The Jefferson Co., Inc.

THE JEFFERSON COMPANY, INC . 757 Appendix A NOTICE TO ALL MEMBERS OF LOCAL No. 391 AND LOCAL No. 71, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that: WE WILL NOT induce or encourage the employees of any employer other than Thurston Motor Lines, Inc., to engage in a strike or concerted refusal in the course of their employment to perform any services for their employers, where an object thereof is to force or require any employer or person to cease doing business with Thurston Motor Lines, Inc. or any other person. LOCAL No. 391, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL, Labor Organization. Dated ---------------- By---------------------------------------------- (Representative ) (Title) LOCAL UNION No. 71, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Labor Organization. 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. THE JEFFERSON COMPANY, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 349, AFL. Case No. 10-CA- 1469. November 4,1954 Decision and Order On August 21, 1953, the Board issued its proposed findings of fact, proposed conclusions of law, and proposed order in the above-entitled proceeding, a copy of which is attached hereto. Thereafter, the Re- spondent filed exceptions thereto and a supporting brief. The Board has considered the proposed findings of fact, proposed conclusions of law, and proposed order, the exceptions and brief filed by the Respond- ent, and the entire record in the case, and hereby adopts as its De- cision and Order herein the said proposed findings of fact, proposed conclusions of law, and proposed order, with the following additions and modifications. 1. Respondent does not dispute the commerce facts detailed in the proposed findings, but excepts to the conclusion that it is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction. In this respect, Respond- ent challenges not only the jurisdiction of the Board but also the wisdom of asserting jurisdiction on the basis of indirect inflow. Simi- 110 NLRB No. 113. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lar arguments advanced in support of the contention that the Board is without jurisdiction over the Respondent have been considered and rejected by the Board and the courts.' However, during the pendency of this case, the Board adopted new jurisdictional standards which are here applicable. In this connection the Board has secured from the parties a stipulation completed Sep- tember 3, 1954, which is hereby made a part of this record. The stipulation shows that during the fiscal year ending October 31, 1952, of the Respondent's total purchases in excess of $3,000,000 of goods originating from manufacturers outside the State of Florida, $2,900,000 represents the value of merchandise shipped to local dis- tributors within the State of Florida and resold by them to Respond- ent, and the remainder represents goods purchased directly from out- of-State manufacturers. The stipulation further shows that for the 12-month period ending June 30, 1954, substantially the same dollar values and circumstances obtain. In our recent decision in Hogue and Knott Supermarkets 2 we stated that we would not assert jurisdiction over a retail establishment unless it has direct out-of-State purchases of at least $1,000,000 per annum, or indirect out-of-State purchases of at least $2,000,000 per annum, or direct out-of-State sales of at least $100,000 per annum. Inasmuch as the indirect out-of-State purchases of the Respondent satisfy the minimum standards now required, we find it will effectuate the policies of the Act to assert jurisdiction. 2. In its exceptions, the Respondent argues that the Board should not adopt the proposed conclusions that Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1), (3), and (5) of the Act, for the reason that there is no substantial evidence to sup- port those conclusions. Respondent's position appears to be based primarily upon the assumption that unfair labor practice findings must be established entirely from the testimony of those witnesses called by the General Counsel whom the Respondent regards as adverse to its position.' As the Board is concerned with ascertaining the facts as produced by all creditable testimony and evidence, it is immaterial who initiated the production of the testimony adduced. A review of all the testimony amply establishes the sufficiency of the evidence to sup- port the proposed findings and conclusions. Accordingly, we find no merit to this contention. I See J. L. Brandeis & Sons v N L R B , 142 F. 2d 977, 979-980 (C. A. 8) ; Polish National Alliance v N. L. R B., 135 F. 2d 175, 179-180 (C. A. 7), N. L. R. B. v. Brad- ford Dyeing Assn, 310 U. S. 318, 326; N. L. R. B. v. Virginia Blectric & Power Co., 314 U. S. 469, 476. 2 Hogue and Knott Supermarkets, 110 NLRB 543 . Although Members Murdock and Peterson dissented in that case they now deem themselves bound thereby. 3 In this respect, Respondent apparently regards its officers and supervisors , called by the General Counsel, as its witnesses . It is the testimony of these witnesses which mainly form the basis for the proposed findings. THE JEFFERSON COMPANY, INC. 759 3. In finding that Respondent violated 8 (a) (3), we do not intend thereby to imply that the posting of the "no vote" notice on the day of Fredericks' discharge, in and of itself, constituted illegal conduct. However, it does confirm the motivating cause for the discharge. Re- spondent's service manager, who discharged Fredericks, testified that of all the various reasons given by Respondent for the discharge "there was no good reason why I discharged him on that particular Mon- day." As pointed out in the proposed findings, Fredericks' leader- ship and steadfast union adherence, in spite of Respondent's repressive acts of interference, were well known to the Respondent and repre- sented an ever-present danger of successful union organization. The inquiries by employees for permission to go to the union hall, which brought about the posting of the notice, likewise brought to the fore the existence of continued interest on the part of the employees in the Union. It was the revival of this employee interest in union activity which the Respondent sought to "nip in the bud" through the immedi- ate discharge of the most active union leader. • 4. Respondent urges that the Board's proposed order to bargain is impossible to enforce because Service Corporation of America has taken over all service work of the Respondent and Respondent does not control the labor policy of that company. The Board, in a separate proceeding,4 found, on evidence presented therein, that the Respondent herein had divested itself of the opera- tion involved in this proceeding. From the record in that case, it ap- pears that in November 1952, at approximately the same time the hearing in the instant case was proceeding, Respondent was instru- mental in the formation of Service Corporation of America; that Respondent owns 40 percent of the outstanding stock of Service; that the remainder of the stock does not appear to be owned or controlled by Respondent or by any of its officers or directors; that there are no common officers or directors in the two corporations; that Service hired substantially all the employees in Respondent's former service department; that Service contracted to perform all of Respondent's servicing requirements which comprise 65 or 70 percent of Service's business; that both corporations are located at the same address, Serv- ice having subleased building space from Respondent; that each cor- poration exercises full control over the employment conditions of its respective employees, including separate supervision; that there is no interchange of employees between the two corporations; and that there is no showing that Respondent controls the labor relations poli- cies of Service. On the basis of such evidence, the Board there found that the two corporations were separate employers under the Act. 4 Jefferson Co, Inc, and Service Corporation of America, 105 NLRB 202 . The Board hereby takes judicial notice of the record of that proceeding. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It would appear from the foregoing that Service Corporation of America is the successor of Respondent with respect to the operations involved in the instant proceeding. Although, at the time the pro- posed order was issued, a successor was deemed liable to remedy the unfair labor practices of its predecessor, the Board has since reexam- ined this principle and has determined that it is the responsibility of the respondent who engaged therein, and not that of its successor, to remedy the unfair labor practices.' In conformity with this finding, we shall modify the proposed remedy and order so as to to obtain the maximum possible compliance from the Respondent herein. THE REMEDY Having found that Respondent is alone responsible for remedying its violations of Section 8 (a) (1), (3), and (5) of the Act, we will order that it cease and desist from such unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. With regard to the refusal of Respondent to bargain with the Union in good faith, we will require, as in our proposed order, that Respond- ent, upon request, bargain collectively with the Union as the repre- sentative of the employees of its television service department, but only if and when Respondent may resume the management of that operation.6 With regard to Respondent's duty to reinstate the employee in the television service department found to have been discriminated against, we will treat that operation as part of Respondent's entire operations, and require it to offer reinstatement to such employee in his former position if now operated or controlled by Respondent; other- wise, to offer him reinstatement in a substantially equivalent position in its other operations. If there is no substantially equivalent posi- tion immediately available, this employee shall be placed upon a pref- erential hiring list, and shall be offered reemployment in a position substantially equivalent to his former position as such employment becomes available at any of Respondent's operations before other persons are hired for such work.7 We will require the Respondent to make whole the employee dis- criminated against for any loss of pay he may have suffered by rea- son of such discrimination, by paying to him an amount equal to that which he normally would have earned as wages from the date of the discrimination against him to the date of the Respondent's compli- ance with the reinstatement provisions of our order herein, less any 5 See Symns Grocer Co., et al , 109 NLRB 346. V See footnote 5, supra. 7 See Symns Grocer Co , et at , footnote 5, supra THE JEFFERSON COMPANY, INC. 761 net earnings 8 in other employment during said period. Such compu- tation shall be made on a quarterly basis, in accordance with the rule announced in F. W. Woolworth Company, 90 NLRB 289. However, as we are now modifying the remedy set forth by the Board in the pro- posed decision herein,9 we will exclude, in computing back pay, the period beginning with the date of issuance of said proposed decision and ending 5 days after the date of issuance of this Decision and Order. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, The Jefferson Company, Inc., its agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Brother- hood of Electrical Workers, Local Union 349, AFL, as the exclusive representative of the employees in the following appropriate unit with respect to wages, hours, or other conditions of employment: 11 All tele- vision service department employees working in and out of Respond- ent's warehouse, Miami, Florida, including radio and television tech- nicians and apprentices, stock clerks, and the cabinet worker, but ex- cluding all supervisors as defined in the Act. (b) Discouraging membership in International Brotherhood of Electrical Workers, Local Union 349, AFL, or in any other labor or- ganization of its employees, by discriminatorily discharging 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 em- ployment, or any term or condition of employment. (c) Interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, by bar- gaining unilaterally with employees while ignoring the exclusive bar- gaining representative; granting changes in working hours and wage increases; soliciting, requesting, and assisting employees to abandon or withdraw authorization given to the Union or to abandon or with- draw from membership in or activities on behalf of the Union; keeping 8 See Crossett Lumber Company, 8 NLRB 440 , Republic Steel Corp . v. N. L R. B., 311 U. S 7 9 The Board's proposed decision and order required , that Respondent offer to reinstate the discriminatee "to his former or substantially equivalent position." This might reason- ably have been construed to mean that an offer of reinstatement to his position in the television service department would alone meet this requirement. As Respondent had divested itself of this operation , its successor, alone, and not Respondent , was in a position to comply with this provision , so construed Accordingly, it would be inequitable, in our opinion, to assess back pay against Respondent for the period during which it failed to comply with the foregoing proposed order, 10 The provisions of paragraphs numbered 1 (a) and 2 ( a) of this Order apply only insofar as Respondent may retain or reacquire control of, or create , a similar service operation. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union meetings under surveillance; threatening employees with re- prisals; and promising benefits for relinquishment of membership or activity in the Union. (d) In any other manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist, International Brother- hood of Electrical Workers, Local Union 349, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted 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 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 the International Brotherhood of Electrical Workers, Local Union 349, AFL, as the exclusive representative of the employees in the above-described unit, with respect to rates of pay, hours of employment, and other condi- tions of employment, and if an understanding is reached, embody such understanding in a signed agreement." (b) Offer to Walter A. Fredericks immediate and full reinstate- ment to his former or substantially equivalent position, without prej- udice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of its dis- crimination against him as and in the manner provided in the section of this Decision and Order entitled "The Remedy." (c) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll rec- ords, social-security payment records, timecards, personnel records and reports, and all other records necessary for a determination of the amounts of back pay due under the terms of this Order. (d) Post at its stores and warehouse in Miami, Florida, copies of the notice attached hereto marked "Appendix A." i2 Copies of such notice, to be furnished by the Regional Director for the Tenth Re- gion, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in conspicu- ous places, including all places where notices to employees custom- arily are posted. Reasonable steps shall be taken by Respondent to 11 See footnote 10, supra. 12 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." THE JEFFERSON COMPANY, INC. 763 insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writ- ing, within ten (10) days from the date of this Order, what steps Respondent has 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, we hereby notify our employees that : WE WILL bargain collectively upon request with International Brotherhood of Electrical Workers, Local Union 349, AFL, as the exclusive representative of all employees in the bargaining unit described herein, with respect to rates of pay, hours of employ- ment, and other conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit i s : ' All television service department employees working in and out of Respondent's warehouse, Miami, Florida, including radio and television technicians and apprentices, stock clerks, and the cabinet worker, but excluding all supervisors as defined in the Act. WE WILL NOT discourage membership in International Brother- hood of Electrical Workers, Local Union 349, AFL, or in any other labor organization of our employees by bargaining unilat- erally with our employees and ignoring the exclusive bargaining representative designated by our employees; by granting changes in working hours and wage increases; by soliciting, requesting, or assisting any of our employees to abandon or withdraw any au- thorization given to a labor organization to represent them or to abandon or withdraw from any membership in or activities in or on behalf of any labor organization; by keeping union meetings un- der surveillance; by threatening them with reprisals because of or seek by promise of benefit to induce their relinquishment of their union membership and activity; or by discriminating against any of our employees in regard to their hire and tenure of em- ployment or any term or condition of employment because of their membership in, or activity on behalf of such labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights of self -organ- 2 This provision will apply only if and when we resume television service operations. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, to en- gage in concerted activities for the purposes of collective bar- gaining 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 condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL offer Walter A. Fredericks immediate and full rein- statement to his former or substantially equivalent position, with- out prejudice to seniority or other rights, and privileges previously enjoyed, and make him whole for any loss of pay suffered as a re- sult of our discrimination against him. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union, orally other labor organization, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment against any em- ployee because of membership in or activity on behalf of any labor organization. TI-IE JEFFERSON COMPANY, INC., 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. Proposed Findings of Facts, Proposed Conclusions of Law, and Proposed Order STATEMENT OF THE CASE Upon charges filed by International representative, International Brotherhood of Electrical Workers, Local Union 349, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel,' and the Board respectively, through the Regional Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated June 19, 1952, against The Jefferson Company; Inc., herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), called the Act. Copies of the charge, together with the notice of hearing, were duly served upon the parties. With respect to the unfair labor practices, the complaint alleged in substance: (1) That at all times since about November 15, 1951, more particularly on Novem- ber 19, 1951, on or about December 12, 1951, on December 19, 1951, on or about December 29, 1951, on or about February 5. 1952, during the early part of February 1952, and on March 3, 1952, Respondent has refused to bargain with the Union in violation of Section 8 (a) (5) of the Act; (2) that on March 3, 1952, Respondent 'This term specifically includes the Counsel for the General Counsel appearing at the bearing THE JEFFERSON COMPANY, INC. 765 discharged and at all times since discharge failed and refused to reinstate Walter A. Fredericks, an employee at its warehouse, because of his membership in and activities on behalf of the Union in violation of Section 8 (a) (3) of the Act; and (3) by the foregoing and by various other actions specified in the complaint, Respondent from November 15, 1951, has interfered with, restrained, and coerced employees, in violation of Section 8 (a) (1) of the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying that it comes within the jurisdiction of the Act and denying the com- mission of any unfair labor practices. Pursuant to notice, a hearing was held in Miami, Florida, on November 18 and 19, 1952, before Peter F. Ward, a Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and Respondent were represented by counsel and the Union by two representatives. All parties were afforded equal opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. A brief has been received from Respondent. During the course of the hearing, the Trial Examiner made rulings on objections to the admission of evidence and on other matters. Trial Examiner Ward thereafter became physically disabled and the Board on February 11, 1953, acting pursuant to Section 102.36 of National Labor Relations Board Rules and Regulations, Series 6, as amended, issued an order that the case be transferred and continued before the Board; that no Trial Examiner's Intermediate Report be issued in the case; and that proposed findings of fact, proposed conclu- sions of law, and a proposed order be issued. Pursuant to said Rules and Regula- tions, any party may, within 20 days from the date of these proposed findings of facts, proposed conclusions, and proposed order, file exceptions with a supporting brief thereto. Should any party desire to argue orally before the Board, request therefor must be made in writing to the Board simultaneously with the statement of any exceptions filed. The Board 2 has reviewed the rulings of the Trial Examiner made during the course of the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record of the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Florida corporation engaged in the sale of major appliances, such as radios, television sets, refrigerators, washers, and ironers, in the State of Florida. It owns and operates four retail stores and a warehouse, all located in the metropoli- tan area of Miami, Florida During the fiscal year ending November 30, 1951, which period is representative of all times material herein, Respondent's gross sales amounted to more than $2,000,000 made principally through the four retail stores. During the same period, Respondent's total purchases of merchandise amounted to more than $1,500,000, which amount represents the value of materials shipped by out-of- State manufacturers from points outside the State of Florida to local distributors within the State of Florida and resold by them to the Respondent. Of this, an undetermined amount of merchandise is received by truckloads or rail carload lots directly from the manufacturer, although purchasing is made through the local distributor. The findings herein are based on the allegations of the complaint, Respondent's answer, the stipulation offered by Respondent on the record, and statements contained in Respondent's brief contesting the Board's jurisdiction over Respondent. The Board has concluded that a labor dispute at a retail establishment having an indirect inflow of as much as $1,000,000 annually would tend to have such a substantial effect on interstate commerce as to warrant assertion of jurisdiction on that basis alone in order to effectuate the policies of the Act.3 On the basis of all the facts cited above, we find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction .4 2 Pursuant to the provisions of Section 3 (b) of the Act the Board has delegated its powers in connection with this case to a three-member panel [Members Murdock, Styles, and Peterson]. See Dorn's House of Miracles, Inc, 91 NLRB 632 The Board has recently asserted jurisdiction over the Respondent upon the same basis, namely., an, indirect inflow in excess of $1,000,000. See Jefferson Co., Inc, and Service Corporation of America, 105 NLRB 202 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local Union 349, AFL, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The appropriate unit In addition to its retail stores, Respondent operates a warehouse located at 2140 N. W. 23rd Street, Miami, Florida. The Respondent maintains service for major appliances sold at its retail outlets by means of two service departments located at the warehouse. The white goods service department services major appliances such as washers and refrigerators and the television service department services radios and television sets. Each department is supervised by an assistant service manager under the service manager who reports directly to the secretary-treasurer and general manager of Respondent. Employed in the television service department are journey- men technicians, apprentice technicians, classes A, B, and C, two stock clerks, and a cabinet worker. The unit described in the complaint and asserted as appropriate by the General Counsel and the Union would include all employees in the television service depart- ment, excluding the supervisor. Although Respondent denied the appropriateness of the unit in its answer to the complaint, and in its letter to the Board dated February 23, 1952, with respect to the investigation of a representation proceeding,5 it did not at any time in its correspondence with the Union regarding the request to bargain, question the unit; 6 nor was any issue regarding the unit raised by Respondent in the hearings in this proceeding or in its brief. There is no history of collective bargain- ing for employees of Respondent, and Respondent has offered no evidence to con- trovert the appropriateness of the unit designated by the General Counsel and the Union. The record indicates that the television servicemen comprise a separate department of highly skilled employees. Under the circumstances, and upon the entire record in the case, we find that all television service department employees working in and out of Respondent's ware- house, Miami, Florida, including radio and television technicians and apprentices, stock clerks, and the cabinet worker, but excluding all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 7 B. Preliminary union activity; the majority status of the Union During the latter part of October 1951, employees in Respondent's television serv- ice department became interested in the feasibility of seeking union representation. During the last week of October, a television serviceman, Walter A. Fredericks, con- tacted the vice president of Local Union 349, International Brotherhood of Electrical Workers, and a representative of the Broadcast Technicians. From the latter he obtained authorization cards and, with the assistance of Charles J. Cook, another television serviceman, discussed union representation and distributed the union authorization cards among fellow television servicemen. The first union meeting was scheduled for and was held at the union hall on November 19, 1951. At this meeting, which included employees from several companies, the only employees of the Respondent present were Fredericks and one Mellanson. During the period be- tween November 13 and December 19, 1951, authorization cards were signed by employees and presented to the Union. During November 1951, and at all times material herein, Respondent estimated that it employed between 25 and 30 workers in the appropriate unit. On the basis of a possible maximum number of 33 em- 6 The parties stipulate that the Union on January 25, 1952, filed a petition with the Tenth Regional Office of the National Labor Relations Board for certification as repre- sentative of the employees involved herein-Case No. 10-RC-1771. On February 12, 1952, the Regional Director notified the Respondent of the filing of the petition and on March 14, 1952, the petition for representation was withdrawn without prejudice with the ap- proval of the Regional Director. e We find no material difference between the unit described in the Union's bargaining request (see section D, infra) and that set forth in the complaint as the latter does not affect the character of the unit but merely specifies inclusion of fringe classifications. 7 See The Dayton Company, 94 NLRB 840; General Electric Supply Corporation, 83 NLRB 1135. Also see Dorn's House of Miracles, Inc, 91 NLRB 632. Cf. Liberty Music Shops Inc., 93 NLRB 178; Television Company of Maryland, 101 NLRB 355. THE JEFFERSON COMPANY, INC. 767 ployees in the unit, the Union represented a clear majority on December 3, 1951 .3 Accordingly, we find that on December 3, 1951, and at such times thereafter as are material to these proceedings, the Union was and continued to be the only desig- nated collective-bargaining representative of a majority of the employees in the appropriate unit; that the Union, by virtue of Section 9 (a) of the Act, was and has been the exclusive representative of all employees in said unit. C. Interference, restraint, and coercion Respondent denied that it had any "concrete" knowledge of its employees' union activity until sometime early in December 1951, when two of its supervisors attended a union meeting. However, Service Manager Vohs testified that he knew of some talk of the men joining the Union and of some "dissension about the hours" before November 19, 1951; that he believed he learned about the Union particularly from Fredericks; and that he did not recall reporting the union discussions to General Manager and Secretary-Treasurer Mufson at that time but did talk to Mufson about making arrangements for a meeting with the television servicemen. Mufson testified that in November he heard a "vague" rumor about the Union; and that he told the men at the November 19, 1951, meeting that he had heard a "rumor" that some men had been overheard talking about unions From the foregoing, it is clear that Respondent had knowledge of the organiza- tional activities of its television servicemen before November 19, 1951. 1. Respondent's meetings with employees-the changing of working hours, promise and granting of wage increases, and threats of discontinuing the department Respondent called 2 meetings of the 25 or 30 television service department em- ployees. The first was held in the service area on November 19, 1951, beginning at 8:15 a. m. and lasting 15 or 20 minutes. The last was held in the office after work on December 19, 1951. Another meeting involving 4 or 5 of the television service- men was held at the home of Mufson during the afternoon of December 12, 1951. The service manager, Vohs, who was present at all meetings, gave the union activity of the employees as the reason for those meetings.9 The principal account of what occurred at the meetings was given by Mufson who conducted each of the meetings. According to Mufson, at the November 19, 1951, meeting, he advised the group that Mr. Vohs had discussed with him the hours of employment and had indicated that he and most of the men felt the hours were too long and should be shortened; that it was and would continue to be the policy of Respondent to have wages, hours, and other working conditions as good as prevailed in the industry in the area; that Respondent had looked into the question of hours and had found that they were too long; and that Respondent had decided to cut the weekly hours from 48 to 44 effective immediately. The change in hours was to be put into effect immediately without any corresponding change in weekly pay. Mufson indicated that following his an- nouncement of shorter hours, about 5 minutes of the meeting was devoted to ques- tions and answers on other subjects "including union activity," during which, as noted above, he told the group he had heard "rumors" that some men had been over- 8 All authorization cards were admitted in evidence excepting Exhibits Nos. 11-U and E, and the Trial Examiner reserved i uhng upon the admissibility of Exhibit No. 11-X. As these cards were not counted in the computation of the majority status of the Union, we deem it unnecessary to pass upon their admission in evidence It is not clear from the record whether Respondent included in the maximum of 30, the 3 employees in the fringe classifications included in the unit found appropriate herein. See footnote 6, supra. Therefore, assuming the unit described in the demand and that described in the complaint to be different in scope, and that the request could reason- ably have been construed (although no such contention is made) as relating to either of 2 units, neither of which is essentially inappropriate-see cases cited in footnote 7, supra-we have added the 3 to the maximum and computed the Union's majority on the basis of 33 employees See Smith Transfer Company, Inc., 100 NLRB 834. 'Vohs testified that • (1) Regarding the November 19, 1951, meeting, he discussed with Mufson making arrangements for the meeting "because at the time there was some talk among the men about joining the union and some dissension about the hours"; (2) re- garding the December 12, 1951, meeting, he advised Mufson that due to continued union activity, he thought it advisable for Mufson to speak to the television servicemen and express his views for or against the Union; and (3) as to the December 19, 1951, meeting, he wanted Mufson to talk to all the television servicemen along the lines of the discus- sion with the group at Mufson's home on December 12, 1951. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heard talking about unions. Mufson testified he told them he personally could not see where they would benefit from having a union in the shop but they were at liberty to act in any way they pleased. He further indicated that he told the group that Respondent was going to look into wages in the industry, if it found wages should be adjusted they would be adjusted to meet conditions in the industry, and that he would call another meeting at the earliest possible date. The only other testimony as to what occurred at the November 19 meeting was given by John Valero, assistant service department manager and immediate super- visor of the television service department, and by Television Serviceman Richard Matthiesen, witness for Respondent. Valero did not recall the discussion in detail but testified that if he told the General Counsel earlier that Serviceman Fredericks mentioned something about "union scale" at the meeting; this was probably correct. Matthiesen recalled that Mufson indicated Respondent would "pay about the same as the union-he said he could do what we wanted to do. He was willing to meet what the union pays and everything else." Mufson denied making such a statement, blaming the discrepancy on a possible misunderstanding of what he said. When, because of the continued union activity, Vohs contacted Mufson and ad- vised that Mufson express to the television servicemen his views for or against the Union, Mufson was absent from work due to illness. However, because he was recovering, he told Vohs "why don't you take a few of the fellows that seem to be interested [in the union] and bring them over and we will have a little talk." Vohs took four of the servicemen with him in his car to Mufson's home on the afternoon of December 12, 1951, during working hours. The four were Walter A. Fredericks and Charles J. Cook, the two most active union organizers, Charlie Crowe, and J. Gaskins. Cook testified that he had not indicated to anyone he wanted to go to Mufson's home or to talk to Mufson regarding the Union, but Vohs told him to go. The meeting lasted several hours during which Mufson invited the men to speak their minds and express their views frankly and openly. According to Vohs, Fred- ericks spoke up at the meeting and asked what job security the men would have. Fredericks testified that Mufson mentioned that he could not operate if the Union came in. Mufson testified that, among other things which he also expressed at the subsequent meeting, he told the men that the decision of whether or not they wanted to be represented by a union was theirs, but he did not see where they were going to be benefited through representation by a union-he thought in the long run they could get along very well and that their wages and working conditions would be as good if not better than the average in the industry "irrespective of any unions." Mufson further testified that he discussed "the difficulties of the service part of our business" and pointed out that "we had been operating at a loss . . . and were exerting a great deal of effort to try to put it on a sound basis." According to Cook, Mufson at the December 12 meeting, told the boys he would give them "union scale and everything that the union would give them" and did not like having a union in the shop because he had had a little trouble with the Union at "Vanderbilt up north," which Cook understood to be a tire company Mufson had operated. Mufson disputed only the use of the words "union scale," denying generally that he ever used this phrase. Cook, like Mufson, testified that the discussion at the December 19, 1951, meeting was along the same lines as that encompassed in the December 12, 1951, meeting with the small group at Mufson's home. In the discussion of December 19, 1951, Fredericks testified that Mufson said he would meet the union scale on January 1 and would give the same benefits for job security. Cook testified that Mufson said they would have the same wages that the Union would give and everything the Union would give. Mufson's version of his statements at the December 19, 1951, meeting may be summarized as follows: "At the outset" he told the men he had heard that there was union activity going on ; that he personally could not see where they would benefit from the Union, that he would like them to present their views frankly; and that they were at liberty to discuss their problems or feelings about the Union "right out in the open." Mufson detailed other portions of his own statements including his explanation to the men that the service operation was a rather shaky one; that for the past few accounting periods it had been shown to be operating at a sub- stantial loss ; that the service department of the business was merely an adjunct to the main function of Respondent ; that most of the large television companies throughout the country saw fit not to have their own service department but to farm out their service work to reliable outside service companies; that he personally would prefer not to do this if it could possibly be avoided, but it was his opinion that if the men were represented by a union that would probably result in an increased THE JEFFERSON COMPANY, INC. 769 cost of operation which certainly would not help develop a profitable service depart- ment and would probably result in continuing the losses in the operation.'° After an open discussion by the men regarding the Union, Mufson told them that, since the November meeting, Respondent had looked into the wage situation and was going to revise the wage scale on January 1, 1952, to bring it into line with the average wage paid in the television industry in the area. Applications were thereafter filed with the Wage Stabilization Board and, upon approval, wage increases were put into effect retroactively to January 1, 1952. Although Mufson claimed Vohs had indicated to him several months before the November 19, 1951, meeting that the television servicemen's hours were too long compared to the average in the industry, Respondent presented no testimony indicating that any action had been taken on this alleged recommendation prior to this meeting. However, Vohs did not indicate that, prior to the time he made arrangements for the meeting because of union talk and dissension about the hours, he was aware of or discussed with Mufson the length of the servicemen's hours. Whether or not Vohs and Mufson discussed the working hours 2 months before the meeting, it is not a matter of coincidence that the decision to grant an imme- diate change of hours was made, announced, and effectuated on November 19, 1951. Vohs' concern with the workweek was directly related by him to the employees' union talk. Consideration of the evidence clearly indicates that the decision to change, announce, and effectuate the change in working hours, was made after and as a result of the employees' organizational activities for the purpose of discouraging such activity." From the testimony of both Mufson and Vohs, it is clear that the purpose of the December 12, 1951, meeting was to interfere with the rights guaranteed employees in Section 7 of the Act. The manner in which the union leaders were singled out and brought to the home of the secretary-treasurer of Respondent for the purpose of discussing the union activity is in itself coercive conduct. In such a setting, the expression of Respondent's views regarding unionization accompanied by the solicitation of their views regarding the Union amounts to a thinly veiled interroga- tion intended to interfere with employees' union activity.12 We find that Respondent by these acts, violated Section 8 (a) (1) of the Act. With respect to the statements by Mufson regarding the financial status of the service department and the possible result of continued losses and the effect of union- ization upon those losses, these statements standing alone may be regarded as a proper exercise of free speech in view of Section 8 (c) of the Act. However, they cannot be so isolated from their setting in the circumstances of this case. They were made at a meeting wherein employees were subjected to Respondent's views on unionization; where employees were urged to express their union attitudes; and wherein, after a number of employees expressed views against but none in favor of the Union, Respondent announced a wage increase to become effective January 1, 1952. We can only conclude therefrom that the purpose of Mufson's remarks was to convey a threat of reprisal if the employees continued the union activities to a successful conclusion.13 Under the circumstances of this case, we find that Mufson's statement at each meeting that the employees were free to choose whether or not they preferred union representation did not neutralize the effect of the illegal conduct.14 In view of Respondent's knowledge of the current efforts of its employees to organize a union, we find that the changing of working hours, and the promising and granting of wage increases, were intended and so timed as reasonably to have the effect of discourag- 10 In this respect, John Valero testified that at this meeting Mufson did mention the fact that, if due to union activity the cost of operations would be excessive, he would have to look into farming out the service work to other companies rather than doing all of it himself, and just keep a sufficient number of men for emergency calls and his own stock 11 Popesl Brothers, Inc, 101 NLRB 1083. 12 Mufson's own testimony points this up. He stated : ". . . I asked them questions, but I could not say when the meeting was concluded that I had any indication as to whether the men felt they would like to be represented by a union." See Nelson Industries, et al, 102 NLRB 780. 13 Apex Toledo Corporation, 101 NLRB 807; D. Gottlieb & Co., 102 NLRB 1708. Under these circumstances it is immaterial that Respondent may in fact have been experiencing financial difficulties in the operation of the department . See The Houston Chronicle Publishing Company, 101 NLRB 1208. 14 See Happ Brothers Company, Inc., 90 NLRB 1513 338207-55-vol. 110-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the organizational activities of its employees, and that the interrogation, threats of reprisal, and promises of benefits, made in the course of Respondent's efforts to defeat the organizational activities of the employees, interfered with the rights guar- anteed employees in Section 7 and constituted interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act.15 2. The petition renouncing the Union Vohs, service manager, testified that some of the boys wanted to know how the union election could be brought to a head; that he consulted Mufson, general man- ager and secretary-treasurer, who "told him of cases of petitions being signed so that they would know where the men stood", and Vohs passed that information along to the men. According to Vohs, the language of a petition was prepared by Tele- vision Servicemen Sabin and Miggues; and Vohs gave his office girl permission to type it with full knowledge at the time that it was to be used to "try to see if the boys would sign it." The petition was typed in duplicate and Vohs kept the copy. Mufson saw the wording of the petition 16 before any of the servicemen signed it. According to Vohs, Matthiesen, a serviceman, posted it on the bulletin board on or about February 25, 1952; Vohs signed it; talked to other employees about signing; and believes it was passed around in the shop during working hours. John Valero, assistant service manager, testified that he signed the petition after 8 or 9 signatures were on it and while it was on the bulletin board, but that he did not post it on the bulletin board However, he later indicated he was not sure and that he may have posted it on the bulletin board and that he may have signed it before he posted it. Several other witnesses testified that they signed it while it was posted on the bulletin board. Fredericks testified that Valero, in discussing the petition with him, said "no use in asking you to sign it" and related an incident wherein Valero handed a pencil to Don Tattrie and said, "Don, you might as well sign it " Valero remembered speaking to Fredericks on numerous occasions about the peti- tion but did not remember asking him to sign it. However he indicated that it was very possible that he mentioned to Fredericks that Fredericks had not signed the petition. Valero further testified that he spoke to 2 or 3 television servicemen about signing the petition but, although it is possible, he did not recall handing any employee a pencil and saying "here sign this" and did not recall speaking to Don Tattrie about signing. After the petition was taken off the bulletin board, it was brought to Vohs who testified that he checked to see who had and who had not signed it, and reported some- time that week to Mufson as to how many had signed it. He imagined that he also reported to Mufson who had not signed it. In the conversation that followed, Mufson told Vohs that "actually the petition meant nothing at all, that it was just as a showing how the boys felt, the rest of the people felt towards the union, whether they wanted it or didn't want it." Vohs gave this information to "the boys." From the evidence, it is clear that Respondent not only participated in the prepara- tion of the petition, but also assisted in obtaining the signatures of the television servicemen and thereafter used the petition to inform itself of the union attitude of 15 See Apex Toledo Corporation, 101 NLRB 807; The Lewis Engineering Co, 101 NLRB 484; Popeil Brothers, Inc, 101 NLRB 1083; The Houston Chronicle Publishing Co, 101 NLRB 1208, Dependable Wholesale Company/, Inc, 102 NLRB 656; Poultry Enterprises, Inc, 102 NLRB 211 ; and Nelson Industries, 102 NLRB 780. 16 The petition, General Counsel's Exhibit No 4, reads as follows : February 25, 1952 We, the undersigned, wish to express our views that we are satisfied with the working conditions in the Television Service Department of the Jefferson Co and treatment accorded us by the management of the company. We are also confident of continued good treatment and improvement in our con- ditions of work for the future and believe our job security and improved conditions and earnings will be more assured by direct dealings with the management of the Jefferson Company and the Manager of the Jefferson Television Service Department. We therefore prefer to continue on this basis rather than have any union repre- sentation Signed : ss/David E. Gurkin : Richard A. Matthiesen ; John L Zimmer- man ; Bernard Mandelbloom ; Robert H. Sabin ; J Gaskins ; Reid Millsap ; Charles Crowe : John Valero ; H L. Kammerer ; Stuart Chambers ; J. J Taylor ; R. Siska ; John Markham ; Al Roth ; Alvin Juatz ; Charles Miggues ; Jack Cooley ; Larry Kravetz ; Bruce Shearer ; Larry Moore ; Anthony Altomarl ; A. Calvet, E. Vohs ; Jim Elder ; Austin Ilearell ; Donald W Tattrie ; and C. J. Cook. THE JEFFERSON COMPANY, INC. 771 the various individuals. The fact that certain employees may have sought the guid- ance of members of management does not license the Respondent to engage in unfair labor practices.15 We find that Respondent by this conduct violated Section 8 (a) (1) of the Act.18 3. The withdrawal letters According to Service Department Manager Vohs, after he informed "the boys" that the petition actually meant nothing, the boys asked Vohs how they could get out of the Union. Vohs took the question to Mufson. Mufson informed Vohs that the boys would have to get out a letter to the Union stating that they did not want it to represent them and that they wanted to withdraw the signing of the union cards. Vohs told this to the men and dictated such a letter to Mary Curtin, the office girl, instructing her to prepare a series of these letters for the boys. Approximately 30 letters, typed and dated February 28, 1952,19 were turned over to Valero, the assistant service department manager, who put them on the corner of his bench. Cook testified that when Valero brought the letters downstairs to the television shop; he handed Matthiesen and Zimmerman, television technicians, each a letter and they both signed, that Valero also handed him (Cook) a letter but he did not sign it. Valero testified he may have mentioned to different employees that the letters were on his desk and that it is possible that he handed one to an employee, but that he did not recall doing so and did not carry the letters to any of the employees. Valero testified that he did not handle the letters after they were signed, that the men took them to the office and Mary Curtin typed the envelope for each letter after it was signed. Vohs testified he told certain employees the purpose of the letters. Vohs does not recall but presumes they were mailed from his office. We find that the Respondent by participating in the preparation, solicitation, and execution of the resignations from the Union violated Section 8 (a) (1) of the Act.20 4. Surveillance of union meeting Several employees testified that they saw both Vohs and Valero at a union meeting and the record shows without contradiction that both attended a union meeting at the union hall early in December 1951.21 Matthiesen testified that this was the only union meeting which he attended, that they were asked to sign membership cards and pay initiation fees, that at this time he received a second card which he put in his pocket; and that he saw Vohs and Valero at the meeting and later, in the shop, told Valero he was not going to sign the card. Respondent has offered no reason for the presence of the two supervisors at the union meeting except that its counsel proposed that they attended "to become perhaps members of the Union." John Valero testified that he "was invited to attend with the information that the New York Representative of the Union would be there to clarify the situation which was very much in the dark at that time." No attempt was made to identify from whom the invitation came and under what circumstances; nor was any testimony offered to explain Vohs' presence at the union meeting. We regard the excuse offered by Respondent's counsel as without merit, and in the absence of any reasonable explanation for the attendance at a union meeting of two supervisors of Respondent at a time when Respondent was engaging in other 17 See United Biscuit Company of America, Union Biscuit Division, 101 NLRB 1552. 19 See Nina Dye Works Co , Inc., 95 NLRB 824, enfd 203 F. 2d 849 (C A. 3) ; also see Oliver Machinery Company, 102 NLRB 822 19 Eleven of these letters which had been signed by employees were introduced in evi- dence as General Counsel's Exhibits Nos 7a to 7k, inclusive 20 See Poultry Enterprises, Inc., 102 NLRB 211. See also cases cited in footnotes 17 and 18, supra 21 The date of the union meeting is not specifically established by the record. How- ever the record shows that union meetings were regularly called after the first meeting on November 19, 1951. According to the Fredericks, Vohs and Valero attended a union meeting held a week or 10 days after the first meeting. From other evidence it appears that another meeting was held on November 23, 1951. Matthiesen places the time as early December and Valero indicated that it occurred sometime around the time of Re- spondent's meetings. Counsel for Respondent referred to the date as December 12 in urging that this meeting attended by Valero and Vohs was the first "concrete" knowledge Respondent had of concerted activities by its employees Mufson refers to the time he first really knew about the union activity as just before December 12, 1951. From all the evidence it appears, and we find, that the incident considered herein occurred be- tween November 23 and December 12, 1951. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acts of interference, we find that Respondent thereby engaged in surveillance in_ violation of Section 8 (a) (1) of the Act 22 D. The refusal to bargain collectively By registered letter dated December 18, 1951, the Union advised Respondent that it represented "the majority of Radio and Television technicians employed by you in the service department. . . ... and requested recognition as such representative and a conference on the subject in the immediate future 23 As indicated by the date contained on the postal registered receipt, this demand for recognition was received by Respondent on December 19, 1951. Respondent's general manager, Mufson, who on December 29, 1951, acknowledged receipt of this letter, advised the Union that the matter had been referred to Respondent's attorney, and requested the Union to communicate with said attorney for further discussion of the matter. By letter dated February 5, 1952, Respondent's attorney, after listing the classifications of employees involved, advised the Union that he would "be glad to confer with you at your convenience as to your representation and as to whether or not steps should be taken under the labor law to determine representation." And on February 14, 1952, Respondent's attorney advised the Union as follows: Today I talked with Mr. Mufson of The Jefferson Company, Inc., and he showed me the proposed contract sent to him and I advised him that it was not necessary to consider the contract at this time. In discussing the proposal as relates to. an election among the employees, Mr. Mufson instructed me that if and when the Union saw fit to file a petition, the Company would review the same and at that time decide if they would agree to an election under the petition or require a hearing before the Board as to whether or not an election should be called. The record discloses, however, that even before the Union's demand for recogni- tion, the Respondent, being aware of the organizational activities of the employees, embarked upon a campaign to counteract such organizational activities. In so doing, the Respondent engaged in certain unfair labor practices as indicated above. Thus, on December 19, 1951, the date of receipt of the Union's bargaining request, Respond- ent called an evening meeting of the employees involved, during which Mufson prom- ised the employees a wage adjustment effective January 1, 1952. In view of this and subsequent conduct constituting unfair labor practices, we find that the Respond- ent by its letter dated February 14, 1952, did not in good faith raise a question of the Union's majority status. We further find that any loss of the Union's majority status occurring between December 18, 1951, and March 3, 1952, or thereafter, was imputable to the Respondent's unfair labor practices as hereinabove set forth.24 We find that Respondent's bad faith in questioning the Union's representative status is established by its calculated steps taken to undermine the Union's majority both before and after receipt of the Union's request to bargain. Accordingly, we find that Respondent on and after December 19, 1951, refused to bargain with the Union as the exclusive representative of employees of Respondent in an appro- priate unit in violation of Section 8 (a) (5) of the Act.25 E. The discriminatory discharge Walter A. Fredericks was employed by Respondent on October 21, 1951, as a television serviceman technician and was discharged on March 3, 1952. Respond- ent's reason for Fredericks' discharge was given by Service Manager Vohs as follows: He had showed a very marked laxity toward his work, he did not seem to want to cooperate, it was reported to me that day that he had brought in a couple of sets that should not have come in, in the estimation of the man in the shop. For that reason I left him go. . I told him I was just having too much trouble with him and I was going to have to leave him go. zz Carthage Fabrics Corporation, 101 NLRB 541. 23 The term "technicians" is found to include apprentices. See footnotes 6, 7, and 8, supra. 24 Long-Lewis Hardware Company, 90 NLRB 1403; D. Gottlieb & Co., 102 NLRB 1708; Continental Desk Company, 104 NLRB 912. 25 See Joy Silk Mills, Inc v N L. R B, 185 F 2d 732 (C. A., D. C.) cert. denied. 341 U S 914 , enfg. 85 NLRB 1263. The Jackson Press, Inc., 96 NLRB 897,; Louisville Con- tainer Corporation, 99 NLRB 81; Perma Water Lifter Company, 102 NLRB 198. See also. D & D Transportation Company, et at, 100 NLRB 920. THE JEFFERSON COMPANY, INC. 773 Fredericks was working on outside calls at the time. According to Vohs, Valero reported just prior to that morning that Fredericks had brought into the shop two sets which in Valero's opinion could have been repaired on the premises of the customer .26 Vohs conceded, however, that Valero made no recommendation regard- ing discharge and that he admittedly did pot discuss the discharge with Valero. Vohs stated, in substance, that it is pretty hard to say whether Fredericks could have located the trouble and repaired it on the premises but that normally it should have been located. Vohs further indicated he did not speak to Fredericks about the two sets in giving Fredericks the reason for his discharge, but talked to Fredericks about his disposition and the way he was handling and missing calls.27 He stated that "Fredericks was not left go because of two calls, it was his disposition all the way along that had prompted his being left out." When further questioned on this, Vohs indicated he probably would not have fired Fredericks just for those two sets, stating "it was for his disposition and the things that led up to it" and "there is no good reason why I did discharge him on that particular Monday." Vohs then listed as other reasons for Fredericks' discharge that he thought Fredericks missed some calls after the first of the year; that on one occasion he was instructed to make a call after 3 p. m. but called before that time, making it necessary to go back the next day. Vohs also stated that throughout the shop there were complaints about his work being below par; that his general disposition was poor; that he did not seem to care whether he worked or not; and that he was doing a lot of wandering around soliciting union members and definitely did not have The Jefferson Company at heart. Valero testified that when Fredericks was discharged, Vohs came down and told him Fredericks had done something and had to go, but Valero did not recall what it was Fredericks had done. At that time Valero needed men badly. According to Valero, the Respondent was having trouble with all makes of sets at that time and that when a set was sent into the shop for 3 or 4 days, the customer would complain and want to exchange the set; that the Respondent did not like to have the. sets brought into the shop if it could possibly be avoided. He stated that this was the type of problem that reoccurred with respect to other outside television servicemen and that the men were constantly being told about it if they brought in sets which they should have repaired in the home. Valero had reported this type of trouble to Vohs and had occasion to mention this to Vohs at the rate of approximately twice a month. Cook testified that at the meeting at Mufson's home on December 12, 1951, Vohs introduced Fredericks to Mufson as "one of our better men." Vohs did not deny this, stating "he was one of the better television men." Cook also testified that "everybody misses calls" and he had heard no rumor that Fredericks was not doing his work well. Fredericks' version of the conversation which took place at the time of his dis- charge does not differ materially from that of Vohs. Fredericks testified that "he stated that I hadn't gotten to a call on time, that I had missed-In other words, I had mis-diagnosed a picture tube. I believe that was the term he used. He said my attitude wasn't right. . . . At that time he told me he would have to let me go. I asked him what the reason was. He gave me those reasons." This occurred just after lunch and he was paid off that day. On March 3, 1952, a hand-printed notice was posted on the bulletin board which stated: "THERE WILL BE NO VOTE UNTIL ITS POSTED BY ME. E VOHS" Fredericks testified that Respondent had found out "whether the men were on their side" and the Union wanted to take a vote to ascertain "what they had left" after the withdrawal letters and scheduled a vote at the union hall. Fredericks passed this information along to the men. He saw the notice on the bulletin board on the morning of the day he was discharged. Vohs testified, in substance, that he came in that morning and the boys wanted to know about going over to the union hall to vote in an election to see what power the Union had. As far as he knew, the election was supposed to be held with the Na- tional Labor Relations Board; he had not been notified of an election; the Union 26 Two cards were introduced in evidence purporting to represent the history of the two sets complained of. These cards show that one set was brought in by Fredericks on March 1, 1952, pursuant to a call on February 29 and that the entire set was exchanged for one of a different make on March 5, 1952. The other set was picked up on February 28. was on the shop bench on March 1 for repair of a defective tube and defective con. denser, and was delivered on March 7, 1952. rz According to Vohs, Fredericks missed four calls December 24, 1951, on the afternoon before Christmas and Vohs told him he did not like his missing calls. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was going to have an election on his time; his boys were running downtown to vote; and he had to keep track of his boys, so he posted the notice. The foregoing facts plainly point to the conclusion of an illegal , discriminatory discharge as contended by General Counsel . As indicated previously, Fredericks was the most active union adherent among Respondent 's television service department employees and this was well known to Respondent . Respondent had repeatedly en- countered Fredericks' opposition in its efforts to interfere in the organization of the Union. Fredericks had refused to sign the petition and the withdrawal letters, had alone raised the question of job security at the meetings, and had not concealed his interest in the Union as evidenced by the fact that Vohs testified he learned of the Union from Fredericks before November 19, 1951. Fredericks' immediate super- visor was not consulted regarding Fredericks ' discharge and although Valero had reported the two sets for which Fredericks was supposedly discharged , Valero could not recall what Vohs said Fredericks had done to cause the discharge . Missing calls and misdiagnosing troublesome sets were not uncommon occurrences and although it was the practice to call such occasions to the attention of the offending servicemen, neither Vohs nor Valero mentioned these two sets to Fredericks before or at the time of his discharge . There is no allegation or evidence that any warning had ever been given that bringing sets into the shop unnecessarily would be cause for discharge. Under these circumstances , we are convinced and find that the real reason for the discharge was Fredericks' continued union activity. Vohs stated that there was no good reason for his discharging Fredericks on that particular Monday. Furthermore his various explanations , no one of which is claimed as the decisive motivating cause, emphasize the inconsistency of the Respondent's defense .28 We find that Vohs chose "that particular Monday" because he discovered when he came to work that morning that more union activity 29 was about to occur-the men were interested in going to the union hall to vote . He therefore posted the bulletin forbidding them to do so and discharged Fredericks . Accordingly, we find that Respondent discharged Walter A. Fredericks on March 3, 1952, in violation of Section 8 (a) (3) of the Act.30 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the Respondent set forth in section III , above, occur- ring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices viola- tive of Section 8 (a) (1), (3 ), and (5 ) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent engaged in certain acts of interference , restraint, and coercion . We shall therefore order that Respondent cease and desist therefrom It has been found that from on or about December 19, 1951 , and thereafter, Respondent refused to bargain collectively with International Brotherhood of Elec- trical Workers, Local Union 349, AFL, as the exclusive representative of its employ- ees in an appropriate unit. We shall therefore order that Respondent , upon request, bargain collectively with said Union. It has also been found that Respondent discriminatorily discharged Walter A. Fredericks on March 3 , 1952. We shall therefore order that Respondent offer the said Walter A. Fredericks immediate and full reinstatement to his former or substan- 28 Vohs testified that the incident of the two television sets was "the straw that broke the Camel 's back " In view , however , of the fact that similar incidents were not uncom- mon with respect to other television servicemen and the further fact that Valero had not recommended discharge on this ground , we find that this episode did not provide an ade- quate cause for Vohs' decision to discharge Fredericks. ss The Respondent contends that the discharge occurred more than - 2 months after union activities had ceased Upon the basis of the record before us and in the light of illegal acts of interference found to have been practiced by the Respondent , we find that union activity , although dormant under the Respondent 's repressive acts of interference, nevertheless persisted and represented an ever present danger in the mind of the Respondent 30 See Dixie Furniture Company, Inc , 101 NLRB 1295 ; Lingerie, lee, 101 NLRB 1374, and The Sun Company of San Bernardino, California, 103 NLRB 359. STRONGCRAFT PRODUCTS, INC. 775 tially equivalent position without prejudice to his seniority and other rights and priv- ileges and to make him whole for any loss of pay he may have suffered by reason' of the Respondent's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of such discrimination to the date of Respondent's offer of reinstatement, less his net earnings during said period. Such loss of pay shall be computed in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. We shall also order Respondent to make available to the Board, upon request, payroll and other records to facilitate the checking of the amounts due as back pay. Because of Respondent's unlawful conduct and its underlying purpose, we are convinced that the unfair labor practices found are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we shall order Respondent to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the amended Act. Upon the basis of the foregoing findings of fact, and upon the entire record, we make the following: PROPOSED CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2,(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. All television service department employees working in and out of Respondent's warehouse, Miami, Florida, including radio and television technicians and apprentices, stock clerks, and the cabinet worker, but excluding all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 4. The Union was, on December 3, 1951, and at all times since has been, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By failing and refusing at all times since on or about December 19, 1951, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 6. By discriminating in regard to the hire and tenure of employment of Walter A. Fredericks, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed employees in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Text of Proposed Order omitted from publication. ] STRONGCRAFT PRODUCTS, INC. and METAL TRADES COUNCIL OF SOUTHERN CALIFORNIA . Case No. 21-CA-1745. November 4,1954 Decision and' Order On March 19, 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 110 NLRB No. 121.