Stationers Corp.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to labor relations matters. We agree with the Employer that the clerk-typist is a confidential employee, and, as such, will exclude her from the unit.' Route captains: The Petitioner would exclude, and the Employer include, route captains. As indicated above, route captains are junior high school students. They are regular part-time employees earning from $2.50 to $3 per week. They work from 1/2 to 1 hour per day. They assist district managers in making deliveries of papers to route carriers. They perform routine checking work. In an emergency, they may deliver or assist a substitute carrier in making delivery on a route. They do not share in paid vacations afforded full-time em- ployees. They have access to the Employer's hospitalization insurance and credit union program. We shall include route captains in the unit,-' and as regular part-time employees, we shall permit them to vote in the election hereinafter directed. Mae7 room foreman: The Employer would exclude the mail room foreman as a supervisor. The record discloses that the mail room foreman has authority to hire and discharge the mail room employees who work under his direction. We shall exclude the mail room fore- man as a supervisor from the unit. We find that all employees in the circulation department at the Employer's newspaper publishing plant at St. Petersburg, Florida, including route carriers who are not independent contractors, route captains, city, suburban, and county district managers, and street sales managers; but excluding route carriers and street vendors, who are independent contractors, solicitor agents, guards, confidential and professional employees, the mail room foreman, and other super- visors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 4 Minneapolis -Moline Company, 85 NLRB 597. S H. B. Church Truck Servwe Company, 95 NLRB No. 192. Evening News Publishing Company, 93 NLRB 1355. STATIONERS CORPORATION and WAREHOUSE, PROCESSING & DISTRIBU- TION WORKERS UNION LOCAL 26, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION . Cases Nos. 21-CA-818 and 21- CA-859. September 17, 1951 Decision and Order On February 14, 1951, Trial Examiner J. J. Fitzpatrick issued his Intermediate Report in the above-entitled proceeding, finding that 96 NLRB No. -24 11 STATIONERS CORPORATION 197 the Respondent had engaged 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 to the Intermediate Report and a supporting brief. The Respondent also requested oral argument. The request is hereby denied because the record and exceptions and brief, in our opinion, adequately present the issues and the position of the parties. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed 2 The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the modifications set forth below.3 1. We agree with the Trial Examiner's conclusion that McCormick, Prulitsky, Corley, Wagner, Phillip, Allen, and Young were discharged on June 19, 1950, because of union activity. We also agree that Carl Raggio was discriminatorily discharged. However, as Raggio was discharged under somewhat different circumstances than the seven other employees, certain aspects of his discharge will be discussed separately in paragraph numbered 2. Like the Trial Examiner, we do not credit the Respondent's con- tention that the discharges were necessary because the payroll was "too high" for the slack period which normally would begin in late May or June and extend to about July 15. As more fully appears in the Intermediate Report, 6 new employees were hired within a short period after these employees were discharged, and many more were i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Houston and Reynolds]. 2 The Respondent alleged, by way of affirmative defense, that the charging Union was not in compliance with Section 9 (h) of the Act because of the alleged falsity of the non- Communist affidavits filed by the president of the Longshoremen 's and Warehousemen's Union with which the charging Union is affiliated , and that the Board was therefore with- out jurisdiction in this proceeding. In support of this contention, it points to the fact that this union officer, Bridges, was convicted of perjury and conspiring to defraud the United States in connection with the falsification of his application for citizenship papers U. S. v. Bridges, 90 F. Supp. 973 (N. D. Cal 1950). We have heretofore refused to go behind the affidavits filed under the provisions of 9 (h) stating that neither the statute itself nor its legislative history authorizes the Board to investigate the authenticity or truth of the affidavits which have been filed . As we have previously stated, in Alpert & Alpert, 92 NLRB 806 , "we do not believe . . . the conviction of Bridges of perjury and of conspiracy to defraud . . . calls for a different conclusion. In this situation , as in others already considered by the Board , `persons desiring to establish falsification or fraud have recourse to the Department of Justice for a criminal prosecution under Section 35 (a) of the Criminal Code.' " Accordingly the Trial Examiner acted correctly in striking the affirmative defense and rejecting Respondent 's offer to prove noncompliance. 3 The Trial Examiner , in setting forth the dates on which the several dischargees entered the Respondent's employ , erroneously gi%es the date when Allen was employed as March 3, 1950. The record shows the date to have been May 29, 1950 974176-52-vol 96-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD added during July and August 4 Moreover, we regard it as more than mere coincidence that, although the number of union adherents among the warehouse employees was not great, as evidenced by the fact that no more than 23 of the 90 employees in the warehouse had signed membership application cards before the day of the discharges, all those selected for discharge were among the signers.5 We find, as did the Trial Examiner, that the Respondent was aware of the union activity of its employees. In so finding, however, we do not adopt the Trial Examiner's conclusion that Superintendent Wright and Foreman Anderson must have known of such union ac- tivity because salesman Machado, despite the brevity of his daily con- -tacts with the warehouse, was aware of it. The record does not es- tablish that Machado was in any sense a representative of manage- ment. Nor, as hereinafter set forth in the discussion of Raggio's discharge, does the record clearly disclose that Machado was himself aware of the extent of union activity in the warehouse before June 20, when the union adherents first wore union buttons at work. We believe, however, that the record amply demonstrates that the Re- spondent actively interested itself in, and early became aware of, all union activities of its warehouse employees. Thus, it was the Respondent's practice to inquire orally, as well as through a question on its employment application form, as to the union membership of each new employee. When Wagner, one of those discharged on June 19, was first employed, Superintendent Wright, not content with Wagner's statement that he was not a union member, sought out Corley to ask him if he knew of any union inclinations on Wagner's .,.,part. When Prulitsky, another of those discharged on June 19, was employed, Wright asked him how he felt about unions, and upon re- ceiving Prulitsky's reply that he was not in favor of them, Wright commented that Prulitsky's name sounded "communistic" like he might have "something to do with a union." We regard as particularly significant the fact that Wagner, Corley, and to a lesser extent, McCormick, had been identified with an abortive attempt at union organization in the spring of 1949. At that time a group of warehouse employees headed by Ben Masten and includ- ing Dave Norriss, Dave Hammond, Wagner, and Corley, secured union literature and application cards from a local of the Teamsters Union and made preliminary arrangements for an organizing meeting.6 An 4 As we have found that the discharges did not result from an economic reduction in force, we further find, like the Trial Examiner, that it is unnecessary to determine whether the quality of their work was such that they would have been selected for elimination in a reduction motivated by economic considerations . We note, moreover, that Superintendent Wright informed McCormick that his work; and that of Corley, Wagner, and Prulitsky, was "More than satisfactory " See Sifers Candy Co., 171 F. 2d 63. McCormick had no share in these preparations but he did sign an application card. STATIONERS CORPORATION 199 evening had been selected for the meeting but, at some ' time during that -working day, Masten, Ngrriss, and Hammond, together with two or three employees who had not manifested interest in the Union, were laid off 7 and the meeting scheduled for that night was abandoned. A month or two after this layoff, Masten came to the warehouse where Foreman Anderson observed him in conversation with Corley. An- derson ordered Corley to get back to his work and, as soon as Masten left, came over to Corley and said that Corley had "better stay away from those boys" and that if the Respondent had known Corley "had had anything to do with the Union he would have been dis- charged with them." The Respondent's interest in its employees' union activities was not limited to the organizing campaign of 1949, however, as is shown by Foreman Anderson's questioning of stock clerk Louis Graveson on the morning of June 19, 1950, as to the union meeting scheduled for that evening.8 Upon all the facts disclosed by the record, including the small size of the Respondent's warehouse, the Respondent's active interest in, and efforts to keep itself informed about, its employees' union activity, Foreman Anderson's questioning of employee Graveson on the morn- ing of June 19 before the scheduled union meeting, and the patent inadequacy of the reasons advanced by the Respondent for the layoff of these seven employees on June 19, we find that the Respondent was in fact aware of their union activities and discharged them for that reason 9 2. Likewise, in finding that Raggio was discriminatorily discharged, we do not rely, as did the Trial Examiner, upon salesman Machado's conversations with Raggio as demonstrating the Respondent's aware- ness of Raggio's adherence to the Union. As stated above, Machado was not a supervisor, and it is not shown that in his contacts with Raggio he was in any sense acting as a representative of management. Moreover, even if Machado's knowledge could in any manner be im- puted to the Respondent, we do not believe it to be clearly established by the record that Machado in fact suspected Raggio's identification with the Union before the time of his discharge. 7 Masten, Norriss, and Hammond were never recalled. $ Like the Trial Examiner , we do not credit Anderson 's explanation that he thought this meeting, as to which he had overheard the truck drivers talking , was one concerning base- ball or politics. 9 The Respondent excepts to the Trial Examiner 's finding that the Respondent failed to reinstate these employees and also Raggio whose case is hereinafter discussed , upon their application for reinstatement in August 1950. In support thereof, it points to evidence that in response to their application they were told by Superintendent Wright to come back sometime after September 5, or after the schools opened in September , and the Respondent might put them back to work. We find, as the Trial Examiner apparently also found , that this was a noncommittal request for them to return at a later date, and not an offer of reinstatement. Therefore , regardless of whether they complied with the request, tpe Respondent did not thereby relieve itself of its obligation to offer them reinstatement and thus in part to remedy its discrimination against them. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found, and we agree, that Raggio was dis- charged on June 21, when Superintendent Wright informed him that he had been dropped from the payroll and must make a new applica- tion in order to be reemployed. The Trial Examiner also found that Machado talked to Raggio on two occasions, the dates of which he fixed as June 14 and June 21, 1950. In the first of these conversations, Raggio told Machado that he knew nothing about the union move- ment in the warehouse. In the second conversation a week later, Machado told Raggio, in effect, that because Raggio was suspected of being allied with the Union, it would be useless for him to keep "the . appointment he had made with Wright to apply for reemployment. though he might apply later on. It is clear that this second conversa- tion took place after June 2010 when the union members first wore their union buttons at the warehouse, and thus it is not improbable that Machado's suspicion of Raggio's union membership may have dated from that event 11 As more fully set forth in the Intermediate Report, Raggio had been ill for several weeks and was absent from the plant when the seven employees were discharged on June 19. Two days later, when he telephoned Superintendent Wright to inform him that he would soon be ready to return to work, he was told that he had been dropped from the payroll. Raggio was one of three who had attended the initial meeting with the union representative on May 25, 1950, to plan the methods of organizing the warehouse. The other two-McCor- mick and Wagner-were among those discharged on June 19. Al- though Raggio was ill at home and hence unable to attend the second organizing meeting on June 5, he continued his activity by signing a membership application brought to his home 3 days later. As in the case of those discharged on June 19, and for the reasons set forth in 4 our discussion of their discharges, we are satisfied that the Respondent was aware of Raggio's interest in, and advocacy of, the Union. Upon all the record, and for the further reasons stated by the Trial Ex- aminer, we find that Raggio was discharged because of his member- ship and activity in the Union. i 10 Although the testimony is conflicting as to the dates of the conversations between Machado and Raggio, it is clear that they were about a week apart, and no witness placed the second conversation at so early a date as June 20. Thus, Ragglo gave the two dates as June 19 and June 26 , and Machado placed the second conversation as on June 27. The dates found by the Trial Examiner apparently are derived from the testimony of Superintendent Wright, who fixed the date of his conversation with Raggio, informing him that he must apply for reinstatement, as June 21 . Although it is apparent that Raggio's second conversation with Machado must have occurred within a short period after his conversation with Wright , we are unable to accept the Trial Examiner's finding as to the date of this conversation with Machado , which conflicts with the testimony of both the participants in it However, although we are inclined to believe this conversation occurred either on June 26 or 27, we need not fix the exact date as it is immaterial to our disposition of the issues herein. 11 Raggio's transportation to and from work was provided by a car club, of which employees Holler and Walton were the other two members . Like Raggio, they were union adherents, and all three had discussed the Union extensively together . Machado was aware of Raggio's association with these employees. STATIONERS CORPORATION 201 The Remedy The Board adopts the recommendations of the Trial Examiner contained in the section of the Intermediate Report entitled "The Remedy" with the following addition : As the record indicates that at'least one of the discharged employees has been inducted' iilto the Armed Forces of the United States, since his discharge by the Respondent,"' and, accordingly, may not be avail- able for immediate reinstatement, we shall, in order to restore him to his position and thus effectuate the policy of the Act, order that the Respondent, upon application by any one of the discharged employees at present serving in the Armed Forces, made within 90 days of his discharge from the Armed Forces, offer such discharged employee reinstatement without prejudice to his seniority or other rights and privileges. We shall also order the Respondent to notify any of the employees ordered reinstated, who may be serving in the Armed Forces, that they will be reinstated upon application within 90 days of their discharge from the Armed Forces. Further, we shall order that the Respondent make any such discharged employee whole for any loss of earnings he may have suffered because of the Respondent's discrimi- nation against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages during those periods (1) between the date of his discharge by the Respondent and the date of his induction, and (2) between a date 5 days after his timely appli- cation for reinstatement and the date of offer of reinstatement by the Respondent, less his net earnings during these periods. Our back-pay order shall be taken to mean, with respect to any such discharged em- ployee, that the Respondent shall immediately pay to him that portion of his net back pay accumulated between the date of his discharge and the date of his induction into the Armed Forces, without await- ing a final determination of the full amount of his award 13 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 the Respondent, Stationers Corporation, Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Warehouse, Processing & Dis- tribution Workers Union Local 26, International Longshoremen's and Warehousemen's Union, or in any other labor organization of its em- ployees, by discriminatorily discharging any of its employees, or in It is stated in the record that Robert Philipp was inducted on the first day of the hearing, although no mention of Philipp's induction is made in the Intermediate Report. 3a Federal Engineering Company, Inc, 60 NLRB 592, enforced in this respect 153 F. 2d 233 (C. A. 6.). 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any other manner discriminating in their hire or tenure of employment or any condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Warehouse, Processing & Dis- tribution Workers Union Local 26, International Longshoremen's and Warehousemen's Union, 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to John McCormick, Robert Philipp, Joseph Prulitsky, John Corley, Jessie Wagner, Emmett Allen, Eugene Young, and Carl W. Raggie, Jr., and each of them, immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make each of them- whole for any loss of pay he may have suffered as a result of the discrimination in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." If any of the above-named are at present serving in the Armed Forces of the United States, the' Respondent shall offer such full reinstatement immediately upon his application, made within 90 days of his discharge from the Armed Forces, shall notify him of his right to reinstatement, and shall make him whole for any loss of" pay he may have suffered as the result of the discrimination in the manner set forth in the section of this De- cision and Order entitled "The Remedy." (b) Upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, and all other records necessary to analyze and ascertain the amounts of back pay under the terms of this Order. (c) Post at its warehouse in Los Angeles, California, copies of the notice attached hereto and marked "Appendix A.1114 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent or his repre- sentative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- 14 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words "A Decision and Order ," the words "A Decree of the United States Court of Appeals Enforcing." 1 STATIONERS CORPORATION 203 after in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith. Appendix A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership of our employees in WARE- HOUSE, PROCESSING & DIsiRiBUTION WORKERS UNION LOCAL 26, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, or in any other labor organization, by discriminating in their hire and tenure of employment or in any other manner discriminating in regard to any other term or condition of employment. WE WILL offer to John McCormick, Robert Philipp, Joseph Prulitsky, John Corley, Jessie Wagner, Emmett Allen, Eugene Young, and Carl W. Raggio, Jr., and each of them, immediate and full reinstatement to his former or substantially equivalent posi- tion without prejudice to any seniority or other rights and privi- leges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist WAREHOUSE, PROCESSING & DISTRIBUTION WORKERS UNION LOCAL 26, INTER- NATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, or any other labor organization, to bargain collectively through represen- tatives 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 of such activity except to the extent that such right may be affected by the provisions of Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from becom- ing members of the above-named union or any other labor organization except to the extent that the right to refrain may be affected by a lawful 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement requiring membership in a labor organization as a condition of employment. STATIONERS CORPORATION, Employer. Dated -------------------- By ----------------------------- (Representative ) (Title) NoTE.-Any of the above-named employees at present serving in the Armed Forces of the United States will be offered full reinstatement upon application made within 90 days of his discharge from the Armed Forces. 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 and Recommended Order STATEMENT OF THE CASE As a result of charges duly filed by Warehouse, Processing & Distribution Workers Union Local 26, International Longshoremen's and Warehousemen's Union, herein called the Union, the General Counsel of the National Labor Rela- tions Board, through the Regional Director for the Twenty-first Region (Los Angeles, California), issued a consolidated complaint dated September 14, 1950. against Stationers Corporation of Los Angeles, California, herein called the Re- spondent. The complaint as amended at the hearing alleged that the Respond- ent, by its discharge or layoff of seven named employees' on or about June 19 and its discharge of Carl W. Raggio, Jr., on or about June 26, 1950, and its refusal thereafter to reinstate any of said employees, engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (3) and (1) and Section 2 (6) and (7) of the National Labor Relations Act as amended (61 Stat. 136), herein called the Act. Copies of the complaint, the charges, and notice of hearing were duly served upon the Respondent and the Union. The Respondent's answer filed September 25, 1950, denied that the Re- spondent was engaged in interstate commerce as alleged in the complaint and also denied that it discharged, laid off, or refused to reinstate the eight indi- viduals named for the reasons alleged in the complaint. Pursuant to notice a hearing was held at Los Angeles, California, on December 12, 13, 14, and 15, 1950, before J. J. Fitzpatrick, the undersigned duly designated Trial Examiner.' At the opening of the hearing the General Counsel's motion was granted to strike from the answer a reference to compliance by the Union with Section 9 (f), (g), and (h) of the Act. At the conclusion of the testimony, at the request of the Respondent, it was given an opportunity to take depositions relative to the employee status of Edward Machado. Since the close of the hear- ing a deposition covering this subject has since been received and I have marked the deposition Respondent's Exhibit 5 and it is received in evidence. The parties waived oral argument at the close of the hearing but since then briefs have been received from the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following : I John McCormick, Robert Philipp, Joseph Prulitsky, John Corley, Jessie Wagner, Emmett Allen, and Eugene Young. 2 Associate Chief Trial Examiner William E. Spencer opened the hearing on December 12. After the receipt of the formal papers.but before any evidence was taken I was designated to conduct the hearing. STATIONERS CORPORATION FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 205 Stationers Corporation is a California corporation with its principal office and place of business located in Los Angeles County, California. It is engaged in the business of buying, processing, and selling, at wholesale and retail, office and school supplies. Its annual purchase of material, equipment, and supplies ex- ceed $2,000,000 in value. Approximately 60 percent in value of such material, equipment, and supplies is shipped directly to Respondent's warehouse in Los Angeles, California, from points located outside the State of California. Re- spondent's sales in the State of California are in excess of $2,000,000 in value. Respondent annually ships goods valued at $25,000 or more directly to points out- side the State of California. It furnishes goods necessary to the operation of other employers engaging in interstate commerce, which goods are valued at more than $50,000 annually. Some of these other employers are Standard Oil Com- pany, Union Oil Company, Richfield Oil Company, North American Aviation, Douglas Aircraft, Union Pacific Railway, Santa Fe Railway, and Bank of America. I find, contrary to the contention of the Respondent, that it is engaged in com- merce within the meaning of the Act.' II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background: Sequence of events As above found the Respondent is engaged in the business of buying, processing, and selling school supplies at wholesale and retail. It has an office, retail store, printing plant, and a warehouse all located in or near Los Angeles, California. We are concerned only with the warehouse which normally employs about 90 workers and is in charge of and supervised by Superintendent Clyde B. Wright, assisted by a foreman, Robert Anderson. As the warehouse was used to some extent as a training school for future store employees, or salesmen, Wright favored young men just out of school. In fact it was the custom to temporarily employ students in the warehouse during vacation periods. The record discloses no labor organization functioning in the warehouse since its purchase and occupancy about 1943. In the spring of 1949 a group of em- ployees headed by Ben Masten, and including Dave Norris, Dave Hammond, Jessie Wagner, and John W. Corley, became interested in organizing the ware- house employees in the Teamsters Union. Union literature and application cards were secured and arrangements made for an organizing meeting. How- ever, the day of the evening on which the union meeting was to have been held Masten, Norris, Hammond, and two or three other employees (but not Wagner or Corley) were laid off, and the scheduled meeting was not held. It was the Respondent's uniform practice to require all applicants for em- ployment to fill out a form containing among other questions a query as to whether the applicant was a union member. Before hiring a prospect, Super- intendent Wright would orally ask the applicant the questions in the form. Be- fore Wagner was employed on January 10, 1949, Wright asked him if he was or ever had been a union member. Wagner answered in the negative. Before a Stanislaus Implement and Hardware Co., Ltd., 91 NLRB 618: Hollow Tree Lumber Company, 91 NLRB 635 ; Federal Dairy Company, 91 NLRB 1121. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hiring him, however, Wright questioned Corley about Wagner's union inclina- tions, and received the same answer. Shortly after Masten's layoff in 1949 as above described he came to the warehouse. Foreman Anderson saw Masten talking to Corley and ordered the latter to return to his work. A few minutes later Anderson told Corley that he had better stay away from "those boys" ; that if the Respondent knew that he "had had anything to do with the union" he "would have been discharged with them." When Joseph Prulitsky was hired July 14, 1949, Wright asked him how he felt about unions, and when the latter replied that he was not in favor of them Wright stated that Prulitsky's name sounded "communistic," like he might have "something to do with a Union." When Carl W. Raggio applied in the spring of 1950 Wright asked him if he had anything to do with a union. There was no further union activity in the warehouse until the spring of 1950 when John McCormick, who had signed a Teamsters' card the year before, arranged a meeting at his home on the evening of May 25 with Louis R. Sher- man, secretary-treasurer of the Union. In addition to Sherman and McCormick, employees Wagner and Raggio attended this meeting. After general discussion as to methods to be used in organizing the warehouse, arrangements were made for a second meeting at the McCormick home the evening of June 5. At that time approximately 10 of the employees, including McCormick, Wagner, Robert Philipp, and Emmett Allen, met with Sherman. Application forms for membership in the Union were distributed and. McCormick and Allen each signed one. Thereafter employees were approached about joining, sometimes at the warehouse. Most of the solicitation was by McCormick, although Philipp and Corley assisted to some extent. By June 8 all 8 employees involved herein had signed application cards' On the evening of June 12 a third meeting was held at the home of employee Tom Carroll. About 18 employees attended, including all the claimants herein except Raggio. What discussion took place at this meeting does not appear in the record, except that it, was decided to hold a further meeting the night of June 19 at Carroll's home. At the June 19 meeting a letter was drafted to the Respondent and signed by Sherman asking that the Union be recognized as the bargaining agent for the warehouse employees. Those present also voted to wear union buttons at work. By that time 26 employees had signed union cards. In the meantime, on the morning of June 19, Foreman Anderson having heard some of the employees talking about a meeting for that evening, asked stock clerk Louis Gravesen what he knew about the meeting, but received no information.5 Late that afternoon all the claimants (except Raggio who had not yet returned from his illness) were summarily discharged without any previous warning, effective that night. When he handed out the individual checks Foreman Anderson explained that he was acting under "orders" for a reduction in force. Superintendent Wright told the protesting claimants that their work had been satisfactory' 4 Wright testified that he "joked" with Prulitsky about the latter's name and asked him if he was "Russian." He denied generally asking prospective employees whether they were members of a union "other than reading that portion of the card to them " s As will hereafter appear, Raggio became ill on May 27. He signed a union application card on June 8, that employee Donald Walton brought to his home. U Anderson testified that early in the morning of June 19 he had heard some of the drivers talking about a meeting that night and he inquired about it from Gravesen because he thought "maybe it was a baseball" or "political" meeting. This explanation is not credited. 7 Wright testified that- in response to a question from McCormick as to their work he stated, "your work was satisfactory such as it is." I credit the testimony of McCormick, Corley, Wagner, and Prulitsky that Wright assured him that their work was "more than satisfactory." STATIONERS CORPORATION 207 The next day most of the employees who had signed applications appeared at work wearing union buttons and the seven discharged employees, also wear- ing buttons, presented to Wright the Union's written request for bargaining recognition. Wright read the communication and stated that he would refer the request to Mr. Miles, the Respondent's auditor, "who is the responsible person for the lay-off, and be will probably give it an answer." The discussion then turned again to the reason for the discharges. Prulitsky and McCormick wanted to know why workers more recently employed than the seven involved had not been discharged. Wright replied that the nature of the claimants' work was "not involved" but that he had been ordered to cut the payroll. Either Prulitsky or McCormick then stated that it had come to their attention that new men had started to work in the warehouse that very morning. Wright explained that the jobs of these new men had been "promised" as a "favor" to certain salesmen of the Respondent. When asked if the union membership of the seven employees had anything to do with the discharges Wright disclaimed any knowledge that there was a union in the warehouse. Corley, McCormick, Wagner, and Prulitsky were order clerks. Corley came to work for the Respondent on December 11, 1947, McCormick on December 28, 1948, and as found above, Wagner came on January 10, and Prulitsky on July 14, 1949. The other three were originally employed as packers. Of these Philipp reported to the Respondent on October 17 and Young on October 31, 1949. Allen on March 3, 1950. All three continued as packers until their discharge except Philipp, who was transferred to the receiving department in early 1950. None of the seven has been reinstated although they all applied for reinstatement in August 1950. Raggio was employed on March 3, 1950, on the recommendation of Edward Machado, a salesman for the Respondent and heretofore referred to. Ragglo was placed in the warehouse as an order clerk so that he could learn the stock and thus qualify later for a position in the Respondent's store as a comptometer operator. As heretofore found he attended the original union organizational meeting at McCormick's home on the evening of May 25. On May 27 while at work he was taken seriously ill and sent home. Thereafter he was away from work for several weeks, part of the time in a hospital. During his illness he received hospital and sick benefits by virtue of the provisions of group insurance policies between the Respondent and an insurance company, the premiums of which were contributed to by both the Respondent and its employees. On June 8, while ill at home, Ragglo was visited by his friend and coworker, Donald Walton, and signed an application to join the Union. About June 14, salesman Machado either telephoned to or called on Raggio at his home and asked the latter if he knew anything about the Union's organizational efforts in the warehouse. Raggio disclaimed any knowledge thereof or interest in the Union. On or about June 21 Raggio telephoned to Wright and stated that he would be ready to return to work in a few days. Wright advised Raggio that as he had missed two of the semimonthly pay periods he had been dropped from the payroll and that it would be necessary for him to reapply. Raggio made an appointment to see Wright at the warehouse for this purpose.' Later in the day on June 21 salesman Machado, an old friend of the Raggio family, telephoned Carl and made an appointment to see him that evening at Machado's brother's home. That evening Machado told Raggio that management felt that he was "too close" to employees in the warehouse who were active in the union move- ment and therefore they could not use him at that time, but that he should apply 9 Wright in his testimony was uncertain whether Ragglo had phoned him or called i person on June 21. 208, DECISIONS-OF NATIONAL LABOR RELATIONS BOARD for work later one About August 1 Raggio applied to Wright for a position but was told that there was no opening for him. He has not since been reemployed. B. Conclusions . The Respondent made it a practice to require each applicant for employment to fill out and sign a written application form containing, among other matters, a question whether he was a "member of any labor organization." It was, Superintendent Wright's custom to discuss the answers given to the questions with each applicant before he was hired Wright, in these interviews, made it clear that the Respondent did not favor a union in the warehouse. Thus, Wagner when hired was asked if he had "ever been in a union" or had "belonged to a union." He also questioned Corley as to Wagner's union inclinations. Wright asked Prulitsky how he felt about unions and stated that Prulitsky's name sounded "communistic," like he might have "something to do with a union." Wright asked Raggio if he had anything to do with a union. As heretofore found, in the spring of 1949 some efforts were made to organize the warehouse employees in the Teamsters Union but the organizing attempt was, dropped when employee Ben Masten, the leader therein, and several others were laid off. Subsequent to the discharge of Masten, Foreman Anderson saw Corley talking to Masten and told him that he also would have been released if the Respondent thought he had been involved in the previous attempt to organize the warehouse. It thus appears and I find that prior to May 1950 the Respondent opposed the organization of any union10 in the warehouse ,•and the employees 'were aware of its attitude. Contentions of the Respondent The Respondent contends that (1) it had no knowledge of union activity in the warehouse in 1950 until the employees on June 20 appeared at the plant wearing union buttons, (2) the seven employees were terminated on June 19 because the Respondent found it necessary for business ' reasons to reduce the payroll, and (3) Raggio was released because of his extended illness. As to the first contention : The Respondent's warehouse admittedly used about 90 workers on its 4 floors. Both Superintendent Wright and Foreman Anderson were in daily contact with all these employees The 1950 campaign to secure union members really got started on June 5 at the second meeting at McCormick's, home when application cards were distributed. By June 19, 23 employees had signed application cards. It is a fair inference that some of the warehouse employees who were solicited did not sign applications because they were not interested in a union . At least part of this solicitation took place prior to June 19 during business hours. For example, McCormick, who was one of the most 0 Machado, although admitting that he knew about the union activity in the warehouse, that he was interested in seeing that Raggio retained his position, and that he felt that it might affect his job chances if he was involved in the Union , denied that he ever talked to Raggio on any but the one occasion which he fixed at about June 21 or a week thereafter. As'Machado's testimony in this respect (as well as in other respects ) is contradictory and contains statements and admissions inconsistent with the above denial , I do not credit his- testimony that he only talked with Raggio about the Union on one occasion. 10 There was no allegation in the complaint that the inquiry about unions in the applica- tion form, the questioning of prospective employees , or of Corley concerning Wagner, constituted unfair labor practices . Nor could these allegations have been properly included in the complaint in view of the limitation in Section 10 (b) of the Act. All the above evidence was received as background only and no unfair labor practices are based thereon. However, the evidence is and will be considered as showing the Respondent ' s attitude towards a union in the warehouse. STATIONERS CORPORATION 209 active union advocates, testified credibly and without contradiction that he solicited at least 8 employees at the warehouse. In appraising the reliability of the testimony of Superintendent Wright and Foreman Anderson that they had no knowledge of union activity in the ware- house until June 20, 1950, it must be remembered that there was only a limited number of employees in the warehouse ; that Wright and Anderson were in daily contact with them, and became aware of the 1949 union activity almost from the start thereof, although such activity was considerably less extensive than that in 1950. Viewing-it thusly, I find it difficult to believe the Respondent had no knowledge of union activity among its employees prior to June 20, 1950. This incredulity is increased when I recall that salesman Machado, whose contact with the warehouse was limited at the most to a short visit each day before he went out on his route, testified that he "knew what was going on at the ware- house," and wanted to know "how [Raggio] stood" with reference thereto ; that there was talk going on around the warehouse about the Union "in June" which he "picked up" because he "knew a lot of the guys," and from "listening" he knew that most of them were "not union boys" ; and that employees Walton and Hollar, "friends of Carl Raggio," were "connected with the organizing." u Furthermore, it is undenied that Foreman Anderson on the morning of June 19 knew that the employees contemplated holding a meeting that evening. From the entire record I am satisfied and find that the Respondent was aware of the 1950 union activity in the warehouse prior to June 19, and knew or sus- pected that the eight employees above referred to had made application to join the Union or were interested in that organization.'2 I now come to the Respondent's second contention that the employees were discharged on June 19 because of a necessary reduction in force, and not because of union or collective activity as alleged in the complaint. As above found, the Respondent sells its merchandise largely to schools, so it would appear that during the summer vacation period when most of the schools are closed it would be confronted with an annual slack season of several months. The record supports such an inference only in part so far as the warehouse is concerned. While orders on the warehouse may annually show some falling off in late May and June-certainly no increase during that period-demands for merchandise for the fall season cause the warehouse business annually to in- crease beginning in mid-July and continuing thereafter. Moreover, starting in late June of each year it is the Respondent's custom to employ school students at the warehouse through the rest of the summer. The summer of 1950 was no exception. There is no evidence that the discharged employees lacked suffi- cient work to keep them occupied. " The record shows that Machado later qualified the above statements by testifying that he knew nothing about union organizing at the warehouse until he saw the union buttons on June 20. This last testimony of Machado is obviously inconsistent with his previous state- ment as well as other testimony he gave. Moreover, as found above, about June 14, Machado discussed the Union with Raggio. '2 As heretofore noted, the Respondent was granted permission to take depositions of witnesses after the close of the hearing "for the purpose of showing The employee status of the said Machado." In spite of this limitation Omar E . Boyd, president of the Respondent, testified in his deposition , over objection , that he had no knowledge of the union campaign in the warehouse until June 20. Technically this testimony should be disregarded as beyond the permissible scope of the deposition . Nevertheless, I am receiving and considering the testimony, especially as there is some indication in the record that Mr. Boyd was not available at the time of the hearing due to poor health. However, Boyd's testimony does not change my finding above set forth that on the record considered in its entirety the Respondent at least suspected prior to June 19 that the released employees involved herein were interested in having a union to represent them in collective bargaining. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Superintendent Wright testified that on June 17 Respondent 's auditor, Miles, instructed him to discharge 10 of the warehouse employees because the payroll was "too high" for that time of the year, and that as a result of this instruction, and to some extent against his own judgment , he discharged the 7 employees named in the complaint on June 19. Wright made no effort to reduce the force in the warehouse beyond these 7 employees except that he refused to permit Raggio to return to work. The record discloses that duiing the period from June 15 through June 20 , 6 new employees were put to work in the warehouse , another new employee came on July 7, and 1 on July 10. Furthermore, during the 6-week interval from July 15 , when as heretofore found the Respondent 's business began to increase , to September 1, a period when the Respondent was telling the discharged employees that there was no work available, it hired 23 new employ- ees at the warehouse. In other words , while the payroll was reduced by the dis- charge of the 8 employees involved in the complaint it was increased by 6 new employees. Even this net reduction of 2 on the payroll was wiped out within 3 weeks, and more new employees were added thereafter' In view of this record I find that the seven employees were not discharged on June 19 because of any need to cut the Respondent's warehouse payroll. I further find that their release from employment did not in fact materially reduce the payroll. Considerable testimony was received as to the efficiency and the amount of work performed by the seven discharged employees . As Superintendent . Wright testified and the evidence shows that none of these employees would have been discharged for incompetency, but all of them would have been retained as em- ployees at the warehouse,if it had not been for the alleged order from Auditor Miles to cut the payroll , I can see no point in an extended discussion in this Report as to the qualifications of the discharged employees or any of them. Suffice it to say that as to the four order clerks involved, the computation, sub- mitted in evidence by the Respondent to establish the number of orders handled by each order clerk in the warehouse , does not justify or warrant a finding as to the ability or speed of any of the order clerks as it shows only the number of orders filled by each clerk during a given period, but does not show the size or quantity of any order , the items therein , or how much time was required or used to fill an order. Furthermore, the distribution of the orders to be filled was left entirely to the discretion of the supervisors. As to the competency of the three remaining dischargees , the record is similarly inconclusive. As to the third contention of the Respondent , that Raggio was released from 'employment because of his illness. The record does show that on May 27 Raggio was attacked with a sudden, serious seizure of some kind that, among other things, affected his eyes, and even his doctors apparently did not know for a week or more thereafter the source of the trouble or how extensive the illness would be. However, Raggio had been released from the hospital and was home on the road to recovery presumably on June 8 when his friend , Donald Walton , paid him a visit and he signed a union card. Machado, the family friend, who the previ- ous March sponsored him for his job with the Respondent , discussed union ac- tivity in the warehouse with Raggio about the 14th of June. Raggio talked to Wright on the telephone on June 21 about returning to work in a few days. Later that same night he was told by Machado not to report at that time. When he applied in August following he was refused employment. Wright testified that within a day or two after May 27, Foreman Anderson reported that Raggio's illness was such- that his sight was affected and that he 13 It is also noted, as the record discloses, that one employee left the warehouse on June 23 and three left in July 1950. STATIONERS CORPORATION 211 might never be able to do heavy lifting ; that he made up his mind at that time, without verifying the report , that Raggio was "gone" as an employee and his name was eliminated when the biweekly payroll list was made up on June 2 following. Other testimony of Wright , as well as the Respopdent's records, are inconsistent with the above uncorroborated testimony . For instance, Wright also testified that he made personal telephone calls about Raggio's illness at the latter's home, or caused them to be made ; that he received reports about his progress from Raggio's sponsor, wholesale salesman Machado ; and if Raggio had reported for work by June 15 he would have been retained . Significantly the Respondent's records show that Raggio was carried on the books as an order clerk through June 19 when the other discharges occurred . I therefore reject the above testimony of Wright and find that Raggio was carried on the Re- spondent's books as an employee until June 19, when his name was stricken ; that when he offered on June 21 to return to work he was told by management that he was no longer an employee. The reasons advanced by the Respondent for the release of the employees described in the complaint having no merit, I find that Prulitsky , Philipp, McCormick, Corley, Wagner, Allen, and Young were discharged on June 19, 1950, and Raggio was discharged on June 21 ," and all have since been denied reinstatement, because the Respondent knew or suspected that' they have made application to join the Union or were engaged in collective activity. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above , occurring in connection with the operations of the Respondent set forth 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 ob- structing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the hire and tenure of employment of McCormick , Philipp, Prulitsky, Corley, Wagner, Allen, Young, and Raggio , it will be recommended that the Respondent offer to each of them immediate and full reinstatement to his former or substantially equivalent position '6 and make him whole for any loss of pay he may have suffered by reason of the Respondent 's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the qa'te of the Respondent's offer 14 Aside from the timing of Raggio 's discharge , the finding,above that the Respondent knew or suspected that he was interested in the Union is based on his talks with his friend, salesman Machado. Although not a supervisor, Machado was close to management. He had been with the Respondent for many years and was directly under its president ; he reflected management 's antiunion attitude : he knew of the union activity in the ware- house. He had originally gotten Raggio his job ; and when on June 21 Machado told his protege that the Respondent felt lie was too close to the union adherents and would there- fore not hire him at that time, Raggio was justified in assuming that the salesman repre- sented management . When he applied 6 weeks later Superintendent Wright confirmed what the salesman had already told him. that there was no "opening " I find that on June 21 Machado knew the Respondent' s decision as to Raggio, and the reason therefor , and correctly transmitted same to the latter 16 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65- NLRB 827. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of reinstatement, less his net earnings during said period." Loss of pay is to be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of an adequate offer of reinstatement. These quarterly periods are to begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting net earnings, if any, from a sum equal to that which each employee would normally have earned for each such quarter or portion thereof. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.11 It will also be recommended that the Respondent , upon request, make available to the Board and its agents all payroll and other records perti- nent to an analysis of the amounts due as back pay. Because of the discrimi- natory charges found herein it will also be recommended that the Respondent be ordered to cease and desist from in any manner infringing upon the rights of employees as guaranteed by Section 7 of the Act.18 Upon the basis of the foregoing findings of fact and upon the entire record I make the following : CONCLUSIONS OF LAW 1. Warehouse, Processing & Distribution Workers Union Local 26, Interna- tional Longshoremen's and Warehousemen's Union, is a labor organization within the meaning of Section 2 (5) of the Act , admitting to membership employees of the Respondent. 2. By discriminating in regard to the hire and tenure of employment of John McCormick, Robert Philipp, Joseph Prulitsky, John Corley, Jessie Wagner, Emmett Allen, Eugene Young, and Carl W. Raggio, Jr., the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] 16 Crossett Lumber Company, 8 NLRB 440. 17 F. W. Woolworth Company, 90 NLRB 289. 18 May Department Stores, 326 U. S. 376. HALL-NEAL FURNACE COMPANY and SHEET METAL WORKERS INTER- NATIONAL ASSOCIATION, AFL, PETITIONER. Case No. 35-RC402. September 17, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Alan A. Bruckner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in conection with this case to a three-member panel [Chairman Herzog and Members Houston'and Reynolds]. 96 NLRB No. 28.