I. Turner Canvas and Upholstery Co.

National Labor Relations Board - Board DecisionsSep 21, 1962

138 N.L.R.B. 768 (N.L.R.B. 1962)

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ida Turner , doing business as I. Turner Canvas and Upholstery Company and International Union , United Automobile, Air- craft and Agricultural Implement Workers of America, Local 29-UAW, AFL-CIO. Case No. 2-CA-8451. September 21, 1962 DECISION AND ORDER On June 29, 1962, Trial Examiner Ramey Donovan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent 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 Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal of these allegations. Thereafter, the General Counsel and the Respondent each 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 considered the' Intermediate Report, exceptions and briefs, and the entire record in this case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts the Trial Examiner's Recommended Order? IIn the Remedy section of the Intermediate Report, the Trial Examiner said that a realistic remedy would include placing Taylor, the only alleged discriminatee who has not been recalled , on a preferential hiring list in view of Respondent 's hostility toward him because of his union activity. The Trial Examiner failed, however , to include such a provision in his Recommended Order . As we are affirming the Trial Examiner's con- clusion that the discharge of Taylor and the other two alleged discriminatees was not based on their union activities and did not therefore violate Section 8(a) (3), despite Respondent 's earlier opposition to the organization of its employees , we see no reason why Respondent should be required to favor Taylor above other applicants for employ- ment . See Becker-Durham, Inc., 130 NLRB 1356, 1357 . At the same time, Respondent cannot lawfully discriminate against Taylor in rehiring because of Taylor's union activities. All applicants are equally entitled to consideration for employment without regard to their union activities or membership. 2 The appendix to the Order is amended to show that it must remain posted for CO consecutive days from the date of posting, rather than from any other date. INTERMEDIATE REPORT STATEMENT OF THE CASE Commencing on February 6, 1962 , International Union , United Automobile, Aircraft and Agricultural Implement Workers of America, Local 29 -UAW, AFL- CIO, herein called the Union , filed charges and amended charges under the Act against Ida Turner , doing business as I. Turner Canvas and Upholstery Company, herein called Respondent . The General Counsel issued a complaint on April 2, 1962 , alleging violations of Section 8(a)(1) and ( 3) of the Act by interrogation 138 NLRB No. 92. I. TURNER CANVAS AND UPHOLSTERY COMPANY 769 and threats and by laying off three named employees. Respondent denies violating the Act. Hearing was conducted in New York on April 30 and May 2, 1962. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF RESPONDENT Ida Turner, at all times material, has been an individual proprietor doing business under the trade name of I. Turner Canvas and Upholstery Company. The individual, Ida Turner, is a widow and the conduct of the business is in the hands of her two sons, Julius and George Turner. Julius testified that he is also a practicing dentist and that George is a practicing pharmacist. Respondent maintains its office and place of business in the Borough of Manhattan, New York City, where it is engaged in the repair, replacement , sale, and servicing of cushions, tarpaulins, seat covers , upholstery, and related products for trucking companies and others who use the aforedesenbed services. During the year ending December 31, 1961, Respondent, in the course of its business, performed services valued in excess of $140,000 for Metropolitan Truck Rental, a New York City office of the Hertz Corporation, Truck Leasing Division; American Can Company; Yale Transport Corp., a division of Yale Express System, Inc.' During the same period, Respondent purchased goods and supplies valued at approximately $700 directly from Blanchard Bros. and Lane of Ashtabula, Ohio. The gross annual revenue of the Hertz Corporation for the year 1961 exceeded $138 million. The gross annual revenue of the Truck Leasing Division, of which Metropolitan Truck Rental is a New York City office, exceeded $57 million for the year 1961. The Truck Leasing Division and its Metropolitan office are engaged in the business of leasing trucks. Approximately 90 percent of the Truck Leasing Division's 18,000 trucks are under long-term arrangement; the remaining trucks produce revenue through short-term transient rentals and also are made available to lease customers as spare or extra trucks. American Can Company is engaged in the manufacture and sale of metal and fiber containers, paper cups, and related items. It has a gross annual revenue in excess of $1 billion and gross annual purchases involving interstate movement of goods in excess of $50,000. Yale Express System, Inc., and its division, Yale Transport Corp., is a common carrier engaged in interstate transportation under Interstate Commerce Commission license, with gross annual revenue in excess of $23 million. The Respondent is engaged in commerce within the meaning of the Act and within the Board's jurisdictional standards II. THE LABOR ORGANIZATION INVOLVED The Union, aforenamed, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES After engaging in organizational activity among Respondent's employees, com- mencing in December 1961, the Union filed a petition for certification with the Board on January 16, 1962. Respondent was notified by a letter, dated January 17, from the Regional Director of the Board, that a petition had been filed. From the same source, Respondent was notified by letter of January 17 of a conference date. An agreement for a consent election was signed by Respondent and the Union on January 24 An election was held on February 2, 1961, with the Union receiving five votes and four votes being cast against the Union The Union was certified for a union of production and maintenance employees on February 14, 1962. A. The conduct of Respondent Julius Turner testified that in January 1962, he received a telephone call from Pave, a union representative, inquiring about a contract. Turner testified that he did not know what Pave was talking about since he had no previous experience I Respondent had a substantial number of other customers in addition to the three referred to at this point. The commerce facts are based on various stipulations of the parties in the record A postbearing stipulation, executed by the parties on June 12 and 13, 1962, at the behest of the Trial Examiner, corrects certain variations in corporate names in the record. The said posthearing stipulation is hereby incorporated into the record as Trial Examiner's Exhibit No. 1. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in labor relations matters? Following the above-mentioned call, Turner stated that he spoke individually to each of his employees, asking them if they knew anything about a union . According to Turner, some said "Yes" and some said "No." The witness recalled that employee Jackson gave an affirmative answer and that employee Taylor said either that he knew nothing about it or that he was not a member of the Union. At a later point in his testimony, Turner said, "I asked every single member [employee? ] in the shop if they were members of the Union." Employee Jackson testified that about the middle of January 1962, Turner came to him during working hours and asked him if he was a union member. Jackson said he was. Jackson also heard Turner ask the same question of other employees and heard him say to employee Louis Serrantes, "See that, Lou, you can't trust anybody." 3 Later, on the same day, according to Jackson, he heard Turner speak to two employees and tell them that he wanted them to punch the work card at the time they started and at the time they finished a job. Jackson also testified that it was customary for George or Julius Turner ,to get coffee for everybody in the shop on Saturdays. He stated, "This Saturday [following the aforedescribed conversa- tions] they did not, and we never punched the timecaid after each individual finished the job and at the end of the day we had to sign the cards." The witness said he considered both of the foregoing incidents "unusual." The following day, or later in January, Jackson had occasion to be in the plant basement. He testified that Julius Turner spoke to him on that occasion saying that he felt that he could talk to Jackson since Jackson was more intelligent than the others Turner said to Jackson that the Company did not need two drivers and did not need Taylor and, if the Union came in, he would have to let Taylor go because Paul Ross could do the work? Turner remarked that he was rich and did not need his job at the plant and could spend more time in his dental office and that if the Union came in, he would have to close the plant since neither he nor his mother wanted a union. He also said to Jackson that if the latter learned how to sew the seats, he would receive a substantial raise in pay. When Turner and Jackson emerged from the basement on the aforementioned occasion, Turner, according to Jackson, spoke to Taylor and said that if the Union came in, he would have to let him go, since he had hired him only because Taylor had a large family The Board-conducted election was held on the morning of Friday, February 2, 1962 When the election was over and the count of the ballots indicated a union victory, Jackson, who had been the union observer at the election, was talking to a union representative. Julius Turner told the latter to let Jackson get back to work. Later, that morning, Turner told Jackson not to learn to sew. This was apparently a reference to their prior conversation, supra, regarding Jackson's re- ceiving a raise if he learned how to sew. Toward the end of the day on Febru- ary 2, Turner told Jackson not to come in on Saturday,5 but to call Saturday to see if there would be any work on Monday. Jackson called on Saturday and Harry Michaels, the foreman, told him there was no work and not to come in on Monday. Respondent recalled Jackson on Monday, February 12.6 Employee Maynard was hired by Respondent in October 1961. He was a friend of Gooden, another employee, who had suggested to Turner that he hire Maynard to take the place of an employee who was ill. Gooden testified that Turner had informed him that the job would be temporary and Maynard admits that Turner had told him the same thing.? 2 On the same day Turner had received a letter from the Regional Office of the Board. This was probably the letter, aforementioned , notifying Respondent of the filing of the Union's petition and would be dated about January 17 or 18, 1962 9 Serrantes had been with Respondent employer longer than most of the other em- ployees . He had not been among the employees who had gone to the union ball in a group in order to sign union cards 4 Taylor was a driver and general handyman. Ross was a driver for Respondent 5 Jackson had been first hired in May 1961 He testified that during his employment a half-day on Saturday was part of the normal workweek 6 Jackson testified that he worked Monday, was out Tuesday, and then worked through Friday. This pattern with minor variations was followed in the following 4 weeks, dur- ing which Jackson did no Saturday work Thereafter, apparently, oi, at the time of the hearing, Jackson testified that he was working a full week. 71t is not clear what the "temporary" aspect was One possibility is that it was temporary in the sense of being contingent upon the return of the ill employee. Gooden testified that the latter returned to work about 3 weeks after Maynard was employed and remained until January when he was hospitalized . This man had not returned to work at the time of hearing. I. TURNER CANVAS AND UPHOLSTERY COMPANY 771 Sometime after Maynard and the others had joined the Union and prior to the February 2 election, Foreman Michaels told Maynard that Maynard would be sorry if a union was brought into the plant.8 On Thursday, January 25, Michaels told Maynard that work was slow and not to report for work the next day. Maynard, therefore, did not work January 26, Friday, but did work that Saturday, January 27. On the latter date, he said the only thing that was different was the fact that the Turners did not bring in any coffee. Maynard said the Turners customarily supplied coffee on Saturdays but he believed that there were possibly two or three other occasions when coffee had not been supplied. On Friday, February 2, after the election, Maynard testified that Michaels "told me I would be sorry." Later in the day, around 4:20 p.m., Julius Turner, according to Maynard, said to him, "Well, after this morning's result I will have to lay you off." Turner told Maynard to call him on Saturday to ascertain whether he was to report for work the following Monday. As directed, Maynard called Turner on Saturday. Turner said there was no work but to call Monday. Maynard called Monday, Tuesday, and Wednesday but was told there was no work. He testified that Turner recalled him to work about April 25, 1962, to take the place of Ward who had left the Company's employ .9 James Taylor was hired by Respondent in June 1961 as a driver. He testified that when there was nothing for him to deliver or pick up, he would be given such tasks as tearing down a truck seat preparatory to its being reupholstered and cov- ered by the employees who did such work. Taylor also, when not driving or when not fully occupied with driving, would sweep the floor of the plant or paint the restroom. Taylor joined the Union at the same time as the other employees aforementioned. He testified that about a week later Turner asked him if he had joined the Union and he said "Yes." Turner said that if the Union came in, he would have to lay off Taylor because he needed only one driver and Ross could do all the driving.iO Turner told Taylor that he had hired him because he had a large family and that he had kept him on for this reason. Sometime later, Taylor believed it was about a week later, Turner asked Taylor to drive him to a location to pick up some supplies. On this occasion, Turner told the employee that he never thought that "you would do me like this because I done you a favor on account of you had a big family. That's why I kept you. But I think 'I am going to have to let you go." On the morning of the election, after the ballots had been counted and the Board agent had left, Taylor testified that Michaels said to Taylor, Maynard, and Ward that they were all going to be sorry. Later, on February 2, Turner told Taylor that he was laying him off because he had no work for him. Turner told Taylor to call him and he would let him know if there was any work. Taylor has not be recalled. Sallie Taylor, wife of James, testified that in the latter part of December 1961 Julius Turner telephoned her and asked her to talk to her husband about the Union. Turner said that the union representative had persuaded the men to vote for a union without giving them a chance to think about the matter. He said the Union was composed of racketeers and that there was an election coming up. Turner told Mrs. Taylor that if her husband voted for the Union he would be without a job and since he was not very bright he would not be able to get another job. He also said that there never had been a union in the shop and there never would be. With the exception of employee Gooden, whose brief testimony regarding the circumstances under which Maynard had been hired originally has been described above, Respondent's sole witness was Julius Turner. Turner, as we have seen, ad- mitted that he questioned his employees regarding their union membership. He stated generally that he had not threatened anyone. He testified that although Taylor had told him originally that he knew nothing about the Union or was not a member 8It was stipulated that Michaels had the authority to responsibly direct others in the performance of their work and that this authority was not of a merely routine nature but required the use of independent judgment Employee Jackson testified that Julius Turner had informed him when he was hired that Michaels was the foreman and that Jackson was to do whatever Michaels told him. I find that Michaels is a supervisor within the meaning of the Act, although he was a working foreman and performed a variety of rela- tively skilled tasks `yard had not been laid off on February 2, 1962 He had more seniority than any of the laid-off employees The record indicates that he was in the group of employees who had joined the Union in December. 38 Paul Ross was employed as a driver Although the record does not show the length of his employment, it sufficiently indicates that it was greater than that of Taylor. 662353-63-vol 138-50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter "I [Turner ] could see how he [Taylor] was speaking to some of the men, that there may have been a possibility that he did know [ about the union ], just didn't want to tell me." Turner, referring to the occasion when he asked Taylor to accom- pany him on an errand , said that he did ask Taylor again if he knew anything about the Union but "he didn 't seem to want to give me any information " and referred Turner to his wife. According to Turner , he thereafter spoke to Mrs. Taylor and asked her if she knew whether her husband was interested in the Union and when she said "No" he dropped the matter. Turner testified that he did express surprise that Jackson was the observer for the Union at the election . He said that this was due to the fact that when he had previously spoken to Jackson in the basement of the plant the latter had told him that he was not in favor of the Union. The foregoing substantially sets forth the extent of Respondent's position regarding the testimony , heretofore described , of the witnesses Jackson , Maynard , James Taylor, and Sallie Taylor. B. Conclusions regarding the Section 8(a) (1) allegations Based on the record and my observation of the witnesses , I find that , on the whole, witnesses Jackson, Maynard, James Taylor, and Sallie Taylor gave credible testimony as set forth hereinabove. It is found that in January 1962 as alleged in the com- plaint, Julius Turner , an agent of Respondent , interrogated employees regarding their union membership and activities. It is found that in January and February 1962 Respondent, by its agents, Julius Turner and Foreman Michaels, threatened and warned its employees of discharge and reprisal because of their union membership and activity. It is found that in the course of a conversation with Jackson in the basement in January 1962, Turner made clear his opposition to the Union and determination not to have a union in the plant. Jackson, on that occasion , by telling Turner that he considered him a fair employer and probably by other statements , as related by Turner in his testimony, led Turner to believe that Jackson was not a union adherent or not a strong union advocate . Turner, therefore , advised Jackson that he could expect a substantial raise in pay if he learned how to sew , with the clear implica- tion under all the attendant circumstances , including Turner 's tribute to Jackson's superior intelligence and Turner 's aforedescribed expressed opposition to the Union, that Jackson 's opportunity for a wage increase was related to and contingent upon his sympathetic attitude toward Turner's own opposition to the Union. This con- clusion is confirmed by Turner 's instruction to Jackson , immediately following the election won by the Union, at which Jackson had been the union observer, that Jackson should forget about learning how to sew and, by implication , the attendant wage increase that had been promised if he did learn to sew. It is found , therefore, that Respondent did offer, as alleged in the complaint , a wage increase to induce an employee to refrain from exercising his rights under Section 7 of the Act. Pursuant to the findings made in the paragraphs above, it is found that such con- duct constituted violations of Section 8(a)(1) of the Act and that Respondent has thereby violated Section 8 (a) (1) of the Act. Regarding the complaint allegation that on or about January 27, 1962, Respond- ent required its employees to perform tasks not previously required and deprived its employees of benefits previously granted , the following findings are made. Appar- ently the allegation refers to ( 1) the failure of the Respondent to supply coffee to the employees on that particular Saturday as he usually did, and ( 2) to the require- ment that job cards be punched by employees before and after completing a particu- lar job. As to this latter, I am satisfied from the record that the punching of job cards before and after a job was neither a new nor an unusual requirement. It was the prevailing rule. Nor is the evidence sufficiently clear that this requirement had not theretofore prevailed on Saturday Maynard in fact testified that the only thing out of the ordinary on the particular Saturday was the lack of coffee and Jackson's testimony is not clear on this particular aspect of punching the cards on Saturday. Nor am I persuaded on the limited evidence that it is sufficiently shown that the Respondent 's manner in requiring that the cards be punched was unusual or such as to show discrimination in the requirement. The evidence shows that Respondent usually supplied coffee to the employees on Saturday. However, the evidence as to whether the foregoing had become sufficiently institutionalized so that the employees were entitled to rely upon it as one of their working conditions , is not strong. The two employees who testified that Respondent customarily supplied coffee were Jackson and Maynard . Their respective employ- ment dated from June and October 1961, with the consequence that their knowledge of the coffee custom pertained to a relatively brief period . Even in this brief period Maynard testified that there had been two or three occasions , other than January 27, I. TURNER CANVAS AND UPHOLSTERY COMPANY 773 1961, when coffee had not been supplied. As far as appears, these other omissions were unconnected with the period of union activity. Although Respondent offered no testimony about the subject of coffee or its omis- sion on January 27, I am not satisfied that the evidence is substantial enough to sustain this particular complaint allegation. There is no evidence that Respondent said or implied that the coffee omission was deliberate and that it was because of the union activity. Moreover, the incident occurred prior to the election at a time when Respondent was seeking to discourage union adherence in the impending elec- tion. To remove an employee benefit at that preelection stage would appear to be an ill-calculated way to insure employee loyalty to Respondent. Customarily, and in this case, the strategy was to threaten adverse consequences that would occur after the election if the employees voted for the Union. A coffee reprisal before the the election would appear to be at variance with the foregoing and to constitute grounds for irritation rather to evoke employee fealty. It is possible that the Janu- ary 27 incident was a deliberate reprisal but I conclude that the General Counsel has not supported the allegations of paragraph 14 of the complaint by substantial evidence and dismissal thereof is recommended. I also recommend dismissal of paragraph 11 of the complaint wherein it is alleged that Respondent discriminatorily laid off Maynard for 1 day, Friday, January 26, 1962. As I view this allegation, it is based on Respondent's hostility toward the Union and union activities of its employees. Maynard, like others, had joined the Union. Foreman Michaels had told Maynard that the latter would be sorry if a union was brought into the plant. This warning was at some time before the election and apparently after the middle of January. Maynard's testimony tends to indicate that it was shortly after the Board notified Respondent of the Union's petition, around January 17. On January 25 Michaels told Maynard not to come to work the next day, Friday, because work was slow. Michaels did tell Maynard to come to work on Saturday January 27, and the employee did work on that day. The evidence, in my opinion, is insufficient to support the allegation of a discriminatory layoff on January 26. C. Conclusions regarding the Section 8(a)(3) allegations It is Respondent's position that the layoff of Jackson, Maynard, and Taylor, on February 2, 1962, was due to economic factors, to wit, a decrease in the amount of seats to be upholstered.ii To evaluate this evidence it is necessary to consider Respondent's personnel complement at various periods and the tasks performed. In the period December 1960 through March 1961 Respondent had eight em- ployees, including Michaels.12 They were: Serrantes and Irving who worked on the canvas; M. Hernandez, Ward, Borstyn, and A. Hernandez, all of whom worked on the seats; Michaels, the foreman, who could do any type of work; and Ross, the driver.13 Irving and M. Hernandez left Respondent's employ in June 1961; Borstyn left in April 1961; A. Hernandez left in July 1961. As we have seen, Jackson was hired in May 19,61; Taylor in June 1961; Maynard in October 1961. Immediately prior to the layoff, in February 1962, Respondent had nine persons on its payroll, including Michaels. They were: Serrantes and Gooden, canvasworkers; Maynard, Jackson, McFarland, and Ward, seatworkers; Taylor, a driver, who also tore down seats or similar simple operations when not sufficiently occupied with driving; Taylor also performed miscellaneous tasks such as sweeping the floor and painting the restroom; Ross; and Michaels. Turner admitted that, in the period December 1960 through February 1961 and thereafter, there had been no layoffs. December 1960, with 526 seats, was the "The number of seats worked upon by Respondent on a monthly basis was as follows December 1960------------------ 526 September 1961 ----------------- 695 January 1961------------------- 602 October 1961------------------- 692 February 1961------------------ 576 November 1961----------------- 749 March 1961-------------------- 699 December 1961------------------ 808 April 1961--------------------- 719 January 1962------------------- 576 May 1961---------------------- 728 February 1962------------------ 450 June 1961---------------------- 745 March 1962-------------------- 594 July 1961---------------------- 781 April 1962--------------------- 576 August 1961-------------------- 775 "The record is not entirely clear whether Ross was an employee at that time but I be- lieve he was. 11 Prior to June 1960, according to Julius Turner, Respondent had six employees. Since the amount of work performed prior to December 1960 is not in the record, it is not possible to evaluate the ratio of six workers to any given amount of work. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowest month, productionwise, except for February 1962. The 3 consecutive months, December 1960 and January and February 1961, show an average of 5'68 seats per month. During that period Respondent retained eight persons on its payroll, in- cluding four seatworkers, Ward, Borstyn, M. Hernandez, and A. Hernandez. The average number of seats for December 1961 through January and February 1962 was 540.14 On February 2, 1962, Respondent retained six persons on its payroll after laying off Jackson, Maynard, and Taylor. As a result, Respondent's com- plement of four full-time seatworkers, McFarland, Ward, Maynard, and Jackson, was reduced to two. Ward and McFarland. Taylor, of course, was also eliminated but he was primarily a driver and only an intermittent seatworker. The two periods, December 1960-February 1961 and December 1961-February 1962, are comparable on a basis of average monthly production. While there had been no layoff in the prior period, it is to be borne in mind that the payroll at that time consisted of eight persons, including one driver, Ross, and four seatworkers. With Taylor on the payroll, in the December 1961-February 1962 period, and with comparable production, Respondent had nine persons, including four seatworkers, plus driver Ross, plus Taylor, a driver and part-time seat and miscellaneous worker The record also shows that in June 1961 when Taylor was hired, Respondent was producing 745 seats, and the average, from June 1961 through December 1961, was 749 per month. Turner testified that work started to fall off in December 1961. The witness said that he had in mind making a layoff around the middle or toward the end of Decem- ber but decided to wait and see how conditions would be around the first of the year. In January 1962 the lack of work was so pronounced that Respondent refrained from making layoffs, according to Turner, only on the advice of counsel in order to afford all employees the right to vote in the Board election. Since December 1961 shows the highest monthly production (808) of any of the months concerning which Respondent introduced specific figures, it is apparent that in Respondent's business the amount of work to be performed was of a fluctuating nature. Thus, work in the forepart of December 1961 was apparently heavy if, in the same month, work had fallen off to the point where Turner, as he testified, was contemplating a layoff in the middle or latter part of the month. Respondent's monthly figures show that numerically, each month, Respondent performed work for about 40 or more different customers. From the standpoint of the number of seats per month worked on per customer, the numbers ranged from 1 or 2, or 3 to 8, to 299, in short, any number from 1 to several hundred. Some customers gave Respondent work practically every month, others were intermittent customers, and some were one or two time customers. Respondent received work from firms for which it had performed work in the past but Respondent also went out in a station- wagon or truck to solicit and pick up seats from new customers. Even Respondent's largest and relatively steady customers gave Respondent variable amounts of work 15 14 Turner testified that he expected a seat worker to turn out about 10 seats per day 15 For instance, taking a few months and the amount of work received by Respondent from its largest customer, Metropolitan Rental, the figures are as follows Dec. 1960 Jan 1961 Dec 1961 Jan. 1962 Feb 1962 Mar 1962 Apr 1962 135 172 299 226 157 201 196 For the same periods, the figures for another substantial customer, Yale, are Dec. 1960 Jan 1961 Dec. 1961 Jan.1962 Feb.1962 Mar 1962 Apr 1962 20 31 50 51 35 51 42 For another customer , National, the figures are. Dec 1960 Jan 1961 Dec 1961 Jan.1962 Feb.1962 Mar 1962 Apr 1962 46 30 42 0 7 2 3 For American Can, the figures are: Dec. 1960 Jan 1961 Dec 1961 Jan. 1962 Feb . 1962 Mar 1962 Apr 1962 23 21 28 22 23 21 24 For Theurer , the figures are: Dec 1960 Jan . 1961 Dec 1961 Jan.1962 Feb . 1962 Mar 1962 Apr 1962 0 0 65 31 14 22 21 For the Post Office , the figures are Dec 1960 Jan 1961 Dec 1961 Jan 1962 Feb 1962 Mar 1962 Apr 1962 0 0 11 9 16 11 26 For S W , the figures are: Dec 1960 Jan . 1961 Dec 1961 Jan.1962 Feb 1962 Mar 1962 Apr 1962 64 64 58 53 41 44 36 I. TURNER CANVAS AND UPHOLSTERY COMPANY 775 The evidence of Respondent's hostility to the union activities of its employees, the threats of reprisal, and the timing of the layoffs, necessitate the closest scrutiny of the latter. Intimately a part of the conclusion,to be drawn is the question whether Respondent, on February 2, was in a position to avail itself of the low monthly production for the entire month of February as justification for the layoff on the second day of the month. It is my opinion, after comparing various periods in Respondent's workload and Turner's testimony regarding information from customers, that the record warrants the conclusion that Respondent on February 2 had sufficient information to know with reasonable business certainty that work in February would be, and was, less than that of January. I believe that in comparing the December 1960-February 1961 average of 568 with the January-February 1962 average of 513 or even the January 1962 figure of 576, we have some basis of comparison. 16 In the one period there were eight personnel with no layoff and in the latter period there were nine. I attribute the fact that there was no layoff in January 1962 to the fact that Re- spondent conceived such nonaction to be in its own best interest in its impending election contest with the Union On February 2, 1962, on the basis of the January workload and what was known of the February picture, I am of the opinion that the layoff of Taylor was dictated by economic facts. Such a layoff, from nine to eight, would bring Respondent's complement into line with its complement of December 1960-Febiuary 1961, a period of comparable production when no layoff occurred. Taylor was the second and junior driver and previously Respondent had only one driver. Taylor's ability as a seatworker was minimal and in the previous period Respondent had only four seatworkers, which would be the same number it would have after Taylor's elimination. Respondent's statements to Taylor and his wife in the period preceding the election have been carefully weighed. If Turner was taken at his woad he was employing Taylor out of consideration for his large family, a factor that no doubt continued at the time of the layoff. It was also stated to Taylor that his continued employ- ment was contingent upon his opposition to the Union or upon the latter's defeat in the election. But, notwithstanding such statements , I believe that Turner was using them as a part of Respondent's vigorous campaign to defeat the Union and that they were in essence election propaganda. I am not persuaded that Respond- ent either hired or retained or would retain Taylor because he had a large family. Nor do I believe, despite Turner's statements, that Taylor would have been re- tained after February 2 if he had opposed the Union. Economic facts are stern business taskmasters and I find that from January 1962 onward the retention of a ninth man by Respondent was simply not in the economic cards We do not know how Taylor voted in the election; if he had voted against the Union, to Respondent's knowledge, and if the Union had lost the election, I still believe that he would have been laid off. It would not be the first time that em- ployees had voted against a union because of promises of job security and then would have found themselves in an economic layoff. Nor do I believe that the fact that Ward did more driving after Taylor's layoff changes this conclusion. Ward testified that prior to Taylor's layoff he drove about twice a week. About 3 weeks or a month after Taylor's layoff Ward began driving 3 or 4 days a week. Driving on the part of one of the seatworkers, however, was not inconsistent with prior practice in the January 1961 period when Respondent had a complement of eight. At that time, according to Turner's uncontroverted testimony, M. Hernandez, a seat worker, was also doing a substantial amount of driving in addition to his seat work As we have seen, Taylor was the ninth man in the personnel comple- ment as compared to the prior complement of eight in a comparable production period.17 The economic justification for the elimination of one employee is not dispositive of the matter of the layoffs of two additional employees, Jackson and Maynard. In resolving this last mentioned aspect I am persuaded that at the time of the layoff 16 December 1961 with 808 units in an exceptionally high month and I have not attached controlling weight to the decrease from December alone 11 Since there is no evidence of overtime work performed by the retained employees after the February 2 layoff, the fact that Ward, a seat worker, thereafter performed more driv- ing is of some note on the amount of overall seat work on Respondent's hooks during this period 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had before it the production figures for January 1962 as well as suffi- cient information to indicate that February would be lower than January.1° With Taylor eliminated , Respondent's complement was eight , including four seat- workers, the same total number and the same number of seatworkers that had been employed in December 1960-March 1961. Although the monthly average for the last-mentioned period was only 600 seats and although December 1960 had shown only 526 seats , there had been no layoff of personnel . This was a period prior to the employment of any of the instant alleged discriminatees . While such factor is not necessarily diapositive , it is noteworthy that the monthly work average for December 1960-December 1961 was approximately 700, with the average for June 1961-December 1961 being 749. In short, Jackson and Maynard (and Taylor) had been employed and had worked in a period when the production norm had become substantially higher than it had apparently been in December 1960. The norms of a business , like the standard of living of an individual or a family , change with the passage of time and with altered conditions . An average of 700 seats per month prevailed throughout 1961 and this work was handled by four full-time seat- workers. Jackson and Maynard had been hired and had worked according to the foregoing average of work. The 1962 figures, either any single month or the average , show a decided decrease when compared with the preceding 6- or 12-month average of 700 or more Thus, January 1962 with 576 is substantially lower than not only December 1961 with 808 (an admittedly high month) but also November 1961 with 749 and the whole 6 months preceding January 1962 when the average was 749. While Respondent, in my opinion , as mentioned before, because of the large number of customers it serviced and because of the normal fluctuating nature of the business , could not know exactly on February 2 that its production for the month would diminish to 450, it did have sufficient information and experience to know that February would be a lower month than January and that the prospects for a substantial upturn were not good.19 Despite a strong case of Respondent 's animus against the Union and against the union activities of its employees , including threats of reprisal and suspicious timing, I am not persuaded that but for their union activities Jackson and Maynard would not have been laid off on February 2. The preelection threats and promises were part of what must be regarded as a cynical attempt to defeat the Union in the elec- tion. The state of the business, at least as shown in the record, was such that, in my opinion , the layoffs would have occurred and did occur regardless of the election outcome. Absent convincing evidence of pronounced paternalism in the conduct of its business , I am unable to conclude that Jackson and Maynard , who were hired and who worked with a workload of 700 or more seats per month, would have been retained when the workload had diminished and was diminishing to the extent shown by the figures in the preceding footnote . Remarks made by Respondent immedi- ately after the election were quite clearly reflective of disappointment , pique, and resentment at the election results but they do not establish , in my opinion , that but for the result of the election there would have been no layoffs at the time Accord- ingly , dismissal of the allegations of the complaint asserting that the layoffs were violative of Section 8 ( a)(1) and ( 3) of the Act is recommended since I conclude that the Act has not been violated in the foregoing respects 18 While I do not believe that Respondent on February 2 knew the exact figure of Febru- ary production, there was sufficient information on hand to make a reasonably good business judgment that the decline from January would be substantial 19 The following comparative tabulation has been considered both on the question of the initial layoff and the duration thereof January 1962___________________ 576 January 1961 ------------------- 602 February 1962----------------- - 450 February 1961 __________________ 576 2 months' average -------- 513 2 months ' average -------- 5S9 March 1962____________________ 594 March 1961_ __ 699 3 months' average 5AO 3 months' average 626 April 1962_____________________ 576 April 1911 --------------------- 719 4 months' average-------- 549 4 months ' average-------- 649 December 1960-December 1961 average______________________________ 700 I. TURNER CANVAS AND UPHOLSTERY COMPANY 777 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its operations described in section 1, above, have a close, intimate, and sub- stantial 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 Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain af[irm^ative action in order to effectuate the policies of the Act. Since Respondent's expressed hostility toward Taylor because of his union activity has manifested a discriminatory disposition against Taylor, it is appropriate that a realistic remedy include placing Taylor on a preferential hiring list so that in the event that Respondent's business regains the volume comparable to the 1961 period when Taylor was employed, Taylor will be accorded preference in hiring over any new employee. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions and upon the entire record I recommend that Respondent, Ida Turner, doing business as I. Turner Canvas and Upholstery Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees regarding their union membership and activities and/or threatening its employees with reprisals because of their union membership or activities and/or promising benefits .to its employees to refrain from union mem- bership or activities, with respect to International Union, United Automobile, Air- craft and Agricultural Implement Workers of America, Local 29-UAW, AFL-CIO, or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions, to join any labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities except to the extent that such right to refrain may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its plant in New York City, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by Respondent or its representative, be posted by Respondent immediately upon receipt thereof and be maintained for 60 days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director for the Second Region, in writing, within 20 days from the receipt of this Intermediate Report, what steps have been taken to comply herewith.21 10 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 Recommendations 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 "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." 21 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 NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board , and in order of effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees regarding their union membership or union activities. WE WILL NOT threaten our employees with reprisals because of their union membership or activities. WE WILL NOT promise benefits to our employees if they will abandon the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 29-UAW, AFL-CIO. 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 join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining, or to refrain from any and all 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 employment, as authorized in Section 8(a) (3) of the Act. IDA TURNER, DOING BUSINESS AS I. TURNER CANVAS AND UPHOLSTERY COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York 22, New York, Telephone Number, Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Westinghouse Electric Corporation , Small Motor Division and Lima Westinghouse Salaried Employees Association , affiliated with the Federation of Westinghouse Independent Salaried Unions , Petitioner . Case No. 8-RC-2332. September 21, 1962 SUPPLEMENTAL DECISION AND ORDER AMENDING CERTIFICATION On March 14, 1955, the Regional Director for the Eighth Region issued a Certification of Results of Election in the above-entitled pro- ceeding certifying that Lima Westinghouse Salaried Employees Asso- ciation, affiliated with the Federation of Westinghouse Independent Salaried Unions, herein called the Union,' might bargain for the professional employees employed at the Employer's Lima, Ohio, plant as part of the unit of salaried technical and clerical employees for which it has been the certified representative since 1941.1 Thereafter, on February 26, 1962, the Union filed a petition for clarification of unit, and on March 12, 1962, the Employer filed a cross-petition for clarification of unit. On May 10 and 11, and June 19, 1962, pursuant to an Order of the Board, a hearing was held before Norman R. Prusa, hearing officer, on the issues raised by the petitions. Both parties appeared and par- ' The Union 's name appears as amended at the hearing 2 36 NLRB 901 . See also 53 NLRB 510 . The Regional Director 's action followed a Decision and Direction of Election (111 NLRB 497), in which the Board accorded the professional employees a self-determination election. 138 NLRB No. 90.