Ra-Rich Manufacturing Corp.

RA-RICH MANUFACTURING CORPORATION 503 The separate supervision and geographical separation of the woods operations in Union and Wallowa Counties weigh in favor of the unit Petitioner requests. But in almost all other significant aspects of their employment, logging department employees in the two counties have interests in common. Not only are the road-building functions of the Wallowa crew comparable to those of the Union County road crew, but the Wallowa County crew has logged substantial quantities of timber in conjunction with right-of-way clearance. Job classifications and content for the Wallowa County crew are identical or quite similar to those for the Union County crew and carry comparable rates of com- pensation. There is substantial interchange and transfer of both per- sonnel and equipment between woods operations in the 2 counties; some employees shift back and forth between the 2 operations regu- larly and in the spring of 1957 the entire Union road crew was trans- ferred to Wallowa County operations for more than 2 months. The Employer's personnel policies, fringe benefits programs, and work methods are uniform throughout the logging department. On the basis of the above facts and the entire record in this case, we find that the employment interests which all logging department em- ployees have in common outweigh those separate interests which might otherwise warrant exclusion of Wallowa County logging employees from the unit Petitioner seeks. Accordingly we find the unit requested by Petitioner to be inappropriate. As Petitioner does not desire the direction of an election in the broader unit of all employees in the Em- ployer's logging department in both Union and Wallowa Counties which we have found appropriate, we shall dismiss the petition. [The Board dismissed the petition.] Ra-Rich Manufacturing Corporation and Aluminum Metal Al- loys, Aircraft Components & Allied Trades, Local 142, Coopers International Union, AFL-CIO. Case No. 2-CA-5182. April 21, 1968 DECISION AND ORDER On October 31, 1957, Trial Examiner John H. 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 Intermediate Report attached hereto. The Trial Examiner also 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 120 NLRB No. 73. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceptions to the Intermediate Report accompanied by supporting briefs.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended , the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.2 Except as hereinabove indicated , the rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except as they are inconsistent with the findings, conclusions, and order set forth below. 1. We find, as did the Trial Examiner, that the Respondent violated Section 8 (a) (1) of the Act in that President Hendel and Superin- tendent Resko threatened employees with reprisals for engaging in union activities and Hendel interrogated them in a coercive manner concerning such activities, as more fully set forth in the Intermediate Report. 2. For the reasons indicated in the Intermediate Report, we also agree with the Trial Examiner's finding that the Respondent violated Section 8 (a) (3) and (1) of the Act by discharging nine named em- ployees on December 11 , 1956, for signing union cards , and by refusing or failing to reinstate them until December 26, 1956, as more fully set forth in the Intermediate Report. The Respondent contends that no back pay should be awarded to these nine employees because (1) they were strikers and (2 ) by engag- ing in picketing during the period from December 11 to 26, 1956, they 'A stipulation of the parties, dated Febi uai y 24 and 25, 1958, correcting the record as to the number of units of production shipped by the Respondent in February 1957, is hereby made part of the record 2 During the course of the hearing, the Respondent requested that the attorney for the General Counsel produce certain prehearing sworn statements made by witnesses for the General Counsel Relying upon Section 102 87 of the Board's Rules and Regulations, Series 6, as amended, the attorney for the General Counsel declined to comply with the request Thereupon , the Respondent caused a subpoena daces teems to issue calling for the pi oduction of such sworn statements The Trial Examiner denied a motion of the General Counsel to quash the subpena Upon appeal, the Board reversed this ruling of the Trial Examiner and quashed the subpena The Respondent now claims that it received the General Counsel's motion in connection with the appeal on the day on which the Board ruled thereon , and thus the Respondent had no oppoi tunity to reply to the motion However , the Respondent does not show that it was prejudiced by the alleged procedural irregularity as it urges nothing now that was not considered by the Board at the time of the ruling on the appeal , nor does the Respondent advance any reason why we should change that ruling except as hereinafter indicated The Respondent contends that the Board erred in Great Atlantic and Pacific Tea Company, 118 NLRB 1280 , in holding that the Supreme Court's decision in Jencks v United States, 353 U S 657, does not require production of documents in Board files , and urges that Great Atlantic and Pacific be overruled . We reject the Respondent's contentions . Pending a determinative ruling upon the question by the Supreme Court, we adhere to our decision in Great Atlantic and Pacific See , Watson Bros Transportation Company, Inc., 120 NLRB 146. RA-RICH MANUFACTURING CORPORATION 505 made themselves unavailable for employment elsewhere and thus incurred willful losses. We find no merit in the first contention. The Trial Examiner, after resolving conflicting testimony, rejected the Respondent's de- fense that the nine employees voluntarily walked out of the plant, and found that the Respondent discharged them. As no reason ap- pears why this credibility resolution should be upset, we have, above, adopted the Trial Examiner's finding in this connection and found that the nine employees were discharged. The dischargees picketed solely in protest against their discharge. The fact that at least two of these discharged employees testified, on cross-examination, that they picketed to gain union recognition falls short of establishing that the discharged employees refused to return to work without union recognition. Indeed, at the time in question, the Union had not made any demand upon the Respondent for recognition and the discharged employees returned to work, when invited to do so by the Respondent, without union recognition. Accordingly, as their loss of pay is attributable solely to their discharge, no basis exists for denying back pay because of their picketing or any other concerted activity. As to the second contention relating to the alleged willful incur- rence of losses, the record shows that the discharged employees en- gaged in picketing the Respondent's plant during the approximately 2-week period in which they were locked out. At least some of them applied for unemployment insurance compensation but they did not otherwise look for other employment. However, not all the discharged employees testified at the hearing. The record is incom- plete as to how the discharged employees spent their time and, particularly, as to what efforts they made to seek other employment during the period in question. Under the circumstances, we shall defer determination of any unresolved back-pay question relating to willful incurrence of losses to the compliance stage of this proceeding. 3. The complaint alleged that the Respondent discharged Edward Baker, as well as the nine employees referred to above, on December 11, 1956, in violation of the Act. According to the Trial Examiner, Baker was not discharged. The Trial Examiner found that Baker became a striker on December 12, 1956, and that the Respondent did not refuse to reinstate him thereafter. Accordingly, he recom- mended dismissal of the complaint as to Baker. We do not agree. In substance, the facts found are as follows : The Union began or- ganizing the Respondent's employees about December 3, 1956, when approximately 11 of them signed union-authorization cards 3 On Tuesday, December 11, 1956, the Respondent assembled the employees I In an election conducted among the Respondent's employees on April 2, 1957, there were approximately 18 eligible voters. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the plant where they were addressed by President Hendel. At the meeting, Hendel told the employees : I hear there is some funny business going on around my back .. . I hear you are trying to get a union in here. . . . There will never be a union in this place as long as I live. I would sooner put a lock on the door first... . Hendel then instructed all employees who had signed union cards to raise their hands. A number of employees raised their hands or admitted that they signed such cards. After instructing Superin- tendent Resko to write down their names, Hendel stated in substance that those employees who had signed union cards were discharged, and instructed them to leave the plant and return on the following Friday for their pay. Thereupon, the nine employees referred to above, all of whom had signified that they had signed union cards, left the plant. Baker, who was employed by the Respondent as a truckdriver, was out on the road at the time and for that reason was not present at the meeting. He was one of the employees who had signed a union card on December 3. Returning to the plant close to quitting time, Baker had a conversation with Superintendent Resko, who stated : "Well, I guess you know what the score is. . . . If you want the union, you are out. If not, you got yourself a job." Stating that he wanted to consider the matter, Baker left the plant. The next day, a picket line having been set up at the Respondent's plant, Baker joined in the picketing. Baker did not return to his job until December 26, 1956, when the Respondent reinstated the 10 employees. In concluding that the Respondent did not discharge Baker, the Trial Examiner reasoned that "Resko's statement merely amounted to a threat to discharge [Baker] if he did not renounce the Union." Although we adopt the Trial Examiner's underlying fact findings as to what transpired with respect to Baker, we do not agree with the Trial Examiner's conclusion drawn therefrom that Baker was not discharged. Under the circumstances, including the treatment accorded the other nine employees on the same day, Superintendent Resko's state- ment reflected the Respondent's policy, as announced by President Hendel, that union adherence was incompatible with continued em- ployment with the Respondent. While Resko permitted Baker to decide whether to continue in the Respondent's employ, Baker could not so continue in conformity with the Respondent's policy unless he repudiated the Union. Under the Act, a choice of this character may not validly be imposed upon employees and is in contravention of the Act. An employee who, when forced by his employer to make such a choice, chooses to exercise his right under the Act to join or RA-RICH MANUFACTURING CORPORATION 507 assist a labor organization and leaves his employment rather than conform to such a management policy, is constructively discharged 4 Accordingly, we find that the Respondent discharged Baker by con- ditioning his future employment upon abandonment of the Union, thereby discriminating with respect to his tenure of employment in violation of Section 8 (a) (3) of the Act, and interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) thereof. 4. The complaint alleged that, in February 1957, the Respondent laid off or discharged Salvatore Taliercio, John McGee, and Lorenz Vogel because of their union activities. The Trial Examiner found, in substance, that the Respondent had economic justification for effect- ing a reduction in force and that the Respondent laid off or discharged the three employees in question for that reason. Accordingly, he recommended dismissal of the complaint with respect to these three employees. We do not agree. Taliercio, McGee, and Vogel signed union cards on December 3, 1956. They admitted that they had signed union cards when ques- tioned at the meeting in the plant on December 11, 1956. As found above, they were discharged for such union activity at that time. On January 29, 1957, at a representation hearing involving the Respondent's employees, President Hendel stated that the Respondent planned to hire 2 or 3 additional employees. Nonetheless, the Re- spondent purportedly discharged Taliercio, the most vocal union ad- herent at the plant meeting, on February 8, 1957, and McGee and Vogel on February 26, 1957, assertedly because of a lack of orders, although admittedly there was work available for them. And, not- withstanding the purported discharges, the Respondent recalled to work the 3 employees in April 1957, shortly after conduct of a Board- directed election in which the votes of these 3 employees were chal- lenged at the instance of the Respondent. In addition, when asked at the hearing in this case whether he intended the separation of Taliercio to be permanent or temporary, Hendel testified : The WITNESS : I didn't intend to hire him back. Being it is a small company we didn't want any trouble. Q. What kind of trouble? A. The men walk out or something like that. On the record thus made, the General Counsel established a prima facie showing of unlawful discrimination. So viewing the record, the Respondent had the burden of establishing by a preponderance of the evidence its affirmative defense that there existed a lack of 4 See, for example, Marathon Electrio Mfg. Corp., 106 NLRB 1171, 1175 (employer held to have constructively discharged four watchmen by conditioning their future employ- ment upon abandonment of their union). 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD orders at the time of the reduction in force. This burden the Respond- ent failed to sustain, as will hereinafter more fully appear. Because of their untrustworthiness as witnesses, the Trial Examiner declined to credit the testimony of President Hendel and Superin- tendent Resko with respect to the alleged lack of orders and an alleged mounting in inventory. However, based upon the testimony of Andrew Phieler, the Respondent's bookkeeper, as to what company records disclosed, the Trial Examiner found that "there was an appreciable slump in the Respondent's orders and that its inventory was high and increasing during the time under consideration herein." 5 This finding of the Trial Examiner is not supported by the record. Phieler testified only as to the number of units in the Respondent's inventory as it stood on the first day of the years 1954 to 1957, in- clusive, and as to the number of units manufactured and the number of units sold or shipped during those 3 years and for each of the first 5 months of 1957. In his testimony, he gave no breakdown as to the number of workers employed, the number of units manufactured, or the number of units sold or shipped for any monthly period ante- dating January 1957. Except as to the total value of products made and sold during 1956, the record contains no evidence as to the volume of the Respondent's business, expressed in dollars for any period. Taking the figures given by Phieler in his testimony at their face value, we note the following. During the period from January 1, 1954, to January 1, 1957, the Respondent's inventory decreased from 933,278 units to 755,888, a drop of 177,390 units. The inventory increase for April 1957, the month in which the Respondent reinstated the 3 employees in question, amounted to 39,606 units, which was 2,662 units more than the inven- tory increase for February 1957, the month when the 3 employees were separated. The Respondent's orders for January 1957, which amounted to 220,069 units, exceeded the monthly average for orders during 1956 by 8,716 units. The Respondent's orders for April 1957, a period described by Hendel as one during which orders were in- creasing to an extent warranting Taliercio's recall, amounted to 156,176 units, which represented a decrease of 15,782 units when com- pared to the orders during February 1957, the month of the reduction in force. While there was an increase in inventory of 22,149 units during January 1957 and of 36,944 units during February 1957, this repre- sented an increase of less than 3 percent for January and little more than 4 percent for February 1957; and, the record does not show 6 Company records, consisting of "the payroll sheets . from . . . 1955 to the pres- ent," . . . "inventory records for 1954, 1955, and 1956" . . . and, "sales records . . . from January 1, 1957 to May 31, 1957," were produced at the hearing. However, no such company records were made part of the record in this case. RA-RICH MANUFACTURING CORPORATION 509 any comparable figures for any preceding January or February when, so far as appears, no reduction in force took place. The slight inven- tory increase during January 1957 appears to be particularly insignifi- cant in view of the fact that, on January 29, 1957, according to Presi- dent Hendel's statement, the Respondent planned to expand its work force by hiring 2 or 3 additional employees. And, although the Re- spondent hired no direct replacements for Taliercio, McGee, and Vogel, the Respondent hired a new employee during the period in question for work in another department of the plant, and Hendel and Resko assisted in doing production work during February and March 1957 which could have been performed by the three employees in question but for their separation. The Respondent argues that its inventory continued to increase during 1957 to such an extent that, if the three employees in question had not been separated, by April 1957 its inventory would have approached what it had been on January 1, 1954, when the Respond- ent was warned by bank creditors to cut down inventory. We are not impressed by this argument. The critical time when the state of the Respondent's operations should be viewed is the time when the Respondent first decided to reduce its work force, during the first week in February 1957. At that time, as already indicated, as com- pared to the inventory of January 1, 1954, the Respondent's inven- tory had dropped by more than 150,000 units; its inventory increase for January 1957 was only 22,149 units; and its orders for January 1957 exceeded by 8,716 units the monthly average for orders during 1956. As also indicated above, the record contains no basis for com- parison to determine whether the Respondent's business operations during the first 4 months of 1957, or any part thereof, differed in any respect from comparable periods in preceding years when, so far as appears, no similar reduction in force took place. On the basis of the foregoing, we conclude that the record does not show by a preponderance of the evidence the existence of economic facts sustaining the Respondent's affirmative defense. Accordingly, and for the reasons hereinafter indicated we find that the Respondent, in effecting the reduction in force, was motivated by a desire to defeat the Union in an anticipated election and to discourage its employees from engaging in union activities. Taliercio, McGee, and Vogel signed union cards. The Respondent showed its hostility toward the Union by questioning its employees concerning their union activities and threatening to close the plant rather than deal with a union. Indeed, the Respondent had dis- charged the 3 employees in question, along with others, about 2 months previously because they signed union cards. The Respondent resorted to the reduction in force in February 1957 at a time when the Respondent could reasonably expect that the Board would issue 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an order for an election to determine whether the Respondent's employees desired to be represented for collective bargaining by the Union.6 The Respondent reduced its force in February 1957, assert- redly because of a lack of orders and a mounting inventory, not- withstanding the fact that, on January 29, 1957, the Respondent announced its intention to expand its work force by hiring 2 or 3 additional employees. At the hearing in this case, as more fully set forth above, President Hendel admitted that at the time of the reduction in force he had no intention of recalling Taliercio, the most vocal union adherent at the plant meeting, because, in effect, Hendel feared that Taliercio might foment a strike or other similar "trouble"; and Superintendent Resko admitted that no check was made of the orders on hand at the Respondent's Ozone Park office at the time that the Respondent decided to reduce its force. In effecting the reduction in force, the Respondent also departed from its normal layoff procedures. Contrary to its custom,' the Re- spondent afforded the three employees in question no advance notice of the impending separation. The Respondent gave them letters advising them of the separation and posted notices in the plant with respect thereto although it had never followed such a procedure before in con- nection with any other reduction in force. The three employees re- ceived checks for their final pay, rather than the usual cash. The checks were prepared at the plant rather than at the Respondent's administrative office, about 20 miles from the plant, where checks were customarily drawn. In the past, the Respondent did not follow any system of seniority in connection with reductions in force. In this in- stance, the Respondent asserts that it followed a policy of strict senior- ity; in point of fact, however, the Respondent retained Ozzie Gerle, who had indicated to the Respondent his opposition to the Union, in preference to Lorenz Vogel, a known union adherent, who had sub- stantial seniority over Gerle and who was considered by President Hendel to be a better employee than Gerle. In this connection, we do not credit the Respondent's claim that Vogel was not qualified to op- erate Gerle's machine, as the Respondent offered Gerle's job to Vogel when he was recalled in April 1957, Gerle having quit in the interim. Furthermore, the Respondent gave conflicting explanations as to the nature of the reduction in force. In the letters given to the affected employees and in the notices posted in the plant, the Respondent as- e The hearing in the representation case took place on January 29, 1957. At the hearing the parties stipulated as to the appropriate unit and no substantial issue was presented for Board determination The Board issued its Direction of Election on March 18, 1957, and the election was conducted on April 2, 1957 The Respondent reinstated McGee and Vogel on April 8, 1957, and Taliercio on April 15, 1957. 'The Trial Examiner erroneously tound that there was no such custom. Superin- tendent Resko testified that such was the custom . We credit such testimony. RA-RICH MANUFACTURING CORPORATION 511 sorted without qualification that the separations were permanent be- cause of a lack of orders . However, in a sworn statement made the day after the Respondent separated McGee and Vogel, President Hendel stated that "McGee and Vogel were laid off temporarily until business picks up." And when they were in fact recalled to work in April 1957, just shortly after the election was held, business had not as yet picked up. Thus, in April 1957, the Respondent had orders for 156,176 units; whereas, in January and February 1957, it had orders for 220,069 and 171,958 units, respectively. In January and February 1957, inventory increased by 22,149 and 36,944 units respectively; whereas, in April 1957, the Respondent's inventory increased by 39,606 units. Under all the circumstances, we are persuaded and find that the Respondent separated the three employees in question because of their known union activity and in order to preclude their voting in the elec- tion and to discourage its employees from engaging in union activities. Accordingly, contrary to the Trial Examiner, we find that the Re- spondent discriminated in regard to the tenure of employment of Taliercio, McGee, and Vogel to discourage membership in the Union, by discharging or ]aying them off, as alleged in the complaint, in viola- tion of Section 8 (a) (3) and (1) of the Act. THE REMEDY In addition to the cease and desist order and the affirmative remedial provisions recommended by the Trial Examiner, which we adopt, we shall order the Respondent to make whole Taliercio , McGee, and Vogel for any loss of pay they may have suffered as a result of the discrimina- tion against them during the period of their separation in February- April 1957. We shall also make a like back-pay provision with respect to Edward Baker for the period from December 11, 1956, the date of his discharge, to December 26, 1956, the date of his reinstatement. All back pay shall be computed on the basis indicated in section V of the Intermediate Report. ORDER Upon the entire record and pursuant to Section 10 (c) of the Na- tional Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Ra-Rich Manufacturing Corporation, Holtsville, New York, its officers, agents , successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their union activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Threatening employees with reprisals for engaging in union activities. (c) Discouraging membership in Aluminum Metal Alloys, Air- craft Components & Allied Trades, Local 142, Coopers International Union, AFL-CIO, or in any other labor organization of its em- ployees, by discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organization, to form, join, or assist the Union named above, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Make whole John Cooney, Salvatore Taliercio, Salvatore Cam- arda, John McGee, Joseph Endres, George Dentel, Lorenz Vogel, Martin Pfeiffer, Lena Vogel, and Edward Baker for any loss of pay suffered by them as a result of the discrimination against them in the manner set forth in section V of the Intermediate Report and in the section of the decision above, entitled "The Remedy." (b) Preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (c) Post at its plant in Holtsville, New York, copies of the notice attached hereto marked "Appendix A." 8 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's authorized representa- tive, be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. s In the event that this Order is e'ifoiced by decree of a United States Court of Ap- peals, these shall be substituted for the wools "Pursuant to a Decision and Oider" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" RA-RICH MANUFACTURING CORPORATION APPENDIX A NOTICE TO ALL EMPLOYEES 513 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Aluminum Metal Alloys, Aircraft Components & Allied Trades, Local 142, Coopers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make whole the employees named below for any loss of pay suffered as a result of the discrimination against them : John Cooney Salvatore Taliercio Salvatore Camarda John McGee Edward Baker Joseph Endres George Dentel Lorenz Vogel Martin Pfeiffer Lena Vogel All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named Union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. RA-RICH MANUFACTURING CORPORATION, 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 charges duly filed by Aluminum Metal Alloys, Aircraft Components & Allied Trades, Local 142, Coopers International Union, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional 483142-59-vol 120-34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for the Second Region, issued a complaint , dated March 29, 1957, against Ra-Rich Manufacturing Corporation , herein called the Respondent , alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer on about April 9, 1957, in which it admitted the jurisdictional allegations of the complaint , but denied the commission of any unfair labor practices. Pursuant to notice , a hearing was held at Patchogue, Long Island, New York, from June 10 to 26 , 1957, before the duly designated Trial Examiner . At the start of the hearing, the General Counsel moved to amend the complaint in several minor re- spects. The motions were granted without objection. At the close of the General Counsel's case, the Respondent moved to dismiss the complaint. Ruling was re- served. The Respondent reviewed its motion at the conclusion of the whole case. Ruling again was reserved . The Respondent's motion to dismiss is disposed of as hereinafter indicated . After the close of the hearing , the General Counsel and the Respondent filed briefs with the Trial Examiner. Based upon the record as a whole, and from his observation of the witnesses, the Trial Examiner makes the following- FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation . It maintains its principal office and plant in the city of Holtsville, New York, where it is engaged in the manufacture, sale, and distribution of pipes, pipe nipples, and related products. During 1956 the Respondent , in the course and conduct of its business operations, caused to be manufactured , sold, and distributed, products valued at in excess of $200,000, of which products valued in excess of $50 ,000 were shipped from said plant in interstate commerce directly to States of the United States other than the State of New York. The complaint alleges, the answer admits , and it is found that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Aluminum Metal Alloys , Aircraft Components & Allied Trades, Local 142, Coopers International Union, AFL-CIO, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The discharges on December 11, 1956 On about December 3, 1956, Morris Larkin, a representative of the Union, went to the Respondent's plant and solicited the employees to sign cards which authorized the Union to represent them as their collective -bargaining agent. Employees Carlos Bongiorno, John McGee, Martin Pfeiffer , Edward Baker, Salvatore Camarda, Lena Vogel, John Cooney, Ozzie Gerle, Lorenz Vogel, George Dentel, and Salvatore Taliercio signed union cards at the time.' During the night of December 10, 1956, Joseph Hendel , president of Respondent, received a telephone call from an unidentified man. Hendel testified that the caller told him that there was "something going on behind your back" at the plant; that he asked the man if a union was involved ; and that the caller answered, "I don't know anything about it. . Talk to the men and you'll find out." On December 11, Hendel spoke to Paul Resko, superintendent of the Respondent 's plant, about the call. They decided to meet with the employees. Resko blew the plant whistle at about 1:30 p. in. on December 11. The employees assembled in the shop outside the office door . Hendel and Resko stood just outside the office door, facing the employees . Hendel said , "I hear there is some funny business going on around my back here . . . . I hear you are trying to get a union in here. . There will never be a union in this place as long as I live. I would sooner put a lock on the door first. . All those men who signed the union cards raise your hands." When the employees did not raise their hands , Salvatore 1 Laikin testified that from 11 to 13 employees signed union cards on December 3 , and that some employees who were present did not sign , stating that they wanted to think it over. RA-RICH MANUFACTURING CORPORATION 515 Taliercio 2 said, "Come on, raise your hand. This is a free country, they can't do nothing to us. . All of us signed the union cards." Employee Richard McDonald said, "Speak for yourself. No, no, I didn't sign no union card." At about the same time Ozzie Gerle said, "I signed a union card but I didn't want to." A num- ber of employees then raised their hands or admitted that they had signed the cards. Hendel instructed Resko to write down their names. Hendel then said, in substance, that those employees who had signed union cards, were discharged and that they "might just as well get their hats and coats on and go . . and come back for your pay Friday." Dentel said, "Come on, let's go." Employees Dentel, Lena Vogel, Lorenz Vogel, Pfeiffer, Joseph Endres, McGee, Cooney, Taliercio, and Camarda, all of whom had admitted that they had signed union cards, then left the plant.3 Hendel denied that he used the word "union" during his talk or that he said any- thing that would lead the employees to believe that they were discharged. Concern- ing the meeting, he was questioned and testified as follows: Q. Did all the men come together at that time?-A. I believe so. I couldn't see if they were all there or not. Q. What happened next?-A. Most of them I guess were there. I said, "Men I think there is something going on behind my back. I would like to know what it is." They all were silent. Q. No one spoke?-A. Then I said, "Speak up, what is it?" One man got up and he said, "We are all together." Q. Who was it that spoke?-A. I believe the first one was Cooney, John Cooney, by the sound of his voice. Q. What did he say?-A. He said, "Well, we ain't making enough money." Q. What did you say?-A. Right after him Sal Taliercio-is that the name- TRIAL EXAMINER: Just give your best recollection. The WITNESS: He said, "I don't make enough money either." I said, "Well, fellows, you are pieceworkers and if you don't work I can't help you. As far as paying you more money, we just pay you for what you do every day." Q. Did any of the other employees speak up?-A. No, that was the only two that spoke. Q. What else did you say?-A. I said, "If anybody can better himself else- where, I will stand in nobody's way.. ... Q. Then what happened next?-A. Well, I said, "Who's all with me and who's against me?" Q. Did anyone speak up?-A. I don't know. There was a roar in there some- where. Q. What did you say next?-A. I said, "Paul, see who's all with us and who's against us. Let them raise their hands... .' He blew the whistle and there was one in the crowd that says, "All right, fel- lows, let's all go." Q. (By Mr. Flauman.) When you said to Paul to take the names of those who are with us and those who are against us-A. I said, "Count the fel- lows who are with us and who are against us." Q. Did he count the men?-A. No, there just was a roar and they all got into a bunch. They said there was no use of doing anything. I said, "Blow the whistle and tell them to go back to work." Resko was questioned and testified in this connection as follows: Q. Did you call the men together?-A. Yes, sir. It was shortly after lunch, I believe, as I remember, and Mr. Hendel told me to blow the whistle. So we called the men around and Mr. Hendel said that he understood-he spoke directly to the men. He said, "Men, I understand that there is something going on behind my back." He said, "I would like to know what it is." Then Mr. Taliercio spoke up-well, they all stood quiet for a minute and then Sal spoke up. He said, "Well, I'm a-sign the union and everybody else." Q. Is that the first time that the word union was mentioned?-A. Yes, sir. 8 Taliercio was ieferred to in the record at tines as "Big Sal " 8 The facts found above concerning the meeting of December 11 are based upon the credited testimony of McGee, Cooney, Dentel, Lena Vogel , and Lorenz Vogel , all witnesses for the General Counsel McGee, Cooney, and Lorenz Vogel testified that Hendel told them that they were "fired " Lena Vogel testified that he said they were "through." Dentel testified to the statement found above However, Dentel testified that he was not present during the whole meeting. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q Continue -A Mr. Hendel spoke up and he said, "Well, we can't afford to make any changes here. If any of you men are dissatisfied with your jobs here you are free to go.". He turned around and said to me, "Take the names of anybody that is dis- satisfied. . Q Mr. Hendel said, "Write down their names"?-A. That's right. Q. What happened then?-A. Then he told me to blow the whistle and tell the men to go back to work. Q. Did you blow the whistle?-A. I blew the whistle, the men started back to their machines and the first thing I know they were all headed for the locker room. . Q. What did the ones who went to the locker room dog-A. They went in and changed their clothes and walked out. Q. Just walked off the job9-A. That's right. Q. Had Mr. Hendel said anything during this meeting that they were fired?- A. No, sir. . Q. Did Mr. Hendel say that he would close down the plant rather than have ,a union?-A. He said if we had to work on any closer of a margin than, we are now, we would have to close the doors. Q. He didn't say because of a union, did he?-A. No, sir Q. Do you recall Mr. Hendel saying that there would never be a union in this plant over his dead body9-A. I didn't. During cross-examination, Resko at first denied and then admitted, after being confronted with a statement in an affidavit that he had given to an agent for the Board, that Hendel said to the employees, "If any of you men have signed up with the union , speak up." He denied the statement again during redirect examination. Employees McDonald and Joseph Laieta appeared at the hearing as witness for the Respondent. Their testimony is in conflict with that of Hendel and Resko. McDonald testified that Hendel said, "Fellows, there will never be a union in this shop; I will close down first." Laieta testified that Hendel told the employees that "somebody called up" and told him that "the boys wanted a union", and that Hendel said, "'who signed the union cards. Give your names to Resko " McDon- ald testified that Hendel told the employees, "Anybody that is dissatisfied can resign right now." Laieta testified that Hendel said, "If anybody is dissatisfied, you can resign and come back for your pay Friday." Both denied that Hendel used the word "fired." Josephine Hess, a clerical worker in the Respondent's office, testified that she was in the office when Hendel talked to the employees; and that she was able to hear only one statement made by Hendel, which was "if any man was dis- satisfied, he could hand in his resignation." It will be noted that the testimony of McDonald and Laieta is in conflict with that of Hendel and Resko, and to some extent supports the testimony of the wit- nesses for the General Counsel. For this reason and since the Respondent's wit- nesses are discredited hereinafter, I have credited the testimony of McGee, Cooney, Lorenz Vogel, Dentel, and Lena Vogel concerning the contents of Hendel's speech, as found above. It is found that Hendel's interrogation of the employees concerning their union activity and his threat to close the plant because of the Union constitute interference, restraint, and coercion. As found above, Edward Baker signed a union card on December 3 He was a truckdriver for the Respondent, and was away from the plant on December 11 when the meeting took place. Baker returned to the plant about 4 p. in., and went to the office where he spoke to Resko. Concerning this conversation, Baker testified that Resko said, "Well, I guess you know the score. . If you want the union, you are out. If not, you got yourself a job."; and that he replied that he wanted to think it over. Resko was questioned and testified in this connection as follows: Q. Give us the conversation.-A. I said, "Eddie, I suppose you know what happened ." He said, "Yes." I said , "Well- Q. What were you referring to?-A. I was referring to this walk-out. He said, "Yes, I know." I said. "Well, whose side are you on, theirs or ours?" He said, "Well, I'll have to think that over." I said, "You better think pretty hard, Eddie, because this is a rather serious situation." With that he left. It was time for him to go home anyhow, so he left. RA-RICH MANUFACTURING CORPORATION 517 Hess was present during the conversation. She testified, "As far as I can remember, I do know Paul [Resko] asked Eddie [Baker] not to walk out on us, or some such words. . the only thing I can positively remember is Eddie saying, "I have to think this over.' " I credit Baker's version of the above conversation. Resko and Hess have been discredited heretofore. Both Resko and Hess are discredited hereinafter. It is found that the above statement of Resko to Baker is violative of Section 8 (a) (1) of the Act. The nine employees who were discharged on December 11 commenced picketing the plant on Wednesday, December 12. Baker joined the picketing and did not return to work after his conversation with Resko. All employees ceased picketing and returned to work on December 26, after receiving the following letter, dated December 20, 1956, from the Respondent: We have been charged by Local 142, CIU, AFL-CIO, that on December 11, 1956, we discharged you. . This is entirely incorrect, since you were not discharged but walked off your job in company with others on December 11, 1956. at about 1:30 PM. On Wednesday, December 12, 1956, in company with others, you picketed our place of business and the sign read "walk out Ra-Rich." Let's not have any misunderstanding. In the first place, you were never discharged and in the second place, your job is open for you to return to work on December 26, 1956, at 8 AM. Considerable evidence was adduced concerning the wording on the picket signs. Lena Vogel, McGee, Cooney, Dentel, Taliercio and Lorenz Vogel all testified to the effect that the picket signs read "lock-out" on the first day of the strike and that the wording was never changed. Resko, Hess, McDonald and Harvey Sanders testified that during the first few days of the strike the signs read "walk-out" or "walked-out"; 4 and that on the following Monday or later the signs were changed to read "lock-out." However, the General Counsel presented two disinterested witnesses, Patrolman Roy Plume and Sergeant and Commanding Officer Frederick Strybing, both of the Brook- haven Town Police. Strybing testified that he went to the Respondent's plant on December 12 at about 8 a. m.; that the picket signs at that time read, "This is a lock- out"; and that he had no recollection of his observations of the signs thereafter. Plume testified that he was on duty at the Respondent's plant on December 12, 13, and 14, from about 7:30 a. m. until 4 p. m.; that he observed two picket signs which read, "lock-out"; and that this wording on the signs was not changed during the above dates. In accordance with the testimony of the witnesses for the General Counsel, I find that the picket signs read "This is a lock-out" during the entire strike. In its brief the Respondent contends, in substance, that the fact that employees Gerle, Nystrom, and Bongiorno continued to work without interference after the meeting on December 11 supports the Respondent's contention that the nine em- ployees named above engaged in a "walk-out" and were not discharged. The Respondent claims that Gerle, Nystrom, and Bongiorno had signed union cards. This contention is rejected. The evidence shows that Nystrom did not sign a union card until some undisclosed date after December 11. Further, the evidence does not show that Nystrom raised his hand or otherwise expressed his preference for the Union at the meeting with Hendel. The evidence does not show that Bongiorno, who was subjecting to intermittent epileptic fits, raised his hand during the meeting. McGee testified without contradiction to the effect that Bongiorno had a fit just before the meeting, and that Bongiorno did not raise his hand so far as he observed.5 As related and found above, Gerle admitted that he had signed a union card, but in effect renounced the Union by stating, "I didn't want to." Thus, in my opinion, the record affords a logical explanation, not inconsistent with the findings herein, of why the Respondent permitted Gerle and Bongiorno to continue their work on December 11. Accordingly, I find that on December 11, 1956, the Respondent discharged Cooney, Taliercio, Camarda, McGee, Endres, Dentel, Lorenz Vogel, Pfeiffer, and Lena Vogel, and thereafter failed and refused to reinstate said employees until December 26, 1956, because of their union activities. I do not find that the Respondent discharged Baker on December 11, 1956, as alleged in the complaint. In my opinion, Resko's statement merely amounted to a 4 Laieta also testified to the above . He joined the strike during the first 3 days, but returned to work on the following Monday. I Bongiorno , Nystrom , and Gerle did not appear as witnesses at the hearing 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat to discharge him if he did not renounce the Union . Baker did not give Resko an answer at the time, and thereafter did not attempt to report for work . He joined the strike on December 12. As alleged in the complaint , I find that the strike was caused and prolonged by the Respondent 's unfair labor practices . However, there is no evidence that Baker attempted to abandon the strike or that the Respondent refused to reinstate him after December 12. For the above reasons, it will be recom- mended that the complaint be dismissed insofar as Baker is concerned. B. The alleged discharges and/or layoffs of Salvatore Taliercio, John McGee, and Lorenz Vogel On December 21, 1956, the Union filed a representation petition with the Board (Case No. 2-RC-8618 ). On January 29, 1957, a formal representation hearing was held at which the Respondent and the Union appeared.6 Larkin testified without contradiction that at the above hearing Hendel stated that the Respondent expected to hire "a few more men. . Two or three at the most." On Friday, February 8, 1957, Taliercio left the plant at 12 noon. He told Resko that he would not be back that day as he had to take his wife to the doctor, and asked him to give his pay to McGee. Resko replied, "Okay," and did not tell him that he was about to be laid off. That night McGee brought him two envelopes from the Respondent. One contained Taliercio 's pay, and the other the following letter, dated February 7, 1957: Your job is terminated for lack of work as of February 8, 1957 , since you have the least seniority in your department. We are reluctant to take this step , but the lack of orders requires it. We have no anticipation that there will be an increase in orders which will enable us to re-hire you , so that you may consider this to be a permanent separa- tion from the company and accordingly , you should seek other employment. Without any warning, the Respondent terminated the employment of Vogel and McGee on February 26, 1957. They each received letters from the Respondent, similar to the above letter to Taliercio . The Respondent also posted in the plant the following "Notice to Employees," dated February 26, 1957: We have this day laid off Lorenz Vogel and John McGee due to lack of work and because they had the least seniority in their departments. We are reluctant to take this step, but the lack of orders requires it. We have no anticipation that there will be any increase in orders which will enable us to re-hire them, and have so advised them that this is a permanent separation from the Company and to seek other employment. We regret the necessity for these lay-offs and at the present time we do not anticipate any other lay-offs. The Respondent reinstated Vogel and McGee to their jobs on April 9, 1957. Taliercio was reinstated on April 15, 1957. The undisputed evidence shows that no new employees were hired to replace Taliercio, McGee, and Vogel. The Respondent contends , in substance, that Taliercio, McGee, and Vogel were laid off because of a large and increasing inventory and because of a lack of orders which was caused by a slump in building construction . The Respondent further con- tends that the selection of these three employees for layoff was made strictly in accordance with seniority. Hendel testified to the effect that during 1954 the Respondent lost $19,000; that the inventory of nipples was "large" at the time; that the Respondent 's accountant advised it to cut down the inventory; that creditor banks wanted the Respondent to liquidate the nipple department because of the large inventory; that during the month of February 1957, the inventory of nipples was "quite large" and increasing; that for this reason and because of a lack of orders due to a slump in the building industry of "from 50 to 70 percent" he decided to terminate Taliercio's employment; that when orders failed to materialize and the inventory of nipples increased "from week to week," as checked by "daily reports," he decided to lay off Vogel and McGee; that these three employees were chnren for layoff after "we checked our men up to see who had the least seniority"; that the Respondent's attorney advised 6 The Board issued an Order in the above proceeding on March 18, 1957, directing an election. The election was held on April 2, 1957. RA-RICH MANUFACTURING CORPORATION 519 giving letters to the employees when they were laid off and posting of the notice in the plant; that he did not expect to rehire the three employees because of the poor business outlook; and that he rehired them in April upon the advice of counsel. Resko testified that he discussed the layoffs of Taliercio, McGee, and Vogel with Hendel; that they decided to cut production and lay off these employees because orders "were very few, they were getting less" and because of the large inventory; that "our facilities [at the plant] for stocking merchandise is very limited, and to keep from filling that space up we have to keep moving it. When we don't move it we get overcrowded. We had just reached our peak, that's all"; that the barrels used to store cut nipples which had not been threaded were "all full"; that Vogel and Taliercio were threaders; that McGee was a cutter; that it was decided to lay off McGee, since there would be a lessened demand for cutting with two threaders laid off; that at the time of the layoffs he checked the orders and the inventory at Hendel's request; that the stock bins (containing threaded nipples) were "filled up"; and that another storage space where boxes of nipples were stacked was "full." Andrew Phieler,7 Respondent's bookkeeper, testified that the nipple inventory on January 1, 1954, was 933,278; that it was 926,765, 736,343, and 755,888 on January 1 of the years 1955, 1956, and 1957, respectively; that the nipple inventory was increased by 22,149 during the month of January 1957, by 36,944 during Feb- ruary, by 14,043 during March and by 39,606 during April; that the inventory was decreased by 28,748 during May 1957; that on May 31, 1957, the nipple inventory was 839,882; that if Taliercio and Vogel had not been laid off, their projected production would have brought the total inventory figure to 911,000 as of May 31, 1957; that the value of the inventory on May 31, 1957, was between $68,000 and $70,000; that on about January 1, 1954, he attended meetings with the Respondent's accountants who "pointed out that one of the main reasons for our unprofitable operation was the fact that we carried a tremendous inventory"; and that the Re- spondent maintained records (present at the hearing) which would show the various sizes of the nipples in the inventory figures presented. The General Counsel contends that the Respondent discharged or laid off Taliercio, McGee, and Vogel, known adherents of the Union, in an attempt to defeat the Union in the election scheduled to be held on April 2, 1957. He raises a number of points in his brief in support of this contention. Since in my opinion the cases of these three employees are close, I shall set forth the General Counsel's arguments in some detail. There can be no question that Taliercio, McGee, and Vogel were known by the Respondent to be strong adherents of the Union. As related and found above, they acknowledged that they had signed union cards at the meeting held on December 11, and the Respondent discharged them discriminatorily on that date. Taliercio par- ticularly demonstrated that he was a strong adherent of the Union at the meeting. Also, the Respondent's union animus clearly has been established. With this back- ground for the present discharges, and in view of the numerous contradictions and conflicts in the testimony of Resko and Hendel, the Trial Examiner has been very skeptical of the Respondent's economic defense. All three employees were laid off without advance notice. The layoffs of McGee and Vogel occurred on a Tuesday and not on a Friday, which was the end of a payroll period. The Respondent for the first time gave letters to laid-off employees and posted a notice announcing the layoffs.8 The employees received checks for their final pay, rather than the usual cash The checks were prepared at the plant rather than at the Respondent's Ozone Park administrative office, about 20 miles distant from the plant, where checks were drawn customarily. The General Counsel contends that by the above the Respondent "radically deviated from long standing layoff procedures." Contrary to the General Counsel's contention, the record does not establish that its was the custom of the Respondent to give advance notice to employees of im- pending layoff. Resko testified, in substance, that the Respondent "generally" noti- 7 Phieler consulted Respondent's records during his testimony These records consisted of sales, inventory, and payroll 8 This is contrary to Hendel's testimony He testified that it was the Respondent's custom to post such notices and to give such letters to employees when layoffs occurred. At the hearing the Respondent stipulated otherwise Further, the evidence conclusively shows Hendel's testimony to be incorrect. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled employees; but that it was not the "custom," since "there is always a chance that things may show an up-spurt of business and we wouldn't have to lay him off." 9 As related above, Hendel testified that the employees were presented with letters and the notice was posted upon the advice of counsel. Standing alone, the above points raised by the General Counsel at most show that the Respondent's action in effectuating the layoffs was precipitate. It is true that the Respondent departed from its usual layoff procedure by giving letters to the employees and by posting the notice; but this departure is understandable, especially in view of the fact that an unfair labor practice charge had been filed by the Union. Hendel testified to the effect that if an employee is laid off and later returned, the seniority of that employee is the sum total of all his periods of employment; and that if an employee quits, then his seniority begins as of the date of his rehiring.lo It does not appear that the Respondent adhered to this seniority policy in this case in at least one instance. Both Vogel and Gerle were threaders. Vogel was first hired by the Respondent in late 1954. He was laid off in March 1955, and was rehired on May 16, 1955. Gerle first was employed by the Respondent on May 12, 1955. Thus, it is clear that Vogel had more seniority than Gerle. As related and found above, Gerle in effect renounced the Union at the meeting held on December 11. Apparently in explanation of this exception, Resko testified that Gerle worked on a "six inch" threading machine; that it took "about three weeks to a month" to train him to operate the machine efficiently; that it would take the same length of time to train another man to operate that machine even though he was an experienced threader; ii and that Gerle also cut pipe. The General Counsel also disputes the Respondent's claim that there was a lack of orders and that the inventory was high during the first few months of 1957. Witnesses for the General Counsel testified generally that there was no apparent slack in the business during this period of time. McGee testified that during the month of February 1957, the stock bins were "practically empty." 12 Dentel, shipping clerk for the Respondent, testified that, so far as he was able to observe, there was no slack in the orders shipped out during January, February, and March 1957. Baker, the Respondent's truckdriver, testified, in substance, that he was paid by the weight of deliveries; and that during the months of January, February, March, and April 1957, there was no drop in the deliveries or in his wages. In conclusion, I believe and find that there was an appreciable slump in the Respondent's orders and that its inventory was high and increasing during the times under consideration herein. This finding is based on Phieler's testimony, which in turn was based upon the Respondent's records. Since the authenticity of the records was not challenged by the General Counsel, I consider them to be more reliable than the general observation of employees. Insofar as the question of the various sizes of nipples contained in the inventory is concerned, the evidence discloses that the Respondent's daily production records showed this information However, the facts were not adduced in evidence. The General Counsel argues that the January increase in the inventory of 22,149 nipples may have represented "the production of one worker [threader] for little more than one day's work." This would be so if it was assumed that no cutting was involved and that the above figure represented one-half inch nipples only. Because of the time element, it may have been impracticable during the hearing to determine the sizes contained in the inventory as of January 1, 1957. In my opinion, an analysis of the figure for the month of January would not have required an unreasonable amount of time. In any event, the records for that month could have been intro- 9 Resko testified that he and Hendel had decided on the layoffs "a few days" before the dates on which Tnhercio, McGee, and Vogel were terminated Mendel testified to the effect that it was not the custom to give employees advance notice of layoff '0 There is evidence in the case which shows that the Respondent did not follow seniority in prior layoffs 11 Hendel testified that it would not have been sound business to lay Gerle off and to replace him with an inexperienced man As related above, M(Gee was a cutter For 2 davs before his termination of employ- ment, he was assigned to threading nipples He testified that at that time there were "a hundred or more" filled barrels of cut but unthreaded nipples stored on the floor, and that in his opinion the time required to thread these nipples would have been from I'/ to 2 months RA-RICH MANUFACTURING CORPORATION 521 duced in evidence. Since the records were available, the Trial Examiner does not feel that it is within his province to indulge in speculation such as the above. The Respondent concedes that there was ample work for the remaining employees after the layoffs, and that these employees were kept busy. The wages of employees were based on piece rates. Therefore, there was no reason for an employee's earnings to drop during the months in question, unless he failed in his production. It is undisputed that there was a large supply of unthreaded nipples on hand. This shows that there was work available for threaders. However, if the Respondent had not laid off Taliercio and Vogel, their production would have added to the already heavy inventory, keeping in mind the decrease in orders Also, in view of the large stock of unthreaded nipples and the decrease in the number of threaders, the layoff of McGee, a cutter, seems reasonable. It has been found, above, that Hendel stated at the representation hearing that he intended to increase his working force, and that he made this statement about a week before he decided to lay off Taliercio. The record is silent as to why he changed his mind. This fact and the question of seniority between Gerle and Vogel add to the doubts as to the Respondent's motive in the layoffs. However, after a careful review of the record, I believe that the evidence preponderates in the Respondent's favor. Accordingly, for the reasons noted above I find that by laying off and/or dis- charging Taliercio on February 8, 1957, and McGee and Vogel on February 26, 1957, the Respondent did not engage in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. It will be recommended that the complaint be dismissed as to these cases. 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 set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that on December 11, 1956, the Respondent discriminated against John Cooney, Salvatore Taliercio, Salvatore Camarda, John McGee, Joseph Endres, George Dentel, Lorenz Vogel, Martin Pfeiffer, and Lena Vogel. It has also been found that the Respondent reinstated said employees to their positions on December 26, 1956. Therefore, it is recommended that the Respondent make whole said employees for any loss of pay they may have suffered by reason of Respondent's discrimination by payment of a sum of money equal to that which they would have earned as wages from the date of the discrimination, December 11, 1957, to the date of reinstatement, December 26, 1957, less their net earnings during such period, the loss of pay to be computed on a quarterly basis in accord- ance with the formula adopted by the Board in F. W. Woolworth, 90 NLRB 289. 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. Aluminum Metal Alloys, Aircraft Components & Allied Trades, Local 142, Coopers International Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating against its employees the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.]