Canton Carp's, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1961

130 N.L.R.B. 1451 (N.L.R.B. 1961)

CANTON CARP'S, INC. 1451
V. THE REMEDY
• Having found that certain of the Respondents have engaged in certain unfair
labor practices , the Trial Examiner will recommend that they cease and desist there-
from and take affirmative action to effectuate the policies of the Act.
Because Camp 's testimony makes it clear that it was the Teamsters ' plan to
persuade many companies in the area to discontinue their business dealings with
Carolina during the period of the labor dispute, it will be recommended that such
Respondents cease inducing any individual employed by any person doing business
with Carolina from handling Carolina materials in order to force their respective
employers to cease doing business with Carolina . In order that said Respondents
may be aware of the extent of such recommended injunction , to the words "any
individual employed" will be added "whether in a rank -and-file capacity or as a
.supervisor."
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local Union No. 505, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
2. Carolina Lumber Company and Persun Construction Company are persons
engaged in commerce or in an industry affecting commerce within the meaning of
.the Act.
The rank-and-file employees and the labor foreman of Persun are individuals
employed by Persun within the meaning of the Act.
4. By inducing and encouraging individuals employed by Persun to refuse, in
the course of their employment , to handle materials of Carolina , with an object of
forcing Persun to cease doing business with Carolina , the Respondents Teamsters,
Camp, McCallister, Ellis, and Walker engaged in and are engaging in unfair labor
labor practices within the meaning of Section 8(b)(4)(i )(B) of the Act.
5. The said unfair labor practices are unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
. 6. The Respondents , or any of them , have not violated Section 8 (b)(4)(ii)(B) of
the Act.
[Recommendations omitted from publication.]
'Canton Carp 's, Inc. and Local 536, Retail Clerks International
Association , AFL-CIO. Case No. 13-CA-36d6. March 20, 1961
DECISION AND ORDER
On September 27, 1960, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in a certain unfair
labor practice, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint, and recommended dismissal
of those allegations. Thereafter, the Respondent and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers herein to a three-member panel
[Members Rodgers, Leedom, and Jenkins].
130 NLRB No. 151.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed..
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and hereby adopts the findings and conclusions of the Trial.
Examiner, but not his recommendation that an order issue.
We agree with the Trial Examiner that respondent violated Sec-
tion 8(a) (1) of the Act by threatening, on December 22, 1959, eco-
nomic reprisals against employee McKenzie unless he attempted to
secure a result favorable to Respondent in the Board-conducted elec-
tion that was held the following day. However, we believe that, be-
cause of the isolated nature of this remark, it would not serve any
useful purpose to issue a cease-and-desist order based thereon.I
In view of the foregoing, we shall dismiss the complaint in its en-
tirety.
[The Board dismissed the complaint.]
1 See, Atlas Storage Division , P & V Atlas Industrial Center, Inc ., 112 NLRB 1175_
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Wheatley in Canton , Illinois, on July 6 and 7, 1960 , on a complaint and answer duly
filed. The issues litigated were whether Canton Carp's, Inc., herein called Re-
spondent , violated Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended , herein called the Act. After the hearing in this matter, counsel for-
the General Counsel and counsel for the Respondent filed well -prepared briefs with.
the Trial Examiner which have been considered in preparing this Report.
Upon the entire record and observations of witnesses , the Trial Examiner makes-
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
The Respondent , an Illinois corporation, owns and operates a retail store located'
in Canton, Illinois. Its gross sales during the calendar year 1959 were in excess of
$300,000. However, Respondent and 24 other similar retail business stores in various
Illinois and Missouri towns and containing the name "Carp" as part of the corporate
name constitute a single employer for jurisdictional purposes 'and the gross volume-
of business done is well in excess of the Board 's, requirement for the assertion of-
jurisdiction. See Canton Carp's Inc., 125 NLRB 483.
H. THE LABOR ORGANIZATION INVOLVED
Local 536, Retail Clerks International Association , AFL-CIO, herein called the-
Union , is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The material allegations of the complaint are:
6. That Respondent violated Section 7 of the Act by:
a. In December 1959, threatening an employee with discharge unless the em--
ployee attempted to influence the choice of other employees in a Board--
conducted election.
b. On or about March 19, 1960, notifying an employee that he was to be trans--
ferred to Harrisburg, Illinois, because of his activity on behalf of the Union.
CANTON CARP'S, INC. 1453
c. On or about March 22, 1960, stating that an employee would be discharged
because of his activities for the Union.
The complaint also alleges that on or about March 26, 1960, Respondent dis-
criminatorily discharged James F. McKenzie because he engaged in union or con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection.
Respondent's answer denies that it has engaged in any conduct violative of the Act.
The Facts
In 1949 or 1948, James McKenzie started working in one of the stores containing
the name "Carp"-Pekin Carp's, Inc., in Pekin, Illinois. He voluntarily terminated
his employment at that store approximately 21/a years later. In 1954 McKenzie
reentered the employment of the Carp system. He was employed to work at a store
in Pontiac, Illinois, but reported for work before this store was opened and worked
in several other stores in the Carp Enterprise in the interim. He. was employed at
Pontiac Carp's, Inc., for approximately 8 months after which he was transferred to
Canton Carp's, Inc., where he worked until March 26, 1960, as manager of the shoe
department (a nonsupervisory job).
In March or April 1959, McKenzie contacted representatives of the Union about
organizing the employees at the Canton, Illinois, store. Thereafter, until the National
Labor Relations Board election, which was held on December 23, 1959, he actively
sought union members from among the 14 employees at this store. He was an
observer for the Union at the aforementioned election. In January or February 1960
at a meeting of employees of the Canton store McKenzie and another employee of
this store (Evelyn Pruden) were elected members of the Union's bargaining com-
mittee.
McKenzie testified that in May, June, or July, 1959, probably June, Bernard Carp,
president of each of the Carp corporations and the person who actively supervises
and manages the Carp Enterprise, remarked to him (McKenzie), "I hear you're an
organizer for the Union-you're passing out cards in the store," and in this same
conversation criticized him (McKenzie) for engaging in a restaurant business con-
trary to Respondent's policy. According to McKenzie, he (McKenzie) denied en-
gaging in union activities and told Carp that he would dispose of his interest in the
restaurant business (which he did not do prior to March 26, 1960). In June 1959,
McKenzie purchased from Respondent some fixtures for his restaurant business. The
invoices for these fixtures came to Bernard Carp's attention, in the middle or latter
part of July, and he (Carp) thus learned for the first time that McKenzie was engag-
ing in a restaurant business, which was contrary to Respondent's policy. Bernard
Carp testified that he then talked to McKenzie about this matter and obtained from
McKenzie his assurance that he would give up his "outside interest [restaurant busi-
ness]." Carp denied that there was "any conversation about union activities." As-
suming that Carp made the remarks attributed to him, the remarks, either standing
alone or in conjunction with other conduct revealed by this record would not warrant
a finding of violation of Section 8(a)(1) of the Act.' Furthermore, in the opinion
of the Trial Examiner, it is immaterial to a decision with respect to McKenzie's ter-
mination of employment which version is accepted. Accordingly, the Trial Examiner
is not resolving this conflict. For the purpose of deciding this case, the Trial Ex-
aminer will assume, arguendo, that McKenzie's version of this meeting accurately
reflects what occurred.
McKenzie also testified that about this same time (in May, June, or July, 1959)
President Carp made some comments to him about his organizing in the store. How-
ever, McKenzie could not remember what was said about the Union. The Trial
Examiner gives no credence to this testimony.
About 2 weeks prior to the Board-conducted representation election, which took
place on December 23, 1959, George Donovan, manager of the store in Granite City,
Illinois, telephoned McKenzie at his home and indicated he wished to see him.
Donovan then went to McKenzie's home and they had a conversation in Donovan's
automobile parked in front of McKenzie's home. According to McKenzie (Donovan
did not testify in this proceeding) :
He [Donovan] said, "I am not going to try and change your mind; you've made
up your mind about getting the Union in the store; I'm not going to try to talk
you out of it or change your mind"; but he said "I'd like to be able to go back
to St. Louis and tell Mr. Bernard"-I couldn't give him a definite answer at
'In addition they did not occur within the 8 -month period prior to the date of filing
of the charge.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that particular time-then he also wanted to know how the girls felt about hav-
ing the Union in the store; and I told him at that particular time I couldn't answer
his question because I didn 't know.
Q. Anything else?
A. He made the remark about-he said maybe Mr. Bernard-"Mr. Carp,
hasn't been as good to you as you thought he should be," or something like
that. He said , "do you want to be-just where would you like to be trans-
ferred-to my store in Granite City?" And I told him at that particular time
I couldn't.
On or about December 22, 1959, the day before the National Labor Relations.
Board representation election , President Carp talked to McKenzie via long-distance:
telephone . On direct examination McKenzie testified:
Well, he [Carp] told me the story about the dog having a bone, and going across.
the log, over the lake, and seeing the reflection-
TRIAL EXAMINER: What did he say when he told you the story?
Mr. PATTERSON: Yes.
A. He said the dog seeing the reflection of the bone in the water looked
much better, let loose, and to get hold of the bigger bone; and ended up with_
nothing. .
Q. Was anything else said in the conversation?
A. When I told him that I hadn't thought too much about the conversation
with Mr. Donovan, he said, "you better think today, tomorrow may be too
late," and he said "You're in a position to see that everything goes okay."
Q. Were those his words, Mr. McKenzie?
A. I believe it was-everything turns out all right-something
Q. What was he referring to, if anything, at this time?
Mr. KELLER: I object to that question.
TRIAL EXAMINER: Sustained.
A. That's all.
Q. Pardon?
A. That's all that I can remember at the present time.
Q. In this conversation did he say anything about your position to see about
how other employees voted?
* * * * * *
Well, when he said that I was in a position to see that everything turned out alt
right; that was my impression.
* * * * * * *
Q. Was Mr. Donovan's name mentioned in this telephone conversation?
A. I don't remember it was [nodded negatively].
In response to an inquiry whether President Carp said anything further "about
things turning out all right" McKenzie answered:
The only thing I can remember was he said, "You are in a position to see that.
everything turns out all right."
Q. Did he say to you what might happen if things didn't turn out all right?"
A. No.
* * * * * * *
The only thing I can think of that you might be sorry, something like that; I am.
not positive what else was said.
Carp's version of this conversation was that it was limited to his recollection of"
how the sale of shoes was progressing. He testified:
I told Mac we had a chance to clean up our house shoes to the May Com-
pany at St. Louis-they call the store there the Famous Barr-and I asked him
how he was doing with them. He says, "it's picked up an awful lot." I said.
you wont have any left then? To my best recollection he said "not enough to.
worry about."
Q. Was there anything further said in that telephone conversation?
A. If there was, I don't remember it.
Carp testified further that he did not at any time have any conversation with McKen-
zie about McKenzie's union activities.
The timing of the conversation-following so closely upon the conversation be--
tween McKenzie and Donovan and the fact that it took place the day before the elec--
tion-lends credence to McKenzie's version that there was a conversation concern-
ing the Union and the impending election suggests an urgency impelled by more than-
a curiosity about the sale of house shoes. Also, from observations of witnesses and'-
CANTON CARP'S, INC. 1455
analyses of the record , the Trial Examiner believes it highly unlikely that McKenzie
created the parable about the dog. To the contrary, such a story seems more com-
patible with Carp's personality . In the light of the foregoing, the Trial Examiner
credits McKenzie 's version of this conversation.
As noted above, a Board -conducted election was held on December 23, 1959.
The tally of ballots reveals that of 14 eligible voters , 7 voted for , and 4 voted against,
the Union , and 3 ballots were challenged . After ruling on the challenged ballots
and certain objections which were filed, the Board certified the Union on April 29,
1960 . Also as previously noted , McKenzie and Evelyn Pruden were elected mem-
bers of the Union 's bargaining committee in January or February 1960.
Sometime in February 1960, McKenzie and Pruden, a saleslady in the lingerie
department , were engaged in a social conversation in the "selling area of the" Canton
store. According to McKenzie and Pruden, while they were thus engaged President
Carp entered the store, observed them and then called McKenzie aside and , according
to McKenzie , said "if I ever catch you talking to one of the girls again I 'll fire you
right on the spot ." McKenzie first testified that he could not remember whether
Carp stated why he objected to McKenzie talking to other employees but, when
pressed for an answer, finally testified that Carp had said that he (McKenzie) "was
taking up the Company time and you call this cooperation , something like this."
Carp testified that there were customers present in the store at the time and that he
said to McKenzie and Pruden , "You know you 're not to be talking to each other
when customers are waiting to waited on; this is a store for selling merchandise."
Pruden denied that Carp said anything to her about this matter although she under-
stood that customers were not to be neglected while employees engaged in conversa-
tion. In his brief, counsel for the General Counsel contends that Carp's remarks
amounted to "a threat of discharge provoked solely because of McKenzie 's prior
Union activity" and that Respondent "was groping for a plausible excuse to expunge
this Union adherent from its payrolls." According to counsel for the General Coun-
sel, these conclusions are warranted because there was no company rule against em-
ployees engaging in conversation during working hours, because of the results of the
election on December 23, 1959 , and because "had Carp been sincerely interested in
curtailing such conversations between employees, he would have reprimanded Evelyn
Pruden , the other `guilty' employee , as well." As noted above , Carp testified he repri-
manded both employees . In the light of the circumstances then prevailing it appears
probable that he did, and the Trial Examiner so finds. Even without such a finding
the Trial Examiner cannot except the contentions made by counsel for the General
Counsel . The conversation contained no statements even suggesting that the repri-
mand was connected with union activities . Under either version it appears that Carp
was calling down employees ( or McKenzine ) for engaging in idle conversation in the
selling area of the store during regular store hours and under Carp's version, which
the Trial Examiner credits, that Carp was calling down employees for engaging in
idle conversation while customers were waiting.
Around August 1, 1959, Paul F. Frankenstein, store manager at Harrisburg, Illi-
nois, informed President Carp that the assistant manager at Harrisburg ( Joe Boyke)
was terminating his employment and requested that the store be furnished someone
from one of the other stores who was "capable and interested in my store ." , Carp
told Frankenstein that he would try to get "a good man; he had one in mind."
Around October 22 or 23, 1959, Carp told Frankenstein he would get him an assistant
and Frankenstein then asked Carp "to hold up temporarily" because of the "city-wide
clerks' strike" in Harrisburg . In December 1959 Carp asked Frankenstein if he still
wanted an assistant and Frankenstein responded "temporarily no, to hold up until
some future time , it was too close to the holiday season now to worry about it."
Around January 10, 1960, Carp told Frankenstein he was going to send him a man
as assistant and Frankenstein asked Carp "to hold up until spring"-to send one in
March or April-because business is slow in January and February but picks up
after that due to Easter.
On Monday , March 21 , 1960 , McKenzie received a letter from President Carp
dated March 19, 1960 , and reading as follows:
DEAR JIM: The store , at Harrisburg, Illinois, has a particular need for one
with your shoe selling experience and ability.
I want you to report there March 22 or 23rd.
You will find Mr. P. J. Frank a very fine gentleman to work with. He's been
with us a number of years.
Of course , we will take care of all your moving expenses and any incidental
expenses.
With kindest regards,
Yours very truly,
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon receipt of the aforementioned letter, McKenzie asked Joe W. Gunn, store
manager at Canton, Illinois, for advice, indicating a reluctance to accept the transfer.
Gunn advised McKenzie to take the matter up with Carp. The following day
(March 22, 1960), Carp visited the Canton store and remarked to Gunn that he
(Carp) was surprised to see McKenzie still there, that he thought McKenzie would
be in Harrisburg. Gunn then told Carp that McKenzie- did not want to go to Harris-
burg, and would like to talk to Carp about the matter. Carp then conferred • with
McKenzie: There is a dispute as to what was said. According to McKenzie:
He [Carp] said, "Mac, I believe-1 hear you want to talk to me"; he said,
"Let's go back here." I said, "Yes, sir, where do you want to talk, right here?"
"Why aren't you in Harrisburg?" And I said, "I don't want to go" and he said,
"That's it, that's all"-excuse me-and I said what do you mean , that's all? He
said, "You are off the payroll," and he said, "because, Mac, because we're
transferring you down there," he said, "I don't want you to think it's because
of Union activities is one of the reasons we're sending you down there." I said,
"Mr. Bernard, you'll never make me think anything else," and I don't remember
if anything else was said at that particular time, except he said, "You lied to
me when you said you didn't sign one of those cards"; he said, "I know you
did" and I don't remember-finally we came back in the shoe department and
he said, "you understand we were going to pay your expenses moving to Harris-
burg?"; I said, "yes, sir, but it didn't say anything about an increase in salary
or anything about that"; and I believe that was all that I can think of at the
present time that was said.
Q. Was anything said about Harrisburg being a Union store?
A. Oh, yes, sir; that's right. He said, "you wanted to work in a Union store,"
and he said, "we are sending you to a Union store," and he made a remark
about everything was legal and I said, "Yes, sir, I figured that you would have
it that way."
According to Carp;
He [McKenzie] said, "I have to get ahead." I said, "The only way I know
of for you to get ahead is to become a manager" and I said, "That was the
particular reason I wanted you to go to Harrisburg, because Mr. Frank has the
technique and the ability to teach men better than I think anyone in the entire
organization." He didn't say he was going; he didn't say he wasn't going; he
said , "I'll think it over."
Q. Now again directing your attention to the conversation with Mr. McKenzie
on March 22nd or March 23rd, whatever date-it was one of the two?
A. Yes, sir.
Q. Was there any conversation concerning Union activities of Mr. McKenzie?
A. None.
Later in his testimony Carp testified further that he told McKenzie that after mov-
ing expenses had been taken care of an increase in pay would be forthcoming. In
the light of the undisputed evidence in the record,2 the evidence which the Trial Ex-
aminer credits in this report, and upon observations of witnesses, the Trial Examiner
believes and finds that Carp's version of this conversation is more reliable than that
given by McKenzie. Assuming, however, that Carp made the remarks attributed
to him, these remarks standing alone, or in conjunction with other credible evidence,
create a suspicion, but falls short of creating an inference, that McKenzie's transfer
was motivated by his union activities.
Following the conversation noted immediately above, Carp told Store Manager
Gunn that he (Carp) thought McKenzie was going to Harrisburg and if he needed
a couple of weeks to straighten up his affairs to carry him on the payroll but if
McKenzie was not going to Harrisburg to terminate his employment that weekend.
Saleslady Evelyn Pruden testified that as President Carp left the store on March
22, 1960, she heard Carp say to Gunn, "It stands to reason he is the ring leader,
he's got to go." Pruden further testified with respect to this matter that she did not
hear anything else, that she did not hear any name mentioned, that she did not hear
anything that would indicate what name was involved, that she did not hear anything
that would indicate what "he" was the "leader of," and that there was a continuous
exchange of words between Carp and Gunn as they walked past her but that she
only heard the phrase noted above. In his brief, counsel for the General Counsel
argues that the remarks quoted above were the culmination of a continuous discus-
Such as the evidence concerning transfers and promotions of other individuals.
CANTON CARP'S, INC. 1457
sion concerning McKenzie 's refusal to accept the transfer to Harrisburg and that
the remarks had reference to McKenzie and his union activity . While the record
as a whole raises a suspicion to this effect , the Trial Examiner believes - and finds the
evidence adduced too fragmentary and speculative to warrant such a finding.
On Saturday , March 26 , 1960 , Store Manager Gunn asked McKenzie whether
he was going to Harrisburg and upon receiving a negative . answer told McKenzie
that the pay he received that day was the last he would be paid by the Carp Enter-
prise unless he went to Harrisburg . McKenzie 's employment with Respondent
ceased that date.
On Saturday , March 26 , 1960 , Evan Griffith, the Union 's business agent, called
upon Store Manager Gunn and complained about McKenzie 's discharge. Gunn
told Griffith that McKenzie had not been discharged but had "quit" and Griffith
then said , "If that is the attitude you're taking we will file charges ; we feel like he
was discharged and he didn 't quit." Gunn concluded this conversation by telling
Griffith that he would "have to talk to somebody else with more authority than
I [Gunn]."
By letter dated March 29 , 1960 (and mailed that date but because of insufficient
address not received by McKenzie until April 7 , 1960), President Carp advised
McKenzie:
DEAR MR . McKENzIE : I was very much surprised that you have not reported
at Harrisburg . You act as though a transfer was something new in your work
with us and you know that as a matter of fact you have been transferred
several times.
When I saw you in Canton last week , you said , "Mr. Bernard , what would
my salary be?" And I told you, "Mac , we have never transferred a man at a
smaller salary , and after we are done with the moving expenses you would have
an increase in salary."
Really, when I left you in Canton, I was definitely under the impression
that you would show up in Harrisburg yesterday.
Harrisburg has no assistant . Mr. Frank is the only man in the store and
you can see how badly he needs someone . You are a very capable salesperson.
We all understand that when your earnings last year amounted to $5100, and
I would hate for you to decide to leave our organization.
I hope that you will reconsider and report to Harrisburg as soon as possible.
With kindest regards,
Yours very truly,
McKenzie did not report to the Harrisburg store and has not been an employee
of the Carp Enterprise since March 26, 1960.
Between October 1959 , when the assistant manager at Harrisburg (Joe Boyke)
left the employ of the Carp 's Enterprise , and the middle of June 1960 there was no
assistant manager at this store . In June 1960 John Baker ( not formerly an em-
ployee of the Carp's system ) became assistant manager at . this store.
President Carp testified that McKenzie 's refusal to accept a transfer which in
fact was a promotion was the only such refusal in the history of the Carp Enter-
prise and that when McKenzie refused to accept the transfer he was not retained
at the Canton store "because the business has got to develop men to grow with the
business." The record herein reveals that the Carp Enterprise is a growing concern
and has a custom or practice of promotion via transfers within the Carp system.
Conclusions
The record herein does not warrant a finding, based on facts or on inference,
that Respondent created the vacancy in Harrisburg anticipating that McKenzie
would decline the job and that Respondent could thereby rid itself of an active
union adherent . To the contrary , the record reveals that this vacancy occurred in
due course . Furthermore , the record does not reveal that McKenzie lacked ability
to handle the job of assistant manager. If anything , the record reflects the con-
trary, namely , that he had such ability . The question for determination , therefore,
is whether Respondent's insistence that McKenzie accept the job of assistant
manager or leave Respondent 's employ was motivated by antiunion considerations.
While there is a suspicion that this is true, the Trial Examiner believes, finds, and
concludes that the evidence adduced falls short of establishing such by a prepon-
derance of evidence and that the evidence adduced is insufficient to warrant rejection
of Respondent 's contention that its insistence was motivated by business reasons.
In short , the Trial Examiner believes, finds , and concludes that the job of assistant
store manager became available in due course , that the evidence adduced does not
597254-61-vol. 130-93
1458 DECISIONS OF NATIONAL LABOR _ RELATIONS BOARD
warrant a finding that McKenzie was offered this job in bad faith , and that McKenzie
left Respondent 's employ rather than accept such job. Accordingly, the Trial
Examiner recommends that the allegations of the complaint to the effect that
Respondent discriminated against McKenzie be dismissed . See The Great Atlantic
and Pacific Tea Company, Inc., 124 NLRB 329.
In the light of the findings and conclusions made in this report it is readily
apparent that in the opinion of the Trial Examiner the allegations of the complaint to
the effect that Respondent violated Section 8 (a) (1) of the Act by notifying an
employee that he was to be transferred because of his union activity and by stating
to an employee he would be discharged because of his activities for the Union, should
be dismissed.
There remain for consideration the allegations of the complaint to the effect that
Respondent threatened an employee with discharge unless the employee attempted
to influence the choice of other employees in an impending election . The con-
versation between McKenzie and Carp on the eve of the election in which Carp
related the parable about the dog was clearly a threat of economic reprisal and
supports this allegation of the complaint.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary , the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board 's requirements
for the assertion of jurisdiction herein.
2. Local 536, Retail Clerks International Association , AFI-CIO, is a labor
organization within the meaning of the Act.
3. The evidence adduced establishes that Respondent threatened employees with
reprisals because of their activities on behalf of the Union and thereby engaged in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The evidence adduced does not establish that Respondent discriminatorily
discharged James F. McKenzie in violation of Section 8(a)(1) and (3) of the Act.
6. The evidence adduced does not establish that Respondent violated Section
8(a)(1) of the Act by notifying an employee he was to be transferred because of
his activities ' on behalf of the Union or by stating to an employee he would be
discharged because of his activities for the Union.
[Recommendations omitted from publication.]
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO; Building and Construction Trades Council of Greater
New York, AFL-CIO; and David Robertson , agent and Peter
Di Gangi, d/b/a Di Gangi Electrical Services . Case No. s-CC-
573. March 20, 1961
DECISION AND ORDER
On September 9, 1960, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
130 NLRB No. 150.