Salem Paint, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1981

257 N.L.R.B. 336 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Salem Paint, Inc. and United Food and Commercial
Workers Union, Local 464A, a/w United Food
and Commercial Workers International Union,
AFL-CIO. Case 22-CA-9681
July 29, 1981
DECISION AND ORDER
On March 13, 1981, Administrative Law Judge
D. Barry Morris issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief to Respondent's
exceptions and a cross-exception and supporting
brief.
The Board has considered the record and the at-
tached Decision' in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Salem Paint,
Inc., Hackensack, New Jersey, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
'In the last paragraph of sec. III,B,2, of the attached Decision, there is
an erroneous reference to a "January 24" meeting; the meeting in ques-
tion there took place on December 24. Also, in the second paragraph of
sec. III,C.4, the Administrative Law Judge erroneously found that Re-
spondent's election observer/personnel clerk Sylvia Niarhos "testified"
that employee Robert McWilliams was "fired"; the record established
that McWilliams credibly testified that Niarhos stated at the election that
he had been "fired." These errors have in no way affected the results we
reach in this case.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I Member Jenkins regards reliance on Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1980), as inappropriate here since the Admin-
istrative Law Judge rejected as specious Respondent's asserted reasons
for the discharges of Corey and McWilliams and thus no lawful reason
exists for the discharges. The Wright Line analysis is useful and applicable
only where there are both lawful and unlawful genuine reasons for a dis-
charge. Also, Member Jenkins notes that he would award interest on any
backpay owed on the basis of his position as set out in Olympic Medical
Corporation, 250 NLRB 146 (1980).
257 NLRB No. 50
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT promise benefits to employ-
ees on condition they do not engage in union
activities.
WE WILL NOT discriminatorily discharge
employees for activities protected by Section 7
of the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer Craig Corey full and imme-
diate reinstatement to his former position or, if
such position no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights and privileges previ-
ously enjoyed.
WE WILL make whole Craig Corey and
Robert McWilliams for any loss of earnings
they may have suffered by reason of their dis-
charges, plus interest.
SALEM PAINT, INC.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge: This
case was heard at Newark, New Jersey, on October 20
and 21, 1980. The charge was filed on January 2, 1980,1
and a complaint was issued on March 31, 1980, and
amended October 20, 1980, alleging that Salem Paint,
Inc., violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (the Act). Respondent
filed an answer denying the commission of the alleged
unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the
General Counsel and Respondent.
Upon the entire record of the case,2 including my ob-
servation of the witnesses, I make the following:
Amended charges were filed on Janualy 25 and February 1, 1980, but
were subsequently withdrawn.
The General Counsel's motion to correct the record is granted. Re-
spondent's similar motion is also granted except the change requested in
par. 3 of Respondent's motion is denied, it appearing that pp. 209-210 of
the transcript accurately reflect the testimony
336
SALEM PAINT, INC.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New Jersey corporation, with its princi-
pal office and place of business in Hackensack, New
Jersey, is engaged in the retail sale of paints and related
products. During the 12 months preceding the issuance
of the complaint, Respondent's gross revenues were in
excess of $500,000. During the same period Respondent
purchased, and caused to be delivered to its New Jersey
facility, goods valued in excess of $50,000 from suppliers
located outside the State of New Jersey. Respondent
admits that it is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and I so find.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers Union, Local
464A, a/w United Food and Commercial Workers Inter-
national Union, AFL-CIO (the Union), is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The amended complaint alleges that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by creating an
impression among its employees that their union activi-
ties were under surveillance; by offering its employees
benefits to refrain from becoming or remaining members
of the Union; and by discriminatorily discharging two
employees. Respondent denied the allegations. The issues
are:
(1) Did Respondent create the impression of surveil-
lance of its employees' union activities;
(2) Did Respondent offer its employees benefits to re-
frain from becoming or remaining union members; and
(3) Did Respondent discriminatorily discharge two of
its employees.
B. The Facts
1. Background
Beginning in the latter part of October 1979 through
January 2, 1980, when an election was held, the Union
conducted an organizational campaign at Respondent's
Hackensack facility (the plant). During the course of the
campaign numerous meetings were held by employees
with union organizers during which time the organiza-
tional effort was discussed. The first meeting took place
on October 30,3 at a Dunkin Donuts shop, located ap-
proximately a half mile from the plant. The second meet-
ing took place soon thereafter behind the plant's loading
platform. All the remaining meetings, which were held
approximately once a week in November and more fre-
quently in December, took place at the Fairmont Diner,
located close to the plant. 4
3 All dates refer to 1979 unless otherwise specified.
The diner was "across a large parking lot, across the street and on
the adjacent corner."
Lemont Persinger, a supervisor of Respondent and
warehouse manager, was involved in the organizational
effort from its inception. He attended employee meetings
with the union organizers and attended the meetings held
in November. In early November, Persinger admonished
an employee, Maria Soto, to stop telling employees not
to join the Union. Soto became upset, began crying and
reported the conversation to Joe Marshall, Respondent's
controller. Soto told Marshall that Persinger was trying
to bring a union into the store. After Marshall asked
what union, Soto replied "a union that the guys . . .
they're trying to bring into the store."
During the second week of December a union meeting
was held at the Fairmont Diner during the lunch hour.
In attendance at that meeting were Richard Lindemann,
Craig Corey, and several other employees, together with
the union organizer, Frank DiChristina. Approximately
15 to 20 minutes after the meeting took place and the
employees returned to work, Harvey Greenberg, who
was in overall charge of the warehouse, approached sev-
eral of the warehouse employees, including Corey and
Lindemann. At the time the employees were picking
orders and were also talking. Corey credibly testified, as
follows: "Mr. Greenberg came back to see what we
were doing, and he said just because you guys got a free
lunch today doesn't mean you have to stop working en-
tirely." His testimony was corroborated by Lindemann,
who testified with respect to the same conversation, "We
had been working and talking, and Harvey approached
us and said I don't care who buys you lunch, but there's
work to be done and you have to get it done."5
2. Discharge of Craig Corey
Craig Corey worked at Respondent's Hackensack fa-
cility from the beginning of October until December 28.
Prior to working for Respondent, Corey attended col-
lege and was in his junior year. He decided not to attend
school during the fall of 1979 but instead to work and
"raise money to go back to school." While employed at
Respondent, he spent approximately 75 percent of his
time working in the warehouse and 25 percent of his
time on the road, driving a truck and delivering items to
Respondent's other stores.
I In response to Respondent's counsel's question whether Greenberg
said to the employees "I don't care if the Union buys your lunch, you
still have to get the work done," Greenberg denied making such state-
ment. The denial does not controvert the testimony of Corey and Linde-
mann. Each of them stated, in substance, that Greenberg referred to the
fact that they got a "free lunch." They did not testify that Greenberg
specifically mentioned that it was the Union which bought them lunch.
Greenberg did not testify as to his version of the conversation, if, indeed.
it differed from that of Corey and Lindemann. Similarly, Heuther was
asked whether "Abby Greenberg" made the statement "I don't care if
the Union buys your lunch, you still have to get the work done." He
stated that Greenberg did not make such a statement in his presence. His
testimony clearly does not controvert that of Corey and Lindemann. In
the first place, he answered that "Abby" Greenberg, Respondent's presi-
dent, did not make the statement when, in fact, the testimony was that
Harvey Greenberg made the statement. In addition, as pointed out with
respect to Harvey Greenberg's testimony, it was not alleged that the
word "Union" was mentioned. Finally, Heuther did not deny that the
statement was made, but merely stated that it was not made in his pres-
ence.
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corey was active in the Union's organizational cam-
paign from its inception. He signed an authorization card
and thereafter attended at least four union meetings, in-
cluding the meeting held during the second week of De-
cember referred to above in connection with the remark
by Harvey Greenberg.
On Friday, December 21, Corey was on the road de-
livering merchandise to a new store Respondent was
opening in Massachusetts. When he called in to say that
he would be returning to New Jersey late, he was in-
structed to take the truck home. On Monday morning,
December 24, even though the warehouse was closed
that day, Corey took the truck back to the warehouse at
approximately 10:30 a.m. When he arrived at the ware-
house he saw Harvey Greenberg and informed him that
his last day of work would be December 28 because he
would be returning to school on January 1 or 2. Corey
testified that Greenberg responded "that would be fine
with him."
Later that day Greenberg called Corey at home and
told Corey that he had forgotten to leave the keys for
the truck at the warehouse and that Greenberg had a
Christmas bonus for him. Corey returned to the ware-
house and gave Greenberg the keys and received his
Christmas bonus. Corey told Greenberg that he had just
received information that he did not have to leave for
school until January 6 or 7 and accordingly asked
Greenberg whether he could work until January 4.
Corey testified that Greenberg responded that "he would
let me work under one condition and this condition
would be that if I did not come in on the morning of the
union election, January 2nd, he said he would pay me
for the entire day anyway." Corey did not respond, but
told Greenberg that he would like to think about it. He
never did respond to Greenberg's proposal.
Corey next spoke with Greenberg about being able to
work the extra week on Friday, December 28. On that
day Greenberg was seeing employees individually in the
breakroom and was giving out letters showing company
benefits. Corey testified that Greenberg told him that "he
just had a talk with his attorney, his lawyer, and that be-
cause they couldn't figure out how I was going to vote
in the union election, they were going to have to termi-
nate my employment." Corey then left and has not been
recalled to work.
With respect to the meeting on December 24, Green-
berg admitted that Corey asked whether he could work
another week. However, Greenberg's version of the con-
versation that ensued was markedly different from
Corey's. Greenberg testified that "I told him that we had
no work and that we were coming up with things to
keep those at work staying with us through the first of
the year, coming up with work for them." Again with
respect to the December 28 meeting Greenberg admitted
having a conversation with Corey but in response to
Corey's question whether he could work the extra week
Greenberg simply said "no, we'd have no work." Green-
berg denied that he told Corey that since they did not
know how he was going to vote, Corey's employment
would have to be terminated.
I credit the testimony of Corey with respect to the
conversations which took place on December 24 and 28.
On cross-examination, I found Greenberg to be an eva-
sive witness. In addition, Greenberg's testimony itself
points to the truth of Corey's statement. Thus, Green-
berg testified that on December 28 Corey asked him
whether Corey "was going to be working here next
week." This conforms to Corey's testimony that the
question of his working the following week was left un-
resolved at the January 24 meeting. According to Green-
berg's testimony with respect to the December 24 meet-
ing, however, the question was not left unresolved but
Greenberg definitely told Corey that there would be no
work.
3. Discharge of Robert McWilliams
Robert McWilliams worked as an order picker in the
plant's warehouse from October 1979 until January 2,
1980. McWilliams attended the Union's first meeting at
Dunkin Donuts and also signed an authorization card.
McWilliams did not work for most of the month of
December due to illness. He testified that he called in
daily and spoke with either Harvey Greenberg or Steve
Heuther, to report that he would not be at work. Green-
berg testified that he did not receive daily phone calls
from McWilliams but instead was called by him during
the first and second weeks of December and 3 or 4 days
before the Christmas party, which was held December
21. Heuther acknowledged receiving one or two phone
calls from McWilliams during December.
McWilliams testified that he went to the plant on
Friday, December 21. He went to the warehouse to see
Harvey Greenberg and asked him for his paycheck.
Greenberg said he would have to look for it and told
McWilliams about the Christmas party and told him to
go to it. At the party Greenberg handed McWilliams the
paycheck, a Christmas bonus of $15, and another enve-
lope. In the other envelope was a campaign letter from
Respondent about the Union vote and about "how great
the company was." McWilliams credibly testified that he
turned to Greenberg and said "what is this, propaganda
bull-? And he just smiled at me; he says, well, we're al-
lowed to spread it too."
McWilliams further testified that he called Greenberg
on December 31 to report that he would not be in that
day. However, he told Greenberg that he would be in on
January 2. According to McWilliams, Greenberg re-
sponded, "Oh, I'll see you then, January 2nd."
I credit McWilliams' testimony concerning the events
of January 2.6 He testified that he returned to work that
day. While in the warehouse, at approximately 9 a.m.,
Greenberg came up to him and told him that he had
"some paper work, involving the insurance plan the
company had, and that he was going to the office to pick
it up and bring it back to me." Greenberg returned not
with the "paper work" but instead "he just came back
and he told me that I have to be laid off, that he was just
talking to the company lawyer and they have to lay me
off." McWilliams testified that he then replied, "When
" In many respects Greenberg's testimony was not at variance with
that of McWilliams. As noted earlier, I found Greenberg to be an evasive
witness.
338
SALEM PAINT. INC.
will I be called back? Right after the union vote? And he
just gave me a smile and he goes, I can't tell you."
McWilliams then punched out and left the plant but
returned a little later to vote in the union election which
was held that morning. When he attempted to vote, Re-
spondent's bookkeeper and election observer, Sylvia
Niarhos, stated, "He can't vote, he can't vote, he was
just fired today." McWilliams thereafter voted a chal-
lenged ballot.
Greenberg's testimony varied in certain respects from
the testimony of McWilliams. Greenberg denied receiv-
ing any phone calls from McWilliams between the
Christmas party and January 2. Greenberg testified that
when he saw McWilliams in the warehouse on January
2, "I asked him why he was there. He didn't answer. I
said, you didn't call me or tell me you were coming in. I
have no work for you." Greenberg testified that he then
went to his office and returned soon thereafter and told
McWilliams "that he was being laid off, there was no
work in the warehouse for him." Greenberg further testi-
fied that he notified McWilliams on January 10 or 11 by
mailgram to return to work.
C. Discussion and Analysis
1. Surveillance
The complaint alleges that Respondent created an im-
pression among its employees that their union activities
were under surveillance. In his brief, the General Coun-
sel cites the remark by Greenberg concerning the "free
lunch" as the only instance of alleged surveillance. For
the reasons stated below I do not find that the Green-
berg remark created an impression of surveillance.
The "free lunch" remark was made by Greenberg
after several warehouse employees attended a union
meeting during the second week of December. There is
no question that Respondent knew of the union activi-
ties. Respondent's bookkeeper testified that Respondent
submitted the list of eligible voters to the National Labor
Relations Board on December 6, prior to the date of the
union meeting when Greenberg made the remark con-
cerning the "free lunch." In addition, the evidence is un-
controverted that Persinger, a supervisor of Respondent,
knew of, and indeed was involved in, the organizational
effort from its inception. Also, as discussed earlier, in
early November there was a confrontation between Per-
singer and Soto. Soto reported the incident to Respond-
ent's controller, Marshall, and told him about the Union
the "guys" were "trying to bring into the store."
The Greenberg remark concerning the "free lunch"
implies to me nothing more than a statement by Green-
berg that he was aware that the employees he was speak-
ing with attended a union meeting. There is no indication
in the record that any attempt was made to hide the fact
that the employees were attending union meetings. Meet-
ings were held fairly frequently and in close proximity to
the plant. Indeed, since the number of employees was
relatively few, it is likely that management knew when
the meetings were held and who attended them. Cf.
Borin Packing Co., Inc.., 208 NLRB 280, 287, fn. 31
(1974). 7
Under the circumstances I do not find that Green-
berg's remark created an impression of surveillance. In
this connection the Board's decision in Trojan Steel
Corp., 180 NLRB 704 (1970), is instructive. In that case
the Board affirmed the Administrative Law Judge's De-
cision, which stated, in pertinent part (at 706), "the mere
indication by Respondent of knowledge that the employ-
ees had a union meeting at a beer joint is insufficient to
establish that Respondent created an impression of sur-
veillance to its employees Accordingly, the alle-
gation is dismissed.
2. Promise of benefits
Paragraph 9(b) of the amended complaint alleges that
Respondent offered its employees benefits to refrain from
becoming or remaining union members. In its brief the
General Counsel specifies that the violation consisted of
Greenberg telling Corey on December 24 that the latter
would be allowed to work the extra week provided he
agreed not to come to work on the morning of the union
election. As noted above, I credited Corey's testimony
with respect to his December 24 conversation with
Greenberg. The Board has held that the promise of keep-
ing a job in return for refraining from participating in
union activity or otherwise supporting a union violates
Section 8(a)(1) of the Act. Erlich's 814, Inc., e al., 231
NLRB 1237, 1238 (1977), enfd. 566 F.2d 68 (8th Cir.
1978). Accordingly, I find that Greenberg's offer to
allow Corey to work the extra week in return for
Corey's agreement not to vote in the union election con-
stitutes a violation of Section 8(a)(1) of the Act.
3. Discharge of Corey
The General Counsel contends that Respondent re-
fused to allow Corey to work the extra week because
Corey would not agree to be absent the day of the union
election. Respondent, on the other hand, contends that
Corey was terminated on December 28 because of a lack
of work.
The Board has recently restated the test to be applied
in so-called "mixed motive" cases. Wright Line, a Divi-
sion of Wright Line, Inc., 251 NLRB 1083 (1980). The
Board requires that the General Counsel make a prima
facie showing sufficient to support the inference that pro-
tected conduct was a motivating factor in the employer's
decision. Once this is established, the burden shifts to the
employer to demonstrate that the "same action would
have taken place even in the absence of the protected
conduct."
It is necessary to examine certain established elements
to determine whether the General Counsel has made a
prima facie showing that union activity was a motivating
factor in the discharge. These elements are knowledge of
' While the record does not contain the precise number of employees
located at the Hackensack facility. Greenburg testified that there were
only seven-nine warehouse employees. In addition. Niarhos testified that
there were approximately 175 total employees in Respondent's 32 stores.
' To like effect is Schreienti Brothr. Inc.. 179 NLRB 853 (1969).
cited b the General Counsel
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity, animus, timing, and the validity of the
reasons for the discharge.
As discussed earlier, Greenberg clearly knew of
Corey's union activities on December 24. It was the
second week of December when Greenberg told Corey,
after a union meeting, "[J]ust because you guys got a
free lunch today doesn't mean you have to stop working
entirely." As noted above, I have found this remark to
indicate Greenberg's knowledge of Corey's and the other
employees' union activities.9
With respect to animus, Greenberg testified that he
distributed letters to employees several days before the
union election on company benefits. Lindemann testified
that when Greenberg handed McWilliams one of the let-
ters, "McWilliams said more company propoganda, huh?
And Harvey said we have to show our propaganda,
too." Similarly, McWilliams credibly testified, "I turned
to Harvey and said, what is this, propaganda bull-?
And he just smiled at me; he says, well, we're allowed to
spread it, too." In view of the above testimony and con-
sidering Greenberg's testimony that the union campaign
was "not unimportant" to Respondent, I conclude that
Respondent was opposed to the Union winning the elec-
tion. This conclusion is buttressed by Greenberg's prom-
ise to Corey of additional work if Corey would agree
not to vote. This is a clear indication of Greenberg's op-
position to the Union.
Concerning timing, the nexus between the discharge
and the union activity is clear. The meetings between
Corey and Greenberg took place the week before the
union election with the date of termination the last work-
ing day before the union election.
As discussed above, I have credited Corey's testimony
concerning the December 24 conversation between him-
self and Greenberg. Accordingly, I find that Corey was
terminated on December 28 and not permitted to work
the extra week because Corey did not agree to absent
himself on the day of the union election.
Respondent contends, however, that the reason Corey
was not permitted to work the extra week was due to
lack of work in the warehouse. I do not find sufficient
evidence to support Respondent's contention. In addition
to his work in the warehouse Corey also spent approxi-
mately 25 percent of his time delivering merchandise.
Indeed, during the third week of December Corey deliv-
ered merchandise to a new store opening in Massachu-
setts. Further, I credit Corey's testimony that there was
an additional store opening in Massachusetts and another
one to be opened in Connecticut during the second week
of January 1980.1°
g In addition, Respondent was clearly aware of the impending union
election. As noted earlier, I have found that Respondent offered to
permit Corey to work the additional week if he agreed not to vote in the
election.
'o Greenberg's testimony with respect to the number of stores to be
opened is an example of his evasiveness. In response to the General
Counsel's question, "([D]uring December 1979, Mr. Greenberg, was
Salem Paint in the process of opening new stores," Greenberg replied,
"[S]ingular; store." However, when called as a rebuttal witness by coun-
sel for Respondent, Greenberg conceded that three new stores were
being opened, two in Massachusetts and one in Connecticut.
Accordingly, I find that the General Counsel has made
a prima facie showing that Corey was not permitted to
work the extra week because he would not agree to
absent himself on the day of the union election. Respond-
ent has not met its burden of demonstrating that Corey
would have been terminated on December 28 were it not
for the impending union election. I conclude that Re-
spondent's conduct constitutes a violation of Section 8(a)
(3) and (1) of the Act.
4. Discharge of McWilliams
McWilliams attended the organizational meeting at
Dunkin Donuts when Persinger was present. As dis-
cussed earlier, because of the plant being relatively small
and because of the fact that a supervisor was present, I
believe that Respondent had knowledge of McWilliams'
union activity from the very beginning of the organiza-
tional effort. Even, however, were this not the case, I
believe that knowledge of union activity has been dem-
onstrated. That is because the union activity at issue is
voting in the election. Since McWilliams returned to
work on January 2, Respondent had every reason to be-
lieve that McWilliams intended to vote in the union elec-
tion that day.
With respect to timing, the discharge occurred imme-
diately prior to the union election. When McWilliams ap-
peared on the morning of January 2, he was told that he
was being laid off. Niarhos used stronger language. She
testified that McWilliams was "fired" that morning. The
union election was held later that morning.
Again, Respondent contends that McWilliams was laid
off because of lack of work in the warehouse. I credit
McWilliams' testimony that he spoke to Greenberg on
December 31 at which time Greenberg told him that he
would see him at work on January 2. Greenberg did not
tell McWilliams that there was no work even though
Greenberg testified that warehouse work essentially
ceased on December 20. Even, however, were I to be-
lieve Greenberg that the last conversation between him-
self and McWilliams took place on December 21, the
day of the Christmas party, no explanation was given
why Greenberg did not tell McWilliams that he was
being laid off at that time.
For the above reasons, I believe that the General
Counsel has made a prima facie showing that McWil-
liams was terminated so that he would not be able to
vote in the union election. Respondent has not sustained
its burden of showing that McWilliams would have been
terminated on January 2 were it not for the election
being held that day.
Accordingly, I conclude that by the above conduct
Respondent violated election 8(a)(3) and (1) of the Act.
5. Offer of reinstatement
On January 11, 1980, Respondent sent a telegram to
McWilliams, notifying him to report to work on or
before January 16, 1980. Respondent requested that
Western Union "report delivery by mailgram," and such
340
SALEM PAINT, INC.
was done. ' The General Counsel concedes that the tele-
gram was delivered by telephone to the household of
McWilliams. McWilliams testified, however, that he did
not receive the telegram. McWilliams further testified
that some time subsequent to January 11 a National
Labor Relations Board representative advised him that
Respondent contended that it sent McWilliams a tele-
gram offering reinstatement. He admitted that he never
called Respondent to inquire about the offer of reinstate-
ment.
For an offer of reinstatement to be effective the em-
ployer must make it in good faith and in a manner in
which it could be reasonably anticipated that the em-
ployee would receive notice of the offer. See Knicker-
bocker Plastic Co.. Inc., 132 NLRB 1209, 1236 (1961).
The offer may be effective even though not received by
the employee. See Rollash Corp., 133 NLRB 464, 465-
466 (1961); Adams Books Co., 203 NLRB 761, 769, fn. 39
(1973); Airports Service Lines. Inc., 218 NLRB 1160, 1161
(1975).
I conclude that Respondent acted in good faith in at-
tempting to apprise McWilliams of the offer. It sent the
offer by telegram and asked for and received confirma-
tion of delivery. As mentioned above, the General Coun-
sel concedes that delivery was made by telephone to
McWilliams' home. Under the circumstances, I believe
Respondent did everything that it reasonably could have
done to communicate the offer to McWilliams. Accord-
ingly, I find that Respondent made a valid offer of rein-
statement to McWilliams.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By offering to allow Craig Corey to work an addi-
tional week in return for his agreement not to vote in the
union election, Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(1) of
the Act.
4. By terminating the employment of Craig Corey and
Robert McWilliams for activities protected by the Act,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
6. Respondent did not violate the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take af-
firmative action designed to effectuate the policies of the
Act.
H General Counsel's motion for receipt of post-hearing exhibits is
granted. Accordingly, GC. Exhs. 3, 4, and 5 are received into evidence.
In addition, letters dated October 22 and 31. 1980, from Respondent's
counsel and a letter dated October 29. 1980, from the General Counsel
are received into eidence as ALJ Exh l(a)-(c).
Respondent having discharged Craig Corey and
Robert McWilliams in violation of the Act, I find it nec-
essary to order Respondent to offer Corey full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make Corey and McWilliams whole for any loss of earn-
ings that they may have suffered from the time of their
termination to the date of Respondent's offers of rein-
statement. 12
Backpay shall be computed in accordance with the
formula approved in F. W Woolworth Company, 90
NLRB 289 (1950), with interest computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977). I3
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 14
The Respondent, Salem Paint, Inc., Hackensack, New
Jersey, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising benefits to employees on condition that
they do not engage in union activities.
(b) Discriminatorily discharging employees for activi-
ties protected by Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Craig Corey immediate and full reinstatement
to his former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges.
(b) Make whole Craig Corey and Robert McWilliams
for any loss of earnings in the manner set forth in the
section above entitled "The Remedy."
(c) Post at its facility in Hackensack, New Jersey,
copies of the attached notice marked "Appendix." t5
Copies of the notice on forms provided by the Regional
Director for Region 22, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
t2 Western Union telephoned the offer of reinstatement to McWilliams'
home on January 11, 1980. Accordingly, the period of backpay ends on
that date. See Knickerbocker Plastic Co.. Inc., 132 NLRB at 1236.
,3 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716, 717-721
(1962)
i" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
z5 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days of the date of this Order, what
steps Respondent has taken to comply herewith.
342