Special Wire Goods, Inc.

SPECIAL WIRE GOODS, INC. 67 bargaining representative and warrants setting aside the election.' This is so, regardless of the noncoercive tenor of the Employer' s actual remarks. Accordingly, we find, contrary to the Acting Regional Director, that the meetings conducted by Selvin and Piltzer interfered with the em- ployees' freedom of choice in the election. We shall order that the election be set aside and direct that a new election be held. [The Board set aside the election held on August 26,1955.] [Text of Direction of Second Election omitted from publication.] s Economic Machinery Company, 111 NLRB 947; Oregon Frozen Foods Company, Eta, 113 NLRB 881 ; Richards Container Corporation, 114 NLRB 1435. Special Wire Goods, Inc. and United Steelworkers of America, AFL-CIO. Case No. 1-CA-1913. January 16,1956 DECISION AND ORDER On October 10, 1955, Trial Examiner Thomas N. Kessel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Special Wire Goods, Inc., Worcester, Massachusetts, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the United Steelworkers of Amer- ica, AFL-CIO, or any other labor organization of its employees, by terminating the employment of any of its employees discriminatorily and by thereafter failing and refusing to reinstate them, or by dis- criminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. 115 NLRB No. 15. 68 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD (b) Making statements to employees that their tenure of employ- ment or earnings depend upon withdrawal of their adherence from the Union or interrogating employees concerning their membership in, or activities on behalf of, the United Steelworkers of America, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1). (c) Refusing to bargain collectively with the United, Steelworkers of America, AFL-CIO, as the exclusive representative of all its em- ployees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (d) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protec- tion, or to refrain from engaging in such activities, except to the ex- tent that such right may be affected by an agreement requiring mem- bership in a labor organization as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to John Burke, Arthur A. Sherblom, Roy Stevens, and Earl Dufresne, Jr., immediate and full reinstatement to their former or substantially equivalent positions and make them whole for any loss of earnings suffered as a result of the discrimination against them, in the manner described in the section of the Intermediate Report entitled "The Remedy," and make whole employees Donald Agby, Richard Dumas, Robert Mann, and Anthony Campanile'for any loss of earnings suffered by them as the result of the discrimination against them in the manner described in the section of the Intermediate Report entitled "The Remedy." (b) Post at its plant in Worcester, Massachusetts, copies of the notice attached hereto and marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 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. 1 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." SPECIAL WIRE GOODS, INC. 69 (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social-secu- rity payment records, timecards, personnel records and reports, and all -other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (d) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act as to Robert Sher- blom and Robert Sobol. MEMBER RODGERS took no part in the consideration of the above De- cision and 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 Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in the United Steelwork- ers of America, AFL-CIO, or in any other labor organization of our employees, by discriminating in any manner in regard to hire, tenure, or any term or condition of employment. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights pre- viously enjoyed, and make them whole for any loss of earnings as a result of discrimination against them as set forth in the In- termediate Report and Recommended Order issued by the Trial Examiner of the National Labor Relations Board : John Burke Arthur A. Sherblom Roy Stevens Earl Dufresne, Jr. WE WILL make whole the employees named below for loss of earnings as a result of discrimination against them as set forth in the Intermediate Report and Recommended Order issued by the Trial Examiner of the National Labor Relations Board : Donald Agby Richard Dumas Robert Mann Anthony Campanile WE WILL NOT coerce employees in the exercise of their rights to engage in, or to refrain from engaging in, union activities by interrogating them as to their union membership or activities, in a manner constituting interference, restraint, or coercion in 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8 (a) (1), by making statements to them to the effect that their tenure of employment or emolument de- pends upon their withdrawal from a labor organization or dis- continuance of activities on its behalf. WE WILL bargain collectively upon request with the United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit de- scribed below with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employment, and, if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is : All production and maintenance and shipping and receiv- ing employees employed by Special Wire Goods, Inc., at its Worcester, Massachusetts, plant, exclusive of all supervisors defined in the Act. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right of self-organization, to form labor organizations, to join or assist the above-named 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 engaging in any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in conformity with Section 8 (a) (3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization except to the extent above stated. SPECIAL WIRE GOODS, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and an amended charge filed by the United Steelworkers of America, CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for the First Region (Boston, Massachu- setts ), issued his complaint dated June 23, 1955 , against Special Wire Goods, Inc., herein called the Respondent, alleging that the 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 SPECIAL WIRE GOODS, INC. 71 Act, 61 Stat. 136, herein called the Act. Copies of the complaint, charge, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint as amended at the hearing alleges that the Respondent on March 29, 1955, and thereafter, engaged in conduct violative of the foregoing sections of the Act by laying off or discharging various of its employees named in the complaint because of their union sympathies and activities, by acts of interrogation and remarks to employees calculated to restrain them in the exercise of union activities protected by the Act, and by refusing to bargain with the Union as the representative of the majority of its employees. In substance the Respondent's answer denied the allegations of unlawful conduct in the complaint. At the hearing the Respondent offered various explanations for its conduct with respect to certain of the allegations which will be discussed in detail herein. Pursuant to notice a hearing was held at Worcester, Massachusetts, on July 18, 19, and 20, 1955, before Thomas N. Kessel, the Trial Examiner duly designated to conduct the hearing. All the parties hereto were represented by counsel and an appearance was also entered by an official of the Union. Full opportunity to be heard, to examine and cross-examine witnesses, and produce evidence was afforded all parties. After the hearing the General Counsel filed a brief which has been carefully considered. 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 As alleged in the complaint and admitted in the answer and as stipulated by the parties at the hearing the Respondent is a Massachusetts corporation operating a plant in the city of Worcester, where it manufactures, sells, and distributes wrought iron ware, metal furniture, and parts. Substantial quantities of the products manu- factured by the Respondent are sold and transported from its plant in interstate com- merce to various States. During the calendar year 1954 the Respondent's sales were approximately $150,000, of which approximately 75 percent was made to customers in States outside the Commonwealth of Massachusetts. It is found from the fore- going facts that the Respondent is engaged in commerce within the meaning of Section 2 (6) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, CIO, is a labor organization admitting to member- ship employees of the Respondent. III. THE UNFAIR LABOR PRACTICES a. Evidence relative to the allegations of unlawful conduct The Respondent's plant is a relatively small manufacturing operation in which, on March 29, 1955, approximately 34 rank-and-file employees were employed in a plantwide production and maintenance unit, including shipping and receiving em- ployees, stipulated by the parties as, appropriate for representation under the Act. Union activities among the employees, consisting of discussions concerning union- ization, started about March 22, 1955. On March 24 various employees began signing up fellow employees, and by March 29, 21 signed cards had been procured and delivered to the Union designating it as the collective-bargaining representative. Nineteen of these cards, properly authenticated as to signature, were produced in evidence.' Of these, 17 had been signed on or before March 28. On this latter date the Union sent a letter to the Respondent giving notice of its designation as representative by a majority of the employees and requesting the Respondent to meet with it to negotiate a labor contract. The Respondent conceded that it received this letter during the morning of March 29 and that it was delivered to its attorney who, on March 31, sent a letter to the Union "merely reciting that the letter had been turned over to him and that communication should be made with him." The gravamen of the General Counsel's case is that when the Respondent learned of its employees' movement to become unionized, it immediately undertook to thwart this objective by unlawful means. This it assertedly did by the March 1 Each employee alleged by the complaint to have been discriminatorily laid off or dis- charged was a card signer. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 29 layoffs or discharges of the 11 employees named in the complaint (reduced to 10 by grant of the General Counsel's unopposed motion to strike from the complaint allegations as to employee Ralph Lewis) in reprisal for their union activities and to cause their abandonment of the Union; and by the simultaneous coercive inter- rogations as to union activities and threats to employees for engaging in such activi- ties from George Krikorian, Respondent's president and manager, and his brother Paul, a foreman in the plant and a supervisor within the meaning of the Act. This conduct, the General Counsel contends, is not only independently violative of Section 8 (a) (3) and (1) of the Act but strongly reveals the Respondent's inten- tion to destroy the Union's majority and thereby avoid its statutory obligation to bargain with the Union as representative of that majority in violation of Section 8 (a) (5) of the Act. To support the foregoing allegations and contentions, the General Counsel pre- sented testimony by several of the Respondent's employees. Earl Dufresne, Jr., had been employed for 3 months as a general laborer in plant department 3. It appears from his testimony that Dufresne was the Union's most active adherent in the plant. It was he who had obtained the designation cards for solicitation of the employees, and he alone, between March 24 and 29, procured the designations of at least 11 employees including his own. Dufresne was notified by George Krikorian near quitting time on the after- noon of March 29 that he was being laid off due to a material shortage. He testi- fied that he had thereupon pointed out that a:--shipment of raw materials had been received that day to which Krikorian responded, "Well, there is a layoff until fur- ther notice." As Krikorian was walking away he turned back and said to Dufresne, "Earl, I consider you a good painter, and there is a future in the business for you. If you would like to come down in the office and talk things over and maybe come on my side of the fence there may be a job for you." According to Dufresne, he rejected the offer with the remark "that the grass was greener where [he] was." Krikorian then stated that he was laid off until further notice and nothing more was said. Dufresne related that about 1:30 p. m. on March 29 Paul Krikorian had approached him at his place of work and inquired whether he had signed a union card, point- ing out at the same time that he did not have to answer if he did not choose to do so. He replied that because an affirmative answer would be believed and a negative answer disbelieved Krikorian could take his own choice. The latter told Dufresne to have its his own way and departed. Later that day,. in mid-afternoon, Paul Krikorian again spoke to Dufresne at his place of work in the presence of em- ployees Anthony Campanile, Robert Sherblom, Arthur Sherblom, and possibly Rob- ert Mann. On this occasion Krikorian assertedly related his personal experience as a member of the Maritime Union during World War II and deprecated this "sad experience," emphasizing the expense of his dues and initiation fee and the fact that the union was Communist dominated. Dufresne challenged the accuracy of these remarks, whereupon Krikorian ordered the employees back to' work and the discussion ended. On the Friday following his layoff, April 1, Dufresne called at the Respondent's office to inquire whether there was work for him. This inquiry was addressed to George Krikorian's wife who then went into her husband's office and returned in a few minutes to inform Dufresne that there was not yet work for him. He called at the office again during the next week to receive back pay due him. Dufresne testified that George Krikorian had promised him a pay raise the Saturday before his layoff but that the promised increase had not been included in the pay he received. His complaint on this score to "Angie" the office girl who had handed him his pay was thereupon communicated to Krikorian who came out of his office to discuss the matter with Dufresne. According to Dufresne, he asked Krikorian where his raise was and the latter responded "that after all [he] had done and [his] union activities, [he] shouldn't expect to get the-pay." Dufresne has not been re- called to work by the Respondent. John Francis Burke had started to work for the Respondent on March 15, 1955, and had been employed in plant department 2. While at work about 11 a. m. on March 29, Paul Krikorian, accompanied by employee Robert Sherblom, asked him whether he had signed a union card and Burke stated that he had not. Kri- korian then commented about the high cost of union initiation fees and dues and nothing more was said. About 3:30 p. m. that same day Krikorian again spoke to Burke and notified him that because he had not signed a union card he would be permitted to work the next day but that "the members that had signed the cards would be laid off until the matter of the union had been straightened out." Im- mediately thereafter Burke spoke to employee Donald Agby and related how he had untruthfully told Krikorian he had not signed the card. Agby advised him to SPECIAL WIRE GOODS, INC. 73 tell Krikorian the truth. Burke thereupon revealed to Krikorian that he was a card signer. He testified that he was then told that he "too would have to be laid off until the matter with the Union had been straightened out and that they would get in touch and for [hum] to come back within a week." On April 5 Burke returned to the plant to inquire about work and spoke to Paul Krikorian who indicated that no hiring was taking place. Burke pointed out that other employees who had been laid off had returned and Krikorian acknowledged that they had been recalled. He told Burke that the matter with the Union had not yet been straightened out and that he would be contacted later. Burke has not been recalled. Robert Sherblom was hired by the Respondent in December 1954 and after work- ing at various jobs ultimately became the shipper in department 3 of the plant. His specific duties and functions as shipper are discussed in detail below in con- nection with the issue raised herein concerning his status as an employee or super- visor. Sherblom's activities in behalf of the Union consisted of passing out and receiving from employees signed designation cards which he delivered to Dufresne. He testified that he was notified of his layoff on March 29, 1955, by George Krikorian who had come to the shipping room about 3:25 p . in. and informed him that he was closing down the shop and laying everyone off for a few days because of a material shortage, Exactly how long the employees would be out, Krikorian then added, depended on what his attorney would advise. Sherblom related that although Krikorian did not specify the kind of material which was short, so far as he knew it could only have been wire. This is the basic raw material used in the Respondent's manufacturing processes . Sherblom claimed that a shipment of wire in the neighborhood of 60,000 pounds had been received that day. He further related that earlier in the afternoon of March 29, before he was notified of the layoff, George Krikorian had asked him whether he and his father would be willing to work overtime that night to help get the shipping ready and that they had agreed to do so. According to Sherblom, Paul Krikorian had spoken to him at about 10 a. in. on March 29 in the shipping room and had asked whether he had heard anything about the Union and who had started it . Sherblom claimed ignorance of these matters. Krikorian then decided to question employees in department 2 over which he was the foreman . Accompanied by Sherblom he approached the aforementioned em- ployees, Agby and Burke, and asked them whether they had signed cards for the Union . Agby admitted that he had , but Burke denied -having done so. Sherblom claimed that Krikorian had said in the presence of Agby, and possibly Burke, that if worst came to worst he and his brother George would close down the shop and everyone would be out of work. Sherblom attributed to Krikorian a remark to Burke concerning the expense of belonging to a union and a further comment to the effect that membership in a union was not advantageous because the Respond- ent could "jack" its rates to a point where they could not be met by employees and .,no union in the United States could make a company keep a man if he couldn't keep the rates." After these remarks Krikorian and Sherblom parted with an admonition from the former to the latter to listen in on the noontime conversations of the men and to report what they might say about the Union . Sherblom returned to the plant on the Monday following his layoff but was not given employment, nor has he since his layoff been recalled to work. Employee Roy Stevens , formerly employed by the Respondent in department 1, had solicited the signatures of three employees and had himself signed a union card. On March 29 he had stopped working at 2:30 p . in. and, before leaving the plant, had notified his foreman, Robert Ford, that he expected to work a long -hitch on the night-shift job he held with another employer but that he would report for work at the Respondent's plant the following morning. Stevens called Ford at the plant between 7 and 8 a. in. the next morning to advise he could not report because he was fatigued from his work of the previous night and was informed by Ford that "all you guys are laid off." This was the extent of their conversation. Stevens returned to the plant 1 or 2 weeks later to pick up his pay, but did not then or subsequently inquire whether there was work for him. The Respondent has not recalled him. Like Roy Stevens , George F. Wardell had worked part time during the day for the Respondent in department 1 and also did nightwork for another employer. On March 29 he stopped work at 3 p . m.( The next morning he called his foreman, Robert Ford, to advise that he would report late for work because of the time he had put in the previous night at his other job . Ford then informed him that everyone in the shop had been laid off, but that he could report . According to Wardell, he arrived at 8 a. in. and during a discussion of the layoff with Ford was told by him it was due to "union business." During the lunch hour Wardell talked to 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD George Krikorian in the presence of Wardell's brother, Benjamin, who also worked for the Respondent. Krikorian asked Wardell whether he had heard about "the big stink," and then added that he did not know who started this union business but wished the men had come to him first as he could have offered them a better deal than the Union would have given them. Nothing else was said. Later that day Wardell quit his job and is no longer employed by the Respondent. Benjamin Wardell had not worked on March 29 because of an injury to his leg. When he reported for work on March 30, Paul Krikorian, his foreman, inquired whether he had signed a union card . Wardell denied having signed a card despite having done so. Krikorian then told Wardell he had laid off "a lot of the fellows" but did not give any explanation for his action . Wardell was still employed by the Respondent at the time of the hearing. b. The Respondent's defense In its answer the Respondent denied that it had discharged the employees alleged by the complaint to have been discriminated against. At the hearing counsel for the Respondent amended the answer to include an admission that all had been tem- porarily laid off except Robert Sherblom, Burke, and Sobol. With respect to Robert Sherblom , the defense was also raised at the hearing that he was not an employee but a supervisor without protection under the Act. Counsel for the Respondent interposed the defense at the hearing that Roy Stevens had voluntarily quit his job. As noted in the introduction to this report, the answer denied the allegations of the complaint concerning remarks, threats , or promises of benefits calculated to coerce or restrain employees in the exercise of their rights to engage in union activities. Finally, regarding the refusal to bargain allegation , the answer contains a general denial and pleads that the Respondent had requested a Board election to determine the Union's representative status. The Respondent's only witnesses were the Krikorian brothers. George Krikorian, who as previously indicated is the Respondent 's president and manager, was the principal witness for the Respondent. He conceded, in accord with the General Counsel's witnesses , that in announcing the layoff to the employees on March 29 he had declared it due to material shortages . While maintaining at the hearing that this was a causative factor, he assigned other contributing reasons. These were the impending seasonal decline in the Respondent's operations , the dislocation in pro- duction resulting from a telephone call on March 29 from the Respondent's principal customer requiring a change in the products being produced on his orders, the completed installation of laborsaving equipment lessening the need for employees in department 3, and the necessity for a complete shutdown of department 3 to overcome the confusion which had set in because of faulty supervision in this department. Krikorian testified that he had been considering a layoff for several days before March 29, but that no definite decision had been reached as to the time when it should be effective or which employees were to be affected until sometime during March 29. During the morning of that day his principal customer's telephone call was received notifying him of changes in style in items being produced. Because there were not on hand shelf units fabricated by the Respondent in department 1 which were to go into the assembly of these items, there would be a consequent lag in production, particularly in the assembly operations performed in department 2, which dictated the layoff of some of the assemblers in that department. Accordingly, it was then determined to lay off employees Agby and Dumas until the lag in pro- duction of shelf units was overcome. At the same time it was decided that all department 3 employees should be laid off because of the installation on the preceding Saturday of a conveyor which eliminated the transportation of equipment by em- ployees of department 3 which had been accomplished by them before then, and because of an alleged uncontrolled situation within the department resulting from Robert Sherblom's faulty supervision. Krikorian related that Agby and Dumas were recalled to work within 2 days of their layoff. Robert Sherblom was replaced by the transfer of another employee to fill his job, and employees Robert Mann and Anthony Campanile who had been laid off on March 29 returned to their jobs on March 31 and April 5, respectively. No other employees were hired to work in department 3, nor, so Krikorian testified, was any employee transferred to this department to perform the work of any other laid-off employees with the exception of the person transferred to fill Sherblom 's job. He added that none of the pro- ductive functions which had been performed by the department 3 employees were ,eliminated following the March 29 layoffs. The activities of this department had, SPECIAL WIRE GOODS, INC. 75 however, diminished as a result of the Respondent's seasonal decline so that in June there was no work and in July very little work done there. Relative to the seasonal nature of the Respondent's operations , George Krikorian testified that the 1955 production peak occurred in March consistent with past experience. He denied that this peak period extended into April although he re- ferred to April as a "wonderful" or "corking" month. He explained that by these terms he meant that April was excellent "profit wise" or "cost wise." The Respond- ent's payroll records showed the following relevant cost data: 1st week of March 1955______ $1,250 4th week of April 1955______ $1,060 2d week of March 1955______ 1,253 Final week of April 1955_____ 994 3d week of March 1955______ 1,314 1st week of May 1955________ 1,107 4th week of March 1955______ 1,536 2d week of May 1955________ 1,081 1st week of April 1955______ 1,183 3d week of May 1955________ 970 2d week of April 1955_______ 1,212 4th week of May 1955_______ 910 3d week of April 1955_______ 1,102 The payroll costs for the first week in June 1955 were $698 and there had been no increase in payroll costs from then until the time of the hearing. Concerning Robert Sobol, one of the employees alleged to have been discrimina- torily laid off or discharged on March 29, Krikorian explained that he had left his work before quitting time on Saturday, March 26, without notice to anyone and that he had been dropped from the payroll on the following Monday, March 28, as a dis- ciplinary measure. Krikorian testified that Sobol did not return to the plant until the following Friday when he came to pick up his pay. At that time Sobol inquired about work and was informed that he would not be employed because of his failure to give notice when he left work the preceding Saturday. Krikorian claimed that it had been expected of Sobol that he would give notice upon leaving work before the end of the day and had been so informed . No notification had been sent him of his disciplinary discharge as it was not the Respondent's custom to send such notices to employees in these circumstances. Regarding Roy Stevens, Krikorian testified only that he had left his work on March 29 after putting in 5 hours and has not returned since then. He specifically denied that Stevens had been laid off, leaving the implication that his failure to work for the Respondent after March 29 was due to Stevens' voluntary absence from his job. Krikorian's testimony as to John Francis Burke is contradictory and it cannot be determined therefrom whether he was trying to establish that Burke had not been laid off on March 29 but had failed to report for work after that date, or whether he had been laid off on March 29 and failed to report despite his recall to work 2 days later. In any event Krikorian testified that all employees who had worked in de- partment 2, and this included Burke, were recalled 2 days after the March 29 layoff. Paul Krikorian testified on direct examination that shortly before noon on March 29 he had talked to Dufresne in department 3 near the paint gang; that he had gone there to inquire about work from his department and that when he saw Dufresne standing there he asked him "if he knew what was behind all this confusion and if he knew about union activities," to which Dufresne replied, "I'm not saying." He thereupon left. He also testified that earlier that morning, at about 11:15 a. in., he had approached Robert Sherblom in department 3 and asked him "if he knew any- thing about the confusion-anything about union starting in the shop." Sherblom told him he knew nothing. He denied any other discussion with, or interrogation of, employees attributed to him concerning union activities. Cross-examined, Krikorian testified that at about 11: 15 a. in. on March 29 he had been informed of the receipt of the Union's letter, adverted to above, by his brother, George. It was this news, and the fact that he had observed a lot of whispering among the men and much walking back and forth by them, that prompted his inquiries concerning the "confusion and union activity." Questioned about Dufresne's testimony concerning Krikorian's ac- count of membership in the Maritime Union, he conceded only mentioning to Dufresne that he had been a member of this union and the fact that he had been in the merchant marine during World War II. c. Evidence relating to Robert Sherblom's supervisory status The Respondent's plant consists of three departments. In departments 1 and 2 the Respondent's products are fabricated and assembled. These products finally reach department 3 where they are cleaned, painted, boxed, and shipped. Krikorian testi- fied that he hired Sherblom in December 1954 with the intention of ultimately assign- ing to him the supervision over department 3, and that during the first interview before Sherblom was hired he had outlined to him the functions of that position and indi- 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cated that he would consider him for this assignment if he were satisfied with his ability to fulfill its requirements. Thereafter, Krikorian related, he did hire Sherblom and told him he was to supervise department 3. Sherblom , however, was not installed in this post until February . 1955. Krikorian first put him through a preliminary training program to familiarize him with the work of the other departments. Sher- blom's initial assignment was to department 1 where he worked for 1 or 2 months. Next he worked in department 2 for a few weeks. On February 14, 1955, Krikorian transferred Sherblom to department 3 and informed him that he was to assume full responsibility for all work done there. In addition to the shipping functions which he was to perform, he was required to collect and turn in the daily production reports made out by each employee in the department and he was authorized to recommend the hiring and discharge of employees and salary increases for them. Krikorian claimed that he also gave full authority and responsibility to Sherblom for maintaining the flow of products through the department . Krikorian main- tained that Sherblom performed all these functions from February to the date of his termination on March 29 . He sought to establish that on the basis of Sherblom's recommendation or approval he had hired employees Robert Mann and Arthur Sher- blom, Robert's father, to work in department 3 and that Sherblom had on his own authority sent department 3 employees to work temporarily in other departments. Krikorian conceded that Mann had been a former employee, he was familiar with his qualifications when he hired him, and that he had interviewed Mann and hired him before discussing the matter with Sherblom . He nevertheless insisted that he had sought Sherblom 's approval for the hire because, as the person responsible for what went on in department 3; Sherblom was "entitled to at least a voice in the opinion with respect to his employees in that particular department ." As to the hire of Arthur Sherblom , Krikorian conceded that Robert Sherblom had merely asked him whether his father could have a job in his department and that he had told Sherblom it was up to him. Krikorian also testified that Sherblom had on two oc- casions submitted written recommendations, together with the daily work reports of department 3 employees , calling for salary increases for certain of these employees. As a further indication of Sherblom 's supervisory status, Krikorian pointed to a meeting he held with all his supervisors , attended by Sherblom , in which production problems were discussed. The record shows that Paul Krikorian, foreman over department 2. is paid $1 35 per hour and that Robert Ford , foreman of department 1, receives an hourly rate of $1.30. Other than Sherblom , these were the only supervisors in the plant on March 29. The record also shows that Sherblom was paid $1.10 when hired in December 1954 and that his rate was subsequently increased to $1.15 per hour. Knkorian claimed this increase became effective when Sherblom was made supervisor in de- partment 3. He conceded that there were on the Company's payroll during Sher- blom's tenure rank-and-file employees whose hourly rate was $1 . 15. No evidence was offered to show hourly rates of other department 3 employees , but there is evidence in- dicating that employees Mann and Campanile received 85 cents per hour. This is revealed by Sherblom's written recommendations to Krikorian for 5-cent per hour in- creases for these employees. The Respondent's payroll records do not contain position designations to indicate that Sherblom was classified as a foreman or super- visor. The Respondent's individual record card for Sherblom does list him as a foreman . The individual record card for Sherblom 's predecessor, claimed by Krikorian to have been a foreman with the same responsibility and authority as Sher- blom, does not designate him as a foreman . Krikorian revealed that this individual had been a 17-year-old boy whose hourly pay had been 90 cents, but who, he insisted, had nevertheless been entrusted with supervision over department 3 em- ployees. The Respondent further introduced in evidence a claim for unemployment compensation filed on March 29, 1955, with the Massachusetts Division of Employ- ment Security by Sherblom in which he designated his occupation as "foreman- shipper." In explanation, Sherblom testified that he had used this designation in order to obtain a better job. Sherblom testified that when he was hired by the Respondent in December 1954 he was assigned to duty as a welder and then, after a month to 6 weeks, repaired jigs and did setup work on machines. He had started at $1.10 per hour and then was raised to $1.15 per hour pursuant to his request after he had worked for the Re- spondent about 8 weeks. He testified that he received his raise before he was trans- ferred to duty as shipper. Upon taking over this job he was instructed to make certain that the Respondent 's products were ready for shipment, but that he was not given authority to hire or discharge employees; that he never had hired or dis- SPECIAL WIRE GOODS, INC. 77 charged -employees, nor had he ever been consulted concerning such action. He denied that he had recommended the hire of his father or Robert Mann to work in department 3, or that he had recommended the transfer of employees from other departments to work in department 3. He also denied that he had recommended wage increases for employees in department 3. Regarding his handwritten reports in which he had obviously made recommenda- tions for increases in behalf of employees Mann , Campanile, and Dufresne, had made praiseworthy comments regarding the latter 's work rating it better than Mann's, and on two occasions indicated that he had sent Dufresne to work for Paul Krikorian, Sherblom stated that he had made these comments at the direction of Paul Krikorian. Sherblom explained that Krikorian had felt that because the former worked with the employees in question that his recommendations would be more influential with his brother, George, than his own . Sherblom testified that other comments in his re- ports concerning employees were also written at Paul Krikorian 's behest, that he had sent Dufresne to work for Krikorian , as stated in one of his reports, because Krikorian had instructed him to do so, and that the purpose of this notation on the report was to enable the office to charge the work of the employee in question to the department where he had actually done his work. Sherblom claimed that Paul Krikorian was the foreman in charge of the men who worked in department 3, and that he spent at least 3 hours each day in this department. Sherblom's main duty was to load the Respondent's products on trucks for ship- ment to customers . In this connection he did a considerable amount of paper work which occupied him together with loading duties from 4 to 5 hours daily. When two trucks had to be loaded simultaneously the other employees of department 3 auto- matically ceased whatever they were doing without being told and joined with Sher- blom in loading the trucks . No instructions were required from Sherblom as to what the men were to do or how they were to do this work. If not enough men were available for these operations Sherblom would tell Paul Krikorian he needed more men and Krikorian would direct Sherblom to take them from their other duties and to put them to work loading . At times Krikorian would send men from department 2 to assist in this operation , and he, too, would help with this shipping after Sherblom quit work at 3:30 p. in. When not engaged in shipping, Sherblom performed the same duties as the other employees in department 3. As previously noted, these duties involved cleaning, painting, and boxing the Respondent's products. All these duties were of the simplest variety, calling for no skill or training and requiring no supervisory direction in their performance by the employees engaged therein. d. Findings and conclusions 1. Interference , restraint, and coercion -In resolving conflicts in testimony of witnesses on opposite sides of this proceeding, I have been influenced by my favorable impression of the forthright , convincing manner in which Earl Dufresne, Jr., John Francis Burke, and Benjamin Wardell testi- fied. I was not equally impressed with the testimony of the Krikorian brothers. I have therefore credited the testimony of the former witnesses as to things said by the Krikorians and rejected the denials of the latter. Because, in my view, Robert Sher- blom was less than candid in his testimony , particularly by failing to make forthright admission that he had written the reports in evidence prepared by him , I have decided to credit his testimony when in confect with that of the Krikorians only where it is corroborated by the testimony of other credited witnesses . In accordance with the foregoing credibility resolutions, I find that the Krikorians engaged in the following conduct calculated to interfere with, restrain, and coerce employees in the exercise of rights under the Act : ( 1) George Krikorian's comment to Dufresne on March 29, after the layoff had been announced , to come over to his side of the fence and that if he did there might be a job for him, which, in the context in which these words were spoken, I construe as a suggestion to Dufresne to abandon the Union in order to retain his employment with the Respondent ; (2) George Krikorian's comment to Dufresne, on the occasion when the latter came to pick up his pay and inquired about failure to receive a promised wage increase, that he ought not to have expected to receive his increase in view of his union activities; (3) Paul Krikorian's notice to Burke, after the latter had truthfully apprised Krikorian in response to his inquiry that he had signed a card for the Union , that he too would have to be laid off until the matter with the Union had been straightened out; (4 ) Foreman Robert Ford's state- ment to employee George F. Wardell, according to the undenied , uncontradicted 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of the latter which I credit, that the March 29 layoff was due to "union business"; and (5) the interrogation of employees Dufresne, Burke, and Benjamin Wardell by Paul Krikorian as to whether they had signed union cards, which in the circumstances of this case, I regard not as mere casual inquiries but as a deliberate attempt to identify union adherents with a consequent coercive effect. I find that by the foregoing conduct of its president and foremen the Respondent violated Section 8 (a) (1) of the Act. 2. Discrimination Although Krikorian assigned several reasons for the March 29 layoffs at the hearing, there is no doubt that the main reason urged in justification of this action by the Respondent was the material shortage Krikorian had announced to the em- ployees when he informed them of their layoffs. He testified that in making his decision to lay them off "I stated to the employees that there was a material short- age, and we have tried to build our case around that material shortage..... Ac- cordingly, he maintained that the layoffs were necessitated by the failure of the supplier of raw wire to deliver sufficient material to keep the employees busy, but added, as he was pressed to specify the precise materials, that a distinction should be drawn between "external" and "internal" materials. The former he defined as the raw wire received in unprocessed form, and the latter as the "component parts" or "shelf units" fabricated from raw material and stored for future assembly of completed products. As his examination proceeded, Krikorian, without wholly abandoning his "external" material shortage explanation, shifted his main reliance on the "internal" shortage theory, for he finally conceded under questioning that there was on hand on March 29 sufficient raw material in the form of coil stock from which shelf units could be fabricated. Apart from the fact that Krikorian had fostered among the employees the im- pression that the shortage announced by him on March 29 was of the "external" variety, as shown by Dufresne's challenging remark to the effect that a shipment had arrived that day, there are these devaluating criticisms of Krikorian's testimony on this subject. Considering the nature of the defense, Krikorian's display of un- certainty and vagueness about the dates and kind of raw material delivered by the supplier to the Respondent's plant, impressed me as an ingenuous attempt to avoid giving definitive proof as to a material fact. I deem it unlikely that having built the Respondent's case around a theory of "material shortage" that he would not in preparing his testimony have familiarized himself with the vital facts by resort to records in his possession. If, on the other hand, he genuinely had as much diffi- culty recalling these crucial matters as his testimony seems to indicate, scant reliance is warranted on his memory of other critical events and circumstances pertinent to this case. As to the production lag claimed to have resulted from lack of shelf units needed to meet the change in production of items occasioned by the March 29 call from the principal customer, I have noted Krikorian's evasion of counsel's inquiry concern- ing the customer's identity, his convenient claim that he kept no record of the call, and his testimony that this call was not followed by written confirmation and that such confirmations are "very seldom" received. Pretensions to such lack of funda- mental business practice in an enterprise with the voluminous details ascribed to it by Krikorian, seem so unlikely as to invite skepticism if not outright disbelief, and I seriously doubt whether there was in fact a telephone call on March 29 from the alleged customer. Adding to this doubt is the circumstance, as related by Krikorian, that the shelf units in short supply had to be produced in department I and the fact, as I have found it, that employee Roy Stevens, who had worked in department 1, was told on March 30 by his foreman not to report for work because he had been laid off. Were there foundation to Krikorian's account about the shelf units it may rea- sonably be assumed that Stevens' services would have been urgently required on March 30 and that absent other unrelated reasons he would not have been laid off. Symptomatic of Krikorian's unconvincing account of the lag and consequent lay- off is his testimony at one point that his recollection of the fact that there was a production lag on March 29 derives from his knowledge that he laid off employees on that date. Such inverse reasoning is a poor substitute for the direct memory of the person who more than anyone else connected with this case was intimately con- cerned with shaping the facts about which he was called to testify. Significantly, Krikorian, in describing the production problems of the Respondent during all the months of the 1955 season which preceded the March layoffs, emphasized the nu- merous calls from his principal customer in that period for changes in his orders, SPECIAL WIRE GOODS, INC. 79 yet no satisfactory explanation was offered as to why in the past such calls had not produced a lag or dislocation such as that claimed to have arisen following the March 29 call. I am not persuaded that any of the employees involved in this proceeding were laid off because of the claimed March 29 production lag. I find no support in the record for the claim that the, Respondent' s seasonal decline influenced the March 29 layoffs. The Respondent's payroll records indicate that there were as many if not more man hours put in by the work force in the week after the layoff as in the preceding week during which the layoffs occurred. More- over, although several times asserting the seasonal factor as a reason for the layoffs, Krikorian explicated other exclusive factors as the reason for the layoff of the specific employees. These factors, he testified, were either the aforesaid produc- tion lag affecting departments 2 and 3, or the installation of the conveyor and the confusion affecting employment in department 3. Concerning the installation of the conveyor and the resultant saving of labor in department 3, there is no proof in the record from which I may reliably determine how many, if any, employees in this department were laid off in consequence thereof. Such evidence as there is in the record on this subject was derived from the examina- tion of- George Krikonan by the Trial Examiner in an effort to obtain with some degree of objectivity the facts necessary to the determination which the Respondent urged in its defense. Thus, Krikorian was questioned concerning the manner by which products and materials had been transported to department 3 and he revealed that this had been accomplished by employees of either department 2 or 3. No other evidence was presented by the Respondent on this point. The record does not, therefore, satisfactorily prove that the labor saving accomplished by the installation of the conveyor dispensed with the transportation duties of department 3 employees rather than department 2 employees, and provides no information as to how many or which department 3 employees were affected by this saving. The assumption is reasonable that no more than 1 or 2 employees from either of these departments had' performed these duties as Krikorian had indicated that usually only 1 employee had regularly transported material between departments 1 and 2. Since there were several department 3 employees laid off, it cannot be determined which one of them, if any, had been terminated because of the installation of the conveyor. The Respondent's proof in this respect is inadequate to sustain the defense. Concerning the defense that the department 3 employees had been laid off because of confusion in the department resulting from faulty supervision by Robert Sherblom, I find that here also there is lack of supporting proof. Beyond George Krikorian's naked claim about the confusion there is not a shred of evidence in the record to indicate what that confusion actually was. (Paul Krikorian did testify descriptively as to confusion in the department on March 29. As to that I shall shortly comment.) Thus, there was no showing as to whether there were infractions by employees of working rules, or a failure by them to perform their work efficiently or diligently, or that the work or the department was lagging or below productive standards set by management. Nothing concededly had been said by the Krikorians on March 29 to department 3 employees to indicate that their layoffs were to restore order or to overcome the confusion in their department. They were told only about material shortages. Nor is there any explanation by the Respondent for the assignment of this reason, if in fact the layoff was disciplinary or to overcome the cause of the confusion. Nor does it appear that any word of warning had ever been spoken to Sherblom or the department 3 employees about the complained of condition in the department. It seems utterly unlikely that no remedial steps would have been taken by a concerned management to correct such a condition by way of warning or reprimand or by instructional methods, and that management would merely have permitted the condition to exist until finally all in the department were laid off. I am not persuaded that this is what happened. I believe, as Paul Krikorian 's testi- mony implies, that the confusion which disturbed the Krikorians was the March 29 whispering and walking back and forth by the department 3 employees which prompted Paul, by his own admission, to inquire from Sherblom about the union activities of these employees. I reject the defense, as unproved, that the department 3 employees were laid off for the reason asserted by George Krikorian. I am satisfied that the employment of Robert Sobol was terminated and that he was not recalled to work for the reasons given by George Krikorian, and find that no statutory violation was incurred by the Respondent's failure to recall him. I also find no violation in the Respondent's layoff or discharge of Robert Sherblom because I am satisfied that he was a supervisor within the meaning of the Act. As such the Respondent could discharge him with impunity even though, as I am convinced by the proof, the reason for this action was his activities in behalf of the Union. In 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluding that he was a supervisor I have been required to make a credibility reso- lution between conflicting testimony of George Krikorian and Sherblom as to the •latter's functions and authority . As I have previously indicated , I was not favorably impressed with Sherblom 's candor as a witness, and this was particularly so regarding his testimony concerning his alleged supervisory status. I have , therefore, credited Krikorian's testimony where it conflicted with Sherblom 's. I find from the former's testimony that when Sherblom was assigned to duty as the shipper in department 3 on February 14, 1955, that he was authorized to recommend the hiring and discharge as well as increases in salary for employees in his department , and that he was also given authority and responsibility for maintaining the flow of production in the department . I assume that when the president of a corporation personally informs an employee that in taking charge of a department he has authority to make the personnel recommendations specified by Krikorian that he does so with the intention of giving serious consideration to them . Accordingly, I conclude that Sherblom was authorized to make effective recommendations concerning the status of em- ployees in department 3 and that he was therefore a supervisor within the meaning of the Act. Consideration of the facts of this case, as I have found them , convinces me that the March 29 layoffs or discharges were motivated by the Respondent 's intent to prevent unionization 6y its employees . On the basis of the findings set out in section III, d, 1, of this report, I am satisfied that when on March 29, 1955, the Krikorians received the Union's claim of majority and request to bargain they sought by direct interrogation to identify those employees who had pledged their support for the Union and proceeded to discharge or lay them off in order to forestall the organizing movement. In addition to the evidence adverted to, I rely, in arriving at the foregoing conclusion, upon the fact that the Respondent's complained of conduct occurred directly after it received the Union 's letter on March 29, the fact that each of the employees affected was an adherent of the Union and that among them were the Union's most active supporters, and the rejection of the Respondent 's explana- tions in justification for its conduct . I find that the Respondent violated Section 8 (a) (3) of the Act by laying off or discharging, for the foregoing reasons, the following employees : John Burke, Arthur A. Sherblom , Roy Stevens, Earl Dufresne, Jr., Donald Agby, Richard Dumas, Robert Mann, and Anthony Campanile. I fur- ther find that the Respondent recalled to employment on March 31 , 1955, employees Agby, Dumas, and Mann, and that employee Campanile was recalled on April 5, 1955, but that none of the other employees discriminated against was ever recalled or reinstated. 3. The refusal to bargain As hereinabove related the Union's bargaining request was sent on March 28 and received by the Respondent on March 29, 1955, and on March 31 counsel for the Respondent had replied to the Union 's letter merely stating that "communication should be made with him ." The Respondent's payroll for the week ending April 2, 1955, lists the names of 38 persons who comprise the total plant force. Included therein are the names of Robert Ford and Paul Krikorian , stipulated to be supervi- sors, and the name of Robert Sherblom , found herein to be a supervisor . Included also is the name of John Merzigian as to whom the Respondent conceded that his interests were more closely aligned with those of management than rank-and-file em- ployees and that he did not belong in a bargaining unit with them . These four per- sons are, therefore, excluded from the appropriate production and maintenance unit. The payroll also lists the names of Roland LeBlanc and Edward Keenan . These in- dividuals were trade school students who had been hired on March 28, 1955, for part-time work when they might be needed to fill in for absent employees , usually on Saturdays. Their first day of employment for the Respondent was not until April 2, 1955 . LeBlanc and Keenan had steady employment during the entire month of April. LeBlanc was subsequently laid off and Keenan voluntarily left his job. Both are back at trade school . During March 28 to March 31, the period crucial to the refusal-to-bargain determination, Keenan and LeBlanc were at best intermittent or 'casual employees and as such not eligible for inclusion in the appropriate bargaining unit.2 Their exclusion therefore leaves a total of 32 employees in the appropriate unit. The General Counsel introduced the signed designation cards of 19 em- ployees properly authenticated as to signature . Of these I have excluded the cards of Robert Sherblom and Robert Sobol . There remain 17 cards of employees in'the 2 Massachusetts Institute of Technology (Lincoln Laboratory), 110 NLRB 1611 ; Rollo Transit Corpotatton; 110 NLRB 1623. SPECIAL WIRE GOODS, INC. 81 appropriate bargaining unit which constitute evidence of representation by the Union of a clear majority in that unit when the request for bargaining was received by the Respondent and was unlawfully refused as alleged. No specific defense was asserted in the answer or at the hearing to the refusal-to- bargain allegation except that the answer states in effect' that the Respondent had requested a Board election to determine the bargaining representative . No evidence, however, was presented to support this averment in the answer and so far as this record shows, no such request was ever made by the Respondent in response to the Union's bargaining request. No defense was interposed challenging the Union's majority, nor was any claim of good -faith doubt as to majority raised . The appro- priateness of the unit, as noted, was stipulated at the hearing. In view of the foregoing circumstances, and considering the Respondent's unlaw- ful conduct aimed at -destroying the Union's majority which directly followed re- ceipt by the Respondent on March 29 of the Union 's bargaining request, I find that the Respondent has on and after March 29, 1955, refused to bargain with the Union in violation of Section 8 (a) (5) 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 con- nection 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 thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused and still refuses to bargain col- lectively with the Union as the exclusive representative of the employees in the appropriate unit described herein. It will therefore be recommended that the Re- spondent bargain collectively, upon request, with the Union as the exclusive repre= sentative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. It has also been found that the Respondent had on March 29, 1955, discrimina- torily laid off or discharged the following employees whom it has not since rein- stated or recalled to employment: John Burke, Arthur A. Sherblom, Roy Stevens, and Earl Dufresne, Jr. It has further been found that the Respondent had on March 29, 1955, discriminatorily laid off employees Donald Agby, Richard Dumas, Robert Mann, and Anthony Campanile, and that it recalled the last named employee on April 5, 1955, and the former three employees on March 31, 1955. It will therefore be recommended that the Respondent be ordered to offer immediate and full rein- statement to their former or substantially equivalent positions , without prejudice to seniority or other rights and privileges , to the foregoing discriminatorily discharged or laid-off employees who have not been reinstated or recalled to employment. The record shows that subsequent to the commission of the discriminatory con- duct by the Respondent on March 29 , 1955 , its business underwent an economic decline and that it thereupon , for justifiable reasons, reduced its work force. It is possible- that some of the employees discriminated against might have been affected in the reduction of operations even absent the Respondent 's unfair labor practices, but the record furnishes no basis for determining the order in which they might have been laid off or discharged . Under these circumstances it is recommended that the Respondent be ordered to offer the aforementioned employees John Burke , Arthur A. Sherblom, Roy Stevens, and Earl Dufresne , Jr., immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges , and, in the event that there is insufficient work for all such employees entitled thereto, to dismiss, if necessary , all persons newly hired after the Respondent's discrimination. If there is not then sufficient work available for the remaining employees and those to be offered reinstatement, all available positions shall be distributed among them without discrimination against any employee because of union membership or activity, in accordance with the system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of its business. Respondent shall place those employees, if any, for whom no employment is available after such distribution , on a preferential 390609-56-vol. 1157. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD list, with priority in accordance with such system of seniority or other nondiscrimi- natory practice heretofore applied by the Respondent in the conduct of its business, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work. It shall also be recommended that the Respondent make whole those employees against whom it has discriminated for any losses they may have suffered because of the discrimination against them by payment to each of them of a sum of money equal to the amount that he normally would have earned as wages from the date of such discrimination to the date of the offer of reinstatement, or placement on such preferential list as the case may be, less his net earnings during said period, with back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. With respect to employees Agby, Dumas, Mann, and Campanile, back pay is due and payable to them only from March 29, 1955, the date of the discrimination against them, to the dates when, as indicated above, they were recalled to employment. As it is possible that one or more of the other employees discriminated against on March 29, 1955, might have been discharged in a subsequent reduction of the work force even if the Respondent's selection had been on a nondiscriminatory basis, this possibility will be taken into consideration in determining the back pay due these employees, in compliance with this recommendation. In view of the nature of the unfair labor practices committed, the commission by the Respondent of similar and of other unfair labor practices may be anticipated. It will therefore be recommended that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, CIO, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By discriminating with respect to the hire and tenure of employment of the employees listed in the Appendix, attached hereto, thereby discouraging the free exercise of rights guaranteed by Section 7 of the Act and discouraging membership in and activities for the above-mentioned labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. All production and maintenance and shipping and receiving employees of the Respondent employed at its Worcester, Massachusetts, plant, exclusive of all super- visors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the means of Section 9 (b) of the Act. 4. On March 29, 1955, and at all times thereafter, the United Steelworkers of America, CIO, was, and now is, the representative of the majority of the Respondent's employees in the appropriate unit described above for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 5. By refusing on March 29, 1955, and thereafter to bargain collectively with the Union as the exclusive representative of all of its employees in the above-described ap- propriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. ` 6. By the foregoing unfair labor practices the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 8. Special Wire Goods, Inc., is an employer within the meaning of Section 2 (2) of the Act and is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 9. The allegations of the complaint as to Robert Sherblom and Robert Sobol have not been sustained. [Recommendations omitted from publication.)