International Furniture Co.

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by reason of the discrimination against him during the period from his dis- charge to 5 days after the date Respondent notifies the Company as specified in the preceding sentence. Said loss of pay shall otherwise be determined in the manner prescribed by the Board in F. W. Woolworth Company, 19 NLRB 289. The record indicates that Respondent took the illegal action because it in good faith believed it had a valid union-security agreement. In view of that fact, and because Respondent's, past conduct does not suggest the danger that other unfair labor practices will be committed in the future, I am of the opinion that the issuance of a broad cease and desist order against Respond- Ent is unwarranted . Therefore, in accordance with Board practice in cases of this type,9 it will be recommended that Respondent cease and desist from the unfair labor practices found, and any like or related conduct., Upon the basis of the foregoing finding of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent United Electrical , Radio and Machine Workers of America, Local 622 ( UE), is a labor organization within the meaning of Section 2 (5) of the Act. 2. By entering into, maintaining , and extending the illegal union •security provisions of its bargaining contract with the Company , Respondent violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 3. By causing the Company to discriminate in regard to the hire and tenure of employment of George A. Gozdick in violation of Section 8 (a) (3) of the Act, Respondent has engaged , and is engaging, in unfair labor practices within the meaning of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.], 9 Carlyle Rubber Co , Inc., 92 NLRB 385, and cases cited in footnote 14 therein. INTERNATIONAL FURNITURE COMPANY and UPHOLSTERERS' INTERNA- TIONAL UNION OF NORTH AMERICA, AFL. Case No. 10-CA-1p216. March, l7,1959 Decision and Order On September 6, 1951, Trial Examiner Charles W. Whittemore issued his Intermediate 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a support-_' ing brief.' The Respondent's request for oral argument is denied because the record and brief, in our opinion , adequately present the issues and the positions - of the parties. 98 NLRB No. 100. INTERNATIONAL FURNITURE COMPANY 675 Pursuant to the provisions of Section 3 (b) of the Act, the National 'Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Murdock and Styles]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed 2 The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions and modifications below. 1. We find, in agreement with the Trial Examiner, that the Re- spondent, by surveillance, interrogation, and threats of reprisal, inde- pendently violated Section 8 (a) (1) of the Act. In reaching this conclusion, however, we rely solely on the following : _ (a) Witnesses Malone and Almond testified that on Friday eve- ning, January 12, 1951, while they, in the company of others, were attending a union meeting on a parking lot adjacent to Sidwell 's store, about 8 miles from the plant, Superintendent Oberholtzer drove by the scene of the meeting. They testified further that he stopped his automobile at a nearby intersection, turned around and came back- this time at a reduced rate of speed-and that shortly thereafter he stopped again, turned back, and slowly passed the store a third time. Oberholtzer admitted that he had driven by Sidwell's store that night and that he had passed it again on his way back, but denied that he had slowed down or that he drove by there a third time. He ex- plained that he was driving his automobile on that highway for the purpose of purchasing beer in an adjoining county, and not to spy on the union meeting. The Trial Examiner, in finding that the Respond- ent had engaged in unlawful surveillance, relied, among other things, on an alleged admission by Oberholtzer at the hearing that as he drove past Sidwell's store he had seen Union Organizer Malone. Although the record does not show that Oberholtzer made such an admission, the testimony of Malone and Almond, which we, like the Trial Ex- aminer, credit, amply supports the finding, which we make, that the Respondent, by the conduct in question, had engaged in surveillance of the union meeting in violation of Section 8 (a) (1). (b) William R. Nelms, one of the employees, testified that about the end of January 1951, approximately 3 weeks before the Board 2 Contrary to the Respondent 's contention , we find nothing in the record or in the Intermediate Report reflecting bias or prejudice by the Trial Examiner . Although we do not agree with some of the Trial Examiner 's subsidiary findings of fact, as will appear more fully below, the record does not, in our opinion, sustain any allegations of prejudicial conduct which might in any way affect the validity of the Trial Examiner 's ultimate conclusions. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election of February 15, 1951, his immediate foreman, Anderson, questioned him as to whether he had attended a meeting of the Union. We find such interrogation concerning aspects of union activity viola- tive of Section 8 (a) (1).3 (c) William R. Nelms also'testified that during the same conversa- tion, Anderson stated to him that if the Union went in "we would all soon probably be out of a job." 4 James G. Nelms, another employee, testified that about a week or two before the February 15, election, his immediate supervisor, Whitmire, said to him that "if the Union was voted in we would all be out of a job." We find that both state- ments constitute threats of economic reprisal in violation of Section 8 (a) (1).5 2. We find, in agreement with the Trial Examiner, that the Re- spondent discriminated with regard to the hire and tenure of employ- ment of Harold Almond in violation of Section 8 (a) (3) and (1) of the Act. In reaching this conclusion we rely on the following circum- stances disclosed by the record. In the latter part of October 1950, the Union began an organiza- tional campaign among the Respondent's employees. Shortly there- after, early in November 1950, Almond joined the Union and began assisting the union organizer, Malone, by distributing leaflets and engaging in house-to-house contact work. On Monday, November 20, 1950, at about noon, Almond, after first speaking to his foreman, Anderson, asked Superintendent Oberholtzer for permission to take the rest of the day off to attend to a personal matter. Oberholtzer thereupon informed Almond that he had in- tended to lay him off at the end of the week but in view of his request. he "might as well not come back." Almond then saw Malone and related to him what had occurred. Shortly after 2 p. m. of the same day, Almond returned to the plant accompanied by Malone. Malone advised Oberholtzer that he (Malone) was an organizer for the Union, that he had just had a conversation with Almond, and that his visit was prompted by such conversation. Malone also informed Oberholtzer that Almond was a member of the Union. Oberholtzer said that he had not known this., And Malone said, "Well, you know 9 See Standard Cossa Thatches Company , 85 NLRB 1358 4 That Anderson may have made the statement "in a joking way" does not deprive it of its coercive quality. See Fairmont Creamery Company, 73 NLRB 1380 5 The Trial Examiner also found t hat the Respondent 's superintendent, Oberholtzer, had unlawfully promised benefits to the employees in return for their rejection of the Union. In considering the evidence bearing upon this issue, however. the Trial Examiner failed to give proper effect to a stipulation concerning the testimony of certain employees who were alleged to have been present when the statement was made In these circumstances, we do not rely on the alleged promise of benefit in concluding that the Respondent violated. Section 8 ( a) (1) of the Act The Trial Examiner did not resolve the question whether the Respondent had adopted, by failing to repudiate , an editorial in a local newspaper on January 19. 1951. We like- wise do not pass on that issue , noting that our findings herein , and the order herein issued, do not turn, in any respect, on the editorial in question. INTERNATIONAL FURNITURE COMPANY 677 it now." Oberholtzer then explained to Malone that Almond had been laid off for lack of work, and that two other employees would also be laid off by the end of the week. Oberholtzer added that work should pick up about the first of the year and that Almond would be recalled around that time. Oberholtzer did not, during this con- versation, or during the earlier conversation with Almond, give any other reason for Almond's layoff. In December 1950, Malone saw Oberholtzer again at the plant office. Malone called Oberholtzer's attention to the fact that a laid-off em- ployee had been recalled and a new employee hired, and he asked Oberholtzer why Almond had not been recalled. Oberholtzer said that there had been "a number of rejects that Almond had done," but stated that as soon as there was work that Almond could do, he would recall him. At no time during this discuision did Oberholtzer tell Malone that Almond had been discharged. On February 15, 1951, a consent election was conducted by the Board at the plant. During a preelection conference, Malone met with Oberholtzer, the Respondent's attorney, Cody, and a Board agent. When Malone told Cody at this meeting that Almond was to be an observer for the Union at the election, Cody said that this could not be done because Almond "has been discharged." Malone then stated to Cody and the Board agent that he had understood Almond had been laid off for lack of work and was therefore eligible to serve as observer for the Union. Malone also asked that the Respondent tell Almond-who had been waiting in the plant lobby-what they had told him (Malone). Malone thereupon brought Almond into,the Re- spondent's office and requested Cody and Oberholtzer to repeat their earlier statement. Neither Cody nor Oberholtzer said anything. It appears that following the Board election on February 15, 1951, the Union filed with the Regional Director a protest based on the Re- spondent's conduct in connection with,the election, and that on March 12,1951, Cody, as counsel for the Respondent, replied at length thereto. In that reply, which was received in evidence in the instant proceeding, and which Oberholtzer at the hearing admitted working on together with Cody, Cody stated, among other things, that Almond had been discharged, not temporarily laid off, on November 20, 1950; that the reason for his discharge was "absenteeism"; and that although "he was known to have been drinking . . . this had no connection with his discharge." On February 23, 1951, the Union filed the charge in this pro- ceeding alleging that the Respondent had discriminatorily discharged Almond. - Oberholtzer testified that on March 21, 1951, he told a Board rep- resentative who was investigating the charges that Almond was dis- 998666-vol. 98-53--44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged for absenteeism. However, the Respondent's answer to the complaint in the instant case alleged that Almond had been discharged on November 20, 1950, because Almond had on one occasion come "to work in a drunken condition," and at the hearing Oberholtzer testi- fied that absenteeism played no part in Almond's discharge, but that Almond was discharged "for coming in drunk." In addition, Ober- holtzer-also at the hearing-admitted stating to the Board represent- ative investigating the charges that he decided to discharge Almond after he had talked to Malone the second time because Malone had said to him that he was going to tell him whom he could hire and Pure s From the foregoing recital of the facts, including the Respondent's frequent shifting of position regarding its reasons for terminating Almond's employment, none of which reasons the Respondent stated at the time it advised Almond of his layoff on November 20, 1950, and the Respondent's antiunion bias, demonstrated in the unlawful con- duct which we have already found, we are persuaded that the reasons thus advanced are not those which actuated Almond's discharge, and that the real reasons were discriminatory. The record established without contradiction that Almond was the most active union adherent among the Respondent's employees. In- deed, he not only was openly sympathetic to the advent of the Union but actually served as Union Organizer Malone's chief assistant in the organizational campaign. It is difficult to believe that in a plant with only 50 employees and in a community as small as this, the Respondent was not aware, as it asserts, of Almond's leadership in the union drive. In any event, even if this were so, on the very date of his layoff and within a few hours after he was advised of that fact, Superintendent Oberholtzer learned from his conversation with Malone that Almond was a union member and that his interests, spe- cifically concerning his employment status, were being represented by the Union. Thus it becomes clear that even if the Respondent laid him off initially with the intention of recalling him at a later date, it thereafter decided to discharge him, and that such decision was prompted by his union activities and, as Oberholtzer admitted to a Board agent investigating the charges-a statement which he con- firmed at the hearing-because "Malone was going to tell me who I could hire and fire." Under all of the foregoing circumstances, and for the reasons ex- pressed above, we find, as did the Trial Examiner, that Almond was discriminatorily discharged in violation of Section 8 (a) (3) and (1) of the Act .7 6 Malone , in his testimony, stated that the second time he discussed Almond with Oberholtzer was in December 1950. T The Trial Examiner found that Almond had never been drunk on the job , as alleged by the Respondent at the hearing. In making this finding he relied solely on Almond's denial and discredited Foreman Anderson 's testimony . However, the Trial Examiner INTERNATIONAL FURNITURE COMPANY 679 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, International Furniture Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Upholsters' International Union of North America, AFL, or in any other labor organization of its employees by discriminatorily discharging any of them, or by dis- criminating in any other manner in regard to their hire, or tenure of employment, or any term or condition of employment. (b) Interrogating its employees concerning their union activities or views, threatening reprisal if the Union is selected by the employees, engaging directly or indirectly in surveillance of union meetings, and in any manner interfering with, restraining, or coercing its employees in the right of self-organization, to form labor organizations, to join or assist the above-named labor organization or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Harold Almond immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and make him whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, snake available to the Board or its agents for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of back pay due.. failed to consider the testimony of witness Henson in this regard, and refused to receive evidence offered by the Respondent that Almond had been discharged for drinking by a prior employer. In this posture of the record , we are unable to conclude that Almond had never been drunk on the job. This, however, does not affect our conclusion that Almond was discriminatorily discharged . As we have already stated, our finding is based upon the evidence in the record that the Respondent' s decision to discharge Almond was actuated by antiunion motivation . Thus, even if it had been established that Almond had been drinking, as alleged by the Respondent, we would still be satisfied for the reasons stated in the text that this was not the real reason for his discharge. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its plant in Madison, Georgia, copies of the notice at- tached to the Intermediate Report marked "Appendix A." a Copies of such notice to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply therewith. Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed by Upholsterers International Union of North Amer- ica, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated July 3, 1951, against International Furni- ture Company, Madison, Georgia, herein called the Respondent, alleging that the Respondent 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, 61 Stat. 136, herein called the Act. A copy of the charge was duly served upon the Respondent. Copies of the complaint and notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the alleged unfair labor practices, the complaint alleges in substance that the Respondent (1) in January 1951, spied upon a union meet- ing, threatened reprisals against employees if they joined the Union, interrogated employees as to their union membership, and adopted as its own an editorial in it local newspaper threatened employees with economic reprisals; (2) on Novem- ber 20, 1950, laid off, and on December 1, 1950, discharged employee Harold Almond because of his Union activity; and (3) by such conduct interfered with, restrained,, and coerced its employees in the exercise of rights. guaranteed by Section 7 of the Act. On July 11, 1951, the Respondent filed its answer, in which it denied having engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held on July 17 and 18, at Madison, Georgia, before the undersigned duly designated Trial Examiner. The General Counsel 8 This notice, however, shall be, and it hereby is, amended by striking from line 3 thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decisioh and Order," and by striking from the second paragraph thereof, the words, "promise benefits to our employees if they discontinue their support of a union." In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court,of Appeals, Enforcing an Order." INTERNATIONAL FURNITURE COMPANY 681 .and the Respondent were represented by counsel and the Union by an official. All participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. During the hearing a motion by the Respondent was granted to dis- miss an allegation in the complaint that the Respondent had granted piecework rates to its employees to discourage membership in the Union. Counsel waived the opportunity to argue orally ; counsel for General Counsel and for the Respondent have filed briefs with the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, The Trial Examiner makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT International Furniture Company is an Illinois corporation, with its principal office and place of business in the State of Illinois. It is engaged in the manu- facture, sale, and distribution of various types of furniture. It owns and operates plantslin Texas, Indiana, Pennsylvania, and Georgia, including a plant at Madison, Georgia, the last mentioned being the plant herein involved. The Madison plant is engaged in the manufacture, sale, and distribution of up= holstered home furniture. During the year immediately preceding the hearing the Respondent purchased materials for its Madison plant valued at more than $100,000, about 10 percent of which, in value, was purchased outside the State of Georgia and shipped in interstate commerce to that plant. During the same period the Respondent at its Madison plant manufactured and sold finished products valued at more than $100,000, more than 50 percent of which was sold and shipped to customers outside the State of Georgia The Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Upholsterers' International Union of North America, AFL, is a labor organiza- tion admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Events and issues Organizer John H. Malone initated efforts to gain membership for the Union among the Respondent's 60 or 70 employees during the latter part of October or early November 1950. Employee Harold Almond shortly became his chief assistant in the campaign of distributing leaflets at and near the plant, and of soliciting employees near the plant and at their homes. The major issue raised by the complaint is the termination of Almond's em- ployment on November 20, 1950. Other events at issue, stemming from the organizing campaign, include the presence of Plant Superintendent C. H. Ober- holtzer near a union meeting, alleged coercive remarks or promises made by Oberholtzer and Foremen Whitmire and Anderson, and the appearance of an anti- union editorial in a local newspaper, claimed by General Counsel to have been adopted by the Respondent. B. The discharge At about noon November 20, 1950, Harold Almond asked his foreman, C. H. A. Anderson, if he could "get off" that afternoon. Anderson said that it was all 682 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD right with him, but to see Oberholtzer. Oberholtzer told the employee that he might as well go and not come back, since he was going to have to lay him ,off anyway at the end of the week. Almond reported this to Malone, who promptly went to see Oberholtzer, introduced himself, and asked about Almond's layoff. Oberholtzer said he had not known Almond had been active in the Union. Malone replied, "Well, you know it now." Oberholtzer then told Malone that Almond's layoff was only temporary, due to lack of work, and that the employee would be called back if work picked up before the first of the next year. Sometime in mid-December, having heard that one employee laid off had been recalled and a new employee hired, Malone again visited Ober- holtzer. Oberholtzer assured Malone that as soon as there was work available which Almond could perform he would keep his word and recall him. Shortly before the holding of a Board election at the plant on February 15. a meeting of Union and management officials together with a Board representa- tive was held. When Malone announced that Almond would be the Union's watcher at the impending election, counsel for the Respondent declared that Almond could not be a watcher, because he had been discharged. Malone pro- tested that so far as he knew, from information given him by Oberholtzer, Almond was still only in a temporary layoff status. Company counsel insisted that he had been discharged. Malone then brought Almond, who had been out- side, into the meeting and asked the company representatives to inform the employee directly of his discharge. It is undisputed that the company repre- sentatives sat mute. On February 23, 1951, the Union filed its charge involving Almond. At about the same time, apparently, it filed a protest against company conduct at the election held on February 15. As a witness, Oberholtzer admitted that through his counsel he informed the Board, in a statement signed by his counsel on March 12, that Almond had not been "temporarily laid off" but had been dis- charged on November 20, 1950. The statement continues : "The reason for his discharge was absenteeism," and adds, "The company has never advised him that he was temporarily laid off and has never had any idea of reemploying him." The same statement declares that "Prior to his discharge he appeared for work on one occasion when apparently he had been drinking heavily . . . on other occasions he was known to have been drinking, but this had no connec- tion with his discharge. . . . He was discharged for absenteeism " A few days thereafter, on March 21, according to Oberholtzer's own testi- mony, he told a Board agent investigating the charges of unfair labor practices that he had told both Malone and Almond that the latter would be recalled about January 1, and that after his second interview with Malone (according to Malone, in mid-December) he had decided that Almond was discharged be- cause "Malone said to me that he was going to tell me who I could hire and fire." The Respondent's answer, sworn to by Oberholtzer, claims that Almond was discharged on November 20 because on one occasion he had come "to work in a drunken condition." As a witness, Oberholtzer flatly stated that "absenteeism" had nothing to do with the discharge. The mere narration of the conflicting and contradictory statements made by Oberholtzer to the organizer, Almond, the Board, and as a witness, reveals the untrustworthiness of his entire testimony. Credible evidence and the proba- bilities inherent in the situation convince the Trial Examiner, and it is con- eluded and found, that Oberholtzer decided to, and effectively did, discharge Almond during the afternoon of November 20, 1950, upon learning that the employee was actively assisting Malone in organizing the Union. INTERNATIONAL FURNITURE COMPANY 683 As to reinstatement and adding further confusion to the welter of his pre- viously made contradictory statements, oral and written, informal and under oath, on the second day of the hearing Oberholtzer said that on November 20 he intended to "rehire" Almond if he "had straightened out." Even if this claim be accepted at face value, the Respondent failed to offer any evidence that the employee had not, after November 20, "straightened out." Finally, the superintendent candidly testified' "I would have never listed him as drinking, if the Labor Relations Board hadn't filed charge against me." No credible evidence' establishes that Almond had ever been drunk on the job, or that he had been unduly absent from work. The Trial Examiner spe- cifically finds that Almond was on no occasion drunk on the job, and that he was neither discharged nor refused reinstatement for such reason. C. Surveillance and coercion On January 12 the Union held an evening meeting at a parking lot some 9 miles from the plant. It is undisputed that Oberholtzer, in his car, drove three times by this spot, once at a normal speed and twice slowly. The superintendent as a witness admitted that he saw the organizer there on this occasion. Also as a witness Oberholtzer claimed that he drove by the parking lot on his way to another county to buy beer. Even had beer been his original errand, credible evidence establishes that after once passing the place, he twice thereafter drove more slowly by it. In the latter part of January or early February the superintendent told em- ployee Archie Peck, while other employees were nearby, that if the Union was "voted out," "the Chicago office" would do something for them 2 In view of Oberlioltzer's discriminatory conduct toward Almond before the union meeting, and his promise of benefit made thereafter, the Trial Examiner is convinced and finds that the superintendent twice drove by the union meeting place on January 12 for the purpose of spying upon it and discouraging union activity and membership. It is undisputed and the Trial Examiner finds that early in February, Fore- man Billy Whitmire told employee James G. Nelms that if the Union was voted in they "would all be out of a job." Counsel for the Respondent claims that this was but an expression of opinion, and therefore privileged under provisions of the Act. In view of the discriminatory treatment of the chief employee or- ganizer, and of the superintendent's surveillance and promises of benefit, the Trial Examiner finds no merit in counsel's contention. It is found that Whit- mire's statement was coercive and designed to discourage union adherence. 1 Having observed him testify, the Trial Examiner does not accept, as true, the testimony of Foreman Anderson that "nearly every Monday morning" Almond "come in drinking." Had the employee regularly "come in drinking" on Mondays during his 3 months' employ- inent, it is reasonable to believe that the foreman would have so informed the superin- tendent long before "a week before we let him go," which was, also quoting Anderson, "the only time I discussed it with Mr. 0." 2 The testimony of Peck on this point was contradicted by Oberholtzer. As heretofore found the Trial Examiner can place no reliance upon the superintendent's testimony. Another employee, said by Peck to have been nearby, testified : "I didn't hear him say that" and General Counsel stipulated that two other employees would likewise have testified. The Trial Examiner does not consider that agreement as to what a witness would testify to ; thereby establishes other than the fact that they would so testify and does not con- stitute appreciable weight as refutation of testimony given under oath , on the stand, and subject to cross-examination. And that one employee or more did not hear Oberholtzer's statement is not, in the Trial Examiner's opinion, conclusive that the statement was not made. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Credible testimony of employee William R. Nelms establishes, and the Trial Examiner finds, that before the election Foreman Anderson asked him if he had attended a union meeting and told him that "if the Union went in we would all soon probably be out of job." That the employee thereafter said Anderson made the statement "in a joking way" does not, as counsel for the Respondent contends, deprive it of its coercive quality, particularly since the remark does not stand alone, but was of a ddsign and pattern of discrimination and coercion fabricated by the superintendent himself. D. The newspaper article An editorial in a Madison newspaper, on January 19, 1951, stated in part : We also know that one and possible both of our factories pay extra bonuses now and they certainly would not if the workers joined some union. We hope that the management of our two factories will close their plants down if our local people are foolish enough to join up with these trouble- makers and disturb the peace of our community. Oberholtzer admitted, as a witness, - that he took no steps to repudiate the article, although one employee gave him a copy of the newspaper. General Coun- sel contends that by failing to repudiate it, the Respondent thereby adopted it as its own . In view of direct statements of a like nature, which have been found to be coercive, made to employees by two foremen, the Trial Examiner finds it unnecessary here to resolve the question'raised by General Counsel as to adoption of the editorial. E. Conclusions in summary The Trial Examiner concludes and finds that by the discriminatory discharge of Almond on November 20, by Oberholtzer's surveillance of a union meeting and his promises of benefit if the Union were defeated, and by the coercive and interrogatory remarks of Foremen Whitmire and Anderson, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that the Respondent has-discriminated in regard to the hire and tenure of employment of Harold Almond and has refused to reinstate him, it will be recommended that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position,' and make him whole for any loss of pay he may have suffered as a result of the discrimi- e The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. INTERNATIONAL FURNITURE COMPANY 685 nation against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of offer of reinstatement. Loss of pay will be computed on the basis of each separate calendar quarter or portion thereof during the period from the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which he normally would have earned for each quarter or portion thereof, his net earnings,` if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter' In accordance with the Woolworth decision, it will be recommended that the Respondent, upon reason- able request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The preventive purposes of the Act may be frustrated unless the Respondent is required to take some affirmative action to dispel the threat. It will be rec- ommended, therefore, that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. Upholsterers International Union of North America, AFL, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Harold Almond, thereby discouraging membership in a labor organization, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. '4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 in UPHOLSTERERS INTERNATIONAL UNION, AFL, or in any other labor organization by discriminatorily dis- * Crossett Lumber Company, 8 NLRB 440. 5 F. W. Woolworth Company, 90 NLRB 289. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charging employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their union activities or views, threaten reprisal if a union is selected by our employees, promise benefits to our employees if they discontinue their support of a union, engage, directly or indirectly, in the surveillance of union meetings, or in any 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 the above-named union, or any labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collecive bargaining or other mutual aid or protection, or to refrain from any or all of 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 au- thorized in Section 8 (a) (3) of the Act. WE WILL offer Harold Almond immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his senior- ity and other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named union or any other labor organization except as that 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. We will not discriminate in regard to the 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. INTERNATIONAL FURNITURE COMPANY Emploper. By ---------------------------------------- (Representative) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. BOSTON AND LOCEPORT BLOCK COMPANY and LowE 264 OF DISTRICT 38 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS, A. F. L. Case Yo. 1-CA-894. March 17, 1952 Decision and Order On September 28, 1951, Trial Examiner George Bokat issued his Intermediate Report attached hereto, in the above-entitled proceed- ing, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the com- plaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 98 NLRB No. 114.