Hagopian & Sons, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1966

162 N.L.R.B. 277 (N.L.R.B. 1966)

HAGOPIAN & SONS, INC. 277
IT IS FURTHER RECOMMENDED that the allegations in the complaint alleging
unlawful conduct other than found unlawful in this Decision be dismissed.
APPENDIX
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT question you about your membership in or your activities on
behalf of American Federation of Casino and Gaming Employees, or any other
union.
WE WILL NOT withhold wage increases or other benefits, or tell you that we
are withholding increases and benefits because of the Union.
WE WILL NOT tell our female employees that the Union will cause them
to be replaced by male employees.
WE WILL offer Nona Dettori immediate reinstatement to her former position.
All our employees are free to become or remain members of the above-named
Union, or any other union, or to refrain from such membership.
RENO'S HORSESHOE CLUB, INC.,
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 556-0035.
Hagopian & Sons, Inc. and John Mason. Cases 7-CA-5415 and
7-C-4-541.5( 2). December 20, 1966
DECISION AND ORDER
On August 3, 1966, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support thereof, and the
General Counsel filed an answering brief, cross-exception, and a brief
in support of the cross-exception.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
162 NLRB No. 12.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the briefs, exceptions, cross-exceptions, and the
entire record in these cases, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order
with the following modification :
[1. Add the following as paragraph 2(c), the present paragraphs
2(c) and 2(d) being consecutively relettered :
[" (c) Notify the above-named employees if presently serving in
the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."]
'The Respondent has filed a motion to reopen the record to adduce certain allegedly
newly discovered evidence . The evidence sought to be introduced would, according to Re-
spondent , show that Mason and Tucker were on December 20 living in the same home and
riding together , and that this was the reason Mason insisted on having Tucker assigned
to work with him. It does not appear however, that this evidence is newly discovered, as
it was not shown that this information was not available during or prior to the proceed-
ings herein . Further, even if it were a part of the record , it would not , in our opinion, be
sufficient to overcome the record evidence, which clearly establishes that regardless of the
relationship between, Mason and Tucker, Mason insisting on Tucker 's working with him
on the day in question ( which was the only time Mason ever insisted on Tucker as a
helper ), was primarily concerned with the quality and quantity of the work he had been
assigned to perform that day, and hence was concerned with a condition of employment.
Accordingly , we shall deny Respondent 's motion to reopen the record. In view of our
disposition of Respondent 's motion to reopen , we find it unnecessary to pass on the General
Counsel ' s motion to strike Respondent 's motion and affidavit in support thereof
Respondent ' s request for oral argument is also denied as, in our opinion , the record, in-
cluding the exceptions and briefs , adequately presents the issues and positions of the
parties
TRIAL EXAMINER 'S DECISION
The instant charges were served upon Respondent on December 20 and 21, 1965.
The complaint issued on March 28 , 1966 ,1 and the case was heard before Trial
Examiner Sidney Sherman on June 9 . After the hearing, briefs were filed by
Respondent and the General Counsel . The issues litigated related to alleged dis-
charges for concerted and union activities , alleged withholding of vacation pay
because of such activities , and an alleged grant of benefits to discourage such
activities.
Upon the entire record 2 and my observation of the witnesses , I adopt the follow-
ing findings and conclusions:
1. RESPONDENT'S BUSINESS
Hagopian & Sons, Inc., herein called Respondent , is a Michigan corporation, and
is engaged at its plant in Oak Park, Michigan , in retail and wholesale operations,
consisting of the cleaning, renovation , maintenance , and installation of carpeting.
Respondent annually receives directly from out-of-State points goods valued in
excess of $30 ,000, and annually receives goods valued in excess of $20 ,000 from
firms in Michigan , which firms receive said goods directly from out-of-State points.
It is found that Respondent is engaged in commerce under the Act.
U. THE LABOR ORGANIZATION INVOLVED
Resilient Floor Decorators Local No . 2265, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, hereinafter called the Union, is a labor orga-
nization under the Act.
i All events hereinafter related occurred in 1965, unless otherwise indicated.
2 The record is hereby corrected by changing "selling" on p 162, 1. 1 of the transcript to
read "sewing."
HAGOPIAN & SONS, INC. 279
M. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
1. Whether Respondent unlawfully discharged four employees on December 20?
2. Whether Respondent's grant on December 21 of premium pay for Saturday
work was unlawful?
3. Whether Respondent withheld an employee 's vacation pay in reprisal for his
union or concerted activities?
A. Sequence of events
Respondent is engaged in the business of selling, installing ,, cleaning, and repair-
ing carpeting . In December it had in its employ four carpet installers ,3 of whom
two (Mason and Connell ) were the "crew leaders," the other two (Jackson and
Tucker ) serving as their helpers. Although the installers worked 6 days a week,
and, in addition , sometimes worked overtime , they received no premium pay. On
December 2, Mason and Connell asked Papazian , one of Respondent 's officers, to
grant them premium pay for work to be done the next Saturday (December 4).
Papazian refused to make any commitment . On December 4, Mason , Connell, and
Tucker reported at Respondent's plant at 8 a .m., but, upon being advised that their
request for premium pay had been rejected , Mason announced that the men would
not go to their assigned job until their demand was met. Upon being told to go to
work or punch out, the men punched out , leaving word " that , should management
wish to contact them , they would be at a certain restaurant . Edgar Hagopian,4 an
officer of Respondent , joined them at the restaurant , agreed to pay them time and a
half for work on that particular Saturday , and promised to arrange a meeting
between management and the men to discuss the matter of premium pay for future
Saturdays . With this understanding , all three men returned to work .5
The next Monday, December 6, Respondent promised to meet with the men on
Wednesday regarding their demand for premium pay. However , on Wednesday,
upon being told that the meeting had been postponed , Mason contacted the'Union,
and the next day, December 9, all four men met with the Union 's business agent,
Powers, and signed union authorization cards. Later that day, the men finally met
with ' management , which explained its objections to granting the premium pay
demand, but announced no final decision . At this meeting, Mason asked if he could
receive his vacation pay immediately, although it was not due until December 16.
Hagopian agreed but did not actually give Mason the pay until December 15.
On December 10,6 armed with the four union cards, Powers called upon Hago-
pian , told him that the men had designated the Union , and requested recognition.
When Hagopian demurred , the Union on December 15 filed a petition for a Board
election.
On December 20, Mason , upon reporting for work, found that he had been
assigned to do several jobs that day involving the relocation of used carpets, and
that one , Daugherty , who was primarily assigned to carpet cleaning, was to be his
helper that day. When Mason besought Papazian to assign Tucker to him, instead
of Daugherty, Papazian disclaimed any authority to change the assignment. After
a heated argument , Mason punched out, and Connell , Tucker, and Jackson followed
suit . However, about half an hour later , after a telephone call to Powers, who
advised them to return to work, all four reported for work , but were refused
admission to the plant and notified of their discharge.
The next day, December 21, Respondent granted to all its hourly paid employees
premium pay for Saturday, work.
31n addition, Respondent had an unspecified number of employees engaged in cleaning
carpeting and other operations
4 All references hereinafter to "Hagopian" denote Edgar, as distinguished from other
officers of Respondent with the same surname
5 According to Mason, Hagopian was told at the restaurant that Jackson also would
not report for work that day unless he received premium pay While Hagopian testified
that he "understood" that Jackson had reported 111 that morning, it is not disputed that
Jackson absented himself from,work early that morning but joined the others,on..the job,
as soon as the premium-pay, dispute was settled.-.Under these-circumstances, Respondent
could not have failed to regard him as involved in the concerted action of December 4.
e See footnote 8 below, as to the evidence regarding the date of this event.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discussion
1. The withholding of Mason's vacation pay
The record shows that on December 9, in response to Mason's plea that he
needed money to pay his wife's admission to a hospital , Hagopian agreed to accel-
erate Mason 's vacation pay, which was not due until December 16. However,
despite inquiries by Mason about the matter during the next several days, and,
although the check was admittedly ready on December 10, Hagopian did not
deliver it to Mason until December 15. There was conflicting testimony as to the
circumstances under which this occurred.
According to Mason , on December 15, he broached the matter of the check to
Hagopian , who stated that he had decided not to deliver the check in advance of
the due date because he had had "a visitor from the AFL-CIO," and, when a few
moments later he relented and handed Mason the check , Hagopian remarked, "We
can get along fine without the Union." While Hagopian denied that he made the
foregoing remarks, he admitted that , although the check had been prepared on
December 10 , he changed his mind about delivering it before the due date explain-
ing at the hearing that, after preparing the check on December 10, it occurred to
him that Mason had been involved in the December 4 incident,' and that he decided
to withhold the check as a measure of reprisal for such involvement . However,
Hagopian was already aware of the December 4 incident on December 9, when he
agreed to accelerate Mason 's vacation pay, but , so far as the record shows, he was
not aware of Mason 's union activity until Powers ' visit on December 10 .8 In view
of this, as well as demeanor considerations , I credit Mason as to Hagopian's
explanation to him for withholding the check , and find that Hagopian deliberately
withheld the check , not because of the December 4 incident , but because on Decem-
ber 10 , after preparing the check , he learned of Mason 's union activity from Pow-
ers. By Hagopian 's action in withholding the check for that reason alone, and by
his disclosure of such reason to Mason , Respondent violated Section 8(a)(1) of
the Act .9
2. The December 20 discharges
There is no dispute that on December 20, upon reporting to work and learning
that Daugherty had been assigned to help him that day, Mason vigorously protested
to Respondent , in the presence of the other three installers, that Daugherty did not
have sufficient experience and requested that Tucker be assigned to him , instead
of Daugherty.
As already noted , the two more experienced carpet installers or "crew leaders"
were Mason and Connell , and Jackson and Tucker acted as their helpers. For a
time, Tucker, who was Mason's brother-in-law, had been regularly assigned to work
with him. However, when friction developed between them, which Mason attributed
to the fact that they were too much together, both on and off the job, Mason
requested that he be assigned another helper, and he thereafter worked with Jack-
son, and Daugherty, and only occasionally with Tucker. However, as between
Daugherty and Tucker, Mason indicated at the hearing that he preferred Tucker,
particularly for the type of jobs that were scheduled on December 20. These
involved relocation of used carpets, which required a substantial amount of sewing
in joining together pieces of carpet to suit the needs of the new location. According
to Mason, Daugherty , who was employed primarily in Respondent 's carpet cleaning
operation , was not sufficiently proficient in sewing carpets to be of any assistance
7 Discussed above
$ Hagopian testified that this visit occurred on December 6 or 7. However, in view of the
mutually corroborative testimony of Powers and Mason that the union cards were not
signed until December 9 as well as the evidence of the cards, themselves, on this point,
I find that Hagopian was mistaken as to the date of Powers' visit, and credit the latter's
testimony that the date was December 10
U In any event, even if one credits Hagopian's testimony that he withheld the check
solely in retaliation for Mason's involvement in the December 4 incident, it would be
necessary to find that this constituted an act of reprisal for protected, concerted activities,
in violation of Section 8(a)(1) of the Act. (I find no merit in the various reasons urged
in Respondent's brief for holding that the work stoppage of December 4 was not protected
by the Act. Such contentions are based on invalid assumptions as to controlling legal prin-
ciples or postulate facts not supported by the record.)
HAGOPIAN & SONS, INC. 281
to him in that work , and, as a result , Mason anticipated that his duties that day
would be that much more onerous and his progress that much slower, necessitating
that he work overtime . 10 It was for this reason , according to Mason , that he
requested the services of Tucker , whom Mason described at the hearings as compe-
tent to perform the sewing work.
When Respondent refused to comply with Mason's request , he punched out,
intending to telephone Powers for advice as to his future course of action . Connell,
Tucker, and Jackson punched out with Mason . Connell and Tucker were in sub-
stantial agreement that they intended to return to work as soon as the dispute
between Mason and Respondent over the assignment of a helper was settled. Jack-
son also denied that he intended to quit his employment , insisting that he punched
out because of his belief that Respondent was deliberately treating Mason unfairly,
and he wanted to consult with Powers about the situation . In view of the foregoing
evidence as to the employees ' intent in punching out, which is corroborated by the
fact that , after doing so, they promptly repaired to a nearby telephone , and, after
speaking to Powers , reported for work, I find , contrary to Respondent 's contention,
that , in leaving the plant on December 20, the four men did not intend to resign
their jobs , but only to withhold their services concertedly pending resolution of
Mason's dispute with Respondent or pending advice from the Union as to what
action to take with regard to such dispute.
Respondent next contends that any concerted action for that purpose would not,
in any event, be protected by the Act , because the subject of the dispute-the
assignment of a helper-lay within the exclusive prerogative of management, and
the action of the employees constituted an attempted usurpation of such preroga-
tive. While it is true that the assignment by management of an employee to per-
form a particular job is normally not a legitimate concern of any other employee,
so long as such assignment does not affect the working conditions of such other
employee, the situation is different where the latter 's working conditions - are
adversely affected by such assignment , or where he honestly believes that they will
be so affected . Thus, the Board has held, with judicial approval , that the action of
a group of insurance salesmen , in discussing what position to take regarding their
employer's selection of a cashier for their branch office , constituted protected, con-
certed activity , and that their discharge for such activity was unlawful ." The Board
there reasoned that , in view of the fact that the cashier 's duties included the rendi-
tion of various services designed to facilitate their sales activities , the salesmen had
a legitimate interest in the capabilities and efficiency of the individual serving as
cashier, and their concerted action with respect to the choice of such individual
was therefore protected . This view , that a concerted attempt by employees to influ-
ence personnel actions by management with regard to others is protected insofar
as such personnel actions may affect the working conditions of such employees, has
been extended even to cases involving work stoppages in protest against the selection
of leadmen or supervisors .12 It would seem a fortiori that the same rule is applica-
ble where the concerted action is aimed at the assignment of a rank -and-file
employee to perform a particular task and such action is motivated by a bona fide
belief 13 that such assignment will adversely affect the working conditions of one
10 Although Mason admitted that it was Respondent's practice to attempt to eliminate
overtime work by dispatching extra help to a job, upon request, he asserted without con-
tradiction that such extra help was not always available, and he therefore had no advance
assurance on December 20 that overtime could be avoided by that expedient. Mason
acknowledged, also that he had worked overtime in the past, and, in view of his admittedly
straitened circumstances, it is inferable that any extra pay he would have received for
overtime on December 20 could have been put to good use. However, Mason insisted that
lie was weary of overtime work and that domestic problems related to his wife's illness
militated against his working till late that evening. Hagopian testified, on the other hand,
that overtime was always voluntary, and that Mason would not have bad to work over-
time on December 20, if he did not wish to
"Phoenix Mutual Life Insurance Co, 73 NLRB 1463, enfd 167 F.2d 983 (C.A. 7), cert.
denied 335 U S 845
12 Colson Corporation, 148 NLRB 827, 841-843, enfd 347 F.2d 128 (C A. 8), cert denied
382 U.S. 904; Ace Handle Corporation, 100 NLRB 1279; Dobbs Houses, Inc, 135 NLRB
885, 888, enforcement denied 325 F.2d 531 (C.A. 5)
11 It is well settled that the protected status of concerted action by employees does not
depend upon whether such action was wise or justified. N.L R.B. v. Washington Aluminum
Co , 370 U.S. 9, 15-16; Tomar Products, Inc., 151 NLRB 57, 63.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or more of the employees involved in such concerted action . The question arises
whether that was the situation here. Respondent 's own witness , Papazian , admitted
that Mason objected to Daugherty because of his inexperience , and, while insisting
that Mason was exaggerating Daugherty's limitations as a helper , Hagopian admitted
that Tucker had had more experience than Daugherty in sewing , and the record
affords no other persuasive explanation for Mason 's strenuous objection to Daug-
herty, even to the point of walking off the job. Any speculation that Mason may
have preferred to work with Tucker only because he was Mason's brother-in-law
runs afoul of Mason's aforenoted, uncontroverted testimony that he had in the
past had differences on the job with Tucker, which had caused him to request
Respondent to discontinue its practice of assigning them together on a regular basis.
Accordingly, whether or not Mason was correct in believing that, with Daugherty
as a helper , Mason's task would be more onerous, I am convinced that he opposed
the assignment because he honestly believed that such was the case .14 While the
other three alleged discriminatees were not directly affected by the assignment of
Daugherty, it is clear that they walked out because of Mason 's action and in sym-
pathy therewith, and that, by thus making common cause, all four employees
engaged in concerted action for mutual aid and protection.
It is also found under the precedents cited above that such action was'protected
by the Act. The Colson case, supra, seems particularly apposite here. There, the
Board found to be protected a strike by welders because their employer had
selected as their leadman one whom they did not regard as having sufficient experi-
ence for that position . Here, the walkout stemmed basically from Mason 's concern
over the inexperience of the helper assigned to him . In both cases it was appre-
hended that the deficiencies of one worker would impose a greater burden on, and
to that extent worsen the working conditions of, his coworkers. No reason appears
for reaching a different result here than in Colson as to the protected status of the
work- stoppage . Indeed , it is not clear how the situation here differs in principle
from the case where an employer directly (rather than , as here , indirectly ), assigns
to an employee work which he regards as unduly onerous . It cannot be doubted
that in such a case a concerted protest against such assignment would be protected.
The question remains whether the installers were discharged because of the
December 20 walkout . Hagopian accepted full responsibility for the decision not to
take the men back , and, in explaining the reason therefor, he testified:
I felt we had enough of this. They were dictating to us. They had dictated
to us on prior occasions as to exactly what they wanted to do. And, quite
frankly, we were fed up with it . . . They had dictated to us on December 4th,
they had dictated to us in refusing in the past- to work with people that had
been assigned to them ... .
The foregoing constitutes in effect an admission by Hagopian that the immediate
reason for his action was his resentment -of the employees' attempt to "dictate" to
him'on December 20, and that an underlying reason was inter alia, the Decem-
ber, 4 incident. As the employees ' action on both occasions constituted protected,
concerted activity, the admitted denial ' of employment because of such incidents
necessarily violated Section 8(a)(1) of the Act.15
3. The grant of premium pay
As already related , on December 21, the day after the discharge of the four
carpet installers , Respondent granted to all, its hourly paid employees premium
14 While Hagopian 's testimony that overtime was voluntary ( see footnote 10 above) may
be deemed to cast doubt on the genuineness of Mason's apprehensions on that score, there
is no need to resolve that point, as his concern about being required to do all the sewing,
which was to him the most tedious part of the job , would alone justify him in regarding
the assignment of Daugherty as affecting his working conditions
15 Even if it be assumed , contrary to the finding above , that the December 20 walkout n as
not protected , Hagopian 's admission that his action was based in part on the December 4
incident would alone support a finding that such action was unlawful
The General Counsel would have the inference drawn that the discharge of the installers
was also motivated by their union activity However, as the remedy would be the same in
any event , there seems to be no need to pass on this issue
HAGOPIAN & SONS, INC. 283
pay for Saturday work. According to Hagopian, the decision to grant such pay
was made between December 10 and 14. The General Counsel contends that
Respondent 's action was designed to discourage union activity on the part of its
unorganized employees.
There is no dispute as to the following sequence of events:
On December 2, when Mason and Connell asked Papazian for premium pay
for work to be performed by them the following Saturday, his answer was non-
committal. On December 4, a Saturday, when there was a work stoppage over the
failure to grant such pay, Hagopian made a concession only with respect to that
day, and, when the men announced that they would not return to work until they
were assured premium pay for all future Saturdays, Hagopian promised only to
arrange a meeting between the men and management to discuss the issue further.
On December 9, when such a meeting was held, management still resisted the
demand , pointing out that the' installers ' straight -time pay was in line with the pay
scale prescribed in a union contract , and that, if premium pay were given to the
installers , Respondent's other employees would demand the same consideration,
and no final decision on the issue was announced. Admittedly, it was only after
Powers' request on December 10 for recognition , that Respondent decided to
grant Saturday premium pay to all its hourly paid employees, which at that time
included the four installers, and on December 14, Respondent posted a notice of
an employee meeting to be held on December 16, intending to announce the new
benefit at that meeting, but due to inclement weather this meeting was rescheduled
to December 21, when the announcement was actually made.
It is clear from the foregoing that the change in management's attitude toward
the premium pay demand coincided in time with the advent of the Union . Hagopian
insisted, however, that the Union's advent did not influence Respondent's action,
which , according to him, was designed solely to alleviate the problem of recruiting
and retaining personnel in a tight labor market , such as existed in the Detroit
area. Hagopian added that Respondent had given consideration to the premium
pay matter long before the advent of the Union. However, Hagopian admitted
that the local labor shortage had existed for nearly a year , and it is clear that
whatever consideration Respondent had given the matter had borne no fruit until
the advent of the Union. For, despite the extreme pressure exerted by the installers'
work stoppage on December 4, which jeopardized the good will of a major cus-
tomer , Respondent made only a limited concession on the issue, and as late as
December 9, attempted to dissuade the installers from pressing for further conces-
sions in that area. At the very least, it is evident from the foregoing that as late as
the day before the Union's advent Respondent was far from persuaded that the
grant of premium pay would alleviate its manpower problem ; and, if anything, man-
ifested marked reluctance to grant such pay even to the four installers , let alone all
its other, hourly paid employees ; and Respondent failed to explain what occurred
after the Union's advent that overcame this reluctance. Nor is there any evidence
that on or about December 10, there was any worsening of the labor market situa-
tion , which might have accounted for the dramatic change in Respondent's attitude
toward premium pay.
Moreover , in addition to the foregoing temporal coincidence between the advent
of the Union and the decision to grant premium ' pay, there is presented here the
coincidence that , of all the concessions that Respondent might have made to solve
its alleged manpower problem , Respondent hit upon the one that corresponded
exactly to the demand made by the installers , who had been impelled to seek union
representation when such demand was not granted . Respondent offered no explana-
tion for this coincidence . In view of the foregoing , unexplained , double coincidence,
the inference is amply warranted that , at the time that it made its decision to award
premium pay, Respondent had a twofold purpose: (a) to dislodge the Union from
its foothold in the plant as the representative of the installers, by removing the
prime source of their discontent, and (b) to forestall any spread of the union move-
ment to the rest of Respondent's employees, by granting them a benefit, which, as
its experience with the installers indicated, could not be further withheld without
risking resort by such other employees to collective action. It is true that, with the
discharge of the installers on December 20, the first of these two purposes became
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moot. However, it does not necessarily follow that the second purpose was aban-
doned, and was replaced by an entirely different and innocent purpose. The only
other such purpose suggested by the record is the "tight-labor-market" contention
advanced by Respondent. However, as it has been found that this factor did not
impel it to act before, the inference is not warranted that on December 21, Respond-
ent was suddenly swayed thereby. It seems proper, rather, to presume absent any
evidence to the contrary, that the same motivation which influenced Respondent's
original decision to grant premium pay to its unorganized , hourly paid employees
was still operative on December 21, when that decision was implemented. The fact
that the installers had by that time been discharged was no guarantee that others,
similarly situated, would not respond as they had to the appeal of collective action.
Accordingly , it is found that the grant on December 21 of premium pay for Satur-
day work was designed to deter Respondent 's unorganized employees from following
the example of the installers in seeking union representation , and that Respondent
thereby violated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection 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 com-
merce and the free flow of commerce.
It having been found that the Respondent violated Section 8(a)(1) of the Act, it
will be recommended that it be ordered to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
It has been found that on September 20, Respondent discharged Mason, Connell,
Tucker, and Jackson, because of their concerted activities. I will recommend that,
Respondent be required to offer the foregoing employees immediate reinstatement
to their former or substantially equivalent positions, without prejudice to their se-
niority or other rights and privileges.
It will also be recommended that Respondent be required to reimburse the fore-
going employees 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 of their
discharge 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 Company, 90 NLRB
289, and interest at the rate of 6 percent per annum shall be added to net backpay,
in accordance with Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the violations found herein, particularly the discrimina-
tory discharges , a potential threat of future violations exists which warrants a broad
cease and-desist provision.
CONCLUSIONS OF LAW
By granting benefits to employees to discourage union activity , by refusing to
accelerate an employee 's vacation pay because of his union activity, by disclosing to
him that such pay was withheld for that reason , and, by discharging employees
because of their concerted activities, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed 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.
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 , Hagopian & Sons, Inc., Oak
Park, Michigan , its officers, agents, successors , and assigns , shall be required to:
1. Cease and desist from:
(a) Discouraging concerted activities of its employees , by discriminating against
them in regard to their hire or tenure of employment or any term or condition of
employment.
HAGOPIAN & SONS, INC. 285
(b) Refusing to accelerate vacation pay, or visiting other reprisals upon employ-
ees, because of their union , or concerted , activities.
(c) Notifying employees that it has refused to accelerate vacation pay or denied
other benefits to them because of their union activities , and granting benefits to dis-
courage union activity.
(d) In any other manner, interfering with , restraining , or coercing its employ-
ees in the exercise of their right to self-organization , to form , join, or assist Resil-
ient Floor Decorators Local No. 2265 , United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO, 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 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.
2. Take the following affirmative action , which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to Jerry Connell , John Mason , Thomas Tucker, and Raymond Jackson,
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges , in the man-
ner prescribed in the section of the Trial Examiner 's Decision entitled "The Remedy."
(b) Make whole the said employees , in the manner set forth in the section of
said Decision entitled "The Remedy ," for any loss of pay they may have suffered by
reason of the Respondent 's discrimination against them.
(c) 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.
(d) Post at its plant in Oak Park, Michigan, copies of the attached notice marked
"Appendix ." 16 Copies of said notice, to be furnished by the Regional Director for
Region 7, shall , after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof , and be maintained by
it for 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that such notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 7, in writing , within 20 days from
the receipt of this Decision , what steps the Respondent has taken to comply
herewith.11
16 In the event that this Recommended Order is adopted by the Board, the words "a
Decision 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 "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
17In the event that this Recommended Order is adopted by the Board, this provision
shall be 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
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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage concerted activities of our employees , by discrimi-
nating against them in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT grant benefits to our employees to discourage their union
activities.
WE WILL NOT refuse to accelerate vacation pay, or visit other reprisals,
because of union , or concerted activities , or notify our employees that such
reprisals are due to such activities.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form, join, or
assist Resilient Floor Decorators Local No. 2265, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, 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 protection, 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.
WE WILL offer Jerry Connell, John Mason, Thomas Tucker, and Raymond
Jackson 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.
All our employees are free to become, remain , or refrain from becoming or
remaining , members of Resilient Floor Decorators Local No. 2265, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO.
HAGOPiAN & SONS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-
3200.
Training Corporation of America, Inc. and Job Corps Federation
of Teachers, Local 1680, affiliated with the American Federation
of Teachers, AFL-CIO, Petitioner . Case 17-RC-5112. Decem-
ber ^?0. 1966
DECISION ON REVIEW
On August 12, 1966, the Regional Director for Region 17 issued
the attached Decision and Direction of Election in which he found
appropriate a unit of all basic education, vocational and avocational
teachers, resident advisers, and counselors at the Employer's Job
Corps Center located at Excelsior Springs, Missouri, excluding office
clerical employees, supervisors, and guards as defined in the Act, and
all other employees. Thereafter, the Petitioner filed a timely request
for review alleging the absence of officially reported Board precedent
in cases involving teachers employed at Job Corps centers. The
Employer filed opposition to the request for review.
On September 2, the National Labor Relations Board by tele-
graphic order granted the request for review and stayed the election
pending decision on review. Thereafter, both the Employer and the
Petitioner filed briefs.
162 NLRB No. 28.