or this and that, you know." According to Juarez, "I remember at one point I said about how the benefits, you know. I said can't we have benefits, you know? And (Lewis] goes . . . that's not it. Everybody doesn't want just the benefits they want all this money stuff and he goes .... I'll give the price list to Morris and see what happens." Then, Lewis asked "what does everybody think" and went around the circle of employ- ees. Schweizer responded that he was going to quit and that he was going to have to find another job; thereupon, "everybody just from what Willie had said, everybody just went right behind so well, this and this, I'll do this and I won't do this."9 Juarez denied that Lewis spoke about bankruptcy or about shutting down the job. How- ever, Juarez did corroborate Schweizer that Lewis, indeed, stated that those who wanted to belong to the Union could work out of the union hall, while those who did not should remain with him. B. Analysis Apparently conceding in his post-hearing brief that nothing uttered by Fred Lewis during his breakfast meet- ing with employees Schweizer, Bartram, Neyman, and Juarez at the Olive Branch coffeeshop on August 28 arose to the level of a violation of Section 8(a)(l) of the Act,i' counsel for the General Counsel argues that * Neyman testified that he responded as he did "because I >,as julst confused . . . I couldn't understand why everybody was going through this .. It was very confusing " ' As with Neyman, Juarez was surprised by the responses as he did not think Lewis' intent was to see if employees desired to quit or stay -he was just inquiring as to what employees thought about his submitting the union price list to Horwitz '° Par. 6(a) of the complaint specifies that during the morning meeting Lewis repeatedly told employees that Respondent would not accept a union. While such language was used, the record does not establish re- peated usage I presume that counsel for the General Counsel's apparent concession that no violation occurred goes to that. In an) event, I shall accept his concession and make no findings in that regard as toi the morn- ing meeting However, as will become evidelt. such repeated emphasis that Respondent would not accept a union was stated by l ewis at Ihe afternoon meeting, as well as other palpably unlawful statements, which were not alleged as such in the complaint Accordingly, as such was fully during his afternoon meeting with Respondent's employ- ees in the A & M Carpets conference room, Lewis vio- lated Section 8(a)(l) of the Act by threatening employees with a temporary closure and discharge because of their union activities, by promising health insurance and other benefits in order to induce them to withdraw their sup- port for the Union, and by interrogating employees with regard to their union sympathies. In addition, he argues, by said conduct Respondent caused employees Schweizer and Bartram to quit their employment-thus, constructively discharging them in violation of Section 8(a)(l) and (3) of the Act. Contrary to counsel for the General Counsel, Respondent argues that no construc- tive discharge can be found herein inasmuch as contin- ued employment was never specifically conditioned upon either Schweizer or Bartram relinquishing any rights guaranteed by Section 7 of the Act and as their working conditions were never changed to their respective detri- ments. Further, counsel for Respondent argues that both Schweizer and Bartram quit Respondent's employ for economic reasons. Finally, he asserts that nothing said by Lewis to Respondent's employees on August 28 consti- tuted violations of Section 8(a)(1) of the Act. Initially, I note that the substantive divergence be- tween the testimony of Schweizer and that of Lewis, Neyman, and Juarez regarding the afternoon meeting concerns mainly the tone thereof. Thus, crediting Schweizer, the meeting involved essentially the expound- ing by Fred Lewis of rather blatant and threatening an- tiunion sentiments; while crediting Respondent's wit- nesses, Lewis mostly expressed his economic concerns about union representation. I am convinced, upon careful observance of the demeanor of the witnesses and close scrutiny of the entire record that, except for one particu- lar circumstance, Schweizer's version of the afternoon meeting-and, indeed, the events of the entire day-is the more accurate and warrants crediting. In this regard, I particularly note that employee Juarez corroborated Schweizer's uncontroverted testimony that Lewis, in effect, invited the union supporters to leave and threat- ened that union activities and continued employment were incompatible. Such clearly supports the conclusion that Lewis' intent and tone during the afternoon meeting in the A & M Carpets conference room were coercive and unlawful in nature. In addition, I found Fred Lewis to be contradictory as to the post-meeting conversation with Schweizer and Bartram and generally unimpressive and less than candid as a witness, and, except for one aspect of his testimony, I do not credit him herein. Like- wise, except where corroborative of Schweizer and one aspect of their testimony, I thought Neyman and Juarez were most unpersuasive witnesses, who gave rather sketchy and opaque versions of the events herein, and I also do not credit them. Based on the credited testimony herein, I believe that, during his conversation with employees Schweizer, Bar- tram, Neyman, and Juarez at the Olive Branch coffee- shop during the early morning of August 28, Fred Lewis was surprised and undoubtedly shocked to learn that the litigated at the hearing I have made findings on all statements which I regard as unlawful at the afternoon meeting 848 FRED LEWIS CARPETS. INC. employees had recently sought union representation, and he reacted with warnings that Respondent would never go union and that doing so would bankrupt him. I fur- ther believe, based on the credited testimony. that Lewis repeated and expanded upon these themes with coercive and threatening rhetoric during the afternoon meeting with Respondent's employees in the A & M Carpets con- ference room. Thus, I conclude that Lewis began the meeting with a blatant threat-he was going to close down the business in 3 weeks and have the A & M Car- pets salesman stop bidding upon jobs, permitting every- thing to "blow by." Also, asked several times by either Schweizer or Bartram, who were the main employee union proponents during the meeting, whether Respond- ent would voluntarily work with the Union, Lewis re- peatedly replied that Respondent would never go union and, without offering a scintilla of supporting evidence for his prediction, that to do so would bankrupt him. Next, adding emphasis to his "gloom and doom" lan- guage, Lewis stated his annoyance over not being per- mitted to be at the union hall when the employees spoke to union representatives; he announced that those people who wanted to stay with the Union could work out of the union hall, while those who elected to stay with Fred Lewis could do so. Then, as admitted by Lewis, he informed Schweizer that if the latter was dissatisfied with the lack of employee benefits, including health in- surance, he (Schweizer) could have come to Lewis, and they could have discussed the matter. Finally, after sev- eral employees, obviously persuaded by Lewis' baseless predictions and threats, announced-like sycophants- that they had no desire to bankrupt Respondent and, in effect, renounced the Union, Lewis "threw a bone" to the remaining union adherents (obviously Schweizer and Bartram), stating that he would undertake the useless act of taking a union-based price list to Morris Horwitz and ascertain whether the latter, who, Lewis had earlier stated, would also never go union, could operate under the higher costs." Then Lewis asked what the employ- ees thought about it 12 To that, Schweizer unexpectedly stated his intention to quit. One by one, notwithstanding the nature of the question, other employees followed along, announcing their desire to remain with Respond- ent, while Bartram echoed Schweizer, saying he also was going to quit. There can be no doubt that the entire course of Lewis' remarks that afternoon was calculated to dissuade Re- " The Board has held that, in the absence of objective fract with which employees could reach a reasoned decision, it does not necessarily follow that union representation would increase an employer's labor costs disproportionatel) to a major customer's vwillingness to pay increased costs if passed ln There must be a showing that such a consequence is beyond the employerfs controlh Crown Cork & Seal Comtpanv. Inc.. 255 NLRB 14 (149811 2 In this regard, I credit the testimon! of ewis. Neyman, and Juarez and do not rel, upon the testimony (of Schweizer who, I helievce given the nature of .ew is' statements that afternoon and the nature of the em- ployment decision which he was, at that moment. attempting to reach. was honestl] mistaken and confused as to what lewis was referring Moreover. the ansssers orf l.e is. Nevnalln and Juare. whenl asked their reactions Io Schel/ter's response, appear not It b ha'~ heell contrised hut rather reasonable gisen the circumstances Accordingls. I credit their te,- timony that Iewils' question referred to giinlg Hirw it, a price ist arid conclude that no unidla fill interrogatioln o5curred t: lnally. , halcxer the question, there is 1no dispute i, to the responses spondent's undecided employees from supporting the union movement and to cause apprehension among the union adherents for their job security. More specifically, Lewis' stated intention to close the business for an unspe- cified period in 3 weeks in order to permit everything to "blow by" could have only been perceived by his listen- ers as a blatant threat to shut down because of the em- ployees' union activities. This must be so inasmuch as Lewis prefaced the threat by commenting that he had been thinking about what had been discussed that morn- ing-the Union. Such a threat of business closure has tra- ditionally been found to be violative of Section 8(a)(1) of the Act. Jim Baker Trucking Company, 241 NLRB 121 (1979); Local Union No. 707, Highway and Local Motor Freight Drivers, Dockers and Helpers, Claremont Polyche- mical Corporation, 196 NLRB 613 (1972). Additionally, by constantly reminding the employees that Respondent would never go union, Lewis inculcated in his employ- ees a sense of futility about the exercise of free choice in selecting a representative for collective bargaining and thereby violated Section 8(a)(1) of the Act. Unimedia Corporation, supra, El Rancho Market, 235 NLRB 468, 472 (1978). Next, the credited evidence establishes that Lewis repeated several times that Respondent would become bankrupt if forced to pay union wages and bene- fits, but that in making such "predictions," he never of- fered to the employees any supporting figures or other evidence necessary to establish that the consequences of which he spoke were beyond his control. Absent such a factual basis, the Board law is clear that Lewis' "predic- tion" of bankruptcy constituted nothing more than a veiled threat to close the business if employees selected the Union as their collective-bargaining representative. El Rancho Market, supra, The Terminal Taxi Company, d/b/a Yellow Cab Co., 229 NLRB 643 (1977); Swift Tex- tiles, Inc., 214 NLRB 36 (1974); Marathon Le Tourneau Company, Gulf Marine Division of Marathon Manufactur- ing Company, 208 NLRB 213 (1974). Moreover, Lewis' remark, that those employees who want the Union should work out of the union hall and those who select Fred Lewis should stay, clearly conveyed a veiled threat of discharge-it was understood that union supporters should seek work elsewhere and that union support and continued employment were not compatible. Such veiled threats are violative of Section 8(a)(1) of the Act. Rolli- gon Corporation, 254 NLRB 22 (1981); 726 Seventeenth Inc., t/a Sans Souci Restaurant, 254 NLRB 604, 605-606 (1978); American Lumber Sales, Inc., 229 NLRB 414 (1977); Cook United, Inc., d/b/a Cook's Discount Store, 208 NLRB 134, 137 (1974). Also, in the context of the aforementioned violations, Lewis' statement to Schweizer that, if the problem was just health insurance or fringe benefits, they could have discussed the matter, must be considered to be an implied promise of benefits designed to induce employees to forego union support. Clearly, such is violative of Section 8(a)(1) of the Act. El Rancho Market, supra: Swift Textiles, Inc., supra. Finally, inasmuch as I have not credited Schweizer as to interro- gation of the employees' union sympathies, I shall rec- ommend that paragraph 6(b)(iv) of the complaint be dis- missed. 849 1)1. CISI()NS ()F NA IO()NA I.ABO()R RF AlI()NS BO()ARD Counsel for the General Counsel argues that, by his aforementioned conduct during the afternoon meeting, Fred Lewis created a pervasive atmosphere of coercion, encompassing threats of discharge and shutting down the business and other unlawful statements and that, by such, Respondent left union adherents Schweizer and Bartram no choice but to quit their employment-thereby effectu- ating constructive discharges in violation of Section 8(a)(l) and (3) of the Act. At the outset, it must be borne in mind that, "A constructive discharge is not a dis- charge at all but a quit which the Board treats as a dis- charge because of the circumstances which surround it." ComnGeneral Corporation, 251 NL RB 653, 657 (1980). Normally, such situations arise in two factual contexts. In the first, with knowledge of its employees' participa- tion in union or other protected concerted activities, an employer harasses the individual to the point that his job conditions become intolerable and, as a result, the em- ployee quits. In such circumstances, a nexus between the working conditions and the individual's protected activi- ties must be shown and the imposed burdens must be in- tended to cause an altering of the worker's workilng con- ditions. If both factors are present, a constructive dis- charge will be found. Palby Lingerie. Inc. and ,4rgus Lin- gerie Corp., 252 NLRB 176 (1980); Maywood. Inc., 251 NLRB 779 (1980), Lymann Steel Company, 249 NL RB 296 (1980); General M1eats, Inc., 247 NLRB 1036 (1980); Cry.s- tal Princeton Refining Company, 222 NLRB 1068 (1978). In the second factual situation, an employer confronts an employee with the hobson's choice of either continuing to work or forgoing the rights guaranteed to him under Section 7 of the Act. In such a circumstance, his choice must be clear and unequivocal and not left to inference. J. J. Security. Inc., 252 NLRB 1290 (1980); Henry A. Young. d/b/a Columbia Engineers International, 249 NLRB 1023 (1980); Martin Arsham Sewing Co., 244 NLRB 918 (1979); Superior Sprinkler. Inc., and William .lugusto d/b/a William Augusto Fire Protection Services, 227 NLRB 204 (1976); and Marquis Elevator Companyv. Inc., 217 NL RB 461 (1975). Herein, not only did Lewis, during the afternoon meeting on August 28, repeatedly state his implacable hostility to dealing with the Union and the futility of employee support for it, but also he blatantly threatened to shut down the business because of the employees' union activities and, in effect, to termi- nate employees because they participated therein. It must be concluded, therefore, that it was not unreasonable for both Schweizer and Bartram to believe that each would no longer be welcome as an employee if he continued to support the Union. Columbia Engineers, supra at 1032. Faced with such a hobson's choice (working or giving up support for the Union), I believe both employees were forced to quit-and, thus, constructively dis- charged-by Lewis at the conclusion of the August 28 meeting in violation of Section 8(a)(1) and (3) of the Act. Arguing that no constructive discharge occurred. counsel for Respondent relies heavily on the Board's De- cision in Masdon Industries. Inc., 212 NLRB 505 (1974) Therein, employees commenced a strike, resulting from dissatisfaction with their terms and conditions of employ- ment. Two days later, the employer's president met with the strikers, during the course of sswhich meeting he un- lawfully threatened to close and move the plant. There- upon, several strikers quit their employment rather than returning to work at the conclusion of the strike. Not- withstanding the unlawful threat of plant closure, the Baord found that the employees had not been construc- tively discharged. In so deciding, the Board placed sig- nificance on the fact that "Masdon did not in fact dis- charge or threaten to discharge the strikers. Nor were his remarks so interpreted by the striking employees." Masdon, supra at 506. Herein, of course, not only did Lewis threaten to close the business, but also he, in effect, threatened to terminate employees by inviting union supporters to work out of the union hall-thus causing them to believe support for the Union and con- tinuing employment were incompatible. Rolligon Corpo- ration, supra. Clearly, if such a blatant veiled threat had existed in Masdon, the Board undoubtedly would have found constructive discharges. Accordingly, Respond- ent's reliance upon that case is misplaced." Next, Respondent argues that both Schweizer and Bar- tram were economically motivated in deciding to quit their employment with Re',pondent. In this regard, Re- spondent correctly points out that both men were con- cerned with their wages and lack of fringe benefits. However, in so arguing, Respondent ignores the facts that both discriminatees had just 3 days before indicated their desire that the Union be their collective-bargaining representative; that during the August 28 afternoon meeting Lewis continually emphasized the futility of their activities; that, through union representation, they wished to earn higher wages and fringe benefits; that Lewis clearly indicated the incompatibility of union ac- tivities and continued employment; and that each unsuc- cessfully implored Lewis to, at least, try to work with the Union. In these circumstances it would be intellectu- ally dishonest and simplistic to conclude that Schweizer's "spinning my wheels" comment did not, at least in sig- nificant part, allude to his and Schweizer's apparently fruitless union organizing attempt and that such was not a motivating factor in their respective decisions to quit. The most troubling aspect of a finding of constructive discharges herein is that, subsequent to the conference room meeting at which Schweizer and Bartram an- nounced that they would quit, Fred Lewis encountered both employees near a coffee area in the building and told each that he could have his job back. Both individ- uals rejected Lewis' offer. In Columbia Engineers, supra at 1031-32, the Board adopted the finding by an adminis- trative law judge that the employer therein uncondition- ally asked the two constructively discharged employees to return to work and that, in such circumstances, back- pay for the discriminatees was limited to the period from their discharges until the tendering of the reinstatement offers. Adopting this rationale, if Lewis' reinstatement offers were, in fact, unconditional, the earlier construc- tive discharges of Schweizer and Bartram would be, at most, technical violations of the Act. Moreover, it might " I ikculsc lt,r Ih r . I , .I. RB1.38 5 1 2d 48 (lth Cir '1117) .1 11111.I ahC Ii.l t Ml 8 I h n1t II IC n AI I u, FRED I LEWIS CARPETS, INC legitimately be argued that Lewis' offers negated the ex- istence of the aforementioned hobson's choice with which Schweizer and Bartram were confronted in the A & M Carpets conference room-thereby making their re- spective predicaments merely inferential and removing the possibility of constructive discharge. However, anal- ysis of what occurred at the final, brief meeting between Lewis and the discriminatees convinces me that the former's offer was anything but unconditional. Thus, crediting the testimony of Schweizer, prior to making his offers, Lewis remarked that he was unhappy that Schweizer had not spoken to him "first on the matter," that he had given substantial personal assistance to Schweizer when the latter began working, and that he (Lewis) "was hurt by it." Based on the record as a whole, I believe the inference is warranted-and Schweizer so perceived-that Lewis was referring to the employees' union organizing activities. Such is crystal clear from Lewis' subsequent response to Bartram's plea that he, at least, try to work with the Union: "... no .... .Absolutely not." Accordingly, Lewis' comments fully warrant the conclusion that, while he was, indeed. stating that Schweizer and Bartram could have their former jobs back, I ewis' previously rendered unlawful remarks were not withdrawn and remained the condi- tions under which the employees could remain with Re- spondent, making any further union activities incompati- ble with their reinstatement and continued employment. J. J. Security, supra. Liberrt Markets, Inc., 236 NLRB 1486, 1491 (1978). For the foregoing reasons and based on the record as a whole, I find that employees Schweizer and Bartram 'were constructively discharged in violation of Section 8(a)(1) and (3) of the Act. Colum- hia Engineer's supra: Superior Spnnkler, supra. V. QUEISI ION 01: BAR(GAINING ORI)iDR Counsel for the General Counsel argues that the impact of Respondent's conduct upon its employees has been so significant that a free and fair election to deter- mine whether said employees would select the Union as their collective-bargaining representative would be im- possible. He further argues that the severity of the previ- ously discussed unfair labor practices warrants the entry of a remedial bargaining order against Respondent. In so asserting, counsel for the General Counsel contends that the Union achieved majority status on August 26, by which date five employees out of a total employee com- plement of nine had selected or designated the Union as their collective-bargaining representative. Contrary to this position, Respondent argues that the Union never achieved majority status herein, that Respondent com- mitted no unfair labor practices herein, and that. if found, such unfair labor practices did not constitute such outrageous and pervasive unlawful conduct so as to war- rant the issuance of an order requiring Respondent to bargain with the Union. At the outset, the General Counsel does not contend, nor has the Board ever concluded, that a bargaining order is appropriate absent a finding of majority status. Thus, the threshold issue herein concerns vs hether, in fact, as alleged by counsel for the General Counsel, the Union achieved mnajority status on August 26. In sup- port, he offered into evidence two documents, General Counsel's Exhibits 2(a) and (b). which bear the Union's letterhead and which contain the typed-in words, "We the undersigned of Fred Lewis Carpets, Inc. wish to be represented by [the Union], for purposes of collective bargaining." On Exhibit 2(a) beneath these words appear the signatures of employees Schweizer, Bartram, Juarez, and Neyman; beside each signature is the date, August 25, 1980 On Exhibit 2(b) beneath the typed-in words ap- pears the signature of employee Larry Toney and beside it is the date. 8-26-80. Assuming arguendo the validity of the documents and the five signatures,14 the bargaining unit must not have consisted of more than nine employ- ees on August 26 to establish counsel for the General Counsel's assertion of union majority status Inasmuch as I believe that the appropriate unit herein may have con- sisted of, at least, 10 employees, I conclude that counsel for the General Counsel has not met his burden of proof in this regard. The complaint alleges, and Respondent admits in its ansxwer, that the appropriate bargaining unit herein in- cludes all carpet layers and installers employed by Re- spondent; excluding office clerical employees, profession- al employees, managerial employees, guards, and super- visors as defined in the Act. Fred Lewis testified, with- out contradiction, that Respondent also employs individ- uals , ho are classified as helpers. The record discloses that, while these employees earn less than the carpet layer/installers and do not receive vacations as do the latter employees, they work alongside the carpet layer/installers, performing much the same work. In es- tablishing the number of employees in the unit as of August 26, counsel for the General Counsel relies solely on the testimony of employee Schweizer who identified the following individuals as comprising Respondent's em- ployee complement on that date: himself, Bartram, Juarez, Neyman, Toney, Ron Giovanetti, Ken Schram, Henry Webber, and someone remembered only as Ted. s Asked if any other installers were employed on that date, Schweizer responded, "Not that I know of." From this inconclusive answer, counsel for the General Counsel argues that there were only nine employees in the bar- gaining unit. 6 However. later in his testimony, while discussing the afternoon meeting in the A & M Carpets conference room on August 28, Schweizer identified a "Ron Jewett" as responding to a question by Fred Lewis. While Schweizer did not mention the name again, Lewis did. i htre as ,a great deal .f C.o.nlllcting leslimon, concerning the tsp!d-in wordl IIn hoth (, C Etxh, 21a) and (h) and what leas said ito ih. tinlpl.ect. regalrding Ihe purpoe for their siglllatures on the docu- Iieills Itltlaltu,.lh as Ihe thrust oI this poriion of rni Dt iionx iC i tolse the sue of the hbargaining ulnil rather than Ihie lahdld of the signalure, for purpo..r s of o sta,lblhlillg a nlialrlt> shownlllg. I need 1nol, rsols e the corn- nliling [,,lll,,,l. : NCeithel Sc'IhU IeI r ili)r I e iw, coIuld recall led I tIl nlame; hoi cecr, hith ai ,igicd Ilial hie va, enlplhLd ai ilf Augut 26 I cul, Ic, lfied Ihal It'd 1i 111 lIolgel all CrilploSee hut i.uld Ii(it recall whenl tie tt.l Resrpd- irtl' ATlt pb . iis llt1\i.i .Ih ' la ild rgil that li11i 'ial 1i itic lite siitriiler t ]r ii rnah . t. i c l at , s1,s riced t ttfr Rcspiri idit r- t', l r- t- rdn al l. s 1(i L . lilll l d i CllCIttilts i lit lt rltst i n S1/c o t 1 1iC' I i 851 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, recalled to testify regarding the helper classifica- tion he named Larry Toney and Ted as helpers."7 Next, under questioning by counsel for the General Counsel, Lewis testified as follows: Q. Mr. Lewis, during the last couple of weeks of August, of all the names of your employees that have been mentioned in this proceeding, are Larry Toney and this kid Ted the only helpers you've had? A. I had another man working-Ron Jewett. Q. But of all the names that have been mentioned in the hearing, they're the only two that are help- ers? Is that correct? The others were all installers? A. Yeah. Apparently then, both Schweizer and Lewis have identi- fied another employee, Ron Jewett. If he were employed by Respondent on August 26-and the record is patently unclear as to that fact-the bargaining unit would total 10 individuals, and the Union could not have achieved majority status on that date. In his post-hearing brief, counsel for the General Counsel speaks of Ron Jewett as being "a possible ambiguity" and apparently contends that both Schweizer and Lewis really meant Ron Gio- vanetti when they said Ron Jewett. Finally, referring to the aforementioned testimony, counsel for the General Counsel argues that Lewis corrected himself, identifying Toney and Ted as the only helpers. As to the first argu- ment, it is inconceivable that both Schweizer and Lewis would make exactly the same mistake and mispronounce "Giovanetti" as "Jewett." Moreover, if not referring to Giovanetti, it would be an unlikely circumstance that both men used the same name to describe a nonexistent individual. Further, with regard to the above-quoted por- tion of the transcript, I note that the last question of counsel for the General Counsel is compound and that Lewis' "Yeah" answer may be responsive to either ques- tion. Also, even if in response to the question regarding helpers, the question itself is ambiguous-was it meant to be all inclusive as to employees in that classification or did counsel for the General Counsel mean just those helpers who had been the subject of testimony? Finally, I note that counsel for the General Counsel had ample op- portunity to clarify any "ambiguity" with regard to Ron Jewett's employment status by either asking further ques- tions of Lewis or calling his own witnesses. He did nei- ther. In short, inasmuch as counsel for the General Counsel elicited only the testimony of discriminatee Schweizer with regard to the size of the bargaining unit, ' At the hearing and in his post-hearing brief, counsel for Respondent argued that helpers should be included in the bargaining unit Counsel for the General Counsel argued at the hearing that inasmuch as the job clas- ifrication was not specifically included in the bargaining unit. as set forth in the complaint, helpers should he excluded from the unit However, in his post-hearing brief, while not specifically changing his positilonl. coun- sel for the General C ounsel concluded that l arry Toney and TIed, as helpers, performed the same duties and shared the same benefits and con- ceded Ihat each should be included in the bargaining unit In this regard. I note that. in conceding their inclusion, counsel apparentl) anid inadvert- ently referred l ti led as "Ron." Inasmuch as I can find no reference toi "an emplriLee kinow n onlN. as Rnln" in the record. presumably "Rorn" ' as nmerel) a typographical error This must he sir as Toney and Ted occu- pied the same job c lassificalion and it wo:ruld make no sense for counsel to hasve conrcded inclus,ion ill the unit as (t one arid rot the other as Schweizer's testimony can hardly be said to have ef- fectively limited the unit's size, and as no documentation was offered on the issue, the state of the record with regard to the size of the bargaining unit is, put bluntly, confused. Accordingly, assuming the validity of the 5 union authorization cards, as the overall employee com- plement on July 26 may well have been 10, counsel for the General Counsel has failed to meet his burden of proof that the Union had been designated by a majority of employees in the unit.'s vi. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. I have found that Respondent constructively discharged employees Schweizer and Bartram on August 28, 1980, in violation of Section 8(a)(1) and (3) of the Act. Accordingly, I shall recommend that Respondent be ordered to offer each employee immediate and full re- instatement to his former position of employment or, if said position no longer exists, to a substantially equiva- lent position, without prejudice to any rights and privi- leges to which he may be entitled. I shall further recom- mend that Respondent be ordered to make each employ- ee whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of the amount he normally would have earned from the date of his termination, August 28, with back- pay to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Furthermore, it shall be recommended that Re- spondent be ordered to post a notice setting forth its ob- ligations herein. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By causing the discharge of employees William Schweizer and Robert Bartram on August 28, 1980, based on their union or other protected concerted activi- ties, Respondent engaged in unfair labor practices viola- tive of Section 8(a)(l) and (3) of the Act. 4. By threatening to close the business for an unspeci- fied period of time; by constantly reminding employees that it would never go union; by threatening employees that it would become bankrupt as a consequence of em- ployee union representation; by inviting union supporters to work elsewhere and reminding said individuals that continued employment and union activities are incom- patible; and by impliedly promising benefits to employees in order to induce them to forgo union activities or sup- M MN conclusion herein renders it unnecessary toi decide whether the s ,cerit arind the quantum of unfair ltabor practices require the issuance of a bargainin g iorder herein 852 FRII) I FXVIS CARPEIS. INC port, Respondent interfered with, coerced, and restrained its employees in the exercise of rights guaranteed by Section 7 of the Act and, thereby, engaged in unfair labor practices violative of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 6. Unless specified above, Respondent engaged in no other unfair labor practices. [Recommended Order omitted from publication.]