West Coast Casket Co, Inc.

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD connect all three conversations. Jones' testimony in this respect is not con- vincing and is not credited. The testimony of Shaw and Blackledge appears to be more probable and is credited. For the reasons stated, the Trial Examiner finds that General Counsel has not sustained the burden of proving, first, that Respondent, acting through Blackledge, interrogated its employees concerning union membership, activities, and sympathies ; and second, that Respondent, acting through Blackledge and Shaw, threatened to effect economic and other reprisals against its employees if they joined or supported the Union, all as alleged in paragraphs V and VI of the complaint. Based on the above findings, it will be recommended that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. American Thread Company has not and is not engaging in unfair labor practices in violation of Section 8 (a) (1) of the Act as alleged in the complaint. Recommendations Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint against American Thread Company be dismissed in its entirety. WEST COAST CASKET COMPANY, INC. and UPHOLSTERER 'S INTER- NATIONAL UNION OF NORTH AMERICA, LOCAL 15, A. F. L. Case No. 21-CA-955. December 29, 1951 Decision and Order On June 26, 1951, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter , the Respond- ent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent 's exceptions and brief , and the entire record in the case, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner , with the following a.d<li- tions and modifications. I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Styles]. 97 NLRB No. 108. WEST COAST CASKET COMPANY, INC. 821 1. We find, as did the Trial Examiner, that the Respondent inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, thereby violating Section-8 (a) (1) of the Act independently of the discrimination discussed below. However, in making this finding we rely solely on the following con- duct, more fully described in the Intermediate Report. (a) President Martin Winkler's interrogation of employees Siebe, Berg, Malling, and Rowan regarding their sympathies for the Union. (b) Winkler's talks to the trimming room employees on November 8 and 10 in which he threatened to discharge those employees who refuse to cross the picket line and report for work. (c) Foreman Bennett's statements to employees Wiljamoa and Beal that Winkler would close the Grade Street plant if the Union was successful in organizing the employees; and the similar threat made by Forelady Settle to employee Smith. (d) The Employer's granting of wage increases during the pend- ency of the Union's representation petition and the announcement of new insurance benefits, which we find, as did the Trial Examiner, was timed and designed to influence the employees in their selection of a bargaining agent and to induce the employees to reject the Union. 2. The Trial Examiner found, and we agree, that the Respondent discriminatorily discharged Eva Smith in violation of Section 8 (a) (3) of the Act. As detailed in the Intermediate Report, the record shows that Smith was employed by the Respondent as a seamstress from 1939 until the time of her discharge, and was at all times regarded as a satisfactory employee. She had been, and it is admitted that the Respondent knew she had been , an active proponent of the Union in its earlier unsuccessful attempts at organizing the Respondent's employees. During this period she voluntarily terminated her em- ployment several times. When she returned to the plant on October 20, 1950, after her last voluntary separation, Myrtice Settle, the fore- lady of the sewing room and Smith's former supervisor, greeted her enthusiastically and told her she knew that Winkler, who had just left on a business trip the day before, would want to hire her. Arrange- ments were then made to have her start work in Settle's department on October 23, 1950. Smith replaced employee Pistoresi, who termi- nated her employment that day. Settle, during the course of this con- versation with Smith, according to Smith's credited testimony, told her that the Union was again trying to organize the employees, that Winkler was very much perturbed by it, and that she "was glad that this came up before [Smith] came back because Winkler always blamed [Smith] for union activities." 986209-52-vol. 9 7--5 3 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Friday, November 3, 1950, Winkler, returning from his trip, expressed surprise at seeing Smith at work. He called Settle from the department and evidently reprimanded her for rehiring Smith. Significantly, when Settle returned to the department she informed Smith that Winkler was irate about the Union and threatened to close the Grade Street plant if union activity proved successful, stating that "he will do it to." The following Monday Smith was informed by Settle that Winkler had just informed her that Smith was to be discharged. According to Smith's credited testimony, Settle reported that the excuse Winkler gave was that he considered Smith a tempo- rary employee, and that two new permanent employees were expected from Kansas City, Winkler having hired them during his previous absence from the plant. Settle stated to Smith, "It is a dirty trick any way you put it." Smith then threatened Labor Board action, to which Settle replied that Winkler was already so angry that any such action on Smith's part would get Settle in trouble. Smith's employment was officially terminated on November 8, 1950. Apparently, the Respondent's principal contention is that Smith was discharged because of Winkler's belief that Smith had unjustly forced Pistoresi out of her job. Unlike the Trial Examiner, we find it unnecessary to decide whether Pistoresi left her job voluntarily. Such a finding is not determinative of the issue here, in view of the uncontroverted evidence which establishes that, whether or not she in fact left her job willingly, Pistoresi later indicated to Winkler that she had left under duress. We are satisfied, however, that Winkler merely seized upon this circumstance as a convenient pretext to disguise the decision he had already made to discharge Smith. We attribute great significance to the conversation between Smith and Settle on November 3, 1950. Winkler, upon seeing Smith at work, called Settle aside to speak to her about the matter. Emerging from this conference Settle immediately reported to Smith that Winkler was angry. But it is significant that the subject of Winkler's anger, as reported by Settle, was not the fact that Smith had replaced Pis- toresi,'but the Union in general, and he had gone so far as to threaten to close the plant if the Union came in. It seems plain that Winkler's conversation with Settle about Smith was concerned with Smith's known allegiance to the Union, and that Winkler's pique was provoked by the fact that Settle, in his absence, had brought a union adherent into the plant. When on November 6, 1950, Winkler advised Settle that Smith was to be discharged, he gave as his reason that he had already hired two new seamstresses in Kansas City. Yet the record shows that no such employees ever arrived at the plant. And when Winkler finally discharged Smith, he told her, in substance, that he A WEST COAST CASKET COMPANY, INC. 823 preferred Pistoresi and could not use both of them. Yet after Smith's discharge and the rehiring of Pistoresi another seamstress was hired. Under all these circumstances, including the inconsistency and un- tenability of the Respondent's defense, the timing of the discharge, and the antiunion animus demonstrated in the conduct found above to have been violative of Section 8 (a) (1), we conclude that Smith was discharged because of Winkler's desire to rid the plant of an em- ployee who had in the past been a strong supporter of the Union. Thus the Respondent violated Section 8 (a) (3) and 8 (a) (1). 3. We also agree with the Trial Examiner's finding that the Re- spondent discriminatorily discharged Neilen Garnes in violation of Section 8 (a) (1) and 8 (a) (3) of the Act. We see no justification for disturbing the Trial Examiner's cred- ibility findings as a result of which he credited Garnes' and dis- credited Winkler's version of the circumstances surrounding Garnes' discharge. • So viewed, we believe the evidence establishes that Garnes was discharged the day after he failed to report to work because of his refusal to cross the picket line established by the Union_ Moreover, in addition to the circumstances relied upon by the Trial Examiner in support of this conclusion, we consider significant the fact, as noted above, that Winkler had earlier threatened to discharge any employee who honored the Union's picket line. We also agree that, in refusing to cross the Union's picket line, Garnes engaged in concerted activity protected by Section 7 of the Act. By such conduct Garnes, in a traditional manner, gave aid and support to, and made common cause with, the employees, who were on strike. This Board has consistently accorded the pro- tection of Section 7 of the Act to employees who, by refusing to cross picket lines or by other lawful means have lent sympathy or support to striking employees 2 For us to hold otherwise would be to hold that although Congress protected the fundamental right of labor organizations to engage in primary picketing, it withheld this protection from the normal employee response which makes that right effective. 4. We agree with the Trial Examiner that the strike which began on November 13, 1950, was in protest against Smith's discharge. Having found that Smith was discharged in violation of the Act, we agree with the Trial Examiner that the strike was an unfair labor practice strike, and that the Respondent further violated Section 8 (a) (3) and 8 (a) (1) of the Act when it denied reinstatement to the strikers who unconditionally applied for reinstatement on -November 27, 1950. 8 See Montag Brothers , 51 NLRB 3.66 enfd. 140 F. 2d 730 (C. A. 5) ; Carter Carburetor- Corp. v. N. L. R . B., 140 F. 2d 714 (C. A. 8). 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent contends that the strike should not be labeled an unfair labor practice strike, because it would have occurred in any event in an attempt to cause the Respondent to cease doing business with Shannon and Simpson Company with whom the Union and another labor organization had a labor dispute. The short answer to this contention is that it is wholly unsupported by the record. The only evidence tending to indicate that the Union ever raised the Shannon and Simpson problem at any time is Winkler's testimony that it - was discussed by the Union's business agent, Smulyan, at an early conference with the Union. This was denied by Smulyan; the Trial Examiner credited the denial and discredited Winkler's testimony; and we perceive no cogent reason for dis- turbing that credibility finding. In any event, there is not a scintilla of evidence which would support a finding that at the Union's membership meeting of November 8, 1950, when it was decided to strike, ' the Shannon and Simpson problem was ever raised or that it was ever posed during the strike as one of the issues involved. For these same reasons we find no merit to the Respondent's related contention that the strike was unprotected because it was in violation of Section 8 (b) (4) (a) of the Act. The Respondent further contends that even if the strike was moti- vated in part by Smith's discharge, it was never so advised by the Union and was therefore not given an opportunity to correct any un- fair labor practice it may have committed. The Respondent argues, therefore, that the strike should not be considered an unfair labor practice strike. However, we are aware of no reason in law or policy which would make the rights of unfair labor practice strikers turn upon whether or not the union had previously advised the employer of its strike demand; this Board has already held otherwise .-3 Hav- ing violated the law in discharging Smith, the Respondent must be held responsible for the consequences which flowed therefrom, in- cluding the fact that the discharge provoked a strike. Moreover, in this particular case, whatever superficial equity there may be in the Respondent's position is destroyed by the fact that the Respond- ent was not without knowledge that the Union was protesting the discharge of Smith and claiming that it was discriminatory before the Respondent denied reemployment to the strikers. Apart from the evidence tending to show that before the strike began Winkler was generally aware of the tensions in the plant which had been engendered by Smith's discharge, the record shows that on November 24, 1950, 3 days before the unconditional request for reinstatement, the Respondent was served with a copy of the charge in this case which alleged, as violative of the Act, the discharge of Smith. 2 See Spencer Auto Electric, Inc., 73 NLRB 1416, 1420. WEST COAST CASKET COMPANY, INC. 825 We therefore conclude that in denying the unconditional request for reinstatement of the strikers in question 4 the Respondent vio- lated Section 8 (a) (3) and 8 (a) (1) of the Act e Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, West Coast Casket Company, Inc., its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in the Upholsterers' International Union of North America, Local 15, affiliated with American Federa- tion of Labor, or in any other labor organization of its employees by discharging or refusing to reinstate or in any other manner discrimi- nating against them in regard to their hire or tenure of employment • or any term or condition of their employment. (b) Interrogating its employees regarding their union member- ship, activities, and sympathies; threatening its employees with dis- charge if they refuse to cross a picket line established by their co- workers; threatening to close its plant or to engage in other reprisal if the Union organized its employees; granting or promising benefits in order to coerce its employees in the selection of a bargaining repre- sentative, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist the Upholsterers' International Union of North America, Local 15, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or pro- tection, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. The Trial Examiner states that in denying the request the Respondent "discharged" the strikers. About 1 month after the request for reinstatement certain of the strikers were advised by letter that they had been replaced ; others, however, were advised that they had been "laid off" but were still being "carried as an employee." As all of the strikers were entitled to reinstatement upon request , the denial of such reinstatement was discriminatory and unlawful , whether it was phrased as a discharge or a layoff 'We note that certain of the 16 strikers had not been permanently replaced at the time they requested reinstatement. As such, they were entitled to reinstatement even if the strike were economic in character . In view of our finding above, however, that the strike was an unfair labor practice strike as a result of which the strikers were entitled to reinstatement even if they had been replaced, we shall not discuss the evidence relating to replacement. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Offer to Earl Berg, Alfonso Hermo, Max Rowan, Rosario, Michael Venezuelo; Raymond H. Beal, Eleazor Leyva, Ramon Perazo, Onni Wiljamoa, Joseph Lucero, Alvin H. Siebe, Louis Mediavilla, Sr., Leo Constantino, Eugene Sobrino, immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the Intermediate Report, attached hereto, in the section entitled "The Remedy," placing those strikers for whom em- ployment is not immediately available on a preferential list in the manner set forth in said section and thereafter, in the said manner, offer them employment as it becomes available for any or all of them. (b) Make whole the employees named above, as well as Glenn Malling, for any loss of pay they may have suffered by reason of the Respondent's discrimination against them in the manner set forth in the Intermediate Report in the section entitled "The Remedy." (c) Offer to Eva Smith immediate and full reinstatement to her former or substantially equivalent position and make her whole for any loss of pay she may have suffered as a result of the discrimination against her, in the manner set forth in the Intermediate Report in the section entitled "The Remedy." (d) Make whole Neilen Garnes for any loss of pay he may have suffered, in the manner set forth in the Intermediate Report in the section entitled "The Remedy." (e) Post immediately in each of its two Los Angeles, California, plants, copies of the notice attached hereto and marked "Appendix A." 6 Copies of said notice to be furnished by the Regional Director for the Twenty-first Region shall, after being duly signed by the Respond- ent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that the said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply therewith. a in the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words , "a Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." WEST COAST CASKET COMPANY, INC. 827 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, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees regarding their union affiliations, membership, or sympathies, threaten our employees with discharge if they refuse to cross a picket line established by their coworkers, threaten to close the plant or otherwise engage in reprisal against union activities of our employees, grant or promise benefits in order to coerce our employees in the selection of a bargaining representative, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMER- ICA, LOCAL 15, affiliated with AMERICAN FEDERATION OF LABOR, 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 and all of such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to the employees named below immediate and full reinstatement, to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of our- discrimination against them : Eva Smith Ramon Peraza Earl Berg Omni Wiljamoa Alfonso Hermo Joseph Lucero Max Rowan Alvin H. Siebe Rosario Louis Mediavilla, Sr. Michael Venezuela Leo Constantino Raymond H. Beal Eugene Sobrino Eleazor Leyva WE WILL make whole GLENN MALLINO AND NEILEN GARNES for any loss of pay suffered by them as a result of our discrimina- tion against them. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, or remain, or refrain from becoming members of the above-named union or any other labor or- ganization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. WEST COAST CASKET COMPANY, INC., Employer. By --------------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge and amended charges duly filed by Upholsterers' International Union of North America, Local 15, affiliated with the American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued his complaint on March 8, 1951, against West Coast Casket Company, Inc., Los Angeles, California, herein called the Respondent, alleging that the Re- spondent had engaged in, and was engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, $1 Stat. 136, herein called the Act. Copies of the complaint and the charges, together with notice of hearing thereon, were duly served upon the Respondent and upon the Union. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent (1) since October 2, 1950,' by means of certain stated acts and conduct, interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act; (2) on or about Novem- ber 1 discharged Clarence Allen,' on or about November 8 discharged Eva Smith, and on or about November 20 discharged Neilen Garnes, and thereafter refused to reinstate them, because each of them had joined and assisted the Union and had engaged in concerted activities for their mutual aid and protection; and (3) on or about November 24 discharged, and thereafter refused to reinstate, 16 named persons because the said persons (a) had joined and assisted the Union, (b) had gone on strike in protest of the Respondent's unfair labor practices, and (c) had otherwise engaged in concerted activities for their mutual aid and protection. I Unless otherwise noted, all dates refer to 1950. 2 During the course of the hearing, the General Counsel moved to dismiss the complaint as to Allen. The motion was granted without objection WEST COAST CASKET COMPANY, INC. 829 On April 9, 1951, the Respondent duly filed an answer admitting certain factual allegations of the complaint with respect to its corporate structure and opera- tions, but denying the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was duly held from April 26 to May 3, 1951, both dates inclusive, at Los Angeles, California, before the undersigned, the duly designated Trial Examiner. The General Counsel and the Respondent were represented by counsel, the Union by an official thereof. Full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence pertinent to the issues was afforded all parties. At the conclusion of the taking of the evidence, oral argument was had in which the General Counsel and counsel for the Respondent participated. The General Counsel then moved to conform the complaint to the proof. The motion was granted without objection. The parties were then advised that they might file briefs, or proposed findings of fact and conclusions of law, or both, with the undersigned on or before May 21, 1951$ A brief and proposed findings of fact and conclusions of law have been received from Respondent's counsel which have been carefully considered by the undersigned. The proposed findings and conclusions are disposed of in accordance with the findings, conclusions, and recommendations hereinafter set forth in this Inter- mediate Report and Recommended Order. On May 31, 1951, the undersigned received from Respondent's counsel a written motion to dismiss portions of. the complaint and to strike certain other portions thereof. The motion is hereby denied on the ground that it is without merit and on the further ground that the motion was not timely made. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT West Coast Casket Company, Inc., a California corporation, has its principal offices and operates two plants in Los Angeles, California,4 the employees of whom are the only ones involved in this proceeding, where it is engaged in the manufacture, sale, and distribution of caskets. During the year ending June 1950, the Respondent purchased materials, equipment, and supplies valued in excess of $459,450, of which amount approximately $275,670 were shipped to the Respondent's Los Angeles, California, plants from points located outside the State of California. During the same period, the Respondent's sales at its Los Angeles, California, plants exceeded $912,000, approximately 10 percent of which was shipped to points located outside the State of California. The Respondent concedes, and the undersigned finds, that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Upholsterers' International Union of North America, Local 15, affiliated with the American Federation of Labor , is a labor organization admitting to mem- bership employees of the Respondent. 8 At the request of the Respondent's counsel, the time was extended to May 28, 1951. 4 The Respondent also operates plants in San Jose and in Fresno, California. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A." Interference, restraint, and coercion 1. The pertinent facts In the latter part of September or early in October, the Union renewed its organizational campaign at the Respondent's Los Angeles, California, plants.' This campaign met with a certain degree of success and , according to the cred- ible and undenied testimony of Murl J. Wells, a business representative of the Union, the first union meeting of the employees here involved took place on or about October 15. On October 26, the Union filed with the Board a petition for certification of representatives. Harry Smulyan, a representative of the Union's international and the business manager of Local 15, testified that early in October, he telephoned to Martin Winkler, Jr., the Respondent's president, and asked for an appointment and that he conferred with Winkler at the Respondent's Tarleton plant' on the same day he had made the telephone call. Smulyan further testified that at this conference he informed Winkler that the majority of the Respondent's employees had authorized the Union to represent them for the purposes of collective bar- gaining ; that he then told Winkler that most of the casket manufacturers throughout the nation had collective bargaining contracts with his union, and that he desired to enter into negotiations for such a contract with the Respondent ; that he also told Winkler that he believed that it would be most advantageous to the Respondent to have contractual relations with the Union because the em ployees "had shown [their] desire to have collective bargaining" through the Union ; and that Winkler's response was, "[the Union] had tried to organize [the Respondent's plants] before and failed, and that [I] believe in the American system that if people didn't like it [here], they should go to work somewhere else." Winkler, while not specifically denying that he made the above-quoted state- ment to Smulyan , testified that. the conference never took place. He further testified that the first time he met, or had a conference with, Smulyan was at the Board's Regional Office on the morning of November 10, where discussion was had with respect to the advisability of entering into a consent election agreement ; that on the afternoon of November 10, Smulyan called at his office and he, Smulyan , and Harry Mazzaro, a salesman and a plant supervisor , conferred in the offices at the Tarleton plant ; that also present in the offices, but not participating in the conference, were three employees;' that throughout the conference Smulyan requested him to enter into a collective bargaining contract ; that he refused to do so, maintaining that since an election was in the offing, the employees should be afforded the opportunity to express their desires by secret ballot with respect to whether they wanted the Union to represent them ; and that a great deal of the discussion was centered around Smulyan's attempts to induce Winkler not to buy merchandise from the firm of Shannon and Simpson, a supplier of "shells" to casket manufacturers, with whom the Union and the Teamsters' Union then were having some difficulties. Smulyan was an honest and credible witness and the undersigned was favor- ably impressed with Smulyan's demeanor while he was on the witness stand. " Commencing in about 1943 , the Union had endeavored on two or three separate occa- sions to organize the Respondent 's employees. Each attempt, however, was unsuccessful. e The two Los Angeles plants are commonly referred to as the Tarleton plant and as the Grade plant. The Respondent's general offices are maintained at the former plant. Namely, secretary-stenographer Flora Mae Wheelus, bookkeeper-payroll clerk Willis Holloway , and bookkeeper Robert L. Malikowski. WEST COAST CASKET COMPANY, INC. 829 On April 9, 1951, the Respondent duly filed an answer admitting certain factual allegations of the complaint with respect to its corporate structure and opera- tions, but denying the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was duly held from April 26 to May 3, 1951, both dates inclusive, at Los Angeles, California, before the undersigned, the duly designated Trial Examiner. The General Counsel and the Respondent were represented by counsel, the Union by an official thereof. Full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence pertinent to the issues was afforded all parties. At the conclusion of the taking of the evidence, oral argument was had in which the General Counsel and counsel for the Respondent participated. The General Counsel then moved to conform the complaint to the proof. The motion was granted without objection. The parties were then advised that they might file briefs, or proposed findings of fact and conclusions of law, or both, with the undersigned on or before May 21, 19519 A brief and proposed findings of fact and conclusions of law have been received from Respondent's counsel which have been carefully considered by the undersigned. The proposed findings and conclusions are disposed of in accordance with the findings, conclusions, and recommendations hereinafter set forth in this Inter- mediate Report and Recommended Order. On May 31, 1951, the undersigned received from Respondent's counsel a written motion to dismiss portions of the complaint and to strike certain other portions thereof. The motion is hereby denied on the ground that it is without merit and on the further ground that the motion was not timely made. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT West Coast Casket Company, Inc., a California corporation, has its principal offices and operates two plants in Los Angeles, California,4 the employees of whom are the only ones involved in this proceeding, where it is engaged in the manufacture, sale, and distribution of caskets. During the year ending June 1950, the Respondent purchased materials, equipment, and supplies valued in excess of $459,450, of which amount approximately $275,670 were shipped to the Respondent's Los Angeles, California, plants from points located outside the State of California. During the same period, the Respondent's sales at its Los Angeles, California, plants exceeded $912,000, approximately 10 percent of which was shipped to points located outside the State of California. The Respondent concedes , and the undersigned finds, that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Upholsterers' International Union of North America, Local 15, affiliated with the American Federation of Labor, is a labor organization admitting to mem- bership employees of the Respondent. B At the request of the Respondent's counsel, the time was extended to May 28, 1951. 4 The Respondent also operates plants in San Jose and in Fresno, California. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what wage rate he was receiving, and when he told Winkler, the latter said it should be higher ; and that his next pay check reflected a wage increase.10 Siebe further credibly testified that about a week after the commencement of the strike u and while he was on the picket line, Winkler stated to him that if he wanted to return to work, Winkler would give him "another chance to go back" to work ; and that he told Winkler that he would not return to work unless and until all his coworkers abandoned the strike and returned to work. Employee Glen Mailing testified that on or about November 9, he had a con- versation with Winkler, which the latter initiated, wherein Winkler stated that Eva Smith was discharged because she was merely a temporary worker ; that Winkler then asked him how he "felt towards the Union" ; that when he re- sponded that he looked favorably upon the Union, Winkler remarked that the Respondent "didn't want to have an election," adding, among other things, that if the employees wanted "a union house, why don't they go to a union house?"; and that the conversation concluded by Winkler stating that he "had a job for life" with the Respondent. - Mailing further testified that at a meeting of the trimming department em- ployees, held on or about November 8, Winkler stated that a strike and an accompanying picket line were imminent ; that the employees should not honor the picket line because the strike was illegal; and that Winkler then advised the employees that if they did not cross the picket line and report for work they "might as well look for" employment elsewhere. Winkler admitted having a conversation with Mailing on or about November 9, but denied telling the latter that he did not "believe in having an election," adding that he could not have made such a statement because he always favored having an election in order to ascertain the employees' desire with respect to the Union. He further testified that he could not recall discussing Smith's dis- charge with Mailing. Under questioning by Respondent's counsel, Winkler testi- fied as follows : Q. Mr. Mailing has testified about a meeting in the trimming room the first week in November, at which you made some talk or address, and that you told him that you expected a picket line, and that you told him if they didn't go through; these employees in the trimming room, that if they didn't go through the picket line, that they might as well look for something else to do. Did you say that? A. I don't remember telling them in those words, no. Q. Do you remember the meeting in the trimming room with the employees? A. Yes, sir, several meetings. Q. Well now, at any of these meetings did you discuss anything in con- nection with the picket line? A. Yes, I believe we touched on that. The undersigned credits Mailing's testimony and therefore finds that Winkler made the above-recited statements on November 8 and 9 which Mailing at- tributed to him. Mailing also credibly testified that while he was on the picket line, John Winkler, a leadman and a brother of Martin Winkler,' asked him to put aside 10 Winkler admitted having the aforesaid conversation with Siebe. He denied making any statement with respect to the probability of closing the Grade plant He did not, however, deny questioning Siebe regarding his sympathies for the Union. Siebe was a credible witness. As noted above, Winkler was not. The undersigned accepts as sub- stantially correct, Siebe's version of the conversation. The undersigned further finds that Winkler made the statements attributed to him by Siebe. 11 The strike began on November 13. 12 Contrary to the Respondent's contention, the undersigned finds that John Winkler is, and at the time of the strike was, a supervisor within the meaning of the Act. WEST COAST CASKET COMPANY, INC. 833 the placard he was carrying, to return to work, adding that the Respondent "will treat you right." Employee Onni Wiljamoa testified credibly and without contradiction that a couple of weeks prior to the commencement of the strike, his foreman, James Bennett, asked him if he had heard any talk about the Union ; that he replied that he had heard "quite a bit" of talk about it ; that Bennett then said, "if the union [got] . . . into the shop, why, [I am] afraid that Mr. Winkler would have to close up the mill";" that Bennett further stated that he had talked to Winkler and "they were planning on giving some" wage increases and "they were working out another insurance policy that would be better than the one we had." - Wiljamoa further credibly testified that about a week or so before he joined the strike on November 20, Winkler, in an address to the cabinet room employees, discussed the contents of several union handbills, especially the statements contained therein with respect to wages, that Winkler also said he was paying wages almost as high as the prevailing union wage scale, and if the employees desired to join the Union that it was their prerogative; and that Winkler also remarked, "if the election went in favor of the Union, that didn't necessarily mean [I will] sign a union contract." Louis Mediavilla testified credibly and without contradiction that on or about November 23, while he was on the picket line, Winkler asked him, in the presence of two other pickets, how long he had been in the Respondent's employ ; that he replied, 7 years ; and that Winkler then said, "All right, boys, thanks for your service. . . . Visit us sometime." According to Earl Berg's credible and undenied testimony, Winkler asked him on or about November 5 or 6, in the presence of Supervisor Harry Mazzaro, if he had received a copy of the pamphlet distributed by the Union a few days previously ; that when he replied in the affirmative, Winkler asked him if he was satisfied with his working conditions, and whether he thought a union was needed in the plant ; that Winkler then said, to quote Berg, "I was worth more money and he was going to see about it"; and that his next pay check reflected a pay increase. Berg also testified, and the undersigned finds, that on Friday, November 10, Winkler addressed the trimming room employees and said that there might be a picket line established the following Monday around the plant, that the employees should not honor it because the strike was illegal, and that any employee who did not cross the picket line and report for work "needn't bother to come back" to the plant. Berg further testified credibly and without contradiction that while he was on the picket line, John Winkler said to him and to some other pickets, "Why don't you come back to work and stop this nonesense?" Max Rowan testified without contradiction, and the undersigned finds, that sometime during the last week in October, Winkler asked him what he thought about the Union and whether he was in favor of it. According to Rowan's undenied and credited testimony, John Winkler asked him and Raymond Beal, while they were on the picket line, "to stop [their] fool- ishness and come back to work." Beal testified credibly and without contradiction that on or about November 9 or 10, Foreman Bennett asked him if he was aware of the union activities in the plant ; that when he acknowledged that he was, Bennett stated if the Union successfully organized the plant, "it would or might be necessary to close part 13 The Grade plant is also referred to in the record as "the mill." 834 DECISIONS OF NATIONAL LABOR,- RELATIONS BOARD of the plant" ; and that Bennett also said, "there was under consideration in behalf of the employees more insurance ... additional benefits and improved policies for the employees." Concluding Findings with Respect to Interference, Restraint, and Coercion The credible evidence in this record, as summarized above, amply establishes that by (1) -Winkler's implication to Smulyan in October, that if the employees did not desire to work in the Respondent's plants without a union they should seek employment elsewhere; (2) Winkler's interrogation of Siebe, Berg, Mailing, and Rowan regarding their sympathies for the Union; (3) Winkler's threat to discharge the employees who refused to cross the picket line and report for work; (4) Winkler's and Bennett's veiled threats to close the Grade plant if the Union was successful in organizing the employees; (5) Winkler's statement to a group of employees, while a representation petition was pending, that even if the Union won the election that did not necessarily mean the Respondent would execute a contract with the Union; (6) granting wage increases in order to influence the employees in their selection of a bargaining agent and to induce the employees to forsake the Union ; 14 (7) the preelection disclosure of additional insurance coverage ; and (8) Winkler's statement to Mailing that if the employees wanted "a union house" they should seek employment thereat, the Respondent interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, thereby violating Section 8 (a) (1) thereof. B. The discharge of Neilen Games Garnes was first employed by the Respondent in August 1950 as a helper. He worked at the Tarleton plant until November 20. On the latter date, Winkler suggested that, because of shortage of help at the Grade plant, he work at that plant. According to Garnes' testimony, Winkler drove him in an automobile from the Tarleton plant to the Grade plant on the morning of November 20; that during a conversation which ensued between them while en route, Winkler told him that he would not rehire the strikers and that he informed Winkler that he would not cross the picket line in order to go to work if any more employees went on strike. Garnes further testified that he made the above statement about not crossing the picket line because he had heard some nonstrikers say that they intended to join the strike. Regarding the conversation between him and Garnes in the automobile be- tween the Tarleton and Grade plants on the morning of November 20, Winkler testified that after he explained to Garnes what Garnes' new duties would be, 14 Winkler testified that before leaving Los Angeles for the East shortly after mid- October, he authorized the granting of 17 wage increases to become effective in November. The undersigned does not credit this testimony. The credible evidence clearly reveals that these increases were authorized in November and were announced in November after the Respondent had been advised by the Board that the Union had filed a rep- resentation petition. This finding is buttressed, not only by the credible testimony of several recipients of the pay increases, but by the nonproduction of the written records which Winkler testified were made at the time he authorized the increases. In other words, the only evidence introduced by the Respondent to prove that the increases were authorized in October was Winkler's uncorroborated testimony. Furthermore, according to the undenied and credible testimony of Wiljamoa, he was informed by Foreman Bennett several weeks before the commencement of the strike that the Respondent was "planning on giving some" wage increases. The disclosure of the wage increases, moreover, was strategically timed so as to impress upon the employees the futility of belonging to the Union. WEST COAST CASKET COMPANY, INC . 835 he said, "I want you to know that you don't have to go to the other plant unless it is of your own free will and accord. You noticed we have pickets [at the Tarleton plant], and we have them at the other plant" ; that Garnes replied, to quote Winkler, "he had gone through [the picket lines at the Tarleton plant] and there was no reason why he wouldn't go through them at the Grade plant" ; and that he could not recall Garnes saying in his conversation that Garnes "wouldn't go to work at the Grade plant if there were any more pickets there than there were at the previous time." Garnes testified that when he reported for work at 7 a. m. on Tuesday, Novem- ber 21, he saw more pickets at the Grade plant so he did not report for work, but instead returned to his home ; 15 that when he reported for work at 7 a. m. the next day, November 22, he did not see any pickets so he proceeded into the plant ; that later that morning, Winkler asked him why he did not report for work the previous day ; that he replied that there were more pickets around the plant the day before than there had been in the past and therefore he did not care to cross the picket line and besides he thought he would return home because his wife was ill ; and that Winkler thereupon discharged him, adding that he (Winkler) "had made different arrangements." On direct examination, Winkler testified that when he queried Garnes as to why the latter did not report for work on November 21, Garnes stated that it was due to his wife's illness ; that he then asked Garnes why Garnes had removed his tools 16 from the plant the evening before ; that Garnes replied he had taken them home in order "to practice" ; and that he then told him "we had made other arrangements" and thereupon discharged Garnes. On cross-examination, Winkler first testified that when Garnes did not report for work on November 21, he eliminated Garnes' job that day by combining it with that of another employee ; that he discharged Garnes because "he failed to show up" for work ; and that the decision to discharge Garnes and to eliminate Garnes' job was made on November 21. Winkler then testified that the decision to eliminate Garnes' job was not made until November 22, "the day [Garnes] left." Finally, Winkler, in answer to the question, "Why did you discharge [Garnes]," replied, "Simply that he didn't show up the day before, and I had understood he had quit." As noted above, Winkler was not a credible witness. On the other hand, Garnes impressed the undersigned as an honest and forthright witness. Under the circumstances, the undersigned is convinced, and finds, Garnes' version of what transpired, and what was said by and between him and Winkler, on Novem- ber 20 and 22, to be substantially in accord with the facts. The credible evidence with respect to Garnes' discharge, as summarized above, viewed against the Respondent's antiunion bias, supports a conclusion that Garnes was discharged upon his return to the plant on November 22, because he refused to cross the picket line established by his coworkers, thereby engaging in activities protected by the Act. This conclusion becomes inescapable, not only because of the conflicting reasons for the discharge advanced by Winkler while be was on the witness stand but, when consideration is given to the fact that prior to November 21, Garnes, as far as the record discloses, never absented himself from work nor did he ever report late for work. Garnes, moreover, was never notified that a day's absence from work would be cause for dis. 15 On November 20, more employees struck and more pickets joined the picket line. 16 The tools used by Garnes at the Grade plant were a hammer and a nail set 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge or for any other disciplinary action 17 By such discharge the Respondent discouraged membership in a labor organization in violation of Section 8 (a) (3) and (1) of the Act, thereby interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 thereof. C. The discharge of Eva Smith Smith was first employed by the Respondent in March 1939. She quit in July 1942. In March 1943, she returned to the Respondent's employ and re- mained until about July 1947. In December 1947, she returned and continued to work until March or April 1948, when she again quit. On October '13, 1949, Smith returned to the Respondent' s employ and worked until she quit on June 30, 1950. Her last term of employment with the Respondent was from October 23 to November 8, 1950. Throughout her entire employment with the Respondent, Smith was a seamstress. Admittedly, each termination of employ- ment was due to her voluntary actions. Smith testified credibly that immediately prior to her return to the Respond- ent's plant on October 13, 1949, she had a conversation with Winkler wherein he told her, after a discussion had been had regarding the wage rate Smith was to receive, "I do not want to have any labor trouble, Eva" ; that she replied, "I wouldn't cause you any trouble . . . I won't try to convert any of your em- ployees . . . "; and that thereupon she was hired.18 Smith further testified credibly that when she returned to the plant on Friday, October 20, 1950, Myrtice Settle,'9 the forelady of the sewing room and Smith's former supervisor, greeted her saying, "I wish you [had come] yesterday. Mr. Winkler just left for the East and I know he would have wanted you to come to work" ; that she replied, "I don't care whether I work or not" ; that Settle then told her that Pistoresi had stated that she (Pistoresi) had intended -to quit and she could have Pistoresi's job if she wanted it ; that she spoke to Pistoresi about the latter's quitting before accepting the proffered job and Pistoresi con- firmed the fact that she had given Settle notice of her intention to quit; that after a further talk with Settle, Settle telephoned to and received permission from Secretary-Treasurer Berghauser to hire her; and that she commenced working in Settle's department the following Monday, October 23. Smith further testified credibly that during the aforesaid conversation with Settle on October 20, the latter said that the Union again was trying to organize the employees ; that Winkler was very much perturbed about it, and that Settle also said, "I am glad that this came up before you came back, because [Winkler] always blamed [the Union's past organizational drives] on you." 17 Former Superintendent Mills testified, and the undersigned finds, that when Garnes was hired he instructed Garnes as to Garnes' duties and as to the Respondent's rules and regula- tions respecting hours of work and other such matters; and that he also told Garnes, "if [Garnes] was [ever] unable to show up and work we would like to know at least by 10:00 in the morning by telephone or some message " [ Emphasis supplied ] 19 At the time of the above-mentioned conversation, Smith was, and had been for some time prior thereto, working for a casket company in Los Angeles which then had a union- shop clause in its contract with the union here involved . Admittedly , Winkler knew that Smith eas then in the employ of the above-referred-to concern and that she had joined the union. However, Winkler denied that he mentioned "labor trouble" during the aforesaid conversation. He testified that he told Smith, "I [will] not tolerate any trouble in our plant" ; and that by "trouble " he referred to some unpleasantness which took place between employee Bertha Pistoresi and Smith sometime during 1939 ( Pistoresi places the incident in 1937 or 1938. This, of course, is erroneous because Smith did not start her employment with Respondent until 1939 ) The undersigned finds Smith 's version of the aforesaid conversation to be substantially correct. 19 Settle did not testify. WEST COAST CASKET COMPANY, INC. 837 Smith also testified credibly that on Friday, November 3, Winkler came into the sewing room and expressed surprise on seeing her there at work ; that thereupon Winkler called Settle from the ,-sewing, room and conferred with Settle ; that about 20 or 30rininutes later Settle reentered the sewing room and said to her, "Mr. Winkler is very mad . . . about the Union" ; that Settle also stated that Winkler had remarked to her that if the Union successfully organized the plant he would close it, adding, "He will do it, too" ; that in the midafternoon of Monday, November 6, Settle informed her that she just received word from Winkler that she was to be discharged; that in response to her inquiry as to reason for the discharge, Settle said that Winkler stated that he considered her a temporary employee and, moreover, he was expecting two permanent new employees from Kansas City ; that Settle then said , "It is a dirty trick, any way you put it. And I feel bad about it because I am the one that told you to come back to work" ; that she (Smith) then stated that she "was going to turn [Winkler] in to the Labor Board" ; that Settle requested her not to do so "because he was so mad already and [Smith's action] might get [me] in bad"; and that she was discharged on November S. Pistoresi testified that she worked for the Respondent from 1936 or 1937 until 1941 or 1943, when she quit ; that she was rehired in August 1950 ; 20 that in October 1950, she had a conversation with Smith in the Respondent's sewing room during which Smith expressed regret that Smith was replacing her ; that she assured Smith that Smith was not replacing her, adding that she was happy to be relieved of her job because she had a few tasks at home which she was, anxious to do ; and that she was assured by Settle that as soon as Smith left the Respondent's employ again, she would be recalled by Settle; 21 that on No- vember 5 or 6 22 Winkler telephoned to her and inquired why she had quit : that she replied, "I figured that [Smith] had worked there before, and that I didn't want to work with her, and so I left" ; and that Winkler told her to return to work.22 Winkler testified that when he returned on or about November 3, from a business trip to Kansas City, Philadelphia, and New York, he inquired of Settle why. Smith was rehired and why Pistoresi had quit; that Settle gave him no satisfactory explanation ; that he Telephoned to Pistoresi and inquired in order to ascertain the facts ; that Pistoresi replied, "it's very evident that I ,was not wanted" ; that Pistoresi also stated that she did not want to work with Smith ; that he told Pistoresi to return to work ; that Pistoresi returned on November 9, the day following Smith's discharge ; that the day after Smith was discharged, Smith telephoned to him to inquire why her services were terminated ; and that he told Smith, "she shouldn't have been hired-in the first place, and that Mrs. Pistoresi had been hired and she (Pistoresi) was forced out" by Smith. Winkler testified to various and sundry reasons why Smith's services were terminated. Among the reasons he advanced was his employment of two seamstresses while he was in Kansas City and the abrupt dismissal of Pistoresi. A close analysis of the record discloses that none of the reasons testified to by Winkler is bona fide. First of all, the two seamstresses allegedly engaged by Winkler while he was in Kansas City in October or November, did not report for work. In the second place, Pistoresi was not discharged, laid off, or other- 2° On cross-examination , Pistoresi testified that she was rehired about September 20, 1950. 21 On October 20, Smith told Settle that she did not then know holy long she would remain on the job. 22 Pistoresi places the date as November 13 or 14. The above date is established by the record. 22 The record discloses that Pistoresi returned to work on November 9. 980209-52-vol. 97-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise terminated because Smith returned to the plant. Pistoresi left the plant voluntarily. As further evidence that each and every reason advanced for Smith's dismissal is false is the fact that on November 6, the very day that Smith was notified of her discharge, the Respondent hired a temporary, or part-time, seamstress." J n short, the explanation for Smith's discharge offered by Winkler does not stand up under scrutiny. Upon the entire record in the case, the undersigned finds that Eva Smith was discharged on November 8, and thereafter refused reinstatement, because she was a member of the Union. By such discharge the Respondent discouraged membership in a labor organization in violation of Section 8 (a) (3) and (1) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 thereof. D. The refusal to reinstate the strikers upon their unconditional request for reinstatement The complaint alleged that each of the 16 named strikers zs unconditionally offered to return to work, to abandon the strike, and that the Respondent refused to reinstate them because of their union activities and membership. The com- plaint also alleged that the strike, which lasted from November 13 to and including December 5, 1950, was the direct consequence of the Respondent's unfair labor practices. The Respondent's answer, in effect, denied the aforesaid allegations. As found above, at a meeting of the Union held on or about November 9, the members unanimously voted to strike in protest of the discriminatory discharge of Eva Smith and for economic reasons. Pursuant to said vote, certain em- ployees went out on strike on November 13, and immediately picket lines were established around both plants which were maintained until December 5. On the latter date, the pickets were withdrawn at the request of a Board agent because the Board conducted an election among the Respondent's employees that day. The Union lost the election and the picket lines were never again established. Under date of November 24, each of the 16 strikers named in the complaint sent the Respondent a letter "requesting that [I] be reinstated and put back on [my] job immediately." Admittedly, the Respondent received these letters not later than November 27. The Union, also under date of November 24, uncon- ditionally requested reinstatement for all the strikers. Under date of December 20, the Respondent wrote seven strikers 29 as follows : In connection with your request for reinstatement please be advised as follows : You are carried as an employee of West Coast Casket Company but you will consider yourself "laid off" as of the 25 November 1950. West Coast Casket has suffered a diminution of business recently which compelled a reduction of the payroll. If you will call in person or by telephone at least weekly you will be advised when your job is to be reactivated. The company's telephone number is Prospect 4391. u Winkler testified that this temporary employee had been engaged many weeks prior +o November 6, but reported for work only that day. The undersigned does not credit this testimony. This employee was in the Respondent's employ at the time of the hearing but was not called as a witness. 26 Namely, Alfonso Hermo, Glenn E. Mailing, Rosario Venezuela, Michael Venezuela, Raymon H. Beal , Max Rowan, Neilen Garnes , Earl Berg, Eleazor Leyva, Ramon Peraza, Onni Wiljamoa, Joseph Lucero, Alvin Siebe, Louis Mediavilla, Sr., Leo Constantino, and Eugene Sobrino. 28 Namely, Wiljamoa , Rowan, Siebe, Berg, Beal, Mediavilla, and Hermo. WEST COAST CASKET COMPANY, INC . 839 • The remaining strikers who requested reinstatement on November 24, 21 received letters dated December 20, from the Respondent reading as follows : In connection with your request for reinstatement please be advised as follows : Your job has been filled by a replacement procured before request for rein- statement was received. Under date of January 18, 1951, the Respondent wrote Rosario Venezuela, Constantino, Mailing, Peraza, Lucero, Leyva, and Garnes, offering each of them unconditional and full reinstatement. Garnes and Mailing each declined the offer. - The statement in the Respondent's "layoff" letters of December 20 to Wiljamoa, Rowan, Siebe, Berg, Beal, Mediavilla, and Hermo that the Respondent had suf- fered a "diminution in business recently" and hence the Respondent had to lay off the aforesaid 7 persons is patently false for the record incontrovertibly shows that the December 1950 volume of Respondent' s business , as well as the dollar value thereof, was greater than the business done during the month prior to the strike.' Furthermore, between November 15 and the date of the aforesaid letters the Respondent hired 10 new employees, 5 of whom were allegedly hired to replace 5 strikers. The statement in the "replacement" letters of December 20, that the jobs of Malling, Garnes, Lucero, Peraza, Sobrino, Constantino, Leyva, Rosario Venezuela, and Michael Venezuela were no longer available because they had been filled is not strictly in accordance with the facts, for the record reveals that Mailing was an upholsterer and that no upholsterer was hired until January 2, 1951; that Garnes was a helper and that no person of that classification was ever hired after Garnes' discharge ; that Lucero, Peraza, Sobrino, Constantino, and M. Venezuela were sanders and Leyva was a polisher-sander and that on November 24 (the date of the letters requesting reinstatement), four sanders were hired, one on Novem- ber 28, one on December 11, one on December 28, one on December 29, and another on January 19, 1951. The aforesaid figures show that, at best, only four sanders were hired prior to the Respondent's receipt of the letters requesting reinstate- ment to replace five sanders and one polisher-sander. The Respondent contended at the hearing and in its brief that its employees engaged in an economic strike and that it was therefore entitled to replace .the strikers at any time prior to the strikers' unconditional request for reinstatement. The record abundantly supports a finding, and the undersigned so finds, that one of the causes of the strike was the Respondent's discriminatory discharge of Eva Smith. Thus, at a meeting held after Smith's discharge, after a full discussion regarding her discharge and certain other actions of the Respondent had been bad, the membership unanimously voted to strike. Even though eco- nomic considerations may also have been present, an unfair labor practice strike does not thereby lose its character and scope.' - 21 Namely, Mailing, Garnes, Lucero, Peraza, Sobrino, Leo Constantino (also referred to in the record as Constantino Leo), Rosario Venezuela, and Michael Venezuela, and Leyva. 28 The only figures introduced in evidence with respect to the Respondent 's business for the period under consideration were those for October, November, and December 1950. These are as follows : October Number of caskets sold--------------------------------- Value of sales------------------------------------------- 609 $79,865 91 November 602 $62,080.26 December 664 $81, 235.57 20 N. L. R B. v Stackpole Carbon Co., 105 F. 2d 167 (C. A. 3) ; Berkshire Knitting Mills v. N. L. R. B, 139 F 2d 134 (C. A. 3) ; N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is now settled law that upon termination of the unfair labor practice strike, as here, the strikers were entitled to reinstatement even if such reinstatement necessitated the discharge of new employees hired during the strike.30 When, therefore, the strikers here involved unconditionally offered to return to work, the Respondent by refusing their request for reinstatement, discharged them in violation of Section 8 (a) (3) of the Act.S1 Upon the entire record in the case, the undersigned finds that the Respondent refused to reinstate the 16 strikers named in the complaint on November 27,1950S3 and thereby discharged them, because the said 16 persons, and each of them, had supported the Union and had engaged in concerted activities protected by the Act. By such discharges the Respondent discouraged membership in a labor organization in violation of Section 8 (a) (3) and (1) of the Act thereby inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 thereof. 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 Respondent's operations described in Section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce, among the several States, and such of them as have been found to constitute unfair labor practices,, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1) and (3) of the -Act, the undersigned will recom- mend 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, and the terms and conditions of employment, of" Eva Smith and Neilen Garnes, the undersigned will recommend that the Re- spondent offer Smith immediate and full reinstatement to her former or sub- stantially equivalent position, without prejudice to her seniority and other rights and privileges " The undersigned will also recommend that the Respondent make- Smith and Garnes whole for any loss of pay he or she may have suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount they normally would have earned. as wages less his or her net earnings, during that period.'4 Having found that the Respondent discriminated against the 16 strikers named in the complaint with respect to their hire and tenure of employment because- they had gone on strike in protest against the Respondent's unfair labor prac- tices and had engaged in other protected activities, the undersigned will rec- ommend that the Respondent offer the aforesaid 16 individuals, excepting those either rehired or previously offered full reinstatement, immediate and full rein-- (C. A. 2) ; Republic Steel Corp. v. `N. L R. B., 107 F. 2d 472 (C A. 3) ; modified as to other provisions 311 U. S. 7; N L. It. B. v. Barrett Co, 135 F 2d 959 (C A. 7). 3O N L. R. B. v. Mackay Radio & Telegraph Co, 304 U. S 333 ; United Biscuit Co. v. N. L. It. B., 128 F. 2d 771 (C. A. 7) ; N. L. R B. v. Eclipse Moulded Products Co., 126 F._ 2d 576 (C. A. 7) ; Black Diamond Steamship Corp. v. N. L. R. B, 94 F. 2d 875•(C. A. 2). 31 N L. R. B. v. Barrett Co., supra; Great Southern Trucking Co. v. N. L It . B , 127 F. 2d 180 (C. A. 4). Clearly, the Respondent's letters of December 20 were dismissal notices. 32 The date when the Respondent received the strikers' letters requesting reinstatement. 33 Garnes ivas offered full reinstatement in January 1951 , and refused the offer. Hence, no reinstatement order as to Garnes is recommended. 34 See Crossett Lumber Co., 8 NLRB 440. WEST COAST CASKET COMPANY, INC. 841 statement to their former or substantially equivalent positions," without preju- dice to their seniority or other rights and privileges. The reinstatement shall be effected in the following manner : All employees hired after November 27, 1950, the date of the receipt by the Respondent of the strikers' request for reinstatement, shall, if necessary to provide employment for those to be offered and who shall accept reinstatement, be dismissed. If, however, by reason of a reduction in force there are not immediately available sufficient positions for the remaining strikers, including those who are to be reinstated, all.available positions shall be distributed among such remaining employees in accordance with the Respondent's usual method of reducing its force, without discrimina- tion against any employee because of his or her union affiliation or activities, following such system of seniority as has heretofore been applied by the Re- spondent in the conduct of its business. Those employees remaining after such distribution for whom no employment is immediately available, shall be placed on a preferential list, with priority determined among them in accordance with the system of seniority or other nondiscriminatory procedure as has heretofore been applied by the Respondent in the conduct of its business, and thereafter, in accordance with such list, shall be offered reinstatement by the Respondent to their former or substantially equivalent positions as such employment be- comes available and before other persons are hired for such work. The undersigned will also recommend that the Respondent make whole the aforesaid 16 strikers for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by the payment to each of a sum of money equal to the amount wliich he or she normally would have earned as wages from November 27, 1950,x8 to the date of the Respondent's offer of rein- statement or to the date of placement on the preferential list hereinabove de- scribed, less his or her net earnings during such period. The undersigned will also recommend that the Respondent make whole Glenn Mailing for any loss of pay he may have suffered by reason of the Respondent's discrimination against him by the payment to him of a sum of money equal to the amount which he normally would have earned as wages from November 27, 1950, to the date of the receipt by Mailing of the Respondent's letter of January 18, 1951, offering Mailing full reinstatement, less his net earnings during such period. Back pay shall be paid in accordance with the formula enunciated by the Board in F. W. Woolworth, 90 NLRB 289. _ The unfair labor practices found to have been engaged in by the Respondent are of such a character and scope that in order to insure the employees here involved their full rights guaranteed them by the Act, it will be recommended that the Respondent cease and desist from in any manner interfering with, re- straining, and coercing its employees in their right to self-organization.37 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CowcxusIONs OF LAW 1. Upholsterers' International Union of North America, Local 15, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 81 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 81 The date when the Respondent admittedly received the strikers' letters requesting uncon- ditional reinstatement. 87 See May Department Stores v. N. L. R. B., 326 U. S. 876. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employment of Eva Smith and Neilen Garnes, thereby discouraging membership is the Union, the Respondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (a) (3) of the Act. 3. By discriminating in regard to the hire and tenure of the 16 strikers named in the complaint, the Respondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (a) (3) of the Act. 4. By interrogating its employees regarding their union membership, activ- ities, and sympathies, by threatening its employees with discharge if they did not cross the picket line established by their coworkers, by threatening to close the Grade plant if the Union successfully organized the employees, by granting wage increases and announcing larger insurance coverage to influence the em- ployees' votes at a Board election and for the further purpose of forestalling the Union's organizational drive, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The 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.] MAC SMITH GARMENT COMPANY, No. and AMALGAMATED CLOTHING WORKERS of AMERICA, CIO. Case No. 15-CA-470. December 29,1951 Decision and Order On March 22, 1951, Trial Examiner John Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and supporting briefs. 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. The Board has considered the Inter- mediate Report, the exceptions, the briefs, and the entire record in the case,2 and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications. 1. The complaint alleged and the Trial Examiner found that the Respondent had refused to bargain with the charging Union in vio- lation of Section 8 (a) (5) of the Act. However, although the evi- 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Houston, Reynolds, and Styles]. _ Y The Respondent's request for oral argument is denied , because the record and briefs, in our opinion , adequately present the issues and positions of the parties. 97 NLRB No. 124.