Harry's Television Sales and Service

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 450 (N.L.R.B. 1963)

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL consider on the merits , notwithstanding any time limitations con-
tained in our collective-bargaining agreement with the union , the grievances filed
with us by our former employees , Harold E . Shafer , Bobby Charles Harding,
and Ray F. Moore , if any of them indicate a desire to have their grievances
reinstated.
WE WILL consider for reemployment , when our plant expansion program has
been completed , any of our former employees who were discharged after the
picketing of our plant on May 11 and 12, 1962 , without reference to their
previous filing of grievances or participation in the filing of charges against us
under the National Labor Relations Act, provided that such former employees
apply for reemployment.
EAST TEXAS PULP AND PAPER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(R. M. BUCKLEY , President)
-------------------------------------------
(RAY BROWN , Plant Manager)
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 Twenty-third Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue , Houston, Texas , 77002,
Telephone No. Capitol 8-0611 , Extension 296, if they have any question concerning
this notice or compliance with its provisions.
Harry Pollins, d/b/a Harry 's Television Sales and Service and
Local Union 1430, International Brotherhood of Electrical
Workers , AFL-CIO. Case No. 22-CA-1412. June 28, 1963
DECISION AND ORDER
On April 30, 1963, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Intermediate Report. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case ton three-member
panel [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
We agree with the Trial Examiner that the Respondent violated Section 8(a) (5)
and (1 ) of the Act by refusing to recognize the Union on and after October 31 , 1962. In
so finding , however, we rely upon the unlawful conduct engaged in by the Respondent after
October 31 in addition to the earlier events relied upon by the Trial Examiner.
143 NLRB No. 51.
HARRY'S TELEVISION SALES AND SERVICE 451
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed November 5, 1962, by Local Union 1430, International
Brotherhood of Electrical Workers, AFL-CIO (herein called the Union), the Gen-
eral Counsel of the National Labor Relations Board issued a complaint dated De-
cember 19, 1962, and amended on February 11, 1963, against Harry Pollins, d/b/a
Harry's Television Sales and Service (herein called Pollins or Respondent), alleging
that Respondent had engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. In
substance, the complaint as amended alleges that Respondent interfered with, re-
strained, and coerced his employees in the exercise of rights guaranteed by the Act,
by interrogation of employees regarding union membership and sympathies, and
by offering and promising employees benefits and better working conditions if
they would cease from engaging in a strike or giving assistance or support to the
Union. In addition, the complaint alleges that although the Union was the duly
designated representative of Respondent's employees in an appropriate unit, since
October 31, 1962, Respondent has failed and refused to recognize and bargain with
the Union.
The Respondent filed an answer which denies that his commerce meets the Board's
standards for assertion of jurisdiction, denies the commission of unfair labor prac-
tices, and asserts five affirmative defenses. Pursuant to due notice, a hearing was
held before Trial Examiner Samuel Ross at New Brunswick, New Jersey, on Feb-
ruary 18 and 19, 1963. All parties were represented at the hearing by counsel and
were afforded full opportunity to be heard, to introduce evidence, to examine and
cross-examine witnesses, and to present oral argument. At the conclusion of the
hearing, I reserved decision on the General Counsel's motions to strike Respondent's
five affirmative defenses. The motions are hereinafter disposed of in accordance
with my findings and conclusions. After the hearing, briefs were filed by the Re-
spondent and the General Counsel on March 21 and 25, 1963, respectively, which I
have carefully considered.
Upon the entire record in the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, Pollins, is an individual whose store and service shop is located
in North Brunswick, New Jersey, where he is engaged in the business of selling and
servicing radio and television sets and related products. In the calender year 1961,
a representative period, his gross revenue for such sales and services was $226,083.43.
All of that revenue, except approximately $20,000, was received by Respondent
for sales to and service for the general public at retail.' All such sales and service,
both retail and nonretail, were made and performed by Respondent within the State
of New Jersey. During the same year 1961, Respondent purchased parts and tele-
vision antennas valued at about $2,000 directly from out of the State, and television
sets, high fidelity equipment, and other products valued at $119,413.27 from Apollo
Distributing Company and other companies located in New Jersey, who received
such products from outside the State.
Practically all of the indirect and much of the direct inflow was received by
Respondent in connection with the retail aspect of his business. Quite obviously, if
Respondent's business is regarded as a retail enterprise, his annual gross sales are
insufficient to meet the Board's standard for assertion of jurisdiction, since they are
1Respondent's only business other than with the general public was as follows: He re-
ceived between $17,000 to $18,000 from several local automobile sales agencies for the
sale, installation, and service of radio sets ; between $1,200 to $1,300 for wiring several
commercial enterprises for sound ; and $1,000 for the sale of two color television Sets to
a bowling alley.
717-672-64-vol. 143-30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less than $500,000.2 However, Respondent also made sales to and performed services
for automobile agencies and other commercial enterprises which were not retail.3
This aspect of Respondent's business, if considered separately, also does not meet
the Board's standard for assertion of jurisdiction over nonretail enterprises? In this
regard, it is quite apparent that since the gross revenue from the nonretail sales and
services was only $20,000, the purchases or inflow for this segment of the business
must have been less than $50,000.
However, since the Respondent operates a combination retail and nonretail enter-
prise, the separate segments of his business may not be considered separately in de-
termining whether to assert jurisdiction. The Board's established policy for de-
termining whether it will assert jurisdiction over an employer whose business is both
retail and nonretail is to apply nonretail standards to the employer's total operations,
unless the nonretail aspect of the employer's business is de minimis 5 Quite clearly,
if nonretail standards are applied to Respondent's entire business, both retail and
nonretail, his inflow of $121,000 is sufficient for the assertion of jurisdiction. Ac-
cordingly, the only remaining commerce question is whether this combination stand-
ard should be applied, or in other words, whether the nonretail aspect of this
business should be regarded as de minimis. In a similar case,6 the Board held that
where the nonretail sales were $5,246.75, less than 4 percent of the gross business
of $153,921.27, the employer's operations fell within the de minimis exception to the
Board's rule for combination retail and nonretail enterprises. In the instant case,
the nonretail sales were $20,000, less than 9 percent of Respondent's gross sales of
$223,083.43. In view of the greater nonretail sales and percentage of business here
involved, and in the absence of any more definitive ruling by the Board, I am con-
strained to the conclusion that the nonretail aspect of Respondent's business is not
de minimis.
Accordingly, since Respondent's inflow for his entire operations is more than
sufficient to meet the Board's nonretail standard for such combination enterprises,
I conclude that it will effectuate the policies of the Act to assert jurisdiction over the
Respondent's operations. I therefore find that Respondent is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I further find that Local Union 1430, International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain with the Union
In the latter part of October 1962, Respondent had in its employ six television
and radio technicians. On October 29,7 all six of Respondent's technicians attended
a union meeting held for the purpose of organizing employees of television and
radio service shops in the New Brunswick area. Four of Respondent's technicians 8
signed cards at the meeting authorizing the Union to act as their collective-bargaining
representative. A fifth employee, Alfred Perrone, executed and signed the
application-for-membership portion of the card at the union meeting, but neglected
to sign the authorization portion of the card until a few days later. The sixth em-
ployee, Allen Siegel, executed and signed his union authorization card on the next
day, October 30.
On October 30 the Union, by telegram, advised Respondent that it represented
a majority of his "TV technicians," and requested a meeting to negotiate "wages
and other conditions of employment" for Respondent's employees. Respondent did
not reply to the telegram. The following morning, October 31, by prearrangement,
all six technicians met outside Respondent's store with the Union's representatives,
3 Carolina Supplies and Cement Co., 122 NLRB 88.
3The Supreme Court has defined "retail" sales and services as those which are made to
a purchaser "to satisfy his own personal wants or those of his family or friends." Roland
Electric Company v. Walling, 326 U.S. 657, 674-675. Obviously, Respondent's business
for commercial establishments does not meet the definition of retail
* Siemons Mailing Service, 122 NLRB 81.
5T H. Rogers Lumber Company, 117 NLRB 1732, 1733; Appliance Supply Company,
127 NLRB 319, 320; Indiana Bottled Gas Company, 128 NLRB 1441.
6 Yakima Cascade Fuel Co., 126 NLRB 1316
7 All dates hereafter refer to 1962 unless otherwise specifically noted.
$ Raymond Crawford, John M. Lennon, Zdzislaw Wicyniak, and Fred M. Thompson.
HARRY'S TELEVISION SALES AND SERVICE 453
and agreed that unless Respondent granted immediate recognition to the Union, they
would go on strike. Thereupon, Union Representatives Frank Mancuso and William
Maude, together with Fred M. Thompson, one of the technicians, entered the store,
and had a conversation with Respondent Pollins. Mancuso told Pollins the Union
represented his employees, and that unless he executed a form of "stipulation" to
recognize the Union as their exclusive representative and to meet later to negotiate
a contract, his employees would strike. Pollms protested that he knew nothing about
such matters and wanted to consult with his attorney. Pollins then called his counsel,
Henry M. Spritzer, and Mancuso spoke with him on the telephone and repeated the
Union's demands and threat of strike. Spritzer agreed to come down to Respond-
ent's store later that morning and meet with the Union's representatives. Spritzer
also suggested that the employees return to work in the interim, but this was rejected
by Mancuso. However, Mancuso did agree with Spritzer that picketing of Respond-
ent would be deferred until after their meeting.
Spritzer came to Respondent's store about 10:30 a.m. on October 31, and after
talking briefly with Pollins in the store, went outside to the street where the union
representatives and all of the employees were waiting for him. Union Representative
Mancuso repeated his demands to Spritzer. Mancuso told Spritzer that all he wanted
at that time was a recognition agreement, and the men would go back to work.
Mancuso also told Spritzer that bargaining for a contract could be deferred for
10 days or longer to suit Spritzer's convenience. Mancuso also told Spritzer that
he represented 100 percent of Respondent's employees, and showed Spritzer the
union authorization cards which the employees had signed. Spritzer replied that he
wanted an opportunity to investigate the circumstances under which the cards had
been signed and suggested that an election be held. Mancuso responded that the
men were all there in the street and that Spritzer could ask them whether the signa-
tures on the cards were genuine. Mancuso also offered to permit Spritzer to call a
"priest" or a "public servant" and have an election right there and then. Spritzer
suggested that it would put Respondent in an unfair competitive position if he were
the only TV service enterprise which had to meet union conditions. Mancuso replied
that the Union already represented RCA's mechanics, and planned to organize all
the other TV shops in the area. Finally, in response to Spritzer's repeated request
for information regarding the Union's wage demands, Mancuso told him they wanted
$36 per day. Spritzer replied that the demand was ridiculous and went back into
Respondent's store.
After Spritzer left, Mancuso reported to the employees what had transpired, and
they decided to stay out on strike and to set up picket lines at Respondent's store.
All of Respondent's employees participated in the strike and picketing which con-
tinued thereafter from October 31 until November 3.
B. Concluding findings in respect to refusal to bargain
1. The appropriate unit
As noted above, at the time of the Union's demand for recognition and bar-
gaining as the representative of Respondent's employees, Respondent had in his
employ six television and radio technicians .9 Two of these technicians performed
outside service work. The other four worked in Respondent's shop.
There is no prior history of collective bargaining for Respondent's employees,
and no contention has been raised by Respondent that the unit for which the Union
demanded recognition was inappropriate. Such a unit of television and radio re-
pairmen has been held by the Board to be appropriate.10 Moreover, in this case, the
requested unit is also coextensive with Respondent's entire shop." Accordingly, I
find that all employees employed by Respondent at his North Brunswick, New Jersey,
store, excluding all office clerical employees, professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of the Act.
2. The supervisory status of Fred M. Thompson
One of the six television and radio technicians, Fred M. Thompson, was Respond-
ent's service manager. It was Thompson's responsibility to check all television and
radio sets to make sure that they were operating properly before delivery to Re-
spondent's customers. Thompson assigned work regularly to at least one of Respond-
9 Respondent's only other employee was an office clerical.
10 General Electric Supply Corporation, 83 NLRB 1135.
11 Beaumont Forging Company, 110 NLRB 2200.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's other technicians, and sometimes to the others. Thompson interviewed
applicants for employment and made effective recommendations in respect to their
employment or nonemployment. He also made effective recommendations in respect
to promotions for the other technicians. Thompson's salary was about $25 more
per week than that of the other technicians. On the foregoing, I conclude that
Thompson was a supervisor of Respondent within the meaning of Section 2 (11) of
the Act.'2
In view of my conclusion in respect to Thompson's supervisory status, it is obvious
that he did not properly belong in the unit for which the Union sought representative
status. Moreover, it is also clear that in seeking recognition, the Union regarded
him as part of the unit which it sought to represent. However, this variance from
what otherwise would be an appropriate unit was a minor one and subject to modi-
fication. At no time did the Respondent, in refusing to recognize and bargain with
the Union, raise any question that the unit was inappropriate because the Union
sought also to include Thompson. On the contrary, its refusal to consider the
Union's demand for recognition and offer to prove its majority foreclosed any
clarification by the Union regarding the scope of its requested unit. Accordingly, I
conclude that the Union's recognition and bargaining demand was for representation
in a unit appropriate for collective-bargaining purposes.13
The record herein also clearly discloses that on October 30, when the Union sent
its telegraphic demand for recognition, and on October 31, when the oral demand
was made, the Union represented all of Respondent's employees in an appropriate
unit.
3. Respondent's contentions
Respondent contends that the Union's telegraphic demand was "equivocal," and
implied that the Union intended to seek an election to establish its majority status.
The telegram stated:
This is to inform you that this local union represents a majority of TV tech-
nicians in your employ.
The National Labor Relations Act guarantees workers the right to choose a
representative free from coercion of their employers. Please contact the under-
signed so that a meeting can be established to begin negotiations for wages and
other conditions of employment for your employees we represent. [Emphasis
added.]
I do not regard the foregoing as "equivocal," nor does it, in my opinion, suggest
that the Union planned to establish its majority status by an election. I therefore
regard this contention of Respondent as without merit.
In any event, it is clear that on the day following the telegram, when the Union
orally repeated its demand for immediate recognition and bargaining, it rejected the
request of Respondent's counsel for a formal Board election. On this occasion,
moreover, the Union demonstrated the unanimous support of the employees for its
demands, by showing Respondent's counsel their union authorization cards, by offer-
ing to let him question the employees regarding the authenticity of the signatures
on the cards, by their withholding of services until recognition was granted, and by
their strike when recognition was denied. Thus, even assuming arguendo that there
was any possible merit to Respondent's contention that the telegraphic demand was
"equivocal," there clearly could not be any basis for misunderstanding the nature
of the Union's oral demands on October 31. On that day, it is clear that Respondent
not only could not have any doubt regarding the nature of the Union's demands, but
also could not have any good-faith doubt regarding the Union's status as the exclusive
representative of all his employees.
Nevertheless, Respondent's brief suggests that because the Union filed a represen-
tation petition with the Board on November 1,14 he was justified in withholding
recognition until such petition was processed to a Board election . The short answer
to this contention is that on October 31, when recognition was refused, the Union
not only had not yet filed a representation petition, but the Respondent did not know
that the Union contemplated filing any such. Obviously, therefore, Respondent's
refusal to accord recognition to the Union on October 31 could not have been based
either on a good-faith doubt that the Union represented a majority of his employees,
or on the pendency of the representation petition. The Board has repeatedly held:
12 Timber Laminators , Inc., 130 NLRB 1301.
is American Rubber Products Corp., 106 NLRB 73, 77 ; Hamilton Plastic Holding Com-
pany, 135 NLRB 371, 373.
14 Case No. 22-RC-1829. The petition was withdrawn by the Union on November 5.
HARRY'S TELEVISION SALES AND SERVICE 455
An employer has no absolute right to insist upon an election before recognizing
a union , where , as here , the Union 's claim of majority status has been estab-
lished in a less formal manner and no reasonable basis exists for doubting that
claim.15
Moreover, even assuming arguendo that Respondent had any doubt regarding the
Union's majority status , such doubt should have been dispelled by the unanimous
participation of his employees in the Union 's strike and picketing.16
Respondent finally suggests that since the Union 's immediate demand was only
for recognition , and bargaining was to be deferred to a later date, it cannot be said
that he refused to bargain . Respondent cites no precedent for this novel contention,
and it is, quite apparently , devoid of any possible merit . The Supreme Court, re-
ferring to the purpose of Section 8(a)(5) of the Act , said in N .L.R.B. v . Insurance
Agents' International Union- 17
That purpose is the making effective of the duty of management to extend
recognition to the Union ; the duty of management to bargain in good faith is
essentially the corollary of its duty to recognize the Union.
So, in this case, Respondent having refused to take even the initial bargaining step
of recognition, it follows, a fortiori, that Respondent also was refusing to bargain
with the Union.
For all the foregoing reasons, I find and conclude that on and after October 31
Respondent refused to bargain in good faith with the Union although it was the
exclusive representative of his employees in a unit appropriate for collective-
bargaining purposes , and I further conclude that thereby Respondent engaged in
unfair labor practices within the meaning of Section 8 (a) (5) and ( 1) of the Act.
C. Interference , restraint, and coercion
1. Promises of benefits to end strike
At 8:30 a.m. on Saturday , November 3, strikers John Lennon and Raymond Craw-
ford arrived at Respondent 's store for their regular picket duty. According to Len-
non, about an hour later , Service Manager Thompson and the other three strikers
appeared , and Thompson announced , "We [have] thought this thing over and we
have decided to go back [to work]." Lennon suggested that they wait until Union
Representative Maude, and Crawford, temporarily not present , returned . Thompson
agreed. Lennon then said that he would not return to work unless there was an
agreement that there would be no discrimination against him or Crawford. Thomp-
son replied that he had such an agreement from Respondent , but he would go
into the store and confirm it. Thompson then entered the store , came out shortly
thereafter, and reported that Respondent agreed that there would be no discrimi-
nation against Lennon or Crawford. A little later , Maude and Crawford returned
and were apprised of the new development . Maude then suggested that Thompson
wait at least until the following Monday, when a conference on the Union's repre-
sentation petition was scheduled at the Board 's office. However, Thompson replied
"that they were determined to go back." Thereupon Thompson, Wicyniak, Siegel,
and Perrone entered Respondent 's store. After a short discussion with Crawford,
Lennon also decided to return to work and went in . Crawford refused to return,18
and he and Maude left the vicinity of Respondent's store shortly thereafter.
Lennon testified that when he entered the store , Pollins assured him that there
would be no discrimination against him. A little while later Service Manager Thomp-
son called Lennon to the side and told him "that they had met with Mr. Pollins the
night before, . . . they had discussed their grievances with him, and that he had
promised to take care of the grievances when the Labor Relations Board was out
of the picture, and that he promised that he would give us full hospitalization, 1
day off every 6 weeks, and that I [Lennon] was in line for a raise." About 4 weeks
later these promised benefits, 1 day off every 6 weeks and full hospitalization paid
for by Respondent , were given to the employees without negotiation or consultation
with the Union.
15 Mitchell Concrete Products Co., Inc, 137 NLRB 504 ; Fred Snow et al, d /b/a Snow cE
Sons, 134 NLRB 709, 710.
19 Preston Feed Corporation, 134 NLRB 629 , 641-642; N.L R B v. William S. Shurett,
d/b/a Greyhound Terminal , 314 F. 2d 43 (C.A. 5).
17 361 U S. 477, 484-485.
is Crawford never returned to work for Respondent He subsequently went into the
television sales and repair business for himself
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Pollins denied that he had made any promises to the striking em-
ployees before they abandoned the strike. Similarly, Service Manager Thompson
denied that he had any conversations with Pollins before the strike ended and he
also denied that he had told Lennon or any other employee that Pollins had made
any promises to him.
Lennon impressed me as a frank and forthright witness in whose testimony I could
place reliance.19 He was still employed by Respondent when he testified in this pro-
ceeding, and had received an increase in pay after the strike. Thus, there appears no
reason for animus by Lennon against Respondent, and he exhibited none. Moreover,
it appears to me highly improbable that Thompson and the other three striking em-
ployees would so quickly abandon the strike which they had voluntarily undertaken,
unless there had been prior consultation with Pollins regarding the grievances which
had originally motivated their union interest. For all the foregoing reasons, I con-
clude that Lennon's version of his conversation with Thompson should be credited,
and that the denials of Respondent and Thompson regarding the making of these
promises of benefits and their reiteration to Lennon are not worthy of belief. Since,
as found above, Thompson is a supervisor of Respondent, his admission regarding
these promises of benefit was binding on Respondent and not hearsay.
Respondent nevertheless suggests that interference, restraint, and coercion in viola-
tion of Section 8(a) (1) of the Act is not established by the foregoing, because: (1)
these benefits "had been requested of the Employer for at least a year before they
were granted"; (2) the hospitalization was granted in lieu of the employees' usual
Christmas bonus; and (3) the promises were iterated to Lennon after the strike had
ended, and thus could not have been made to deter the employees from continuing to
strike. I regard all of these contentions as devoid of merit. As to (1) above, the
fact that these unsatisfied demands had existed for some time before the advent of
the Union clearly suggests the inference that the motivation for promising and giving
these benefits after the Union's advent was to wean the employees from their interest
in and activities on behalf of the Union. Moreover, this inference of antiunion
motivation for the promise and giving of these benefits is clearly impelled by Respond-
ent's admitted opposition to the representation of his employees by any union, and
by the fact that giving of the benefits was deferred until "after the Labor Board was
out of the picture." As to (2), although the record is quite clear that the hospitaliza-
tion was in lieu of the employees' usual Christmas bonus, the latter in no case was
more than $35 per employee per annum, whereas the cost of the hospitalization was
about $15 per month per employee, or about $180 per annum. Thus, the paid hos-
pitalization was a substantial benefit over and above what the employees had received
before. Finally, as to (3) above, I have found, based on Thompson's admission to
Lennon, that these promises of benefit were quite evidently made to Thompson and
the other three technicians before the strike ended and motivated their sudden decision
to return to work. Moreover, even assuming that the promises were made after the
strike ended, the Respondent's act of dealing directly with the strikers in this regard,
and not through their representative, clearly interfered with the right of Respondent's
employees to deal with him through a collective-bargaining representative, and thus
violated Section 8(a)(1) of the Act.
For all the foregoing reasons, I conclude that by promising and subsequently
granting benefits to the employees as described above, Respondent interfered with,
restrained, and coerced his employees in the exercise of rights guaranteed by the
Act, and thereby engaged in unfair labor practices wtihin the meaning of Section
8(a)(1) of the Act.
In addition, the granting of these benefits to the employees after the strike ended,
without prior negotiation or consultation with the Union, in itself, constituted a
violation of Section 8(a) (5) and (1) of the Act. Thus, as found above, the Union
was the majority representative of Respondent's employees on October 31 when they
struck over his refusal to recognize and bargain with the Union. Even assuming that
the abandonment of the strike by the employees could be regarded as a loss by
the Union of its majority status,20 such loss of majority is directly attributable to
Respondent's unfair labor practice in refusing to recognize the Union. Accordingly,
the duty of Respondent to bargain with the Union nevertheless continued,21 and his
10 Conversely, Pollins' testimony in respect to the Union's demand for recognition was
contradicted by his affidavit given to a Board agent, and Thompson appeared to be evasive
and lacking in candor on cross-examination.
20 On the contrary, the record clearly discloses that none of the employees ever with-
drew his authorization of the Union to represent him.
21 Franks Bros Company v. N L R.B., 321 U.S. 702.
HARRY'S TELEVISION SALES AND SERVICE 457
unilateral grant of benefits to the employees without negotiation with the Union
further undermined the Union in violation of Section 8(a)(5) and (1) of the Act.22
2. Interrogation of Lennon
According to Lennon's credited testimony, about 1 month after the strike ended,
Service Manager Thompson told him in substance, "The Labor Board is coming down
here next week, and we want you to cooperate with us, [and] not to cooperate with
the Board." Lennon replied that if put under oath, he would tell the truth. Later that
day, Respondent Pollins approached Lennon and asked him, "Who are you with? Are
you with me or with the Union?" Lennon replied that he "had been for unions" all
his life and would continue to do so. At quitting time that day, Service Manager
Thompson told Lennon that he wanted "to get this thing straight." He then asked
Lennon, "Are you with us or are you with the Union." Lennon replied that under the
law, he had a right to "belong to any union," and he then asked Thompson, "What is
it you want from me?" Pollins replied, "We want you not to cooperate with the
Board." To Lennon's question whether he was being asked "to lie to the Board,"
Pollins answered, "Yes." Lennon responded that he refused to "sweep the dirt under
the carpet."
Pollins admitted that he had interrogated Lennon as to whether "he was for the
Union." He also admitted that he had advised Lennon "that the National Labor
Relations Board was coming down " However, he denied that he requested Lennon
"not to cooperate" with, or to lie to the Board agent. Service Manager Thompson
also admitted that he and Pollins had asked Lennon whether he was "for the Union."
According to Thompson, Lennon replied, "He is a union man and will be a union
man all his life . and . when the hearing comes up, he will testify to the
truth and all of the facts he knows." Thompson also admitted that Pollins told
Lennon "that there was a Labor Board investigator going to come around to talk to
him." Thompson denied that Pollins asked Lennon to lie to the Board agent.
Although asked, neither Pollins nor Thompson was able to furnish any plausible
or rational reason for interrogating Lennon regarding his support of the Union, or
for advising him of the contemplated visit of the Board agent to Respondent's shop.
In view of the substantial corroboration of Lennon's testimony by Pollins and Thomp-
son in regard to their interrogation of Lennon, and especially in the light of Thomp-
son's admission that Lennon said he was going to tell the truth in the Board proceed-
ings, I am satisfied that this response of Lennon was prompted by Respondent's
request that Lennon not cooperate with the Board agent and lie to him.
Accordingly, I conclude that by asking Lennon whether he was with Respondent
or for the Union, and by asking Lennon not to cooperate and to lie to the Board agent,
Respondent interfered with, restrained, and coerced employees in the exercise of
rights guaranteed by the Act, and thereby engaged in unfair labor practices within the
meaning of 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 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
Having found that the Respondent has engaged in certain unfair labor practices, I
will recommend that he cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local Union 1430, International Brotherhood of Electrical Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. All employees employed by Respondent at his North Brunswick, New Jersey,
store, excluding all office clerical employees, professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of the Act.
22 N L.R B. v. Benue Katz, d/b/a Williamsburq Steel Products Co., 369 U. S. 736.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. At all times material herein, the Union has been the exclusive bargaining rep-
resentative of the employees in the aforesaid appropriate unit within the meaning of
Section 9 (a) of the Act.
4. By refusing to bargain collectively in good faith with the Union as the exclusive
representative of the employees in the aforesaid appropriate unit, and by taking
unilateral action with respect to terms and conditions of employment of his employees
without consultation or negotiation with the Union , the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5. By the foregoing conduct, by promising and subsequently giving benefits to
employees to discourage their continuance or resumption of a strike , by interrogating
employees regarding union adherence , and by requesting employees not to cooperate
with and to lie to a Board agent investigating an unfair labor practice charge, Re-
spondent has interfered with , restrained , and coerced employees in the exercise of
their rights under the Act, and thereby has engaged in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
6 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent Harry Pollins, d/b/a
Harry's Television Sales and Service , his agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union 1430 , International Brother-
hood of Electrical Workers, AFL-CIO, as the exclusive representative of all em-
ployees at his North Brunswick , New Jersey , store, excluding all office clerical
employees, professional employees , guards, and supervisors as defined in the Act,
concerning rates of pay, wages , hours of employment, grievances , and other con-
ditions of employment.
(b) Unilaterally changing the number of employees ' days off, hospitalization, or
any other term or condition of employment of its employees in the aforesaid ap-
propriate unit, without notification to, consultation and negotiation with the above-
named Union , or in order to discourage their continuation or resumption of a strike,
or other union activities
(c) Interrogating employees concerning their union interest or activities in a
manner constituting interference , restraint , or coercion in violation of Section 8 (a) (1)
of the Act.
(d) Requesting employees not to cooperate with, or to lie to , agents of the Board
engaged in investigation of unfair labor practices.
(e) In any like or related manner interfering with, restraining , or coercing em-
ployees in the exercise of their right to self-organization , to form labor organizations,
to join or assist Local Union 1430, International Brotherhood of Electrical Workers,
AFL-CIO, or any other labor organization, to bargain collectively through repre-
sentatives 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
engaging in such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act•
(a) Upon request , bargain collectively with the above-named Union as the ex-
clusive representative of all his employees in the appropriate unit described above
concerning rates of pay, hours of employment , grievances , and other conditions of
employment , and, if an understanding is reached , embody such understanding in a
signed agreement.
(b) Post at his premises at North Brunswick , New Jersey , copies of the attached
notice marked "Appendix A." 23 Copies of said notice , to be furnished by the Re-
gional Director for the Twenty-second Region , shall, after being duly signed by
Respondent , be posted by him immediately upon receipt thereof and maintained by
23 In the event that this Recommended Order be 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 be 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."
HARRY'S TELEVISION SALES AND SERVICE 459
him for a period of 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 said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Twenty-second Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith.24
In the event that this Recommended Order be 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 A
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL, upon request , bargain collectively with Local Union 1430, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, as the exclusive repre-
sentative of all our employees described below, with respect to rates of pay,
wages, hours of employment , grievances, and other conditions of employment
and, if an understanding is reached , embody such understanding in a signed
agreement . The bargaining unit is:
All our employees at our North Brunswick , New Jersey , store, excluding
all clerical employees , professional employees , guards, and supervisors as
defined in the Act.
WE WILL NOT unilaterally change the number of employees' days off, hos-
pitalization , or any other term or condition of employment of our employees,
without first giving notice to, and discussing the matter with, the above-named
union as the exclusive bargaining representative of our employees in the above-
described unit, in order to discourage their continuation or resumption of a
strike, or other union activities.
WE WILL NOT coercively or unlawfully interrogate any of our employees
regarding union membership , adherence , or sympathy.
WE WILL NOT request any of our employees to withhold his cooperation from,
or to lie to, a Board agent engaged in investigation of unfair labor practices.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist Local Union 1430, International Brotherhood
of Electrical Workers, 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 , and to refrain from any or all such activities , except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment , as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All our employees are free to become or remain or to refrain from becoming or
remaining members of Local Union 1430 , International Brotherhood of Electrical
Workers, AFL-CIO, or any other labor organization.
HARRY POLLINS , D/B/A HARRY 'S TELEVISION SALES AND SERVICE,
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
National Newark Building , 744 Broad Street , Newark, New Jersey , 07102, Tele-
phone No. Market 4-6151, if they have any questions concerning this notice or
compliance with its provisions.