General Medical Supply Corp.

National Labor Relations Board - Board Decisions

Jan 22, 1963

140 N.L.R.B. 712 (N.L.R.B. 1963)

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
force or require Aetna to recognize or bargain collectively with us, or its em-
ployees to accept or select us as their collective-bargaining representative, and
will abstain thereafter from picketing for such objects for a period of 12 months.
WE WILL NOT picket, or cause to be picketed, or threaten to picket , Aetna,
where an object thereof is to force or require Aetna to recognize or bargain
collectively with us, or its employees to accept or select us as their collective-
bargaining representative , where a valid election which we did not win has been
conducted by the National Labor Relations Board among the employees of
Aetna, within the preceding 12 months.
WAREHOUSE AND MAIL ORDER EMPLOYEES, LOCAL 743,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
General Medical Supply Corp . and Local 135, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case No. 25-CA-1.5447. January 22, 1963
DECISION AND ORDER
On August 24, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in sand was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in
the complaint. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report, together with supporting
briefs.
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 [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the Trial Examiner's rulings and finds
no prejudicial error. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions, the briefs,
and the entire record in this case, and adopts the findings, conclu-
sions, and the recommendations of the Trial Examiner as amplified
herein.
1. We agree with the Trial Examiner that Respondent violated
Section 8(a) (3) and (1) of the Act by refusing to recall the employees
who had been laid off on January 25, 1962, because it knew that many
140 NLRB No. 68.
GENERAL MEDICAL SUPPLY CORP. 713
of them were union adherents.' As the Trial Examiner pointed out
in another connection (see footnote 32 of the Intermediate Report)
Sperling, Respondent's president, deliberately understated the im-
pact of the orders it had already received from its principal customer,
the Veterans' Administration, in his testimony at the hearing, March 8,
1962, on the Union's petition for an election. Delivery dates on these
orders could only be met if additional employees were hired. As a
matter of fact, Respondent had already begun hiring and continued
to do so after the representation hearing despite its claim at the
hearing that no increase in employment could reasonably be contem-
plated. Sperling testified at that hearing that the company had a
policy of recalling laid-off employees and had done so in the past.
However, he sought to create the impression at the representation
hearing, where the issue was the voting eligibility of these employees,
that the orders he then had or could expect to obtain would not require
additional hiring. The contrary, of course, was true.
It is clear from Sperling's questions of witnesses, his testimony and
that of the laid-off employees at the representation hearing, and from
the testimony of Roessner, Respondent's general manager, at the hear-
ing in this case, that the laid-off employees had good reason to believe
that they would be recalled and that Roessner would, in fact, have
recalled them except for Sperling's specific instructions not to do so.
2. We also agree with the Trial Examiner that Respondent's re-
ceipt of the Union's petition for an election the same day that it re-
ceived the Union's request for recognition did not, under the circum-
stances of this case, excuse its refusal to recognize and bargain with
the Union as the majority representative of its employees in an ap-
propriate unit. The Trial Examiner properly regarded the Union's
alleged loss of majority through the nondiscriminatory layoff of
January 25, 1962, a few days after the first request for recognition
was made, as immaterial. We note, moreover, in accordance with
the facts found by the Trial Examiner, -as explained in paragraph 1,
above, that the employees who were laid off on January 25 had a rea-
sonable expectancy of reemployment. They remained employees of
the Respondent and, as a consequence, the Union did not lose its ma-
jority even after the nondiscriminatory layoff.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner, as modified below :
(a) Insert the following at the end of Section 2(c) : "Interest at
the rate of 6 percent per annum shall be added to the backpay to be
In adopting the Trial Examiner's finding that the Respondent knew the identity of
the prounion employees, Member Rodgers does not rely on the small size of the plant
3 Scobell Chemical Company, Inc, 121 NLRB 1130, enfd 267 F. 2d 922 (CA 2)
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computed in the manner set forth in Isis Plumbing cQ Heating Co.,
138 NLRB 716." 3
(b) Immediately below the signature line at the bottom of Appen-
dix B, insert :
NOTE.-We will notify any of the above-named employees pres-
ently serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance with
the Selective Service Act after discharge from the Armed Forces.
'For the reasons stated in their dissenting opinion in the Isis case, Members Rodgers
and Leedom are convinced that the award of interest in this case exceeds the Board's
remedial authority. While adhering to such view, for the purpose of this decision they
are acceding to the majority Board policy of granting interest on moneys due
INTERMEDIATE REPORT
The charge in this case was served upon the Respondent on March 22, 1962, and
the complaint issued on May 2. Hearing was held before Trial Examiner Sidney
Sherman on June 5', 6, and 7, 1962, in Indianapolis, Indiana. The issues litigated
were whether the Respondent had violated Section 8(a)(5) and (1) of the Act
by refusing to recognize the Union, Section 8(a) (3) and (1) of the Act by discharg-
ing or laying off 17 union adherents and thereafter refusing to rehire 14 of them,
and Section 8(a)(1) of the Act by threats of reprisal and other coercive statements.
After the hearing, the Respondent and the General Counsel filed briefs.'
Upon the entire record in the case and from my observation of the witnesses, I
adopt the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
General Medical Supply Corp., hereinafter called the Respondent, is an Indiana
corporation, and at its only plant in Indianapolis, Indiana, it is engaged in the
manufacture and sale of hypodermic syringes. Respondent annually ships to out-of-
State points products valued in excess of $50,000.
I find that the Respondent is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2(5)
of the Act.
1 At the hearing the General Counsel Introduced various business records of Respondent,
which were designated as General Counsel's Exhibits Nos 14, 16, and 17 After the hear-
ing, General Counsel submitted a compilation based on these three exhibits, and moved to
withdraw the exhibits and to substitute therefor said compilation The Respondent con-
sented to the granting of said motion and it is hereby granted. I have marked this com-
pilation as "Trial Examiner's Exhibit No 1 " The Respondent also submitted after the
hearing a document entitled "Respondent's Exhibit No 5, as Expanded," which consists
of an elaboration of data contained In Respondent's Exhibit No 5, received at the hear-
ing As the accuracy of this expanded exhibit has been verified by the General Counsel,
I have determined to receive it in evidence, and have marked it as "Trial Examiner's
Exhibit No 2 " Respondent also submitted two documents entitled, respectively, "Sum-
mary of Private Orders Received," and "Summary of Private Customers," which had been
verified by General Counsel, and Respondent moved to withdraw Respondent's Exhibit
No 7, which had been received at the hearing, and the contents of which were digested
in the foregoing summaries. This motion is hereby granted, in the absence of objection
thereto. I have determined moreover to receive the foregoing summaries in evidence and
have marked them as "Trial Examiner's Exhibit No 3(a) and No 3(b)," respectively
Counsel for the Respondent and the General Counsel are to be commended for their
diligence and thoroughness, particularly their careful documentation and analysis of the
contents of voluminous business records
GENERAL MEDICAL SUPPLY CORP. 715
Iii. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint, as amended at the hearing, alleges that Respondent violated Section
8(a) (1) of the Act by interrogation of employees concerning union activities, by
threats of reprisal for such activities, by forbidding discussion of such activities in
Respondent's plant, and by threats of surveillance of such activities; that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging or laying off 18 named
employees because of their union activities and by failing to recall 15 of these
employees; and that Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to recognize or bargain with the Union as the representative of Respondent's
employees in the appropriate unit. The answer controverts all the foregoing
allegations.
B. Sequence of events
The Respondent early in January 2 had in its employ about 40 female production
workers. On January 14, about 12 of them, after a discussion in the plant initiated
by employee Thomas, decided to seek the aid of a union in organizing the employees,
and on the same day Thomas contacted Lanunert, a representative of the Union.
The next day Lammert addressed a meeting of employees at the home of employee
Monday, and 18 on that date signed cards authorizing the Union to represent them.
The next day five more employees signed union cards. On January 24, a meeting
was held at the Union's hall in Indianapolis, which was attended by 25 of the
Respondent's employees, and 3 additional cards were signed there. Thus, altogether,
23 employees had signed union cards by January 16, and 26 by January 24.
On January 19, Berns, a union agent, wrote a letter to Sperling, Respondent's
president, stating that the Union represented a majority of the Respondent's em-
ployees and requesting a bargaining meeting. On January 22, the Union filed
a representation petition with the Board.3 On January 25, Respondent terminated
20 of its employees. Whether this was a discharge or a layoff will be discussed
later. On January 29, Berns wrote another letter to Sperling referring to the
foregoing "layoff," and renewing his request for recognition. Two days later Berns
called Sperling to protest the action of January 25. During their conversation, Berns
expressed a desire to meet Sperling, to which Sperling assented. However, there
was no further contact between them.
On February 9, Sperling called the employees together in the plant and delivered
a speech about the union campaign. Whether he made any coercive remarks in this
speech is the subject of conflicting testimony, which will be treated below.
On March 8, at a hearing held upon the Union's representation petition, a number
of Respondent's employees testified on behalf of the Union, and others, while
not testifying, were present in the hearing room. Sperling and his general manager,
Roessner, were also present at the hearing and gave testimony. The sole issue in the
representation case was whether the 20 former employees were eligible to vote in
the election, the Union contending that they were, and the Respondent contending
that they were not because they had no reasonable expectancy of reemployment.
After the hearing, the Union withdrew its representation petition and subsequently,
on March 21, filed the instant charge, alleging, inter alia, that the action of January 25
was discriminatory. Although the Respondent has hired 22 employees since Jan-
uary 25, only 3 of the union adherents involved in the January 25 action have been
rehired by the Respondent.
C. Discussion
1. The interrogation
The amended complaint alleges unlawful interrogation by Roessner on January 24
and February 9, and by Sperling on February 9. While the record shows that Sperl-
ing on February 9 made a speech to the employees regarding the Union, there is no
evidence of any interrogation of employees by Sperling on that date or at any other
time, nor is there any evidence of any interrogation by Roessner on February 9.
Accordingly, at the close of the General Counsel's case, I granted Respondent's
motion to strike the foregoing allegation as to Sperling and Roessner.
However, with regard to interrogation by Roessner on January 24, employee Bray
testified that on that date Roessner referred to a notice of a union meeting which
had been posted in the employees' restroom, and asked her if she had posted it or
All events hereinafter related occurred in 1962, unless otherwise stated
' Case No. 25-RC-2160
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew who had done so. Roessner admitted that he was aware that the foregoing
notice had been posted in the restroom, but denied the foregoing interrogation.
Bray had signed a union card on January 14, but was not one of the alleged dis-
criminatees. She was no longer in Respondent's employ at the time of the hearing.
Accordingly at that time, while she may have been favorably disposed to the Union,
she had no apparent personal interest in in the organization of Respondent's plant
by the Union or in the outcome of this proceeding. Roessner on the other hand was
still employed as Respondent's general manager at the time of the hearing and it was
therefore to his interest to deny any involvement in unfair labor practices.
In view of the foregoing, I credit Bray and find that Roessner interrogated Bray
as testified by her. I find, further, in the context of the Respondent's other unfair
labor practices discussed below, particularly a threat of reprisal delivered by Roessner
in the same conversation with Bray, that such interrogation was coercive and violated
Section 8(a)(1) of the Act.
2. Threats of reprisal
Section 5(b) of the amended complaint alleged that General Manager Roessner,
on January 24, and President Sperling on February 9, warned the employees that
Respondent "would quit business" if they did not refrain from joining or assisting
the Union. As no evidence of such threat by Sperling on that date was adduced,
I granted Respondent's motion to strike the foregoing allegation with respect to him.
As to Roessner, Bray testified that, in the same conversation in which he interrogated
her about the posting of the union notice (see above), Roessner stated that Sperling
would "close the doors before he would let a union get in ." Although Roessner de-
nied this threat, I credit Bray for reasons already discussed, and find that by such
threat the Respondent violated Section 8(a) (1) of the Act.
Paragraph 5(f) of the amended complaint alleges that threats similar to the fore-
going were uttered by Roessner on February 2 and May 2, Thomas testified to such
threats by Roessner on those dates. While Roessner contradicted her, I credit
Thomas, as I was favorably impressed by her demeanor and as I have already re-
jected Roessner's denial of a like threat addressed to Bray.
Paragraph 5(c) of the complaint, as amended at the hearing, alleges that on Feb-
ruary 9, Sperling threatened employees with reprisals if they discussed union activi-
ties on Respondent's property. This allegation has reference to certain remarks
allegedly made by Sperling in the speech delivered by him on February 9 to the
assembled employees. It is undisputed that in this speech Sperling assured the em-
ployees that they were free to designate the Union as their representative, while at
the same time reminding them that under the Indiana right-to-work law they could
not be required to join a union as a condition of employment There is conflict, how-
ever, as to what Sperling told them about their right to discuss the Union in the
plant The General Counsel's witnesses testified that Sperling forbade discussion at
any time in the plant, and not merely during working hours. Sperling's version was
that he told the employees he had the right to discharge the employees for discussing,
or soliciting for, the Union in the plant during working hours, and that he had some
employees who would inform him of any such activities by other employees which
might escape detection by the general manager (Roessner).
Of the three employee witnesses called by the Respondent, one (Bacher) pro-
fessed no recollection of the matter, another (Bennett) 4 testified incredibly, con-
trary to Sperling's own admission, that he did not even discuss the question of union
activity in the plant, and a third (Hickman) asserted, in aereement with the General
Counsel's witnesses, that Sperling forbade any discussion of the Union "in the plant."
Hickman was still in Respondent's employ at the time of the hearing and was not
shown to be a union adherent.
On the other hand the five witnesses for the General Counsel on this point testified
uniformly that Sperling forbade discussion of the Union in the plant, and not merely
during working hours. While all five were union adherents, none of them was in-
volved in the alleged discriminatory layoff, and three (Deeter, Nispel,s and Mason)
were still in Respondent's employ at the time of the hearing. T was favorably im-
pressed by the demeanor of these five witnesses, particularly Deeter and Prosser
Accordingly. I find that in his speech on February 9. Sperline in effect forbade any
discussion of the Union in the plant at any time. inch"ding nonworking time, and
that Respondent thereby violated Section 8(a) (1) of the Act
Section 5(g) of the complaint, as amended at the hearine. alleges that on Mprc'h 72
Sperling threatened employees with discharge if they adhered to the Union In sup-
4 Also referred to in the record as Burnett.
6 Also referred to in the record as Green (her maiden name)
GENERAL MEDICAL SUPPLY CORP. 717
port of this allegation, the General Counsel adduced testimony by several employees
about a conversation sometime in March between Sperling and employee Bolinger-6
Preston, who gave the most complete version of the incident, testified:
Well, he [Sperling] looked over at one of the girls and he said something
about her being divorced and having three kids, "where else could she get a
job," and he said he wasn't going to let anybody tell him what to do and he said
something about that they had got him out of his sick bed to come down here
to the . . . hearing 7 . . . and that he had made fools out of them and he said
he could get rid of all of them; he took his hand and went like that,s . . . said
something about his daughter and friends could run the place.
Deeter testified that she overheard Sperling say to Bolinger, "I could get rid of all
this 9 and I could have my daughter and her friends come in and do this work."
Evelena Alderson testified that on the same occasion Sperling pointed at her and
said to Bolinger, "This one I would take a chance on"; that he then pointed to Mason
and said, "That one there, she is divorced and has three kids. Where else could she
get a job?" Thereafter, according to the witness, Sperling said of Eva Monday,
"This Eva, who does she think she is anyway? And then . he told Margaret
[Bolinger] . they won't outsmart Mike 10 . . . then he said before he got through
there wouldn't be anybody left that was with Jim Hoffa's boys . . . According
to the witness, Sperling added, "You know before there is a union I will close the
doors on the place and take a vacation."
Eva Monday, who also observed the conversation between Sperling and Bolinger,
testified that she overheard only a remark by Sperling that "they were not going to
tell him what to do."
Bolinger, herself, although called by the Respondent, corroborated some of the
foregoing testimony. Thus, while denying that Sperling had threatened to get rid
of Hoffa's adherents or to close the plant, she acknowledged that Sperling said
something to the effect that he could bring his daughter and her friends in to do
the work in the plant. Also, in agreement with Evelena Alderson, Bolinger testified
that Sperling told her he would take a chance on Evelena, that she (Bolinger) took it
to mean that Sperling thought Evelena, having been rehired, would defect from
the Union. Bolinger also substantiated Evelena's testimony about Sperling's allu-
sion to the fact that one of the employees had three children and would have
difficulty in obtaining other employment.
Sperling, on the other hand, categorically denied all the remarks attributed to
him, except for the "take-a-chance" reference to Evelena. He explained, moreover,
that this remark was addressed to Roessner, not Bolinger, that it was made after
learning that Roessner had rehired Evelena, and that the statement was prompted
by his favorable reaction to Evelena's "clean cut" appearance.
Sperling did, however, admit that he had a conversation with Bolinger in the
plant, but insisted, contrary to the testimony of other witnesses, including Bolinger,
that this conversation occurred near the plant office and not in proximity to the
other employees, that he merely asked Bolinger whether the other employees were
still "agitating and killing time" during working hours, and that, when she answered
in the affirmative, he instructed her to tell the others to refrain from such conduct
during working hours
In evaluating the foregoing conflicting testimony, I am constrained to give special
weight to the testimony of Bolinger. She was not a union adherent and was in fact
called as a witness by the Respondent. While she was no longer in the Respondent's
employ at the time of the hearing,ll her husband was still employed as a foreman in
one of Sperling's other companies. She seemed a sincere and candid witness. Sper-
6 The General Counsel's witnesses placed this conversation about the middle of March
Bolinger placed it toward the end of March. Sperling did not recall the exact date, but
according to his testimony it could not have occurred in the middle of March, as he was
bedridden between March 8 and the end of March I do not deem it necessary to resolve
this conflict It is clear, in any event, that the conversation occurred after the hearing
of March 8 on the Union's representation petition.
4 Sperling attended the hearing of March 8 on the Union ' s representation petition while
recovering from the effects of an automobile accident
8 At this point, as noted by me in the record, the witness made a sweeping gesture
0 Deeter testified that this remark was accompanied by a gesture in the direction of a
table at which the employees were working.
10 Evidently referring to himself Sperling's first name was "Miklos."
11 She left voluntarily in May.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ling on the other hand here, as elsewhere, tended to avoid direct answers to questions.12
Relying on a synthesis of Bolinger's testimony and that of the General Counsel's
witnesses, I find that, on a. date in March, after the hearing on the Union's petition,
Sperling engaged Bolinger in a conversation in the presence of other employees,
including Deeter, Preston, Evelena Alderson, and Monday; that he told Bolinger
he would take a chance on Evelena; that he pointed to Mason and indicated that she
would have difficulty in obtaining other employment; and that he stated that he
could dispense with the services of the employees and bring his daughter and her
friends in to do their work. I find also that these remarks were delivered in the
context of derogatory comments about the Union, 13 and were therefore calculated
to convey the impression that such remarks, including the threat to dispense with
the employees' services, were related to the union activity.14 I find further that by
such threat the Respondent violated Section 8 (a)(1) of the Act.
3. Surveillance
Sections 5(d) and 5(e) of the amended complaint allege, in effect, that Sperling
on various dates in February threatened to maintain surveillance of (1) union meet-
ings and (2) of the union activity of the employees in the plant.
As to (1), Nispel testified that on February 28 Sperling told her and employee
Bacher that there was going to be a union meeting that night and "he was going to
watch the cars." Although called as witness by the Respondent, Bacher's testimony
was even more damaging than Nispel's. Bacher, who was still in Respondent's em-
ploy and not shown to be a. union adherent, testified that she recalled a statement in
February by Sperling to her to the effect that there had been a union meeting the
night before and that "he had seen the girls go in." In view of Sperling's unre-
liability as a witness, and as Bather's testimony tends to corroborate Nispel, I do
not credit Sperling's denial of Nispel's charge, and find that in February he told
Nispel that he was going to observe which employees attended a union meeting.
As to (2), above, a number of the employees testified that in his February 9
speech Sperling not only forbade all union activities in the plant but warned that
he would have someone report to him on any such activities. As already noted,
Sperling admitted that he warned the employees on February 9 that any violation
of his interdiction of in-plant union activity that escaped detection by the general
manager would be reported to him by certain of the employees. He denied merely
that the interdiction applied to nonworking time. However, as it has been found
above that Sperling's edict did apply to nonworking time, his warning that any breach
thereof would be so reported to him was unlawful, as it tended to enforce com-
pliance therewith.
I find therefore that by Sperling's foregoing threats of surveillance on February 9
and 28 the Respondent violated Section 8(a)(1) of the Act.15
4. The January 25 "layoffs"
The amended complaint alleges that on January 25 the Respondent discharged
or laid off 18 named employees because of their union activity and has since refused
12 It should be noted, moreover , that Sperling 's version of his conversation with Bolinger
seems contrived . It is difficult to believe that Sperling would entrust to Bolinger, a non-
supervisory employee , the responsibility for admonishing the other employees to refrain
from "agitation" during working hours. Sperling had already forbidden such conduct
himself in his February 9 speech , according to his own testimony, and it is not under-
standable why he should hesitate to repeat this instruction directly to the employees
13 Bolinger testified credibly that in the course of his aforementioned conversation with
her Sperling referred to the fact that Teamsters Union officials were living in hotels in
Miami, and that she had heard Sperling declare that the Union could not use his money
for that purpose . Moreover , I credit Preston ' s testimony despite Sperling 's denial , that in
the foregoing conversation with Bolinger he complained of the fact that he had been
forced to leave a sickbed to attend the hearing on the Union 's petition
14 However , I do not find that Sperling threatened , as Evelena Alderson testified, to
close the plant and take a vacation to avoid a union , or that he threatened to dismiss
those who were with "Hoffa's boys ." This testimony is specifically contradicted by
Bolinger and not corroborated by other witnesses As certain circumstances relating to
her pretrial statements and an incident that occurred at the hearing tended to reflect on
Eveleni `s credibility , I have determined not to credit her uncorroborated testimony There,
as here, it is contradicted.
15 However , I find no violation in Sperling's statement to Bacher that he had in fact
engage( in surveillance of a union meeting , as this was not alleged in the complaint
GENERAL MEDICAL SUPPLY CORP. 719
for the same reason to reinstate 15 of these employees, and that the Respondent
thereby violated Section 8(a)(3) and (1) of the Act. The record shows, and the
parties stipulated, that 1 of these 18 employees (Prosser) was not in fact laid off
on January 25, but remained in Respondent's employ until May 3. I will therefore
recommend that her name be stricken from the complaint.
The remaining 17 of these employees were among the 20 employees who were
notified on January 25 that their services were no longer required. They were also
among the 26 employees who had signed cards in the plant or at meetings, authorizing
the Union to represent them.
These 17 employees represented virtually the exact number (16) that had to be
eliminated in order to destroy the Union's majority status.16 The January 25 action
occurred only 2 days after Respondent had received the Union's request for recogni-
tion and a copy of the Union's representation petition. It occurred a day after Roess-
ner, as found above, warned Bray that Sperling would close the plant to forestall
unionization, and also a day after a union meeting of which Respondent had advance
notice The other threats of reprisal for union activity and other coercive conduct
found above amply attest Respondent's union animus.17 There is, moreover, evidence
in the record from which it may be inferred that the Respondent was aware on Janu-
ary 25 of the identity of the union adherents. Thus, on January 31, Sperling told
Berns that he knew which employees were for the Union.is Further the small size
of the plant affords a basis for inferring Respondent's knowledge of the identity of
the prounion employees,19 particularly in view of the fact that the first meeting to
discuss unionization was held in the plant, the Union was thereafter openly discussed
in the plant,20 and, on January 24, the union adherents adopted the practice of eating
their lunch in the plant in a. separate group, a matter of which Roessner was aware.21
The foregoing considerations would seem to establish prima facie that the action
of January 25 was for discriminatory reasons.
In rebuttal, the Respondent cites the following:
1. Oral and documentary evidence that the decision to effect a reduction in force
on January 25 was related to a decline in the volume of unfilled orders.
2. The denials of Sperling and Roessner that the selection of any employee for
separation on January 25 was related to their union activity, coupled with the fact
that, with two exceptions , the Respondent followed seniority in making such
selections.
The Reason for the Reduction in Force
While disagreeing in other respects, Roessner and Sperling agreed at the hearing
before me (and in the representation case ) that at the time of the January 25 action
there was an economic need for a reduction in force . The Respondent' s business
records confirm this.
On January 25, the Respondent had recently completed work for its principal
customer, the Veterans' Administration, on all orders which were due to be shipped
by that date, and Respondent received no new orders from that source until
16 Of the 20 employees remaining after January 25, only 9 were union adherents
11 Further evidence thereof appears in the credible testimony of Berns (which Sperling
only inferentially denied) that in their conversation of January 31, Sperling stated that
it was foolish of Berns to think that Respondent would ever be organized, and that
Sperling was not going to have any Hoffa men running his plant This was in keeping
with Sperling's later remarks to the employees, as found above, that nobody was going
to outsmart him or tell him what to do
11 Berns so testified. Although denying that he knew on January 25 who the union
adherents were among the employees released on that date, Sperling did not directly
contradict Berns' foregoing testimony, and I credit it As Sperling's admission to Berns
was made 6 days after the January 25 action, it would not in itself constitute Sufficient
proof of Respondent's knowledge of the identity of the union adherents on January 25,
but would be entitled to consideration in conjunction with the other matters cited in
the text
19 Holland Manufacturing Company, 129 NLRB 776; Wiese Plow Welding Co , Inc,
123 NLRB 616.
29
The Respondent points to testimony that the foregoing activities occurred outside the
presence of management. However, such evidence does not preclude the inference that
employees not sympathetic to the Union may have reported such activities to manage-
ment Note in this connection Sperling 's assertion in his February 9 speech, as found
above, that there were some among the employees who would keep him informed of any
in-plant union activities which were not observed by management.
a1 The last finding is based on the uncontradicted testimony of Bennett, a witness for
Respondent.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 23. Its outstanding unfilled orders from the Veterans' Administration on
January 25 represented only about 1 week's work,22 and delivery of most of this
amount was not due until April 20. As for its other customers, shipments to them
during the preceding 8 months had averaged less than 200,000 units a month.
Only 110,000 units were ordered by such other customers in January and shipments
in February to all customers, including the Veterans' Administration, totaled only
218,000 units. It is thus evident that on January 25 Respondent could at the most
have been assured of less than 2 weeks' work for its existing force of 40 employees
and that, in fact, total shipments for the entire month of February represented work
that could have been completed by the full complement of 40 employees in less
than 2 weeks. It follows that, absent the reduction in force on January 25, it would
have been necessary to lay off most, or all, of Respondent's employees by the
middle of February. That Respondent chose instead to retain half its force through-
out the slack period seems consistent with sound business practice.
The General Counsel does not contend that between January 25 and February 23
the state of Respondent's backlog was such as to warrant retaining all 40 employees.
He points merely to evidence in Respondent's own records showing that during January
it increased its inventory of raw materials as to certain items, and that two new
employees were hired on January 15, only 10 days before the reduction in force.
However, this evidence is not inconsistent with Roessner's testimony, which I credit,
for reasons discussed below, that the decision to retrench was not reached until
January 19 or 20, because no new Government orders had materialized by that time
and work on the old orders was virtually completed. The General Counsel points
also to statements by Roessner to employees during the early part of January to the
effect that he expected to maintain full production indefinitely, and to Sperling's
admission at the representation hearing that when delivery of the Veterans' Admin-
istration order was made (on January 24), the Respondent was promised further
orders. However, whatever the reason for Roessner's statements 23 and whatever
expectations Respondent may have had of new business, the fact remains that such
new business had not materialized on January 20 or on January 25 and did not in fact
materialize until about a month later.
General Counsel contends further that Respondent could have retained its existing
work force intact to produce for inventory. He points to the fact that Respondent's
inventory of finished products had in the past been 10 to 15 percent higher than it was
on January 25 24 However, there were also times in the recent past when such
inventory was 15 to 20 percent lower than in January. Moreover, considerations
other than discouragement of union activity might well have influenced Respondent's
decision not to retain employees solely to build up inventory in anticipation of future
orders. In reaching such a decision, Respondent would have had to weigh (1) the
disadvantages of tying up capital in additional finished inventory without any as-
surance as to when such excess inventory might be liquidated 25 as against (2)
the disadvantages of having to rebuild its work force if business improved and of
having to replace with inexperienced help any former employees who were not then
available for rehire. Moreover, Respondent's personnel records show that a 50
percent decline in its work force, such as occurred on January 25. was not un-
precedented. Thus in the first week of November 1960, Respondent's complement
declined from 28 to 15 emplovees.26 And, in explaining the size of the reduction
in force, Roessner testified that he was influenced by the fact that Respondent's record
showed that Respondent had only 18 or 19 employees before the upsurge of Govern-
ment work in August 1961. Those records corroborate Roessner on this point.
Finally, for reasons discussed below. I deem Roessner to be a credible witness in
this area and credit his testimony that he was responsible for the layoff and that it
was motivated by economic considerations. Accordingly. T do not find that the
decision to effect a reduction in the force on January 25, or the size of such reduction
was dictated by discriminatory considerations.27
'2 I e , 121,400 units During January, Respondent shipped about 500,000 units
23 Roessner attributed them to his misunderstanding of information that he had re-
ceived from Respondent's bookkeeper concerning the nature of the backlog.
24 See Respondent's Exhibit No 6. It was stipulated by counsel after the hearing that
this exhibit, although not so described at the hearing, related to raw materials as well
as finished goods. General Counsel's argument assumes, nevertheless, that it is an accurate
index of the quantity of finished products on hand, and I have accepted this assumption
26 Roessner testified that a factor in his decision to retrench was Respondent's apparent
financial stringency.
20 "Stipulation Exhibit No 6" attached to General Counsel's Exhibit No 2
27 General Counsel suggests that Respondent might have "created" a decline in its
backlog by refusing orders or by causing customers to cancel orders. However, there was
GENERAL MEDICAL SUPPLY CORP. 721
Mode of Selection
The question remains whether the employees were selected for dismissal on Janu-
ary 25 on a discriminatory basis. At first glance, it would seem difficult to conceive
of a less discriminatory basis than the method adopted by the Respondent-viz,
seniority. However, the Board has held that even the adoption of seniority as a
basis for layoff does not negate discrimination, where it sufficiently appears that
seniority was used merely as -a cloak for discrimination 28 The question here is
therefore whether seniority was used as a device to conceal a discriminatory basis
for selection.
Respondent called Sperling and Roessner to explain the basis for selection. How-
ever, there was sharp conflict between their testimony before me. Moreover, Sper-
ling's testimony is difficult to reconcile with that given by him in the hearing in the
representation case.
According to Sperling, the decision to effect a reduction in force was made in
December 1961, he alone was responsible therefor, and the selection of employees
was based on Sperling's disenchantment with those employees who had been hired
in the fall of 1961 by his then general manager, Everett. Sperling testified that he
deemed these employees responsible for the unusual number of customer complaints,
allegedly received by Respondent toward the end of 1961, about the quality of its
products. It was for this reason, according to Sperling, that late in December 1961
he directed Everett's replacement, Roessner, to "clean house" by discharging, as soon
as the current backlog of work was liquidated, all the employees hired in the fall of
1961 Thus, according to Sperling, the sole basis for selection of the employees
to be released was their supposed incompetence. Moreover, according to Sperling,
it was his low opinion of the caliber of these employees that prompted him to in-
struct Roessner, after a new order was received from the Veterans' Administration
on February 23, not to recall any of those employees but to hire new employees to
handle that order. However, it is curious that Sperling's testimony in the representa-
tion case hearing on March 8, referred to above, does not mention the supposed
inefficiency of the affected employees as the reason for the January 25 action, notwith-
standing that proof that they had been discharged for that reason would have ren-
dered them ineligible to vote. Instead, Respondent in the representation case con-
tested their eligibility to vote solely on the ground that, while it intended to recall at
least some of the girls if business improved ,29 Respondent could foresee no improve-
ment in business conditions that would warrant their reemployment.
The foregoing conflict in Sperling 's own testimony suggests that his explanation
before me of the basis for selection on January 25 and of the reason for not recalling
the old employees was an afterthought, designed to meet the exigencies of this pro-
ceeding. The representation hearing was held several days before the Respondent,
on March 12, began to hire employees to handle the new Government order. Ac-
cordingly, it was not until the instant hearing that there was any need for the Re-
no evidence of this at the hearing, and the General Counsel failed to explain why such
rejected or canceled orders would not be reflected in Respondent's business records, which
were made available to the General Counsel.
It may be contended that even If a reduction in force was necessary, the timing of such
reduction should be found to have been at least accelerated b; the union activity of the
employees, specifically the January 24 meeting, of which the Respondent admittedly had
advance notice. In this connection the General Counsel points to Roessner's admission
that the completion of the Government order, which Respondent alleges was the occasion
for the January 25 action, had been effected at least 3 days before, on January 22, whereas
the union meeting occurred only a day before. The General Counsel seeks, moreover, to
enhance the significance in this respect of that meeting by urging that, from Sperling's
admission, cited above, that he observed a union meeting in February, an inference be
drawn that either Sperling or Roessner also spied on the union meeting of January 24
As to this matter of surveillance, it was stipulated at the hearing (General Counsel's
Exhibit No. 2, paragraph 10) that Sperling was not even in Indianapolis on January 24
As for Roessner, I deem the foregoing admission by Sperling of surveillance by himself
of one union meeting insufficient basis for inferring surveillance by someone else of an
entirely different meeting. With regard to the timing of the January 25 action, it cannot
be denied that it was a suspicious circumstance, particularly in view of Respondent's
union animus, and that it militates against the credibility of Roessner's denial that for
layoff was influenced in any way by the union campaign. However, I do not deem such
evidence sufficient to overcome the reasons set forth below in the text for crediting
Roessner's testimony in this area
28 Borg-Warner Controls, Borg-Warner Corporation, 128 NLRB 1035, 1043-1044.
29 See General Counsel's Exhibit No. 3, p. 171, lines '12-24.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to explain its refusal to rehire the old employees as well as their original
separations. The old contention at the representation hearing-lack of business-
would explain the latter action but not the former. The new contention-ineffi-
ciency-adequately explained both actions.
That this new contention was an afterthought is confirmed by Roessner's testimony
before rne, which is consistent in the main with that given by him and Sperling in the
representation case, but conflicts sharply with Sperling's testimony before me. Roess-
ner and Sperling agree on only one point in this area-that on January 25 there was
an economic need for reduction of the work force. Roessner asserted, however, that
he alone, and not Sperling, was responsible for formulating the decision to reduce
the work force, that he made this decision on January 19 or 20, and that he based
his selections for layoff solely on seniority, except for two instances where he deemed
special considerations of efficiency to be of overriding importance.
Moreover, Roessner contradicts Sperling as to the circumstances relating to the
failure to rehire the old girls. Sperling testified that after receipt of the new Govern-
ment order he unequivocally instructed Roessner not to rehire any of the old girls
because they were "no good" and to hire new girls instead. Roessner, on the other
hand, testified that at that time he asked Sperling whether he should call back the
old girls, and that Sperling merely told him not to "call" them. Uncertain as to
Sperling's meaning, Roessner, beginning on March 12, nevertheless did take back all
three of the "old" girls who thereafter applied for reinstatement 30 (Roessner indi-
cated, in effect, that he chose to construe Sperling's instructions not to "call" the
girls as merely precluding him from seeking them out but not as preventing their
rehire should they apply to him.) Sperling's testimony at this point tends to shore
up his contention which, as already pointed out, was raised for the first time before
me, that the original basis for selection on January 25 was efficiency. Roessner's
testimony, however, if believed, undercuts this contention, since the fact that Sperling
forbade recall of the old girls without any explanation would permit an inference
of discriminatory motivation. Moreover, the fact that Sperling sought at the hearing
to transform his cryptic order to Roessner not to call the old girls to an order not to
hire them because they were no good would underscore the contrived nature of
Sperling's new defense of a discharge for cause.
There is also a discrepancy between Sperling 's testimony and Roessner 's action
on January 25. The burden of Sperling's testimony is that he .told Roessner to clean
house by dismissing all the employees hired by Everett in the fall of 1961. Roessner,
however, also released four girls whom he had hired himself in December and
January. This was consistent with his version of the January 25 action as a layoff
based on seniority but not with Sperling's version of a discharge for cause of
Everett's most recent hires.
While Roessner had his shortcomings as a witness,31 I consider him more candid
and reliable than Sperling, who demonstrated a tendency to be evasive, and to slant
his testimony 32 and shift his position to suit his immediate purpose. Roessner, more-
over, was not so deeply involved financially or otherwise in the issues in the case.
30 E Alderson, Schwartz, and Summit. Harvey had already been rehired, on Febru-
ary 6 All but Schwartz were union adherents
n As already noted, I have refused to credit his denial of coercive remarks attributed
to him by employees Moreover, it is difficult to recon lie his testimony before me that
he had not on January 25 formed any opinion as to the ability of the employees with con-
trary testimony before me and in the RC case in which he expressed opinions as to the
competence of the laid-off employees.
ii A striking illustration of this is Sperling's testimony on March 8 at the representa-
tion hearing that the $85,000 VA order of February 23 was a "small" order, which would
not require any additions to the work force. That order in fact represented 25 percent
of Respondent's production for the entire preceding calendar year, and within 3 months
after receiving that order Respondent had doubled its work force. Sperling testified be-
fore me that this increase in the work force was due to the combined effect of the VA
order and the volume of private orders and Respondent's brief points to a sharp rise in
private orders in April. However, there was a sharp drop in private orders in March,
when nine employees were added, and there is no evidence or contention that the April
increase was anticipated when those employees were hired . Moreover, since the aggregate
value of the private orders in April was only about 20 percent of the value of the VA
order, such private orders could hardly have accounted for any substantial number of the
new hires, particularly as Respondent had been able to ship in February, without adding
to its work force, more units than were encompassed in all the April private orders
Thus, it is evident that Sperling's foregoing testimony at the representation hearing and
before me was a deliberate understatement of the impact of the VA order
GENERAL MEDICAL SUPPLY CORP. 723
Finally, I deem it significant that Roessner 's testimony , while tending to justify the
January 25 action as an economic layoff, conflicted with Sperling 's grand strategy,
which was to put forth a defense of discharge for cause on January 25 and a refusal
to rehire for the same cause. Moreover , as shown above, Roessner contradicted
Sperling in material points as to the circumstances relating to the Respondent's
failure to recall most of the old employees . The fact that Roessner , while still Re-
spondent 's general manager and subject to discharge by Sperling , should refuse in
these important respects to accommodate his testimony to Sperling 's is a compelling
reason for crediting Roessner as to the circumstances of the layoff ( and the failure
to recall).
Accordingly, I credit Roessner here as against Sperling and find that on January 19
or 20 he formulated the plan to effect a reduction in force and that he based his
selections for layoff mainly on seniority rather than efficiency.
The question remains whether Roessner followed seniority because he knew that
he would thereby reach the bulk of the union adherents . Even if it be assumed, in
view of the evidence cited above , that Roessner , contrary to his testimony, knew
who the union adherents were, there are circumstances which to my mind militate
against a finding that he would have been influenced by this consideration . Roessner
appears to have been relatively free of any union animus , as is attested by the
fact that late in February or early in March, he proposed to Sperling the rehire of
the former employees and, despite Sperling's adverse reaction , proceeded to rehire all
who applied , regardless of union affiliation. While I have found above that Roessner
engaged in coercive conduct, this consisted principally in warning the employees
that Sperling would close the plant rather than permit it to be organized. I do
not regard this as necessarily reflecting any union animus on Roessner's part. Such
warnings were consistent with a desire to dissuade the employees from engaging
in any conduct that would invite reprisals by Sperling , whose animus toward the
Union must have become known to Roessner at an early date 33 Accordingly, I
am not persuaded that Roessner resorted to seniority on January 25 as a means of
reaching the union adherents.
However, the Respondent's failure to recall the old employees stands on an
entirely different footing. There , as already noted, Roessner and Sperling are in
agreement that the decision not to recall was made by Sperling. Moreover, for
reasons already stated , I reject Sperling 's testimony that he made it clear to Roessner
that he was not to hire any of the old girls because they were inefficient, and I credit
Roessner that Sperling merely told him not to call them, without specifying any reason,
leaving Roessner free to construe this as precluding him merely from seeking them
out. Had Sperling made it clear that he did not want any of the old girls taken
back because of their incompetence , I do not believe that Roessner , however well
disposed he may have been to the former employees, would have openly defied
Sperling. While I do not doubt that When Sperling instructed Roessner not to "call"
the old girls he meant that he did not want them rehired under any circumstances, and
that Roessner (deliberately or otherwise ) misconstrued his meaning , I find that
Sperling 's reason for opposing their rehire was not, as he contends, their supposed
inefficiency but rather their union activities. It is clear that by the second week
in March, when the Respondent began to augment its work force to handle the
new Government order, Sperling either knew, or had reason to believe, that the
bulk of the old employees were union adherents, and that their reinstatement was
essential to the Union's achievement of majority status. Apart from the circum-
stantial evidence cited above indicating such knowledge by Sperling as early as
January 25, there is Sperling's admission to Berns 6 days later that he knew which
employees were for the Union. Moreover, at the hearing Sperling admitted that,
when he forbade Roessner to hire old employees, he knew that "some" of them
were union adherents. Sperling could hardly testify otherwise, as it was obvious
that the Union would not have sought to establish the eligibility of the old employees
to vote unless it expected the majority of them to vote for it, and Sperling must at
least have suspected the prounion sentiments of the seven 34 of the old employees
who testified in Sperling's presence at the representation hearing on March 8 in
33 Sperling made no effort to conceal this animus from Berns in their January 31 con-
versation It is hardly likely that Sperling would not have made it known to Roessner
from the inception of the union campaign. This protective purpose of Roessner's would
he consistent with the fact that, as already noted, in the matter of recalling the old
employees he attempted to act as a buffer between Sperling and the union adherents.
34 Looper, Purvis, Roberts, Earline White, Burkhardt, Bornstein, and Duncan (whose
testimony was stipulated).
6S1-492-63-vol, 140 47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support of the Union's petition and of the two 35 others who attended as spectators
on that date. None of those nine were recalled. For reasons already indicated, I
find that Sperling was also aware as early as January 31 of the sentiments of the
five remaining union adherents 36 who were not recalled. Moreover, it would be
no defense as to those five in any event, that Sperling did not believe them to be
union adherents, if in fact he did not recall them in order to avoid recalling others
whom he believed to be union adherents.37
That he did in fact oppose the recall of all the 14 old employees involved herein
because of the known union activities of some or all of them is sufficiently established
by Sperling's union animus, including his threats of reprisal for union activities, and
by the speciousness of his explanation for not recalling them (that all of the old
employees were deemed incompetent), which explanation conflicts not only with
Roessner's credited testimony before me but with Respondent's position in the repre-
sentation case that the action of January 2-9 was due solely to lack of work and that
Respondent would recall at least some of the employees affected by that action should
business ever improve.
In conclusion, I find that, while it has not been proven that the reduction in force
of January 25 was discriminatory, the refusal to recall 14 of the union adherents
affected by that action was discriminatory, and that by such refusal the Respondent
violated Section 8(a) (3) and (1) of the Act38
5. The refusal to bargain
The complaint alleges that the Respondent refused on and after January 19 to
bargain with the Union as the representative of its employees, thereby violating
Section 8(a)(5) and (1) of the Act. The answer denies this allegation.
a. The appropriate unit
The parties stipulated, and I find, that the following unit is appropriate for purposes
of collective bargaining within the meaning of the Act:
All production and maintenance employees of the Respondent, employed at its
Indianapolis, Indiana, plant, excluding all office clerical employees, salesmen, guards,
professional employees, and supervisors as defined in the Act.
b. The Union's majority status
The record shows, and I find, that during the week ending January 20 there were
40 employees in the foregoing unit, that on January 15, 18 of them signed authori-
zation cards for the Union, that 5 more signed cards the next day, and that the total
number of employees signing such cards (23)39 represented a majority of the em-
ployees in the unit. Accordingly, I find that on January 16, and at least until
35 Day and D. Alderson.
ii Charles, Riley, Stevens, Ella White, and Willis
Arnotdware, Inc., 129 NLRB 228.
While there is no showing that any of these 14 applied for reinstatement, it is clear
from Sperling's testimony at the representation hearing that it had been Respondent's
practice in the past to recall satisfactory laid-off emp.oyees when business improved and
Roessner's credited testimony before me indicates that he was disposed to recall the old
employees in the spring of 1962, but did not because of Sperling's objection. It is true
that at the representation hearing Roessner, in response to leading questions by Sperling,
testified that "some" of the laid-off employees were good workers while others were poor,
and that he intended to recall the former. However, nothing in his testimony before me
indicates that his proposal to Sperling contemplated a selective recall procedure
Moreover, Roessner's treatment of Summit negates the likelihood that, if left to his
own devices, he would have recalled the laid-off employees on a selective basis He ad-
mitted that Summit was the only employee laid off on January 25 out of seniaiity, and
that this was because of her obvious limitations Yet he rehired her upon application
despite her admitted inadequacy
In any case, even if it be assumed that, absent discrimination, the old employees would
have been recalled on a selective basis, as the burden is on the Respondent to disentangle
the consequences of its own wrong, and there is no basis in the record for determining
which employees would, or would not, have been recalled under such selective procedure,
I still would have no alternative but to find a discriminatory refusal to recall as to all
14 employees here involved.
ii This number was increased to 26 on January 24.
GENERAL MEDICAL SUPPLY CORP. 725
January 25, the Union represented a majority of the employees in the appropriate
unit.
As already noted, on January 25 Respondent laid off 20 employees, including 17
union adherents, leaving only 9 union adherents among the 20 employees retained.
However, for reasons set forth below, I find that this circumstance did not affect
the Union's bargaining rights.
c. The demand and refusal
On January 19, Union Representative Berns wrote Sperling that the Union repre-
sented a majority of the Respondent's production and maintenance employees, re-
quested 'a bargaining meeting, sand offered to furnish at such meeting proof of the
Union's majority status. Although Sperling was out of town at the time, he was
advised on January 23 of the receipt of this letter and of its contents. At his direc-
tion, the letter was referred on that date to his attorney. In the meantime, on
January 22, the Union filed with the Board a petition for certification as .the repre-
sentative of Respondent's employees. A copy of this petition was also received by
Respondent on January 23, and was referred to Respondent's attorney. On January
25, as already related, the Respondent laid off 20 employees, including 17 union
adherents. On January 29, Berns wrote Sperling again, referring to the layoff, and
renewing his request for recognition. This letter wasseen by Sperling on January 31,
upon his return to Indianapolis. On the same date, an agent of the Board notified
a member of the law firm representing Respondent of the receipt of advice from
Berns that the Union desired a consent election upon its petition, provided Respond-
ent agreed that the employees laid off on January 25 were eligible to vote. On
January 31, Berns called Sperling and protested the layoff of January 25. In the
course of this conversation, Sperling stated, as found above, that it was foolish of
Berns to think that Respondent would ever be organized and that Sperling "wasn't
going to have any Hoffa men running his plant." Berns did not on this occasion
specifically renew his request for recognition, nor did he attempt to, contact Sperling
again, although Sperling indicated he was not averse to meeting with Berns.40
Respondent at no time replied to the Union's requests of January 19 and 29 for
recognition. Respondent contends that (1) there was no unequivocal request for
recognition by the Union, and (2) the Union lost its majority on January 25 by
reason of the layoff, which Respondent contends, and I have found, was non-
discriminatory.
In support of its first contention, Respondent cites the circumstances that on the
same day that the Respondent received the Union's initial bargaining request, it also
received a copy of the Union's representation petition; and that on the same day
that the Union's second request came to Sperling's attention , Respondent's counsel
was advised of the Union's conditional agreement to a consent election , and Sperling
himself received a call from Berns in which he admittedly made no reference to his
written request for recognition. Respondent contends that under these circumstances
it was reasonable for Respondent to believe ,that the Union was proposing an election
as an alternative to voluntary recognition.
However, it is well settled that the mere filing of a representation petition .by a
union does not justify a refusal to recognize the union absent a good-faith doubt of
its majority status 41 Respondent does not contend that it had any such doubt
prior to January 25.
Accordingly, I find no merit in Respondent's contention that the Union's bargaining
request of January 19 was ineffective because of the filing of the representation
petition 42
Turning to the Respondent's defense that the Union lost its majority by reason
of the nondiscriminatory layoff on January 25, the short answer thereto is that if
there was 'a refusal to bargain before January 25, the Union's subsequent doss of
40 The foregoing findings are based on Berns' version of the January 31 conversation
Sperling's version was that it consisted of some banter about the political affiliation of
the Union's leaders and some disparaging remarks by Sperling about the Union, but in a
milder vein than those related by Berns Sperling did not, however, directly deny the
statements imputed to him by Berns, as related in the text, above. In view of this and
in view of Sperling's general unreliability as a witness , I credit Berns.
41 Southern Illinois Sand Co., Inc., 137 NLRB 1490; Laabs, Inc, 128 NLRB 374
42 Joseph Solomon d /b/a The Solomon Company, 84 NLRB 226, cited in Respondent's
brief, seems distinguishable from the instant case on the ground that there the union
expressly offered the Respondent the alternative of a Board election or a card check.
See Cactus Petroleum, Inc., 134 NLRB 1254.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority was immaterial.43 I find that there was such -a refusal. Although the
Respondent received .the Union's bargaining request on January 23, it did not see fit
to reply thereto. As already noted, Respondent does not contend that it had any
doubt of the Union's majority on January 23 and the only reason advanced for not
replying to the Union's request on that date is the receipt on the same date of a copy
of the Union's petition for certification, a reason which I have already found
insufficient. Moreover, I am satisfied that the true reason for Respondent's failure
to honor the Union's request for recognition was its determination not to enter into
bargaining relations With the Union under any circumstances.44
This determination was reflected in (1) Sperling's statement on January 31 to
Berns that it was foolish to think that Respondent would ever be organized and that
no "Hoff a men" could run his plant; (2) Roessner's warnings to the employees that
Sperling would close the plant to prevent organization thereof; (3) Sperling's pro-
hibition of union activities within the plant even during nonworking time, and his
threats of surveillance of union activities; (4) Sperling's threat in May to discharge
all the employees in the context of remarks disparaging the Union; and (5) last
but not least, Sperlings refusal to rehire the bulk of the laid-off employees because
of their union activities. Accordingly, I find that there was a refusal to bargain on
January 23, that the Respondent thereby violated Section 8(a)(5) and (1), and
that it is immaterial whether the Union thereafter lost its majority status.45
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a)(1), (3), and
(5) of the Act, it will be recommended that the Respondent cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain with the Union, which
represented a majority of the employees in an appropriate unit. Accordingly, I
shall recommend that the Respondent be ordered to bargain, upon request, with the
Union as the exclusive representative of the employees in the appropriate unit.
It has also been found that Respondent early in March determined not to recall
any of its laid-off employees because of ,their union activity, and 14 of such employees
were not recalled for that reason.46 Accordingly, the Respondent should be required
43 Franks Bros. Company v N L R B., 321 U S 702 (1944)
"Cf. S Frederick Sansone Co, 127 NLRB 1301, where the Board found no unlawful
refusal to bargain in the case of a Respondent who had received simultaneously, as here,
a bargaining demand and copy of a representation petition filed by the union There,
however, the Board found, contrary to the situation here, that the refusal to bargain was
motivated by a good-faith doubt of the union's majority tatus and not by rejection of the
principle of collective bargaining.
46 In view of this finding, it is unnecessary to consider Respondent's contentions regaid-
ing the adequacy of the Union's second bargaining request on January 29. I would attach
no significance, in any event, to the fact that in their January 31 conversation Sperling
acquiesced in Berns' suggestion that they meet It is undisputed that Berns did not
indicate that the purpose of such a meeting would be to discuss recognition, and that
Berns was given no reason to believe that at such a meeting Sperling would consider
granting recognition. In fact the tenor of Sperling's comments on the Union and its
leadership could not fail to convince Berns that any discussion of recognition with Sperling
would be futile; and It is apparent from Berns' testimony, which I credit, that the only
reason for Berns' proposal of a meeting was that he was intrigued by Sperling's rather
vigorous and provocative exposition of his individualistic personal philosophy As Berns
put it, " . at one point I burst out laughing and told him that he sounded very funny
and I would like to meet him in person to discuss the principles of freedom which we had
been talking about . . . It was at this point that Sperling professed a willingness
to meet
"Day and Willis did not appear at the hearing. The General Counsel explained that
Day's absence was due to reasons of health, and that he had excused Willis from appear-
ing pursuant to a subpena, upon receipt of a letter stating that she was unable to attend
the hearing because she had moved to Kansas. The Issues pertaining to the discrimination
GENERAL MEDICAL SUPPLY CORP. 727
to offer them immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and privileges.
The Respondent should also be directed to reimburse them for any loss of pay they
may have suffered by reason of the Respondent's discrimination against them, by
paying to them a sum of money equal to the amount they would normally have
earned as wages from the date that they would have been recalled absent discrimina-
tion,47 to the date of Respondent's offer of reinstatement, less their net earnings
during that period. Backpay shall be computed on the basis of calendar quarters,
in accordance with the method prescribed in F. W. Woolworth Co., 90 NLRB 289.
In view of the nature of the violations found herein, particularly the Respondent's
discriminatory refusal to rehire its laid-off employees, a threat of future violations
exists which warrants a broad cease-and-desist provision.
CONCLUSIONS OF LAW
1. All Respondent's production and maintenance employees, excluding office
clericals, salesmen, professional employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
2. At all times material the Union has been and still is the exclusive representative
of all the employees in the aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
3. By refusing to bargain collectively with the aforesaid labor organization
as the exclusive representative of its employees in an appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) and (1) of theAct.
4. By interrogation, by forbidding union activities during nonworking time, and
by threats of reprisal for, and surveillance of, union activities, Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights guar-
anteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
5. By refusing to recall 14 of the union adherents laid off on January 25, the
Respondent has violated Section 8(a)(3) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent, General Medical Supply Corp.,
of Indianapolis, Indiana, its officers, agents, successors, and assigns, shall be re-
quired to:
I Cease and desist from:
(a) Refusing to bargain concerning rates of pay, wages, hours of employment, or
other conditions of employment, with Local 135, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive
representative of all its production and maintenance employees, but excluding office
clericals, professional employees, guards, and supervisors as defined in the Act.
(b) Discouraging membership in Local 135, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor
organization, by discriminating against employees in regard to their hire or tenure
of employment or any term or condition of employment.
(c) Threatening employees that it will close its plant or discharge them because
of their union activities or that it will engage in surveillance of such activities.
against these employees were fully litigated. Under these circumstances, their absence
from the hearing does not preclude a finding of discrimination against them or the award
to them of backpay with reinstatement nor does Respondent so contend. See Atlanta
Flour and Grain Company, Inc., 41 NLRB 409, footnote 11; Acme Waste Paper Company,
121 NLRB 18, 19.
The General Counsel urges that Interest computed at 6 percent per annum be added to
the backpay award . While the arguments advanced in support of such a remedy appear
to have merit, I deem myself bound by existing Board precedents, which are adi erne to
the General Counsel's proposal See Indianapolis Wire-Bound Box Company, d/b/a
Cleveland Veneer Company, 89 NLRB 617, footnote 26; Earl I lifers, d/b/a Sifers Candy
Co , 92 NLRB 1220, 1222
61 That date in each case is to be determined on the assumption that, absent discrimina-
tion, the Respondent would have followed seniority in determining the order of recall, as
it did in determining the order of layoff. For the basis of this assumption, see footnote 38,
above.
728 DECISIONS OF NATIONAL LABOR RELATION BOARD
(d) Coercively interrogating employees concerning their union activities or pro-
hibiting union activity in the Respondent 's plant during nonworking time.
(e) In any other manner, interfering with, restraining , or coercing its employees
in the exercise of their right to self -organization , to form , join , or assist the above-
named Union , or any other labor organization , to bargain collectively through rep-
resentatives of their own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right is affected by the
provisos in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action , which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with Local 135, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , as the exclusive
representative of all employees of the Respondent , excluding office clericals , salesmen,
professional employees, guards , and supervisors as defined in the Act, with respect
to rates of pay, wages , hours of employment , or other conditions of employment, and,
if an understanding is reached , embody such understanding in a signed agreement.
(b) Offer to the employees listed in attached Appendix A immediate and full
reinstatement to their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges.
(c) Make whole the said employees , in the manner set forth in the section of
the Intermediate Report entitled "The Remedy," for any loss of pay they may have
suffered by reason of the Respondent 's discrimination against them.
(d) Preserve and , upon request , make available to the Board or its agents, for
examination or copying, all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(e) Post at its plant in Indianapolis , Indiana , copies of the attached notice
marked "Appendix B." 48 Copies of said notice , to be furnished by the Regional
Director for the Twenty-fifth Region , shall, after being duly signed by the Respond-
ent's representative , be posted by the Respondent immediately upon receipt thereof,
and maintained by it for a period of at least 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered , defaced , or covered by any other material.
(f) Notify the Regional Director for the Twenty-fifth Region , in writing , within
20 days from the date of receipt of this Intermediate Report, what steps the Re-
spondent has taken to comply herewith 49
48 In the event that this Recommended Order Is adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
49 In the event that this Recommended Order is adopted by the Board, this provision
shall he modified to read, "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith
APPENDIX A
Alderson, Dimple Duncan, Emma Stevens, Carol A.
Bornstein. Rose M. Looper, Sandra White, Earline
Burkhardt, Bertha Purvis, Janet White, Ella Virginia
Charles, Mary Riley, Ethel Marie Willis, Betty
Day, Charlotte Roberts, Margaret
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL bargain, upon request, with Local 135, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive
representative of all employees in the bargaining unit described below in respect
to rates of pay, wages, hours of employment, or other conditions of employment,
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 729
and, if an understanding is reached , embody it in a signed agreement. The
bargaining unit is:
All our production and maintenance employees, excluding office clericals,
professional employees , salesmen , guards, and supervisors as defined in the
Act.
WE WILL NOT threaten that we will close our plant rather than deal with a
union , or coercively interrogate our employees about their union activities,
threaten employees with reprisals for union activities , threaten surveillance of
union activities , or forbid any union activities in our plant during nonworking
hours.
WE WILL NOT in any other manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form , join, or assist
Local 135, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , or any other labor organization , to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities , except to the extent that such
right may be affected by the provisos in Section 8(a) (3) of the Act, as amended.
WE WILL offer the following employees immediate and full reinstatement to
their former or substantially equivalent positions , and make them whole for any
loss of pay suffered by reason of the discrimination against them:
Alderson, Dimple Duncan, Emma Stevens, Carol A.
Bornstein , Rose M. Looper, Sandra White, Earline
Burkhardt , Bertha Purvis, Janet White, Ella Virginia
Charles, Mary Riley, Ethel Marie Willis, Betty
Day, Charlotte Roberts, Margaret
All of our employees are free to become , remain , or refrain from becoming or
remaining, members of Local 135, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , or any other labor organization.
GENERAL MEDICAL SUPPLY CORP.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose
3-8921, if they have any question concerning this notice or compliance with its
provisions.
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO and New York Telephone Company. Case No. 2-CC-668.
January 22, 1963
DECISION AND ORDER
On July 5, 1962, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. He also found that the Respondent had not engaged in
certain other unfair labor practices and recommended dismissal as to
them. Thereafter, the General Counsel and the Respondent filed ex-
ceptions to the Intermediate Report with supporting briefs.
140 NLRB No. 71.