Kellow-Brown Printing Co.

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MILDRED F. KELLOW d/b/a KELLOW-BROWN PRINTING COMPANY and LOS ANGELES PRINTING PRESSMEN AND ASSISTANTS UNION, NO. 78. Case No. 21-CA-1317. May 28, 1953 DECISION AND ORDER On March 9, 1953, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above -entitled proceeding , finding that the Respondent has 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 supporting brief. The Board' 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 Intermediate Report , the Respondent' s excep- tions and brief, and the entire record in the case,I and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner , with the modifications and exceptions set forth below. $ As set forth in detail in the Intermediate Report, the Union asked the Respondent for a card check to prove its majority on November 5, 1951 . However , it does not appear that the Union had achieved majority status before November 9, 1951. The Union again conferred with the Respondent on the 13th of November in the Board's Regional Office, after it has filed a petition for an election . The parties then agreed to hold a consent election , but the Union made no demands for recognition at this meeting , or at any time thereafter . During this entire period, and starting about November 1, when the Union began its organizational campaign, the Respondent committed a num- ber of unfair labor practices in the form of coercive threats and interrogations of employees, and it unlawfully discharged Howard Jones on the day after the consent -election conference. The Trial Examiner found that although the Union had not at any time demanded recognition as bargaining representative, the Respondent nevertheless violated Section 8 (a) (5) of the Act, as alleged in the complaint . We do not agree . As the Board has frequently held, an unequivocal demand at a time when the 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel LMembers Houston, Murdock, and Peterson]. LThe Respondent's request for oral argument is hereby denied because the record, ex- ceptions, and brief adequately present the issues and the positions of the parties. . 3We do not adopt the Trial Examiner' s findings that the antiunion bulletin posted in the pressroom and the remarks of the Respondent's comanager concerning ' the Company's welfare plan were coercive and in violation of Section 8 (a) (1) of the Act. We find that both the bulletin and these remarks were expressions of opinion protected by Section 8 (c) of the Act. 105 NLRB No. 11. KELLOW-BROWN PRINTING COMPANY 29 Union has a majority in an appropriate unit is a prerequisite to a finding that there was an unlawful refusal to bargain." It is true that the Respondent, by its other unlawful conduct related in the Intermediate Report, coerced and intimidated its employees and discriminated against them in their employment because of their prounion sentiments. It does not follow, how- ever, that the Respondent necessarily had evinced thereby a clear and express intention to refuse to recognize a majority representative of its employees once a demand was properly made. The Board's decision in Old Town Shoe, a on which the Trial Examiner relies to support his finding that a demand for recognition would have been a useless gesture in this case, is inapposite. Unlike the circumstances in this case, the union in Old Town Shoe had not only been the long recognized majority representative of the employees, but the employer publicly an- nounced and reiterated his unequivocal intention not to bargain. Accordingly, as no demand was ever made, we are unable to find that the record supports the complaint allegation of a refusal to bargain, and we shall therefore dismiss the complaint insofar as it alleges a violation of Section 8 (a) (5) of the Act.6 ORDER U^on 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 , Mildred F. Kellow , doing business as Kellow -Brown Printing Company, Los Angeles , California , her agents , successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating her employees or applicants for employment concerning their union membership, activities , and sympathies; threatening that the Respondent would abandon its make-work program if the Union achieved designation as their exclusive representative ; and granting wage increases or other benefits to discourage union membership or activity. (b) Interfering , restraining , or coercing her employees in any other manner in the exercise of the right to self -organi- zation , to form labor organizations , to join or assist Los Angeles Printing Pressmen and Assistants Union , No. 78, or any other labor organization, to bargain collectively through representatives of their own free choice , and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such rights 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 amended. 4Wafford Cabinet Company, 95 NLRB 1407. 5 91 NLRB 240. Cf. Norfolk Southern Bus Corporation, 66 NLRB 1165. 6Cf. Glass Fiber Moulding Company, 104 NLRB 383; Sam Zall Milling Company, 94 NLRB 1749, enforced as modified 202 F. 2d 499 (C. A. 9). 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Discouraging membership in Los Angeles Printing Press - men and Assistants Union, No. 78 , or any other labor organiza- tion of her employees , by discharging any employees or re- fusing to reinstate them because of their union membership or activity, or by discriminating against them in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Joseph A. Collins and Bennie L. Jewell immedi- ate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges , in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Make whole Howard Jones, Joseph A. Collins, and Bennie L. Jewell for any loss of pay or other incidents of the employment relationship which they may have suffered or may suffer because of the Respondent' s discrimination against them, by the payment to each of them of a sum of money equal to the amount he normally would have earned as wages between the dates on which discrimination was practiced against him and the date or dates of the Respondent 's reinstatement offer, as set forth in the Intermediate Report , less his net earnings during any such period. (c) Upon request make available to the National Labor Re- lations Board or its agents , for examination and copying, all payroll records and all other records necessary for a deter- mination of the amounts of back pay due under the terms of this recommendation. (d) Post in conspicuous places at her plant in Los Angeles, California, copies of the notice attached hereto and marked "Appendix."T Copies of the notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent or her representative, be posted by the Respondent immediately upon receipt thereof and maintained by her for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) 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 herewith. APPENDIX 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 TIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to A Decision and Order" the words "Pursuant to A Decree of the United States Court of Appeals, Enforcing an Order." KELLOW-BROWN PRINTING COMPANY 31 National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Los Angeles Printing Pressmen and Assistants Union , No. 78, or in any other labor organization of our employees, by dis- charging or refusing to reinstate any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment , or any term or condition of their employment. WE WILL offer employees Joseph A. Collins and Bennie L. Jewell immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges they may previously have enjoyed, and make Howard Jones, Joseph A. Collins, and Bennie L. Jewell whole for any loss of pay suffered as a result of the discrimination practiced against them. WE WILL NOT interrogate our employees with respect to their union membership , activities , and sympathies; threaten employees with loss of make-work orotherbene- fits if a union is designated as their exclusive representa- tive ; or grant wage increases to discourage unionmember- ship or activity. WE WILL NOT in any other manner interfere with, re- strain , or coerce our employees in their exercise of the right to self - organization , to form , join, or assist any labor organization, to bargain collectively through repre- sentatives of their own free choice, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection , or 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 National Labor Re- lations Act, as amended. All our employees are free to become or remain members of Los Angeles Printing Pressmen and Assistants Union, No. 78, or any other labor organization. We will not discriminate in regard to the hire , employment tenure , or any term or con- dition of employment of any employee because of membership in or activity on behalf of any labor organization. MILDRED F. KELLOW d/b/a KELLOW-BROWN PRINTING COMPANY, Employer. Dated ................................. By..................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE After investigation of a charge and amended charge duly filed in this case by the Los Angeles Printing Pressmen and Assistants Union, No. 78, designated in this Intermediate Report as the Union, the General Counsel of the National Labor Relations Board, in the name of the Board, caused the Regional Director of its Twenty-first Region, at Los Angeles , California , to issue a complaint on August 12, 1952. Mildred F. Kellow, doing business as the Kellow-Brown Printing Company was named in the complaint as the Respondent Employer . The complaint alleged, in substance , that the Respondent had engaged in and continues to engage in unfair labor practices affecting commerce , within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449 as amended and reen- acted by the Labor Management Relations Act of 1947 , 61 Stat. 136, designated herein as the Act. Copies of the amended charge, the complaint , and a notice of hearing were duly served upon the Respondent and the Union previously named. With respect to the unfair labor practices , the complaint alleged in substance that : (1) The Respondent, since on or about November 5, 1951, and to date, has refused and continues to refuse to bargain collectively with the Union as the exclusive representative of her employees In a unit appropriate for the purposes of a collective bargain ; (2) the Respondent discharged Howard Jones on November 14, 1951, Joseph A. Collins on November 23, 1951 , and Bennie L. Jewell on January 11 , 1952, and has since failed and refused to reemploy them, because they engaged in union and other concerted activities for the purposes of collective bargaining and other mutual aid or protection ; (3) the Respondent , during November and December of 1951 and January of 1952, interfered with , restrained , and coerced her employees in the exercise of rights guaranteed by the Act , by various acts and statements; and (4) the Respondent's course of conduct , as described , involved unfair labor practices affecting commerce within the meaning of the Act , as amended. The Respondent's answer, duly filed, denied the jurisdictional allegations of the complaint, admitted the status of the Union as a labor organization , and went on to deny the commission of any unfair labor practices. In accordance with the notice to which reference has been made , a hearing was held at Los Angeles , California , between October 6 and 8,1952 , both dates inclusive. The General Counsel and the Respondent were represented by attorneys , and the Union by its business representa- tive; all of the parties were afforded full opportunity to participate, to be heard , and to in- troduce evidence pertinent to the issues. (I find no merit in the Respondent's contention, vigorously argued, that the complaint was improperly or improvidently issued, because the Board 's fielf' examiner had notified the Respondent of his decision to recommend its issuance within 5 days after the Union's amended charge was filed, and before the Respondent had had an opportunity to reply to that charge. The Board will take official notice of its own procedures ; all that the record indicates Is that the field examiner had completed his investigation and notified the Respondent of his con- clusions and intentions within 5 days after the filing of a pro forma amended charge , framed to conform to the evidence revealed by the investigation , which was already complete. In any event, the matter is immaterial, since the Respondent 's liability must be determined on the basis of the formal record, without regard to any alleged lapses of good form in the informal investigative stages of the case.) At the close of the testimony each of the parties argued orally; their argument has been made a part of the stenographic transcript . The Respondent's attorney reserved the right, thereafter , to file an additional brief. Inaccordancewith the reservation, a brief has been filed in the Respondent's behalf; no brief has been filed by the General Counsel's representative. FINDINGS OF FACT Upon the entire record in the case, and upon my observation of the witnesses, I make the following findings of fact: 1. THE RESPONDENT COMPANY Mildred F. Kellow, doing business as the Kellow -Brown Printing Company, is engaged in general printing and lithography work at Los Angeles, California . Much of the printed material produced by her is shipped outside of the State of California to firms or business enter- KELLOW -BROWN PRINTING COMPANY 33 prises doing business with the Respondent 's California customers. Several examples of the manner in which the Respondent operates were cited for the record . All of the parties finally stipulated that the Respondent performs services annually worth in excess of $50 ,000 per year for other local enterprises , each of which does at least $25,000 worth of business across State lines. Despite the Respondent's denial, I find, in view of the stipulation noted, that the Respondent has--at all material times--been engaged in commerce within the meaning of the Act. In ac- cordance with established Board policy as set forth in the Hollow Tree Lumber case, 91 NLRB 635, I find, in addition , that the assertion of the Board 's jurisdiction in this case is necessary and warranted to effectuate the objectives of the statute. IL THE LABOR ORGANIZATION INVOLVED The Los Angeles Printing Pressmen and Assistants Union, No. 78, hereinafter designated as the Union, is, I find, a labor organization within the meaning of Section 2 (5) of the Act, which admits employees of the Respondent to membership. M. THE UNFAIR LABOR PRACTICES A. The departments and persons involved The proprietress and general manager of the Respondent Company, Mildred F. Kellow, has been active with it in that capacity for more than 20 years . Throughout most, if not all , of that period she has been assisted by a comanager , Edith Farrington. And since June 1945, various departments of the enterprise , 9 or 10 in number, have been under the immediate supervision of George Jerva , as the firm's superintendent of production. The Respondent 's, press room, with which we are immediately concerned , contains 6 vertical cylinder presses, 3 horizontal cylinder presses , 1 largecylinder press designated as a Miehle "swing back" unit, and 3 platen presses . In the normal course of events --according to the undenied and credited testimony of Comanager Farrington --the vertical presses would be manned by 3 cylinder pressmen (each 1 being responsible for 2 machines), a "wash up" boy, and possibly an assistant , if needed. One pressman would be required to operate one or more of the horizontal presses, with the help of an assistant or a "wash up " boy if the work re- quired it. With respect to the large cylinder press , Farrington testified that the full-time services of 1 pressman and an assistant would be required . For its hand presses, the Re- spondent normally employs 1 platen feeder, who would be expected to operate 1 of the presses at a time. In accordance with this staffing pattern , the Respondent normally employed 5 cylinder press - men (designated by it as vertical pressmen, horizontal pressmen , and cylinder pressmen, respectively), 3 assistants or helpers , and 1 platen feeder in its pressroom . At the outset of the course of events with which this case is concerned , I find, the Respondent had a full staff of cylinder pressmen, a platen feeder or job pressman, and 2 of the 3 assistants or helpers normally required to make up a full crew . At various times during 1951, 8other individuals, approximately, were employed on a temporary basis to assist in the completion of specific jobs ; none were in the Respondent 's employ on November 1, 1951, however, when the events with which we are concerned began. Insofar as the record discloses , Mrs. Kellow spends very little time in the plant ; her visits to the pressroom and the other departments have, admittedly , been infrequent. Mrs. Farring- ton, as the firm's comanager , regularly spends more time in the plant . The record establishes that she attempts to visit one or more departments almost daily , in order to check on the quality of the work being done. Direct and immediate responsibility for the supervision of the firm's productive work , however, is in the hands of Production Superintendent Jerva. The record establishes that he exercises all of the prerogatives of supervision ; he hires (when advised by Farrington of the necessity for such action), recommends discharges to Farrington and Mrs. Kellow , effectuates any separations approved by them , transfers , promotes, and denotes employees (usually after consultatibn), and recommends wage increases on the basis of independent judgment. His recommendations are usually followed . The Respondent makes no contention that Jerva is not a supervisor ; in the light of the entire record , such a conclusion would seem to be so clear as to be beyond dispute. I find that Jerva, at all material times, functioned as a supervisor and representative of the Respondent's management. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The representation case On or about November 1, 1951, Francis L. Sanders , a union organizer , called upon the Re- spondent's production superintendent , George Jerva , at the request of a union member in the Respondent's employ, Cruz Rodriguez , who was about to resign and had been told that he would lose his "accumulated " vacation pay in that event. Sanders was unable to persuade Superin- tendent Jerva that the Respondent ought to follow the alleged "area practice" with regard to the allowance of prorated vacation pay to workers who resigned voluntarily. In the course of the conversation, I find, the union organizer was advised by Jerva that he did not want a union shop at the Respondent's plant, since he had become dissatisfied with the work done by the union men there; Jerva denied making any such statement , but for reasons set forth at length elsewhere in this report I have not credited and do not credit his denial. Sanders , I find, re- plied that, ' in the light of the Company 's attitude, he intended to organize the Respondent's pressroom workers. On November 2, 1951, Sanders got in touch with the Respondent's pressroom employees outside of the plant. Four of them, at least, signed authorization cards for the Union at once; Bennie L. Jewell, another pressroom employee, may have signed at the same time or within a few days thereafter. (Sanders testified that he had signed a card with the others , but Jewell himself could only testify that he had signed a union -authorization card "about a week" after he started work for the Respondent on the 31st of October .) Ernest Rodriguez, yet another pressroom employee, signed a card 1 week later, approximately on the 9th of November. All of the cards were signed in the presence of Sanders ; they were then submitted to him, I find. by the employees. Thereafter , on November 5, 1951, Sanders telephoned the Respondent Company. Upon receiving a reply he asked to speak to a representative of management . He was referred to an individual who identified himself, on the telephone , as George Jerva. Sanders requested that the Respondent agree to an impartial "checkoff" or card check- -presumably in order to test the Union 's status as a majority representative , although the testimony of Sanders gives no clear indication that such a purpose was expressed . Jerva refused, saying only that be did not know what "it" was all about and did not know what to do. Sanders terminated the call. Jerva denied participation in any telephone conversation of the sort just described ; upon the entire record and for reasons to be detailed elsewhere in this report, I have, however, credited the testimony of the union organizer and rejected Jerva's denial. On the same date, the union organizer filed a representation petition at the Board's Regional Office to request certification of the organization as the exclusive representative of the em- ployees in the Respondent 's "letter press " pressroom, under the Act, as amended. On November 13, 1951, union and company representatives met in the Regional Office, at the suggestion of the Board 's field examiner , for an informal conference. The best available evi- dence indicates that the conference opened with a discussion of formal matters. Mr. Arnoldy, the Company's attorney, expressed doubts with respect to the Respondent 's involvement in interstate commerce , but reported that the Company would concede the Board 's jurisdiction and the unit description set forth in the Union's petition, if satisfied that the Union actually represented 30 percent or more of the employees involved . In order to facilitate a deter- mination on this point, the parties agreed upon a unit definition. The field examiner then com- pared a list of employees intheunitwith the authorization cards which the Union had supplied, and an announcement was made that the 30 percent "administrative" requirement of the Board with respect to union designations had been met. The parties then agreed to meet on the 16th of the month to sign a consent-election agreement. During the conference, the Respondent's representatives were advised by Sanders that the Union's organizational activity had been undertaken because the Respondent's wage rates did not equal the union scale, and because it had refused to pay a union member a prorated vaca- tion allowance. He added, I find, that the only reason he allowed union men to work there was because of the Respondent 's welfare plan. Mrs. Edith Farrington , the Respondent's comanager, disputed the statements of Sanders with respect to the Respondent 's pay scale and requested information with respect to the Union 's current contractual rates. These were promised by Sanders; the information . I find, was subsequently sent to Mrs. Farrington by mail. At one point in the conversation , I find, Mrs . Farrington reported that the Company planned to layoff two men- -Jones and Collins --and asked what she could do. She did not, however, state any reasons for the firm's projected action. The field examiner advised her, I find, that she remained free to conduct the regular business of the Respondent as she always did without regard to the pendency of the Union's representation case. Sanders , according to the record, made no comment. On November 16, 1951, the parties met toexecute a consent-election agreement . And in due course November 27, 1951, was fixed as the date on which the election would be held. KELLOW-BROWN PRINTING COMPANY 35 C. Interference, restraint, and coercion Throughout the pendency of the representation case noted . Farrington and Production Super- intendent Jerva appear to have engaged in a course of conduct reasonably calculated to dis- courage the pressroom employees in their attempt to achieve self-organization, to disparage the Union, and to persuade the employees that it would not be to their advantage to achieve unionization. Jerva, I find, questioned several of the employees as to whether they had joined the Union. Howard Jones, allegedly a victim of discrimination in this case, testified crediblx that the production superintendent, early in November, questioned Joseph Collnis--a pressman, also allegedly subjected to discrimination--in the presence of several employees, as to whether he had signed a union card. Collins, according to Jones, responded in the affirmative, and said that he had been a member of the Union for several years. He showed his union card. Jerva, the record shows, left without further comment. On or about November 11, 1951, how- ever, he addressed a similar inquiry to Jones. The latter also replied, I find, in the affirma- tive to the effect that he had signed a union card. The testimony of Jones, which I credit in this connection also, establishes that Jerva then remarked, "that's all I wanted to know" and left. Approximately 1 week before the scheduled election, Jerva, I find, accosted George E. Wash- ington, a press room helper, and asked him if he had been contacted by union representatives. Washington said "Yes"; Jerva then observed, I find, that he did not know how the situation was going to "come out," but that an election would be held. Two or three days before the scheduled election Jerva, I find, again accosted Washington in the pressroom. After an introductory query as to how everything was "going" Jerva asked if Washington had gone up and joined the Union yet. Washington indicated that he had not done so. Jerva then inquired as to whether he was going to join--to which Washington replied that he would not unless he had to. Washington's oral testimony would seem to indicate that this remark on his part ended the conversation; in an affidavit previously executed however, the accuracy of which he conceded, Washington deposed that Jerva had then volunteered the statement that he had run a union shop in Denier, that he knew how to run such a shop, and that if the Respondent 's pressroom went "union" it was going to be "union." Washington's affidavit indicates that he declared himself ignorant of what Jerva meant, and that Jerva made no attempt to explain. I so find. (These findings with respect to the activities of Production Superintendent Jerva are based, in every case, upon the testimony of employees subject to his supervision. Jerva denied their testimony with respect to the interrogation attributed to him; upon the entire record, however, I do not find his denials credible. His recollection and testimony with respect to many material matters was inadequate, vague, or mistaken; and in some respects it varied from the state- ments made by him in an earlier affidavit. When taxed with these variances, Jerva first insisted that his earlier affidavit was in error; then he admitted that he was not sure of any matters connected with the case. George E. Washington, whose testimony has been summa- rized, testified as a witness for the Respondent, and volunteered his information with respect to interrogation by Jerva in the course of direct examination. For all these reasons, and in the light of my observations with respect to his demeanor as a witness, I have treated and will continue to treat Jerva's testimony as worthy of credit on material points only when corrobora- tion is available.) The record also establishes, in my opinion, that Jerva made a number of remarks calculated to convince employees that self-organization would redound to their disadvantage. The workload In the Respondent's pressroom appears to have been fairly steady. For some considerable period of time therefore, it would appear, the Respondent has been able to offer steady work to a "basic crew" of pressroom employees. Such periods of slack work as developed, usually in the summer time, may have left a portion of the pressroom crew in- active for short periods of time ranging from 1 day up to a week. At such times, I find the Respondent was usually able to assign idle pressroom workers to maintenance and repair work on the presses. Layoffs for lack of work were uncommon; they appear to have occurred, if at all, only if the Respondent lost a contract which may have required some particular skill in performance not immediately subject to utilization in connection with another assignment. In the face of this company policy, Jerva, I find, told Joseph Collins, one of the pressmen previously mentioned, during the first week in November 1951, that designation of the Union as the representative of the employees would force the Respondent to abandon its "make work" program for the basic pressroom crew, and to arrange layoffs, as required , during periods of slack work. Similar representations were made, I find, at or about the same time, to Bennie Jewell, another pressman named in the present complaint as a victim of discrimination to discourage union membership. 3 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On another occasion, early in November, 3 or 4 days after his remarks to Collins with respect to the change in the Company's layoff policy which might follow the advent of the Union, Jerva told the latter, I find, that the Respondent had plenty of votes in its favor--and that, in particular, it could count upon the vote of Walter Karney, an employee recently returned from a leave of absence. Jerva's remarks with respect to a change in the Company's employment policy during periods of slack work appear to have been echoed by Farrington. The record establishes and I find, Farrington's denials to the contrary, that she mentioned the possibility of such a change in the Company's employment policy, at various times subsequent to the advent of the Union and before:the date;of thi scheduled election, to employees Joseph Collins and Bennie L. Jewell. Zan`B Smut, a C. I. trainee then in the Respondent' s employ as an apprentice but since resigned, also testified' credibly that Farrington had told him on two occasions , once a week after the Union's campaign started and again just before the election, of the possibility that a union victory would impair the Respondent's ability to maintain its steady employment policy for the basic pressroom crew. Farrington's testimony that she made no such representations , either to Smitli or the other named employees , is rejected. The Respondent, since 1932, has had an employee welfare plan, it now provides, on a non- contributory basis, for life insurance, benefits In case of accidental death, accident and health insurance, hospitalization, surgical and medical benefits, laboratory benefits, additional ac- cidental injury benefits, and disability compensation through a private insurance company in lieu of the benefits provided under a State plan established by statute. Mrs. Kellow' s testimony with respect to the benefit program. which has not been challenged, establishes that its benefits cover the employees of the Respondent and their dependents after the employment relationship has lasted for 3 months, and that the plan is noncontributory except for the 1 percent payment to the State's fund required even when disability compensation is the subject of private contract. Early in November, after one of the conferences at the Regional Office previously noted, Farrington questioned Sanders as to whether the Union had a "welfare plan" to cover its members. Sanders replied that the Union had no such plan. He told Mrs . Farrington, however, of the Union's home for aged pressmen at Pressman 's Home, Tennessee, a pension system and insurance policy administered by the Union' s International, and local insurance arrange- ment which provided benefits in the event of death only. No details with respect to these aspects of an emploee welfare plan or arrangement, however, were given. (Sanders testified that he "thought" he had given Mrs. Kellow a pamphlet outlining the various benefits available to union members. Mrs. Kellow and Comanager Farrington testi- fied, however, that the Respondent had received no such pamphlet. I credit their denials.) In her talks with various employees, while the representation case was pending and before the election, Farrington, I find, referred on numerous occasions to the Union's arrangements with respect to the welfare of union members and the Respondent 's own program. She urged the employees, I find, to insist, regardless of the outcome of the election, upon the retention of the Respondent's welfare program. Her remarks in this connection, which she admittedly repeated often, clearly implied that the continued existence of the Respondent's benefit pro- gram would be endangered if the Union achieved designation as the exclusive representative of the employees, although nothing that she said,I find, Indicated the source from which danger might be anticipated. The testimony ofBennieJewellin this regard, which I credit, establishes that Farrington, on several occasions before the scheduled election, mentioned the possibility that the Respondent's welfare plan might become unavailable to the employees if the Union won representation rights In the election. And Zane Smith also testified credibly, in more positive terms, that Farrington had said to him. shortly after the Union's campaign had started, and again just before the scheduled election, that the various benefit programs then available would be lost to the employees if the Union won the election. On November 16, 1951, after the execution of the consent-election agreement previously noted, Mrs. Kellow and Mrs. Farrington brought to the pressroom, at the close of the day, some printed posters in which the employees were urged to "stay free," to consider whether their best interests might not lie with the employer, and to consider whether such interests did not require the rejection of representation by a "third party"--unnamed. The posters named various working conditions and "fringe" benefits for which "no third party" was re- sponsible, and the employees were advised that only the Respondent could give them a full workweek. The posters went on to exhort the employees as follows: Safeguard your rightsl LET'S STAY FREE Protect your Welfare Plan KELLOW-BROWN PRINTING COMPANY 37 In conlusion, the employees were urged to remember that they did not have to join a union to work for the Respondent and that, under its present plan, they would not have to join a union in order to continue to work. The Respondent , in the posters , expressed the opinion that the best interests of the employees would not be served with a "third party" as their representa- tive. Among other things , the employees were asked: Will you be sacrificed by the "nod " of a "Third Party"? The employees were reminded that they knew their status under the Respondent 's "leadership" and the posters concluded with a question as to whether the employees could improve their status by having "someone else" for a leader. When Mrs. Kellow and Mrs. Farrington arrived in the pressroom , with the posters whose contents have just been summarized, Mrs. Farrington spoke to Collins and Jewell and re- quested that they be posted for the information of the employees. Jewell, I find, was asked or volunteered to post them, and did so. One or more remained posted until the date of the elec- tion, to be noted. (There was considerable testimony with respect to this incident, The varied recitals of the several witnesses who were questioned with regard to it reveal marked differences in their recollection and powers of observation. A reconciliation of the available testimony and de- tailed findings with respect to the course of the conversation are not however, in my opinion, required ; nothing that was said involved any substantial variation or amplification of the poster message , which will be considered , insofar as it bears upon the issues presented in this case, elsewhere in this report.) A few days before the scheduled election, I find, In an obvious reference to the sentiments expressed in the posted argument just summarized , Farrington told Zane Smith , in a conver- sation, that she had no objection to the Union but did not wish to bargain with a "third party" on behalf of the employees. D. The wage increases While engaged In the course of conduct herein summarized , the Respondent also raised the wages of the pressroom employees . Mrs. Kellow, Comanager Farrington, and Production Superintendent Jerva testified that it was the Respondent's regular policy to pay prevailing wage rates to its employees . That testimony has not been contradicted - -except insofar as the facts with respect to the wage rates in effect in the pressroom, hereinafter to be recited, may contradict it. I find, upon the entire record, that the Respondent had such a policy. The record establishes that the Respondent received current information with respect to wage rates prevalent in the printing and publishing industry in the Los Angeles area from a wide variety of sources--the Printing Industries Association, the Amalgamated Lithographers, the Merchants and Manufacturers Association, the United States Government (presumably the Bureau of Labor Statistics ), and applicants for work. Examples of the type of information available to the Respondent--typical bulletins mailed on behalf of the Printing Industries Association to its general membership--were made a part of the present record ; although the Respondent refused to concede that it had received the bulletins offered in evidence on or about the dates on which they were mailed . Mrs. Kellow admitted that she had seen one of the wage scales circulated by the Printing Industries Association at sometime. I find, upon the entire record, that the bulletins of the association were available to the Respondent at the time of their release. These bulletins , offered and received In evidence, indicate that the contractual scale established at unionized printing establishments in the Los Angeles area for the day shift stood as follows on the dates indicated: Job Title Basic Wage Rates Basic Wage Rates 1-1-51 to 3-31-51 4-1-51 to 5-3-52 Cylinder Pressman 2.513 2.566 Platen Pressman 2.406 2.460 Cylinder Assistant 2.122 2.175 Platen Assistant 1.823 1.876 The rates quoted are the minimum basic hourly rates for work on the day shift, payable under a contract reached on December 5, 1950, between the Union and various member firms of the Association. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As of November 1, 1951, none of the employees in the Respondent Company's pressroom were being paid at a rate which matched the Union's contractual scale as outlined above. On November 5, 1951, however, after the Union's organizational campaign had come to the atten- tion of the Respondent, and on the very day when the Union filed its petition with the Regional Office, the Respondent granted raises effective immediately to Ernest Rodriguez. Zane Smith, and George Washington. And on November 13, 1951, after being informed by Sanders that the pressmen of the Respondent were not receiving the union scale, the Respondent raised their wage rates also. The actions of the Respondent in this connection may be summarized as follows: Name Old Hourly Rate 11-5-51 11-13-51 Joe Collins 2.50 2.566 Bennie Jewell 2.50 2.566 Walter Karney 2.53 2.566 Ernest Rodriguez 1.75 1.90 Zane Smith 1.81 1.91 William Storer 2.35 2.566 George Washington 1.35 1.45 Isidore Weisman 1.80 Of the persons listed in the above table Joseph Collins, Bennie Jewell, Walter Karney, Ernest Rodriguez, and William Storer were currently employed as cylinder pressmen. Walter Karney, a long-time employee of the Respondent Company, had been absent from work with leave from July 28 to November 12, 1951. His wage rate prior to this leave of absence, as shown, was $2.53 per hour. On the records of the Respondent, as summarized in evidence, his revised rate was shown as effective on the first day of the Respondent's workweek, the 10th of November. The record also indicates that Ernest Rodriguez, though assigned to work as a pressman, had not been regarded as an efficient employee, and had never been paid at the currently established rate for a pressman's work. Zane Smith, previously identified as a G. I. trainee, was being compensated as an apprentice,`although assigned to regular work as a pressman before the return of Walter Karney to duty; upon the reemployment of the latter, Smith, as the record shows, was transferred to work as a cylinder pressman's assistant. Washington, as previously noted, was employed by the Respondent as a cylinder pressman's assistant also. And Weisman, the only employee who did not receive a raise during the first half of November, was employed as the Respondent's platen feeder. The Respondent Company's weekly pay periods ended on Friday; Monday appears to have been its regular payday. It would seem patently to be inferable, and I do infer, that the in- creases made effective on November 13, 1951, were made effective in the middle of a pay period. And the record shows that Jerva, after being informed of the Respondent's intention to raise wages, apparently advised the employees of their forthcoming increases prior to the payday on which their checks would reflect the amount of the increase. Zane Smith's testimony in this connection, which I credit, indicates that he was told of his earlier increase, effective as of the 5th of November, by Jerva before he received it but that Jerva had given no explana- tion for this action on behalf of the Respondent Employer. Jewell's testimony with respect to the increase--effective in his case. as noted, on the 13th of November--establishes that Jerva told him he would be getting an increase to the union scale. Despite the pendency of the instant case, the Respondent has given additional increases to the pressroom employees, among those listed, who are still in its employ. Walter Karney and William Storer, for example, received increases on June 2, 1952, to $2.752 per hour. Washington was raised on that date to $1.75 per hour--and has since received a further in- crease. And Weisman, on June 2, 1952, received his first increase since June 1, 1951; his wage rate was increased from $1.80 to $1.93 per hour. E. The discharges 1. Howard Jones Howard Jones was initially employed by the Respondent as a pressman's assistant and pressroom janitor on August 3, 1951. His testimony with respect to his duties before the Union's organizational campaign began, which I credit, indicates that he served primarily as a pressroom helper, except for a 2-week period in which he replaced a janitor regularly assigned to other departments of the Respondent's plant. KELLOW-BROWN PRINTING COMPANY 39 (Uncontradicted testimony offered on behalf of the Respondent, which I credit, establishes that Jones was originally employed at the suggestion or request of a State employment service representative, and that he was hired as an unskilled worker.) Jones, as previously noted, signed an application for membership in the Union at the very inception of the Union's organizational activity. Jerva's inquiry with respect to his action, on or about the 11th of November, has also been noted. It is inferable , and I find, that the Re- spondent, in the person of its production superintendent , was, thereafter, aware of the fact that Jones had applied for union membership. On November 14, 1951, at the end of the day, Jerva informed Jones that he would be laid off for lack of work. He received his check at once. As he left the Respondent's office, Jerva and Farrington told him that his layoff would be temporary and that he would be recalled when the Respondent had need of his services. Farrington never called . On or about December 1,1951--according to the credited testimony of Jones --he received a telephone can from Washington, who told him that Jerva wished to see him. Shortly thereafter , in response to the message , Jones called upon the production superin- tendent at the Respondent 's plant. He was advised that he might soon be called back to work and was asked to give his telephone number to Washington in order to enable the latter to reach him. (Jerva also asked Jones, I find, if the Union had paid him any money; be was told that it had not.) Jones was employed at the time, and so informed the superintendent ; the latter was advised however, I find, that if the Respondent called him back to work Jones would try to bold both of his jobs, since his current employmentinvolved work only at night. He has received no further communications from Washington or Jerva on behalf of the Respondent Employer. 2. Joseph Collins Joseph Collins worked for the Respondent on two occasions . The record is unclear as to his first period of employment; his testimony would indicate that he worked for the Respondent between April of 1948 and August of 1950 , while the Respondent 's records--as to the accuracy of which there may be some doubt, in this connection- -indicate that he was employed from March 8, 1949, to July 12, 1950. Exact dates with respect to this period of employment, how- ever, are immaterial. In the middle of 1950 Collins resigned. Thereafter , on September 10, 1951, he returned to work, as noted, at $2 .50 per hour. The record indicates that he was assigned to a horizontal cylinder press and the Respondent 's largest cylinder press --previously identified as the Miehle "swing back" unit--andthathe worked on various jobs involving color printing and periodical publications. The credited testimony of Collins establishes that he has had 40 years of experience as a pressroom worker, approximately 20 of those years being spent as a pressman. During the 3- year period which included his employment by the Respondent, Collins worked in the industry in the Los Angeles area. Before that. he had been employed in Detroit, for an organization which he identified, without contradiction or objection, as one of the country's finest "color" houses. His testimony establishes that he had worked on cylinder presses exclusively. Collins, as previously noted, submitted a card designating the Union as his representative to Sanders early in the Union's organizational campaign. And it has already been found, on the basis of testimony other than that given by Collins himself, that Production Superintendent Jerva had questioned him as to his conduct and was fully informed as to his union membership over a period of severalyears . The denials of Jerva with respect to the interrogation of Collins have not been credited. As previously noted in this report, Walter Karney , a long-time employee, returned to work for the Respondent on November 12, 1951. He appears to have been assigned to work as a pressman on a group of presses other than the large Miehle press at which Collins regularly did his work. On November 23, 1951, however, without previous notice, Jerva told Collins that he was being laid off; the only explanation given, I find, was to the effect that, with Karney's return, the Respondent was overstaffed. Collins was told that the Respondent did not have enough work on hand to justify his retention . Nothing was said to him , in words or substance, to indicate that his layoff was temporary. He has done no work for the Respondent since his termination, though the record establishes that another pressman, Mike Aguilar, was hired for a time shortly thereafter. Jewell was assigned to the horizontal press and the Miehle unit previously operated by Collins, and Aguilar--I find--took over the presses for which Jewell had previously been responsible. F. The consent election In accordance with the agreement previously noted, the consent election was held on November 27, 1951. The Union lost; it received only 3 votes from the 7 eligible voters who 291555 0-54-4 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cast valid ballots. An eighth vote was cast as a challenged ballot. Since its allowance, even if favorable, would not have given the Union a majority , the organization was not certified. Within the time limits fixed by regulation , however, the Union filed objections to conduct affecting the results of the election. (Most of the matters relied upon in connection with the Union's effort to persuade the Regional Director to vacate the election results have been cited as unfair labor practices in the present case ; they have been and will be discussed in detail elsewhere in this report.) After an investigation of the objections, the Regional Director announced , on January 7,1952, that he found them to be meritorious. The election results were vacated; and thereafter, in due course, the present charges were filed. Since the election, there have been no meetings or conversations between representatives of the Respondent and the Union in the instant case. G. The discharge of Bennie Jewell Bennie Jewell , as previously noted, was hired by the Respondent on October 31, 1951 . Jerva's testimony (which stands without denial , and which I now credit in an immaterial matter) indi- cates that Jewell was hired on the basis of a recommendation offered by a printing ink sales- man. He was assigned immediately to work as a pressman at $2.50 per hour. The testimony with respect to the circumstances of Jewell 's hire developed at length. The consensus of his testimony and that of Jerva establishes , and I find , that Jewell was hired on the basis of the salesman 's recommendation and his own responses with respect to his ex- perience in the industry . After being told of his hire, Jewell was asked to complete an em- ployee's history form for the Respondent's records . The form- -an original received in evi- dence--bears evidence that it was prepared and printed at the Respondent 's plant. It calls for such information from employees as their name, address , telephone-number , social- security number, previous employment record, sex and marital status , number of dependents, information as to the educational level they may have reached , and the name, address, and phone number of any person to be notified in case of an accident ., Inspection of the form reveals that it also called for entries in regard to the employee 's residence arrangements, his health and physical condition , his trade, the date and place of his birth, the number of years spent by him in the State , and his religion , nationality , citizenship, and union affilia- tion. Upon reaching the appropriate space for the latter entry , Jewell questioned Jerva as to whether a response would be necessary. He informed the production superintendent, I find, that he was a "tinion man" and that he had so indicated on his history record. While the production superintendent and Jewell , a complainant in this case, testified dif- ferently with respect to the cdnversation which then ensued , both agree, in substance, that Jerva had told the complainant that his answer would make no difference. (The original history" 'record executed by Jewell bears the word "Yes " in the blank space on the form which calls for an employee 's union affiliation; the entry has been stricken in such a manner as to warrant an inference that it was stricken by the pen used to print the response, or one very similar to it.) Jewell's conversations with Jerva and Farrington , on subjects germane to the present issues, have already been recited or referred to in this report. Upon the entire record, it would seem to be clear , and I find, that the Respondent 's representatives were fully aware, at all material times, of Jewell's union sympathies. After the election, on a date not set forth with particularity in the record, Farrington accosted Jewell, I find , with a question. Holding a letter in her hand , she asked him why he had complained to the National Labor Relations Board that she had "intimidated" him. (In the light of the events which followed the consent election, it is inferable, and I do infer, that Farrington's inquiry had been suggested by the receipt of a written notice that the Union had filed objections to conduct affecting the results of the election.) Jewell professed ignorance as to what she was talking about. Farrington then explained; and Jewell countered with a question as to whether his name was on the letter which Farring- ton had received. She replied in the negative--to which Jewell responded with a further question as to how she knew him to be responsible for the objections . The record contains no indication of Farrington's reply. Her denial of the interrogation , elicited in cross -exami- nation by the General Counsel's representative, is not credited. As this report already shows, the Regional Director's report on the objections , finding merit in them and setting aside the election, was issued and served upon the parties on January 7. 1952. On January 9, 1952, Jewell left work at the end of his shift and returned home to find his family and furniture gone. After reporting for work on the following day, the 10th of January, KELLOW-BROWN PRINTING COMPANY 41 Jewell changed into his working clothes, went to see the production superintendent, and told him of his domestic problem. On Jerva's advice, I find, he took the day off and left the 'Respondent's premises in order to locate his family and his possessions. On January 11. 1952, Jewell returned to the Respondent's plant and again changed into his working clothes. Within an hour after hehad reported for work, I find, he was called to Jerva's office and was told that the Respondent intended to discharge him. Jerva told him, I find, that Farrington had determined upon his discharge , with the observation that the Respondent's work could not stop for domestic troubles. Jewell's final check was ready ; and Jerva gave it to him at once, with the observation that he had made other arrangements and would have to let him (Jewell) go. The latter has had no contact with any representative of the Respondent since his termination. Conclusions a. Interference , restraint , and coercion Upon the entire record, and in the light of the facts already found , there can be no doubt that the Respondent 's course of conduct In the face of the Union's representation claim involved interference with the right of the Respondent's employees to engage in union activity, and that it was reasonably calculated to restrain and coerce them in the exercise of rights statu- torily guaranteed. Production Superintendent Jerva, it has been found , questioned several of the employees as to whether they had joined the Union; evidence with respect to his interrogation of Collins, Jones, and Washington was adduced at length. If the interrogation at issue stood in isolation, completely disassociated from any pattern of antiunion conduct attributable to Jerva and other representatives of the Respondent , it would certainly be arguable that an unfair labor practice finding with respect to the interrogation might not be warranted . (N.L.R.B. v. Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7), setting aside 94 NLRB 651 , cert. denied 344 U. S. 819.) In its context, however, Jerva's questions appear to have been merely one manifestation of a general course of antiunion conduct, calculated to forestall the unionization of the Respondent's pressroom. I so find. Comanager Farrington and Jerva both advised the employees , at various times, that de- signation of the Union as their exclusive representative might impel the Respondent to abandon its program of steady employment for a basic pressroom crew. And Farrington 's remarks to a number of employees , with respect to the Respondent 's welfare program and the need to "protect' that program in the event of a union victory, clearly indicated to the firm's press- room personnel that adherence to the Union might be financially disadvantageous for them. No responsible representative of the Respondent , it is true, ever declared , in so many words, that a union victory at the polls might lend the firm to abrogate its welfare plan, or that it might result in the substitution of less satisfactory benefit arrangements under union sponsorship. Each of these inferences , however, could be drawn from the remarks of Far- rington. If she intended to imply that the Union might be unwilling to sanction the continuation of the Respondent's current welfare program , her remarks might well be subject to con- struction as permissible "argument" or opinion. If she intended , however, to imply that the Respondent might be unwilling to maintain a unilaterally financed health and welfare plan in the event of a union victory, her comments would clearly have had a coercive intent and effect. Jewell and Smith, certainly , so construed them. Farrington made no attempt to clarify her remarks; they were never limited in such a way as to disabuse her listeners of the notion that something more than argument or opinion was involved. The threatening implications noted, in short, were never disavowed, and employees could not be expected to overlook such implications , or to conclude- -absent clarification --that her comments should be construed as an innocent expression of opinion. It should have been obvious to Farrington that the Respondent 's welfare program, in all of Its ramifications , would not be subject to defeasance merely as a result of a union victory in the pending representation election; I cannot believe that a responsible business woman of her experience and acumen could be so ingenuous as to hold a contrary belief. The experience of others and common sense combine to suggest that the health and welfare benefits available to the Respondent's employees on a noncontributory basis could have been retained by the Re- spondent without change despite any union certification and that the Union, in fact, might have been more than willing to negotiate for a trade agreement without any reference to the Re- spondent 's current "welfare plan," or even to indicate its approval of the program. The remarks of Sanders at the first Board conference , as quoted by Mrs. Kellow, would certainly have suggested that result. Farrington's comments in this connection however, as noted, and 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the general tenor of the notice posted in the pressroom (summarized elsewhere in this report) clearly conveyed the impression that a union victory in the election would, in and of itself, create doubts with respect to the continuation of the Respondent's welfare plan. To the extent that they did so, they certainly involved misrepresentation and an implicit, but subtle, threat. The comments of Farrington , therefore, with respect to the Respondent's welfare "plan," and those embodied in the bulletin , can only be described as comments reasonably calculated to spread doubt and uncertainty with respect to the advisability of self-organization for the pressroom employees , by their implied threat to the firm's welfare program. The cases which might seemingly suggest a contrary conclusion, cited and quoted by the Respondent's counsel, arenotin point. Farrington's comments and the bulletin, in short, are properly subject to characterization as additional examples of forbidden interference, restraint, and coercion, subject to proscription as an unfair labor practice. And I so find. After 17 years of legislative development and decisional elaboration of the statute, it may be taken as datum that wage increases unilaterally given during an organizational campaign, immediately prior to a scheduled representation election, are subject to characterization as reasonably calculated to discourage unionization. Unless otherwise explained, therefore, such wage increases must be considered unfair labor practices. The Respondent has attempted to justify the increases given to Rodriguez, Smith, and Washington on November 5, 1951, as increases previously promised or due. I find no merit in these contentions. Jerva's testimony that increases had been promised to Rodriguez and Washington before the Union's campaign began stands in the record without corroboration; even if I could accept it as true it would merely establish the existence of promises indefinite as to time. And the superintendent 's decision to make the increases effective on the 5th would remain unexplained , except as a decision precipitated by the Union's organizational campaign. In the case of Smith, it seems sufficient to point out that the Respondent's obligations under the G. I. training program have not been spelled out with clarity in the record. Even if it could be assumed for the sake of argument, however, that Smith was in line for an increase, as a trainee, its timing (within broad limits) appears to have been within the Respondent's dis- cretion--or at least not subject to close scrutiny. I find that the Union's organizational cam- paign provided the immediate initiative for its allowance on the 5th. An attempt was also made to justify the increases given by the Respondent on November 13, 1951, as increases given pursuant to an established policy which called for the payment of prevailing rates . Whatever the facts may be with respect to the Respondent 's past practice in that connection, however, it is clear that the Respondent had failed to implement such a policy with respect to its cylinder pressmen for a number of months prior to the 13th of November. With but one exception, in fact, its rates were lower than the prevailing rates established by union contract in the 1950 calendar year. The Respondent certainly cannot plead ignorance of the prevailing rate for cylinder pressmen in unionized printing shops . I find that its failure to match that rate before the Union entered the picture was deliberate, and that its decision to match the current union rate exactly, on the 13th of November, was motivated in controlling degree by its desire to mitigate the effect of its pay scale as an operative factor in the situation, and thus to forestall unionization. The Respondent's use of an employee history form which included a question as to the em- ployee's union affiliation clearly involves illegal interrogation with respect to a matter personal to the employee. In the present case, it is true, the only evidence with respect to the use of the form establishes that, when the presence of the question was called to Jerva's attention, he waived any requirement that it be answered. While such a practice, if generally followed, might support a conclusion that the issue presented should be regarded as a de minimis one, the matter would not be rendered moot thereby. I find that the use of the form in volves for- bidden interference, restraint , and coercion. The interrogation of the employees by Jerva with respect to their organizational activities, the comments of Farrington and the production superintendent with respect to the possible effect of a union victory on the Respondent's "make work" policy, the further comments of Farrington with respect to the need to "protect" the Respondent's welfare plan, the wage in- creases given to various pressroom employees, and the use of an employee history form which contains an improper question, clearly reveal a pattern of conduct calculated to dis- courage unionization. Such a course of conduct, and each element of it, clearly amounts to an unfair labor practice of the type proscribed in Section 8 (a) (1) of the Act, as amended. And I so find. KELLOW-BROWN PRINTING COMPANY b. The discharges (1) Howard Jones 43 In the light of the credible testimony, summarized elsewhere in this report , with respect to the action of Jones in signing a union -membership application, and his acknowledgement of that fact to Production Superintendent Jerva, two essential elements of the General Counsel's case with respect to the termination of this employee would seem to be established. Jones had given a clear indication of his sympathy and support for the Union. and the Respondent, I find, was fully aware of the fact. Was the layoff notice which Jones received on the 14th given to him as a result of the Re- spondent's knowledge in this connection , and because of the Respondent's desire to minimize the possibility of a union victory in the forthcoming representation election? In my opinion, the General Counsel established a prima faciecasewith respect to the existence of a discrim- inatory motivation for the discharge at issue. It became effective within approximately 3 days of the date on which Superintendent Jerva learned of the interest shown by Jones in self- organization. At the time of the layoff, Jones was told that his separation would be temporary; I find it significant, in the light of the entire record , that steps were taken to get in torch with him, with respect to a possible resumptionof his employment , less than 1 week after the Union lost the election. Counsel for the Respondent pointed out--correctly, in my opinion--that Jones had been recommended for employment by the employment service as a maintenance man or janitor, and not primarily as a pressman or pressman's assistant. I am satisfied , however, that a major portion of his work --except, possibly , during the last 2 weeks of his employment, after the advent of the Union --involved service as a pressman's helper, in addition to his main- tenance or janitorial work in the pressroom. Jones testified that he had actually done work as a helper for Bennie Jewell for about 12 days before his discharge. I so find. There can be no doubt that he was regarded by the Respondent as a member of the pressroom unit, prior to his termination. The Respondent argues that he was separated on the 14th of November in preparation for the turnover of the maintenance and janitorial work at the plant to an in- dependent contractor , yet the record shows that the contractual janitorial service, when it took over, was not extended to the pressroom. (The Respondent thus presently employs a pressroom janitor, hired early in 1952 .) The fact that Mrs. Farrington had referred to the imminent layoff of Jones on the 13th does not establish the Respondent 's good faith; Jerva had been appraised of his adherance to the Union 2 days earlier . Jones was told, it is true, that his layoff was due to lack of work, and he reported that as the reason for his separation when he filed an unemployment compensation claim --but the declarations of the Respondent, and their repetition by the employee, cannot be regarded as conclusive with respect to the actual reason for his termination. There has been no showing that Jones was aware , when he filed his claim, of all the circumstances upon which an alternative conclusion as to the reason for his separation might be predicated --and, in any event, a specification that "lack of work" was the reason for his separation is entirely understandable , since it would be calculated to lay at rest any questions with respect to the propriety of his unemployment compensation claim--questions which might have been raised if he had unilaterally chosen to argue an antiunion motive on the part of the Respondent as the reason for his separation. Upon the entire record I am satisfied that Jones was selected for temporary layoff, until a date after the anticipated representation election, because of the belief, which I attribute to the Respondent, that he was the most "expendable" of the union supporters in the press- room unit, and that he would not have been laid off if the Respondent had not been driven by a desire to forestall the unionization of its pressroom employees. His selection for the layoff. under the circumstances , I find, involved discrimination with respect to his employment tenure, calculated to discourage membership in the Union, In violation of Section 8 (a) (1) and (3) of the Act, as amended. (The Respondent has argued that such a conclusion Is unwarranted because the Regional Director . in passing upon the Union 's objections to the election previously noted, had found the evidence then available "insufficient" to prove that Jones--or Collins --were discharged because of their union activities . That determination of the Regional Director, of course, is not entitled to decisive weight. And absent any indication as to the scope of his investigation and the nature of the evidence on which he acted, I do not find his determination persuasive. in the light of the present record.) 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The interview which Jones had with Jerva thereafter , on or about the 1st of December, appears to have been exploratory only, insofar as the Respondent is concerned. No firm offer of reinstatement was made, though Jones gave every indication that he would be receptive to such an offer. I regard the Incident only as further support for a conclusion that the "tempo- rary" layoff of Jones was a tactical maneuver in the Respondent 's campaign to checkmate the t7nlon; it should have no .effect, In my opinion, upon the Respondent 's obligation, spelled out elsewhere in this report, to reinstate Jones with back pay. (2) Joseph A. Collins The discharge of Collins 4 days before the election was also, in my opinion, discriminatorily motivated. His interest in the Union, and the Respondent 's knowledge with respect to it, are clear. In the light of all the circumstances . Jerva's statement, at the time of his termination, that he was being laid off because the Respondent was overstaffed must be rejected. (As in the case of Jones, I attach no weight to the fact that Collins ascribed his layoff to lack of work when he filed an unemployment compensation claim; in filing such a claim it would be easiest and most logical to repeat , without comment, the innocuous reason given by one's last employer.) The Respondent has contended that Collins was hired to replace Walter Karney after the latter had taken a leave of absence --but the record shows that Karney left work in July 1951, and that Collins was not hired until the 10th of September in that year . The record is silent with respect to Karney's work assignment before his leave of absence ; and there is, there- fore, no basis for an inference that Collins was assigned to work which Karney would have done if he had been available. The Respondent also contends that Collins was laid off be- cause of Karney's return to work- -yet the record shows that Karney returned on the 12th of November and that Collins was not terminated until the end of the second workweek thereafter. During the 2 -week period which preceded his discharge, Collins was not reassigned to make room for Karney , and there is no evidence that Karney was assigned to the Miehle cylinder press after Collins was terminated. All In all, I find the record entirely deficient of evidence to support the Respondent's assertion that Collins had been hired as a replacement for Karney or that he was terminated because of the latter 's return to work. (The testimony of Jewell establishes that Karney , upon his return, was assigned to Storer's presses , that Storer took over the presses Smith had run , and that Smith became Jewell's helper.) The Respondent, for reasons which I cannot presume to guess, has seen fit , however, to offer an alternative justification for the termination of Collins . It is argued that his work on the Respondent's big cylinder press had been poor , and that the Respondent's contract to print "Intake," a monthly publication of the Los Angeles Department of Water and Power, previously held for 15 years, had been lost, as a result--in part at least--of his deficiencies and errors. I find no merit in this contention. The record with respect to the loss of the contract, which is based exclusively on evidence offered by the Respondent, established beyond all doubt that the Respondent was notified , in mid-November, of its failure to win the contract for the next calendar year because of its failure to submit the lowest bid. Whatever the opinion of the department's officials with respect to the quality of the Respondent's work may have been, there is not the slightest indication that the allegedly poor quality of that work influenced the decision of the agency to let the work to another bidder. In fact, on the date when Collins was terminated , it was not even certain that the Respondent had lost the contract; it had protested the decision of the Department of Water and Power to let the contract elsewhere, the opportunity to bid was later reopened, and the Respondent was not aware of the depart- ment's intention to adhere to its original decision placing the contract with another firm. That decision was not announced until an unspecified date , long after the discharge now at issue; the Respondent, again, was a high bidder. (The record contains considerable testimony by Collins, and others , with respect to the operation of the Miehle "swing back" cylinder press, the difficulties involved , and the cir- cumstances which had resulted in the particular defective work of which Superintendent Jerva complained. I find it unnecessary , however, to resolve the factual Issues posed in this connection; although Collins admitted that some pages of the publication for which be was responsible had been poorly done, and further admitted the receipt of criticism from the superintendent as a result, I am satisfied that the defective work was never cited to Collins as the reason for his discharge , and that the Respondent did not in fact rely upon the work to justify its action.) KELLOW-BROWN PRINTING COMPANY 45 Upon the entire record, I find the action of the Respondent in terminating 1 of its most ex- perienced pressmen--with 40 years of experience in the industry and greater plant seniority than 2 other persons regularly employed as cylinder pressmen , Bennie Jewell and William Storer--incomprehensible, except as a tactical maneuver to 'reduce the size of the union contingent in the Respondent's pressroom. Collins had declared his union sympathies early in the organizational campaign; Jerva was fully cognizant of them. The evidence with respect to the activities of Comanager Farrington before the election indicates clearly that she re- garded Collins as a "key " employee in the Respondent's campaign to subvert the Interest of the pressroom employees in self-organization. Collins, however, had made no effort to assist the representatives of the Respondent in the attainment of that objective ; his activities, if any, had a contrary effect (v: his declaration to Jerva, in the presence of witnesses , and later to Farrington, that he had been a union member for a number of years, and his offer to dis- play his union card to the superintendent). Absent a logical explanation by the Respondent, then, for its decision to dispense with his services, the General Counsel has --in my opinion-- sustained his burden of proof with respect to the contention that Collins was disciminatorily discharged to discourage membership in a labor organization. The Respondent has offered three explanations . Its contention that Collins had been hired to replace Karney , andthathewas laidoffbecause of the latter's return, is rendered questionable by the evidence with respect to the period of Karney 's absence and the period during which Collins was last employed--and the Respondent has made no effort to explain away the doubt thus cast upon its contention by evidence with respect to the nature of their respective work assignments. Collins, according to the record, was told that he was being laid off because the Respondent was overstaffed ; but the Respondent has made no substantial effort to explain, in support of its contention, why Collins was selected for layoff Instead of another employee with less seniority , less experience, or lesser abilities- -or to explain why two other pressmen were hired shortly thereafter. Its only effort In that respect is to be found in the testimony, to which reference has been made, that Collins had been responsible for certain defective work In connection with the printing of one issue of "Intake "--the monthly publication pre- viously noted--yet its own proof with respect to this matter establishes that. despite Jerva's criticism, the Respondent made no effort to change his work assignment , and that it did not assign his asserted deficiencies as the reason for his discharge. Finally, the Respondent's attempt to assign responsibility for its loss of the contract to print "Intake" to Collins must be regarded as completely without foundation. When an employer, after the event, seeks to assign 3 separate and distinct reasons for a discharge--only 1 having been mentioned at the time, and all having been found deficient in merit--suspicions with respect to his good faith logically become crystalized Into certainty. I find, in accordance with the contentions of the General Counsel, that Collins was dismissed an the 23rd of November because of his union membership and activities and to discourage membership in that organization. In violation of Section 8 (a) (1) and (3) of the statute. (3) Bennie L. Jewell In the case of Jewell, the temporal relationship between a significant development in the present case, and his discharge, is clear; his testimony establishes, and I have fond, that Farrington had believed him to be responsible for the objections filed by the Union in con- nection with the election. The Regional Director 's report on those objections , which found them to be meritorious and set aside the election , issued and was served on January 7, 1952. Within 4 days after the Respondent was thus notified that its involvement with the Union had not been laid to rest, Jewell was discharged. The Respondent has sought to explain Jewell's termination, apparently . on the ground that his domestic difficulties had destroyed his usefulness as an employee . Considerable testimony was offered in support of the contention that he had made excessive use of the telephone at the Respondent's plant, in violation of its posted rules; there was testimony that he had in- itiated a number of outgoing calls during working hours in the month prior to his discharge, and that he had received an inordinate number of "emergency " calls from the outside during the same period. The testimony was disputed. Whatever the facts may have been, it seems entirely clear, to me--and I find--that Jewell was never warned with respect to his allegedly excessive use of the telephone for either "outgoing" or "Incoming" calls , and that no press- room employee within recent months had received such a reprimand or warning. I conclude that Jewell's use of the telephoneplayednopart in the Respondent 's decision to dismiss him-- and that, if it did, the Respondent relied upon it merely as a pretext, calculated to justify a decision reached upon other grounds. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Witnesses for the Respondent also testified at length with respect to Jewell's inability to get along with Zane Smith, who had been assigned to work as his helper; if believed, their testimony would indicate that some of Jewell's criticism of Smith, when relayed to the latter by Jerva, had impelled him to resign. The record shows that Smith resigned on January 4, 1952. There is no reliable evidence of significant ill will on the part of either man before that date, however; if Smith resigned because of Jewell's criticism, his decision in that regard would appear to have been a matter of the moment. Whatever the facts may have been. I find nothing in the situation to warrant a conclusion that Jewell was discharged, within 7 days, as a result. There is no evidence that he was criticized as the effective cause of Smith's resigna- tion, or that representatives of the Respondent ever alluded to that incident as a justification for their subsequent treatment of Jewell, now an issue in this case. No question was ever raised with respect to his work.) Essentially, when considerd in its best light, the Respondent's contention may be described as an argument that Jewell had become involved in domestic difficulties which, for 1 day at least, had prevented his attendance at work; that Superintendent Jerva, when confronted with a "request" for a second day off, had advised Jewell to take all the time off he needed in order to get his personal affairs straight and then to come back and see him; and that Jewell never requested an opportunity to return. To the extent that this contention is based upon the recollection and testimony of Superintendent Jerva, I find it unworthy of credit. Jewell, on the other hand, impressed me as an honest and forthright witness; his admitted difficulties, domes- tically, certainly cannot be said to justify an inference that his recollection is faulty or that his testimony with respect to the circumstances of his discharge should be considered slanted or erroneous. There is evidence, in the form of an admission by Jerva, that the Re- spondent has granted short leaves of absence for reasons of personal business to other em- ployees without objection. Upon the entire record, I am satisfied that Jewell's excused absence from work on 1 day , because of his domestic problems, was seized upon as a pre- text for his termination, and that the termination was--in fact--motivated by the pique attributable to the Respondent's comanager because of her belief that Jewell had been, in some way, responsible for the vacation of the election results. (The fact that Mrs. Ke11ow had offered to rent an apartment to Jewell does not negate this conclusion; an affidavit by Farrington, received in evidence , shows that Jewell had raised the question of an apartment on or about the 4th of January, before the Regional Director's report on the objections to the election.) So motivated, Jewell's discharge was discriminatory and calculated to discourage union membership; I find that it involved an unfair labor practice within the meaning of Section 8 (a) (1) and (3) of the Act, as amended. c. The refusal to bargain (1) The appropriate unit The General Counsel, in his complaint , describes the unit appropriate for collective bargain- ing at the Respondent's plant, in the present case, as follows: All letterpress pressroom employees , including letterpress pressmen , press feeders, and press assistants, excluding all other employees, all supervisors, office and clerical employees, watchmen, guards, professional employees, and offset department employees. The Respondent, in its answer, denied the appropriateness of the specified unit--but no evidence in defense of its position was adduced. Later, during the hearing, it conceded the appropriateness of the unit. The record shows that the bargaining unit set forth as appropriate in the complaint is identical with that agreed upon by the parties in connection with the November consent election. Upon the record and available precedents (Johnson City Pub- lishing Company, 81 NLRB 1341) I find that the unit thus defined was, at all material times, and now is appropriate for the purposes of a collective bargain, within the meaning of Section 9 (b) of the Act, as amended. (2) The Union's representative status On November 5, 1951, as previously noted , the Union filed its petition for certification as the exclusive representative of the Respondent 's pressroom employees, within the unit herein KELLOW -BROWN PRINTING COMPANY 47 found to be appropriate. At the time, I find, there were eight employees in the unit--Jewell, Collins, Storer, Smith, and Ernest Rodriguez were employed as pressmen , Weisman was employed as a platen feeder, Washington was employed as an assistant , and Jones as a main- tenance employee and helper. Most of the union designation cards - -4 of the 6 received in evidence--had been turned over to the union organizer on the 2nd of November . One, that of Ernest Rodriguez , was not signed until the 9th; another , that of Bennie Jewell, was signed at an indeterminate date. None of the cards, in fact, were dated. Any, conclusions with respect to the extent of union support among the Respondent's pressroom employees on a given date must therefore rest, necessarily, upon the testimony of Sanders, the organizer, with respect to the date on which the completed cards were submitted to him. Insofar as the record shows, there is substantial evidence to support the conclusion that four cards, signed by employees within the appropriate unit, were in the possession of Sanders on the 5th of November, when he called Superintendent Jerva to suggest a card check and filed the Union's representation petition. The situation with respect to Jewell's card has been rendered unclear by his testimony ; in the light of his uncertainty as to the date on which he signed the card I am constrained to find thatthere has been a failure of proof with respect to his designation of the Union on or before the 5th of November. Since the record , therefore, will only support the conclusion that Sanders held designation cards from 4 out of 8 employees on that date, it follows that the General Counsel has failed to establish the existence of majority support for the Union on the 5th , when its representation petition was filed. (Jewell, it appears , has been a union member for 30 years . No claim has been made, how- ever, based upon his union membership ; In the light of my conclusions with respect to the Respondent 's refusal to bargain , to be noted below. I find the matter of Jewell's status on November 5, 1951, to be immaterial.) As of November 13, 1951, however , when the parties met for their first informal con- ference, Sanders held designation cards from 6 of the 9 employees then at work In the Re- spondent's pressroom. I find, In the light of the record, that the Union was, on or about November 9, 1951, and at all times since has been the duly designated representative of a majority of the Respondent's employees in the unit described above as appropriate for the purposes of a collective bargain. Pursuant to Section 9 (a) of the Act it has been at all material times and is now entitled to act as the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment, and other conditions of work at the Respondent 's Los Angeles plant. (3) The refusal to bargain Under the statute, it is well established that a demand for recognition or collective bargain- ing, addressed to an employer by the accredited representative of a majority of his em- ployees, in a unit found to be appropriate for the purpose , is normally a prerequisite to any conclusion that the subsequent conduct of the employer , in a particular case, amounted to a refusal to bargain. N.L.R.B. v. Columbian Enameling and Stamping Co., Inc., 306 U. S. 292, 297-298. The Respondent contends, in this case , that the union organizer never satisfied this requirement, since he never claimed to represent a majority of the employees , never offered to prove the Union's majority status, and never presented an explicit demand that the Re- spondent recognize his organization or bargain collectively. It will be necessary , therefore, for us to consider , at the outset, whether anything in the course of events outlined in this report could be said to involve a union demand for recognition or collective bargaining, and a refusal to bargain on the part of the Respondent Employer. The General Counsel, apparently , contends that the request of the union organizer for an "impartial check off" as presented to the Respondent 's production superintendent on the 5th of November should be construed as equivalent to a demand that the Respondent bargain or at the very least as a demand for recognition. In the alternative, it is implicitly contended that the Union's representation petition should be so construed. (The petition, it may be noted, included a specific claim that the Union represented 5 of 7 employees in the press- room unit.) These contentions , however, have no merit. If the Union's request or petition could, as a matter of law, be considered equivaleattoademand for recognition or bargaining negotiations, that demand must be construed as one of no legal consequence , since there was a failure of proof, noted elsewhere in this report, as to the accuracy of the Union 's claim to represent a majority on the 5th of November. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (The Union, it Is true, did claim in Its petition to represent 5 of 7 employees --and such a claim would be consistent with the testimony of Sanders, as a witness in the present case, that he held a designation card from Bennie Jewell on the date in Issue. Jewell's testimony, however, that he signed the card "about a week" after he was hired would date his action no earlier than the 6th of the month; in my opinion it raises a sufficient doubt with respect to the Union's majority status on the 5th to warrant the conclusion, previously expressed, that there has been a failure of proof in the matter.) In the light of this conclusion it would follow, necessarily, that the conduct of the union organizer on the 5th of November did not Invest the Respondent with a legal duty to bargain. Even if the evidence could be construed, however, as sufficient to establish the Union's majority on November 5, 1951, I do not believe that the actions of Sanders an that date should be considered equivalent to the demand required by the Act and decisional doctrine. Prior to the date on which the union organizer telephoned the Respondent and filed the Union's position the Respondent had given no indication--except, tangentially, in the question on its employee history form to which reference has already been made--of its attitude with respect to the issue of unionization. The Union, then, in the absence of any prior suggestion by the Respond- ent requested an impartial card check, and filed the petition upon which the General Counsel dow relies. Such a course of conduct on the part of the Union Involves nothing more than the invocation of a procedure under which the Union's status as a majority representative could be ascertained. In the light of the available precedents, I cannot conclude that a request for a card check, or the presentation of a petition, should properly be construed as bargaining demands within Section 8 (a) (5) of the statute. Cf. The Solomon Company, 84 NLRB 226, 227; Wafford Cabinet Company, 95 NLRB 1407. 1408; Eaton Brothers Corp., 98 NLRB 464; Donahue Motors, 28 LRRM 1046 (order adopting Examiner's findings and conclusions, May 3, 1951). With respect to the petition. in particular, It may be noted that the Union did not allege--as the petition form nominally required--that a request for recognition had been made and that the Respondent had declined to grant it. (The cases cited on behalf of the General Counsel with respect to this contention are not in point. I have been referred to International Broadcasting Corp., 99 NLRB 130 ; Safeway Stores, Incorporated, 99 NLRB 48; Somerset Classics, Inc., 90 NLRB 1676; and Joy Silk Mills, Inc., v. N.L.R.B., 185 F. 2d 732 (C. A., D. C.), cert. den. 341 U. S. 914. In each of these cases, on the facts found bl the Board and the courts, the employer respondent had been confronted with a written or verbal request for recognition and a bargaining conference. No such factual situation is presented here.) In the light of these conclusions, I find It unnecessary to consider the question, argued by the Respondent, as to whether the telephone contact between Sanders and Jerva should be construed as an effective demand, addressed to a responsible company representative, within the meaning of the Bausch and Lomb Optical Company case. If these conclusions' are sound, as I believe them to be, the conferences held in the Regional Office to discuss the possibility of consent election add nothing to the case, and should not be considered equivalent to a demand for recognition or the Inception of negotiations. Upon the entire record however, I find. in the light of the ppet ific circumstances here present, that a request by the Union for the Respondent to bargain collectively would have been a "useless gesture" and that a specific demand was therefore unnecessary. Cf. Old Town Shoe Company, 91 NLRB 240, 241; Unique Ventilation Co., Inc., 75 NLRB 325, 334. The Respondent's course of conduct, when studied in the round. gives unmistakable evidence of its disinclination to deal with the Union. Reference is made, specifically, to the interroga- tion of the employees by Jerva, the statements of Farrington and the production superinten- dent--in substance--to the effect that the Respondent' s "make work" policy during slack periods would be jeopardized in the event of a union victory, Farrington's Intimation that designation of the Union as an employee representative would endanger the continued ex- istence of the Respondent's unilaterally financed health and welfare plan, the wage Increases so precipitately given, and the discharges of Jones. Collins, and Jewell. Every element in the situation combines to impel the conclusion that the acquiesence of the Respondent with respect to the suggested consent election was based, not upon a good-faith doubt of the Union's majority status, but rather upon a desire to gain time to undermine the labor organi- zation. Under the circumstances, neither the Respondent's asserted willingness to "put its cards on the table" after learning of the Union's claim, nor the failure of the Union to object to the discharges or the wage increase before the election can provide the firm with a real defense. Great Atlantic and Pacific Tea Company, 101 NLRB 1118; Spengler-Loomis Mfg. Co., 102 NLRB 337. I find, therefore, that a specific demand for recognition or a collective- bargaining conference, on or before November 27, 1951, would have been a futile gesture-- and that the Union's failure to present such a demand must, therefore, be excused. KELLOW-BROWN PRINTING COMPANY 49 The logic which impels this conclusion likewise warrants characterization of the Re- spondent's course of conduct as a refusal to bargain . Joy Silk Mills v. N.L.R.B., supra; Dependable Wholesale Company, Inc., 102 NLRB 656 ; Disrnuke Tire and Rubber Company, Inc., 93 NLRB 479; William A. Mosow, 92 NLRB 1727. I find that the Respondent, on or about November 9, 1951--when the Union 's majority status became clear--and at all times there- after, refused to bargain with that organization as the duly designated collective -bargaining representative of a majority of its employees in the pressroom unit herein found to be appropriate, and that its course of conduct involved an unfair labor practice within the mean- ing of Section 8 (a) (5) of the Act, as amended. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, which occurred 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 Since it has been found that the Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom , and that it take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act. Specifically, since it has been found that the Respondent engaged in certain acts of inter- ference, restraint, and coercion„it will be recommended that the Respondent cease and desist from such conduct. Since I have also found that the Respondent refused to bargain collectively with the Union on and after November 5, 1951, it will be recommended that the Respondent, upon request, bar- gain collectively with that organization as the representative of its employees in the unit found, elsewhere in this report, to be appropriate for the purposes of a collective bargain. I have found that the Respondent discriminatorily discharged Howard Jones, Joseph A. Collins, and Bennie L. Jewell on the dates specified elsewhere in this report, and that it has since failed or refused to reemploy them because they had engaged in union activities. It will therefore be recommended that the Respondent offer each of these employees, with the exception of Jones who does not desire reinstatement, immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan. Puerto Rico, Branch, 65 NLRB 827, for a definition of the phrase "former or substantially equivalent position" as here used. It will also be recommended that the Respondent make each of them whole for any loss of pay and other incidents of the employment relationship which he may have suffered by reason of the discrimination practiced against him by the payment to each of a sum of money equal to the amount which each normally would have earned as wages between the date of his discriminatory discharge and the date of the reinstatement offer recommended to the Respondent in this report ( or, in the case of Jones, the date on which he declared he had no wish to return), less his net earnings, if any, during that period. Com- pare Crossett Lumber Company, 8 NLRB 440, 497-8; Republic Steel Corporation v. N.L.R.B., 311 U. S. 7. The pay losses of the employees named should be computed on a quarterly basis, in the manner established recently by the Board. F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344. The unfair labor practices attributable to the Respondent are , in tn+opinion, closely related to the other unfair labor practices proscribed by the Act and a danger of their commission in the future is to be anticipated from the conduct of the Respondent in the past. The pre- ventive purposes of the statute would be thwarted unless the order in this case is coextensive with the threat. In order therefore to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize in- dustrial strife which burdens and obstructs commerce--and thus to effectuate the policies of the Act--it will be recommended that the Respondent cease and desist from infringement in any manner upon the rights guaranteed in Section 7 of the Act, as amended. In order to secure expeditious compliance with these recommendations in regard to back pay and reinstatement, I shall recommend, finally, that the Respondent, upon request, make available to the Board and its agents , all pertinent records. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW In the light of the foregoing findings of fact, and upon the entire record in the case, I make the following conclusions of law: 1. Los Angeles Printing Pressmen and Assistants Union, No. 78, is a labor organization within the meaning of Section 2 (5) of the Act, as amended. 2. All of the letterpress pressroom employees of the Respondent at its Los Angeles plant, including letterpress pressmen , press feeders , and press assistants , but exclusive of all other employees , all supervisors , office and clerical employees , watchmen, guards, pro- fessional employees , and offset department employees constitute a unit appropriate for the purposes of a collective bargain within the meaning of Section 9 (b) of the Act, as amended. 3. At all times since November 9, 1951, Los Angeles Printing Pressmen and Assistants Union, No. 78, has been and now is entitled to act as the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act, as amended. 4. The Respondent, by its failure or refusal since November 9, 1951, to bargain collectively with Los Angeles Printing Pressmen and Assistants Union, No. 78, as the exclusive repre- sentative of its employees in the above-described unit, has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act, as amended. 5. By its discrimination in regard to the hire and employment tenure of Howard Jones, Joseph A. Collins, and Bennie L. Jewell, to discourage membership in Los Angeles Printing Pressmen and Assistants Union, No . 78, the Respondent has engaged in and continues to engage in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, as amended. 6. By its interference with, restraint, and coercion of employees in the exercise of rights guaranteed them in Section 7 of the Act, the Respondent has engaged in and continues to engage in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, as amended. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act, as amended. [Recommendations omitted from publication.] PLYWOOD WORKERS LOCAL UNION NO. 2498 and LAURIE ALEX ULVI. Case No. 19-CB-229. May 28, 1953 DECISION AND ORDER On March 19, 1953, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (b) (1) (A) and (2) of the Act, 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 brief in support of its exceptions. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error '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, Styles, and Peter- son]. 105 NLRB No. 21.