Monroe Feed Store

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scription of the Peerless Plywood rule.4 We shall therefore set aside the results of the August 12, 1954, election and direct a new election. [The Board set aside the election of August 12,1954.] [Text of Second Direction of Election omitted from publication.] MEMBER PETERSON took no part in the consideration of the above Supplemental Decision, Order, and Second Direction of Election. See, Texas City Chentacais, Inc, 109 NLRB 115. MONROE FEED STORE and AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL 61, AFL. Case No. 36-CA-434. October 29,195/. Decision and Order On April 26, 1954, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent also requested oral argument. This request is denied as the record and brief, in our opinion, adequately present the issues and the posi- tions of the parties. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' We find that the Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Monroe Feed Store, 1 We note and correct the finding in the Intermediate Report that Manager Giesy inter- rogated employee Jones concerning union activity in violation of Section 8 (a) (1), as there is no evidence in the record of such interrogation Accordingly, this portion of the Intermediate Report is not adopted. 110 NLRB No. 101. MONROE FEED STORE 631 Monroe and Corvallis, Oregon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively, upon request, with American Federation of Grain Millers, Local 61, AFL, as the exclusive repre- sentative of all employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) Interrogating employees concerning their membership in, or activities on behalf of, American Federation of Grain Millers, Local 61, AFL, or any other labor organization, in a manner constituting interference, restraint, or coercion, in violation of Section 8 (a) (1) of the Act; interfering with, restraining, or coercing its employees by means of discharge, threats, or unilaterally granting of benefits, or in any other manner in the exercise of the right to self-organiza- tion, through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to all its employees who were discharged on October 30, 1953, except those who have since been rehired, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges. (b) Make all such employees whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of earnings they may have suffered by reason of the Respondent's discrimination against them during the period from October 30, 1953, to the date of rehire or offer of reinstatement. ' (c) Upon request, bargain with American Federation of Grain Millers, Local 61, AFL, as the exclusive representative of the Re- spondent's employees in the appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement. (d) Upon request, make available to the Board or its agents for examination and copying all payroll records, social-security payments, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of back pay due. (e) Post at its operations in Monroe and Corvallis, Oregon, copies of the notice attached hereto and marked "Appendix." 2 Copies of 2 In 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." 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such notice, to be furnished by the Regional Director for the Nine- teenth Region, shall, after being duly signed by the Respondent's au- thorized representative , be posted by the Respondent immediately upon the receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, what steps it 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 National Labor Relations Act, as amended , we hereby notify you that : WE WILL bargain collectively upon request with American Fed- eration of Grain Millers, Local 61, AFL, with respect to rates of pay, wages, hours of employment , and other conditions of employ- ment, and if an understanding is reached we will embody such understanding in a signed agreement . The bargaining unit is: All employees, excluding office, clerical , and supervisory em- ployees as defined in the Act. WE WILL offer immediate and full reinstatement to all of those discharged on October 30, 1953, who have not since been reem- ployed, and make each of them whole for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT interrogate employees concerning their member- ship in, or activities on behalf of, American Federation of Grain Millers, Local 61, AFL, or any other labor organization, in a manner constituting interference , restraint, or coercion in viola- tion of Section 8 (a) (1) of the Act, or unilaterally change wages, or threaten or discharge employees, or in any other manner inter- fere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist American Federation of Grain Millers, Local 61, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and 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 MONROE FEED STORE 633 condition of employment as authorized in Section 8 (a) (3) of the Act. MONROE FEED STORE, 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 Upon a charge duly filed by American Federation of Grain Millers , Local 61, AFL, herein called the Union, alleging that Monroe Feed Store, herein called the Respondent, has committed violations of the National Labor Relations Act, 61 Stat. 136, herein called the Act, the General Counsel of the National Labor Relations Board issued a complaint dated February 1, 1954, against the Respondent. In respect to unfair labor practices the complaint alleges that the Respondent has since November 2, 1953, refused , unlawfully, to bargain with the Union, the majority representative of Respondent 's employees in an appropriate unit, and since October 30, 1953, has interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act by threats of reprisal or promise of benefits , and by terminating the employment of nearly all workers. Respondent's answer denies the allegations of the complaint. Pursuant to notice the hearing was held before the duly designated Trial Exam- iner in Corvallis, Oregon, on March 9 and 10 , 1954. All parties were represented by counsel and were permitted to examine and cross -examine witnesses and to in- troduce evidence pertinent to the issues. Following the close of the hearing briefs have been submitted by counsel for the Union and counsel for the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Monroe Feed Store is a corporation engaged at Monroe and Corvallis in the State of Oregon in buying, processing, and selling feed , grains, fertilizer, and seed. During the 12-month period preceding the hearing , Respondent purchased raw ma- terials having a value of approximately $ 1,000,000. During the same period sales of grains , peas, seed, feed, and fertilizer exceeded $ 1,000,000 in value. Seed acounts for about 15 percent of the dollar volume of sales , and about 90 percent of the seed processed is sold to, and shipped for the account of, E. F. Burlingham & Sons to various points in the United States. About 41 percent of such sales is represented by shipments directly to points outside the State of Oregon . During the past 12 months the value of such shipments to points outside the State of Oregon was between $55,000 and $83,000. During the same period Respondent's purchases of fertilizer amounted to approximately $ 100,000, all of which originated outside the State of Oregon. The Respondent also makes sales to Kerr Gifford Company and Archer-Daniels Midland Company, both of whom maintain offices in Portland , Oregon, and who resell the same commodities in Oregon as well as in other States. H. THE LABOR ORGANIZATION INVOLVED American Federation of Grain Millers, Local 61 , AFL, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES Wayne Giesy, one of Respondent's stockholders and directors as well as the manager of its operations in Monroe and Corvallis , has his office in Monroe but throughout the period of interest here frequently visited for managerial purposes the operation in Corvallis. During 1953 David Crockett was Respondent's assist- ant manager in charge of the Corvallis operation. On October 28, 1953, Crockett told Giesy, the latter testified, that he had been informed of a union meeting 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Respondent's employees at the home of one of them, Webster Sams . Crockett went on to say, according to Giesy, that he had questioned Sams about the matter and had been assured that the meeting did not concern a union. According to Giesy he then dismissed the matter from his mind, assuming and believing that the meeting was no more than a social gathering. At the close of business on October 30 Giesy discharged all of the employees at Monroe except for his father and the bookkeeper . Crockett under Giesy's direction did the same at Corvallis. Giesy told the employees at the time of their dismissal that the action was necessi- tated by operating losses. There had been a meeting of employees at the home of Sams on the evening of October 27 and it did concern the Union . At that meeting or the next day 12 of • the 13 workers in the 2 operations signed designations authorizing the Union to represent them. Frank Harrington, one of the employees , testified credibly and without contradiction that on October 30 he told Respondent 's foreman at Monroe, Claude Turner, that all the employees had signed union cards. Early on the after- noon of October 30 , according to another employee, Kenneth Mumford, Giesy asked who was at the October 27 meeting. Mumford answered that he was and that all had signed union cards . Giesy then asked, "Is that what the men want?" Mumford replied , "I guess so" and the conversation ended. On November 2, A. L. Stevens and Claude Shaffer called upon Giesy , represented that they were authorized by a majority of Respondent 's employees to negotiate a contract, and requested a meeting for that purpose. Giesy said that he had no employees and that therefore there was "no problem ." Also on November 2 Tom Cook, who had been discharged on the previous Friday and who had on October 27 signed a union designation card, was rehired by Giesy. According to Cook's undenied and credited testimony, Giesy asked on November 2 what Cook thought about the Union. Cook answered that he "didn 't think too much about it right at the time." Cook has remained in Respondent's employ. On various dates there- after up to the time of the hearing, of those who were discharged on October 30, Jess Howe and Ralph Jones were rehired at Corvallis and Floyd Cantrell, Jr., Ellis Conn, and Frank and Don Harrington at Monroe. Conn and the two Harringtons were later discharged in circumstances which the General Counsel does not allege to have been discriminatory .' Sometime in early March 1954 Claude Turner, Respondent's foreman at Monroe, whose employment had not been interrupted by the discharges , was demoted and sent to Corvallis as an ordi- nary workman . The Respondent appears now to have the same number of employees as on October 30. In early March the Respondent filed a petition with the Board seeking an election to determine the bargaining representative of its employees. The unit described in the petition is "All regular production, maintenance, warehouse, and clerical employees, excluding managerial employees ." This is in substance the same unit set forth in the complaint as appropriate . It appears to be comprised of mill workers whose working conditions and interests are similar and, considering further the substantial agreement of the parties, I find that a unit composed of all employees employed by the Respondent exclusive of office, clerical, and supervisory employees , as defined in the Act, now constitutes and at all times material herein has constituted a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. On October 30, 1953, as evidenced by the testimony of the individual employees, 12 of the 13 in the appropriate unit had then designated the Union as their bar- gaining representative . I find, therefore , that on October 30 , 1953, and at all times material since, the Union has been and is the exclusive. collective bargaining representative of a majority of Respondent 's employees in the appropriate unit within the meaning of Section 9 (a) of the Act. It is the theory of the General Counsel that Giesy, learning that his employees had had a meeting for the purpose of organizing themselves into a union, decided to move quickly to terminate the progress of that development and because of the threat of organization terminated all of his mill workers on October 30. The Respondent insists that no such motivation came into play, that the Respondent on October 30 did not entertain a belief that its employees were members of a union or about to become so ; and that the discharges resulted solely and exclu- sively from the asserted fact that continued operation under the then conditions was causing intolerable losses. To support his theory the General Counsel offered first the testimony of Giesy that he had never favored unions and preferred not to have one in his plant and 11 have not therefore discussed in this report the validity of the reasons advanced for discharges occurring after October 30, 1953. MONROE FEED STORE 635 that Foreman Rudisell and Assistant Manager Crockett at Corvallis were aware of his disposition in that connection . Employee Alec Johnson testified credibly and without contradiction that about mid-September 1953, while discussing unions with Foreman Turner , the latter said that if Giesy discovered that the employees had joined a union he would fire every one of them . Employee Frank Harrington testified credibly and without contradiction that on October 30 Foreman Turner told Harrington of overhearing a conversation between Crockett and Giesy to the effect that someone was trying to get a union in the mill. When Harrington asked Turner what he supposed would happen, Turner answered , "Well, Wayne will just find out who started it and he'll fire him. That's what happened the other time." Frank Harrington and Don Harrington testified that in February 1954 during the course of a somewhat heated discussion with Giesy the latter said "Before I go union, I'll shoot myself between the eyes." Turner was not called as a witness although still in Respondent 's employ at the time of the hearing. Giesy denied that there was ever an occasion when he dis- charged anyone for starting a union and disputed the testimony of the Harringtons that he had ever threatened to shoot himself in the event of union organization. What emerges from this testimony however on the point of Giesy's reaction to a threat of organization is that he viewed such a possibility with displeasure. Of course no employer is required to put out the welcome mat for a union and in cer- tain situations is required by the Act to refrain from encouraging his employees in this connection. The testimony as to Giesy's feeling in the matter was received only for the purpose of illuminating the motivation attending the discharges of October 30. Although the Respondent 's volume of business in the past 2 years has been sub- stantial , its profits have been little more than nominal. According to Giesy's cred- ited testimony , at the end of the fiscal year, May 31 , 1953, a decision was reached to take periodic inventories throughout the ensuing year to determine the Respond- ent's profit and loss position so that necessary changes in operations could be made quickly. Because of the busy summer season the first inventory was taken at the close of business on September 30 and the result sent to an auditor in the nearby town of Forest Grove. There followed , according to Giesy, a number of telephone calls from Robert Loomis, the auditor or accountant , advising Giesy piecemeal of Respondent's financial and economic position as revealed by the inventory. Loomis testified that he last spoke to Giesy in the matter 10 days or 2 weeks prior to October 30. On October 30, according to Giesy, he received from the accountant a profit-and-loss statement indicating a loss from June 1 through September 30 of approximately , $30,000. On the same day, still according to Giesy, in a tele- phone conversation with someone connected with E. F. Burlingham & Sons, a cor- poration controlling a substantial stockholding in the Respondent , he was told that some decisive action to avoid the continuation of this unprofitable operation must be taken. The means of accomplishing the curtailment of the loss was left to Giesy's discretion . Giesy could not recall in his testimony the identity of the person giving this instruction . Giesy testified in effect that he knew he must act and act quickly but, being unsure just what steps would provide a solution for the problem, decided to discharge all his employees and to spend the weekend in a study of the operations to determine finally what must be done . Due only to the revelations in the profit-and-loss statement, which Giesy insisted he saw for the first time on October 30 , did the discharges result. By November 2, still accord- ing to Giesy, he had decided to operate a feed mixer and hired Cook for that purpose. Thereafter he hired employees to operate trucks and for general mill- work. Since October 30, according to Giesy, the emphasis in the operations has shifted to grain and feed and away from seeds. During the course of restaffing the operations with old employees and new, wages were raised from the preexisting rate of $1 .20 per hour to $1.50, but the general practice of all employees working from 50 to 60 hours a week was discontinued. Truckdrivers still work the longer hours but with the new pay rate are not paid premium overtime for hours over 40. Giesy denied that Mumford made mention of a union on October 30 testifying that Mumford merely said , unsolicited, that some of the employees had met at the home of one of them. The bookkeeper, June Urbach , testified to the same effect. In December, Ray Joyner spoke to Giesy about returning to work and in the dis- cussion which followed became sufficiently angry to invite Giesy to fight him. Be- cause of the nature of this altercation , Giesy testified, he does not consider Joyner to be reemployable . According to Giesy the business now being carried on cannot profitably use the services of Floyd Cantrell, Sr., although Cantrell before October 30 had worked about 8 years for the Respondent . Giesy characterized the work of Sams as unsatisfactory although Respondent 's evidence is that Sams was never 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seriously criticized for any shortcoming before his discharge and was terminated on October 30 for economic reasons along with the others. Principally because, based upon observation among other criteria, I do not regard Giesy as a credible witness and therefore do not accept his explanation that the ter- minations on October 30 were necessitated and sprang from economic considerations, I am persuaded that the evidence 2 of the General Counsel tending to show that fear of union organization dictated Respondent's action at that time, establishes the discharges then occurring as discriminatory. I do not credit Giesy's testimony that he first saw the profit-and-loss statement on October 30. The statement in evidence is a simple one and the only information on it which is significant in respect to the discharges is the showing of a substantial loss. Giesy testified that on a number of occasions during the month of October, after the submission of the inventory data to the auditor, he was informed by the latter of developments in the preparation of the profit-and-loss statement tending to indicate that the operation to the end of Sep- tember was unprofitable. No such conclusion could have been reached as I read the statement until all of the factors affecting the profitability of Respondent's business had been calculated and appraised in relation to each other. Any information com- ing to Giesy from the auditor in respect to any single item on the profit-and-loss statement would seem to be without particular meaning until related to the complete information as to receipts, disubursements, and inventory. My conclusion is that Giesy knew of the profit situation sometime before October 30. I do not credit Giesy's uncorroborated testimony that someone in authority over him directed that some drastic action be taken on October 30. It is suggested in the record, although not specifically argued, that because Respondent's business is to some extent seasonal in nature terminations and layoffs are to be expected in the fall of the year. This appears to be true, but by October 30 the Respondent had trimmed its crew of tem- porary workers and apparently had work for all those who remained. Alec John- son, who was hired in July or August 1953, testified credibly and without contra- diction that in late October his foreman, Claude Turner, said that he would be kept on to work as a permanent employee. Jess Howe, who was hired at about the same time, testified that about 2 weeks before October 30 Assistant Manager Crockett told him he would be kept on permanently and that Giesy, who did not deny this assur- ance in his testimony, a few days later affirmed Crockett's statement. It is argued in behalf of the Respondent, based upon Giesy's testimony, that in restaffing the operations Giesy selected from his former employees those whose ability and ex- perience qualified them to do the work which he had available and that he hired new workers based upon the same considerations. I find, however, that the evidence does not establish that any particular skill is required to fill the jobs held by those who were discharged on October 30. The most exacting work was done by the seed cleaners and it appears to be true that following October 30 less seed cleaning was done than before. However, Sams, for example, had worked many years in operations similar to that of Respondent and there is no reason to believe that his services could not have been used by the Respondent in work other than seed cleaning. I credit the testimony of the two Harringtons, and thus discredit that of Giesy, that the latter in February 1954 said that he would shoot himself before permitting the Union to get in to the mills. Of course I do not believe that Giesy intended his statement to be accepted literally, but I am convinced and find that Giesy was strongly and un- alterably opposed to the unionization of his working force, and I am convinced and find that the terminations on October 30 sprang directly from this determination. It is true that subsequent to October 30 for a period of months Respondent's oper- ations were on a considerably lesser scale than before. This of course suggests that the Respondent had a need for fewer employees after that date than before and that in any event some individuals would have found their employment terminated on a date somewhere near October 30. While this consideration in another factual setting might lead to such a conclusion, I am persuaded by a consideration of all 2 Witnesses for the General Counsel, I am convinced are entitled to credit No factor other than the testimony of Giesy tends to cast doubt upon the accuracy of their testi- mony. I consider it significant that Foreman Turner was not called to the stand to tes- tify concerning statements attributed to him and conclude that he would not have en- tered a denial. Although by no means dispositive of the question of credibility of Sams and others who were employed at Corvallis, were any of them disposed to color or contrive evidence, an opportunity which existed after the death of Crockett. However the only incident involving Crockett which tends to support the allegations of the complaint came in first in the testimony of Giesy when he related that Crockett had questioned an em- ployee (Sams) about the meeting of October 27. MONROE FEED STORE 637 evidence concerning Giesy's opposition to the Union that the failure to restaff the mills immediately after the discharges was but part of the entire plan to defeat the employees' desire for representation. Had Giesy immediately hired a number of workers equivalent to those he had discharged the motivation for the discharges would have been too apparent. If the Respondent suffered additional losses by fail- ure to operate at normal capacity for a period following October 30, I believe that it did so as part of a deliberate design to accomplish its principal aim. The general wage increases made effective after October 30 were, I find, but another implementation of Respondent's design. Such benefits tend to depreciate the value of self-organization and here were given with that aun in view. Of course the wage changes were in derogation of the right of employees to bargain through the Union in such matters. The altercation between Ray Joyner and Giesy in late December, culminating in Joyner's offer to engage in a fight, evidences conduct on the part of Joyner which I do not condone. I am aware, however, that this unpleasant occurrence took place in a setting where Joyner justifiably believed that he was being discriminatorily de- prived of his job. That his restraint was unequal to the stress upon it at this time does not in my opinion disqualify him for further employment with the Respondent. Giesy had created, unlawfully, the situation which explained Joyner's outburst. I do not believe that Joyner should be penalized for it. As the motivation for the discharges was to destroy the movement toward organ- ization and, as the Union was and is the exclusive bargaining representative of Re- spondent's employees in an appropriate unit, I find that by refusing to negotiate with the union representatives on November 2, the Respondent violated Section 8 (a) (5) of the Act. I find then that by the statements of Foreman Turner that the Respondent would discharge anyone responsible for starting a union, by Giesy's interrogation of Mum- ford and of Jones concerning union activity, by Giesy's threat of self-destruction before permitting a union to enter a plant, by the wage increases and the refusal to bargain, and by the discharges of October 30, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act and thereby violated Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of the Respondent described in section I, above, occurring in con- nection with its conduct occurring in section III, 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 be ordered to cease and desist therefrom and take certain affirmative action which I find necessary to effectuate the policies and pur- poses of the Act. As the Respondent has unlawfully refused to bargain with the Union, the majority representative of its employees in an appropriate unit, it will be recommended that it be ordered to do so upon request of the Union. Having found that the discharges of October 30 were discriminatorily motivated and amounted to interference, restraint, and coercion of rights guaranteed to employees in Section 7 of the Act, it will be recommended that Respondent, to the extent that it has not done so, offer to each employee discharged on that date immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss of earnings suffered as the result of the discrimination against him from the October 30 date until the date he has been taken back on Respondent's payroll or is offered such opportunity. As the complaint does not allege and the evidence does not establish that the discharge of Conn in February and the 2 Harringtons in March were in any respect in violation of the Act, reinstatement for these 3 will not be recommended. Consistent with the policy of the Board enunciated in F. W. Woolworth Com- pany, 90 NLRB 289, it will be recommended that loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the back-pay period. Quarterly periods shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which those discharged on October 30 would normally have earned for each quarter or portion thereof until the date of rehire or offer of reinstatement the net earnings of each during those periods. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. American Federation of Grain Millers , Local 61, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All employees, exclusive of office, clerical , and supervisory employees, as defined in the Act, constitute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. 3. American Federation of Grain Millers , Local 61, AFL, at all times material herein has been and now is the exclusive representative of all employees of the Respondent in the unit aforesaid for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By unilaterally making wage increases and by refusing to bargain with the above-named Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such conduct, by interrogation and threats addressed to employees, and by discharging its employees on October 30, 1953, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, INC., INSULATION CONTRACTORS OF SOUTHERN CALIFORNIA, AND PLANT INSULATION COMPANY and MAXIE BEARDON LOCAL 5 OF THE INTERNATIONAL ASSOCIATION OF HEAT AND FROST IN- SULATORS AND ASBESTOS WORKERS, AFL, AND ITS AGENT ALBERT E. HUTCHINSON and MAXIE BEARDON. Cases Nos. 21-CA-1729 and 21-CB-495. October 29,1954 Decision and Order On March 10, 1954, Trial Examiner Wallace E. Royster issued an Intermediate Report in the above-entitled proceeding, finding that the Respondent Company had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from 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 Associations and the Respondent Union had not engaged in unfair labor practices and recommended that the complaint be dismissed as to these Respondents. Thereafter, the Respondent Company and the General Counsel filed exceptions to the Intermediate Report, and briefs in support thereof. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations. 110 NLRB No. 105.