N. D. Cass Co.

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N. D. Cass Company and Local 154, United Furniture Workers of America, CIO. Case No. 1-CA-1690. April 22, 1955 DECISION AND ORDER On December 15, 1954, Trial Examiner Louis Plost issued his In- termediate 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 Inter- mediate Report attached hereto. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate report and supporting briefs. The General Counsel filed an additional brief in support of certain of the recommendations of the Trial Examiner. 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 land hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner found that the Respondent had discharged and failed to recall Arvid Labor, Laura Labor, and Laura Gravel for discriminatory reasons. We agree that the facts support this finding. However, we note that the complaint alleged only that the Respondent had discriminatorily refused to reinstate the two Labors and Gravel after January 4, 1954. We therefore find only that, on and after January 4, 1954, the Respondent refused to reemploy Arvid Labor, Laura Labor, and Laura Gravel in violation of Section 8 (a) (3) and (1) of the Act. The Respondent's back-pay liability will also run only from that date.2 2. We do not agree with the Trial Examiner's finding that the lay- off of Francis Bowers was not discriminatory. Bowers was first employed by the Respondent on October 5, 1953. He operated a planer. Laura Labor was his helper. He was laid 1 The Respondent has requested oral argument. This request is denied as the record, including the exceptions and briefs , adequately presents the issues and positions of the parties 2 The Trial Examiner also found that the Respondent had discriminated against the same individuals in violation of Section 8 (a) (4). As the policy of the Act will be fully effectu- ated by a remedial order based on a finding that the Respondent discriminatorily refused reinstatement to the Labors and Gravel, we find it unnecessary to determine whether this refusal to reinstate also violated Section 8 (a) (4). Accordingly, we do not adopt the finding of a violation of Section 8 (a) (4), but instead shall dismiss this allegation of the complaint. 112 NLRB No. 54. N. D. CASS COMPANY 403 off for the regular Christmas shutdown in 1953, but was automati- cally returned to work the first Monday in the following January when the plant reopened. About January 14, 1954, Bowers' fore- man, Olmstead, told Superintendent Bancroft that Bowers was engaging in arguments with other employees concerning the Union and that he was distributing union cards. Bancroft agreed with Olin- stead that the latter should try to obtain one of these cards. On Janu- ary 21, 1954, during the morning rest period in the boilerroom of the plant, Bowers discussed the Union with fellow employees, stressing the advantages to be gained by union representation and deploring the cowardice of some employees with respect to the issue. Fore- man Olmstead was seen shortly before and after the above discussion at the entrance to the boilerroom. As the meeting broke up he was standing in the doorway and was heard to say, "I think your goose is cooked." At the time Olmstead made this remark, only Bowers and employee Culver, who testified to overhearing Olmstead' s state- ment, were in the boilerroom.3 As Culver was not a, union protagonist, it seems reasonable to infer that Olmsteac's remark was directed at Bowers. During the lunch period of the same day, Olmstead told a group of employees, including Bowers, that there was going to be quite an upheaval in the plant and that a lot of employees were going to be laid off. The same afternoon, Olmstead laid off Bowers and two others, including Bowers' helper. Olmstead told Bowers that he was being laid off for lack of work. Bowers testified that when he asked when lie would be called back, he was told ". . . if he was me [Bowers], that he would find another job somewhere else because it wasn't likely that I would ever be called back to work again." The Respondent's defense is that Bowers was laid off for lack of work. It does not contend that he was incompetent or derelict in his duty. The record is clear that Bowers' machine was operating after his layoff and that another employee was put on it full time while Bowers was out of work. The record further shows that from January 21, the date of Bowers' layoff, overall employment in the plant increased and that there was considerable recall of old em- ployees and the hiring of new ones from that date to June 15, when Bowers was finally recalled, after lie had filed unfair labor practice charges. The Trial Examiner found that the Respondent had not sustained its defense that it laid off and failed to recall Bowers because of "lack of work." He also found that the Respondent's antiunion animus is plain and that other employees had been discriminated against be- cause of their union activities. We agree with these findings. In- consistently, however, the Trial Examiner concluded that the General Olmstead did not testify 300028-50-vo1 112-27 404 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Counsel had failed to prove by a preponderance of the evidence that the Respondent had laid off Bowers for discriminatory reasons. We disagree with this conclusion. We believe that the only reasonable inference to be drawn from the entire record, including evidence of the Respondent's strong antiunion animus,' its discriminatory treat- ment of the two Labors and Gravel, its knowledge of Bowers' activi- ties in behalf of the Union, its inadequate explanation for the lay- off and failure to recall Bowers, and Foreman Olmstead's remarks before and at the time of the layoff, is that the Respondent laid off Bowers because of his activities in behalf of the Union.' Accord- ingly, we find that by this action the Respondent violated Section 8 (a) (3) and (1) of the Act. We shall therefore order the Respond- ent to reimburse Bowers for the loss suffered as the result of the discrimination against him. 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, N. D. Cass Company, Athol, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 154, United Furniture Workers of America, CIO, or in any other labor organization of its employees, by laying off or failing to reinstate any of its employees, or in any other manner discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 154, United Furniture Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargain- ing 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 4 See also the Board's decision in Case No 1-CA-1488, issued August 26, 1954, involving the same Respondent (not reported in printed volumes of Board Decisions and Orders) 5 The Respondent's unlawful motivation is further shown by the following remarks made by Supeivisor Royal McLean On the day following Bowers' layoff, McLean told Bowers' wife that if Bowers had kept his mouth shut he would still be working When Bowers returned to work in June 1954. he told McLean that lie had gone to the Board about his labor troubles McLean said "i could have told you that a long time before this " At the hearing in this case, as well as in Case No 1-CA-1488, the Respondent stipulated that McLean was it supervisor Neai the close of the hearing, the Respondent adduced some testimony that McLean had no supervnsoiy authority. However, at no time did it attempt to withdraw fioui its stipulation and the General Counsel, consequently made no effort to controvert the Respondent's evidence The Trial Examiner cried in finding that McLean was not a supervisor we find, in accordance with the stipulation of the parties, that McLean was a supervisor and that, therefore, has remarks are attributable to the Re- spondent N. D. CASS COMPANY 405 an agreement requiring membership in a labor organization as a con- dition 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) Make whole Arvid Labor, Laura Labor, Laura Gravel, and Francis Bowers in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy," as modified herein, for any loss of pay they may have suffered by reason of the Respondent's dis- crimination against them. (b) Upon request, make available to the Bo6qrd, or its agents, for examination and copying, all payroll records and reports, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due. (c) Post at its Athol, Massachusetts, plants and warehouses, copies of the notice attached hereto-and marked "Appendix." 6 Copies of the said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS IIEREBY rURTIIER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated Section 8 (a) (4) of the Act. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. 6 In the event that this Order is enforced by 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." 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 our employees that : WE WILL NOT discourage membership in Local 154, United Furniture Workers of America, CIO, or in any other labor organ- ization of our employees, by laying off or failing to reinstate any of our employees or in any other manner discriminating against 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them in regard to their hire or tenure of employment or any term or condition of employment. AVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organ- ization, to form, join, or assist Local 154, United Furniture Work- ers of America, CIO, 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 collec- tive 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 condition of employment as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL make whole the following named employees for the discrimination practiced against them : Arvid Labor Laura Gravel Laura Labor Francis Bowers N. D. CASS COMPANY, Employer. Dated---- ------------ By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a third amended charge duly filed by Local 154, United Furniture Workers of America, CIO, herein called the Union, that N. D. Cass Company, Athol, Massa- chusetts, herein called the Respondent, had engaged in and is now engaging in certain unfair labor practices affecting commerce, as set forth and defined in the National Labor Relations Act, as amended, 61 Stat. 136, hereinafter referred to as the Act, the General Counsel of the National Labor Relations Board on behalf of the Board, by the Regional Director for the First Region, issued a complaint dated September 2, 1954, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (4) of the Act. Copies of the charge and the complaint together with a notice of hearing were duly served upon the Respondent and the Union.' With respect to the unfair labor practices, the complaint as amended alleges in substance that the Respondent discriminatorily failed and refused to recall em- ployees Laura Labor, Arvid Labor, Laura Gravel, and Francis Bowers to work in violation of Section 8 (a) (3) and (4) and Section 2 (6) and (7) of the Act The Respondent duly filed an answer in which it denied that it had engaged in any of the alleged unfair labor practices. Pursuant to notice a hearing was held at Athol, Massachusetts, on September 22 and 23 and on October 4 and 5, 1954, before Louis Plost, the duly designated Trial Examiner. The Geneial Counsel and the Respondent were represented by counsel and the Union by its agent, all being hereinafter referred to in the name ^ The of iginal chaige was filed April 9, 19,54, the first amended charge May 7, the second amended charge June 10, and the third amended charge on September 2, 1954 N. D. CASS COMPANY 407 of their principals . The parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence bearing on the issues, to argue orally on the record , and to file briefs and/or proposed findings of fact and conclusions of law with the Trial Examiner. At the opening of the hearing the Trial Examiner granted an unopposed motion by the General Counsel to dismiss the complaint as to one Bruna Bowers. A date was set for filing briefs. The time for filing was extended to Novem- ber 15 by the Chief Trial Examiner on request made after the close of the hearing. The Trial Examiner denied motions , made at the close of the General Counsel's case-in-chief, and again at the close of the hearing, by the Respondent , to dismiss the complaint The Respondent argued orally . Briefs have been received from the General Counsel and the Respondent. On November 12, the General Counsel filed a motion to correct certain errors in the official transcript . The Respondent assented to the changes . The Trial Examiner hereby grants the motion and orders the motion marked "Trial Ex- aminer's Exhibit" and incorporated in the file of exhibits. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 2 The Respondent is a Massachusetts corporation with its principal office and plant at Athol, Massachusetts, and an additional plant in the State of Alabama and is engaged in the manufacture and sale of wooden toys and related products. The Respondent, in the course and conduct of its business , causes, and continu- ously has caused at all times herein mentioned , large quantities of lumber and metal fittings to the amount of more than $ 100,000 annually, used by it in the manu- facture of wooden toys to be purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts , and causes, and continuously has caused at all times herein mentioned , substantial quantities of wooden toys to the amount of $250,000 annually, to be sold and transported from said plant in interstate commerce to States of the United States other than the Commonwealth of Massachusetts. II. THE ORGANIZATION INVOLVED Local 154, United Furniture Workers of America, CIO, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2 (5) of the Act, and admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent's Athol, Massachusetts, plant is operated in two divisions, referred to in the record as the "small plant" or Cass Games and the "large plant" or Cass Toys. The two divisions constitute a single unit for the purpose of collec- tive bargaining as well as for the instant matter. On a 9 (c) petition, docketed in the Board's First Region as Case No 1-RC-1370, the Board on April 9, 1953, ordered an election among the Respondent's employees to determine a bargaining representative . The employees selected the Union and the Board so certified May 4, 1953. On July 2, the Respondent's employees struck. On July 7, the Union filed a charge with the First Regional Office alleging that the Respondent was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. The charge was docketed as Case No. 1-CA-1488. On September 21, 1953, all the strikers unconditionally applied for reinstatement. The record of the instant case discloses that Arvid Labor and Laura Labor were returned to work on September 29, not at the jobs they had previously held but at less desirable ones. Arvid Labor who had been a setup man , which is 2 The Board has taken jurisdiction of the Respondent in Cases Nos 1-RC-3170 and 1-CA-1488 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD skilled work, in the "small plant" was returned to work in the "large plant" operating a nailing machine and a bandsaw, and Laura Labor who had work in the "small shop" at which she earned $1.26 per hour, on piecework rates, was put in the "large plant" carrying lumber away from a planer at 80 cents an hour, straight time only. As herein stated the Union on July 7, 1953, filed a charge alleging 8 (a) (1) and (5) violations by the Respondent. On October 1, 1953, the Regional Director issued a complaint alleging 8 (a) (1) and (5). A hearing was held thereon on December 1, 1953. The Trial Examiner hearing Case No. 1-CA-1488 found that the Respondent had engaged in conduct vio- lative of Section 8 (a) (1) and (5). No objections were filed to the Intermediate Report which was therefore adopted as the Board's Decision and Order. At the instant hearing the General Counsel pointed out that the Trial Examiner who heard Case No. 1-CA-1488 did not find the strike of July 2-September 21, 1953, to have been caused by the Respondent's unfair labor practices and had stated in footnote 4 to his report: The complaint alleges and the answer denies that a strike of the Respondent's employees occurred on July 1, 1953, which was caused and prolonged by the Respondent's unfair labor practices. There is no allegation that the Respond- ent refused to reinstate any striker, but the General Counsel contends that such conduct might occur in the future. Whether the strike was or was not caused or prolonged by unfair labor practices of the Respondent is not an issue herein. Should the Respondent in the future refuse to reinstate any striker, it will then be time enough to consider the question. The General Counsel moved that the Trial Examiner now find the strike referred to was an unfair labor practice strike. The Trial Examiner asked on the record: TRIAL EXAMINER: Now, do you really think, Mr. Fuchs, that the fact that in the previous hearing, the Trial Examiner failed to make a finding as to the na- ture of the strike, that you may now, after that hearing has been closed and decided by the Board and in view of the six months statute of limitations, if it is a statute of limitations, that you may now put in evidence so that I may go back into this other hearing and make the finding for the Trial Examiner, the one that he didn't make? The General Counsel then made an offer of proof, which was rejected. In his brief the General Counsel argues: Although the Charge was filed in the instant case over six months thereafter, this factor does not change the complexion of the strike, and the requested finding is not barred by Section 10 (b) of the Act. The case of Brown and Root, Inc. and its companion case are identical pro- cedurally with the case at bar. [Brown and Root, Inc., 86 NLRB 520, 99 NLRB 1031.] As in the present case, the Union, in Brown and Root charges violations of Section 8 (a) (1) and (5) of the Act In both cases a strike took place and Complaints were sustained with respect to the Charge that Respondents had violated Section 8 (a) (5) of the Act. In the first Brown and Root case no request had been made by General Counsel that an unfair labor practice strike finding be made. In the Cass case such a request was made on the grounds that discrimination was anticipated. The Trial Examiner indicated that the question was moot but could be subsequently raised In the second Brown and Root case, as in the second Cass case, the Unions charged violations of Section 8 (a) (3) of the Act. The Charges were filed more than six months after the termination of the strikes. In the second Brown and Root case, the Board found that the strike was an unfair labor practice strike and that such a finding was not barred by Section 10 (b) of the Act since the purpose of this Section was to prevent dilatory filing of Charges and that timely Charges were filed and adjudicated with respect to the initial unfair labor practices. However, the Trial Examiner cannot be persuaded that he make findings on evi- dence he did not hear, adduced from witnesses he did not see, especially findings that are to be contrary to those made by the then presiding Trial Examiner. The Board, however, is not in the same position as the Trial Examiner. The evidence in Case No. 1-CA-1488 is still before it and the Board of course takes judicial notice of all previous cases and rulings. N. D. CASS COMPANY 409 The net result of a finding that the strike was an unfair labor practice strike would be to cancel out the effect of Section 10 (b) of the Act on the instant case and permit a further charge, and it found, a finding, that Arvid Labor, Laura Labor, and Laura Gravel were discriminatorily reinstated by the Respondent and date the discrimination alleged in the instant complaint to the ending of the before- mentioned strike. However, since the Union had from July 7, 1953 (the filing of the charge), until October 13, 1953 (the issuing of the complaint in Case No. 1-CA-1488), to amend the charge so as to raise the question of discriminatory reinstatement, in fact had until December 1953 to raise the issue through a new charge, and failed to do so, it seems to the Trial Examiner such laches alone is sufficient to sustain a refusal to set aside Section 10 (b) of the Act. The Trial Examiner, therefore, despite the able presentation of the General Counsel in argument and brief, adheres to his original opinion that it is not within his province to find on evidence not in this record and will view the case as a tub which must stand on its own bottom. The only evidence which the Trial Examiner will consider will be that which bears upon the allegations of the complaint, that: Respondent did, since on or about January 4, 1954 and until the respective dates listed alongside their names hereunder, fail and refuse to reinstate the employees named . . . to their former or substantially equivalent posi- tions or employment: Laura Labor-May 15, 1954 Arvid Labor-May 17, 1954 Laura Gravel-June 1, 1954 Respondent did, since on or about January 21, 1954 until June 15, 1954, fail and/or refuse to reinstate the said Francis Bowers, named above . , to his former or substantially equivalent position or employment. Certain employment practices of the Respondent must be understood in order to fully appraise the 8 (a) (3) allegations. Shortly before Christmas the Respondent's entire plant is closed to be reopened shortly after the first of the next year. During this time all the production em- ployees are laid off. Glen A. Bancroft, the Respondent's superintendent, testified: Q. Now, what takes place when a layoff is required? A. Well, we usually decide on how many we are intending on keeping in the departments. We draw up a list, and then we usually have so many that want to be laid off anyway so we usually go around and find out the ones that want to be laid off, and then we take the list and pick out the ones that are most diversified for the type of work we are going to have continued in the coming year. Bancroft further testified: Q. Do you have a large turnover of help? A. I would say we turn over about completely once a year. Q. Completely? A. I would say so. However, Bancroft admitted that when the annual layoff is made only certain em- ployees are told they are being laid off, or that they will be recalled when needed, but that the others, amounting to 50 percent of the employees, are not told anything be- cause they understand they are to return after the first of January and do so without further notice, because these employees are never "permanently" laid off. Bancroft further testified that the Respondent does not recognize any seniority of employment among its employees but he admitted that experienced employees are retained over inexperienced ones. He testified that the laid-off employees are not recalled but are rehired if they reapply when needed, but he modified this testimony by admitting that such employees are recalled by telephone, by word sent them, and by mail, and further testified that two-thirds of those laid off are always rehired. From a fair evaluation of Superintendent Bancroft's not too clear testimony it would seem that with the possible exception of the seasonal layoff the Respondent's plant operates as does any other, with a complement of employees who are con- sidered "regulars," who although they have no seniority rights are nevertheless re- tained year after year on the basis of skill and experience which is of course acquired 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by length of service, that other employees are more or less casual help, hired only dur- ing peak production but that two -thirds of these employees may well be classed as "regular casuals" as they are reemployed after every seasonal layoff. B The discriminatory discharges 1. Arvid Labor Arvid Labor testified without contradiction and credibly that he was first employed by the Respondent December 15, 1950, and worked steadily until the strike (July 2, 1953 ), always being recalled immediately following the annual "Christmas-New Year lay off" to his job in the "small plant" where he was a setup man and operated a variety of machines when necessary , that he testified in the representation case ( 1-RC-3170) being steward for the Union ; that he was shop chairman on the Union's negotiating committee which met with the Respondent, that he participated in the strike (July 2- September 21, 1953 ); served on the picket line, was recalled to work September 29, 1953, after the applications for reinstatement were made September 21, but that he was not returned to his old job in the "small plant," but was given a job in the "large plant" at a wage of 80 cents per hour, and that he was laid off December 18, 1954, at which time he had the following conversation with Superintendent Bancroft: He says, "I will have to lay you off as one of them ." "Well," I said, "I will have to take it the same as the rest , but you will let me know when there is work so I can come back again." "Yes ," he says, "I will let you know when I want you back to work." I said , "It won't be necessary for me to come down to the shop and take your time, will it?" He says, "No, I will let you know." Bancroft testified he did not recall the conversation but "I usually tell them that any way." Labor testified that he did not apply for reinstatement from the time of his layoff until May 1954,3 when he applied to Bancroft , that he was recalled to work by a post card from the Respondent , calling him to return on May 24, 1954; that he was not put back at his previous job in the "large plant" but was given a job in the ware- house at a 10-cent an hour increase in pay. Labor testified that prior to his layoff on December 18, he testified as a witness in Case No. 1-CA-1488 4 Superintendent Bancroft testified Labor was laid off on December 18, 1953: Because of his inability to turn out the amount of work that was ordinarily done and also because of the drinking , I decided that I would let him go at that time. With respect to Labor's work Bancroft testified that on Labor 's being returned to work after the strike he operated a nailing machine, ran a sander and bandsaw, but "he wasn't able to turn out the amount of work that the average nailer machine op- erator could turn out"; that therefore it was necessary to furnish Labor help on his work, principally because he could not do the framing of boxes he nailed and keep up the other work as well and therefore it required "two or three" others helping Labor to "keep up with the work" one man should have done. Bancroft admitted however that except for momentary observation of Labor as Bancroft walked through the plant, his only knowledge of Labor's performance came from the daily work report Labor was required to turn in. Labor's job was rated as piecework, although Labor testified he was always under the impression he worked on straight time of 80 cents per hour. Under the Re- spondent's system, the employees on piecework kept a card record of each job per- formed each day which was turned into the office . Each job carried a piecework rate, if the sum of all jobs required on a piecework basis amounted to more than a day's pay at the employees' day rate, the employee received the excess , if it was less the Re- spondent absorbed it and entered the amount on the card as a "loss." The Respondent introduced Labor's work record cards , originally filled out by him, and figured by the office . The cards cover the period October 1, 1953, to De- cember 17, 1953. The records disclose the following. October-23 days worked . "Loss" on 15 days. 3 The charge in the instant matter was filed April 9, 1954 a Heard December 1-9, 1953 The Trial Examiner 's report of the case reflects Labor's testimony at the hearing, damaging to the Respondent N. D. CASS COMPANY The "losses" for the first 2 weeks in October run as follows: 3 20 4.11 3.41 1.91 1.80 .61 2.60 1.52 3.46 2.28 1.21 .68 1.21 411 A total of $28.00 Of these 13 "losses," only 5 cards show that Labor operated the nailing machine. The cards show that on the days part of Labor's work was operating the nailing machine the "losses" amount to $4.10. Labor earned his day rate or more on 14 days on which together with other work he operated the nailing machine. The October cards also show that during the last 2 weeks of October, Labor made "loss" only on 2 days. They were: .83 .30 Labor testified that he was not familiar with the work he was given after the strike. Bancroft admitted he assigned Labor to the job without any knowledge as to his experience on the work. Apparently Labor had learned the technique of the job after the first 2 weeks. The November work cards show: 15 days worked, "Losses" 5 days. The losses run: .16 .91 .48 .75 .35 A total of 2.65 On 4 days which show losses, Labor operated the nailing machine as part of his work. Of the 10 days on which Labor earned his day rate or more he operated the nailing machine, together with other jobs, on 9 days. In December the cards show that Labor worked 15 days. Only two "losses" are shown: .13 1.27 The card showing the 1.27 "loss," also bears a notation "Machine out of order." Both days showing "loss," also show nailing. Of the 13 days showing no "loss," Labor did nailing on 11 days and framing on 9 days. He did both nailing and framing on the same days during this period. The record is clear that Labor was not criticized for the amount or character of his work. The Respondent did not call Labor's direct immediate supervisor to testify as to Labor's work or ability. The Trial Examiner is convinced and finds that the work record as submitted and the record as a whole does not show that Labor was discharged in advance of the regular Christmas layoff or that he was not later recalled when the plant ordinarily resumed in January, "because of his inability to turn out the amount of work that was ordinarily done." The Trial Examiner finds that this reason as assigned for Labor's discharge by Bancroft is an obvious pretext and not a real or valid cause therefore. With respect to the Respondent's contention that Labor was "laid off" and not rehired promptly because of his drinking during working time, Bancroft, with- out however fixing the time, testified that Labor's forelady complained to him that 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor "was drinking on the job"; that he watched Labor "out of the window one rest period" and saw him at his car, parked about 100 feet distant, "with a bottle up to his mouth"; that he "could not see well enough to describe the bottle"; that when Labor returned he asked him if he had been drinking but Labor denied it; that be could not smell alcohol on Labor's breath, but that he "could tell . . . by his actions" that Labor had been drinking; he testified: TRIAL EXAMINER: Now, you say you could tell by his actions that he had been drinking. Just tell us what you mean by that. THE WITNESS: There was in his voice, the way he talked. He stammered, and his actions were like a man who was in a sort of a stupor. I could not smell anything on him. Bancroft testified that the Respondent's rules prohibited employees leaving the premises during rest periods, but admitted that for the past 8 years the rule had not been communicated to the employees, either by written notice or verbally. Bancroft further testified that before the above-related incident, which time he also fixed as "a month and a half" before Labor's termination, he observed Labor and another employee drinking from a bottle at Labor's car; he testified the observation was made from an office window during a rest period and testified further that he did not speak to Labor on this occasion but told his forelady about the incident. Labor denied he ever drank liquor on the job or that Bancroft ever spoke to him regarding such drinking or warned him regarding such conduct. Inasmuch as Labor's forelady, who allegedly complained about Labor's "drinking on the job," was not called, and inasmuch as Bancroft did not speak to Labor regarding his drinking the first time he allegedly observed it, but on the second alleged observation noted that "he stammered and his actions were like a man who was in a sort of a stupor," but did not discharge him out of hand , the Trial Examiner, if he credited Bancroft, would, at least by inference , be putting the Respondent on notice that its superintendent was derelict in his duty, however Bancroft did not impress the Trial Examiner as a man who would in any manner act contrary to his employer's interest . Quite the contrary. The Trial Examiner on the entire record , as well as his observation of the two men while testifying, does not credit Bancroft but does credit Labor to the effect that Labor did not drink alcoholic beverages while at his work or during rest periods during working hours. Witnesses called by the Respondent to substantiate the contention that Labor's discharge was for the reasons given by Bancroft failed to do so, for example: Mary Jerris, who has charge of and keeps the Respondent's personnel records, testified that Bancroft hired and discharged all employees and that if an employee was discharged for any reason other than lack of work Bancroft personally made a note on the employees' personnel record card showing the reason for the discharge. Jerris testified further that her records showed only that Labor was discharged for "lack of work." Joseph Henry Stiles, superintendent of the Respondent's toy trunk department in which Labor was employed, testified that Labor was laid off "because of lack of work" in mid-December 1953 because "that is our usual slack period." The Trial Examiner finds that the alleged drinking of alcoholic beverages during working hours by Arvid Labor in no way was a cause for his discharge for the reason that such drinking did not take place as contended by the Re- spondent. Bancroft testified that after Labor's "layoff" and also after the plant reopened in January 1954, there was no need for Labor as others did his work on part-time basis and that after full-time operation of Labor's job became necessary, an em- ployee who proved greatly superior to Labor was hired, although his capabilities were not known to the Respondent at the time of his hiring. Bancroft testified he considered experience and skill when he retained or hired employees There can be no contention that Labor had any seniority rights with the Respondent. As is well argued in the Respondent's brief the Respondent had full and complete right to discharge, transfer, hire, and recall employees. This right is absolute as long as the decisions made under it are not influenced by con- siderations of union affiliation or activity. The Trial Examiner has found that Labor's layoff was not for the reasons given by the Respondent. As to Labor's recall to work, despite his admitted skill in the "small plant," and Superintendent Bancroft's testimony that he valued skill and experience when selecting employees, the Respondent did not recall him for work in that department although Arthur Howard Green,-the superintendent of the "small plant," testified N. D. CASS COMPANY 413 that at the present time the "mill room" in which Labor was employed while in the "small plant" now has 14 employees, about the same number as employed there before the strike and further that some of these were hired after Labor was laid off December 18. If Labor was reemployed after the strike by Bancroft for work in the "large plant" at a time Bancroft had no knowledge of Labor's skills and was put to work at a job on which he had no experience, assuming arguendo that by December 18, he had demonstrated that he was unfit for any job other than casual unskilled work in the "large plant," Bancroft who by this time knew of his former job as a setup man was quite inconsistent in not recalling him for work in the "small plant," where Labor's skill would be valuable, or on the contrary not recalling him for casual employment at unskilled work in the "large plant" especially so, since the record shows that between January 1954, the date of Labor's layoff, and May 24, 1954, the date of his recall, 13 new employees were hired into the department from which he was laid off, and more were hired into other departments including the "small plant." Adding to its inconsistency with respect to Labor, when he was recalled in May, the Respondent gave Labor a job in a wholly different depart- ment at a higher wage rate. Considering all the above as viewed in the light of the Respondent's patent failure to establish its contended reasons for Labor's layoff and its failure to promptly recall him, the Trial Examiner is compelled to the conclusion that the Respondent's inconsistencies with respect to Labor's hire and tenure of employment spell out discrimination. The Respondent's reasons having failed there remain only those reasons advanced by the General Counsel for Labor's early layoff and untimely recall, namely, Labor's union membership and activities including his testifying in Case No. 1-CA-1488. The Trial Examiner so finds. The Trial Examiner finds that Arvid Labor was laid off by the Respondent on December 18, 1953, in advance of the regular normal Christmas layoff and was thereafter refused reinstatement from the normal reopening of the plant in January 1954 until May 24, 1954, because of his membership in and activities on behalf of the Union, including his giving testimony in Case No. 1-CA-1488, all such conduct being in violation of Section 7 of the Act. 2. Laura Labor Laura Labor is the wife of Arvid Labor. Mrs. Labor testified that she was employed by the Respondent in 1951 and until December 1954 had never been laid off, except during the regular annual Christmas shutdown and that during all this time she automatically returned to work when the plant reopened in January. This testimony was not denied. The Trial Examiner on the above is persuaded that Laura Labor was one of those "regular" employees whom Bancroft never "told they were laid off until further notice." Laura Labor testified that prior to the strike (July 2-September 21, 1953), she worked in the "black board department" in the "small plant" and that she was on piecework and earned $1.26 per hour, the day rate for the job being 80 cents per hour. This was also not contradicted. It is apparent that Laura Labor was a skilled operator. Laura Labor further testified, also without contradiction, that she was a shop steward for the Union; that she was a member of the Union's negotiating com- mittee which met with the Respondent; that she participated in the strike and was active on the picket line; and that she was a witness for the Union and testified against the Respondent in Case No. 1-CA-1488.5 Laura Labor further testified that prior to the strike her work was never criticized. All the above-related testimony is credited by the Trial Examiner. Mrs. Labor further testified that she applied for reinstatement together with the other strikers on September 21, 1953, but was not reemployed until September 29, at which time she was hired by Bancroft who placed her to work in the lower mill room of the "large plant"; the work she was given was to carry lumber from a planer, an unskilled labor job paying 80 cents per hour with no piecework possible. Absent a finding that the strike was an unfair labor practice strike the General Counsel cannot contend that the Respondent was under any obligation to return Laura Labor to her former job, however the Trial Examiner is mindful of Bancroft's 6 The Trial Examiner's report in Case No. I-CA-1488 bases findings of 8 (a) (15) in part on Laura Labor's testimony. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony that he considered experience when hiring employees, not so much from the standpoint of the employee but from the standpoint of the Respondent. Bancroft testified that when he put Laura Labor to work after the strike he did not know her "job history" and was ignorant of the kind of work she had been doing or was capable of doing. On cross-examination of Laura Labor (who was out of the plant during the strike), the Respondent sought to establish that the machinery at which she had worked in the "small plant" had been shipped from the plant during the strike and that 19 less people were employed in the "small plant" after the strike. However this was not established. Richard J. Doolin, vice president and comptroller of the Respondent, testified with respect to the moving away of machinery: There was machinery that was moved down that had been bought over a period of a few months prior for shipment down there. TRIAL EXAMINER- Didn't you move machinery from here to Alabama? The WITNESS. Some was bought for the purpose of moving it down. TRIAL EXAMINER: It wasn't operated here at all? The WITNESS: Well, on a standby or temporary basis. Vice-President Doolin further testified: Q. (By Mr. Fuchs) Well, your blackboard line was operated in Cass Toys, was it not, prior to the move to Alabama. A. It is still there, as far as I know. Q. So that if an employee worked at Cass Toys before you moved to Ala- bama, there would be no reason why that employee should not be still work- ing there on the same machine? A. That is right. Laura Labor testified that on December 18, 1953, her immediate foreman, Merle Olmstead, told her she would be discharged as follows: Merle said, "I have got to lay you off tonight," and I told him, "That is all right." He said, "I have talked to Mr. Bancroft and told Mr. Bancroft that it was not essential to lay you people off because there was plenty of work for everybody," but he said Mr Bancroft wouldn't listen. Olmstead was not called to testify as to this incident. Bancroft did not deny it as attributed to him. The Trial Examiner credits Laura Labor. Mrs Labor further testified, credibly, that Olmstead then told her "they will call me back when they needed me." Laura Labor was not recalled at the time of the regular reopening and not offered work by the Respondent until May 5, 1954, despite the admission by Superintendent Bancroft that no cut back in work was ordered or made in the "lower mill room," where Laura Labor was employed, until January 21. It was not denied that Laura Labor performed many skilled jobs '-in the "small plant," yet although the record is clear that new employees were hired for the "small plant" while Laura Labor was off work from December to May, and these new employees worked at jobs she had previously performed, she was not called for work there, although skill and experience were a factor considered in choosing employees. It is also clear that during the period of her unemployment more than a dozen new employees were hired for the "large plant" mill room. Conclusions as to Laura Labor Considering the fact that Laura Labor, who was an active union member, an officer in the Union, and an employee who testified against the Respondent in an unfair labor practice case, together with the fact that she was capable of highly skilled work and earned a high rate of pay, was not returned to her former work at the end of a strike but was given a low paid inferior job and was laid off from this job at a time when there was work for her and not recalled for approximately 5 months, although the department in which she was working was not "cut back" until after she was laid off and then only slightly reduced, and that thereafter while she was kept out of employment new people were hired into the department and plant and new people were also hired into the department in which she worked before the strike to do work she had done there for a long period of time, the Trial Examiner is convinced that the reason for her layoff and untimely recall was some- thing other than the assigned reason of "lack of work." N. D. CASS COMPANY 415 Furthermore when the Trial Examiner considers that Laura Labor is the wife of an employee found to have been discriminated against by the Respondent for exactly the same union activities as engaged in by her, he cannot but recall the first Biblical injunction regarding marriage ,6 and be persuaded that the marriage relationship of the two employees also served to determine the Respondent's discrimination against her. On the entire record, the evidence considered as a whole , and the demeanor of the witnesses the Trial Examiner finds that the Respondent laid off Laura Labor and thereafter failed to recall her promptly because of her membership in and activities on behalf of the Union , including her testifying in Case No . 1-CA-1488, and finds that such conduct is violative of Section 7 of the Act. 3. Laura Gravel Laura Gravel testified she worked for the Respondent "off and on" from 1938 to 1951, as during this period she took leave because of her husband's illness, testifying: It was because I couldn't work. 1 had to be with him part of the time. Gravel further testified that from February 12, 1951, until her last "layoff" on. December 18, 1953, that, with the exception of the time she was out on strike, she worked steadily in the Respondent's plant, that after the usual Christmas layoffs she was "always returned the day after the shop opened up" in January; that she partici- pated in the strike, was active on the Union's picket line, and became a union steward; that she testified in Case No. l-CA-1488; 7 that after the strike (September 2, 1953), she was returned to work in the "lower mill room" where she operated a pull saw, under Foreman Merle Olmstead; and that during her employment from 1951 she had been on various jobs: I have been a stitcher on the sewing machine each year. I have made erasers I have put legs on blackboards, and I have tended to the sticker. I have run the pull saw Gravel was laid off on December 18, 1953 She testified that immediately preceding the layoff her foreman, Merle Olmstead, held the following conversation with her: He came over and told me that he was sorry but he guessed he would have to do it. I said, "Yes, I suppose I am going to be laid off." He said yes. I says, "Well, will I come back when they start up?" He says, "No, you will have to wait until Mr. Bancroft calls you." Olmstead was not called to testify. The Trial Examiner credits all the above- related testimony, which was not contradicted. The record is clear that Gravel and Laura Labor, found to have been discriminated against by the Respondent, were the only employees in the "lower mill room" "laid off" on December 18. It has been found that Olmstead also laid off Laura Labor, telling her at the time that her layoff was not necessary and that he had told Bancroft so 8 Gravel was not recalled at the time the plant reopened after the Christmas shut- down. She testified that in February she asked Bancroft "if there was any chance" of her obtaining work and that Bancroft said "no," and that some time in March she again went to the plant and "asked him [Bancroft] for a job, but "he told me he was sorry but he couldn't use me." Gravel was recalled to work by the Respondent May 5, 1954. Bancroft testified that prior to 1954 the Respondent manufactured summer furni- ture during slack work periods and that Gravel worked on this furniture but that she was "laid off" solely for inefficiency. He testified: 6 Genesis 2 24 Therefore shall a man leave his father and his mother , and shall cleave unto his wife and they shall be one flesh 4 The Trial Examiner 's report in Case No 1-CA-1488 bases findings of 8 (a) (1) on her testimony and discredits Superintendent Bancroft 's testimony relating to Gravel. 8In its brief the Respondent argues It must be noted with significance that Merle Olmstead did not testify, the General Counsel and the Union made no request to take Olmstead's deposition, not was it shown that he was not unavailable to testify Olmstead was a supervisor in the Respondent's plant The burden to disprove statements attributed to him is on the Respondent 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Judge Rose.) Did you put her in any other place in the plant? A. I have had her in several other spots. I tried to work her, but she was just inefficient. Mary Jerris, who was in charge of the Respondent's personnel records and who testified (as found herein) that if an employee was let go for any reason other than lack of work then Superintendent Bancroft noted the reason on the employee's per- sonnel record card, testified as follows, from personnel cards in her possession, that Gravel had been employed by the Respondent from 1938 with breaks in 1953, 1945, and 1946 and further testified: Q. Suppose you give me the last continuous date of employment up to December 18th. A. The last one was February 12, 1951. Q. And then she was employed continuously through December 18, 1953. A. Right. Q. She was laid off for lack of work according to this notation. A. Yes. Q. December 18, 1953, I meant. And is there any comment in Mr. Bancroft's handwriting or in his initials about Mrs. Gravel's being inefficient? A. No. [Emphasis supplied.] The record discloses that Gravel was replaced on her job by a recently employed woman and that all those persons who were employed both in the "lower mill" room and throughout the plant during the period Mr. and Mrs. Labor were discriminatorily denied employment by the Respondent were of course also employed during the period Gravel was denied work. As hereinabove set out Gravel testified that from 1951 to her layoff she not only was a "stitcher" on furniture "each year" but worked at various other jobs not connected with the slack season furniture manufacture. The Trial Examiner is at a loss to understand how an employee who was "just inefficient" evaded discharge from 1938 to 1953; was never "laid off" except during the annual shutdown; was always recalled as soon as the plant reopened after each shutdown; and even rehired after each time she quit work because of the illness of her husband. This puzzle together with Gravel's work record, as kept by the Re- spondent, in the opinion of the Trial Examiner marks the Respondent's excuse for her "layoff" as spurious. On the evidence considered as a whole, and his observation of the witnesses, the Trial Examiner does not credit Bancroft's testimony that he terminated Gravel and failed to promptly recall her because of her inefficiency. To the Trial Examiner it is plain that Laura Gravel was "laid off" and not promptly recalled by the Respondent,9 because of her membership in and activities on behalf of the Union, including her testifying in Case No. 1-CA-1488, and was therefore violative of Section 7 of the Act. Conclusions as to Arvid Labor, Laura Labor, and Laura Gravel The Trial Examiner is convinced and finds on all the evidence in the case, includ- ing the fact that the Respondent failed to establish its contentions with respect to the reasons for the discharge of Arvid Labor, Laura Labor, and Laura Gravel, that the reasons advanced by the General Counsel for discharges are well supported by the record and therefore finds on all the evidence considered as a whole that the Respondent discharged Arvid Labor, Laura Labor, and Laura Gravel on December 18, 1953, and thereafter failed to recall them in January 1954 because of their mem- bership in and activities on behalf of the Union and has thereby discriminated in regard to their hire and tenure of employment, discouraged membership in a labor organization, and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, more particularly Section 8 (a) (3) and (4) and Section 8 (a) (1) thereof. C. The alleged discriminatory discharge Francis E. Bowers Francis E. Bowers testified he was first employed by the Respondent October 5, 1953, after the strike herein referred to; that he worked under Foreman Merle Olm- stead in the "lower mill room," operating a planer, at which job his helper was Laura Q As in the other cases her recall came only after the charge herein was filed. N. D. CASS COMPANY 417 Labor, who "took away " from the planer until December 18 when she was "laid off" being replaced first by a woman worker for 1 day and then by one Sweeney who con- tinued on the job "until the day we were both laid off "; and that he was laid off for the regular Christmas shutdown in 1953 and was automatically returned to work "the first Monday" in January 1954, when the plant was reopened. Bowers further testified that on January 21 , 1954, during a rest period , from 9:20 to 9:30 a. in., "Blackie Sawyer, Royal McLean , Ray Culver , and myself" were in the plant boilerroom and "the subject of the Union was brought up and I talked a good deal about the Union"; that he was "for the Union" but the others , with the exception of one man , not identified, were against it; and that he explained union benefits, such as insurance and safety measures to them, and: I told them, the boys, I said, "If you didn't hide behind the lumber pile when you wanted to talk, the union would be stronger in the shop." Bowers further testified that when he had entered the boilerroom he had brushed against Foreman Olmstead, and that he again saw Olmstead entering the room as he left. According to Bowers he was a member of the Union and had so indicated to fellow employees in the boilerroom "quite a few times," and while Royal McLean was present, however he altered his testimony as to McLean 's presence in the boilerroom on January 21, testifying: I wouldn't say positively that he was there. I couldn 't be absolutely positive that he was there . Most of the days he was in there. On cross-examination , he testified that McLean "might have been there and might not have been there" and again testified: I wouldn't say positively that he was in there every day. He might have been there one day and might not have been . I know he was there the 21st on the day I was talking. Royal McLean, called by the Respondent , denied he had ever been in the boiler- room during January 1954 together with Bowers, or with a group in which Bowers was included He testified that he did see Bowers "going in and coming out" of the boilerroom ; that the only times he saw Bowers in the boilerrom was momentarily as they may have passed in the doorway as Bowers came in and he left but that he was never actually in the room with Bowers. Bowers' testimony regarding the boilerroom incident was confusing . McLean's was equally so and was further obscured by the fact that McLean evaded giving direct answers. The General Counsel sought to show that Royal McLean was a foreman , however, the record shows that McLean had no such supervisory authority as to make his conduct binding on the Respondent with respect to labor relations. The confusion as to the boilerroom discussion or discussions was heightened by further testimony. Chester Culver called by the General Counsel , testified that Bowers, McLean, "a fellow named Blackie," and himself spent a rest period in the boilerroom on January 21. Regarding any conversation at the time Culver testified: Q. Were you talking among yourselves? A. We did. Q. And did Mr. Bowers do some talking? Did he say something? A. I had done the talking first. Q. And then what did Mr. Bowers say? A. After I spoke , he said that he thought it would be a good idea for the union to get in. That is all he said. Q. And you had a general discussion. Did you have a general discussion? A. No. Q. Did you talk about it? A. No. According to Culver "just before the bell rang," marking the end of the rest period, he noticed Foreman Olmstead "right in the door way, about two feet from me" and that just before the men left Olmstead remarked , "I think your goose is cooked." He then changed his testimony to be that he "couldn't say" if Olmstead's remark was made at this time or "a day or two later." As to whether or not Bowers was terminated the day of the incident in the boiler- room, Culver testified: 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Judge Rose) Do you recall when you talked to me that you said to me definitely that Mr Bowers was laid off about three days later after the con- versation in the boilerroom? A. That is what I should think. Q. That is what you told me. A. I ain't sure, but I know it was somewhere around two or three days, I think. Now they tell me it wasn't. That it was the same night. Q. Who told you that it was the same night? A. The boys in the shop. Q When did they tell you that? A. Today. Q. Up to the time that somebody told you that, you believed it was two or three days later A. Yes, two or three days later. In complete fairness to the witness, as well as the General Counsel and the Re- spondent's attorney the Trial Examiner points out that Culver apparently was very hard of hearing and it was clear that his ailment prevented him from grasping the questions as put to him. Bowers further testified that during the lunch hour of the same day as the boiler- room incident (January 21), Olmstead told a group of employees, including Bowers, "there was going to be quite an upheaval in the shop. Quite a lot were going to be laid off"; that at 3.30 p. m. Olmstead told him he was being laid off for "lack of work"; that he asked Olmstead when he would be called back and that: He said that if he was me, that he would find another job somewhere else be- cause it wasn't likely that I would ever be called back to work again. As found herein Olmstead did not testify. Bowers was recalled to work by the Respondent June 15, 1954. Bancroft testified that Bowers was "laid off" for "lack of work"; that President Cass had "cancelled out the orders in the mill room"; that the "cut back" amount to 40 percent in production; and that therefore he let 3 millroom men go, meaning 2 in the millroom proper, namely, Bowers and his helper, Sweeney, and 1 man in the warehouse. At the time, Sweeney had enlisted in the Marine Corps and was waiting call to service. The record is clear that Bowers' machine was operated after his layoff and an employee was put on It full time while Bowers was out of work. The record fur- ther discloses that from January 21, 1954 (the day of the layoff), overall employ- ment in the plant increased An increase in employment and at the same time a 40 percent cut in production are hardly probable Bowers testified without contradiction that his work was never criticized and there is no contention that he was not fully competent. The record is clear that there was considerable new hiring during the period Jan- uary 21-June 15 while Bowers was off work. Of course the Respondent had a right to lay off Bowers and not recall him for any reason whatever, or for no reason at all provided Bowers' legitimate union activity and membership did not enter into the termination of his employment. If Bowers' union sympathies or activities, no matter how slight, caused his layoff and thereafter his late recall, then the matter becomes one of illegal discrimination. Bancroft admitted that "a week or so" before Bowers was laid off Foreman Olm- stead told him (Bancroft) "there had been some kind of an argument in the boiler- room" and that Bowers had been causing some trouble about the Union down there. He further admitted that Olmstead told him Bowers was distributing membership cards for the Union and stated he (Olmstead) "was going to see if he could get one" and that with respect to this suggestion he told Olmstead, "0. K " and at the same time told Olmstead that Bowers' passing out cards was "perfectly all right" if con- fined to other than company time, and told Olmstead to so inform Bowers. Conclusion as to Francis E. Bowers In sum the record does not disclose any union activity by Bowers other than a rest period conversation, however, the Respondent had received a report from Fore- man Olmstead that Bowers had engaged in an argument regarding the Union, was "causing trouble," and was distributing union applications. Bowers testified that during the boilerroom discussion, which forms the base for the union activity which attracted the Respondent's attention to him and allegedly N. D. CASS COMPANY 419 brought forth Foreman Olmstead's statement that Bowers' "goose was cooked," a statement not heard by Bowers, one of those present also favored the Union, and was not thereafter laid off. Incidentally it must be pointed out that Bowers' wife who was also employed in the plant, and who at Bowers' request asked for his reinstatement on several occasions was not laid off. The Respondent's sole reason for Bowers' layoff, namely, "lack of work" is not supported by the record, nor is the failure to recall him promptly for the same reason sustained. Bowers was not an impressive witness The witness called to sustain Bowers' testi- mony that he advocated the Union, and who also volunteered the damaging remark by the foreman, did not add weight to the General Counsel's case However, Fore- man Olmstead, the one witness who could have shed light on the incident as well, as others found herein, was not called. The Respondent's antiunion animus is plain and discrimination in hire and tenure of employment has been found; still, the Trial Examiner is convinced that on the en- tire record and all the evidence considered as a whole a finding that the Respondent illegally discriminated against Bowers would in reality be based on an inference that the Respondent was seeking to rid itself of any employee who favored the Union. The Trial Examiner does not believe that this inference can be drawn on the record but the matter is not free from strong doubt. Being of the opinion that the record by a preponderance of the evidence fails to sustain the allegation that Bowers was discriminatorily laid off and thereafter denied timely reemployment from January 21 to June 15, 1954, the Trial Exam- iner will therefore recommend that the complaint be dismissed insofar as it alleges that the Respondent discriminated in the hire and tenure of the employment of Francis E. Bowers within the meaning of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce in the sev- eral States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that the Respondent cease and desist theretrom and take certain affirmative action which the Trial Examiner finds necessary to effectu- ate the policies of the Act. Having found that the Respondent has discriminated in regard to the hire and tenure of employment of Arvid Labor, Laura Labor, and Laura Gravel within the meaning of Section 8 (a) (3) and (4) of the Act,l° the Trial Examiner will rec- ommend that the Respondent make the aforementioned employees whole for any loss of pay they may have suffered by reason of such discrimination, by pay- ment to each of them of a sum of money equal to that which each normally would have earned as wages from the date of the discrimination to the date of reinstate- ment, less any net earnings during such period In computing the amount of back pay due to the discriminatees for this period, the customary formula of the Boaid set forth F. W. Woolworth Company, 90 NLRB 289, shall be applied, and the Respondent shall make available to the Board payroll and other records to facil- itate the checking of the amount due. Although it may seem that no more than loss of wages is involved in any rem- edy, this is not so, because discrimination in hire and tenure of employment "goes to the very heart of the Act " The Trial Examiner will therefore recommend that the Respondent cease and desist from in any manner infringing upon the rights of employees as guaranteed by Section 7 of the Act.ii Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: 10 As the discrimina tees have been returned to work no recommendation of reinstatement is necessary Superintendent Bancroft testified that Arvid Labor was not working at the time of hearing because of an accident As the General Counsel did not pursue the matter the Trial Examiner believes this absence from woik was temporary , L R B v Entwistle 1tfg Co, 120 F 2d 532 (C A 4) 369028-56-vol 112-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent, N. D. Cass Company, Athol, Massachusetts, is engaged in commerce within the meaning of Section 2 (b) and (7) of the Act. 2. Local 154, United Furniture Workers of America, CIO, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Arvid Labor, Laura Labor, and Laura Gravel, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (4) of the Act. 4. By such discrimination which is also interfering with, restraining, and coerc- ing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondent has not engaged in unfair labor practices against Francis E. Bowers. [Recommendations omitted from publication.] Union News Company and Retail Wholesale and Department Store Union, Local 506, Retail , Wholesale and Department Store Union, CIO. Case No. 10-CA-1611. April 22, 1955 DECISION AND ORDER On December 3, 1953, Trial Examiner Bertram G. Eadie 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 Inter- mediate Report attached hereto. Thereafter the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with this Decision and Order.i 1. The complaint herein alleges, in substance, that the Respondent violated Section 8 (a) (3) of the Act by discharging four employees, Bernice Louise Hood, Almogene Nix, Alice B. England, and Julia Mae McClusky, all employees at the Respondent's restaurant located 1 After the hearing the General Counsel, the Respondent, and the Charging Union stipu- lated that the total gross annual sales of the Respondent's interstate restaurant chain for the year 1953 exceeded $10,000,000 This stipulation is hereby received and made part of the record We find that the Respondent is engaged in commerce within the meaning of the Act and that it meets the jurisdictional standards for the restaurant industry. See Bsckfords Inc, 110 NLRB 1904. 112 NLRB No. 57.