Walter Kocher & Co.

National Labor Relations Board - Board Decisions

May 21, 1953

104 N.L.R.B. 1090 (N.L.R.B. 1953)

1 090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WALTER KOCHER and ROSE KOCHER, co- artners doing
business as WALTER KOCHER & CO. and
p
LOCAL 32B,
BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL. Case No. 2-CA-2113. May 21, 1953
DECISION AND ORDER
On March 23, 1953, Trial Examiner Samuel Binder issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions and a supporting
brief .1
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, as amended, the Board has delegated its
powers in connection with this case to a three-member panel
[Members Houston, Styles, and Peterson],
The Board has reviewed the Trial Examiner's rulings made
at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the brief and exceptions, and
the entire record in the case, and hereby adopts the findings,i
conclusions, and recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Walter Kocher and Rose
Kocher, co-partners doing business as Walter Kocher & Co.,
their agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local 32B, Building Service
Employees International Union, AFL, or any other labor organ-
ization of its employees, by discriminating in regard to the
hire and tenure of their employment or any term or conditions
of employment.
(b) Promising benefits to employees in return for renouncing
Local 32B, Building Service Employees International Union,
AFL, or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-
1 The Respondent's request for oral argument is hereby denied, as the record and the ex-
ceptions and its brief adequately present the facts, issues, and positions of the parties.
2 We agree with the Trial Examiner that the Respondent , by its entire course of conduct,
made it reasonably appear to Benjamin Powell that Meryl Bastien was acting on its behalf
and the Respondent is therefore responsible for her statements and activities . In addition, we
find that the Respondent 's responsibility for Bastien 's conduct derives from the fact that the
Respondent made Bastien its agent . This relationship is clearly indicated in the following:
Walter Kocher told Bastien to find out what Powell wanted to "make him happy ," and to
"arrange" it so Powell would have what he wanted . Thereafter , Bastien, in an effort to
"arrange" matters, offered Powell a salary increase if he would not vote for the Union. And
when Bastien reported her actions to Kocher , they were not repudiated.
104 NLRB No. 149.
WALTER KOCHER & CO. 1091
organization, to form labor organizations, to join or assist
Local 32B, Building Service Employees International Union,
AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Benjamin Powell immediate and full reinstate-
ment to his former or substantially equivalent position with-
out prejudice to his seniority or other rights or privileges,
and make him whole in the manner set forth in the section of
the Intermediate Report entitled "The Remedy," for any loss
of pay he may have suffered by reason of the discrimination
against him.
(b) Upon request, make available to the Board or its agents
for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and
reports, and all other records necessary or convenient for the
analysis of the amount of back pay due under the terms of this
Order.
(c) Post at their establishment at 17 West 57th Street, New
York, New York, copies of the notice attached hereto marked
"Appendix A." ' Copies of such notice to be furnished by the
Regional Director for the Second Region, shall, after being duly
signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof
and be maintained by it for a period of sixty (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 ma-
terial.
(d) Notify the Re ional Director for the Second Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
9In the event that this Order is enforced by a decree of a United States Court of Appeals.
there shall be substituted for the words "Pursuant to a Decision and order " the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
1 09 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT promise benefits to employees in return
for renouncing Local 32B, Building Service Employees
International Union, AFL, or any other labor organization.
WE WILL NOT in any other 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 Local 32B, Building Service Employees
International Union, AFL, or any other labor organization,
to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8
(a) (3) of the Act, as guaranteed in Section 7 thereof.
WE WILL offer to Benjamin Powell immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to any seniority or other rights
and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of the discrimination
against him.
All of our employees are free to become or remain or to re-
frain from becoming or remaining members of Local 32B,
Building Service Employees International Union, AFL, or any
other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of
employment against any employee because of membership in
or activity on behalf of any such labor organization.
WALTER KOCHER and ROSE KOCHER,
co-partners doing business as WALTER
KOCHER & CO.,
Employer.
Dated ................ By....... .................. ...... .... .........
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Local32B, Building Service Employees International Union, AFL,
herein called the Union , the General Counsel of the National Labor Relations Board. i by the
Regional Director for the Second Region (New York , New York), issued a complaint dated
July 30, 1952 , against Walter Kocher and Rose Kocher , co-partners doing business as Walter
i The General Counsel and his representative at the hearing are referred to as the General
Counsel The National Labor Relations Board is herein called the Board.
WALTER KOCHER& CO 1093
Kocher & Co , herein called the Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, as amended, 61 Stat 136, herein called the Act.
Copies of the charges, complaint, and noticeofhearing were duly served upon the Respondent
and the Union
With respect to the unfair labor practices , the complaint alleged, in substance, that the Re-
spondent (1) on April 12, 1951, discriminatorily discharged Benjamin Powell who was employed
by Respondent at its building at 17 West 57th Street, New York, New York, and failed, refused,
and continues to refuse to reinstate him to his former or substantially equivalent position for
the reason that he joined or assisted the Union; and (2) from on or about March 9, 1951, the
Respondent through its partners and/or agents interrogated Powell concerning his union mem-
bership and activities , warned him to refrain from assisting, becoming a member of, or re-
maining a member of the Union; threatened him with discharge or other reprisals if he be-
came or remained a member of the Union or engaged in activities on behalf of the Union, and
offered and promised a wage increase and other benefits to him to induce him to refrain from
becoming or remaining a member of the Union or to refrain from engaging in activities on
behalf of the Union. The complaint further alleged that by the foregoing conduct the Respond-
ent engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a)
(1) and (3) of the Act.
Thereafter, the Respondent duly filed an answer admitting certain allegations of the com-
plaint but denying that it had engaged in any unfair labor practices Pursuant to notice a
hearing was held on February 9 and 10, 1953, at New York, New York, before Samuel Binder,
the undersigned Trial Examiner, duly designated by the Chief Trial Examiner in place and
stead of Trial Examiner Robert L Piper, who on January 5, 1953, without hearing any evi-
dence postponed the hearing on Respondent's request The General Counsel, the Respondent,
and the Union were represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses, and introduce evidence bearing on the issues was afforded all parties
Briefs were submitted by the General Counsel and Respondent
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following findings of fact, conclusions of law, and recommendations
I. THE BUSINESS OF THE RESPONDENT
Walter Kocher and Rose Kocher, co-partners doing business as Walter Kocher & Co , are
engaged in the assembly, sale, and distribution of clocks, watches,and related products The
complaint alleged that during the year ending December 31, 1951, the Respondent brought into
its plant watches, movements, cases, and other materials valued in excess of $ 250,000, of
which about 75 percent was transported to Respondent's plant in interstate and foreign com-
merce from States of the United States other than the State of New York and from foreign
countries During the same period the Respondent assembled, sold, and distributed watches,
clocks, and related products valued in excess of $ 250,000, of which approximately 75 percent
was transported from said plant in interstate commerce to States of the United States other
than the State of New York. The Respondent conceded and it is found that the Respondent is
engaged in commerce within the meaning of the Act.
IL THE ORGANIZATION INVOLVED
Local 32B, Building Service Employees International Union, AFL, is a labor organization
admitting employees of Respondent to membership.
IIL THE UNFAIR LABOR PRACTICES 2
A. Interference, restraint, and coercion
Benjamin Powell , an elevator man and part - time porter , began his employment with the
Respondent in 1946. During the first week of March 1951, he became a member of the Union
2 The testimony concerning the incidents involved in this proceeding is conflicting and con-
tradictory and the findings of fact made herein result from the undersigned's attempt to
reconcile the evidence and determine what probably occurred. The findings of fact are based
upon a consideration of the entire record and observation of witnesses. All evidence on dis-
puted points is not set forth so as not to burden unnecessarily this report. However, all has
been considered and where required resolved In determining credibility the undersigned has
considered inter alia, the demeanor and conduct of witnesses; their candor or lack thereof;
283230 0 - 54 - 70
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about March 13, 1951, Respondent received a letter from the New York State Labor Re-
lations Board stating that the Union had filed a petition requesting that it be certified as the
representative for collective bargaining for Powell and requesting a conference 8 Upon
Kocher's return from a trip to California in March 1951, the letter was shown to Kocher and
he became aware that Powell had joined the Union.
1. Statements by the Employer
Shortly thereafter Kocher came into the elevator with some papers in his hand and said to
Powell "Do you think I am going to let the Union come in here and run my business9 If you
don't like the money I am paying, and I am paying more than the Union, why don't you quits "
Kocher, when questioned about this incident, denied that he had made such statements His
testimony in regard to this occurrence was given in an evasive, hesitating, and equivocal way.
Moreover, his memory in regard to the matter did not appear reliable Powell's testimony is
credited
These statements (which cannot be isolated from other unlawful conduct of the Employer
which will be described hereinafter) constituted interference with, restraint, and coercion in
contravention of the rights guaranteed employees by Section 7 of the Act and the Respondent
thereby violated Section 8 (a) (1) thereof
2 Statements by the Respondent's bookkeeper
On the same day that Kocher made the statements referred to above, he invited Meryl
Bastien, a bookkeeper employed by the Respondent, to a luncheon conference at which the
major subject of discussion was a proposed reorganization of Respondent's office and the
assumption of certain duties by Bastten which theretofore had been performed by Charlotte
Escher, who was in charge of the office in Kocher's absence and was about to leave the Re-
spondent's employ 4 During the luncheon conference, however. Kocher referred to Powell
having joined the Union, talked about "Ben Powell stirring up trouble after so many years of
employment," told Bastien that he was upset, aggravated, and irritated, asked her to find out
what Powell would like in order to make him happy on the job, and "to find out what salary
Ben wanted."
Following the luncheon conference , Bastien returned to Respondent's premises and spoke to
Powell She spoke to Powell at least twice on that day She told Powell that Kocher had asked
her to speak to him and offered Powell a higher salary than he was then making She explained
that it would be impossible to work only 40 hours on that job and it would be "too expensive to
have someone working from 6 to 7 a couple of days a week," and further if he took the higher
rate of pay he would be making overtime, and that if "we had someone replacing him he would
lose his overtime." 5 Bastien asked Powell if he received all she was offering "would he be
happy on the job without the Union." Bastien also recalled that at the end of the day when she
spoke to Powell again she used the words "vote against the Union." Bastien reported to
Kocher the same day or the next day "approximately what [she] had said to Powell and what
he had said to me " She reported to Kocher that she had told Powell "what salary we could
offer and had asked him what he wanted and wound up by asking if he would be happy and not
vote for the Union and that Powell had said ' no.' " Bastten recalled that the most important
thing to Powell was the 40 - hour week and recognition of the Union. In addition , she recalled
that Powell had said he was offended because Kocher had called him a liar and she also re-
ported that fact to Kocher.
their apparent fairness , bias , or prejudice ; their interest or lack thereof ; their ability to
know, comprehend and understand matters about which they have testified; and whether they
have been contradicted or otherwise impeached.
s The letter did not mention Powell by name , bur he was the only person on whose behalf
the Union was acting.
apt the date of the hearing , Bastien testified that she was paid $75 a week by Respondent
and $50 a week by Bobet Watch Company . Kocher corroborated Bastien in regard to the hold-
ing of the luncheon conference and explained that Escher was second in command to himself
at the office and Bastien was to take over some of Escher's duties.
SPowell testified that prior to June 1950 , he had been working 6 days a week from 6 a.m.
to 6 p. m. and then overtime to 7:30p . m.; that thereafter he worked a 5-day week from 7 a. m.
to 6 p. in., along with overtime until 7:30 every night . He earned on the average with over-
time $60 a week Bastien , according to Powell , offered him $74 a week.
WALTER KOCHER & CO 109 5
Kocher had asked her to talk to Powell and "naturally" she "told him the results " Bastien
testified that she did not remember whether Kocher gave her "specific instructions" 6 when
talking with Powell to discuss the Union or to talk to Powell about not voting for the Union
However, as she understood it from her luncheon conference, "one of the contentions" be-
tween Kocher and Powell was "the problem of Mr. Powell being in the Union "
Bastien's testimony supported that of Powell which in substance was that she offered him
a wage increase provided he voted against the Union and he replied that all he wanted was a
40-hour week and $54 and would not vote against the Union
Kocher testified that one of the reasons for the luncheon conference with Bastien was that
he "had some subpoenas from the State Labor Relations Board," that by "subpoenas" he was
referring to the letter from the State Labor Relations Board, that he was aware that Bastien
knew that Powell had joined the Union a short time before the conference, that he mentioned
to Bastien that he had been put to some trouble by having to attend some conferences at the
State Labor Relations Board relating to Powell, that he was bothered by the attorney's fee he
was going to have and because his time was being taken up, and that he "undoubtedly con-
versed with Miss Bastien about Ben Powell stirring up trouble after so many years of em-
ployment," and that he directed Bastien to find out what was "itching" Powell. Kocher also
testified that after he got back from California in March 1951, he could tell from Powell's
demeanor and facial expression that something was troubling him, that he wanted to find out
what the matter was, and that "it was impossible to keep mum for any length of time the way
he was running the elevator and the way I was greeted when I would show up in the morning
or late afternoon or any time. The way the customers were greeted, the way the tenants were
greeted, or the way the whole building was run." However, Kocher gave no testimony that at
the conference he called Bastien's attention to these matters or requested her to inquire into
them.
Bastien, on the other hand, testified that Kocher had not said anything to her about Powell's
work or about complaints from tenants. In fact, Kocher's statements at lunch did not reflect
any intention to have Bastien talk to Powell in order to effect an improvement in Powell's
demeanor or efficiency or for the purpose of dissipating any resentment or ill feeling Powell
may have had towards Kocher which reflected itself in his facial expression or otherwise. It
was evident that one of the reasons for the conference was that Kocher was irritated about
Powell "stirring up trouble after so many years of employment." The trouble that Powell
"stirred" up was to irritate Kocher by causing him to lose time from his business in attend-
ing conferences at the New York State Labor Relations Board and to expend money for lawyers'
fees, events stemming from Powell's joining the Union. In addition, it appeared that if Powell
had his way about a 40-hour week the Respondent might be put to additional cost in the opera-
tion of its building, a situation reflected in the remarks of Bastien to Powell One of the pur-
poses of the luncheon conference was to seek a solution to these problems 7 The solution hit
upon was to offer Powell a wage increase in return for renouncing the Union
Bastien is a highly intelligent person and the Trial Examiner is persuaded she made no
mistake in carrying out the mission entrusted to her. Her statements and conduct reflected
Kocher's intentions in the matter Moreover, it would strain credulity to believe that Bastien
did not report to Kocher her conversations with Powell and particularly that she did not re-
port to him matters which she recalled as "important "
Although her demeanor and her responses to questions indicated that Bastien was a reluc-
tant witness whose memory required some prodding, she was on the whole a truthful wit-
ness.6
6See Section 2 (13) of the Act.
7 Kocher had learned several years before Powell's discharge that the latter belonged to a
CIO union and Respondent contended that the continuance of Powell as an employee thereafter
established that he had no antiunion bias. The fact is that the CIO union had no relation to
Respondent or its operations. When a union whose activities impinged on Respondent's busi-
ness appeared on the scene Kocher was quick to show his irritation and resentment against
Powell because of the Union's activity in seeking certification as the latter's bargaining
representative. Respondent's disingenuous contention is rejected.
6Cohalan, counsel for the Respondent, who offered himself as a witness, testified, among
other things, that despite the fact that he had no doubt at the time he was preparing this case
regarding Bastien's truthfulness, he decided not to inquire of her concerning her discussions
with Kocher or Powell because she sympathized with the latter, nor did Cohalan attack
Bastien's credibility when, towards the close of the proceeding, he expressed his views re-
garding the evidence in this case.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kocher ' s manner on the witness stand was shifty and his responses to questions were fre-
quently evasive , and insofar as his testimony contradicts or is inconsistent with that of Bastien
and Powell , it is not credited
3. The responsibility of the Employer for Bastien ' s conduct and statements
Certainly if Kocher had made the statements and promises which Bastien had made to
Powell in regard to voting against the Union or surrendering his union adherence in return
for higher wages, there would be no doubt that a violation of Section 8 (a) (1) of the Act would
have been involved . s However , it is contended that the Respondent was not responsible for
Bastien's conduct or statements because they were unauthorized and accordingly the com-
plaint, insofar as it is based on her statements and conduct , should be dismissed
It is clear from Kocher ' s own testimony that he asked Bastien to talk with Powell on Re-
spondent ' s behalf on its premises during working hours This was on the same day that Kocher
had made antiunion remarks to Powell and a short time after he had received the letter from
the New York State Labor Relations Board to which we have referred . Moreover , Bastien
informed Kocher regarding her conversations with Powell and he never repudiated the state-
ments which she made to Powell . Accordingly , it appears that the Respondent acquiesced in
her conduct , statements , and promises The Respondent by its entire course of conduct made
it reasonably appear to its employee , Powell , that Bastien was acting on its behalf and the Re-
spondent is therefore responsible for her statements and activities. to
B. The discriminatory discharge
No untoward incident followed Powell 's conversation with Bastien until April 12, 1951 On
that day Bastien requested Powell to come to her office and told him that Kocher had directed
her to discharge him. Nothing was said by Bastien or Kocher to Powell regarding the reasons
for the discharge , but Bastien told Powell that on his way out he could stop and see Kocher
Powell replied that since Bastien was the "secretary " and Kocher told her to pay him off
there was no use in seeing him.
Kocher testified to numerous matters which he claimed had arisen during the period of
Powell's employment , apparently for the purpose of showing that Powell was discharged, not
for joining the Union or for union activities but, because he was not neat in his appearance,
absented himself from the job , was inefficient , there was doubt regarding Powell ' s integrity
or trustworthiness, and that Powell was impertinent on April 12, 1951. Much of the testimony
related to conditions which existed or to matters which arose long prior to the discharge, it
such as whether a uniform worn by Powell was purchased in 1947, the latter part of 1949, or
early 1950 ; 12 and who initially made arrangements for the employment of one Julius McLaughlin
to relieve Powell from duty at lunchtime , and the amount of money which was or should have
been paid to him for his services . 13 In addition , testimony was offered bearing on whether
9Cf. Standard Transformer Company, 97 NLRB 669. National Plastic Products Co . 78
NLRB 699
10Cf. S. D. Cohoon and Son, 101 NLRB 966, National Paper Company et al , 102 NLRB 1526,
H and H Manufacturing Company, Inc , 87 NLRB 1373, Standard Oil Co v Lyons, 130 F 2d
965, Angerosa v White Co., 290 N.Y. Supp. 204, afd 11 N E 2d 325, N. L. R. B. v Cleveland-
Cliffs Iron Co , 133 F 2d 295, 301 (C. A. 6); Alexander v. Phillips Petroleum Company, 130
F. 2d 593 (C. A. 10)
11 Testimony was received concerning an incident during August or September 1950, in which
some public official required Respondent to pay Powell wages in cash rather than by check.
Kocher in his testimony conceded that this matter was of a wholly minor character
12 In the Trial Examiner ' s opinion , the only relevance which this testimony could be said to
have would be as support for the contention that Powell was not neat in his appearance The
fact is, however , that Powell continued to work for at least 1 year after he obtained the uniform
and if Kocher ' s testimony is credited on this point for several years after he got the uniform
Bastien testified that she had worked for Respondent since January 1951, that Powell dressed
neatly, was polite , and always looked clean , and her testimony is credited.
1s Kocher testified that Powell engaged McLaughlin and received payment from Respondent
for McLaughlin ' s services at the overtime rate, but only paid McLaughlin at the regular or
lower rate of pay. Kocher claimed that upon obtaining information in this regard he corrected
the situation . This incident arose, according to Kocher , several months and possibly a year
before Powell ' s discharge It had, in the Trial Examiner ' s opinion , no bearing thereon.
WALTER KOCHER& CO. 1097
Powell's work was satisfactory; 14 and whether Powell was absent from his work for feigned
reasons. 15 Considerable testimony was also presented to show that Powell was discharged be-
cause Kocher had doubt regarding Powell's integrity or trustworthiness. This testimony re-
volved around two incidents. The first related to the alleged theft of watch straps and bracelets
from Respondent in 1950, and the second to the making of a loan by a bank in Queens County,
New York, allegedly to Powell which he refused to concede he had made and would not agree
to repay These incidents will be treated seriatim.
Kocher testified that in 1950 he had inventories of watches, clocks, and other things of value
in his place of business, having a value as high as $350,000 but that his insurance coverage
was only $100,000. The coverage was not higher because of the cost of such insurance. In the
spring or summer of 1950, Kocher received a telephone call from a policeman who informed
him that a person named "McLinton" had been arrested for having in his possession watch
straps and bracelets belonging to the Respondent which he claimed to have obtained from
Powell. Kocher was asked if he would prefer charges against McLinton, but he advised the
policeman that he would not as he did not have time to do so. Kocher testified that when he
advised the police authorities he would not file a charge, he had "no idea" as to the value of
the watch straps and bracelets alleged to have been taken. He also testified that he did not have
any talk with Powell about the incident, but that he started to watch him as he was afraid. He
also testified that about a half a year before Powell was discharged a package disappeared
from the office, but he did not say anything to Powell about that either.
Powell testified that in 1950 McLinton Hardy was employed by Respondent as a porter to
clean and wax the floors of Respondent's offices, that the Respondent discarded certain watch
straps which were thrown in the wastebasket and afterwards brought down to the basement,
that he saw Hardy in the basement picking straps from the trash, that he (Powell) had found
some watch straps in the trash which he had saved and given to Hardy; that thereafter Hardy
was arrested and brought to Respondent's premises by a detective. On that occasion, Powell
explained the facts to Kocher, a watch repairman employed by Respondent, and the detec-
tive. 16
Kocher admitted reluctantly that in the course of Respondent's operations some watch
straps were discarded but professed not to be able to recall the circumstances related by
Powell. He also testified on direct examination that the person arrested was "a man by the
name of McLinton I believe," as if the person were a complete stranger to him. IT
McLinton Hardy was in the hearing room but was not called by either party.
Powell's testimony is credited and insofar as Kocher's testimony is contradictory of or
inconsistent with that of Powell it is not credited
In the Trial Examiner's opinion the incident had nothing to do with the termination of
Powell's employment except to furnish a pretext to justify the discharge.
On or about February 7, 1951, Kocher received a telephone call from a Mr. Toro of the
West Hempstead National Bank on Long Island, in which he was advised that Powell had
borrowed money from the bank and was delinquent in making payments thereon. In the
telephone conversation Toro described the borrower as a person in the late forties, i e.,
a person substantially younger that Powell. Kocher knew that Powell was almost 60 years
old and questioned Toro as to whether the Powell who worked for the Respondent was the
borrower. Kocher then discussed the matter with Powell who denied that he was the person
who borrowed the money and showed Kocher a Coast Guard pass18 setting forth his date of
birth as April 15, 1892, and a second card stating that he was a member of a praying group of
the St. James Missionary Church. Powell told Kocher he knew nothing about the loan be-
cause he had not borrowed the money and was not going to pay the bank and he mumbled
14Kocher testified that he received complaints from tenants. It is possible that complaints
were received, but they appear to have been so minor in character that Kocher had no re-
collection of talking about them to Powell. Such complaints as were received appeared not to
have formed any part of the considerations which led to Powell's discharge.
18 Kocher testified to an incident where Powell took some time off because he claimed he
needed a hernia operation, but when Kocher suggested that Powell see an insurance doctor
Powell returned to work saying that he had changed his mind about the operation. This incident
took place at least 2 years before the discharge and had no relation to the termination of
Powell's employment.
16Kocher did not deny that Powell had told him that he found some watch straps in the
trash and had given them to McLinton Hardy
17Later he testified that he trusted "McLinton" more than he did Powell.
18Kocher mistakenly referred to this pass as a "union card."
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
something about his brother-in-law. Kocher told Powell that he was lying.19 Despite his
statement , however, Kocher appeared to have some doubt about the matter. Accordingly,
he requested a stenographer whom he employed to make a further inquiry into the facts
Thereafter, Kocher went to Europe and did not return to New York until February 22, 1951.
During Kocher's absence, Powell was required to appear in court to answer questions put
to him by an attorney representing the bank. Among other things, Powell was asked whether
he had signed certain papers, and he denied that he had. He also identified a person named
Fred Williams as his brother-in-law. Thereafter, in May 1951, Powell was subpenaed to
appear before the grand jury of Queens County, New York. Powell went to the district at-
torney's office where Powell's brother-in-law, Fred Williams, in Powell's presence, ad-
mitted that he had signed Powell's name to certain papers relating to the bank loan Sub-
sequently Powell appeared as a witness in a criminal case brought against Williams and
the latter was convicted and sentenced to a prison term.
It is quite possible that Kocher, before his-departure for Europe in February, had some
doubts regarding Powell's integrity. However, in March 1951, after Kocher returned from
Europe, he directed Bastien to enter into the discussions with Powell which have been de-
scribed The directions given Bastien by Kocher and his failure to disavow Bastien's state-
ments after she had apprised him of them bespeak a desire to continue Powell in his employ,
if only he would surrender his union adherence. The Trial Examiner concludes that Kocher's
doubt, if he had any, regarding Powell's trustworthiness or integrity were not the cause of
Powell's discharge.
The reason finally ascribed and principally relied upon by Respondent for Powell's dis-
charge was impertinence. 20 According to Kocher, the following incident occurred: During the
afternoon of April 12, 1951, the day before a hearing at the New York State Labor Relations
Board was scheduled to be held in regard to the petition for certification filed by the Union,
Kocher approached the lobby of his building. Heheard voices raised in loud argument between
Powell and a man unknown to him. "Finally that man left," Kocher got in the elevator, and
on the way up to the third floor asked Powell what the argument was about. Powell replied,
"It's none of your business," and Kocher never had any further discussion about the incident
with Powell. Kocher then telephoned his attorney, Cohalan; and asked if he had "to take it "21
Cohalan advised Kocher that he did not and that afternoon Kocher instructed Bastien to dis-
charge Powell, which she did.
Kocher claimed he did not hear what the argument was about and his description of the
alleged occurrence and the person with whom Powell was arguing was vague and unconvincing.
Powell testified that he never said "none of your business" in response to any inquiry from
Kocher, and that no such incident as Kocher had described or any similar incident had ever
happened His manner was straightforward, his testimony was clear and direct and is cred-
ited. 22
19 Kocher testified that he discharged Powell on February 8, 1951. Later he appeard to re-
treat from this position and testified that "There was no time to look for another man before
I left for Europe." Kocher then claimed that he told Powell "he should look for another job"
and that Powell knew that he was discharged and joined the Union "to get protection." The
facts are that Kocher returned from Europe and went to his office on February 22, saw Powell
working in the elevator, and said nothing and took no action whatever at that time to terminate
Powell's employment. Powell did not join the Union until the first week in March, approxi-
mately a month after the date that Kocher claimed that he had discharged Powell, and about
10 days after Kocher's return from Europe. Powell testified that one of the reasons he joined
the Union was because he was interested in getting a 40-hour workweek. Kocher's testimony
that he discharged Powell on February 8 and that Powell joined the Union " to get protection"
against such discharge is not credited.
29 The following colloquy took place between the Trial Examiner and Respondent's counsel
when the latter was making his closing statement in the case:
Trial Examiner: . . Do you lay this case almost solely then upon this alleged im-
pertinence of Powell on the 12th of April .... Is that the substance of your position"
Mr. Cohalan: That is the substance of my position, sir ....
21 Cohalan, counsel for the Respondent, voluntarily offered himself as a witness to corrob-
orate the fact that Kocher had telephoned and told him about the alleged incident However,
since Cohalan was not a witness to the alleged incident, his testimony was only evidence of
what his client told him.
22Cohalan testified that when he was engaged in this matter he had a conversation with
Bastien in which she characterized Powell as a "gentleman." Based on Powell's demeanor,
general appearance, and testimony, the Trial Examiner is persuaded that her characteriza-
tion was a correct one.
WALTER KOCHER & CO. 1099
Respondent 's counsel in his closing statement argued that it was not until Powell had made
his alleged impertinent remark on April 12 that Kocher made up his mind to discharge him. 23
During the course of the hearing , it developed that after Powell 's dismissal an unfair labor
practice case was instituted by the New York State Labor Relations Board against Respondent
and such case was consolidated with the certification petition In its answer in the consoli-
dated proceeding, the Respondent stated that its "discharge of Benjamin Powell was not for
union activity nor for any reason which would violate either the State or the Federal Labor
Relations Act, but solely for other causes, among which is the fact that certain information
came to the Respondent which cast doubt upon the integrity and trustworthiness of the said
Powell, which said Powell has refused to explain satisfactorily and still refuses to explain
satisfactorily." It also appeared that following Powell's dismissal Kocher said to Bastien, or
in her presence, that he did not fire Powell for joining the Union but for unsatisfactory work,
and that he made such statement more than once to his wife and Mr. Cohalan.
The shift in emphasis from untrustworthiness to unsatisfactory work and finally to im-
pertinence in regard to the reasons why Powell was discharged cannot be said to be without
significance. U
C. Concluding findings
The claims made by Kocher that he discharged Powell because he was not neat, was ineffi-
cient, absent from work for feigned reasons, was untrustworthy, and finally that he was im-
pertinent, appear to be without substantial basis in fact On the other hand, it is clear that
almost as soon as Kocher became aware of Powell's membership in the Union and the activi-
ties of the Union on the latter's behalf he became irritated and upset and made antiunion
statements to Powell and proposed through his emissary, Bastien, that Powell renounce the
Union in return for an increase in wages.
The undersigned is persuaded that Powell's rejection of the offer only further irritated
Kocher and led to his discharge on the day before the hearing at the New York State Relations
Board on the representation petition filed by the Union.
On the basis of the record, as a whole, the undersigned concludes that the General Counsel
has established by a preponderance of the evidence that Powell was discharged because he
joined the Union and because he refused to renounce the Union when requested to do so by the
Respondent.
2SSee footnote 20, supra. Respondent's attorney in his closing statement referred to the
alleged incident and argued that it was " . . on that day in question when that spark blew off,
that everything between the men culminated in the discharge that was inflicted or given to
this man for this occurrence that happend that day." As the Trial Examiner understood
counsel's position, it was that there had been a growing dissatisfaction on Respondent's part
with Powell's conduct and character and that Powell's impertinence was the catalyst which
brought on his dismissal. In connection with this contention it may be noted that, in the face
of Kocher's long catalogue of Powell's faults of conduct and character observed over a period
of approximately 5 years, Kocher volunteered, when questioned about the instructions he
gave Bastien at the March 1951 luncheon conference, that "We never had up to this time, I
never had up to this time any discrepancy with Ben. Ben used to usually come to me and ask
for a raise , or this, or that, which he got freely ...." Moreover, in March 1951, shortly
before he was discharged, Kocher, through Bastien, offered him a pay raise if only he would
renounce the Union. In addition, it appears that after Powell was dismissed, Kocher. in ex-
plaining his reasons therefor, stated to or in the presence of Bastien that he fired Powell not
for joining the Union but for unsatisfactory work. If Kocher had become so "exercised" or
angry over an alleged impertinence that he discharged Powell because of it, it would appear
improbable that in discussing the reasons for the dismissal with or in Bastien's presence he
would dwell entirely on Powell's unsatisfactory work and say nothing about the impertinence.
Further, Kocher's testimony in regard to Powell's alleged faults of conduct and character
has been considered in the text of this report, and it has been determined that his claims in
this connection were mere pretexts and were not the actual reasons for Powell's dismissal.
Moreover, Kocher's testimony regarding the alleged impertinence was unpersuasive, while
Powell's testimony was, in general, clear and convincing. In the Trial Examiner's opinion,
the evidence, taken as a whole, does not support counsel's position in the matter.
24 The Trial Examiner does not believe that it was a combination of these factors which was
the cause of Powell's discharge. See in this connection, footnote 23, supra. Cf. N. L. R. B. v.
International Furniture Co., 199 F. 2d 648 (C. A. 5).
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of commerce
V. THE REMEDY
Since it has been found that theRespondent has engaged in unfair labor practices, the under-
signed will recommend that the Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. The undersigned has found
that beginning April 12, 1951, the Respondent discriminated against Benjamin Powell and it
will therefore be recommended that the Respondent be ordered to offer Powell immediate and
full reinstatement to his former or substantially equivalent position without prejudice to his
seniority or other rights and privileges and make him whole for any loss of pay suffered by
him as a result of the discrimination by payment to him of a sum of money equal to the amount
he would have earned from April 12, 1951, the date of the discrimination, to the date of the
offer of reinstatement less his net earnings, zs to be computed on a quarterly basis in a manner
established by the Board in F. W. Woolworth, 90 NLRB 289. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other such period it will also
be recommended that the Respondent make available to the Board, upon request, payroll and
other records to facilitate the checking of the amounts due.
It has also been found that the Respondent has engaged in certain acts of interference, re-
straint , and coercion , in violation of the rights guaranteed employees under Section 7 of the
Act.
The Respondent's infractions of Section 8 (a) (1) and 8 (a) (3) of the Act, herein found, dis-
close a fixed purpose to defeat self-organization and its objectives Because of the Respond-
ent's unlawful conduct and its underlying purposes , the undersigned is persuaded that the un-
fair labor practices found are related to the other unfair labor practices proscribed by the
Act, and that the danger of their commission in the future is to be a,iticipated from the
course of the Respondent's conduct in the past. The preventative purposes of the Act will be
thwarted unless the remedial order is coextensive with the threat, in order, therefore, to
make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair
labor practices, and thus to effectuate the policies of the Act, it will be recommended that
the Respondent be ordered to cease and desist from infringing in any manner upon the rights
guaranteed by Section 7 of the Act
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Local 32B, Building Service Employees International Union, AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the tenure of employment of Benjamin Powell, thereby
discouraging membership in Local 32B, BuildingService Employees International Union, AFL,
the Respondent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act
3. By interfering with, restraining , and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
25 Crossett Lumber Company , 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311
U. S. 7.