Mr. D's No. 2, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1964

145 N.L.R.B. 1227 (N.L.R.B. 1964)

MR. D'S NO. 2 , INC. 1227
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
SAFEWAY STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NoTE.-We will notify such employees presently serving in the Armed Forces
of the United States of their right to 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.
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 Resident Office, 230
North First Avenue, 3421 Federal Building , Phoenix, Arizona, Telephone No.
261-3717, if they have any question concerning this notice or compliance with its
provisions.
Mr. D's No. 2, Inc. and Teamsters Union Local 795, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Meat Cutters Union
Local 340, affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO. Cases Nos.
17-CA-2127 and 17-CA-2128. January 27, 1964
DECISION AND ORDER
On August 22, 1963, Trial Examiner James V. Constantine issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in a certain unfair labor practice, and
had not engaged in certain other unfair labor practices. He con-
sidered that the unfair labor practice found was an isolated incident
for which no remedial order was required, and therefore recommended
dismissal of the complaint, as set forth in the attached Intermediate
Report. Thereafter, the General Counsel filed exceptions to the In-
termediate Report and a supporting brief. The Respondent filed a
reply brief in support of the Trial Examiner's recommendations.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
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 hereby1'affirmed: The 'Board has considered the-
Intermedi-ate Report, the exceptions and briefs, and the entire record in these
,cases, and hereby adopts only those findings, conclusions , and recom-
mendations which are consistent with this Decision and Order.
The facts as to the Charging Unions' campaign to organize Respond-
ent's employees and to obtain recognition as their representative are
145 NLRB No. 121.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set out here, as the Trial Examiner in our view has not treated them
with sufficient particularity in coming to his conclusion that the com-
plaint should be dismissed. On February 13, 1963, or a few days
earlier, a meeting of Respondent's employees was held as the start of a
union organizing campaign. On February 14, the Meatcutters sent
Respondent a telegram in which it demanded recognition for some of
the employees. The demand was rejected on February 19. On Febru-
ary 25, the Teamsters sent a telegram to the Respondent in which it
claimed to represent a majority of the employees, requested recogni-
tion and the holding of a meeting within 24 hours, and offered to
exhibit at the meeting written proof of representation. This demand
too was rejected the next day. Picketing of Respondent's premises
then began on February 26. On March 6, the Charging Unions filed a
joint petition for representation, which was dismissed by the Regional
Director on May 21, because the unit sought was inappropriate.
The Trial Examiner correctly found that Respondent violated Sec-
tion 8(a) (1) in the interrogation by President Denniston of employee
Moeder on February 14, 1963. Heheld this to be an isolated instance
of unlawful activity, however, for which no remedial order was neces-
sary, and accordingly dismissed the complaint. We are unable to
concur with that holding, for the record discloses that Respondent also
made a number of threats of reprisal which we, contrary to the Trial
Examiner, are persuaded were unlawfully coercive within the mean-
ing of Section 8 (a) (1).
Thus, as appears from the factual recital in the Intermediate Report,
Denniston said to Moeder, while interrogating him about union ac-
tivity on February 14, that he would just as soon lock his doors before
he would let the Union force its way in. About the same time, Den-
niston, in the course of a conversation with employee McLaughlin in
which he expressed his strong opposition to unions, told McLaughlin
that he would close his doors before he would deal with a labor or-
ganization. The foregoing threats were made before the Union's
picketing activities began. Thereafter, on February 26, Denniston
told employee Day that he would shut down his store before he would
sign a contract with a minority union. Denniston's obvious reference
was to the Teamsters Union which on the previous day had made its
bargaining demand. Denniston characterized it as a "minority
union" even though he had no actual knowledge of that fact and had
declined to avail himself of the Teamsters' offer to present written
proof of its claimed majority status. Finally, on March 8, 2 days
after the Unions had filed their joint petition for a representation elec-
tion, Denniston at a meeting with employees at his office told the em-
ployees that he would close his doors before he would let the Unions
force their way in; and at a subsequent point at the same Meeting he
stated that even if the Unions did force their way in, they could do
MR. D'S NO. 2, INC. 1229
nothing for the employees because he would close up and return to
farming.
The Trial Examiner held that the foregoing threats were not vio-
lative of Section S (a) (1) because they were made in a setting in
which the Unions were pressing for immediate recognition without
having first demonstrated their right to recognition through a Board-
conducted election. In the view of the Trial Examiner, the Respond-
ent had a lawful right in these circumstances to question the Unions'
majority status, and he further reasoned that since the Respondent
would itself have engaged in an unfair labor practice by recognizing a
minority union, Respondent was entirely justified in closing its store.
or in threatening to do so, rather than be forced to submit to the
Union's demand in advance of a Board certification.
In the total factual context of this case, we cannot accept the Trial
Examiners' appraisal of the threats in question. To begin with, as
the Trial Examiner's own recital reveals, the record evidence leaves
little doubt that the Respondent's primary interest was not to protect
itself against a statutory violation, or to safeguard employee rights,
but to combat the Unions' efforts to attain recognition. Had the Re-
spondent's real concern been to avoid a statutory violation, it could
have protected itself against that risk by first examining the union
proffer of written proof of its claimed majority, but this it chose not
to do. That the Respondent's more basic interest was to resist union-
ization of its store is unmistakably shown by its accompanying expres-
sions of opposition and hostility to union organization, as reflected
by the findings in the Intermediate Report. In assessing the true
purpose and impact of the threats, we, no less than the employees who
were subjected to them, cannot ignore the background against which
they were made. We are satisfied in the context of the other events
that the threats in question were both intended and reasonably cal-
culated to impress upon employees that the Respondent was deter-
mined not to deal with the Unions; that it was prepared to go out of
business rather than do so; and that employee support of the Unions
could lead only to loss of their jobs.
Other considerations buttress our view that the threats were de-
signed to have a broader range than simply to inform the employees
that the Respondent would not succumb to pressure tactics designed
to force it into unlawful recognition of the Unions. We note par-
ticularly that, save in one instance, Respondent did not explicitly con-
-dition the threat on that contingency. Certainly the threats made to
employees Moeder and McLaughlin on or about February 14 cannot
reasonably be construed as so limited. At the time they were made,
Respondent was under no specific pressure to recognize the Unions;
the 24-hour bargaining ultimatum had not yet been given, and no
picketing had yet begun or been threatened. Nor do we think, for ex-
1230 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
ample, that Denniston's statement to employees at the meeting of
March 8-that the Union, even if it forced its way in, could do nothing
for employees because he would then close up and return to farming-
was couched in language sufficiently clear to make known to employees
the limited scope which Respondent would now attribute to it.
We regard it as significant also that as of the times the threats to
cease operations were made, the Respondent could not have known
whether the Unions were or were not correct in claiming representa-
tive status in an appropriate unit. At any rate, even if Respondent
had had valid reason to believe that the Unions did not command
majority status in an appropriate unit, this did not privilege it to en-
gage in restraint and coercion aimed at reducing employee support of
the Unions' organizational and recognitional efforts. The Act; pro-
tects a minority union from unlawful employer interference with its.
efforts to gain majority adherence, no less than it guards against em-
ployer attempts to dissipate the majority status a union may have
already attained.
For the reasons stated above, and on the record as a whole, we
conclude and find that by its foregoing threats to cease operations, as
well as by its interrogation of employee Moeder, adverted to above,
Respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed by Section 7 of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth above have a close, in-
timate, and substantial relationship 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.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing and the entire record in this case,
we accept the Trial Exai iiner's conclusions of law Nos. 1 and 2,
reject his remaining conclusions, and adopt the following additional:
CONCLUSIONS OF LAW
3. By interrogating Rudy Moeder as to his and other em-
ployees' union desires, activities, and sympathies, by requesting
him to point out anyone who contacted him about a union on the
store premises, and by threatening to cease operations if the-
MR. D'S NO. 2, INC. 1231
Unions continued their attempts to organize the employees or to
gain recognition, respondent has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed them
in Section 7 of the Act, in violation of Section 8(a) (1) thereof.
4. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Mr. D's No. 2,
Inc., Wichita, Kansas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Interrogating employees about union desires, activities, or
sympathies in a manner constituting interference, restraint, or coer-
cion in violation of Section 8(a) (1) of the Act.
(b) Requesting employees to point out to Respondent anyone con-
tacting them about a union on store premises.
(c) Threatening employees that it will cease operations if the
Unions continue their attempts to organize them or to gain recogni-
tion from the Respondent.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist any labor organiza-
tion, 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, to to re-
frain from engaging in such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its places of business in Wichita, Kansas, copies of the
attached notice marked "Appendix." 1 Copies of said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by said Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
1232 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Seventeenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, you are notified that :
WE WILL NOT interrogate our employees about their union de-
sires, activities, or sympathies in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) of
the Act.
WE WILL NOT request employees to point out anyone contacting
them about a union on store premises.
WE WILL NOT threaten our employees that we will cease opera-
tions if the Unions continue their attempts to organize our em-
ployees or to gain recognition from us.
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
any labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in such
activities.
MR. D's No. 2, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Mis-
souri, Telephone No. Baltimore 1-7000, Extension 731, if they have
any question concerning this notice or any compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge was filed in Case No. 17-CA-2127 by Teamsters Union Local 795,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, on March 5, and amended on April 9, 1963. A separate charge was
MR. D'S NO. 2, INC. 1233
filed in Case No. 21-CA-2128 by Meat Cutters Union Local 340, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, on March
5, 1963. Upon these charges and the amended charge, the General Counsel of the
National Labor Relations Board, by the Regional Director for the Seventeenth
Region (Kansas City, Missouri), issued his consolidated complaint dated April
19, 1963, against Mr. D's No. 2, Inc.,' Respondent herein. Said complaint, as
amended at the hearing, in substance alleges that Respondent has engaged in and is
engaging in unfair labor practices as defined in Section 8(a)(1), and affecting com-
merce as defined in Section 2(6) and (7), of the National Labor Relations Act.
Respondent has answered admitting some facts but putting in issue the commission
of any unfair labor practices.
Pursuant to due notice a hearing was held before Trial Examiner James V. Con-
stantine on May 23, 1963, at Wichita, Kansas. All parties were represented at and
participated in the hearing, and had full opportunity to introduce evidence, examine
and cross-examine witnesses, submit briefs, and offer oral argument. Respondent
argued orally and has submitted a brief. A brief has also been received from the
General Counsel.
Upon the entire record in this case, including the stipulations of the parties, and
from my observation of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Kansas corporation engaged at Wichita, Kansas, in the business
of operating three supermarkets, annually sells merchandise, goods, and materials
valued in excess of $500,000, of which more than $50,000 worth are received
directly or indirectly from points outside the State of Kansas. I find that Respondent
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act,
and that it will effectuate the purposes of the Act to assert jurisdiction over this pro-
ceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
Teamsters Union Local 795, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , the Charging Party in Case No . 17-CA-
2127, and Meat Cutters Union Local 340, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, the Charging Party in Case No . 17-CA-
2128, are labor organizations as defined by Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Many of the factual issues were controverted and ably contested. Where dispute
exists, it has been resolved in accordance with my evaluation of the credibility of
the witnesses and reasonable inferences drawn from the evidence. In determining
credibility I have credited some witnesses in part and rejected in part testimony of
the same witnesses, regardless of which party called them; but in general I have not
narrated evidence in connection with the appraisal of the credibility of any witnesses.
Trumbull Asphalt Co. v. N.L.R.B., 314 F. 2d 382, 383 (C.A. 7). All evidence
has been considered, and none has been disregarded, in arriving at the ensuing
findings of fact and conclusions of law.
Respondent's president and a principal stockholder is Lowell Denniston, who I
find is a supervisor and agent of Respondent under Section 2 of the Act. About
February 13,2 employee Moeder was called to Denniston's office where Moeder
was asked, in the presence of Denniston, Manager Larry Lamborn, Assistant Manager
Calvin Hardy, and Private Detective and Security Officer Bill Warfield, whether he
was purloining merchandise from the store. After some discussion of the matter,
Moeder left.
About 7 p.m. on February 14, Denniston again spoke in his office to employee
Rudy Moeder, a courtesy boy at West Central. (The chief function of a courtesy
boy is to fill and carry a purchaser's bundles from the cash counter to the customer's
car.) Also present was Larry Lamborn, the manager of the supermarket at 3110
West Central, herein called West Central. In addition Calvin Hardy, assistant man-
ager of this supermarket, and Bill Warfield, a private detective and Respondent's
security officer, complete the list of persons present.
1 Respondent's name as amended at the hearing
2 All dates mentioned herein refer to 1963 except when specifically noted otherwise.
734-070-64-vol 145-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commenting that a union was seeking to organize Respondent 's employees, Den-
niston asked Moeder if anyone had contacted him about a union and, if anyone
should do so on the store premises, to give the name of such person and "point him
out" to Denniston . Continuing, Denmston told Moeder that a union in a grocery
store "wasn 't exactly like the unions in other businesses " and that if a union
"came in" it would "change the relationship between the employer and the employee
and the employee and the customer ." When Moeder replied that he thought it
was a "good thing to have the union in," Denniston gave as his opinion that "the
union just wasn 't what it should be in the grocery store" ; and said that he would
just as soon lock up his doors before he would let the Union force its way in, that
he did not want the Union forcing its way in any of his stores, and that the Union
was voted out in a previous attempt to represent Respondent 's employees.
At this meeting Denniston again asked Moeder if he had been taking merchandise
from the store without paying for it because Respondent had discovered "people
taking things" and had obtained "signed confessions" from some employees, one of
whom was discharged . Detective Warfield likewise questioned Moeder about taking
articles from the store . After some discussion , Moeder signed a statement confess-
ing he took articles unlawfully . This was 12 days before picketing began at the store.
About the same time of February Denniston spoke to employee lack McLaughlin,
a meatcutter , in Denniston 's office. Manager Lamborn also attended part of the
time. McLaughlin said that he and the employees could make more wages with a
union in the store and the employees consequently would put out more work if it was
a union market . In his reply Denniston said that he did not believe in a union, told
McLaughlin that he "won't join the Union " because he lost $28,000 the previous
year, that he could sell out for a half million dollars, that he was 51 years old , that he
did not have to join any labor organization, that he did not want a labor organization
telling him how to run his stores , and that "before he would join a labor organiza-
tion he would turn the key in the door."
On February 26, picketing by unions of Respondent 's West Central store was
initiated following a demand on February 25 for recognition . About a half hour
later, Denniston called employee Benita Day, a checker , to his office . Bookkeeper
Ruth Harris was also in the room engaged in performing her regular duties.
Denniston first asked Day if she had noticed the pickets in front of the store and,
upon receiving a negative answer , told her that such was the fact. Continuing, Den-
niston assured Day that: "I don't want to know what your opinion is, or what you
think, or what you think about this, but they are trying to force their way into the
store and on you employees , and I am not going to have it"; he had fought through
another election or two and he was "not afraid of this"; the checkers should tell
those customers who inquired that the pickets were trying to force their way into
the store and on the employees ; and he would close the door before being forced
to sign a contract with a minority union.
During the day of February 26, Denniston called the other checkers to his office,
one or two at a time. He told them that if customers asked why the store was being
picketed to explain to the customers Denniston 's understanding of why pickets were
present . Then he told the checkers that "these people were stranger pickets," that
Respondent's employees were not on strike and that "none of our people were out."
At no time did he convey to the checkers the thought that he would close down the
store because of the presence of the pickets.
About March 8 Respondent called the employees of the West Central Super-
market to an assembly in the office. Its purpose was to give Denniston 's side of
the story concerning two union telegrams giving him a 24-hour ultimatum to
negotiate with them. Denniston and Respondent 's counsel , Leonard F. Banowetz,
and "all the store members" of management were present . Denniston told the
employees that : an employer had certain rights and he wanted to give his side of the
story that he "didn 't specially want the union in"; the Union was not going to force
its way into any of his stores ; he wanted the employees to have a right to vote on it;
and he wanted the employees to have a right to a secret NLRB election before he
signed a contract with any union . Expanding upon the subject of unions , Denniston
remarked that whatever gain in wages a union could achieve would be lost in "dues
and fees, and fines and everything that were hidden charges." At this point employee
Jack McLaughlin started to tell the employees what a union could do, but Dennis-
ton met this argument 3 by saying that a union could not do anything unless the
employer agreed . When Denmston added that he would not allow the Union to
force its way into his stores and that he would just as soon close up his doors before
3 This argument between McLaughlin and Denniston lasted a short while and at times
became heated if not vitriolic.
MR. D'S NO. 2, INC. 1235
the Union forced its way in, Counsel Banowetz interrupted him by saying that
Denniston "was in the wrong when he said he would close his doors if the Union
came in." 4 Then employee McLaughlin and Denniston started to debate the pros
and cons of unionism , Denniston saying during the course of the argument that
even if the Union forced its way in it could not do anything more for the employees
because he would close up and return to farming.
Banowetz also spoke at this assembly . Since his speech is not contended to be a
violation of the Act, it is not necessary to reproduce it here . In any event, I find
that he did no more than to state the law correctly to the employees. Perkins Ma-
chine Company, 141 NLRB 697.
Concluding Findings
1. As to interrogation
President Denniston 's interrogation of employee Moeder is not shown to have
been nrompted by any lawful purpose or by an investigation lawfully sanctioned
^3i..er to ascertain the extent of union representation . In fact Denniston testified
tnat he was not aware of the advent of the unions at the time. It follows, and
I sod, that such interrogation is coercive and is not protected by Section 8(c) of
th, '\ct . Blue Flash Express , Inc., 109 NLRB 591 , is not applicable . However,
dnd that the sole purpose of calling in Moeder was to uncover pilfering by em-
ploy-es that such pilfering had occurred , and that Moeder confessed at this
:nierview Ciat he had misappropriated merchandise.
In view ; tf the foregoing , and the additional facts, hereinafter found, that this
interrogation was isolated and that no other unfair labor practices have been estab-
lished , I finu that no remedial relief is demanded in order to accomplish statutory
objectives. Hence I shall not recommend a cease-and -desist order affecting this
branch of the case.
2. As to threats to close down
Without repeating here subsidiary findings set forth above , I find on those findings
and the entire record that President Denniston threatened to close Respondent's
supermarkets rather than be forced to bargain with unions which not only, in his
opinion, unreasonably gave him but 24 hours to recognize them, but also which he
considered to be not entitled to such recognition until they demonstrated their
majority in a Board election. I find that he lawfully doubted their majority. I
further find that Denniston did not at any time threaten to close his doors before
he would recognize a union, as the General Counsel contends.5
The question then is whether an employer violates Section 8 ( a) (1) by informing
his employees that he will close his doors rather than be forced to recognize or
sign a contract with a minority union. It is my opinon , and I find, that such a
statement, especially in a setting where picketing was instituted within a day following
a bald telegraphic demand for recognition, is not coercive . Since an employer may
not lawfully recognize a minority union, and a minority union may not legally
execute a collective-bargaining contract as exclusive representative (I.L.G.W.U. v.
N L.R.B., 336 U.S. 731), he may threaten to cease operations rather than succumb
to an illegal demand for recognition.
Accordingly , I find that Denniston 's several threats to close the doors rather than
be forced to negotiate with unions which had not established their majority in a
Board election are not condemned by Section 8(a)(1). A different result is not
compelled because these threats were accompanied by statements that Denniston
was opposed to unions ; it is not an unfair labor practice to dislike unions or to say so.
Upon the basis of the foregoing findings of fact and the entire record , I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
s I find that Banowetz misconstrued Denniston 's remark, and I further find that Dennis-
ton actually said he would close his doors before being forced to sign a contract with a
minority union.
5 The fact that Respondent ' s Counsel Banowetz reprimanded Denniston for uttering cer-
tain remarks at the assembly of employees on March 8 does not destroy this conclusion.
The legal interpretation of 'facts by a litigant 's counsel is not binding on me; nor is such
an interpretation an admission under the rules of evidence.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 795 and Local 340 are labor organizations within the meaning of Section
2(5) of the Act.
3. By interrogating employee Moeder as to his and other employees' union desires,
activities , and sympathics, Respondent committed an unfair labor practice con-
demned by Section 3(a)(1) of the Act.
4. Said unfair labor practice is an isolated instance.
5. Respondent has not engaged in any other unfair labor practice as alleged in the
complaint.
6. A cease-and-desist order is not required to remedy the above single unfair labor
practice, and such order is not necessary to effectuate the policies of the Act.
RECOMMENDATION
Upon the basis of the above findings of fact, conclusions of law, and the entire
record, it is recommended that the complaint be dismissed.
Rohlik, Inc. and Local Union 267 , Allied Industrial Workers of
America, AFL-CIO. Case No. 7-CA-409.1,P. January 27, 1964
DECISION AND ORDER
On July 16,1963, Trial Examiner Fannie M. Boyls issued her Inter-
mediate Report in the above-entitled proceeding, finding that Respond-
ent had not engaged in certain unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel filed exceptions to the Intermediate Report to-
gether with a statement in support of the exceptions. The Respond-
ent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, statement, and brief, and the entire rec-
ord in the case, and hereby adopts only those findings, conclusions,
and recommendations of the Trial Examiner consistent with this
Decision and Order.
The facts of the case are not in dispute, and are fully set forth in the
Intermediate Report. We restate here only those facts necessary to
support our decision.
Prior to 1958, Sigmund Rohlik had owned 1 and operated a corporate
business engaged in the manufacture and sale of radio and camera
cases, and related items. In that year, Rohlik sold the business to the
Prince Gardner Company, which continued to operate the business
under the name of Rohlik, Incorporated, and retained Rohlik to man-
age the business until his retirement in January 1962.
About the time of Rohlik's retirement, the Union, Local 267, Allied
Industrial Workers of America, AFL-CIO, launched an organiza-
1 Rohlik and his wife owned 100 percent of the stock.
145 NLRB No. 120.