United Store Fixture Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 13, 1963

141 N.L.R.B. 394 (N.L.R.B. 1963)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steps shall be taken to insure that said notices are not altered , defaced , or covered by
any other material.
(d) Notify the Regional Director for the Tenth Region , in writing , within 20
days from the date of the receipt of this Intermediate Report , what steps the Re-
spondent has taken to comply therewith.8
8 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the said Regional Director , in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 discourage membership of any employee in Upholsterers ' Inter-
national Union , Local 188 , or in any other labor organization , by discharging
or laying off any employee , or in any other manner discriminating against any
employee in regard to hire, tenure of employment , or any term or conditions
of employment , except as authorized by Section 8(a) (3) of the Act.
WE WILL NOT interrogate employees regarding their union activities in a
manner violative of Section 8 (a)( 1 ) of the Act.
WE WILL NOT threaten employees with economic reprisals or promise them
benefits to discourage membership in any labor organization.
WE WILL NOT interfere with , restrain , or coerce employees in any manner,
in connection with the exercise of the right to self-organization , to form labor
organizations , to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own free choice, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
WE WILL offer Bonnie Sue Westmoreland , Jasper Chastain , and Joe Vickery
immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority and other rights and privileges, and
will make them whole for any loss of pay suffered by reason of our discrimina-
tion against them.
All our employees are free to become, remain , or refrain from becoming or
remaining members of any labor organization.
TOCCOA MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must be 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, 528 Peach-
tree-Seventh Building, 50 Seventh Street , N.E., Atlanta 23, Georgia , Telephone No.
Trinity 6-3311 , Extension 5357, if they have any question concerning this notice or
compliance with its provisions.
Dominic J . Calabrese t/a United Store Fixture Mfg. Co. and
Furniture and Allied Workers Union Local No. 37, Upholster-
ers' International Union, AFL-CIO. Case No. 4-CA-1688.
Mllarch, 13, 1963
DECISION AND ORDER
On December 31, 1962, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
141 NLRB No. 39.
UNITED STORE FIXTURE 1FFG. CO. 395
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a, three-member
panel [Chairman McCulloch and Members Rodgers 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 hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications noted
below.'
ORDER2
The Board adopts as its Order the corrected Recommended Order of
the Trial Examiner with the following additions :
Insert the following as paragraphs 1(b) and (c), respectively, after
paragraph 1(a) :
(b) Threatening employees with loss of employment and closing
down the plant in the event Respondent is required to bargain with
Local No. 37, and soliciting individual strikers to abandon their strike.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist Local No. 37, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
1 The General Counsel excepts to the Trial Examiner's failure to include in his Recom-
mended Order and notice his findings that Respondent had violated Section 8(a)(1) of
the Act by threatening its employees with loss of employment and closing down the plant
if Respondent was required to recognize the Union, and by soliciting individual strikers
to abandon their strike. We find merit in this exception and shall modify the Order and
notice accordingly.
2 The notice is hereby modified by adding the following after the second paragraph
therein
I WILL NOT threaten my employees with loss of employment and closing down the
plant in the event I am required to bargain with Local No 37, and I will not solicit
strikers to abandon their strike.
I WILL NOT in any other manner interfere with, restrain, or coerce my employees
in exercising their right to form, join, or assist Furniture and Allied Workers Union
Local No. 37, Upholsterers' International Union, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for their mutual aid or protection, or to
refrain from any and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a union, as provided in the National
Labor Relations Act, as amended
All our employees are free to become, remain , or refrain from becoming or remaining
members of any union, except to the extent referred to above.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from engaging in any such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as authorized by Section 8(a) (3) of the National
Labor Relations Act, as amended.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended, 29 U.S.C., Sec. 151, et seq., herein called the Act.
Furniture and Allied Works Union Local No. 37, Upholsterers' International
Union, AFL-CIO, sometimes called the Union or Local No. 37, filed a charge on
July 25 and on August 1, 1962, filed an amended charge against Dominic J. Cala-
brese, t/a United Store Fixture Mfg. Co., herein called the Respondent, the original
charge being based upon alleged violations of Section 8(a)(1) and (3) of the Act
and the amended charge being based on alleged violations of Section 8(a)(1) and
(5) of the Act. Thereafter, on September 28, 1962, the General Counsel of the
National Labor Relations Board, on behalf of the Board, by the Regional Director
for the Fourth Region, issued a complaint and notice of hearing setting forth certain
alleged violations of the Act by the Respondent, specifically violations of Section
8(a) (1) and (5), by interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed them in Section 7 of the Act. The General Counsel
avers that at all times since about July 13, 1962,' the Union has been the representa-
tive for the purpose of collective bargaining of the employees in an appropriate bar-
gaining unit; that commencing on or about July 17, the Union has requested the
Respondent to bargain collectively with it with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment but that the Respond-
ent refused and continues to refuse to bargain collectively with the Union as the
exclusive collective-bargaining representative of the employees in the unit described
in the complaint; 2 that on or about July 18 certain of the Respondent's employees
ceased work concertedly and went on strike; that such strike was caused by and pro-
longed by the Respondent's refusal to bargain with the Union in that on various dates
from on or about July 17 to on or about August 10, the Respondent through its
owner, Dominic Calabrese, threatened that the continued operation of the plant de-
pended upon the employees' rejection of the Union; threatened to screen future job
applicants in order to keep the plant nonunion; threatened to defeat the Union by
getting rid of certain employees; stated that he would refuse to recognize the Union
unless and until plant operations expanded and the Respondent's financial position
was improved; threatened employees with discharge if the Respondent was required
to recognize the Union; threatened employees with loss of employment because they
engaged in lawful strike activity and because they otherwise supported the Union;
solicited employees to abandon the strike, telling them they did not need an outside
union and promising them a company union and economic benefits and future em-
ployment if they would abandon the strike and withdraw their support from the
Union; and, by amendment allowed at the hearing hereof, refused to consider the
rehiring of an employee or to investigate the circumstances of his discharge, because
he engaged in union or other concerted activities.
The Respondent filed timely answer to the complaint, admitting that all production
and maintenance employees of the Respondent, exclusive of office clericals and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 of the Act, as alleged in the
complaint; but denying that a majority of employees designated or selected the Union
as their representative or that the Union has been and now is the exclusive representa-
tive of the employees in the admittedly appropriate unit for the purposes of collective
bargaining with respect to rates of pav, wages, hours of employment, and other terms
and conditions of employment. It is admitted in the answer that the Union has
requested the Respondent to bargain with it, and admitted that the Respondent has
refused to bargain collectively with the Union; the Respondent denies that it has en-
gaged in the acts of interference, restraint, and coercion, as set forth in the complaint,
in order to undermine the Union and to destroy its majority; all other substantive
1 Unlees otherwise specifically noted, all dates hereinafter mentioned are for the
year 1962
2 See section entitled "Conclusions of Law," infra
UNITED STORE FIXTURE MFG. CO. 397
violations of the Act as alleged in the complaint are denied. In an affirmative defense
the Respondent says in his answer:
(g) It is admitted that Respondent solicited his employees to abandon the
strike but this was not a part of a plan to "beat" the Union; it is admitted that
Respondent told his employees that they did not need an outside union but it
is denied that he promised them a company union, economic benefits or future
employment for their abandoning lawful strike activities and their withdrawal
of union support; further Respondent made no promises of benefit or threat of
detriment to his employees.
Pursuant to notice, this case came on to be heard before Trial Examiner Arthur E.
Reyman at Philadelphia, Pennsylvania, on November 5, 1962, and was closed on the
following day. At the hearing, all parties were represented by counsel and each was
afforded opportunity to call, examine, and cross-examine witnesses and to participate
fully, to argue orally upon the record, to submit proposed findings or conclusions or
both, and to file briefs. A brief was filed on behalf of the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF UNITED STORE FIXTURE MFG. CO.
Since the year 1947, and at all times material herein, the Respondent has continu-
ously engaged in the manufacture of commercial aluminum refrigerator boxes, and
at all times material herein maintains its principal office and sole plant at 4250
Aramingo Avenue, Philadelphia 24, Pennsylvania. During the past year, the Re-
spondent, in the course and conduct of his business operations, caused to be manu-
factured, sold, and distributed at the afoiementioned plant products valued in excess
of $90,000, of which products valued in excess of $80,000 were furnished to, among
others, Fogel Refrigerator Company, which has its sole plant located at 5400 Eadom
Street, Philadelphia 37, Pennsylvania. Fogel Refrigerator Company is engaged in
the manufacture of commercial refrigerators and annually produces and ships goods
valued in excess of $50,000 to points directly out of the State Pennsylvania.
The Respondent is, and has been at all times material herein, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Furniture and Allied Workers Union Local No. 37, Upholsterers' International
Union, AFL-CIO, is, and has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Union organization and request to bargain
Michael Pacifico, hired on July 3 to do sheet-metal work, on or about July 6 ap-
proached the Union and inquired about unionizing the Respondent's plant. On
July 11 he and Michael Cerrato signed union cards, John Dulczak, an organizer for
Local 37, being present. On July 13, at the plant, some time during the lunch period,
Pacifico spoke to William Galloway, Louis Guess, Emanuel Tunstall, Michael Cer-
rato, Perfecto Cruz, and another and solicited union authorization cards. On that
day he obtained nine signatures to union authorization cards which were mailed to the
Union
George Bucher, president and business agent of Local 37, sent a registered letter
to the Respondent on July 16, advising him that the majority of the production and
maintenance employees desired Local 37 as their exclusive bargaining agent in all
matters pertaining to wages, hours, and other conditions of employment, and re-
quested Calabrese to advise him when it would be convenient to meet for the purpose
of negotiating a contract. That evening a meeting was held at the union hall attended
by employees Michael Cerrato, Richard Galloway, Emanuel Tunstall, Louis Guess,
Michael C. Pacifico, and perhaps another one or two, at which time it was announced
by the treasurer of the local that the registered letter had been dispatched to
Calabrese.
Although the letter was received on July 17, Calabrese testified that it was not
opened until July 18, at which time he said he glanced through it, did not under-
stand it, and handed it over to some unidentified friends to have them interpret it
for him. Calabrese, whose credibility I distrust, testified that mail was of minor
importance in the conduct of his business-that he sometimes did not pay any
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attention to it. Calabrese, up to the time of this hearing, had not replied to Bucher's
letter requesting recognition and a meeting.
The Respondent's principal customer is Fogel Refrigerator Company.
There is testimony in the record given by Michael Cerrato, who I credit, that on or
about 2:30 or 3 p.m. on July 17 he had an occasion to walk within a few feet of
Calabrese and William Fogel of Fogel Refrigerator Company; that Fogel was hold-
ing an envelope with a stub of a return receipt on it and a letter which appeared to
be typed on the stationery of the Union. Cerrato said as he walked by he heard
Calabrese say to Fogel, "The only way to beat this is to get rid of a couple of guys."
Calabrese testified that he could recall receiving only that one registered letter during
the month of July so that on the basis of his statement, together with the testimony
of Cerrato, it would appear that he was discussing the letter with Fogel on July 17.
However, Calabrese said it was not until about July 19 or 20 that he understood the
meaning of the contents of the letter and that on one of those days someone,
unidentified, told him about `organizing and recognizing the Union ... .
At 9:30 a.m. on July 18, Pacifico was discharged because he had engaged in a
fight with Leonard Cecchini, who had refused to hand him the key to the men's wash-
room. Pacifico was discharged by Bernard Markovitz, the production manager.
No disciplinary action was taken against Cecchini, Calabrese's nephew. After his
discharge, Pacifico quickly telephoned Bucher, who advised him to take the matter
to Calabrese and try to persuade Calabrese to put him back to work. When Cala-
brese arrived at the plant about 11 a.m., Pacifico advised him concerning the facts
concerning his discharge. Calabrese promised to investigate the discharge and to let
Pacifico know before the end of the week whether his discharge by Markovitz would
stand or whether he would be reinstated. Pacifico asked Calabrese to call Bucher
concerning the matter and then, according to Pacifico, Calabrese became enraged,
used vile and obnoxious language, and said that he did not care for a union nor did
he care for Bucher or anyone else "like that." Pacifico reported to Bucher by tele-
pone concerning his conversation with Calabrese; Bucher asked him if the employees
were behind him and when Pacifico said that they were, Bucher promised to "see
about it " Bucher gave instructions to organizer John Dulczak to go to the plant
at noon to take more positive action. Pacifico returned to the plant after his tele-
phone call to Bucher and advised the employees that there might be a strike. About
that time Calabrese told Pacifico and Michael Cerrato that he did not know why
they had to cause this sort trouble; that he had hired Michael Cerrato out of the
hospital; that "You fellows are smart. I don't need a union here. These other fel-
lows are dumb . . ." which Pacifico understood to refer to the men who were
working in the shop at the time.
Organizer Dulczak arrived at the plant about noon and spoke to the men, urging
them to strike. About 9 or 10 production and maintenance employees out of a total
number of 13, decided to picket, 3 of them returning to work at 12:30 at the end
of their lunch period.
The signs carried by the pickets read: "The employees of the United Store
Fixture Manufacturing Company are on strike. U.I.U. Allied Furniture Workers
Local 37, AFL-CIO "
The union authorization card is printed on a business reply card, no postage stamp
necessary, first class permit, United States mail, with the printed address of Local 37
on the address side. On the other side is the form of authorization, as follows:
LOCAL 37-A.F. OF L.-C.I.O.
2132-34 Germantown Avenue, Philadelphia 22, Penna., CE . 6-8600
I hereby request and accept membership in the above named union, and of
my own free will authorize it-Local 37, U.I.U., AFL-CIO-their agents or
representatives to act for me as a collective bargaining agency in all matters
pertaining to pay rates, wages, hours of employment and other conditions of
employment.
Dated ----------------------------- ------------------------------
(Signature)
Applicant 's Address -------------------------------------------------
Phone Number -----------------------------------------------------
Employed by -------------------------------------------------------
Company ------------------------------------ ----------------------
Company Address --------------------------------------------------
Occupation ----------------------------------- Wage rate------------
UNITED STORE FIXTURE MFG. CO. 399
Nine completed authorization cards, as noted above, were mailed to the Union on
about July 13 and one was obtained by Dulczak from the picket line.
B. Interference, intimidation , and coercion
Counsel for the General Counsel has proven the allegations of the complaint with
respect to the efforts of Calabrese to interfere with the concerted activities of his
employees in connection with the Union and his efforts to defeat the strike.
On the afternoon of July 18, Calabrese remarked to five pickets that he would go
to Florida for a month; that he did not "have to take this" and "you'll be sorry when
I get back. You'll want to work. I'll never let any union in here. I'll close down
before I let that happen."
According to Cerrato, on July 20, when Calabrese gave them their pay, he asked
them if they were going back to work Monday and when they replied, "No, we're
on strike," Calabrese said, "You mean you quit," to which the pickets replied, "No
we're on strike."
On the following day, Saturday, July 21, Calabrese's sister, a neighbor of Willie
Howard, called him to her home; Calabrese was there and during the course of the
conversation with Howard was informed by Howard that the employees wanted
more money and benefits, to which Calabrese replied that he would have no union
and if he did have to have a union he would close up and go to Florida and take a
vacation. At that time Calabrese asked Howard to return to work and to ask the
others to return saying that "he was too small" and that "maybe in about 2 or 3
years, after he expands" he could then have a union in his plant. He also predicted
that the strike would not last more than 30 days and stated that if he had to recog-
nize a union he would ask it to supply him with a whole new crew of first-class
men. He referred to the fact that almost all of his employees were apprentices, that
he was teaching them a trade and said that "after we learn the trade we could quit
him and get a job anywhere" but that if he had to take the union "he'd get all A-1
men. He knowed that we wasn't A-1 men." Howard said that Calabrese told him
that Pacifico had been planted by the Union and that he was nothing but a trouble-
maker; that in the future he would search the backgrounds of job applicants before
hiring them.
On July 23 Calabrese sent the following letter to each of the strikers:
DEAR SIR: Please report for work on Thursday, 7/26/62. As you know we
cannot run a business without employees, so if you do not report for work, we
will consider your employment terminated, as of that time.
On or about August 3, Calabrese sent a message to Howard asking the latter to
telephone him; Howard did, and during the telephone conversation Calabrese agreed
to loan Howard a week's wages on condition he return to work. Calabrese testified
that Howard requested the loan. According to Howard:
He said, "I'll lend you some money." He said, "I'll lend you a week's pay."
And he said, with everything taken out, for 40 hours is how much9 He said,
"Is that all right?" And I said, "That's all right." And he said, "Are you
coming back to work?" And I said, "No, I gave the Union until Monday to
do what they are going to do, and then I'll come back to work." And he said,
"Well, come up and get the check anyway." And I said, "No, if I come back
to work, I'll get the check on Monday." Like that.
During the same conversation, according to Howard, Calabrese asked Howard
to see if he could bring Richard Galloway or William Galloway back to work on
the same offer of a loan of a week's wages if they would report back.
A number of other incidents involving Calabrese and the strikers occurred between
the time of the strike and about August 10, which, considered in whole, strongly
indicate the interest of Calabrese in having the strikers return to work without the
necessity for him to recognize the Union and enter into collective bargaining with
it. Olesky heard Calabrese say that his company is too small to have a union;
Calabrese told William Galloway that he could not afford a union and that if a
union got in the shop he could ask for "A-1 men" to replace the present work force
made up of men who predominantly were apprentices; that he, Calabrese, remarked
that he could go to Florida for a month or sell out his business and get a job as
a supervisor with another company; he attempted to persuade William Galloway
to return to work and when that failed requested William and his brother Richard
not to come to the plant in return for which he promised them future employment;
he told Richard Galloway that he would close the plant before recognizing the
Union, go to Florida and come back and hire a whole new crew; Calabrese agreed
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to lend Richard Galloway $25 if he returned to work , that Richard Galloway con-
tinued picketing but nevertheless Calabrese gave him a check for $25. Richard
Galloway testified:
Q. [By Mr. KELLY.] When he gave you the money did he ask you to come
back to work?
A. No. He told me I could come back to work if I wanted to; but if I didn't
come back , just don't picket , stay home. He said if I came back and tried
to get inside the building and somebody says something to me, you know, some
of the other fellows who didn't want me to go in , just go away and don 't start
no trouble.
Q. You mean some of the other fellows who were picketing and who wouldn't
want you to cross the picket lines; that you were to go home?
A. That's right.
William Galloway testified in part as follows:
Q. [By Mr. KELLY.] Did he ( Calabrese ) say anything about promises that
the unions made to the employees?
A. Yes. He mentioned that all unions don 't give you what they say they
will; and that the unions make promises not all of them keep their promises.
He told me that. And he told me that when this is over that maybe later on
we could have a company union, and that all the money that we had put into
the company union, the fund, would be returned to you when you are fired, or
when you quit ; he said you don't get that , you know, with a regular union.
C. The union majority held on and after July 17
That the union majority was established as of July 17 is proven without a doubt
by the proof of the signing of authorization cards and their submission by individual
employees to the union representatives. Only two employees of the Respondent
as of that day, Marie Gordon, who worked in the office, and Bernard Markovitz,
the production manager, were excluded as being considered members of the unit.
Colozzi, the summer employee, is claimed by the Respondent to be a member of
the bargaining unit. However, the majority status of the Union is established whether
or not Colozzi is to be considered as one of the bargaining unit. Were the question
presented to me, I should say that he would not be considered a member of the unit
by virtue of the statement of the Board in Pacific Tile and Porcelain Company, 137
NLRB 1358, wherein the Board held that under its policy students employed during
summer vacation periods are considered temporary employees and are excluded
from bargaining units. Therefore, as of the time Bucher wrote his letter to Calabrese
requesting recognition for the Union, he held authorization cards for nine employees.
One other card was submitted to him the following day. Some doubt was raised
concerning the validity of the card of Emanuel Toledo, who was unavailable to testify
at the hearing. The testimony showed that his card was signed on its behalf and
at his request by Perfecto Cruz, another employee. The testimony clearly shows that
Cruz signed the card on behalf of Toledo on July 13 in the presence of other
employees; that Toledo has a poor command of the English language and that after
Cruz had fully explained to Toledo in Spanish the purpose of the card Toledo re-
quested Cruz to fill it in for him. Toledo went on strike with other employees on
July 18. I think the validity of his card had been proven .3
I find that the union majority as of July 17 has been proved.
This is not a case where an employer expressed a good-faith doubt as to the
validity of authorization cards or the fact of a union majority as evidenced by authori-
zation or membership cards at the time a demand for recognition was made by a
union. Here, the question of the authenticity of any of the cards was raised for
the first time at the hearing and between the time of the Union's request for recog-
nition on July 17 up to the time of the hearing Calabrese had raised no good-faith
doubt concerning the Union's majority.
At the hearing herein, Calabrese was shown his pretrial statement given to a
representative of the Regional Office and conceded that the statements therein were
true. He had said:
When I got the Union's letter, I figured as of the time unions were not for me,
because I was too small a manufacturer to deal with the Union, and my profits
3 The cases cited by General Counsel support this finding. Knickerbocker Plastic Co ,
Inc, 104 NLRB 514; Robeson Cutlery Company, Inc., 67 NLRB 481, 498; Brewster
Tanning Co., Inc, 50 NLRB 894.
UNITED STORE FIXTURE MFG. CO. 40 1
are too small to pay union wages. I didn 't investigate the Union's strength
because I wouldn't recognize the Union until I did more business .. . .
The absence of a good-faith doubt as to union majority, coupled with the unfair
labor practices engaged in by Calabrese during the strike establishes the fact of an
absolute refusal to bargain with the Union. Galloway Manufacturing Corporation,
136 NLRB 405.
The solicitation by Calabrese of strikers accompanied by the promises and threats
to induce them to return to work, as shown herein, constitutes unlawful interference.
The General Counsel says:
In viewing Respondent 's conduct in its totality it is crystal clear that at no time
did Calabrese intend to recognize the Union . His entire course of conduct un-
questionably indicates a consistent rejection of the collective bargaining principle.
His failure to communicate with the Union was merely a technique to gain time
within which to dissipate the Union's majority. Such conduct is in clear viola-
tion of Section 8(a)(1) and 8(a)(5) of the Act. Al Tatti, Inc., 136 NLRB
17; Hamilton Plastic Molding Co., 135 NLRB 371, Joy Silk Mills, 185 F.
2d 732, 741 enfg. 85 NLRB 1263, certiorari denied 341 U S. 941.
I agreed and I so find.
D. The strike is an unfair labor practice strike
At its inception , the strike was an economic strike , but, if the refusal to reinstate
Pacifico was because he was a union adherent, it is an unfair labor practice strike
in that its primary spark was caused by an unfair labor practice then engaged in by
the Employer. If an economic strike, the subsequent acts of Calabrese in his attempts
to end the strike by his acts and words related above, it was converted into an
unfair labor practice strike by the Employer's unlawful conduct. Sherry Manufactur-
ing Company, Inc., 128 NLRB 739, 741. As a practical matter, it makes no differ-
ence whether the strike through the action against Pacifico is considered an unfair
labor practice strike at its inception , because Calabrese immediately on the day of
the strike began to try to effect the end of the strike and continued to do so at least
up through August.
In such circumstances , I find that those of the strikers still on strike and not
employed by the Respondent are entitled their former or substantially similar positions.
As I understand it, William Olesky, William Galloway, Louis Guess, and Emanuel
Tunstall are still on strike.
One of the reasons given by William Galloway for striking was the discharge
of Pacifico; Michael Cerrato also struck to protest the discharge of Pacifico. The
General Counsel argues that after the discharge of Pacifico by Markovitz, and on
the same morning after Calabrese had promised to give consideration to Pacifico's
reinstatement , Calabrese immediately upon learning that Pacifico had appealed to
the Union , made certain emphatic statements saying in effect he would have nothing
to do with Bucher or the Union. Therefore, the General Counsel says, this is
an indication that the strike at its inception was an unfair labor practice strike. I
agree.
On the basis of the facts related above, I find that the Respondent violated
Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the 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 com-
merce and the free flow thereof.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(5) and ( 1) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It will be recommended that the Respondent offer to each striker, upon his
application , reinstatement to his former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges , dismissing , if necessary, any
employees hired after July 18, 1962, to replace him, and make any employee whole
for any loss of pay suffered by him as a result of the failure of the Respondent to
reinstate him within 5 days after his application.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent , Dominic J. Calabrese t/a United Store Fixture Mfg. Co., is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Furniture and Allied Workers Union Local No. 37, Upholsterers ' International
Union , AFL-CIO, is, and has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing and continuing to refuse to bargain collectively with the Union
as the exclusive collective -bargaining representative of all the employees in the unit
comprised of all production and maintenance employees of the Respondent , exclusive
of office clericals and supervisors as defined in the Act, and engaging in acts of inter-
ference, restraint , and coercion as set forth in section III , above, the Respondent has
interfered with, restrained , and coerced its employees and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the full record herein, it is recommended that the Board, in order to effectuate the
purposes of the Act, enter an order against Dominic J. Calabrese t/a United Store
Fixture Mfg. Co., his officers, agents, successors , and assigns, to:
1. Cease and desist from:
(a) Refusing to bargain collectively with Furniture and Allied Workers Union
Local No. 37, Upsolsterers' International Union, AFL-CIO, as the exclusive repre-
sentative of its employees in the appropriate unit . The appropriate unit for bargain-
ing is:
All production and maintenance employees of Respondent , exclusive of
clericals and supervisors as defined in the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request , bargain collectively with the above -named labor organization
as the exclusive representative of the employees in the above -described appropriate
unit with respect to rates of pay, wages, hours of work, and other terms and condi-
tions of employment , and embody any understanding reached in a signed agreement.
(b) Upon application , offer to the Respondent's striking employees reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges , and make them whole for any loss of pay
in the manner set forth in the section of this Intermediate Report entitled "The
Remedy."
(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 for the deter-
mination of backpay due and the rights of reinstatement under the terms of this
Recommended Order.
(d) Post at its place of business in Philadelphia , Pennsylvania , copies of the
attached notice marked "Appendix." 4 Copies of said notice , to be furnished by
the Regional Director for the Fourth Region , shall, after being duly signed by the
Respondent , be posted by the Respondent immediately upon receipt thereof, and be
maintained 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 the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
' 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 enforced
by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
ED WHITE JUNIOR SHOE COMPANY 403
Notify the Regional Director for the Fourth Region , in writing, within 10 days
from the date of this Intermediate Report , what steps the Respondent has taken to
comply herewith.5
5 In the event that this Recommended Order shall be adopted by the Board, this provi-
sion 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 , I notify my employees that:
I WILL, upon request , bargain collectively with Furniture and Allied Workers
Union Local No. 37, Upholsterers ' International Union, AFL-CIO, as the ex-
clusive bargaining representative of all employees in the following unit with
respect to rates of pay, wages, hours of employment , and other conditions of
employment , and, if an understanding is reached , embody such understanding
in a signed agreement . The bargaining unit is:
All production and maintenance employees of the United Store Fixture
Mfg. Co., exclusive of office clerical and supervisors as defined in the Act.
I WILL offer to all strikers , upon their application , reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority
or other rights or privileges , dismissing , if necessary , any employees hired after
July 18, 1962, to replace these employees , and I will make each employee whole
for any loss of pay suffered by him as a result of my failure to reinstate him
within 5 days after his application.
DOMINIC J. CALABRESE TEA UNITED
STORE FIXTURE MFG., CO.,
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, 1700
Bankers Securities Building, Philadelphia 7, Pennsylvania , Telephone No. Penny-
packer 5-2612, if they have any question concerning this notice or compliance with
its provisions.
Ed White Junior Shoe Company I and Boot and Shoe Workers
Union, AFL-CIO. Case No. 26-CA-1311. March 13, 1963
DECISION AND ORDER
On November 27, 1962, Trial Examiner Ramey Donovan issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and rec-
commending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found the Respondent had not engaged in
certain other unfair labor practices and recommended that the com-
I name of the Respondent appears as amended and will be so reflected in the notice.
141 NLRB No. 32.
708-006-64-vol. 141-27