West Coast Luggage Co.

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner further will recommend that the Respondent place the name of Juanita Lopez on a preferential hiring list and offer employment to her in her former or substantially equivalent position in this or any subsequent season, she to take her place on the preferential hiring list in accordance with her length of accumulated service as compared with the length of accumulated service of any other employee on such a preferential list. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following CONCLUSIONS OF LAW 1. Citrus, Cannery Workers and Food Processors Union No 24473, AFL, is a labor organi- zation within the meaning of Section 2 (5) of the Act 2 By discriminating in regard to the hire or tenure of Juanita Lopez, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 3 By discriminating against Juanita Lopez because she has given testimony under the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) of the Act 4 By such discrimination and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2, subsections (6) and (7) of the Act [ Recommendations omitted from publication] WEST COAST LUGGAGE CO. and LEATHER WORKERS UNION OF LOS ANGELES, LOCAL 213 OF INTERNATIONAL FUR AND LEATHER WORKERS UNION. Case No. 21-CA-1311. June 8, 1953 DECISION AND ORDER On June 11, 1952, Trial Examiner Wallace E.Royster issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (3) 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices in violation of Section 8 (a) (5) of the Act, and recommended dismissal of those allegations. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a brief. The Respondent filed no exceptions. The Board has reviewed the rulings made by the Trial Exam- iner at the hearing , and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report , the exceptions and brief, and the entire record in the case , and hereby adopts the find- ings , conclusions , and recommendations of the Trial Examiner, with the additions and modifications discussed below. 1. No exceptions were taken to the Trial Examiner's find- ings that the Respondent , by threats and interrogation, vio- lated Section 8 (a) (1) of the Act. We therefore adopt these WEST COAST LUGGAGE CO. 415 findings. We enumerate the Respondent's specific acts because they bear on the Respondent's refusal to bargain with the Union. In October 1951 the Respondent's president, Samuel A. Davis, told a group of employees that he would fight to keep the Union out of the plant and that he would discharge anyone for joining it; in November, he asked employee Adolph Garcia if he had been solicited by a union representative and if other employees were union members, and he said that he would rather close the plant than deal with the Union. The Respondent' s foreman, Henry Bart, in September told Garcia that as long as he, Bart, worked for the Respondent, there would be no union in the plant; in October he told employee Jonas Weiss that Davis would fire anyone who signed a union card, even his best worker; and in November he advised Weiss that trouble could be avoided if he did not sign a union card. 2. No exceptions were taken to the Trial Examiner's finding that the Respondent discharged employee Olga Roth onDecem- ber 6, 1951, to discourage membership in and activity on behalf of the Union, and thereby violated Section 8 (a) (3) and (1) of the Act. We adopt this finding. 3. Exceptions were taken by the General Counsel to the Trial Examiner's finding that the Respondent did not refuse to bargain collectively with the Union in violation of Section 8 (a) (5) and (1) of the Act. We find merit in these exceptions. The facts surrounding the Union's several requests for recognition are these: On December 5, 1951, the Union's organizer, George Bradow, called upon Davis and asserted that the Union represented a majority of the employees. Davis countered with a proposal to call all the workers together and hold an election then and there. When Bradow demurred, the two men proceeded to discuss ways of proving majority. Davis agreed to extend recognition, Bradow credibly testified, if Bradow would produce cards signed by a majority of the employees. Bradow then gave Davis a sample contract of several pages. That same evening , some of the employees met with Bradow and signed union-membership application cards. One, Elizabeth Steiner, signed reluctantly after Bradow told her, as she testi- fied, "It means, if you don't sign the card, when Mr. Davis go and sign the union and the place is go union, you don't work this place because when you don't join the union, you can't work the place." Other employees had signed cards before December 5, and still others signed on the next day. On December 6, Bradow showed Davis membership applica- tion cards signed by 9 employees out of a total of 15 in the appropriate unit, as hereinafter described. According to Davis, Bradow insisted that he sign the sample contract which had been given him the day before; he told Bradow that due to seasonal factors and the possibility of a layoff, it would be advantageous for both of them to wait until after the first of the year to dis- cuss.;, a contract; and when, he refused to sign the contract, Bradow threatened a fight. Bradow's version of the December 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6 conversation was that after Davis checked the cards , Bradow requested an appointment to negotiate ; that Davis said he would take inventory after the first of the year and then decide if he could afford to negotiate ; and that Bradow on leaving told Davis that he did not want any union people pushed around , that if anyone got hurt, the Union would have to retaliate by some sort of action. The Trial Examiner did not resolve this conflicting testi- mony and merely found that , no matter which version is accepted , it is clear that Davis was unwilling to agree to a contract on December 6. An examination of the sample con- tract, however , leaves no question that it was an obsolete form, not intended for execution by the Respondent . It was dated 1946 and contained amendments dated June 1947 and June 1948, respectively . The most recent amendment, relating to an exten- sion of an earlier contract , could not have been applicable to the Respondent , which had no earlier contract . The contract referred to an appended minimum wage scale , but no such wage scale was in fact appended . Other provisions , likewise mean- ingless when applied to the Respondent , referredtothe Union's right to reopen the question of a cost-of -living wage adjust- ment after September 15, 1948--a date without significance to the parties in this case intheyear 1951 . Moreover, the con- tract's introductory clause referred to the C. I. 0 ., with which the Union was no longer affiliated . In the further light of the testimony of both Bradow and Davis that no contract terms were discussed , we conclude that Bradow ' s version is credible, that the discussion on December 6 related to proof of card majority and recognition , and that Davis in effect refused recognition at that time. After this discussion with Bradow , Davis discriminatorily discharged Olga Roth , a union member whose card he had been shown. On the evening of December 6, 8 of the 9 employees who had signed cards held a union meeting . The ninth signer , Steiner, did not attend . The 8 in attendance voted to strike in protest against Olga Roth ' s discharge and to obtain a contract. All 8 struck and picketed , beginning on December 7 and continuing through the hearing in May 1952, 5 months later . Signs car- ried by the pickets read to the effect that the employees were "on strike for higher wages, for a living wage and a union contract." The remaining 7 employees in the unit ( 6 of whom had not signed cards, while the seventh, Steiner , had asked for the return of her card ) continued to work without inter- ference from the strikers. On or about December 10 , Max Roth, the Union ' s business representative , came out for the purpose of settlingthe strike. President Davis spoke to him on the picket line , in Bradow's presence , and, as the Trial Examiner found , threatened in a loud voice to replace all the strikers . Davis acknowledged the conversation with Max Roth , and admitted that Roth asked him to settle the strike and that he told Roth that if the strikers returned to work he would negotiate. WEST COAST LUGGAGE CO. 417 During the week of December 10, Davis called striking em- ployees into his office at different times, told them they were foolish to remain on strike, and offered them a Christmas bonus and increased wages to return. Davis also threatened employee Gustavo Tena that if he did not return to work he would never obtain a job elsewhere. All the employees so- licited by Davis declined the offer of bonuses and wage in- creases, refusing to return unless Davis signed a contract. Garcia, one of the employees, told Davis on December 10 or 11, in answer to the latter's invitation to return to work, that the employees were not asking for much, just to reinstate Olga Roth and sign a contract. On December 11, Davis approached a couple of employees on the picket line, including striker Weiss and the discrimina- torily discharged employee, Olga Roth, and asked them to come into his office, where he offered them reemployment at in- creased wages . Both declined, like the other strikers, unless Davis signed a contract. On December 17 Davis hired two employees as replacements for strikers. Somewhat later in December, the union president, Max Cutler, telephoned Davis to discuss a strike settlement. Davis told him to call off the strike and in about 6 months he would be ready to negotiate with the Union. At about the same time Bradow, the organizer, asked Davis to settle the strike, and Davis answered that he would never deal with the Union. By February 1952 the Respondent had hired six replacements. On these facts we conclude, in agreement with the Trial Ex- aminer , that the Respondent's attitude toward the Union was one of " unrelenting and unlawful opposition." But we disagree with his conclusion that the Respondent was "exculpated" from its statutory duty to bargain with the Union. The Trial Exami- ner based his conclusion on the ground that the Union's first request for recognition did not occur until late December, after two strikers had been replaced, thus apparently dissi- pating the Union's majority. But the credible evidence satis- fies us that the Union first requested bargaining at the Bradow- Davis meeting on December 6, before the strike. There is no question that the discussion on the preceding day had related to methods of proving the Union's majority. The outcome of this discussion was that Bradow was to return on December 6 to show Davis the signed membership cards. This Bradow did, but the meeting was then stalemated by Davis' unwillingness to recognize the Union until after taking inventory and deciding whether he could afford recognition. We do not hold that Davis was obligated under the statute to sign a par- ticular contract immediately or at any time.' However, the fact that Bradow presented an obsolete form of contract which the Union no longer used convinces us that Bradow had no inten- tion of delivering an ultimatum to Davis to sign that particular 'Labor Board v. Jones & Laughlin Steel Corp., 301 U S. 1, 45; N. L R. B. v. American National Insurance Co., 343 U. S 395. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract . The only reasonable conclusion on this record is that the Union was seeking recognition on December 6, that Bradow presented the union -authorization cards for the purpose of proving that it was the employees ' designated representa- tive, and that Davis understood this to be Bradow ' s purpose in view of their previous day's discussion.2 The Respondent ' s adamant attitude in resisting performance of its statutory duty to bargain is shown by its continued opposi- tion to the Union. After Davis' discussion with Bradow on De- cember 6, the Respondent carried out its threat by discharging Olga Roth for having joined the Union, precipitating the strike. When the Union' s business representative , Max Roth, sought to settle the strike shortly after its inception, Davis told him that he would negotiate only on the condition that the strikers return to work. We again hold that an employer who conditions negotiations with the statutory representative upon the aban- donment of protected concerted activities thereby engages in a refusal to bargain in violation of Section 8 (a) (5) and inter- feres with , restrains , and coerces employees in the exercise of their statutory rights in violation of Section 8 (a) (1) of the Act.3 The complaint alleged that "All production and maintenance employees at Respondent ' s Los Angeles , California plant, ex- cluding officers of the corporation , their relatives , clerical employees , guards, and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of the Act." The Trial Examiner found, and the Respondent does not deny, that on December 6 there were 15 employees in the appropriate unit as described in the complaint ." We adopt this finding. The Respondent does deny, however, that the Union repre- sented a majority of the 15 employees in that unit. The Trial Examiner found that the Union, although representing a numeri- cal majority, did not have a valid majority because Bradow's remark to Steiner on December 5, to the effect that her job tenure would be endangered if she did not sign a union -authori- zation card, may have coerced other signers . We disagree. We cannot base our findings on mere conjecture . Without counting Steiner's card because of the coercive remark made to her, we find that 8, or a majority of the 15-man unit, had signed union -membership cards. There is no direct evidence that any of them were coerced . We will, therefore, examine all the facts surrounding the signing of the cards other than Steiner ' s, to determine the validity of the Union's majority. 2 Davis, at the December 6 meeting with Bradow , questioned a couple of the signatures, and Bradow said that he could prove that the signatures were those of the named employees Imme- diately afterwards , however, Davis discriminatorily discharged an employee , provoked the strike, and effectively put an end to further discussion . We do not view Bradow 's statement, in this setting , as detracting from the unequivocal request to bargain and Davis ' understanding of that request. 3 Pecheur Lozenge Co , Inc., 98 NLRB 496 4 We find it unnecessary to consider the General Counsel's exception to the inclusion in the unit of Davis ' brother- in-law and an employee alleged to be a temporary part-time worker WEST COAST LUGGAGE CO. 419 The record shows that three employees (Adolph Garcia, Gustavo Tena, and Philip Szkulnik) signed cards before the remark by Bradow to Steiner on December 5.5 Thus, these three employees could not have been influenced by the remark to Steiner . Two other employees , Israel Schwartz and John Aragon, do not appear to have been present at the December 5 meeting, but signed cards on December 6. Of the remaining three employees comprising the Union's majority, the record points to the conclusion that they signed cards before Bradow made his remark to Steiner , as Steiner admitted that employee Jonas Weiss said to her at the time of the remark, "Everybody sign it already , and you heard everything, you [will; go back and tell Mr. Davis." More significantly , the subsequent activities of the eight card signers convince us that their union adherence and sympathy were not coerced ." All attended a union meeting on the night of December 6 and voted to strike because of Olga Roth's discharge and to obtain recognition . Throughout the long strike they firmly declined Davis' monetary inducements to return to work without a union contract even in the face of his threat to discharge them. At the same time no coercion by the Union was practiced on the seven nonstrikers , including Steiner, so far as the record shows . Accordingly, we find that on December 6, 1951, and at all times thereafter , the Union represented an uncoerced majority of employees in the appro- priate unit and was , and now is, the exclusive bargaining repre- sentative of the employees in the aforementioned appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment, and other conditions of employment.' In the light of the foregoing , and the entire record, we find that the Respondent, on December 6, 1951, and all times thereafter , has refused to bargain with the Union as the ex- clusive bargaining representative of employees in an appro- priate unit, in violation of Section 8 (a) (5) of the Act, and has thereby interfered with, restrained , and coerced employees in the exercise of their statutory rights in violation of Section 8 (a) (1). 4. We also find merit in the exception to the Trial Examiner's finding that the inducements , offered by the Respondent to Olga 5 The testimony of Gustavo Tena, who apparently re-signed a card on December 5, shows that he was already a union member, as he had informed President Davis of this fact in Novem- ber. 6Such evidence of authorization amply satisfies the Act's requirements . Seven-Up Bottling Company of Miami, 92 NLRB 1162, modified on other grounds 196 F 2d 424 (C. A. 5). See also Harris- Woodson Co , Inc., 77 NLRB 819, enforced 179 F. 2d 720 ( C A. 4); Amalgamated Meat Cutters and Butcher Workmen, 81 NLRB 1052 ; Pecheur Lozenge Co., Inc., 98 NLRB 496; The Ohio Calcium Company, 34 NLRB 917, Chicago Casket Company , 21 NLRB 235 Cf Wells, Inc , 68 NLRB 545 , cited by the Trial Examiner , which is not in point. There the coercive nature of a supervisor's soliciting impaired the union's majority. 7 The result might well be different if the same objection were before us in connection with a secret-ballot election , as a determination that any particular voter was coerced would re- quire us to invade the secrecy of the ballot. Here the record openly identifies the employees who designated the Union We find no satisfactory evidence that any of them except Steiner was coerced. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roth and the strikers, did not violate the Act. These induce- ments included wages higher than those tendered to the Union, and a Christmas bonus likewise not tendered to the Union or otherwise customary. Soliciting Roth and individual striking employees in this manner violated Section 8 (a) (5) of the Act. 8 Moreover the Respondent's attempts to deal with the strikers individually bypassed the employees' majority representative, and constituted an integral part of a pattern of illegal opposition to the purposes of the Act, as evidenced by the Respondent's entire course of conduct, and thus also violated Section 8 (a) (1) of the Act.' 5. Because the strike was caused and prolonged by the Respondent ' s unfair labor practices in refusing to recognize the Union and discharging Olga Roth, we find that the strike was at all times an unfair labor practice strike . Regardless of the effect of the Respondent's reinstatement offer to Roth, one objective of the strike was to obtain union recognition and protest the Respondent's refusal to bargain. The Respondent's continuing unlawful refusal to bargain during the strike and its campaign during this period to undermine the Union were in- strumental in prolonging the strike. We therefore hold that the strike, in its inception a protest against the Respondent ' s unfair labor practices, continued as such throughout. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent refused to bargain collec- tively with the Union as the exclusive representative of its employees in an appropriate unit. We shall therefore order that the Respondent, upon request, bargain collectively with the Union, and if an understanding is reached, embody such under- standing in a signed agreement. We have also found that the strike, which began on December 7, 1951, and was still in progress at the date of the hearing, was caused and prolonged by the Respondent's unfair labor practices. The unfair labor practice strikers, therefore, were not vulnerable to permanent replacement. Accordingly, we shall order that the Respondent, upon application, offer re- instatement to their former or substantially equivalent posi- tions11 to all those employees who went on strike on December 7, 1951, or thereafter, and who have not already been offered reinstatement, without prejudice to their seniority or other 8 N. L. R. B. v Montgomery Ward & Company, 133 F. 2d 676 (C. A. 9), enforcing 37 NLRB 100; N. L R. B. v. Kobritz, 193 F. 2d 8 (C. A. 1). enforcing 92 NLRB 1018. 9 W T. Rawleigh Company, 90 NLRB 1924, modified on other issues 190 F 2d 832 (C. A. 7); Modern Cleaners Company, 100 NLRB 37 18 The Chase National Bank of the City of New York. San Juan, Puerto Rico, Branch, 65 NLRB 827. WEST COAST LUGGAGE CO. 421 rights and privileges , dismissing , if necessary , persons hired on or after that date. We shall also order that the Respondent make them whole for any loss of pay they may have suffered by reason of the Respondent's refusal, if any, to reinstate them as provided above, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from five (5) days after the date on which he applies for reinstatement to the date of the Respond- ent's offer of reinstatement in the manner provided above, less his net earnings, if any, during said period." Loss of pay shall be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Like the Trial Examiner, we have found that the Respondent discriminatorily discharged Olga Roth. Exception is taken to the Trial Examiner's further finding that, except for a few days' back pay, the Respondent adequately remedied its dis- criminatory discharge by offering Roth and striker Weiss re- employment at increased wages and a Christmas bonus. We find merit in this exception. The offer was itself, as we have found, an integral part of a pattern of illegal opposition to the purposes of the Act in which the Respondent was seeking to undermine the concerted activity of the striking employees, and an independent unfair labor practice; no back pay was tendered; and thus the Respondent did not in good faith try to remedy the original discriminatory discharge.'2 Moreover, Roth was entitled to stay out on strike with the other strikers who were protesting the Respondent's unlawful refusal to bargain. We shall therefore order the Respondent to offer immediate and full reinstatement to Olga Roth and make her whole for anyloss of earnings sufferedbyher for these periods: (1) From December 6, 1951, the date of discrimination, through June 11, 1952, the date of the Intermediate Report, and (2) from the date of our Decisionand Order hereinto the date of a proper offer of reinstatement.13 We shall also order the Respondent to make available to the Board, upon request, payroll and other records to facilitate the checking of compliance with our Order. Like the Trial Examiner, we find from the entire record that there is danger of the commission in the future of other unfair labor practices proscribed by the Act. The preventive pur- poses of the Act will be thwarted unless our order is coex- tensive 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 minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we shall order the Re- "In computing back pay owing to those employees for whom the Trial Examiner failed to recommend reinstatement , we shall, in accord with our usual practice, exclude the period from the date of the Intermediate Report to the date of this Decision and Order Standard-Coosa- Thatcher Company, 85 NLRB 1358, 1367. This refers specifically to those strikers who may have been permanently replaced I2 See Red Rock Co., 84 NLRB 521, 529; Porto Rico Container Corp., 89 NLRB 1570, 1580 i3See footnote 11. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. ADDITIONAL CONCLUSIONS OF LAW 1. All production and maintenance employees at the Re- spondent's Los Angeles, California, plant, excluding officers of the corporation, their relatives, clerical employees, guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 2. Leather Workers Union of Los Angeles, Local 213 of International Fur and Leather Workers Union, was on Decem- ber 6, 1951, and at all times since has been, the exclusive bargaining representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3. By refusing on December 6, 1951, and at all times there- after to bargain collectively with the aforesaid Union as the exclusive bargaining representative of the employees in the aforesaid appropriate unit, and by soliciting employees to abandon their union activities through promises of wage in- creases and a bonus, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 4. By thus interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of the fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, West Coast Luggage Co., its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Leather Workers Union of Los Angeles, Local 213 of International Fur and Leather Workers Union, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees at the Los Angeles, California, plant, excluding officers of the corporation, their relatives, clerical employees, guards, and supervisors as defined in the Act. (b) Interrogating its employees concerning their union mem- bership, activities, and sympathies; threatening employees with loss of employment if they join a union; and promising a wage increase or other benefits to discourage union membership or activity. WEST COAST LUGGAGE CO. 423 (c) Discouraging membership in Leather Workers Union of Los Angeles, Local 213 of International Fur and Leather Workers Union, or any labor organization of its employees, by discharging or refusing to reinstate any of its employees because of their union membership or activity , or in any other manner discriminating in regard to their hire or tenure of employment , or any term or condition of their employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations , to join or assist Leather Workers Union of Los Angeles , Local 213 of Inter- national Fur and Leather Workers Union , or any labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain collectively with Leather Workers Union of Los Angeles, Local 213 of International Fur and Leather Workers Union , as the exclusive representative of the employees in the above -described appropriate unit, and if an understanding is reached , embody such understanding in a signed agreement. (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges, to all those employees listed in Appendix A attached hereto, who went on strike on December 7, 1951, or thereafter , dismissing, if necessary , any persons hired on or after that date, and make them whole , in the manner set forth in the remedy section of this Decision and Order. (c) Offer Olga Roth immediate and full reinstatement to her former or substantially equivalent position , without prejudice to her seniority and other rights and privileges , and make her whole, in the manner set forth in the remedy section of this Decision and Order, for any loss of pay she may have suffered by reason of the Respondent ' s discrimination against her. (d) Upon request, make available to the National Labor Re- lations Board , or its agents , for examination and copying, all payroll records and reports, and all other records necessary for a determination of the reinstatement rights and the amounts of back pay due under the terms of this Order. (e) Post at its plant at Los Angeles, California , copies of the notice attached hereto marked "Appendix A." 14 Copies of such notice, to be furnished by the Regional Director for the Twenty- first , Region, shall, after being duly signed by the Respondent, 14In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuantto a Decision and order " the words "Pur- suant to a Decree of the United States Court of Appeals , Enforcing an Order " 291555 0 - 54 - 28 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be posted by it immediately upon receipt thereof, and be maintained by it for sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to em- ployees customarily are posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced , or covered by any other material. (f) Notify the Regional Director for the Twenty -first Region, in writing , within ten ( 10) days from the date of this Order, what steps have been taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT by means of discharge , interrogations, or threats , or in any other manner interfere with, re- strain , or coerce our employees in the exercise of their right to self -organization, to form labor organizations, to join or assist Leather Workers Union of Los Angeles, Local 213 of International Fur and Leather Workers Union, or any other labor organization , to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as permitted by Section 8 (a) (3) of the Act. WE WILL, upon application, offer to the following named employees full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed; and make them whole for any loss of pay, as provided in the Board' s Decision and Order. John Aragon Louise Ortega Philip Szkulnik Jonas Weiss Gustavo Tena Adolph Garcia Israel Schwartz WE WILL offer Olga Roth immediate and full reinstate- ment to her former or substantially equivalent position, without prejudice to her seniority or other rights or priv- ileges previously 'enjoyed ; and we will make her whole for any loss of pay suffered by her by reason of the dis- crimination against her , as provided in the Board's De- cision and Order. WEST COAST LUGGAGE CO. 425 WE WILL bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein, with respect to grievances , labor disputes , wages , rates of pay, hours of employment, and other conditions of em- ployment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, excluding officers, their relatives, clerical employees, guards, and supervisors as defined in the Act. All of our employees are free to become or remain members of Leather Workers Union of Los Angeles, Local 213 of Inter- national Fur and Leather Workers Union, or any other labor organization . We will not discriminate in regard to hire and tenure of employment, or any term or condition of employ- ment, against any employee because of membership in or ac- tivity on behalf of any-labor organization. WEST COAST LUGGAGE CO., 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE This case is before the Board upon the complaint of the General Counsel, dated April 7. 1952, against West Coast Luggage Co., herein called Respondent. Pursuant to notice a hearing was held on May 8 and 9, 1952, in Los Angeles, California. before the undersigned, at which all parties were represented and were afforded opportunity to be heard, to examine and cross- examine witnesses, to introduce relevant and material evidence, to argue orally, and to file briefs. No argument was had and no briefs have been filed. A copy of the charge, the complaint, and a notice of hearing were duly served on the parties. The complaint alleges that Respondent interrogated employees concerning their membership in and activity in behalf of Leather Workers Union of Los Angeles, Local 213 of International Fur and Leather Workers Union, herein called the Union, threatened them with discharge if they joined the Union, threatened to close its plant rather than recognize the Union, refused unlawfully to recognize and bargain with the Union, bypassed the Union in soliciting individual strikers to return to work, threatened to discharge those who did not do so, offered monetary inducements to strikers to abandon the Union and the strike, and discharged Olga Roth because of her protected concerted activity or because she was a supporter of the Union. Respondent's answer denies the commission of unfair labor practices , denies that the Union at any time material was the bargaining representative of the employees , and asserts that the Union had not complied with Section 9(f),(g), and (h) of the Act. Upon motion, the last assertion was stricken by Trial Examiner Martin H. Bennett prior to the hearing. Upon the entire record in the case and from my observation of the witnesses, I make the following: 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged at Los Angeles, California, in the manufac- ture, sale, and distribution of luggage and related leather goods. Respondent annually ships products valued in excess of $25,000, directly from its plant to points outside the State of California. II. THE ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respondent. Ill. THE UNFAIR LABOR PRACTICES A. The facts Respondent operates a small plant employing from 13 to 20 workers depending upon the fluctuating demand for its products. The device of temporary layoff is one frequently used in order to tailor the number of employees to the work to be performed. Supervision centers in Samuel A. Davis, Respondent's president, but Henry Bart, who is designated as a foreman, directs the efforts of the employees when necessary and in the absence of Davis is in charge. In September 1951, George Bradow, an organizer for the Union, visited the homes of some of the employees in an effort to interest them in his organization; when in early October he stood for that purpose near the plant entrance, Foreman Bart told him to leave--to stop bothering the employees. Also in October, Bart asked Jonas Weiss, an employee, if any union representative had called on him, and if he had signed a card, remarking that Davis would fire anyone, even his best worker, who did so. Sometime in November, Bart asked Weiss what the union representative had said to him, commented that the Union was tainted with com- munism, and advised Weiss that trouble could be avoided if he did not sign a union card. In the same month, Davis asked Adolph Garcia, an employee, if he had been solicited by a union representative, inquired if other employees were union members, and said that he would rather close the plant than deal with the Union. In September, Bart asked Garcia what he expected the Union to do for the employees and said that as long as he, Bart, worked for the Respondent there would be no union in the plant. Gustavo Tena became Respondent's employee in March 1951. Sometime in the fall of that year, Tena told Davis that he was a member of the Union. Davis said that was all right but, according to Tena, another was soon hired to replace him. Precisely what happened in regard to the replacement, the record does not explain. Tena continued at his work. On a date early in December, according to Tena but which other testimony rather clearly shows to have been in October, Davis told a group of his employees that refugees should be happy to enjoy the privileges that were theirs as residents of the United States but then went on to say that he would fight to keep the Union out of the plant and that he would discharge anyone for joining it. Another employee, Philip Szkulnik, testified that he heard Davis on that occasion say that he would fire anyone who joined the Union but admitted that he did not understand all that Davis said. John Aragon testified that Davis made such a threat on the October occasion. Employee Elizabeth Steiner testified that she did not remember Davis threatening discharge in connection with the Union and another employee, Susi Lowenberg, testified that Davis made no such remark. Steiner conceded that she had worked irregularly in the fall of 1951 although Respondent's attendance sheet, in evidence, does not indicate any absence for her in October. Foreman Bart and President Davis denied that either had questioned any employees concerning the Union or made any threats in connection with union membership or activity. On November 6 and 7 Davis laid off 11 of the 16 employees (excluding Bart) then on the payroll and continued some of them in that status until Monday, December 3. On that day 14 workers (always excluding Bart) were on the payroll actively engaged in work, Maurice Reichter was off because of illness, and 2 others, Frank Aguilar and Leo Levinson, had not returned from the November layoff. Dorothy Hughes, Davis' secretary, testified that she presumed that Aguilar and Levinson had refused an offer of further employment and that both had been replaced. Just when they lost employee status with Respondent is not too satis- factorily shown. However Respondent's compensation records indicate that Aguilar probably did so about November 23, and Levinson a week later. Reichter is the husband of Davis' sister but appears to have performed work for the Respondent the same as other employees and not to have occupied any supervisory status. Neither Reichter nor his wife has a financial interest in the business. WEST COAST LUGGAGE CO. 427 On December 5, Bradow called upon Davis and asserted that a majority of the employees had designated the Union to represent them. Davis suggested that an election be conducted among them at once. Bradow said thathethought that the employees should have a little notice before such a device was used and suggested a postponement to the next day. The conversa- tion then veered to other methods of proving majority, Bradow produced a form of contract for Davis' study, and left. According to Bradow, Davis agreed to extend recognition if Bradow would produce cards signed by a majority of the employees. That evening Bradow met with a number of the employees and secured signatures to mem- bership application cards. Elizabeth Steiner said that she did not want to sign but when Bradow said, in the words of Steiner, "It means, if you don't sign the card, when Mr. Davis go and sign the union and the place is go union, you don't work this place because when you don't join the union, you can't work the place," shecapitulated. The contract which Bradow had left with Davis that day provided that all hiring would be through the Union and that membership in the Union would constitute a condition to continued employment. On December 6, Bradow returned to the plant and exhibited 9 membership application cards to Davis. Upon examining them Davis said that he questioned 2 or 3 of the signatures. Bradow assured him that he would satisfactorily authenticate them. The course of the meeting from this point is, in sharp dispute. Bradow testified that Davis said he would not negotiate until the end of the year so that he might learn from his inventory and profit or loss position if he could "afford" to negotiate and sign a contract with the Union. On the other hand, Davis testified that Bradow spoke only in terms of Davis signing the form of agreement which had been supplied the day before, that Davis pleaded for delay until the first of the year because further layoffs were in prospect, and that when Davis refused to sign the contract, Bradow threatened that there would be a fight. It is clear, no matter which version is accepted, that Davis was unwilling to agree to a contract on December 6. At the close of the working day, Olga Roth, one of those who had signed a membership application and who thus was known to Davis as an ostensible union adherent, was paid to date by Foreman Bart, Roth testified that Bart handed her the check without comment, that it was not customary for a laid-off employee to be paid on the day of layoff for hours worked since the last payday, and that she assumed she was discharged. Davis testified that for economic reasons he found it necessary to make a layoff, that Roth was a logical selection because her husband had employment, and that it was customary to pay an employee in full at the time of layoff if it seemed probable that she would not return to work before the next payday. With regard to the last, some puzzlement arises as Davis also testified that he intended Roth to be off only for a few days and thus should have anticipated her return to work before the next payday, December 11. Bart testified that he told Roth on the occasion of giving her the check that she would be laid off for 2 days or perhaps a week. On the evening of December 6 all of the employees who had signed application cards, except Steiner, met with Bradow. Roth said that she had been discharged and attributed it to the fact that she had signed such a card. A vote was taken and it was decided, according to Bradow, to strike because of the discharge of Roth and in order to get a contract providing for a wage increase and all other benefits existing in organized shops. Jonas Weiss, at whose home the meeting was held, testified that the discharge of Roth was the moving consideration. The strike began on December 7 and was in effect at the time of the hearing. For a time Davis sought to persuade the strikers to return to work. Sometime during the week of Decem- ber 10, at Davis' invitation, Garcia, Aragon, and Ortega came to his office. Davis said they were foolish to remain on strike, that he would give them a bonus at Christmas if they would return. Garcia said that their demands were not unreasonable- -that the strike could be ended if Davis would reinstate Roth and sigh a contract. On December 11, Weiss and Olga Roth met with Davis and Bart. Davis offered to put Roth back to work and to increase her wages. Bart said that shewas a good worker and would be employed steadily. Roth refused the offer because Davis would not sign "the paper," meaning the union contract. Weiss testified that on this occasion Davis offered increased wages and a Christmas bonus if Weiss would return. Weiss answered that he would do so if Davis would sign the contract. Max Cutler, president of the Union, testified that 2 or 3 weeks after the beginning of the strike he telephoned Davis in an attempt to settle the matter. Davis told him to call off the strike and in about 6 months he would be ready to negotiate with the Union. On December 7, according to one of the strikers, Louise Ortega, Davis said he would have signed the contract if Bradow had used another approach but that he did not like to be told to sign. Gustavo Tena testified that shortly after the strike began Davis invited hun to return to work and threatened that if he did not do so he would find himself unable to get work elsewhere. Bradow testified that on the third day of the strike he heard Davis threaten to replace all the strikers. About 3 weeks later, according to Bradow, he asked Davis to talk over a possible settlement. Davis answered, Bradow testi- fied, that he would never deal with the Union. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis denied that he offered a bonus or Increased wages to allure the strikers back to work and denied that he had refused to meet with Cutler except on condition that the strike be ended. In the latter connection, however, in a statement given to an agent of the Board on February 12, 1952, Davis admitted that he had interposed such a condition . He also denied that he had threatened to replace the strikers or to arrange so that they could not find employment else- where. B. Conclusions A number of Respondent's employees (viz, Roth, Steiner, Weiss, Szkulnik) are recent ar- rivals to the United Stares from central i rope and are sometimes described in the record as refugees. Some of them understand English imperfectly and, among such, Yiddish is often used in conversation. In evaluating the testimony of witnesses I have considered that the language barrier could occasion misunderstanding However, their testimony, both strikers and nonstrikers , was given for the most part in such an artless and ingenuous manner as to convince me that the closest approximation of truth is to be found there. Some of them, I am sure, would have found it difficult to dissimulate in a strange language. Had their testimony been in any sense contrived, cross-examination would quickly have betrayed the scheme. Roth, Weiss, Garcia, Tena, Ortega, Aragon, and Steiner , in particular , impressed me as individuals who spoke with sincerity and conviction. I credit their testimony including those instances where it is in conflict with that of Davis and Bart. I find, therefore , that in the fall of 1951 Davis threatened that anyone who joined the Union would be facedwithdischarge ; thatinthesame period, Bart gave circulation to the same threat adding that no union would represent employees of the Respondent as long as he remained foreman; that both Bart and Davis questioned employees concerning their interest in the Union; and that Davis in effect threatened to interfere with any opportunity for other employment by Tena if he did not abandon the strike. By such threats and interrogation, I find that the Re- spondent interfered with , restrained , and coerced employees in the exercise of rights guaran- teed in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. I find that Aguilar and Levinson had lost their status as employees of Respondent before December 6, that 2 others (Perry and Halim) were on indefinite leave of absence, and that, therefore , 15 employees were on that date in the unit described in the complaint. I find that the application cards exhibited by Bradow to Davis bore the authentic signatures of 9 em- ployees but I am not convinced that the cards establish that the Union was thus designated as bargaining agent by the exercise of a free choice. Obviously Steiner signed her card with great reluctance and in response to Bradow's threat that her job tenure would be endangered if she did not. Such a designation may not be counted as contributing to majority. }The coercion practiced upon Steiner occurred in the presence , and presumably In the hearing, of other employees whose cards are offered to prove majority. None of them was asked if he signed freely and perhaps all of them , except Steiner , felt that they did. But at least there is an element of uncertainty about it. As the Board said in the Lerner case, supra "Such re- marks by the Union's chief proponent were manifestly calculated to restrain and coerce the employees concerned and, in our opinion, raise substantial doubt as to whether the Union, which relies on its authorization cards rather than the results of ballots cast at a secret election, represented the free choice of the Respondent 's employees." An earlier decision (Wells. Inc., 68 NLRB 545, 548) expounds a similar philosophy. Considering the restraint and coercion of Steiner by Bradow in obtaining her signature to a designation card. I find that substantial doubts are raised as to the freedom with which designations were given by others. I find, therefore, that the evidence does not establish the Union to have been the freely chosen majority representative of the Respondent's employees on December 6, 1951. The strikers on December 6 firmly believed that Roth had been discharged for signing a union card and it will be found that their belief was correct . The record does not establish that the strike began because of any refusal to bargain. On December 11 Davis offered to return Roth to her job; thus, the incident which on December 7 was the motivating cause for strike action came to an end 4 days later. But the strike persisted , and to Davis' invitation to return to work the individual strikers answered that he must first sign the union contract. I do not assume that any of the strikers were aware of the sometimes nice distinction between recognition and entering into a contractual relationship, and it is possible that the condition they imposed to the acceptance of Davis' request meant that their Union be recognized as bargaining representative. There is, however, other evidence of a substantial nature which persuades that on December 6 Bradow was not speaking to Davis in terms of a request for iLerner Shops of Alabama. Inc., 91 NLRB 151, 153 WEST COAST LUGGAGE CO. 429 recognition, but rather was then demanding that the Respondent sign the form of contract which had been submitted on December 5.2 Not until 3 weeks later did Bradow ask Davis to talk over a possible settlement. I think that the last request must realistically be appraised as one that Davis recognize the status of the Union as bargaining representative. I credit Bradow's testimony that Davis answered that he would never deal with the Union. I also credit the testimony of Max Cutter that Davis refused to meet with him in late December unless the strike was ended. But I do not find in the record any clear-cut demand by the Union for rec- ognition between the dates of December 6 and the somewhat uncertain date in late December when either Bradow or Cutler spoke to Davis in connection with settlement. In the interim, evidence developed to affect the Union's status. It has been found that on December 6 the majority status of the Union was unproved. On December 7 the appearance of 8 of the 15 em- ployees on a picket line, considering that they were then striking because of the discharge of Roth, is not satisfactory evidence that they were striking also for recognition. Not until the date when Bradow or Cutler attempted tonegotiatea settlement with Davis, is it clear that the strife became one for recognition. On December 17, 2 new employees were hired. These, added to the 6 who had remained at work, left 8 in the plant and 8 on the picket line. Reichter, who was ill at the time the strike began, remained in sick-leave status. There is no evidence in connection with those newly hired, beyond the fact that they appeared on the payroll for the week beginning December 17. There is nothing from which it can be inferred that they were temporary replacements, and in that posture of evidence I must assume that they were not. Thus, from and after December 17, the strikers constituted less than a majority of the em- ployees. I find that no request for recognition was made of the Respondent at any time when on the basis of this record it can be said that the Union was in fact the majority representa- tive of Respondent's employees in any appropriate unit. I credit Roth's testimony that she was paid in full on December 6 without explanation and I do not believe Bart's testimony that he told her she was laid off. Evidence that it was not customary to pay employees at the time of layoff for hours worked in the current pay period until the next payday, is substantial and is believed. I do not credit Davis' explanation that he laid off Roth for economic reasons. Had he done so. I am sure that Roth would have been so informed. The possibility of misunderstanding between Roth and Bart is slight as both cus- tomarily spoke in Yiddish, an idiom entirely familiar to them. Davis, of course, knew that Roth had signed a union application card and evidence has already been recited concerning Davis' threats to discharge anyone who did so. I find that Respondent discharged Roth on December 6 to discourage membership in and activity on behalf of the Union and that Re- spondent thereby violated Section 8 (a) (3) and (1) of the Act. Although I have found no unlawful refusal to bargain established by the evidence here, I believe it reasonable to conclude that the Respondent has been exculpated in that connection largely through accidental and fortuitous circumstances . Respondent's attitude toward self- organization, as expressed through Davis and Bart, has been one of unrelenting and unlawful opposition. It is not to be supposed that an unmistakeable demand for recognition, made at a time when the Union represented a majority of the employees, would have been granted. As the Respondent, under the facts of this case, has never been called upon to extend recognition to the Union when the Union was the majority representative , I do not find that any attempts made by Davis by means of increased wages or bonuses to bring the strikers back to work, constituted an unfair labor practice. The strike at its inception was an unfair labor practice strike and remained so until Roth was offered reemployment. Thereafter, its character changed to economic. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , it will be recommended that it cease and desist therefrom and take certain affirmative action which I find will effectuate the policies of the Act. 21 credit the testimony of Davis andofa less interested witness, Stinson , in this connection. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the strike, since the offer of reemployment to Olga Roth on December 11, has not been one prolonged by unfair labor practices, the participants, to the extent that they have not been replaced, remain employees of the Respondent and upon unconditional application must be returned to the jobs remaining open for them. Roth has the same rights in this connection as the other strikers. Respondent, having offered her reemployment, is not now required to repeat that action. It will be recommended, however, that Respondent make Roth whole for any loss of pay suffered by her from December 6 through 11 by payment to her of whatever sum she would have earned as wages for those days, less her net earnings if any during that period. It is apparent from the entire record that there is danger of the commission in the future by the Respondent of other unfair labor practices proscribed by the Act. In order to make effective the interdependent guarantees of Section 7 and to effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights of employees guaranteed in Section 7. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Leather Workers Union of Los Angeles, Loca1213 of International Fur and Leather Work- ers Union, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interrogating employees and threatening them with reprisals for engaging in union activities or joining the Union, thereby interfering with, restraining, and coercing them in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discharging Olga Roth on December 6, 1951, to discourage membership in a labor organization, Respondent has violated Section 8 (a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not refused to bargain with the Union in violation of Section 8 (a) (5) of the Act. [Recommendations omitted from publication.] JERSEY COAST NEWS COMPANY, INC. and RALPH RUG- GIERO. Case No. 4-CA- 651. June 8, 1953 DECISION AND ORDER On March 2, 1953, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in ana was engaging in certain unfair labor practices in violation of the Act, and recommend- ing that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the 1 The Respondent's request for oral argument is hereby denied, as the record, in our opinion, adequately reflects the issues and positions of the parties. 105 NLRB No. 45.