Wm. Chalson & Co.

WM. CHALSON & CO., INC. Wm. Chalson & Co., Inc. and Amalgamated Jewel- ry, Diamond and Watchcase Workers Union Local No. 1, IJWU (AFL-CIO). Case 2-CA- 16339 September 9, 1980 DECISION AND ORDER On April 15, 1980, Administrative Law Judge Steven B. Fish issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed a copy of his brief to the Administrative Law Judge. 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, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.3 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 and hereby orders that the Respondent, Wm. Chalson & Co., Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. l Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the r.levant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Produc Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Additionally, we are satisfied that Respondent's contentions that the Administrative Law Judge was biased are without merit. There is noth- ing in the record to suggest that his conduct at the hearing, his resolu- tions of credibility, or the inferences he drew were affected by any bias or prejudice. I Chairman Fanning adheres to the position that an untimely with- drawal from multiemployer bargaining does not, of itself, constitute a violation of the Act. Rather, the refusal to execute and apply the contract reached through multiemployer bargaining is the essential part of the 8(aX5) violation. Preston H. Haskell Company, 238 NLRB 943, fn I (1978); Ringside Liquors. Inc. d/b/a Dino's Lounge, et al., 237 NLRB 30, fn. 2 (1978); Independent Association of Steel Fabricators Inc., e a., 231 NLRB 264, fn. 2 (1977). See also Teamsters Union Local No. 378, affili- ated with International Brotherhood of Teamsters. Chauffeurs. Warehouse- men and Helpers of America (Olympia Automobile Dealers Association). 243 NLRB 1086, fn. I (1979). Accordingly, Chairman Fanning. while agree- ing with his colleagues in all other respects herein, would not find that Respondent's withdrawal from the unit, of itself, is violative of the At. s Member Jenkins would compute interest in accordance with his par- tial dissent in Olympic Medical Corporation, 250 NLRB No. 146 (1980) 252 NLRB No. 6 DECISION STATEMENT OF THE CASE STEVEN B. FISH, Administrative Law Judge: On March 26, 1979,' Amalgamated Jewelry, Diamond and Watchcase Workers Union, IJWU, AFL-CIO, herein called the Union, filed a charge in the instant case alleg- ing that Wm. Chalson & Co., Inc., herein called Re- spondent, violated Section 8(a)(1),(3), and (5) of the Act. Pursuant thereto on May 7, and May 10, the Acting Re- gional Director for Region 2 issued a complaint and a corrected complaint with notices of hearing attached. On September 27, the Regional Director for Region 2 issued an order amending the corrected complaint. These docu- ments allege that Respondent violated Section 8(a)(l), (3), and (5) of the Act by laying off employees Elizabeth Hansen and Frank DaRocha because they joined or as- sisted the Union; condoning, approving, sponsoring, and encouraging the circulation among its employees, and their signing of, an antiunion petition; offering and prom- ising to its employees a profit-sharing plan to induce its employees to abandon their membership in and their ac- tivity on behalf of the Union; withdrawing its recogni- tion of the Union as the exclusive representative of Re- spondent's employees in an appropriate unit, and refusing to recognize and bargain with the Union as such repre- sentative; and by refusing to abide by and execute a col- lective-bargaining agreement entered into between the Union and the Associated Jewelers Inc., herein called the Association. A hearing was held before me in New York, New York, on October 15, 16, and 17. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and Re- spondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a New York corporation, is engaged in the manufacture and nonretail sale and distribution of fine jewelry and related products, with its principal office and place of business at 42 West 48th Street, New York, New York. Annually, Respondent sells and ships jewelry from its facility, valued in excess of $50,000 di- rectly to points outside the State of New York. Respond- ent amits, and I find that it is an empl. yer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I so find that the Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. ' All dates are in 1979 unless otherwise stated. 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iii. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Since in or about 1933, Respondent has been a member of the Association which is a multiemployer organization existing for the purposes of negotiating collective-bar- gaining agreements. During this same period of time, pursuant to its membership in said Association, Respond- ent has recognized and been under contract with the Union as the representative of its production employees, excluding office and factory clerical employees, porters, messengers, nonproducing foremen, watchmen, all other nonproducing employees, and all supervisors as defined in Section 2(11) of the Act. Respondent has, since 1933, designated the Association as its bargaining representa- tive, and had abided by the collective-bargaining agree- ments reached by the Association and the Union. It is not disputed, and I find, that an Association-wide unit, including Respondent's employees as described above, is an appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. In December 1978, the Union notified the Association of its intent to negotiate a contract to replace the agree- ment then in effect, due to expire on February 28, 1979. The Association thereafter, in a letter dated January 10, 1979, notified the Union that the Association is author- ized and empowered to represent and negotiate for some 19 companies, including Respondent. On January 18, negotiations commenced for a new contract. Jointly negotiating with the Association was another multiemployer Association, the Jewelry Manu- facturers, Inc., herein called the JMA. 2 Each side was represented by a negotiating committee. The chief spokesmen and negotiators for the Union were Joseph Tarantola, union president, and Jerome Sturm, union at- torney, and for the Associations, Jack Glauberman and Michael Applebaum, attorneys for JMA, and Ira Berger, attorney for the Association. The Union presented its ini- tial proposals in writing which included a 15-percent wage increase, and various increases in cost of living, pensions, welfare, sick leave, holidays, vacations, and other benefits, as well as a demand for the contract expi- ration date to be August 31.3 These proposals were ex- plained by the Union and discussed briefly, and the meet- ing ended after about an hour. On January 30, another meeting occurred, at the Bilt- more Hotel, with the same parties present. This meeting which also lasted approximately an hour, consisted of more detailed discussions of the proposals submitted by the Union. On February 5, the parties again met at the Biltmore Hotel. At this session, the Associations submitted propos- als. Those proposals consisted mainly of changes that the Associations wanted in the new contract, such as raising hours worked from 35 to 40, eliminating the contractual prohibition on piecework incentive systems, increasing 2 The record does not establish how long the negotiations involving the Association and JMA have been conducted jointly. Ira Berger. coun- sel to and Assistant Director of the Association testified that negotiations have been conducted jointly "for some time " 3 The demand for the expiration date to) be August 31 was the first demand presented on the Union's list of proposals. the trial period, eliminating cost-of-living provisions, in- creasing the deductible on medical payments, and other proposals which in whole or in part reduced current benefits in the expired contract. The Associations' pro- posals contained no wage increase, nor any increases in any of the other benefits proposed by the Union. The Union indicated that it would review the Associations' proposals and would let the Associations know their thinking on them. The parties next met on February 15, when the Asso- ciations' proposals were discussed fully. The Union told the Associations that it "would not live" with their pro- posals, and suggested that the parties address themselves primarily to the union demands. Thereafter the negotia- tions were primarily concerned with the Union's propos- als and various counterproposals offered by the Associ- ations. Although the Associations did not withdraw their proposals for changing the contract, they were not pressed, and Berger admitted the Associations had recog- nized as of mid-February that the Union was not going to accept the Associations' contract retrogressions. On February 22, a meeting was held at the offices of the JMA. According to Tarantola, the Union agreed at this session to the principle of a 3-year contract and im- plicitly agreed to therefore was the expiration date of the contract. Berger on the other hand denies that the expi- ration date was resolved at that time, and asserts that this issue was a major problem throughout the negotiations. I credit Berger's testimony on this issue, and find that the expiration date was neither implicitly or explicitly agreed to on February 22. I note that Tarantola admits that the final expiration date agreed to of March 21 was a com- promise reached late in negotiations. Moreover, it is un- disputed that the Union was seeking a later expiration date in order to have the contract expire during the busy summer months for the Employers, so as to be able to exert more significant economic pressure on the Employ- er's operations. The next meeting was held on February 26, again at the Biltmore Hotel. The Union reduced its wage propos- al from 15 percent across-the-board to 70 cents an hour the first year of the contract and 60 cents per hour for each of the next 2 years. The Associations then made their first counterproposal, and offered a wage increase of 25 cents per hour the first year and 30 cents per hour for each of the next 2 years. The Union then caucused and counteroffered 60, 50, and 50 cents for the 3 years. The parties also discussed the issue of cost-of-living in- creases, and the Associations offered a cost-of-living in- crease of 1 percent which was rejected by the Union. On February 27, the parties met again at the Biltmore. The Associations made a new proposal on wages of 35, 30, and 30 cents for the 3 years, dropped their demand on a deductible for medical coverage from $200 to $100, and made a proposal to increase pension benefits by $10 per month. These proposals were rejected by the Union as being inadequate. The parties again met on February 28, the expiration date of the preceding contract. At this meeting the Asso- ciations submitted an additional counteroffer of 40, 35, and 35 cents for the 3 years. The Union came back with 26 WM. CHALSON & CO., INC. a proposal of 60, 60, and 50 cents per hour for the 3 years. The Union also reduced its pension demand from $400 to $200 per month. The Associations also offered $190 per month to the pension fund,4 and a welfare increase of 12 cents for the first year and nothing for the next 2 years. The Union then rejected the Associations' proposals. According to Berger, at that time the Associations had computed their costs to be $1.43 per man hour under the proposal rejected by the Union. The Union's proposals at that time, according to Berger, were computed to be $1.94 per man hour. Berger testified that the Associations felt that the Union's offer was so out of line that it made no sense for the Associations to submit another offer at that "late hour" on February 28. It was recognized by all parties that the Union had a membership meeting scheduled for 7 p.m. that evening. Berger admitted in his testimony that from the Employer's point of view it did not "make any sense to negotiate any further, for lack of time [em- phasis supplied], and the Union wasn't about to make an- other counteroffer so we adjourned." Glauberman, prior to adjournment, asked the Union to submit the Associations' last offer to the membership meeting, although Tarantola told him that he was afraid that the membership would reject the offer. The offer was submitted to the membership at the meeting that evening and was rejected unanimously. The Associations had met privately and decided that since it was expected that the union meeting would result in a rejection of the offer and a strike, that the Associations would lock out their employees. Prior to the union meeting, Glauberman called Taran- tola and advised him that, unless the membership ap- proved the contract, the Associations would lock out their employees the next day. Tarantola replied that if the membership rejected the proposals he would advise the employees to report to work, and would be prepared to continue negotiations at any time that Glauberman was prepared to sit down. Glauberman replied "let's see what happens." No date for an additional meeting was set up at the close of the February 28 meeting. However, this was not unusual, as on three to four prior occasions during these negotiations dates had not been set at the close of a meeting but were set up over the phone. After the employees rejected the Associations' offer, Tarantola called Glauberman and informed him of this fact. Glauberman said that it was too late to stop the lockout. Tarantola asked about another meeting and Glauberman indicated that he would get back to his members and get back to Tarantola on the matter. The next day, March 1, about 50 percent of the Em- ployers in both Associations locked their employees out. A day or two later, John Kreidler of the New York State Mediation Board called Tarantola. Kreidler, who had called earlier to check on the progress of the negoti- ations, asked how things were going. Tarantola replied that the employees had just been locked out. Kreidler asked if Tarantola thought the parties could get together and Tarantola replied that he did. Kreidler then asked 4 The union contract provided for contributions of $180 per month whether Tarantola thought that it would help for Kreidler to use his good offices and whether the Associ- ations would be willing to meet with him. Tarantola agreed that it would be a good idea to meet with Kreidler and that he thought that the Associations would agree as well. Tarantola then called Glauberman and told him of the conversation with Kreidler, and Glauber- man agreed to meet as well. A meeting was then arranged by Kreidler for March 7 at the New York State Mediation Board. At this session Solomon Kreitman, who acted as the mediator since Kreidler was unavailable, met separately with the parties to familiarize himself with the situation and review the positions of the parties. On March 9, the parties again met at the Mediation Board, this time with Kreidler acting as mediator. At this session the parties reached agreement on hospitalization coverage for employees on leaves of absence, vacation pay for piecework settlers, and the posting of vacation days-60 days prior to commencement of the vacations.5 On March 14, the parties again met at the Mediation Board, discussed the outstanding issues, but reached no agreements on any matters. The parties met again on March 16, at Glauberman's office. Kreidler suggested that it might be useful for the entire negotiating committees to be present.6 There were also agreements in concept reached on sick leave and bereavement pay, but no specific agreements were nailed down in these areas. The Union and the Associations thereafter met five or six more times in March and April and reached agree- ment on April 16. 7 At no time during the entire bargaining process did either side ever characterize or imply any offer as a "final offer." In addition, at no time did either party refuse to bargain further or state at negotiations that it felt further bargaining would be futile or fruitless. The agreement finally reached consisted of wage in- creases of 55, 45, and 45 cents on wages; pension in- crease from $180 to $220; cost-of-living increases with a cap of 23 cents, a fourth week of vacation, and various other contract improvements. According to Berger, the total cost of the final package was computed to be an in- crease of $1.76 per man, per hour. A day or so before the Associations reached agree- ment with the Union, B. F. Hirsch Co., herein called Hirsch, a member of the JMA, withdrew from said Asso- ciation, with the Union's consent, and commenced bar- gaining on an individual basis. Sometime after the con- tract with the Associations was agreed to, the Union concluded an agreement with Hirsch. The record does not reflect how the individual contract reached with Hirsch compared with the contract executed with the Associations, or whether the agreement reached with s Based on the credited testimony of Tarantola. Berger could not recall such agreements having been reached at this time, but his testimo- n) in this area was evasive and uncertain e From February 15 on the negotiation participants were the four or five chief negotiators 7 Both Taramnola and Berger agree that the meeting of April 5 which lasted until 5 a.m produced the most significant and substantial move- ment towards reaching a contract 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hirsch in any way referred to or contemplated being in- corporated with the Associations' agreement. The record disclosed that Hirsch with 180-200 em- ployees was one of the larger employers in the Associ- ations. No other facts were presented as to the numbers of employers in the Associations or the numbers of em- ployees employed by the particular employer members of the Associations.8 The contract entered into with the Associations, in April, was a single document covering both the JMA and AJI and referring to both as the "Association." However, the prior contract entered into with AJI, which expired on February 28, was a contract solely with AJI, although as noted the contract was negotiated jointly with MA. Bernard Chalson, Respondent's president did not par- ticipate in any of the negotiations set forth above. In fact, during late February and early March, he was in Florida. Upon his return to New York, on March 5, Chalson called Tarantola and informed him that he (Chalson) had heard that the Union was being intransi- gent in negotiations. Chalson suggested to Tarantola that nobody wins a war and offered his good offices to help bring the parties together. He asked if Tarantola was holding out on the issue of the effective date of the con- tract. Tarantola said this was not so, and that everything was negotiable. According to Chalson, as a result of this conversation, and other discussions that he had with members of the negotiating committee and reading newspaper reports of negotiations, he felt that the "breakdown in negotiations was going to continue for a long time." Accordingly, he testified that a day or two later he called his attorney, Richard Goldstein, to find out what his options were. Chalson testified that his attorney told him that if the people in the bargaining unit wanted to get out, then perhaps Chalson could, if there was an impasse. Chalson also testified that Goldstein asked him whether or not he wanted to engage in separate negotiations with the Union. Chalson replied that he was not prepared to do that. On cross-examination Chalson further amplified his conversation with Goldstein and his views on his em- loyees' desires vis-a-vis the Union. Q. Did you also discuss the wishes of the em- ployees? Wasn't that your testimony, that you dis- cussed what the wishes of the employees were at that time? A. I said that I wanted to implement whatever the wishes of the employees turned out to be. Q. What do you mean by "whatever they turned out to be?" A. I didn't know what they would turn out to be. Q. What made you think that something was turning about? A. Only my reaction to the general situation, Mr. Cohen. $ The record did establish that the Associate Jewelers Inc., herein called AJI, was authorized to bargain for 19 Employers including Re- spondent. Q. But what did that have to do with the em- ployees, with what the employees thought was best for them? A. As obviously appeared shortly thereafter, the employees were dissatisfied with what the Union was demanding of them. Q. You had a hunch this was coming about? A. No. As a matter of fact it came as a shock to me. On Tuesday afternoon March 13, Bruce Freeman, shop foreman and an admitted supervisor, as well as Chalson's nephew, informed employees Elizabeth Hansen and Frank DaRocha that they were being laid off be- cause of lack of work. They were told to call back the following Monday to see if there was work available. Hansen did not make any protest when told of her layoff. DaRocha complained that he was not the least senior employee in the shop,9 and Freeman replied that he was being laid off for lack of work and besides, "you know too much." Freeman did not explain what he meant by this remark. Hansen was the shop steward for Respondent, and had been employed for 35 years. She had been laid off once before sometime in 1950. She was also the only waxer in the shop. DaRocha was employed as a jeweler and had been employed for 2 years. Charlson testified concerning these layoffs, while Bruce Freeman was not called to testify. Chalson con- tended that work was slow and that it was necessary to lay off employees. Chalson testified initially that Free- man came to him the week before March 13 and told him that he had no work for Hansen and DaRocha and suggested that they be laid off. Allegedly, they discussed laying them off on the Friday before March 13, but Chalson suggested that since Respondents' payroll period ends on Tuesday that they wait and see what happens then. When work continued to be slow, Chalson instruct- ed Freeman to lay them off and ask them to call on the next Monday (March 21) to see if any work had come in. Chalson admitted that he had no knowledge that ad- ditional work would be coming in that week, but testi- fied that he hoped work would come in, which it in fact did. Neither Hansen or DaRocha called on March 19 as instructed. Hansen called on March 20 and was told by Freeman that work had come in and to report for work on March 21. Chalson called DaRocha on the 20th and told him to report to work on the 21st as well. Both Hansen and DaRocha reported for work on March 21. In both of these conversations, the employees were asked why they had not called on Monday, March 19. Chalson testified that he tried to reach both of them on Monday but was unsuccessful. I In fact there was another employee, who was not laid off, Carlos Cerrato, who did have less seniority than DaRocha. The contract in ex- istence between Respondent and the Union provides that seniority shall be followed with respect to layoffs. No evidence was presented as to Re- spondent's past practice with respect to layoffs. 28 WM. CHALSON & CO., INC. Hansen admitted that work was slow at the time of her layoff, but contends that work has been just as slow in prior years and she was not laid off. Chalson admits that work has been slow in prior years, and that he did not lay off, but claims that this year his sons who are now involved in the business do not agree with Chal- son's past policy of keeping people on even if work is slow. According to Chalson, his sons told him that he was being paternalistic and that, "if we don't have work then we just don't have it, and we should not try to make work." Testimony of other employees established that during the 5 days that Hansen was laid off, her work was being performed by either Bruce Freeman or Fred Lissaris, as- sistant foreman.' o Some of these same employees also testified that prior to Hansen's layoff, Lissaris or Free- man would also perform similar work to Hansen. In this connection, employee Hermogenes Regoso, Respondent's own witness, testified he observed Lissaris performing waxing work 2 or 3 hours a day during Hansen's layoff. DaRocha also testified that he was not on speaking terms with Lissaris and that Lissaris had accused him of pilfering precious metal from the shop. Chalson also testified that business was substantially lower than last year and presented records which estab- lished that Respondent's sales dollar volume in February and March 1979 was 61 percent less than a comparable period in 1978. Comparisons of jobs registered for these months also showed significant declines in the latter year. However these same lists of job registrations show that 49 orders came in on March 13, the day of the layoff, which is more than double the amount of jobs registered per day during the period of February and March 1979. Upon further examination, I find that Chalson appar- ently changed his earlier testimony concerning his total reliance on Bruce Freeman in deciding that there was no work for Hansen and DaRocha. Chalson testified that he, himself, looked at sales figures for 1978 and noticed $227,300 for March 1978. He also claims that when he saw that the first 10 days of March had billings of $30,000 he "realized that we were in trouble." Chalson also testified that during the week prior to March 13, he laid off two nonunit employees, Hector Santiago, a messenger, and Victoria Joseph, a reception- ist-typist. Chalson further testified that he noticed that these two employees had nothing to do in the office and that they were doing crossword puzzles and reading the papers. Thus he decided to lay them off. However, these two employees were not told to call back the following week to see if additional work had come in, and in fact were not recalled to work by Respondent. On March 15, Assistant Foreman Lissaris approached employee Carlos Cerrato at his workbench. Lissaris told Cerrato that he did not want the Union, and that the em- ployees would be better off without the Union. Cerrato asked Lissaris what benefits the employees would receive if they left the Union. Lissaris replied that Cerrato I0 Lisaris' status will be discussed more fully infra. should not worry, "that Mr. Chalson was going to give better benefits." The next morning, March 16, around 9 a.m., Lissaris had a conversation with Cerrato at his bench with no one else present. Lissaris told Cerrato that he wanted to get out of the Union and some people agreed with him. Cerrato asked what kind of benefits the employees would get if they were going to get out of the Union. Lissaris replied that he was going to find out. Employee Ivan Toral was also spoken to in the morn- ing by Lissaris at his bench with no one else present. Lis- saris and Toral discussed the fact that they did not want to give the 10-percent assessment to the Union. 2 They also talked about not being represented by the Union. Hermogenes Regoso and Lissaris also spoke that morning, and discussed their objections to the assess- ment. Regoso said that he felt it was not fair since the Union has a strike fund which should be used for the purpose of supporting the employees locked out. Also around 9 a.m. on March 16, employee Pat Nar- dozza and Lissaris had a conversation in the shop. Free- man was present but made no comments. Lissaris had a piece of paper in his hand and said that the Union wanted to take 10 percent out of employees' pay to sup- port the employees locked out. Lissaris suggested that the employees sign a petition to get out of the Union. Nardozza said that he did not want to and the conversa- tion ended. A little before noon, Nardozza was approached by Freeman just as Nardozza was about to go to lunch. Freeman asked Nardozza "why don't you want to sign? I think you'd be better off without the union." Freeman added, "you'll be taken care of, everything will be much better than the union." Shortly before I p.m., the seven employees of Re- spondent employed on March 16 returned from lunch.' 3 Lissaris approached the workers in a group and showed them a petition reading, "We the undersigned workers in the shop of Wm. Chalson and Co., Inc., no longer wish to be represented for collective bargaining purposes by Local I of the Amalgamated Jewelry Diamond and Watchcase Workers Union." Lissaris asked the employ- ees to sign the petition. Various employees asked ques- tions about what benefits they would receive if they left the Union. Lissaris told the employees that he would find out the answers to their questions and he then went into Chalson's office two or three times in full view of the workers and returned with responses to their queries. Lissaris told the employees that if they left the Union they would receive pension benefits and a profit-sharing plan.i4 Lissaris also told the men that, if they left the ' Based on the testimony of Cerrato which is undenied. Lissaris who did not testify was known as the assistant foreman, gave out work to em- ployees, and shared an office with Supervisor Freeman. Lissaris was a union member and did perform production work along with other unit employees. 12 The Union had sent a letter to its members including Respondent's employees, dated March 13, announcing that the Union had passed an as- sessment of 10 percent from each member's salary in order to support the members currently locked out by the Associations. ' As noted, Hansen and DaRocha were laid off at the time and were not present 14 The union contract did not include a profit-shanng plan. 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, they would get better benefits and that Chalson would give them benefits the Union was giving and more. Carlos Cerrato asked why Chalson did not tell this to the men personally. Lissaris replied that Chalson could not speak directly with the men about the subject since for him to do so would be against the law. All seven employees then signed the petition. There was no discussion concerning the lockout assessment at the time the petition was signed. '5 After the petition was signed, Lissaris brought the pe- tition into Chalson, showed it to him and asked what he should do with it. Chalson told him to take the petition to the National Labor Relations Board. 16 Chalson then called his attorney and informed him of what had transpired. Goldstein told Chalson that if the employees wished to implement the petition, it would be necessary for Respondent to resign from the Association and he agreed to do so. There was no discussion at this time concerning the state of negotiations, and apparently Chalson made no effort to find out. He did, however, on March 16, send letters to the Association and the Union, announcing that effective immediately Respondent was withdrawing from the Association, withdrawing its des- ignation of authority to the Association to represent it in negotiations with the Union, and that it will not be bound by any collective-bargaining agreement entered into between the Association and the Union. The letters state no reasons for the withdrawals. Chalson admitted in his testimony that the reason for his withdrawal from the Association was the petition signed by his employees. On March 29, Respondent sent a letter to the Union, advising it that "based on objective considerations we have a good faith doubt that Local 1 represents a major- ity of the employees who are employed by this Compa- ny. Accordingly, we must decline to recognize Local I as the bargaining agent for the employees of Wm. Chal- son & Co., Inc." Shortly after the withdrawal of recognition from the Union, Respondent began signing up its employees for the medical insurance plan then in effect for its nonunit employees. In late April or early May, Tarantola presented Chal- son with a four- or five-page summary of the changes 'I The above facts are based on the essentially mutually corroborative testimony of Cerrato, Nardozza, and Toral, which I credit. I discredit the testimony of Regoso, insofar as he denies that better benefits were prom- ised by Lissans. His testimony was filled with inconsistencies between his earlier testimony as well as his affidavit. In addition, he asserted that Lis- saris spoke to employees individually and that he only heard Lissaris' dis- cussion with one other employee. Moreover, Regoso is still employed by Respondent and admits that Chalson agreed to employ his brother Lito upon Regoso's recommendation when Lito was still in the Phillipines. I also discredit the testimony of Chalson that when Lissaris came into his office to ask questions about benefits, the petition already contained five names. Even Regoso's testimony contradicts Chalson on this point, as does the mutually corroborative versions of Nardozza, Toral, and Cer- rato. In addition I find it inherently improbable that employees would sign the petition before sending Lissaris to finu out about what benefits they would receive if they left the union. Chalson ill addition testified that Lissaris asked him what benefits the employees would receive if they left the Union. He allegedly replied that they would receive the same benefits received by Respondent's unrepresented office clerical employ- ees, which included a pension and a profit-sharing plan '6 Based on Chalson's testimony, Lissaris was not called to testify by either party. An RD petition was filed at the Board in Case 2-RD 965 on March 21. from the old contract which had been agreed upon by the Associations, and requested that Chalson sign the contract agreed upon. Chalson replied that he would think it over. Chalson testified that he then called a meeting of the five unit employees then employed and asked them if they wanted him to sign the contract. Ac- cording to Chalson, all five employees without asking what was in the contract, said no. Chalson thereafter re- fused to execute the contract or to abide by its terms, and to date has continued to refuse to do so. III. CONCLUDING FINDINGS A. Respondent's Withdrawalfrom the Association and Withdrawal of Recognition from the Union It is well settled that, absent mutual consent or unusual circumstances, an employer may not withdraw from multiemployer bargaining except upon unequivocal writ- ten notice prior to the date set by the contract for modi- fication or the agreed-upon date to begin multiemployer negotiations. t7 It is conceded in the instant case that Respondent's withdrawal from multiemployer bargaining herein was made absent mutual consent and after negotiations com- menced. The issue to be resolved therefore is whether "unusual circumstances" existed at the time of Respond- ent's withdrawal. Respondent contends that an impasse existed in negoti- ations at the time of its withdrawal from the Association on March 16, and that this fact, under the law of various circuit courts of appeals including the Second Circuit, constitutes an unusual circumstance justifying Respond- ent's withdrawal. The General Counsel takes the position that no im- passe existed at any time during the negotiations, and that, even if said impasse existed, under Board law this does not constitute an unusual circumstance justifying withdrawal. 19 The first issue to be resolved therefore is whether or not an impasse existed on March 16, when Respondent withdrew from Association bargaining. Both the General Counsel and Respondent cite with approval the Board's decision in Taft Broadcasting Co., WDAF AM-FM TV, 20 wherein impasse was defined: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the ne- gotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of the negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining exist- ed. 17 Retail Associares Inc., 120 NLRB 388 (1958); Charles D. Bonanno Linen Service Inc., 243 NLRB 1093 (1979). 1i N.L.R.B. v. Beck Engraving Co.. Inc., 522 F.2d 475 (3d Cir. 1975); NL.R.B. v. Associated Shower Door, Inc., et al., 512 F.2d 230 (9th Cir. 1978). ' H- Way Billboard, Inc., 206 NLRB 22 (1973); Bonanno. supra. 20 163 NLRB 475 (1967). 30 WM. CHALSON & CO., INC. Respondent contends that impasse existed as of Febru- ary 28, the date that the contract expired, and that the impasse continued through March 16, the date of Re- spondent's withdrawal. Respondent notes that after the Union rejected the Associations' offer of February 28, the parties were still far apart on all major issues, no fur- ther meetings were scheduled, the contract was not ex- tended, and some of the Associations members locked out their employees. In view of these combinations of factors, Respondent urges a finding that an impasse exist- ed as of February 28. I disagree. The factors cited by Respondent are insufficient to establish the existence of an impasse. The Board has held consistently that the existence of a strike (and by analogy, a lockout), does not indicate that an impasse has been reached. 21 It is clear that in the in- stant case the lockout and the contract expiration do not reflect the existence of an impasse. The lockout was called, it appears, primarily due to the Associations' mis- taken impression that the Union would strike on March I. While it is true that as of February 28, the parties were still far apart on many major issues, there is no question that the bargaining did reflect movement on both sides. There had been only eight bargaining ses- sions, and it was not until the sixth session on February 26 when the Associations presented their first wage offer. Over the next three sessions both sides changed their positions on wages, pension, and hospitalization benefits, the three key areas in the negotiations. Al- though no new meeting date was set up at the close of the February 28 session, this was primarily due to Glau- berman's request that the Union vote on the Associations last offer, and in fact was not an unusual procedure in these negotiations.2 2 Moreover, in any event the failure to set up another meeting at the close of a session does not establish the existence of an impasse. 23 Berger, the Associations' counsel and Respondent's witness, admitted that the pressures of time, and the ne- cessity to present the Associations' offer to the member- ship were largely responsible for the meeting breaking up without further bargaining. Thus, although agreement was not reached on most significant issues, this "afforded Respondent no warrant for equating this session to a last ditch effort at reaching agreement, nor was there any contemporaneous understanding by the parties to that effect. 2 4 F. A. Reynolds Co., Inc.,25 seems most analagous to the factual situation existing herein. The Administrative Law Judge, affirmed by the Board, noted that admittedly slow-moving negotiations, comprising only seven ses- sions, do not qualify as marathon sessions. He found that "the foregoing is not a picture of rapidly moving negoti- 2z Seven Motors Ltd. d/b/a Mazda South, et al., 233 NLRB 1198 (1977); J. H. Bonck Co.. Inc.. 170 NLRB 1471 (1968); Burgess Mining & Construc- tion Corporation, 239 NLRB 92 (1978) 22 As noted, other sessions had ended without a new date being set for a meeting. 23 Preston H. Haskell Company, 238 NLRB 943 (1978); Supak and Sons Manufacturnng Corporation, 192 NLRB 1228 (1971). a4 Supak and Sons, supra at 1243. 2" 173 NLRB 418 (1968). ations, but neither is it one of negotiations caught in the doldrums."2 6 The Administraitve Law Judge further found that although the Union's last concessions were moderate (the same 5-cent-per-hour reduction as in the present case), they "negated the proposition that there was no prospect of further movement." 27 Additionally, the Administrative Law Judge highlight- ed what I deem to be a highly significant factor in evalu- ating the existence of an impasse. That is the fact that the Associations had not as yet considered the significance and effect of the employees' unanimous rejection of their last offer. As the Administrative Law Judge quite co- gently pointed out: Respondent was not negotiating an ordinary busi- ness contract with someone who could go else- where or with whom it could choose not to deal. An employer seeking in good faith to reach agree- ment will give serious consideration to the extent and strength of his employees' feelings as to matters at issue.28 After the February 28 rejection of the Associations' offer by the employees, there was a brief hiatus in nego- tiations until March 7, due largely to the problems in- volved in the Associations' partial lockout. The parties met four times between March 7 and March 16 at the New York State Mediation Board. Three issues were re- solved on March 9, medical coverage for employees on leave, vacation pay for piecework setters, and posting vacation days. Although these were not major issues, some progress was still being made. Respondent relies heavily on Berger's testimony that, at the March meet- ings that he attended (only the meetings of March 7 and March 9), the Union's position had become more rigid and that the Union had no expectation neither the the desire to change its position. However, this rather self- serving, conclusionary testimony must be read along with Berger's further testimony concerning his assess- ment of thq negotiations and the Associations' bargaining strategy. Berger admitted that there was movement and changes during the negotiations, but the movement was so small that from the Employers' point of view they felt that there was no possibility of arriving at an agreement on that date. Berger admitted that the Associations knew that their offer of February 28 was not their final offer, and that further offers would be made by them, but that they had concluded that they would make an additional offer until the Union changed its position. Thus it is clear that bargaining had continuously been conducted, and was still in active progress when Respondent withdrew from the Association on March 16, and that no impasse existed at that time. Even were i to find that an impasse existed on March 16, Respondent was still not privileged to withdraw from the Association. The Board has, in Bonanno, supra, reaf- firmed its longstanding position that impasse is not an un- usual circumstance justifying withdrawal from multiem- 26 Id at 424 27 Ibid. 2s 173 Nl.R at 425 31 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer bargaining. Moreover, it must be noted that Re- spondent's withdrawal was not motivated in any way by the alleged existence of an impasse. Chalson admitted that, although he thought that there was an impasse as of February 28, he did not withdraw at that time because he did not wish to break up the Association or to engage in individual bargaining with the Union. His decision to withdraw from the Association, I find, was solely attrib- utable to the fact that his employees executed the peti- tion seeking to withdraw from the Union on March 16. Noted in this regard is the fact that no reason was given by Respondent at the time of its withdrawal from the Association and the fact that Chalson was unaware of the status of negotiations of March 16.29 In Acme Wire Works, Inc., 229 NLRB 333 (1977), the Administrative Law Judge, affirmed by the Board, citing Retail Associates, found that "it is axiomatic that the deci- sion to withdraw from multiemployer bargaining must be made in good faith with the utilization of a different course of bargaining on an individual basis."3 0 This holding is consistent with the underlying ration- ale of the various circuit court opinions, which reject the Board's approach that impasse is not an unusual circum- stance justifying withdrawal from multiemployer bar- gaining. The courts stress the imbalance in bargaining weapons that the Board creates by permitting the Union to enter into individual contracts with some employers in a multiemployer unit, while binding the remaining mem- bers to the Association contract. This sanctioning of "whipsawing" employers the courts believe to be unfair, and therefore have permitted employers, after impasse, to withdraw from multiemployer bargaining upon notifi- cation to the Union. It follows from an analysis of the reasoning of the Courts' opinions in these cases that the existence of the impasse should be responsible for the employer's withdrawal and that individual bargaining with the Union be contemplated by the withdrawing em- ployer, in order to justify the withdrawal from such group bargaining. The issue is skirted by the Second Cir- cuit in Independent Steel Fabricators, supra, where the court found that it was not significant that respondents failed to attribute their withdrawal to an impasse in their letter to the Union. The Court found that in the context of that case, Respondent's invocation of the impasse doc- trine does not appear to be an "afterthought." However, the facts in the instant case clearly establish and I so find that Respondent's invocation of the impasse doctrine herein was such an afterthought.31 Accordingly, since Respondent's desire to withdraw from the unit was not motivated by the alleged "impasse," this is further sup- 2 Chalson made no effort to check on what progress if any was made during the negotiations from February 28 through March 16. He testified that his knowledge of the progress in bargaining was gleaned partially from reading newspaper accounts of the meetings. When pressed further on this point, it became clear that Chalson did not see these newspaper articles until after he withdrew from the Association. Thus, it is obvious that the alleged impasse had no effect on Chalson's decision to withdraw. but that such action was taken due to the antiunion petition signed by his employees. 5o 229 NLRB at 336. 3J N.LR.B. v. Tulsa Sheet Metal Workers Inc., 367 F.2d 55, 58, and 63 (10th Cir. 1966), enfg. 149 NLRB 1487 (1964). port for finding that Respondent cannot lawfully rely upon such an impasse to justify such withdrawal.3 2 Respondent argues alternatively that under the Board's Bonanno decision, which defines the type of interim agreements sanctioned by the Board, Respondent's with- drawal from the Association is justified. In Bonanno, the Board, in reaffirming its disagreement with the circuit courts' position that impasse is an unusual circumstance justifying withdrawal from group bargaining, discussed the types of interim agreements which it believes were destructive of group bargaining. Respondent argues that the Union's actions in bargaining an individual contract with B. F. Hirsch, one of the largest employers in the JMA, which contract has not been shown to meet the criteria of an "interim" agreement under Bonanno, cre- ates withdrawal rights for Respondent. Respondent urges that this conduct by the Union undermines the integrity of the multiemployer unit and is bound to affect the sta- bility of the unit. Thus Respondent would be privileged to withdraw from the multiemployer unit. 33 The first problem with Respondent's contention cen- ters on the issue of appropriate unit. Hirsch was a member of JMA and not a member of AJI, the Associ- ation to which Respondent belonged. Although the two Associations have bargained jointly for a contract, and the new contract executed by the Associations was a single document, I have found that the appropriate unit for bargaining covering Respondent's employees is the AJI. I note that prior contracts had been executed sepa- rately, and each Association has a separate and distinct membership. Therefore since no members of AJI were permitted to withdraw, Hirsch's withdrawal from the JMA cannot be said to have affected the stability of the separate appropriate unit of the members of the AJI. However, even if Respondent's argument that since the two Associations have conducted joint negotiations Hirsch's withdrawal can be said to have affected the sta- bility of the AJI, were accepted, Respondent would still not be privileged to withdraw from the Association. The Board has clarified its Bonanno decision with re- spect to the execution of separate agreements with mem- bers of multiemployer units. In a series of three related cases,3 4 the Board held that "it does not follow ipso facto that execution of individual separate contracts with former Association members either proves an intention to destroy, or necessarily causes the fragmentation of a multiemployer unit. Rather, the facts of each case must be assessed in order to ascertain the impact of the par- ties' conduct upon the continued viability of multiem- ployer bargaining." An examination of the facts in Tobey reveals a very close parallel to the facts of the instant case. In Tobey the union permitted two employers to withdraw from an as- sociation and entered into separate contracts with these 32 Birkenwald Inc.. d/b/a Birkenvwald Distributing Co., 243 NLRB No. 55 (1979). "a Typographic Service Co., et al. 238 NLRB 1565 (1978); Cornell Type- setting Company, et al., 212 NLRH 918 (1974). s' Tobey Fine Papers of Kansas City, Divisions of Distribix. Inc., 245 NLRB No. 181 (1979); Butler Paper Company. Division of Great Northern Nekoosa Corporation, 245 NLRB No 182 (1979); Graham Paper Company. Division of Jim Walter Paper. Inc., 245 NLRB No. 180 (1979). 32 WM. CHALSON & CO., INC. employers. One of the employers permitted to withdraw was the largest employer in the association, and the com- bined actions of the two employers had the effect of di- minishing employee complement by 14 and 42 percent, respectively."3 Following the withdrawals, the union in Tobey contin- ued to negotiate with the remaining members of the asso- ciation and eventually reached agreement with the asso- ciation on terms of a new contract. In addition, the re- spondents therein all withdrew from the association at the same time that they filed RM petitions at the Board, alleging that a majority of their employees no longer wish to be represented by the Union. The Board found that in those circumstances, respond- ents' withdrawals were not justified by union conduct which it asserts was inimical to group bargaining and substantially weakened and fragmented the association bargaining unit. The Board's reasoning which applies equally to the facts in the instant case is as follows: Rather, we view the Union's and Association's con- tinued bargaining efforts and successful conclusion as a forceful rebuttal to Respondent's charge that the Union's earlier conduct manifested a rejection of multiemployer bargaining and had a fatal impact upon it. Moreover, we note that the concurrent withdrawals and filings of representation petitions were, in each case, expressly tied to an expression of doubt as to the Union's majority support among the respective employees rather than predicated upon the impasse, strike, objectionable union con- duct, or any deficiency in the Association or its via- bility. [245 NLRB No. 181, sl. op., p. 11 (1979).] The Board also distinguished Typographic Service, supra, where 7 out of 17 employer members were permit- ted to withdraw from the Association, and offered to cease strike activities in return for these Employer's abandonment of the Association's contract proposals. This conduct thereby dissolved the viability of the mul- tiemployer bargaining unit. The facts of the instant case clearly fall within Tobey rather than Typographic Service. Thus only one employ- er was permitted to withdraw from the Associations,3 6 bargaining continued with the Associations after Hirsch's withdrawal, and agreement with the Associations was reached shortly after the withdrawal of Hirsch was per- mitted. In addition, as in Tobey, Respondent's withdrawal from the Association was tied to an expression of doubt as to the Union's majority support among its employees, "s As noted, the record in the instant case does not establish the total number of employers or employees in the two Associations. It does estab- lish that Hirsch is one of the largest employers in the Associations em- ploying 180-200 employees. The record also reveals that there are 19 em- ployer members in the AJI alone. Thus it is doubtful whether Hirsch's withdrawal would diminish the employer or employee complement of the two Associations in excess of the 14 and 42 percent as in Tobey. 3' See also Birkenwald, Inc. d/b/a Birkenwald Distribution Company, 243 NLRB 1151 (1979), where the Board found the execution of a sepa- rate agreement with the largest employer in the Association of II em- ployers, comprising 30 percent of the employee membership in the Asso- ciation, was found not to be sufficient fragmentation of the unit to consti- tute an unusual circumstance justifying withdrawal from the unit. rather than predicated upon the impasse or any deficien- cy in the Association or its viability. Accordingly, I find that Respondent's untimely with- drawal from multiemployer bargaining was unwarranted, and that by that conduct and its subsequent refusal to ex- ecute or abide by the Associationwide collective-bargain- ing agreement, Respondent has violated Section 8(a)(1) and (5) of the Act. In addition, Respondent has further violated Section 8(a)(l) and (5) of the Act by withdrawing recognition from the Union. Since the appropriate unit is the mul- tiemployer Association unit, the fact that a majority of Respondent's employees withdrew their support from the Union is immaterial, and does not permit Respondent to refuse to recognize or bargain with the Union.3 7 B. The Antiunion Petition The corrected complaint alleges that Respondent, acting through Bernard Chalson, Bruce Freemen, and Fred Lissaris, condoned, approved, sponsored, and en- couraged the circulation among its employees and their signing of an antiunion petition, and offered and prom- ised to its employees a profit-sharing plan to induce its employees to abandon their membership in, and their ac- tivity on behalf of the Union. The evidence established that Supervisor Freeman was present on the morning of March 16, when Fred Lissaris spoke to employee Nardozza about signing an antiunion petition. Nardozza said that he did not want to do so. Although Freeman said nothing at the time, later on in the day, just before lunch, he approached Nardozza in the shop. Freeman asked why Nardozza did not want to sign, and added that he would be better off without the Union. Freeman concluded his remarks by saying "You'll be taken care of, everything will be much better than the Union." I find that these remarks by Freeman constitute an implied promise of benefits to employees to induce them to abandon their support of the Union in violation of Section 8(a)(1) of the Act.38 The antiunion petition was solicited by Lissaris shortly before I p.m. that same day. The employees asked ques- tions about what benefits they would receive if they left the Union. Lissaris, before answering these questions, on two or three occasions went into Bernard Chalson's office and returned with answers. He told the employees that they would receive a profit-sharing plan (which the employees did not have under the Union), and that gen- erally they would receive better benefits from Respond- ent if they signed the petition and left the Union. The issue to be determined therefore is whether or not Respondent is responsible for the conduct of Lissaris in these circumstances. The critical issue in making a deter- mination whether an employee had the apparent authori- ty to act for Respondent, is whether, under all the cir- cumstances, the employees would reasonably believe that the employee was reflecting company policy, and speak- 3" Bel-Window. Division of Balknap Glass Company, 240 NLRB 1315 (1979); Sheridan Creations. Inc., 148 NLRB 1503 (1964), enfd 401 F.2d 673 (2d Cir. 1966). 38 Vincent C. Vandemotter, d/b/a Rex Printing Company, 227 NLRB 1144 (1977); Berbiglia. Inc., 233 NLRB 1476 (1977). 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and acting for management. 3 9 Based on my review of the evidence in this record, I am persuaded that em- ployees would reasonably believe that Lissaris was re- flecting company policy and speaking for management in connection with his solicitation of the petition and that Respondent is responsible for Lissaris' activities relating to such solicitation. Lissaris was more than just an employee, as he was known as an assistant foreman, shared an office with Su- pervisor Freeman and did distribute work to employees. What I find most significant, however, are the circum- stances of the actual solicitation of the petition. Lissaris, in full view of the employees, went in and out of Chal- son's office and came back with answers to the employ- ees' questions about what benefits they would receive if they left the Union. Moreover, Lissaris, in response to Cerrato's question as to why Chalson did not give the men the answers himself, told the employees that Chal- son could not speak directly with the men about the sub- ject, since for him (Chalson) to do so would be against the law. These circumstances are highly indicative of management support and approval of Lissaris' actions. 40 In addition, the fact that Supervisor Freeman violated Section 8(a)(l) of the Act, as noted, by promising bene- fits to induce signing of the petition, further demon- strates to employees that Lissaris' similar conduct was reflective of management's attitude toward said peti- tion.4 Thus in summary I find as did the Board in Communi- ty Cash Stores, Inc., supra, that Lissaris in his activities focusing on the solicitation of antiunion statements, in which Respondent could not lawfully engage, acted as Respondent's emissary. The solicitation campaign was implicitly adopted and supported by Respondent's super- visors, and employees could reasonably believe that Lis- saris reflected company policy. Respondent is therefore responsible for Lissaris' conduct in soliciting the petition, and has violated Section 8(a)(l) of the Act by sponsor- ing, condoning, and encouraging the execution of such petition. 42 Moreover, Lissaris' statements to employees that they would receive better benefits, including a profit-sharing plan if they withdrew from the Union, constitute unlaw- ful promises of benefit calculated to persuade employees to rid themselves of the Union in violation of Section 8(a)(l) of the Act. Maywood Plant of Grede Plastics, A Di- visions of Grede Foundaries Inc., 235 NLRB 363 (1978); a9 Community Cash Stores, Inc., 238 NLRB 265 (1978). 40 Delridge Associates, Inc d/b/a Dellridge Nursing Home, 234 NLRB 595 (1978); Haynes Industries, Inc., 232 NLRB 1092 (1977) Pepi Cola Bottling Company of St. Mary's, Inc., 200 NLRB 922 (1972); Dorsey Labo- ratory, Division of Sandoz, Inc., 239 NLRB 857 (1978). 4 American Lumber Sales, Inc., 229 NLRB 414 (1977); Columbia Building Materials. Inc., 239 NLRB 1342 (1979); Community ('ash Stores, Inc.. supra. 42 The possibility that Chalson himself had a larger role in the spon- sorship of the petition than is apparent, is raised by Chalson's testimony under cross-examination Chalson admitted that he discussed decertifica- tion with his attorney a week prior to the circulation of the petition He further admitted that he told his attorney at that time that he wanted to implement the desires of his employees "whatever they turned out to be " When asked what made him think that something was turning about, his response was "only my reaction to the general situation" and "as obvi- ously appeared shortly thereafter the employees were dissatisfied with what the Union was demanding of them." Royal Himmel Distributing Co., 203 NLRB 370 (1973); Columbia Building, supra; Berbiglia, supra.43 C. The Layoffs of Hansen and DaRocha Hansen and DaRocha were informed on the afternoon of Tuesday, March 13, by Bruce Freeman that there was no work for them, and that they were laid off. They were told to call back on Monday, March 19, to see if any work had come in for them. On March 16, as noted, the petition was circulated at Respondent's premises and, as I have found above, was sponsored, condoned, and encouraged by Respondent. Hansen was the shop ste- ward, was the only waxer in the shop, had over 30 years' experience, and had not been laid off since 1950. Moreover, work ordinarily performed by Hansen was done by Freeman and Lissaris during the period of her layoff. These facts tend to support the General Counsel's theory that Hansen was laid off in order that she would not be present in the shop to interfere with the decertifi- cation petition. An examination of Respondent's defense only rein- forces the conclusion that the layoffs were violative of the Act. Respondent contends that work was unusually slow during the time of the layoff, and there was simply not enough work for Hansen or DaRocha to perform. Respondent points to the fact that two nonunit employ- ees were laid off the week before. However, it is signifi- cant that when these nonunit employees were laid off, they were not told to call back to see if work had come in, and in fact have not been recalled. Yet, Chalson al- though admitting that he had no basis for knowing whether or not there would be work coming in for Hansen or DaRocha, instructed them to call on Monday, the 19th, to see if there was work available for them. This leads me to believe that although work was some- what slow during this period, Respondent did in fact have work for Hansen and DaRocha on March 13, but laid them off in order that they not be present during the circulation of the decertification petition. My conclusion in this regard is fortified by Respondent's own records which indicate that on March 13, the very day the lay- offs were announced, 49 jobs came in to Respondent, nearly double the amount of jobs registered for any other day during the 2-month period of February and March. I also find it significant that Respondent did not call Bruce Freeman to testify. Freeman, Respondent's super- visor, and the nephew of Bernard Chalson, was, accord- ing to Chalson, the one who made the selection of Hansen and DaRocha for layoff. Yet, Freeman was not called as a witness, nor was any explanation offered why he was not called. "Where relevant evidence which would properly be part of a case is within the control of 4A Respondent argues that the reason that employees signed the peti- tion was due to the Union's attempt to assess 10 percent of the employees salaries to support the locked-out union members employed by other em- ployers. Although I find that this was a factor in the minds of some of the employees, I am also persuaded that the unlawful promises of benefit made by Lissaris and Freeman also contributed substantially to the deci- sion of the employees to sign the petition to withdraw their support from the Union. 34 WM. CHALSON & CO., INC. a party, whose interest it would naturally be to produce it, and he fails to do so, without satisfactory explanation, the trier of fact may draw an inference that such evi- dence would have been unfavorable to him."44 Accordingly, I conclude that the failure of Respondent to produce Freeman in this case, "irresistably" 4 5 calls for the application of this rule, and permits me to draw the inference, which I do, that Freeman's testimony would be unfavorable to the defense of Respondent's lay- offs of Hansen and DaRocha. 46 Therefore, I find that a preponderance of the evidence establishes that Hansen and DaRocha 4 7 were laid off in violation of Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent cease and desist therefrom and take certain affirma- tive action designed to effectuate the purposes of the Act. In this connection, I shall recommend that Re- spondent immediately sign and implement the agreement reached between the Union and Associate Jewelers, Inc., and give retroactive effect as of March 21, 1979 (The Carvel Company and C And D Plumbing and Heating Company, 226 NLRB 111 (1976)), and make employees whole for any loss of earnings suffered since then as a result of its failure to apply the said agreement. Backpay is to be computed in accordance with Ogle Protection Service, Inc., 183 NLRB 682 (1970), with interest thereon as perscribed in Florida Steel Corporation, 231 NLRB 651 (1977).48 Nothing herein is to be construed as requiring Respondent to recoup wages or benefits already received by its employees. Respondent will also be directed to make payments into the various funds on behalf of those employees in the unit for whom such contributions would have been made had Respondent not unlawfully repudiated the collective-bargaining agreement. Vin James Plastering Company, 226 NLRB 125 (1976). I shall also recommend that Respondent make whole its employees Elizabeth Hansen and Frank DaRocha for any loss of earnings suffered by them as a result of their unlawful layoff. The backpay provided herein shall be computed, with interest, in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950); and Flor- ida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact and upon the entire record in this proceeding, I make the following: 44 Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977). 's Gulf-Wandes Corporation, 233 NLRB 772 (1977). 46 Pyro Mining Company. Inc., 233 NLRB 233 (1977); Fred Stark and Jamaica 201 St Corp., Inc., 213 NLRB 209 (1974); Goodyear Tire and Rubber Company Highway Transportation Department, 190 NLRB 84 (1971); Gulf Wandes, supra, Martin Luther King. supra. '7 DaRocha was not a union official, nor did he engage in any union activities. However, I find that DaRocha was selected for layoff by Free- man because it was known that he did not get along with Lissaris and or in order to justify the concurrent layoff of Hansen I again rely, in part, in making this finding, upon the adverse inference that I draw from Free- man's failure to testify as set forth above. 4' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCI.USIONS OF LAW 1. Respondent Wm. Chalson & Co., Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Jewelry, Diamond and Watchcase Worker Union Local No. 1, IJWU, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is, and has been at all times material herein, the exclusive bargaining representative of the em- ployees of Respondent in the following appropriate bar- gaining unit: All production employees, employed by the em- ployer members of the Associated Jewelers Inc., but excluding office and factory clerical employees, porters, messengers, professional employees, non producing employees and all supervisors as defined in Section 2(11) of the Act. 4. By its untimely unilateral withdrawal from the mul- tiemployer unit, and by its subsequent refusal to sign and implement the collective-bargaining agreement reached between the Union and the Association, on April 16, 1979, effective March 21, 1979, and by its withdrawal of recognition from the Union as the collective-bargaining representative of its employees, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) and (5) of the Act. 5. By sponsoring, condoning, and encouraging the cir- culation among its employees and their signing of an an- tiunion petition, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. Promising its employees a profit-sharing plan, better benefits, and other improvements in their terms and con- ditions of employment, in order to induce its employees to sign an antiunion petition or otherwise reject the Union as their bargaining representative, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (5) of the Act. 7. By laying off its employees Elizabeth Hansen and Frank DaRocha in order to discourage membership in the Union, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER49 The Respondent, Wm. Chalson & Co., Inc., New York, New York, its officers, agents, successors, and as- signs, shall: 49 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and Continued 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Cease and desist from: (a) Sponsoring, condoning, or encouraging the circula- tion among its employees, and their signing of, an antiun- ion petition. (b) Promising its employees a profit-sharing plan, better benefits, or other improvements in their terms and conditions of employment, in order to induce its employ- ees to sign an antiunion petition or otherwise reject the Amalgamated Jewelry, Diamond and Watchcase Worker Union Local No. , I.J.W.U., AFL-CIO, herein called the Union, as their bargaining representative. (c) Laying off or otherwise discriminating against its employees, in regard to hire and tenure of employment, in order to discourage membership and activities on behalf of the Union. (d) Refusing to recognize or bargain collectively with the Union, as the exclusive bargaining representative of its employees in the appropriate multiemployer bargain- ing unit. (e) Refusing to sign and implement the 1979-82 collec- tive-bargaining agreement reached between the Union and the Associated Jewelers Inc., with respect to the em- ployees in the appropriate unit. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Forthwith sign and implement the above-described agreement and give retroactive effect thereto from March 21, 1979. (b) Make whole its employees in the appropriate bar- gaining unit for any loss of pay or other employment benefits which they may have suffered by reason of its refusal to sign and implement the aforesaid agreement in the manner set forth in the section of this Decision, enti- tled "The Remedy." (c) Make whole its employees Elizabeth Hansen and Frank DaRocha for any loss of earnings they may have suffered as a result of the discrimination practiced against them in the manner set forth in the section of this Deci- sion, "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payments records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its New York, New York, facility copies of the attached notice marked "Appendix." 50 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 8o In the event that this 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 read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 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 both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We therefore notify you that: WE WILL NOT sponsor, condone, or encourage the circulation among our employees, and the sign- ing of, an antiunion petition. WE WILL NOT promise our employees a profit- sharing plan, better benefits, or other improvements in their terms and conditions of employment, in order to induce our employees to sign an anti-union petition or otherwise reject the Amalgamated Jew- elry, Diamond and Watchcase Workers Union Local No. , IJWU, AFL-CIO, herein called Union as their collective-bargaining representative. WE WILL NOT layoff or otherwise discriminate against our employees, in regard to hire or tenure of employment, in order to discourage membership in the Union. WE WILL NOT refuse to recognize or bargain col- lectively with the Union as the exclusive bargaining representative of the employees in a appropriate multi-employer bargaining unit, or refuse to sign or implement the 1979-82 contract between the Union and the member-employers of the Associated Jewel- ers Inc. WE WILL NOT in any like or related manner, in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL forthwith sign and implement the above-mentioned contract and gave retroactive effect thereto to March 21, 1979. WE WILL make our employees whole in the ap- propriate bargaining unit for any loss of pay or other employment benefits they may have suffered by reason of our refusal to sign and implement the aforesaid collective-bargaining agreement, with in- terest. WE WIL.L make whole Elizabeth Hansen and Frank DaRocha for any loss they may have suf- fered by reason of our discrimination practiced against them, with interest. WM. CHALSON & CO., INC. 36