Joseph Antell, Inc.

National Labor Relations Board - Board Decisions

May 25, 1965

152 N.L.R.B. 818 (N.L.R.B. 1965)

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 7, in writing , within 20 days from
the receipt of this Recommended Order, what steps the Respondent has taken to
comply herewithp
It is further ordered that subparagraphs 9(a)(1) and ( 3) of the complaint herein
be, and they hereby are , dismissed.
I If this Recommended Order is adopted by the Board , this provision shall be modified
to read : "Notify the Regional Director for Region 7, in writing , within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT convey the impression of surveillance of union activities by
statements to employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
any of our employees in the exercise of their rights to self-organization , to form,
loin, or assist labor organizations , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any and all such activity.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of District 50, United Mine Workers of America or any other labor
organization.
MILLER INDUSTRIES , INCORPORATED,
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, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan , Telephone No. 226-3210,
if they have any question concerning this notice or compliance with its provisions.
Joseph Antell, Inc. and Retail Shoe Council of New England,
New England Joint Board , Retail Wholesale Department
Store Union , AFL-CIO. Case No. 1-CA-4685. May 25, 1965
DECISION AND ORDER
On March 223, 1965, Trial Examiner W. Edwin Youngblood issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof. The General Counsel filed
a brief in support of the Trial Examiner's Decision.
152 NLRB No. 95
JOSEPH ANTELL, INC. 819
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings,' con-
clusions,2 and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
alnended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
the Respondent, Joseph Antell, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
' In his chronological recital of the facts , the Trial Examiner inadvertently found that
Orr was discharged on April 20 , 1964 . The date should read April 25, 1964, and Is
hereby corrected.
2In finding that Respondent knew of Orr ' s union activities , Member Jenkins does not
rely on the fact that there was a small number of employees ( 11) in the store.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding arises upon the complaint of the General Counsel issued Septem-
ber 1 , 1964 ,1 upon a charge filed July 29 by Retail Shoe Council of New England,
New England Joint Board , Retail Wholesale Department Store Union , AFL-CIO,
herein called the Union . The complaint , as amended at the hearing , alleges in sub-
stance that Joseph Antell , Inc., herein called Respondent , violated Section 8(a) (1)
of the Act by threatening an employee with loss of employment unless he voted
against the Union , and interrogating an employee with regard to how he and other
employees would vote in the election , and violated Section 8 ( a)(3) of the Act by
discharging Dean Orr. Respondent 's answer to the complaint denies the commission
of any unfair labor practices.
All parties were represented at the hearing before Trial Examiner W. Edwin
Youngblood on October 22 in Boston, Massachusetts . Briefs have been received
from the General Counsel and the Respondent and have been duly considered.
Upon the entire record ,2 including my evaluation of the witnesses based upon the
evidence and by observation of their demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Massachusetts corporation , is engaged in the sale and distribution of
women 's shoes with its principal office and place of business at Zero Newbury Street,
Boston , Massachusetts . Respondent also operates stores at Peabody and Wellesley,
Massachusetts . During 1963 Respondent sold products valued in excess of $ 500,000
I Unless otherwise indicated , all dates herein are in 1964.
2 The name of the Trial Examiner is corrected wherever It appears in the transcript
to read as set forth above.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and received products valued in excess of $50,000 directly from outside the Common-
wealth of Massachusetts . Respondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
In the latter part of March a meeting of employees of Respondent's Boston store
was held in the Greyhound Bar. At this meeting, the employees, at the direction of
Shop Steward Joseph Fazzini, cast ballots as to whether they wanted a petition to be
filed withdrawing from the Union.3 The results of that poll were announced at
the meeting to be six in favor of withdrawing from the Union and four opposed to
this action.4 On March 26, a petition for decertification of the Union was filed by
Fazzini and notice of hearing issued on April 2, setting the date of hearing as
April 16.5
On April 16, Dean Orr went to the Boston store seeking employment.6 Orr was
introduced to Patrick Antell, manager of the Boston store, who called Joseph Antell,
president of Respondent, because, according to Patrick Antell, Joseph Antell did all
of the hiring. Orr told Joseph Antell that he was seeking employment and Antell
then interviewed Orr. Orr related his experience and was invited to Joseph Antell's
office on the second floor where he filled out an application blank and social security
card. A discussion of money then ensued during which Antell explained Respond-
ent's method of paying its employees. Antell also commented on the pay records of
several employees and said that he would be very happy if Orr could equal their
records. Orr had previously commented that his most recent employment was at
Filene's at the South Shore Plaza at Braintree. Antell asked how business was on
the South Shore Plaza and mentioned that he had put in a better grade of women's
shoe. Antell then told Orr that he thought that this would be a good spot for him as
manager of the store since he had quite a few personal contacts on the South Shore
and was familiar with the area. Antell then inquired of Orr if he could go over to
the store in Wellesley. Orr replied that he could not because of a transportation
problem adding that he could only work in Boston. Antell stated that could be
worked out by transferring another person from the Boston store to Wellesley. Then
Antell started to explain to Orr "how the boys in the shop were taking a vote and
they decided they didn't want union representation anymore." Orr said that he did
not care for the Union anyway so that it did not make any difference to him.7
Antell explained that the Union was not doing much for the men and that he had
a much better health and welfare plan that he could put into effect. Antell continued
by explaining the benefits to Orr and said that they would be better than the plan
that the Union had. Antell said that he thought the working conditions would be
much better if they could all work closely together as a family, and said that he would
then be able to do more things for the employees. Antell continued by saying that
they would not be "limited by all these rules and regulations" and that there would
be a "much nicer association." Orr and Antell then discussed generalities about the
business and Antell told Orr to report to work in the Boston store about 9 a.m.
Monday, April 20.8 Also during this conversation Antell told Orr that under the
3 The employees have been represented by the Union since 1945 and Respondent and
the Union have had contractual relationships since that time, the most recent contract
having an expiration date of June 1. (Respondent's Exhibit No. 1, General Counsel's
Exhibit No 2(c) )
4 The foregoing except where otherwise indicated is based on the credited testimony
of employee Earl G. Keel.
General Counsi9's Exhibits Nos 2(a) and (b).
Orr testified that this occurred on April 9. Orr asserted that the date April 20
on his employment application was an error Orr did admit, however, the possibility
that lie was in error. The parties stipulated that the correct date was April 16, and
I so find
4 The finding in this sentence is based on the credited testimony of Joseph Antell
8 Here again Orr was in error about dates testifying that he started to work on
April 13. The parties stipulated, however, that he started on April 20, and I so find.
JOSEPH ANTELL, INC. 821
contract with the Union he would be required to join the Union and that Respondent
had a checkoff.9
On Monday , April 20, Orr started to work at the Boston store. That same day
Matthew Antell , Respondent's treasurer and brother of Joseph , came into the store,
introduced himself to Orr, and told Orr how happy he was to have him with the firm,
that he looked like a good man, and that things should work out fine . On Wednesday
or Thursday, April 23, Orr inquired of Matthew Antell about ordering a particular
kind of shoe. Matthew Antell told Orr that he had the catalogue in his office and
that Orr could order anything he wanted from the catalogue and that he , Matthew
Antell, would be able to get them for him.10
On Thursday , April 23, employees of the Boston store held a union meeting at the
union hall. Fazzini was questioned by various employees about the decertification
petition which he had filed . Fazzini said that he felt that the employees could do
better without the Union and could get a better health and welfare plan from the
Company than from the Union. It seem that employee Earl G. Keel had engaged in
a violent argument that day with Patrick Antell. Orr told Keel that he would have
been fired after this argument if the employees had not had a union . On also asked
Fazzini for the reason he would throw away all the benefits employees had gotten.
Orr also told Fazzini that he "must have been approached somewhere along the line."
Orr also said to Fazzini that "you just don't take something you have in your hand
and throw it right out of the window for nothing at all." Fazzini did not reply to
Orr. Orr related his own experiences at working and said he thought it was much
better to be working in a union shop than in a nonunion shop. Orr continued by
saying he felt "that they would be out of their mind if they voted the union out, that
without a union they had no job protection whatsoever , and that he would seriously
recommend that they remain in the union ...." Other employees also spoke in favor
of the Union at the meeting. After the meeting Orr told Attorney Rich that he was
afraid that what he said might get back to the Company and he might be out of a job.11
The following Saturday , April 20, at 5 p.m., Orr was discharged by Matthew
Antell. Matthew Antell told Orr that business was "a little slow," that the other
salesmen some of whom had been with him for quite some time were not making
the money they should be making, and that with Orr on the selling floor their pay was
being cut . 12 Matthew Antell then indicated that he disliked letting Orr go because
he thought that On would be an asset to the store and said that if business picked
up they would be very happy to call him back. Orr inquired if business did pick up
and he was called back would it be on a permanent basis. Matthew Antell assured
him that if he came back it would be on a permanent basis and Orr was then
discharged.13
On May 1 the Regional Director issued a Decision and Direction of Election which
election was conducted on May 27.14 On Friday or Saturday preceding the election,
Keel had a telephone conversation with C. Ronald Bergman . '° Keel had worked
at the Peabody store under Bergman when first employed by Respondent . Bergman
told Keel during this conversation that "if an election was taken now, the vote would
be six to four" and that if Keel voted for the Union the vote would be five to five and
therefore he would be identified as the one who cast the five-to-five vote. Bergman
6 The foregoing is based on the credited testimony of Orr except where otherwise in-
dicated. Antell denied that he told Orr that he thought "it would be better working
closer together as a family without a union " Antell also denied that he Said anything
comparing the union health and welfare plan with the Company ' s health and welfare
plan or that he compared working conditions under union and nonunion conditions Orr's
testimony was given in a sincere and convincing manner On the other hand , I discredit
certain crucial testimony of Joseph Antell set forth herein Accordingly , where the
testimony of Orr conflicts with that of Antell , the testimony of Orr is credited In
making this credibility resolution , I have considered the errors in Orr 's testimony with
respect to dates and am persuaded that he was honestly mistaken as to when these events
took place.
10 The foregoing is based on the credited testimony of Orr
li The foregoing is based on a composite of the credited testimony of Orr and Rich-
22 Salesmen ' s pay depended in part on commissions which were based on sales
13 The foregoing is based on the credited testimony of Orr.
'4Geneial Counsel's Exhibits Nos 2(c) and (d).
15 Bergman is manager of Respondent ' s Peabody store There is no issue as to his
status as an agent of Respondent, and I find that Respondent is responsible for his con-
duct as set forth herein.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also told Keel that with the Union in the store he was second from the bottom in
seniority and that if he voted the Union out he would be much higher senioritywise.ia
On May 25 Keel and Bergman had another conversation during which Bergman again
told Keel that if he voted for the Union the vote would be five to five and would
identify him as the tying vote.17 Keel said that he might not be the only one "that
might vote against or for the Union." Bergman asked him who he thought were the
ones who would vote for the Union. Bergman also told Keel that if he valued his job
he would vote against the Union. Keel said that he would vote the right way and that
ended the conversation.18
We turn now to the evidence offered by Respondent in support of its decision to
terminate Orr. Matthew Antell testified that he was at the Board hearing on the
decertification petition on April 16 when Orr was hired. He testified further that he
did not know that Orr had been hired until the following Monday, April 20, when he
saw Orr at work. Matthew Antell then talked with his brother Joseph and questioned
the hiring of Orr on the ground that his employment overstaffed Respondent based
upon sales. About 3 weeks prior to Orr's employment, an employee named Ross,
who was then employed at the Peabody store, advised the Antells that he was going
to terminate his employment in 3 weeks. On or about April 4 an individual named
Jeffrey Stone was hired by Joseph Antell for the purpose of taking Ross' place. Stone
was assigned to the Boston store for training purposes. Stone's home was near Pea-
body and he was anxious to get to Peabody so Stone asked Joseph Antell after about
2 weeks of training if he could go to the Peabody store. Joseph Antell agreed to this
and it was decided to bring Ross back to Boston for the "final week." Matthew
Antell asked Joseph Antell why he hired Orr and Joseph Antell replied that he was
hired to replace Stone. Matthew Antell testified that Joseph Antell did not realize
at the time that Stone was an extra man on the selling floor and thought that with
Stone leaving the Boston store and Ross leaving Respondent's employ after a week
he would need another salesman When Orr applied for a job, he impressed Joseph
Antell with his appearance and ability so Joseph Antell hired him.19 Matthew Antell
testified further that Joseph Antell asked about Orr's managerial ability during this
conversation. Matthew Antell testified also that when he found out about Orr's
employment on Monday he reminded Joseph Antell that Stone was just a trainee,
that this would make 11 men on the floor, and that they did not need 11 men. Mat-
thew Antell testified further that the normal employment level was 10 salesmen at
the Boston store and that 11 men made the payroll too high. Joseph Antell then told
Matthew that since he had just hired Orr he wanted to let Orr work a week and they
could let him go on Saturday. Matthew Antell testified that Orr was then discharged
on Saturday. On Saturday Matthew Antell told Orr that he was being discharged
not because he was not capable but because Respondent was overstaffed. Matthew
Antell said that if business did not increase the salaries of other salesmen would
decrease due to the percentage arrangement under which employees were paid
Matthew Antell further testified that Respondent tried to maintain a payroll ratio
of 10.5 percent meaning that salaries should not exceed 10.5 percent of sales. Pay-
roll ratio is figured by dividing salaries by sales. For the quarter just prior to Orr's
employment the payroll ratio was 11.9 percent. With the addition of Orr, 1 percent
would be added so the ratio would go to 12.9 percent. Further Matthew Antell
denied that Orr was discharged because of his union activity. Matthew Antell also
18 The General Counsel did not offer this testimony as evidence of an Independent viola-
tion of Section 8(a) (1) but as background for the second conversation between Keel
and Bergman.
17 It is not without significance to note from the Supplemental Decision of the Regional
Director (General Counsel's Exhibit No. 2(d)) that the vote in the election of May 27
was five for and five against the Union. Bergman's appraisal of the situation appears
to have been correct.
18 The foregoing is based on the credited testimony of Keel Bergman denied having
the first conversation with Keel at least "not exactly" as his attorney described the
conversation In his question Bergman stated that the only conversations he ever had
with Keel or anyone else were about shoes "outside of possible curiosity of what was
going on with the forthcoming election." Bergman flatly denied having any conversa-
tion of the sort related by Keel as having occurred on May 25. Yet this conversation
was similar to the first conversation to which Bergman gave an equivocal denial Keel,
who is still employed by Respondent, impressed me as a sincere and candid witness who
was being very careful in his testimony to give truthful answers I was not similarly im-
pressed with Bergman's denials. Accordingly, I have credited Keel
19 Joseph Antell testified that he heard Matthew Antell's testimony about their con-
versation on Monday and that it was correct
JOSEPH ANTELL, INC. 823
testified that he never talked with Orr about the Union and denied that Bergman
reported to him any conversation about union matters with employees . Matthew
Antell also testified that Respondent sent no letters or bulletins to employees before
the election and did not only orally urge employees to vote against the Union.
In addition to the testimony of Joseph Antell previously referred to, Joseph Antell
also testified that when he talked with Matthew Antell on April 20 he said that with
Stone going to Peabody they would be short of men. Matthew Antell then said that
they would not be short of men because Stone was hired to go to Peabody . Joseph
Antell testified that he had forgotten that and thought that with Stone leaving they
would be one man short so he hired Orr. On cross -examination , however, Joseph
Antell testified that he definitely recalled telling Stone at the time he hired him that
Stone would be going to the Peabody store. Joseph Antell admitted on cross-exami-
nation that he was aware that 10.5 percent was the desirable payroll ratio. Joseph
Antell, however , stated that he was not a "figure man." Joseph Antell testified that
no additional salesman had been hired since Orr's employment . Joseph Antell denied
receiving any reports from Bergman about union activities or that he had any knowl-
edge of any conversations Bergman may have had with salesmen about union matters.
Joseph Antell also denied that he had any knowledge that Orr was in any union
activity and testified that he was discharged because Respondent had one too many
salesmen . Joseph Antell also testified that he did not care whether the Union stayed
in the store or not.
On May 27 the election was held. Orr's name was not on the eligibility list and
he did not appear at the voting place. Nor was Orr's name on the eligibility list for
the second election which was held on August 24 . However he did appear at the
voting place and voted a challenged ballot.20
B. Analysis and conclusions
From the foregoing facts it is clear that this case presents a situation where an
employee , who was considered by the president of the Company to be highly quali-
fied, started work on Monday , spoke out for the Union on Thursday , and was fired
on Saturday . Furthermore the employee received absolutely no warning of impend-
ing discharge until Saturday . Rather he was told by Company Official Matthew
Antell on Wednesday or Thursday to feel free to order whatever merchandise he
wanted from the catalogue and Matthew Antell would see that he got it. Yet Matthew
Antell testified that it was decided on Monday to fire Orr the next Saturday.
In its brief , Respondent contends that there is no evidence that it knew of Orr's
union activities or that it was opposed to the Union . Respondent 's interest and knowl-
edge of the union activities of its employees is shown by Joseph Antell's statement in
the employment interview with Orr on April 16 about the employees taking a vote
and their decision that they did not want union representation any more. Respond-
ent's opposition to the Union is shown by Joseph Antell's statements to Orr on
April 16 pointing out how much better off the employees would be without a union.
Respondent 's continuing opposition to the union activities of its employees is shown
by the efforts of Manager Bergman to find out which employees were going to vote
for the Union and his threat of discharge to Keel if he voted for the Union . Respond-
ent's continuing interest and knowledge of its employees ' union activities is shown by
Bergman's statement to Keel that the employees were divided six against and four
for the Union , and that if he voted for the Union it would be five to five . The accu-
racy of this estimate is shown by the actual vote in the May 27 election of five to five.
It is clear from what Joseph Antell told Orr on April 16 that Joseph Antell hired
Orr for the Boston store intending to transfer another Boston store employee to the
Wellesley store and keep Orr in the Boston store since Orr stated that he could not
work in the Wellesley store. It is also clear that Orr informed Joseph Antell when
he was interviewed that he did not care for the Union . Why then did Respondent
discharge Orr a few short days after he started work. Was it for the reason stated
by both Matthew and Joseph Antell that Joseph Antell forgot that Stone was an
extra employee and hired Orr to replace Stone who was leaving the Boston store
thereby overstaffing this store To accept this explanation is to believe that Joseph
Antell who personally hired Stone less than 2 weeks before to replace Ross at the
Peabody store had forgotten that fact . In addition , if Joseph Antell thought that
Stone was a regular employee he must have known that Stone should not be replaced
since his departure would bring the employee complement down to 10 which was, as
Joseph Antell testified , the normal complement.
2° The findings in this paragraph are based on a stipulation of the parties.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not believe that Joseph Antell not only forgot that he had hired Stone for the
Peabody store, but also forgot that the normal complement of the Boston store was
10 employees. Under all the circumstances, I cannot accept the explanation for
Orr's discharge advanced by Matthew and Joseph Antell and reject it as clearly pre-
textual. In these circumstances, I cannot attach the significance Respondent desires
to the absence of evidence that Respondent campaigned against the Union prior to
the election or to its long history of a good contractual relationship with the Union.
In view of the small number of employees in the store, and all the foregoing circum-
stances, I believe and find that the explanation for this discharge is that Joseph Antell
hired Orr thinking that he was opposed to the Union, found out later that Orr had
spoken strongly in favor of the Union, and knowing how closely divided his employ-
ees were regarding the Union and that an election was probably imminent, and being
desirous of getting rid of the Union, decided to discharge Orr. Accordingly, I find
that Respondent by discharging Orr because of his union activities did thereby dis-
criminate against an employee in order to discourage his union activities in violation
of Section 8(a) (3) and (1) of the Act. I further find that Respondent violated Sec-
tion 8(a)(1) of the Act by Bergman's interrogation of Keel as to which employees
would vote for the Union, and by his threat to discharge Keel if he voted for the
Union.
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 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 Respondent has engaged in unfair labor practices in violation
of Section 8(a)(1) and (3) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act
Having found that the Respondent discriminatorily discharged Dean Orr, I recom-
mend that he be offered reinstatement and made whole for any loss of pay resulting
from his discharge to the date on which he is offered reinstatement, less his net earn-
ings during that period. Such backpay shall be computed on a quarterly basis in the
manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and
shall include interest at 6 percent per annum as provided by the Board in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall,
therefore, recommend that Respondent be ordered to cease and desist from in any
other manner infringing upon rights guaranteed to its employees by Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Shoe Council of New England, New England Joint Board, Retail Whole-
sale Department Store Union, AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
3. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a) (3) and
(1) and 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 this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that Respondent, Joseph Antell, Inc.. its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees as to which employees would vote for the Union
in Board elections, and threatening its employees with discharge if they vote for the
Union.
JOSEPH ANTELL, INC. 825
(b) Discouraging membership in and activities on behalf of-Retail Shoe Council
of New England, New England Joint Board, Retail Wholesale Department Store
Union, AFL-CIO, or any other labor organization of its employees, by discharging
any employee or in any other manner discriminating in regard to hire or tenure
of employment, or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act.
(a) Offer to Dean Orr immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay he may have suffered as a result
of the discrimination against him, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify Dean Orr if he is serving in the Armed Forces of the United States
of his right to full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to ascertain
any backpay due under the terms of this Recommended Order.
(d) Post in the Joseph Antell, Inc., store at Boston, Massachusetts, copies of the
attached notice marked "Appendix." 21 Copies of said notice, to be furnished by the
Regional Director for Region 1, shall, after being duly signed by a representative of
Respondent, be posted by Respondent immediately upon receipt thereof and be main-
tained by it 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 Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondent has taken to comply
therewith.22
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be en-
forced 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 "
"'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 Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees as to which employees would vote
for the Union in Board elections , or threaten our employees with discharge if
they vote for the Union.
WE WILL NOT discourage membership in or activities on behalf of Retail
Shoe Council of New England, New England Joint Board, Retail Wholesale
Department Store Union, AFL-CIO, or any other labor organization, by dis-
charging any of our employees or in any other manner discriminating against
our employees in regard to their hire or tenure of employment or any term or
condition of employment , except to the extent permitted by the proviso to Sec-
tion 8 ( a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights under Section 7 of the Act.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Dean Orr immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay suffered as a
result of the discrimination against him.
All our employees are free to become and remain , or to refrain from becoming
or remaining , members of the above -named Union or any other union , except to the
extent that this right may be affected by an agreement in conformity with Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
JOSEPH ANTELL, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office , Boston
Five Cents Savings Bank Building, 24 School Street , Boston , Massachusetts, Tele-
phone No . 523-8100, if they have any question concerning this notice or compliance
with its provisions.
Marbro Food Service , Inc., d/b/a Fab's Famous Foods Company
and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No . 537. Case
No. 27-CA-166. May 25,1965
DECISION AND ORDER
On March 11, 1965, Trial Examiner Herman Marx issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. With respect to certain other unfair labor practice allegations,
the Trial Examiner recommended they be dismissed. Thereafter,
counsel for the General Counsel and the Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and adopts the findings, conclusions, and recommendations
of the Trial Examiner.
152 NLRB No. 97.