Zim Textile Corp.

National Labor Relations Board - Board Decisions

Jun 6, 1975

218 N.L.R.B. 269 (N.L.R.B. 1975)

ZIM TEXTILE CORP. 269
Zim Textile Corp . and District 65, Distributive
Workers of America . Case 2-CA-13304
June 6, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 6, 1975, Administrative Law Judge
Sidney D. Goldberg issued the attached Decision in
this proceeding . Thereafter , Respondent filed excep-
tions and a supporting brief and the General Counsel
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
1. The Administrative Law Judge finds that
Respondent violated Section 8(a)(3) and ( 1) when it
discriminatorily laid off Nelson Vega. Respondent
excepts. We find merit in this exception.
Vega was laid off on April 11, 1974. Respondent
contends that the layoff resulted from a lack of work
at its warehouse . Respondent's supervisor , Martin
Zell, testified without contradiction that because of a
reduction in shipments to and from its warehouse
Respondent decided in February 1974 that it would
lay off one of its two warehousemen . It further
decided that it would effectuate the layoff following
the receipt of a heavy shipment of towels expected to
arrive in the latter part of March and following the
heavy work of restacking, rearranging , and repacking
merchandise , etc., preparatory for its annual April
inventory . A comparison of the shipments to and
from the warehouse establishes that there was a
drastic falloff of both receipts and shipments during
the first 3 months of 1974 as compared to the
previous 3-month period or a comparable 3-month
period in 1973.1 Only in March was a large quantity
received as a result of the large shipment cited by
Respondent as part of the reason for retaining Vega
until April.
The Administrative Law Judge agrees that Respon-
dent had legitimate economic reasons for laying off
Vega as of May 17 but finds that the layoff was
accelerated because of Vega's known support for the
Union and because the layoff would result in a
reduction of the unit size to two employees with only
one of the two known to be a union supporter.2
The timing of the discharge, only a week after
Respondent admittedly discharged Vega in violation
of 8(a)(3) and (1) and then reinstated him, along with
the other unfair labor practices found herein, does
raise some suspicions as to Respondent's motivation.
However, Respondent has presented a full business
justification for the timing of the discharge. The
record clearly indicates that a heavy shipment was
received in March and that Respondent did have
work in preparation for the inventory during the first
2 weeks in April. Further, the evidence indicates that
thereafter there was not sufficient work for more
than one man . Under these circumstances, we
conclude that the General Counsel has not met his
burden of establishing that the layoff was unlawful.
Accordingly, we shall, and hereby do, dismiss this
allegation of the complaint.
2. The Administrative Law Judge finds that
Respondent became obligated to bargain with the
Union when Zell questioned two of the three unit
employees and received affirmative statements of
support, since at that time Respondent knew a clear
majority of the employees wished to have the Union
represent them. Respondent contends that it did not
engage in the type of questioning or polling which
raises a bargaining obligation. We agree.3
On April 4, 1974, Zell received in the mail a letter
from the Regional Director enclosing a copy of the
1 The record shows the following for these periods.
1973 Pounds in Cartons
Jan. 22 ,550 321
Feb. 13,601 198
March 23,552 138
Oct. 28 ,022 171
Nov. 17 , 945 173
Dec. 28 , 903 128
1974 Pounds in Cartons
Jan. 0 119
Feb. 855 100
March 28,121 90
2 The Administrative Law Judge does not set forth the basis upon which
he chose May 17 as being the earliest date that Respondent had economic
justification for laying off Vega.
3 Unlike his colleagues , Member Fanning would affirm. the Administra-
tive Law Judge's finding that Respondent became obligated to bargain with
the Union when Zell questioned two of the three unit employees and
received affirmative statements of support . Accordingly, he would adopt the
Administrative Law Judge's conclusion that Respondent violated Sec
8(a)(5) and (1) when it refused to do so.
218 NLRB No. 46
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation petition filed by the Union the
previous day. When employee Israel Colon came to
work a few minutes later, Zell confronted him with
the petition and pointed out that the petition had
been filed the previous day despite Zell's understand-
ing that the two employees (Colon and Vega) had
promised the matter would be "straightened out"-a
reference to an earlier discussion Zell had with the
employees with regard to the Union. Zell shouting in
anger continued saying the petition made it neces-
sary for him to retain an attorney costing "thousands
of dollars." Colon pounded the desk and said he
wanted the Union. At this Zell said, "If you want the
Union you are fired." Zell then shouted to employee
Vega, "Nelson, do you want the Union?" When Vega
answered that he did, Zell said, "You are fired too,
get out." After consulting with an attorney, Respon-
dent reinstated the employees the next day with no
loss of pay.4
In Sullivan Electric Company, 199 NLRB 809
(1972), the Board held that when an employer
unilaterally undertakes to determine the union's
majority or minority status under conditions of his
own choosing as an alternative to an election the
employer cannot thereafter disclaim the results
simply because it fords them distasteful. In our
opinion this angry confrontation between Zell and
the employees did not constitute the considered
selection of an alternative to an election contemplat-
ed by Sullivan Electric. Zell simply engaged in a
confrontation with the employees. There is no
indication that he set out to determine the Union's
majority or minority status. Only one of the three
unit employees was questioned. Another volunteered
his support for the Union in response to Zell's angry
comments. Clearly, Respondent was not seeking to
determine the Union's majority or minority status by
polling the employees as an alternative to an election.
Under these circumstances, we shall not adopt so
much of the Administrative Law Judge's Decision as
directs Respondent to bargain on this basis.
3. In the alternative the Administrative Law
Judge finds that Respondent's 8(a)(1) and (3) unfair
labor practices require that Respondent be ordered
to bargain with the Union.5 We agree.
As fully detailed by the Administrative Law Judge,
Respondent here unlawfully offered medical, pen-
sion, and other benefits to employees on the
condition that they withdraw support from the
Union and coercively interrogated employees con-
cerning their support for the Union. Respondent
discharged Colon and Vega, under the conditions
described above, in violation of Section 8(a)(3) and
(1). Respondent contends that these discharges do
not stand in the way of a free election because, after
consulting with an attorney, Respondent reinstated
the employees without any loss in pay. However, as
we have held, the effect of such discharges is not so
easily eradicated. Vernon Devices, Inc., 215 NLRB
No. 62 (1974). An employer's demonstrated willing-
ness to employ extreme measures to defeat a union
cannot help but have a lasting and telling effect.
Employees will certainly understand and remember
the harsh treatment visited on them as a result of
asserting their rights and may draw back from again
asserting those rights. A free and fair election in these
circumstances is unlikely.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Zim Textile Corp., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Administrative Law Judge's recom-
mended Order as herein modified:
1. Delete paragraph 1(a) and reletter the follow-
ing paragraphs consecutively.
2. Substitute the following for paragraph 2(a):
"(a) Upon request, meet and bargain with District
65, Distributive Workers of America, as the exclusive
representative of all the employees in the appropriate
bargaining unit, and, if any understanding is
reached, embody it in a signed agreement. The
appropriate unit is:
All shipping,, receiving, stock, office clerical,
production, and maintenance employees at the
New York premises, exclusive of guards, watch-
men, and all supervisors as defined in Section
2(11) of the National Labor Relations Act, as
amended."
3. Delete paragraph 2(b) and reletter the follow-
ing paragraphs consecutively.
4. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the complaint, as to all
allegations not found to be violations of the Act, be
dismissed.
4 Employer admitted that the discharges violated Sec . 8(a)(3) and (1).
5 N L R B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
6 For the reasons stated by the majority in Steel-Fab Inc., 212 NLRB
363 (1974), we do not adopt the Administrative Law Judge's finding that
Respondent violated Sec . 8(aX5) of the Act, but rather enter the bargaining
order as a remedy for the serious unfair labor practices committed by
Respondent . Member Fanning agrees that a free and fair election in these
circumstances is unlikely. He, for the reasons set forth in his dissent in Steel-
Fab, would find the violation of Sec. 8(aX5) and base the bargaining order
on that section as well as Sec. 8(aX1)
ZIM TEXTILE CORP. 271
APPENDIX DECISION
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice.
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a repre-
sentative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify
our employees that:
WE WILL, upon request, bargain collectively
with said Union as exclusive representative of
said employees and, if an agreement is reached,
embody it in a signed contract. The appropriate
unit is:
All shipping, receiving, stock, office clerical,
production, and maintenance employees at
this company's New York premises, exclu-
sive of guards, watchmen, and all supervi-
sors as defined in Section 2(11) of the
National Labor Relations Act, as amended.
WE WILL NOT make offers of benefit to induce
our employees not to engage in concerted
activities; WE WILL NOT coercively interrogate
them concerning their membership in or support
for the said labor organization, or any other labor
organization; WE WILL NOT discharge or prema-
turely lay off any employee to discourage their
membership in the said labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by the National
Labor Relations Act, except insofar as member-
ship in a labor organization may be required
pursuant to a collective-bargaining contract not
inconsistent with Section 8(a)(3) of said Act.
ZIM TEXTILE CORP.
STATEMENT OF THE CASE
SIDNEY D. GOLDBERG, Administrative Law Judge: In
this case, heard before me in New York, New York, on
July 10 and 11, 1974, the complaint,' issued pursuant to
Section 10(b) of the National Labor Relations Act, as
amended (the Act), alleges that Zim Textile Corp.
(Respondent), a wholesale dealer in blankets, bedspreads,
towels, and linens, had interfered with, restrained, ' and
coerced employees in their self-organizational activities by
threats of discharge and promises of benefits; that it had
deprived its employees of pay which was due them,
discharged them, and laid off one employee to discourage
membership in District 65, Distributive Workers of
America (the Union); and that it had refused to bargain
with the Union as the collective-bargaining representative
of its employees in an appropriate unit although it knew
that the Union had been designated as such representative
by a majority of the employees in the unit.
Respondent answered, denying the threats and promises
but admitting that it had discharged two employees. The
answer further alleged that the employees were reinstated
without loss of pay and that the subsequent layoffof one of
them was dictated by economic considerations. With
respect to the question of bargaining, the answer admitted
that the unit set forth in the complaint was, and is,
appropriate but it alleged that, although Respondent knew
that two of the three employees in the unit had designated
the Union as their collective-bargaining representative, it
was entitled to have two elections conducted by the Board;
viz, a preliminary test to determine whether the office
clerical employee should be included, and another to
determine whether the employees in the unit after such
preliminary election desired the Union as their collective-
bargaining representative.
The issues raised by the answer came on for trial before
me as set forth above. All parties were represented. They
were given an opportunity to adduce evidence, cross-
examine witnesses, and argue on the facts and the law. A
brief filed by counsel for Respondent has been considered.
For the reasons hereafter set forth in detail, I find that
Respondent interfered with the self-organizational rights of
its employees and discharged Israel Colon and Nelson
Vega on April 4, 1974, to discourage their membership in
the Union. The subsequent layoff of Vega, although
justified at a later date by business considerations, was
accelerated to discourage his membership in the Union
and to prevent him from voting in the representation
proceeding then pending. I find, however, that Respon-
dent's' refusal to pay Colon and"Vega for Good Friday did
not violate', the Act because it has not been established that
they were entitled to pay for that day. With respect to the
allegations of refusal to bargain, I find that the stated unit
is an appropriate one, and that Respondent is not entitled
to a 'separate election to determine whether the office
clerical employee desires to be included in the unit. I find
1 Issued June 6, 1974, on a charge filed May 6 and an amended charge
filed May 10, 1974.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent, by its unfair labor practices, has made
impossible the holding of a fair election, and I further find
that, because Respondent determined, by a method of its
own choice,, i.e., a direct poll, that a majority of the
employees in the unit had designated the Union as their
collective-bargaining representative, Respondent is obligat-
ed to bargain with it.
Upon the entire record herein,2 including designated
portions of the record in the representation proceeding
involving Respondent and the Union (Case 2-RC-16475),
and considering the demeanor of the witnesses while
testifying, I make the following:
FINDINGS OF FACT
1. The parties
Zim Textile Corp., a New York corporation, is wholly
owned by Morris Zimbach, who is its president. It is
engaged in selling towels and bed linens to retailers in the
New York City metropolitan area. It admits that it
annually imports into New York goods valued at more
than $50,000 and that it is an employer engaged in
commerce. I so find.
The Union is a labor organization.
2. Background
After several years at another location in New York, Zim
moved, in 1971, to 6 East 32nd Street in Manhattan where
it occupies about 7,000 square feet on an upper floor. Part
of this area consists of an entry and three offices; the
balance is warehouse space. Although Zimbach is the sole
owner of Respondent, he is about 70 years old and has
been reducing his personal activity. At the time of the
events herein, he was devoting only about 20 or30 percent
of his time to the business, half inside the premises and half
on the outside. His two, sons-in-law, Martin Zell and
Jerome Mockson, are in direct charge of its operations;
Mockson devotes his entire time to selling and Zell
supervises the work of the-office and the warehouse.
The merchandise Respondent sells is purchased directly
from the mills. Its principal supplier is Cannon Mills, from
which it makes about 90 percent of its purchases, two-
thirds of these purchases consisting of sheets and the
balance of towels. About 6 percent of its purchases are
blankets from Fieldcrest and the remainder of its goods,
mostly bedspreads, is obtained from Burlington Mills and
Georgia Mills. Only a small part of the goods purchased
and resold by Respondent passes through its physical
possession at the New York City premises. The Mills hold
most of the merchandise in their own warehouses, although
title has passed to Respondent, where they are subject to
Respondent's directions for shipping directly to Respon-
dent's customers. However, when the mill warehouses are
short of storage space, they,may ask Respondent to take
physical possession of part of its stored inventory. Most of
the merchandise brought to the New York premises
consists of small or special purchases, or goods which
2 Typographical errors in the transcript of proceedings have been
corrected by order dated December 27, 1974.
Respondent desires either to store temporarily or to repack
for shipping to customers.
Martin Zell, who acted for Respondent in the events
leading to this litigation, became employed in 1970. At that
time, there was only one regular employee working in the
storage area of the premises but there was another
warehouseman who was employed whenever needed. The
regular employee left in 1971; he was succeeded early in
1972 by a man named Fred Rosado. In March 1973,
Rosado recommended Israel Colon as a second ware-
houseman and he was hired. Rosado was discharged in
September 1973, and on October 22, 1973, Nelson Vega
was hired.
Prior to October 1972 Respondent had no office
employee; Zell did whatever was necessary and Respon-
dent's accountant made periodic visits to keep the
necessary records. Since that time, Respondent has had an
office employee to keep the records and type bills and
letters. Zell has continued to handle the payroll, preparing
the checks for signature by Zimbach.
3. Outline of events
In November or December 1973, Colon's wife became
enrolled in a training program and she and their children
lost their eligibility for public medical assistance. Colon
told Zell about the development and asked whether some
sort of medical insurance could be given to him in
connection with his employment. Colon's testimony
conflicts with that of Zell concerning the details of their
conversation, but there is no dispute that Colon made the
request and Zell was unable to grant it at that time.
Colon and Vega signed applications for membership in
the Union on February 7, 1974. On March 28, Ralph
Passman and Edward Pagan, two organizers for the Union,
visited Respondent's premises and spoke with Zell, telling
him that the Union represented the Company's employ-
ees.3 Zell said that the president of the Company was not
there and, according to Zell, Passman said, as he left, "I see
that we are going to have to file."
Shortly after the visit of the union organizers, Zell asked
Colon for an explanation of that visit and Colon said that
he and Vega wanted the medical and other benefits that
could be obtained through the Union. Zell made some sort
of substitute offer and asked that Colon discuss it at home
that night and with, Vega the next day. Colon promised to
do so and admitted that he said: "If I have these things, I
don't need the Union." The following day, Colon and Vega
talked with each other about Zell's offer and, at lunchtime,
they went down to the Union office. It is clear that Zell
believed that their purpose was to withdraw their applica-
tions for representation and to have the Union withhold
the filing mentioned by Passman the previous day. He
testified that Colon said, on his return, "Don't worry, it is
taken care of."
On Monday, April 1, Zell testified, he looked in vain for
a letter from the Union disclaiming any interest in the
employees; he asked Colon about it, and Colon evaded
answering. Zell called the union office and reached
3 The conflicts in testimony concerning the specific statements by
Passman are discussed hereafter.
ZIM TEXTILE CORP. 273
Passman ; he then had Colon and Vega pickup telephone
extensions in other parts of the premises and he asked
Passman why the expected letter had not been received.
Passman answered that it was too late to stop the filing4
and that, if the employees did not want union representa-
tion, they could vote "no."
On Thursday morning, April 4, Zell received, in the
morning mail , a letter from the Regional Director of the
Board, enclosing a copy of the representation petition filed
by the Union on April 3 . The petition describes the unit as:
"Included - shipping - receiving - stock - office-production
& maintenance ; Excluded - supervisors under the Act and
guards." It states that there are three employees in the unit
and that "Request for recognition as Bargaining Repre-
sentative was made on April 3, 1974 and Employer
declined recognition on or about March 27 , 1974." Zell
telephoned the Board 's Regional Office and spoke with
Regional Director Danielson. The Regional Director
declined to give him any advice but noted that the matter
was "complicated" and suggested that , "before getting into
any problems ," he consult an attorney.
Vega reported for work first that morning and went to
the lavatory to change his clothes . When Colon came in a
few minutes later, Zell showed him the documents he had
received and pointed out that the petition had been filed
the previous day despite his understanding that the two
employees had promised that the matter would be
"straightened out." Zell continued by saying that this made
it necessary for him to retain an attorney at the cost of
"thousands of dollars." Zell was shouting in anger and
Colon , his temper also rising, pounded the desk and said he
wanted the Union . At this, Zell said : "If you want the
Union you are fired!" Zell then shouted to Vega, who was
still in the lavatory, "Nelson, do you want the Union?"
When Vega answered that he did, Zell said : "You are fired,
too; get out !" The two men pointed out to Zell that they
were not quitting but being discharged , and they went to
the union office to report,the development to Passman.
Later that morning , Passman and Pagan returned to
Respondent 's office with Colon and Vega. Passman asked
Zell to reinstate Colon and Vega ; Zell answered that the
matter was out of his hands and that the union representa-
tives would have to speak with his attorney . Zell also said
that he would see them "before the Labor Board."
Passman noted that Respondent 's conduct was an unfair
labor practice and the discharged employees , together with
the union representatives, left.
That afternoon Respondent consulted counsel and Zell
telephoned Passman to say that he had reconsidered and
would reinstate Colon and Vega. Pagan communicated
with them, they went back to Respondent's premises the
next morning and returned to 'work. Their paychecks for
that week contained their full weekly pay.
The Friday of the following week, April 12, was Good
Friday. On Thursday morning, Colon and Vega told Zell
that, because of their religious beliefs, they would like to be
off on Good Friday. Zell answered that they could have
the day off but would not be paid for it . There was no
further conversation between Zell and the employees on
the subject 5
aE Passman testified that this conversation occurred on April 3.
Shortly after 5 p.m. on that same day, Thursday, April
11, Zell told Vega that work was slow and he would have to
be laid off. Zell also said that, "as soon as things pick up,"
he would recall him and asked Vega for his new address
and phone number. Respondent has not recalled Vega and
has not hired a replacement for him. At the time of the
trial, Colon was still in Respondent 's employ.
The hearing on the Union's petition for election was held
on April 17, 1974. Respondent was represented by counsel
and Passman represented the Union. The Union contend-
ed that an appropriate unit consisted of the two employees
in shipping , receiving, and stock maintenance , and the one
in the office. Respondent agreed that the appropriate unit
consisted of the warehouse and office employees but
claimed that there were only two employees because the
third one, who had been laid off the previous week, "was
not temporarily laid off as that term is understood."
Respondent 's sole witness was Zell . His testimony in that
proceeding has been incorporated, by stipulation, in this
case . Zell's testimony was entirely concerned with Respon-
dent's economic justification for laying off Vega for the
purpose of showing that there was little or no probability of
his being recalled. The Regional Director's Decision and
Direction of Election, issued April 26, 1974, found that:
a unit appropriate for the purposes of collective
bargaining ... [consists of] ... all shipping , receiving,
stock, office clerical, production and maintenance
employees employed by the Employer
and it notes that the Employer was in agreement that this
unit, the one sought by the Union, was appropriate. The
Regional Director further found that Vega "does not have
a reasonable expectancy of reemployment" and that he
would not, therefore,, be entitled to vote.
On June 4, the Union requested withdrawal of its
petition in the representation proceeding; on June 6 the
complaint herein was issued and on June 7 the Regional
Director, citing the issuance of the complaint and noting
that it included allegations of unlawful refusal to bargain
which, if proved, would preclude the existence of a
question concerning representation, permitted the with-
drawal of the petition., His order alsovacated the Decision
and Direction of Election.
4. Contentions of the parties
The General Counsel contends that, when the Union
demanded recognition on March 28, it had cards from two
of the three employees in the specified unit; that Respon-
dent made offers of benefit to the two warehouse
employees, immediately thereafter, to undermine their
support for the Union; that when it received a copy of the
representation petition filed by the Union,' it polled these
employees and discharged them for their adherence to the
Union. Although Respondent reinstated the employees the
following day and they lost no wages because of their
temporary layoff,, he contends that this was a clear
violation of Section 8(aX3) and (1) of the Act. The General
Counsel further contends that Respondent 's conduct in
laying off Nelson Vega on April 1 f was at least in part to
5 Neither Colon nor Vega worked on Friday and neither was paid for it.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discourage membership in the Union and to dissipate the
Union's majority support. He also contends that it had
been Respondent's practice, since 1972, to pay its employ-
ees:for Good Friday without requiring them to work that
day and that its refusal to pay Colon and Vega for Good
Friday in 1974 constituted additional discrimination to
discourage their membership in the Union.
These unfair labor practices, the General Counsel
contends, are so pervasive as to make impossible the
holding of a fair election and that, for this reason, a
bargaining order should issue . He also contends that
Respondent, by polling two of the three employees on
April 4 and finding them in support of the Union, is bound
by its own choice of method for determining their desires
concerning representation and that it should be required to
recognize the Union. '
Respondent concedes that its discharge of Colon and
Vega on April 4 was in violation of Section 8(a)(3) of the
Act but contends that its conduct in promptly reinstating
them and paying them for the interval of separation
neutralizes the union animus of its conduct. It further
contends it did not otherwise interfere with, restrain, or
coerce employees and that the layoff of Vega on April I 1
was dictated solely by the decline in work for him to do. It
argues that it is entitled to require that the Union be
certified before recognition as the representative of the
remaining employees and that the office clerical employee
should be afforded an opportunity to choose whether she
wishes to be included in the bargaining unit.
5. Discussion and conclusions
a. Predemand activity
Colon, who was the moving force behind the union
activity, testified that it was in November or December
1973 that he spoke with Zell and told hun of his concern
about obtaining medical insurance because his wife lost
her eligibility for public assistance for medical care. He
also testified that, when he asked Zell for some kind of
medical insurance through his employment, Zell answered
that he would try to get him into Respondent's medical
plan on the next occasion when entry was possible but that
he would have to speak with Zimbach and Zimbach might
not go for it. Colon testified that he then said that he would
go to the Union and Zell replied that Zimbach would
"throw them into the street." Colon also testified that
subsequently, although he had not made any contact with
the Union, he told Zell that he had and that Zell said: "I
don't care, but if the old man [Zimbach] finds out, he will
fire you." Vega corroborated Colon to the extent of
testifying that Colon asked Zell for additional benefits and
that Zell's promises never resulted in any changes.
6 Zell testified that Passman's specific words were "Your boys signed up
for our union and we would like to speak to the president of the company."
Whether his use of the word "boys" was designed to affect the composition
of the unit need not be determined since Respondent several times
conceded that a unit consisting of all the employees was an appropriate one.
9 Respondent does not directly attack the validity of the Union's
demand or base its refusal on any uncertainty concerning the employees for
whom the Union was requesting recognition . Its brief, however, states that
the demand was made "only" in the petition and that Passman conceded
that the petition was the only occasion on which he specified the unit
Zell conceded that Colon had spoken with him about
obtaining medical insurance, but he testified that there was
never any mention of a union; that he promised to have
Colon included in the medical plan when it was next open
for that purpose but denied that he had ever mentioned a
union and he denied that he had said anything about
anyone being fired for joining a union.
I am not persuaded that there was any mention of the
Union until the visit of Passman and Pagan on March 28.
Zell testified that he didn't get along with his father-in-law
and that he didn't "give a dam" about the business. His
testimony concerning his friction with Zimbach and his
complete absence from Respondent's premises between
January 10 and 21 was corroborated by Colon. According-
ly, I do not find it proved that Respondent, in November
or December 1973, interfered with, restrained, or coerced
its employees in their concerted activities.
b. The demand
Zell and the employees testified that Passman and Pagan
first visited Respondent's premises some time before the
middle of March. Both Colon and Zell testified that on
that visit Passman said that the Union represented the
employees 6 and wanted to speak to the president of the
company. Zell answered that he was away and Passman
left his card, requesting that the president get in touch with
him. Zell testified that he put the card on Zimbach's desk
but that, since he was not on speaking terms with his
father-in-law, he assumed that Mockson delivered the
message.
On March 28, Passman and Pagan again visited
Respondent's premises; again he was told that the
responsible officer was away for the week. It was on this
occasion, according to the testimony of Zell, that Passman
made the statement "I see that we are going to have to
file." While Passman did not recall what he said on this
occasion and did not even recall that he visited Respon-
dent's premises twice, Zell's testimony that there were two
visits is confirmed, inferentially, by Vega, and Colon
confirmed Zell's testimony concerning Passman's initial
visit. I find that the union officials visited Respondent's
premises about March 15 and, again, on March 28, and
that, on the second visit, Passman made some reference to
filing.
On April 4, Zell received the copy of the petition filed by
the Union. As set forth above, it designated the unit as one,
including both the warehouse and office clerical employ-
ees, a total of three. As of that date, therefore, Respondent
was made aware that the Union sought recognition for all
three of Respondent's employees.7
sought. It does not appear what argument Respondent is making on this
point; between Passman's conversations with Zell , which I find constituted
a direct or clearly inferential message that the Union desired to bargain on
behalf of the employees, and the petition setting forth the unit, received on
the morning of April 4, Respondent had received an adequate demand. No
special words are necessary in conveying such demand ; it is sufficient that
the employer know that it is being asked to bargain and the group of
employees for whom such bargaining is sought . (See Benson Wholesale
Company, Inc., 164 NLRB 536, 551 (1967); Adams Book Company, Inc, 203
NLRB 761 (1973)) 1 find that, as of the receipt of the copy of the petition in
ZIM TEXTILE CORP. 275
c. Post-demand interference
Immediately after the union agents left Respondent's
office on March 28, as set forth above, Zell presented a
proposition to Colon to persuade him and Vega to
withdraw their designations of the Union as their bargain-
ing representative. Respondent's brief sets forth Zell's
statement in detail, including the fact that Zell, after
describing his proposal to Colon, suggested that Colon
discuss it with his wife and with Vega and, "if they decided
they didn't want a Union, to go down to the Union and tell
them so." It also points out that Colon's testimony
confirms that of Zell.
While the complaint, as issued and served, did not allege
that this offer interfered with, restrained, and coerced the
employees, the General Counsel, at the conclusion of the
testimony, moved that it be amended to include that
allegation . Respondent objected, but was unable to state
how it would be prejudiced by the amendment. Decision
was reserved and Respondent was invited to argue the
question in its post-trial brief. In its brief, Respondent's
only contention on this point is that the evidence does not
support the allegation which the General Counsel would
incorporate by his proposed amendment.
The subject matter of the proposed amendment is closely
related to the other conduct alleged in the complaint as
unfair labor practices; it is alleged to have been committed
by the same supervisor; it was fully litigated and
Respondent has not shown that it would be prejudiced in
any way by the granting of the motion. I fmd that the
matter was fully litigated and that the ends of justice would
be served by' granting the motion. Accordingly the motion
of the General Counsel is granted and the complaint is
amended as requested.8
The facts concerning Zell's offer of medical and pension
benefits to Colon and Vega are undisputed. Zell's own
testimony shows that he made these promises as an express
alternative to the benefits that the employees could obtain
through the Union and that he conditioned the granting of
them on the employees' repudiation of their support for the
Union. This conduct, I fmd, constituted interference,
restraint, and coercion by Respondent and it thereby
violated Section 8(a)(1) of the Act.
The additional pressure by Zell to coerce Colon and
Vega into repudiating their support for the Union, as
evidenced by his request that they go to the union office for
the morning on April 4, 1974, Respondent was adequately informed of the
Union's desire and that the demand was effective.
8 Omark-CCI, Inc., 208 NLRB 469 (1974).
9 No reference is made in Respondent 's brief to its conduct of this poll
without the safeguards required by the Board 's decision in Struksnes
Construction Co., Inc., 165 NLRB 1062 (1967). The facts are undisputed and
I find that, by this conduct, Respondent committed an unfair labor practice
violative of See. 8(a)(1) of the Act. (Crow Inc., 206 NLRB 439 (1973).)
ib Respondent's counsel, citing J. Levine Textile Inc, 173 NLRB 837
(1968), relies upon Zell's "naivete and inexperience in union representation
matter" to excuse his conduct . In the case cited, however, the issue was the
employer's good faith in refusing to recognize the union . Zell's conduct
herein exhibited violent and uninhibited animus to the exercise by
Respondent's employees of their rights guaranteed by law.
u Several times during the representation proceeding Respondent
conceded that all of its employees constitute an appropriate bargaining unit.
The, allegation , pn the complaint that all the employees constitute an
appropriate unit was not denied by the answer, although an attempt was
that purpose on March 29, and his effort on April 1, by the
telephone call to the Union, with Colon and Vega on
separate telephone extensions, to compel them to withdraw
their support, are not alleged as separate unfair labor
practices and, therefore, no findings are made concerning
Zell's conduct on those occasions.
d. Respondent's poll and discharge of Vega and
Colon
The facts set forth above concerning Zell's questioning of
Colon and Vega on the morning of April 4 are not disputed
and his discharge of both of them was expressly based
upon their support for the Union. To be explored at this
point are the conclusions to be drawn from Zell's conduct.
Respondent concedes that, by Zell's actions, it violated
Section 8(a)(3) of the Act,9 but it argues that its prompt
corrective action in reinstating the two employees on the
following day and its payment to them of their full wages
without deduction for the interim period effectively remedy
its unlawful conduct. This argument is acceptable only to
the, extent that it obviates the necessity for an order
directing reinstatement and providing reimbursement for
that particular period. The manifestation of Respondent's
union animus and this demonstration of the lengths to
which it would go in giving effect to that animus have not
been expunged.10
In addition to this manifestation of union animus,
Respondent's conduct in this incident brought about
another result. Zell, when he questioned Colon and Vega
concerning their support for the Union, had been informed
by the petition that the Union sought recognition for a unit
containing all three of Respondent's employees. When,
therefore, he questioned two of these three employees and
found them to be in support of the Union, he knew that a
clear majority of the employees" wished to have the
Union represent them. Since the determination of employ-
ees' wishes concerning union representation is, in essence,
the principal function of the Board's electoral process, it
follows that, when that function has been carried out in a
manner chosen by the employer for that purpose and the
employees are shown to favor representation, the employ-
er's obligation to bargain with the union has been
effectively established notwithstanding its dissatisfaction
with the result.12 The fact that there was pending a Board
made during the hearing to withdraw the admission . At the end of the
hearing Respondent conceded that all of its employees constitute an
appropriate unit and, finally, Respondent 's counsel, in his brief, makes the
same concession, coupling it with the argument that an election should still
be held in that unit, with the office clerical employee given an opportunity
to express her wishes about being included . I find that the unit set forth in
the complaint, consisting of all of Respondent 's employees, with the
statutory exceptions , constitutes a unit appropriate for collective bargaining.
E2 Schrieber Freight Lines, Inc, 204 NLRB 1162 (1973); Sullivan Electric
Co., 199 NLRB 809 (1972). See also: N.LRB. v. Gissel Packing Co., 395
U.S. 575, 595-598 (1969).
Nothing in the decision of the Supreme Court in Linden Lumber Division,
Summer & Co. v. N.L.RB. 419 U.S. 301(1974), affects this conclusion. In fn.
10 of its opinion , the Court wrote:
We do not reach the question whether the same result obtains if the
employer breaches its agreement to permit majority status to be
determined by means other than a Board election . See Snow & Sons,
(Continued)
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding for that same purpose does not, as Respondent
contends, make this principle inapplicable.13 Accordingly,
I find that, on April 4, 1974, Respondent became obligated
to bargain with the Union as the collective-bargaining
representative of its employees and that its refusal to do so
violates Section 8(a)(5) of the Act 14
e. The layoff of Vega
Here , again, there is no dispute concerning the facts:
Vega was told that he was being laid off because of the
slowdown in Respondent's business and that he would be
recalled if business picked up.
Zell testified that the determination to reduce the
number of warehousemen from two to one was made in
January, but that, since it was known that a large shipment
would arrive in late March, Vega was kept on pending its
receipt . The two "piggy-back" trailers, containing 473
cartons weighing 28,121 pounds , did arrive on March 26
and were unloaded on that day and on March 27. Zell
testified that, with the completion of the warehouse work
on this shipment, it was decided to lay off Vega on April
12, the date being advanced to April 11 due to Vega's
statement that he would not work on April 12 because it
was Good Friday.
The conduct of Respondent towards its employees Colon
and Vega , in the context of their adherence to the Union,
has been found violative of the Act in several respects. All
of these violations , moreover , disclose a strong union
animus , and the language used by Zell in discussing his
attitude toward those activities even on the witness stand
was highly antagonistic.
In addition to Respondent 's strong antagonism to its
employees' adherence to the Union, as shown by the unfair
labor practices found above , it is to be noted that during
this same period , the second week in April , a critical step
occurred in the progress of the representation proceeding.
According to the record of that proceeding , of which
official notice is taken , on April 10 Respondent received
the notice that a hearing would be held on April 17.
Respondent then had competent legal counsel and the
inference is inescapable that it had been advised that the
holding of an election would follow shortly thereafter.
Zell's testimony at the representation hearing was intro-
duced in this case and it shows that such testimony was
devoted , in large measure, to proving that Vega had very
134 NLRB 709 (1961), enfd. 308 F.2d 687 (C.A. 9, 1962).
The method used in this case to determine the employees' wishes was
chosen unilaterally by Respondent and acquiesced in by the employees.
Accordingly, as far as Respondent is concerned , the test of voluntary
agreement was met, and its refusal to abide by the result thereof constitutes
a breach of that imposed agreement.
13 Soil Mechanics Corporation, 200 NLRB 544 (1972).
14 Respondent 's contention that the office clerical employee should be
given an opportunity to express her wishes concerning her inclusion in the
unit-the so-called Globe determination (Globe Machine and Stamping Co., 3
NLRB 294 (1937))-must be rejected for several reasons. In the first place,
there is no pending representation proceeding to which it could be applied
since the proceeding involving Respondent was withdrawn by the Union
upon the issuance of the complaint herein. Second : the separate polling
procedure can be applied only to situations in which the fringe or residual
employees constitute a separate craft (Walt Disney World Co., 215 NLRB
No. 89 ( 1974)) and where they would, by themselves or in combination with
other employees , constitute a separate appropriate unit (See: National
little likelihood of reinstatement and should not, therefore,
be eligible to vote. Since there is no evidence in this case
that the office clerical employee had signed an authoriza-
tion card for the Union or expressed any interest in it, it is
a fair inference that Respondent believed that she would
not vote for it. With Colon, who was likely to vote for the
Union, as the only other employee, Respondent would
have good reason to expect the election to result in a tie
vote of 1 to 1-insufficient to constitute a majority for the
Union.
The recentness and severity of Respondent's unlawful
antiunion conduct would justify an inference that its layoff
of Vega under the circumstances described was to dissipate
the Union's support. I would have no hesitation in drawing
that inference and fording that the layoff of Vega was
discriminatory except that Respondent has pleaded, as a
defense to the relevant allegation of the complaint, that the
layoff was justified by economic considerations.
In support of this defense, Respondent has introduced
several summaries of its business activities showing the
amount of merchandise moving into and out of its
warehouse.15
The relevant part of the summary of goods received into
Respondent's New York warehouse shows that the last
large shipment received in 1973 consisted of 285 cartons of
towels weighing 28,259 pounds and that it arrived on
December 3 and 4. Thereafter, Respondent received only
two small shipments-one of 9 cartons weighing 644
pounds on December 10, 1973, and one of 13 cartons of
towels weighing 855 pounds on February 12, 1974-prior
to the large shipment of 473 cartons (all but 15 being
towels) weighing 28,121 pounds which arrived on March 26
and 27. During this interval Vega was kept on the payroll.
After Vega was laid off, Respondent received 63 cartons
weighing 4,544 pounds on April 25; 26 cartons weighing
1,872 pounds on May 24; and 417 cartons weighing 15,198
pounds on June 11. Moreover, a summary of cartons
shipped out of the warehouse shows that, although the
number shipped between April and November 1973 ranged
from 171 to 260, there were only 126 shipped in December,
119 in January, 100 in February, and 90 in March. In April
the figure rose to 113, but at least 75 of those, were sent out
after Vega's discharge. In May and June, the numbers of
cartons shipped out were only 50 and 38, respectively.
Broadcasting Company, Inc, 202 NLRB 396 (1973); Syracuse University, 204
NLRB 641 (1973)) In addition to the fact that the single employee in
question is an office clerical employee and practically by definition not a
separate craft, her position as the sole employee being designated for such
treatment precludes her being appropriate as a separate unit. Third:
Respondent has conceded herein that a unit of all its employees is
appropriate . Fourth : there is no showing that the interests of the clerical
employee differ from those of the other employees. Finally, the separation
of the office clerical employee from the other employee would, as
Respondent recognizes, reduce the remaining unit to one employee and
thereby frustrate the right of self-organization by Respondent 's employees
after the designation of the Union as their collective -bargaining representa-
tive by a majority of those employed at the time of that designation.
15 The principal summary, showing goods received in the New York
warehouse during the year 1973 and for the elapsed portion of the year
1974, was submitted pursuant to stipulation after the close of the trial. The
General Counsel elected not to file a post-trial brief and, therefore , none of
this data is controverted.
ZIM TEXTILE CORP. 277
These figures show that, despite the tremendous drop in
cartons received between December 4 and March 27 and
the notable drop in cartons shipped during that same
period, Respondent found no economic necessity for
laying off the junior warehouseman. Moreover, Zell
testified that during prior intervals between large ship-
ments Respondent did not lay off the second warehouse
employee but found work for him cleaning the premises
and straightening up the stock. After the advent of union
activity, however, and despite the expected arrival, on
April 25, of a substantial shipment, as well as an increase in
outbound shipments over the rate for the preceding 3
months,16 Respondent determined that "business condi-
tions" dictated the layoff of Vega.
The data and testimony of Respondent do indicate, as
Respondent argues , that there was a substantial falloff in
the amount of merchandise passing through its New York
warehouse. Zell testified, however, that while in 1973 about
15 percent of Respondent's merchandise passed through its
New York warehouse, for the portion of 1974 prior to the
time of the hearing, that percentage had been reduced to 5
to 7 percent. The record also shows that Respondent has at
least some measure of control over the proportion of its
merchandise that passes through its New York warehouse.
Upon all the foregoing, I find that Respondent has failed
to establish a business reason for the layoff of Vega on
April 11. It has shown a diminution of its warehouse
operation during the first half of 1974 as compared with
the first half of 1973 but, considering its retention of Vega
during the slack period between December 3, 1973, and
March 26, 1974, before Respondent became aware of
union activity, I find that the falloff in Respondent's
business would not, absent Vega's union activity and the
approaching representation election, have resulted in his
layoff until Friday, May 17, at the earliest.
Accordingly, Vega's discharge 1 month prior to its
economic justification therefor constituted discrimination
to discourage membership in the Union and violated
Section 8(a)(3) and (1) of the Act.
f. The Good Friday pay
The complaint alleges that it had been Respondent's
practice to grant Good Friday as a paid holiday but that,
for Good Friday on April 12, 1974, it altered that practice
because its employees had joined or assisted the Union.
In support of this allegation, Colon testified that he was
on Respondent's payroll during the week ending April 20,
1973, which was Good Friday; that he did not work on
Good Friday but was paid for the day. Testimony on this
matter was also given by Fred Rosado, who worked in
Respondent's New York warehouse from March 1972 to
September 1973. His employment covered the Good
Fridays which occurred on March 31, 1972, and April 20,
1973, and he testified that he was paid for both days
although he did not work on either one.
Zell disputed the testimony of Colon and Rosado,
testifying that they were permitted, if they wished, to stay
away from work on Good Fridays but they were not paid
for the day if they did not work.
Respondent produced the checks for the wages of its
warehouse employees for the weeks containing Good
Friday in 1971, 1972, 1973, and 1974. According to Zell's
uncontradicted testimony, Respondent's method of paying
its warehouse employees was for him to prepare the checks
and for Zimbach to sign them; the checks were then
presented to the individual employees who endorsed them
in blank; the endorsed checks were then taken to the bank
by Zimbach, Zell, or Mockson, who also endorsed them in
blank and cashed them; they then returned to Respon-
dent's premises and gave the cash to the individual
employees. On some occasions, Zell testified, Zimbach had
sufficient cash in his possession to pay the employees the
amounts of their checks and he would use that cash
without going to the bank the same day but he would
reimburse himself for the cash so paid out by cashing the
endorsed checks a few days later. The checks to Rosado for
the week ending March 31, 1972, which was Good Friday;
the checks to Rosado and Colon in 1973 for the week
containing Good Friday and for the following week; and
the checks to Colon and Vega for the week ending on
Good Friday, April 12, 1974, all reflect this practice. In
addition to the written endorsements described, each of
these checks bears the imprint of the teller's date-and-
identification stamp and of the "PAID" stamp used by the
bank to indicate payment of the amount of the check out
of the depositor's account.17
In 1971, Good Friday fell on April 9; Respondent's
warehouse employees at the time were named Albert Burch
and Norman Harrison; the checks to each of them were
dated April 9; they were endorsed only by the payees; the
teller's stamp'is dated April 9; and the "PAID" stamp (at
this time a perforation was used) is also dated April 9.
Harrison's check has, in the ruled box, figures showing
$6.50 subtracted from $60, and a remainder of $53.50; but
there is no explanation of these figures.Neither Burch nor
Harrison testified; Zell testified that Respondent kept no
record of the days worked by its employees or the details of
their wages.18
For 1972 there is only the check to Rosado . This check,
in the sum of $135.30, is dated March 31, which was Good
Friday, and it bears the endorsements of Rosado and
Mockson. Rosado testified that he received the money
represented by this check the day before Good Friday, i.e.,
on March 30.19
16 Respondent could anticipate such arrivals several months in advance,
as indicated by Zell's testimony that management knew, in January, that
there would be a large shipment received about March 24. The situation
with respect to outbound shipments may have been based upon other
factors, but it is fair to infer that Respondent could anticipate their necessity
substantially before their occurrence.
17 The description of these mechanical markings is made on the basis of
judicial notice . 8 Wigmore Evidence § 2580 (3d ed. 1940). "Judges are not
necessarily to be ignorant in Court of what everybody else, and they
themselves out of court , are familiar with ." (Lumley v Gye, 2 El. & Bl. 266
(1853).) There is nothing in the record that could be interpreted as disputing
the description of the markingsludicially noticed.
18 He testified that the check stub of each paycheck shows the
deductions from total earnings , but these stubs were not produced.
19 Rosado testified that, when he started working for Respondent in
March 1972, he received $ 110 per week ; that after 2 weeks he was raised to
$120; and that he subsequently received raises to $135 and $ 140. When his
total pay was $135, he testified , he received $114 net , and when it was $140,
(Continued)
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that the "PAID" stamp
on this check, dated March 30, 1972, corroborates
Rosado's testimony that he received the check on March
30. The principal weakness in this contention is that the
teller's date stamp is March 31 and it is impossible to
explain how the bank could stamp the check "PAID" the
day before, according to the teller's stamp, it was received.
The only possible explanation is that, through some
unusual inadvertence, the date on the bank's "PAID"
stamp was not changed and the actual date of payment
was March 31. Although Zell testified that no check was
ever dated ahead, I do not accept his testimony as against
that of Rosado that he received his pay the day before
Good Friday and that he did not work on that day. It is
possible that Zimbach had cash on hand adequate to give
Rosado his money on Thursday and he could have
reimbursed himself through the cashing of the endorsed
check on Good Friday. Even if Rosada did receive his pay
on Thursday and did not work on Friday, this is not proof
that he was paid for Good Friday. The amount of the
check is not explained by Rosado's testimony regarding the
amounts of his usual net pay and, accordingly, no
inference can be drawn from the check.
The 1973 checks to Rosado and Colon for the week
ending on Good Friday, April 20, are, for Rosado $114.45
and, for Colon $82.48. Rosado's check, according to his
testimony, represents his full net weekly pay at the gross
wage of $135. Colon did not testify to the amount of his
full weekly wage at that time in 1973. Zell testified that
these checks represent the amounts of a full week's work by
each of these employees, although each of them was
entitled to only 4 days' pay, but this is only because they
asked for a full week's wages to use for the coming holiday,
and it was agreed that the extra day's pay so included
would be deducted from their checks for the following
week. The checks for the wages of the employees for the
following week both have written, in the accounting box:
"LESS GOOD FRIDAY PREVIOUS WEEK"; Rosado's check is
for $93.66 and Colon's check is for $74.67. Both checks are
endorsed by the payees and by Zimbach, and were cashed
on Friday, April 27. Rosado testified that he refused to sign
this check and that he put the check and the money 20 back
on the office clerk's desk. He testified that he told Zell the
amount was wrong but that Zell said that was all Rosado
would get; that they started shouting at each other until
Zimbach took him, Rosado, aside, gave him the money he
claimed was due him, and asked him to be quiet. Rosado
testified that Colon did not join in the argument because
"He had nothing to do with it. That was just me and Marty
[Zell]." He also testified that he did not hear Colon say
anything to either Zell or Zimbach on this subject and
Colon did not testify that he did. Zell admitted that he had
a dispute with Rosado over the Good Friday deduction,
but he denied that he heard Zimbach intervene or that he
saw Zimbach give Rosado the extra money.
The 1974 checks to Colon and Vega for the week ending
Good Friday, April 12, carry the full details of their wage
computations.21 Each computation begins with a gross
figure for the 4 days, April 8 to 11, and shows deductions
for lateness-58 minutes for Colon and 22 minutes for
Vega-and deductions for social security and tax withhold-
mg. Both checks are endorsed by the respective employees
and by Zimbach and they were cashed at the bank on
April 1.6, the following Tuesday.
All of the checks prove nothing about Respondent's
custom concerning payment for Good Friday. Acceptance
of Rosado's testimony would prove only that he either had
some private agreement with Zimbach about payment for
Good Friday or that the vehemence of his protest
persuaded Zimbach to buy his peace for about $20.
Colon's testimony is not sufficient for a finding that it was
Respondent's custom to pay the warehousemen for Good
Friday without their working on that day. Accordingly, I
cannot find that Respondent's refusal to pay Colon and
Vega for Good Friday constituted restraint or coercion
based upon their protected activities and, to the extent that
the complaint so alleges, it must be dismissed.
g. The bargaining order
As stated above, Respondent chose its own method of
determining the extent of its employees' support for the
Union by taking a direct poll and it cannot evade the result
of its action because it dislikes that result. A bargaining
order would be justified on this basis alone.
The General Counsel also argues that Respondent's
pervasive unfair labor practices have made it impossible to
hold a fair election and that, majority support having been
proved, a bargaining order should issue on this basis as
well.
Respondent's contrary argument is that, in the Gissel
case,22 the Supreme Court clearly indicated that represen-
tation proceedings constitute the preferred method for
determining the status of a union and that that method
should be followed in this case. It recognizes, however, that
the Court also made reference to situations in which the
employer's unfair labor practices "have made the holding
of a fair election unlikely or which have in fact undermined
a union's majority and caused an election to be set aside"
and that in such cases the Board must evaluate the
disruptive effects of such conduct.
Respondent's standard, thus expressed, appears to be the
correct one: in this case Respondent's conduct: (a) in
interfering with its employees' protected concerted activi-
ties following the Union's appearance on March 28; (b) its
undisputed pressure on the employees on April 1 to
repudiate the Union (although not found to be independ-
ent unfair labor practices because not alleged as such in the
complaint); (c) its direct polling Colon and Vega on April 3
and its prompt discharge of them for their declared support
of the Union; and (d) the accelerated layoff of Vega on
he received $ 119 net . There is no testimony to account for the $135.30 21 Zell testified that he began this practice when he retained counsel on
amount of this check . April 3.
20 -Presumably advanced by Respondent before the cashing of the check. 22 N.L.R.B. v. Gasel Packing Co., Inc., 395 U.S. 575 (1969).
ZIM TEXTILE CORP. 279
April 11 sufficiently pervade the atmosphere to make the
holding of a fair election imposs-ible.23
Accordingly, on the basis of Respondent's conduct and
of the Union's majority support prior to that conduct, it is
appropriate that it be directed to bargain with the Union.
6. The effect of the unfair labor practice upon
commerce
The activities of Respondent, set forth in Findings of
Fact 3 and 5, occurring in connection with its operations
set forth in Findings of Fact 1 and 2, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take affirmative action to effectuate
the purposes of the Act.
Having found that Respondent laid off Nelson Vega on
April 11, 1974, rather than on May 17, 1974, to discourage
his membership in the Union, I shall, recommend that it
make him whole for any loss of compensation he may have
suffered during that period with interest thereon as
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Having found that Respondent, after determining by a
poll of its employees on April 4, 1974, that a majority had
designated the Union as their collective-bargaining repre-
sentative and that Respondent, by its pervasive unfair
labor practices, has made impossible the conduct of a fair
election, I shall recommend that it bargain with the Union
as such representative of its employees.
In view of the nature and extent of the unfair labor
practices found herein to have been engaged in by
Respondent, which indicate its determination to interfere
aggressively with its employees' rights of self-organization
and to thwart them if possible, I shall recommend a broad
cease-and-desist order herein.24
Upon the foregoing fmdings of fact, and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At the time of the activities set forth in the Decision,
Martin Zell was a supervisor of Respondent within the
meaning of Section 2(11) of the Act, and acted as its agent.
4. By offering medical, pension, and other benefits to
its employees on condition that they withdraw support
23 N.L.R.B. v. Gissel Packing Co., Inc., 395 U S. 575 at 610, et seq.; New
Fab-view Hall Convalescent Home, 206 NLRB 688 (1973), A Rotundo &
Sons, Inc., 212 NLRB 28 (1974).
2i John P Krystyniak d/b/a Red & White Super Markets, 172 NLRB 1841
(1968), enfd. 415 F.2d 125 (CA. 3, 1969).
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
from the Union and by coercively interrogating employees
concerning their support for the Union, Respondent
interfered with,-restrained, and coerced its employees and
committed unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. By discharging Israel Colon and Nelson Vega on
April' 4, 1974, because they had signed applications for
membership in the Union, Respondent discriminated
against them to discourage their membership in the Union
and committed unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
6. By laying off Nelson Vega on April 11, 1974, while
there was still work for him to do, Respondent discriminat-
ed against him to discourage membership in the Union and
committed an unfair labor practice within the meaning of
Section 8(a)(3) of the Act.
7. At the times material herein, and at this time, all
shipping, receiving, stock, and office clerical employees of
Respondent, excluding guards, watchmen, and supervisors
as defined in Section 2(11) of the Act, constitute a unit
appropnate for collective bargaining within the meaning of
Section 9(b) of the Act.
8. By failing and refusing, since April 4, 1974, to
bargain with the Union as the collective-bargaining
representative of the employees in said unit, Respondent
has committed an unfair labor practice within the meaning
of Section 8(a)(5) of the Act.
9. By refusing to bargain with the Union as set forth in
Conclusions of Law 6 and 7, by discharging Israel Colon
and Nelson Vega on April 4, 1974, and by laying off
Nelson Vega on April 11, 1974, Respondent has interfered
with, restrained, and coerced employees in their exercise of
rights guaranteed in the Act and has committed unfair
labor practices within the meaning of Section 8(a)(1)
thereof.
10. The foregoing unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 25
Respondent, Zim Textile Corp., New York, New York,
its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with District 65, Distributive
Workers of America, as the collective-bargaining repre-
sentative of its employees in the unit described as follows:
All shipping, receiving, stock, office clerical production
and maintenance employees at its New York premises,
exclusive of guards, watchmen, and all supervisors as
defined in Section 2(11) of the National Labor
Relations Act, as amended.
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.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Making threats of discharge or offers of benefit to
employees, to coerce them into refraining from the exercise
of concerted activities for mutual aid or protection or from
joining the said labor organization, or any other labor
organization.
(c) Coercively interrogating its employees to interfere
with, restrain, or coerce them in their exercise of right to
self-organization.
(d) Discharging or laying off any employee to discourage
any employee's membership in the above labor organiza-
tion, or any other labor organization.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization or to engage in concerted activities for the
purpose of collective bargaining and other mutual aid or
protection, or to refrain from any and all such activities,
except insofar as membership in a labor organization may
be required pursuant to a collective-bargaining contract
not inconsistent with Section 8(a)(3) of the said Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, meet and bargain with District 65,
Distributive Workers of America, as the exclusive repre-
sentative of all employees in the unit described in
paragraph 1(a), above, and, if any understanding is
reached, embody it in a signed agreement.
(b) Make whole Nelson Vega for any loss of compensa-
tion he may have suffered by being laid off April 11, 1974,
instead of on May 17, 1974, with interest thereon at the
rate of 6 percent per annum.
(c) Post at its premises in New York, New York, copies
of the attached notice marked "Appendix." 26 Copies of
said notice, on forms provided by,the Regional Director
for Region 2, after being duly signed by its representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted.'Reasonable steps shall
be taken by it to insure that said notices are not altered,
defaced, or covered by any other material,
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
3. The allegations of the complaint, insofar as not
found by the Decision to be violative ofthte Act, are hereby
dismissed.
26 In the event that the Board's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals Enforcing an Order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board" shall read "Posted Pursuant