R. K. Baking Corp.

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we have overruled the Union's objections, and the Union failed to receive a majority of the valid votes cast, we shall certify the results of the election. [The Board certified that a majority of the valid votes was not cast for United Hatters, Cap & Millinery Workers International Union, AFL-CIO, and that said organization is not the exclusive representative of the Employer's employees in the unit heretofore found appropriate.] R. K. Baking Corp. and Max Winzelberg Bakery & Pastry Drivers and Helpers Union , Local No. 802, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America I and Max Winzelberg and R. K. Baking Corp., Party to the Contract. Cases Nos. 2-CA-2067 and 2-CB-678. May 6,1958 SUPPLEMENTAL DECISION AND ORDER On March 3, 1953, the National Labor Relations Board issued a Decision and Order in the above-entitled cases,' finding, inter alia, that R. K. Baking Corp., hereinafter referred to as R. K., had dis- criminatorily denied employment to Max Winzelberg, and that Bakery & Pastry Drivers and Helpers Union, Local 802, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, had unlawfully caused such discrimination. The Board's order, inter alia, required R. K. to offer Winzelberg employment as a route salesman, and re- quired R. K. and the Union jointly and severally to make Winzelberg whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the Inter- mediate Report, dated November 13, 1952, in the section entitled "The Remedy." R. K. and ,the Union having failed to comply with the order of the Board, on May 17, 1954, the Court of Appeals for the: Second Circuit entered a decree approving the Board's finding that the Union had unlawfully caused R. K. to discriminate against. Winzelberg, and remanding the proceeding to the Board for the purpose of "hearing and determining the matter of the respondents' specific obligations under the `reinstatement' and back pay provisions of its order." Such a hearing was subsequently held before Trial. Examiner Lloyd Buchanan, and on April 11, 1955, he issued a Supple- i The Board having been notified by the AFL-CIO that it deems the Teamsters' certifi- cate of affiliation revoked by convention action, the Identification of the Respondent Unions is hereby amended. 2 Gottfried Baking Company, at at., 103 NLRB 227. 120 NLRB No. 101. R. K. BAKING CORP. 773 mental Intermediate Report, a copy of which is attached hereto, find- ing that Winzelberg was entitled to immediate employment and to $12,738.11 in net pay. R. K. and the Union both filed exceptions thereto, and R. K. filed a supporting brief. Neither Winzelberg nor the General Counsel filed exceptions. Thereafter, on October 3, 1955, the Board filed a motion with the court of appeals requesting enlargement of the scope of the remand order to enable the Board to receive evidence of all the circumstances surrounding Winzelberg's application for employment, to consider its unfair labor practice findings in the light of such evidence, and then to make such findings and order as would appear to be appropriate. The court granted this motion on November 3, 1955. On April 10, 1956, the Board reopened the record and directed a further hearing before a Trial Examiner "with respect to the bona fides of the com- plainant's application for employment and the respects in which the allegations of fraud made by the Respondent Union may affect the Board's initial findings of unlawful discrimination against the com- plainant." Such a hearing was held before Trial Examiner William F. Scharnikow, who had conducted the original unfair labor practice hearing. On May 31, 1957, Trial Examiner Scharnikow issued a Second Supplementary Intermediate Report and Recommendations, a copy of which is attached hereto, recommending that the Board confirm its 1953 Decision and Order. Thereafter Respondents each filed exceptions thereto and a supporting brief. The Respondents' request for oral argument is hereby denied, since the record, including the exceptions and briefs, adequately presents the issues and the positions of the parties. The Board has reviewed the rulings made by Trial Examiners Scharnikow and Buchanan at the hearings and finds that no prejudi- cial error was committed. The rulings are hereby affirmed.' The Board has considered both Supplemental Intermediate Reports, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of Trial Ex- aminers Scharnikow and Buchanan, with the following modifications. 1. TILE BUSINESS OF THE RESPONDENT EMPLOYER Both R. K. and the Union contend that the proceeding should be dismissed because R. K. allegedly fails to meet the Board's revised jurisdictional standards. However, at the time of the unfair labor practices R. K. was a member of a multiemployer association whose out-of-State sales exceeded $1,500,000 annually.4 Accordingly, its 8 Trial Examiner Buchanan ', retusal to admit evidence regarding the bona fides of Winzelberg's application for employment and R K 's conditional offer of employment, even if erroneous was not prejudicial, since the Board has received and considered such evi- dence pursuant to the enlarged remand 4 N L R. B. v . Gott frtied Baling Co., Inc , et al , 210 F. 2d 772, 755 (C. A 2) 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations at that time met the Board's present, as well as its then, jurisdictional standards.-' Since, furthermore, no contention is made that these circumstances have materially changed, there is plainly no reason for the Board to decline jurisdiction here. In any event, even if R. K. did not meet the Board's present juris- dictional standards, we would nevertheless assert jurisdiction here. As we pointed out in Coca-Cola Bottling Company of Stockton, 110 NLRB 840, relied upon by Trial Examiner Buchanan, the applica- tion of the Board's revised jurisdictional standards to cases where a decision and order has already issued would cause waste of Gov- ernment time and funds and would tend to encourage a disregard for law. While in the instant case the Board's original order against R. K. and the Union may not now be operative, owing to allegations made to the Board by R. K.'s president, Charles Gottfried, during the back-pay hearing and after the court's decree, the considerations presented in Coca-Cola have greater force in the case at bar, in which two supplemental hearings have been held since the decree. Further- more, any modification which the court may have effected in its 1954 decree 6 is due solely to the Respondents' motion to introduce testi- mony by Gottfried which, even if credible, would establish that Gottfried had previously withheld testimony that he participated in manufacturing evidence against Gottfried Baking Company. For the Board to decline jurisdiction at this point because of action, by the court attributable to such improper conduct would in effect permit Gottfried, R. K.'s president and principal if not sole stockholder, to profit by his own wrong. II. THE HEARING ON THE ALLEGATIONS OF FRAUD As indicated above, a hearing was held before Trial Examiner William F. Scharnikow with respect to the bona fides of the com- plainant's application for employment and the allegations of fraud made by the Respondent Union. The principal issue at the aforementioned hearing was ' whether (1) the letter of January 25, 1951, from Winzelberg to Charles Gottfried and Gottfried's reply in his letter of January 27, 1951, were written and exchanged without a prior meeting and arrange- ment between them or whether (2) there was a meeting between Winzelberg and Gottfried at which it was arranged at Winzelberg's suggestion that the letters be exchanged for the sole purpose of bolstering Winzelberg's charge against Gottfried Baking Company (the concern belonging to Charles Gottfried's brother). If the first version, as testified to by Winzelberg and his wife, proves to be 'Insulation Contractors of Soanthern Californtia, Inc., 110 NLRB 638, 639. 0 As modified on petition for rehearing. R. K. BAKING CORP. 775 -correct,-the allegations of fraud would fall. If.the second,,,yersi.on, testified to by Gottfried, proves to be correct, the allegations of fraud would be sustained, and the initial decision finding a violation of the Act, with its accompanying remedial order, would have to be rescinded. Essentially, therefore, the disposition of this issue depends -entirely on the resolution of a factual dispute. The Trial Examiner, after a painstaking analysis of all the evidence adduced at the hearing, rejected Gottfried's testimony concerning his conversation with Winzelberg on December 11, 1950, and also his testi- mony concerning the alleged exchange of the January 1951 letters at Winzelberg's request for the sole purpose of bolstering Winzelberg's unfair labor practice charge against the Gottfried Baking Company. Credibility, by the very nature of the conflict of testimony, is the pivotal point in issue. The Trial Examiner, in arriving at a resolu- tion of this question, considered the substantive defects in Gottfried's testimony and his failure to produce at the original hearing the testi- mony he gave at the hearing on the allegations of fraud. He was obliged to determine the relative general credibility of the two wit- nesses. While Winzelberg's testimony against the Gottfried Baking Company at the original hearing could not be credited in the light of conflicting evidence by other witnesses, Gottfried's testimony con- tained within itself clear indications that he was an unreliable witness. The Trial Examiner accorded serious weight to the fact that, accord- ing to Gottfried's version, he was capable of fabricating evidence which he believed would harm his brother and that he came forward years later with this admission only after he found out that he had hurt himself. In doing so, the Trial Examiner found that Gottfried thus furnished the Board with his own appraisal of his testimony. Accordingly, from this appraisal, as well as the substantive defects in his own testimony, discussed at some length in the Intermediate Re- port, the Trial Examiner concluded that Gottfried's testimony as to the January letters was unworthy of belief. The Board has given very thorough and careful consideration to all of the evidence adduced at the hearing on the allegations of fraud, particularly in the light of the serious implications present in this situation where the integrity of the Board's own processes is alleged to have been impugned, and the Board itself applied to the court of appeals for permission to conduct a supplemental hearing on these allegations of fraud. From its own analysis of this evidence, and in reliance on the Trial Examiner 's factual findings predicated on his personal observation of the demeanor of the witnesses, the Board is in agreement with the Trial Examiner's findings and conclusions. Ac- cordingly, the Board confirms in all respects the orders issued by it on March 3,1953, against the Respondents R. K. Baking Corporation and Bakery & Pastry Drivers and Helpers Union, Local No. 802, Inter- 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America .7 III. WINZELBERG7S RIGHT TO EMPLOYMENT AND BACK PAY We agree with Trial Examiner Buchanan that as of the close of the hearing before him Winzelberg was entitled to employment in a job as route salesman .8 We further find that Winzelberg is entitled to net back pay amounting to $12,438.11 for the period between Jan- 7 In its initial opinion herein of February 15, 1954, the court of appeals, while ap- proving the Board's findings of violations of the Act, rejected as "too drastic" and "too conjectural" those portions of the Board's remedy which were predicated on the view that Winzelberg, absent discrimination, would have been retained by R. K. after Greenhoot's recovery from his illness, as a vacation relief driver and eventually as a permanent route salesman. However, on May 17, 1956, on motion of the Board, the court amended its opinion by withdrawing its partial rejection of the Board's remedy and stated that it would "suspend passing upon" the remedy and would remand the case for hearing on that issue R K contends in its brief to the Board in the back-pay proceeding that the period between the issuance of the court of appeals' initial opinion on February 15, 1954, and the issuance of its amended opinion on May 17, 1954, should be excluded from the back- pay period. There is neither evidence nor claim that R K or the Union refrained from remedying their unfair labor practices during this period in reliance on the court's initial opinion Furthermore, owing to the Board's timely petition for rehearing, filed during a period when Winzelberg was not qualified for back pay because of an illness predating the court's initial opinion, no mandate ever issued pursuant to that opinion Under these circumstances, and since the court in its initial opinion agreed with the Board's unfair labor practice findings, we agree with Trial Examiner Buchanan that Winzelberg should receive back pay between the date that he recovered from his illness and the date that the court issued its amended opinion. Cf. General Drivers, Chauffeurs and Helpers, Local Union No. 886, etc. (Unit Parts Company), 119 NLRB 222. In that case, the Trial Exam- iner found that a union's technique in obtaining dues authorizations violated the Act, but rejected the contention that the union should be compelled to refund such dues. The Board, agreeing with the Trial Examiner's unfair labor practice findings, ordered the refund of such dues without excluding those collected between the date of the Inter- mediate Report and the date of the Board's order. 8 Because the court of appeals has denied motions by R. K. and the Union to enlarge the scope of the remand so as to include evidence regarding the availability of a job for Winzelberg at the time he applied and his qualifications therefor, it is the law of this case that such issues are not presented at this stage of the proceeding In any event, we find, on the basis of the evidence credited by both Trial Examiner Scharnikow and Trial Examiner Buchanan, that R K had a vacancy owing to route driver Greenhoot's illness and that It. K.'s president told Winzelberg that he was qualified therefor ; we deem im- material the question of whether he was in fact qualified for that job. Hargis Truck Line, Inc, 108 NLRB 229, 230 As to Winzelberg's qualifications to fill in for vacation- ing route salesmen and to perform the duties of a permanent route salesman, such jobs were in fact filled by Greenberg, who entered R K.'s employ as Greenhoot's substitute after this job was unlawfully denied Winzelberg, and who, so far as the record shows, did not have Winzelberg's experience as a bakery route salesman with other employers. Had Greenberg's work experience with R. K been added to Winzelberg's previous work experience, Winzelberg would have been at least as well qualified as Greenberg to fill the jobs held by Greenberg. Since all of It. K.'s offers of employment to Winzelberg as to which there is any evidence in the record of the back-pay hearing were of employment less desirable than that unlawfully denied Winzelberg, we deem it unnecessary to pass on, and accordingly do not adopt, Trial Examiner Buchanan's statement that the law of this case precluded Respondents from relying thereon. In its brief to the Board, R. K. contends that should the Board, as recommended by Trial Examiner Scharnikow, reaffirm the remedy contained in its original Order herein, the court's "suspended" characterization (see footnote 7 above) of that remedy as "too drastic" and "to conjectural" would still be applicable. However, unlike the situation at the time of the court's initial opinion, the record now contains concrete evidence as to the incidence of turnover among it. K's route salesmen, and as to It. K's seniority practices, so that these factors bearing on Winzelberg's opportunities for advancement to a route salesman's job, absent discrimination, are no longer matters of conjecture. R. X. BAKING CORP. 777 nary 17, 1951, and April 2, 1955. In so finding, we rely on the find- ings and reasoning of Trial Examiner Buchanan with the following exceptions and modifications : 1. Trial Examiner Buchanan found, and we agree, that but for the discrimination against Winzelberg he would have earned $116.06 a, week for the 6 weeks following January,27, 1951, the date on which he was unlawfully denied employment.' However, Trial Examiner Buchanan inadvertently found that such earnings would have- amounted to $996.36. We hereby correct his arithmetical error, and find that Winzelberg would have earned $696.36 during this period. 2. We find that Winzelberg had a right to be employed as of the close of the back-pay hearing notwithstanding the testimony of Charles Gottfried, R. K.'s president, that on various occasions after the close of the original unfair labor practice hearing Winzelberg told him that he, Winzelberg, was not interested in working for R. K. but was interested only in working for the Gottfried Baking Com- pany. We do not believe that such statements, assuming they were made, evinced a final resolve by Winzelberg not to accept a job as route salesman for R. K., the job which he had been unlawfully de- nied, in view of Gottfried's admission that he never offered Winzel- berg such a job and Winzelberg's efforts to obtain such a job with other employers. In any event, we credit Winzelberg's denial, in effect, that he made such statements. We note that Trial Examiner Scharnikow found Winzelberg to be a more credible witness than Gottfried; that a reason for Winzelberg's making such statements is apparent only if we credit Gottfried's testimony, which for reasons stated supra we do not, that Winzelberg had never wanted to work for R. K. and purported to apply for work there only in order to promote his efforts to obtain work at the Gottfried Baking Company; and that such alleged statements are inconsistent with the uncontra- dicted evidence that during this period Winzelberg sought work as a route salesman at a number of bakeries. 3. On the basis of Winzelberg's credible testimony,1° we agree with Trial Examiner Buchanan that Winzelberg made a reasonable search for work during the back-pay period. He sought work at almost all 9 The parties stipulated to the weekly earnings of the employee who did such work, and also stipulated that such earnings averaged $116 06 a week. As the arithmetical average of the stipulated weekly earnings is only a little more than the average stipu- lated to, and as the General Counsel has not excepted to Trial Examiner Buchanan's use of the latter, we shall also use the latter. w We reject the contentions of R. K. and the Union that Winzelberg is so inherently incredible as a witness that his testimony should be completely disregarded even where, as here, it is uncontradicted. Both Trial Examiner Scharnikow and Trial Examiner Buchanan, - both of whom observed his demeanor on the stand, credited some of his testi- mony even where it was contradicted. Furthermore, the failure of R. K. and the Union to present any contradictory evidence tends to confirm winzelberg's testimony regarding his search for work, since much of it was sufficiently specific to permit easy checking and the back-pay hearing was recessed for 6 weeks to permit R. K. and the Union to investigate it. 778 DECISIONS OF NATIONAL,:LABOR,:•RELATIONS BOARD the bakeries he knew, most of, which refused to consider him for employment because of his difficulties with :the Union. He made a number of applications for work by telephone and vvrote-a letter to-an employment agency seeking work., He also applied for work at three haberdasheries; obtaining a temporary job at one of them and a perma- nent job at another. Under the facts of this-case, we do not believe that Winzelberg's failure to register with the State employment agency establishes lack of diligence in seeking work., In` view of' Winzelberg's long experience as a bakery route salesman,ii he was reasonable in wishing to concentrate most of his search for work,- at least initially, within that field; the-State employment agency, how- ever, informed him that it had no such jobs on file, and so far as the record shows it had never referred him to any such jobs during a previous period of unemployment. 12 Furthermore, Winzelberg sought, and eventually obtained, other kinds of work which paid him less than half of what he would have been paid at R. K.13 4. We find it unnecessary to pass upon, and accordingly do not adopt, Trial Examiner Buchanan's suggestion that R. K.'s policy regarding purchased routes may be inconsistent with the New York State constitution and with R. K.'s system under which its salesmen bid for routes, and any suggestion in the Intermediate Report that such a system would render experience as a swing man valueless to a prospective regular route salesman. 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 : I. The Respondent R. K. Baking Corp., and its officers, agents, successors, and assigns, shall : A. Cease and desist from : 1. Entering into, renewing, or enforcing the clauses of any agree- ment with the Respondent Union or any other labor organization, which requires its employees to join, or maintain their membership in, such organization as a condition of employment, except insofar as such agreement may be permitted by Section 8 (a) (3) of the Act. 2. Encouraging membership in the Respondent Union or in any other labor organization of its employees, by refusing to hire appli- cants for employment unless they are members of such organization in "At the time that R. K. unlawfully refused to hire Winzelberg, he had been working in the baking industry for about 32 years, primarily as a route salesman, and had held only route salesmen's jobs for 11 years. ' The record shows that many bakeries in the area had a practice of hiring route sales- men through the Union. nz Cf N. L. R. B. v. Southern Silk Mills, Inc., 242 F. 2d 697 (C. A. 6), cert. denied, 355 U. S. 821. R. K. BAKING CORP. 779 good standing, or by discriminating in any other manner in respect to their hire and tenure, of employment, -or any term or condition of employment, except insofar as such action may be permitted by Section 8 (a) (3) of the Act. 3. In any like or related-manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act, including their right to refrain from membership in or activity on behalf of the Respondent Union or any other labor organi- zation,except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 1. Offer Max Winzelberg immediate employment as a route sales- man. 2. 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 under the terms recommended in the Intermediate Report issued on November 13, 1952. 3. Post at its plant in New York City, copies of the notice attached hereto marked "Appendix A." 14 Copies of said notice, to be fur- nished by the Regional Director for the Second Region, shall, after being duly signed by said Respondent's representative, be posted by it immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that such notices are not altered, defaced, or covered by any other material. 4. Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. II. The Respondent Bakery & Pastry Drivers and Helpers Union, Local No. 802, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and its officers, agents, successors, and assigns, shall : A. Cease and desist from : 1. Entering into, renewing, or enforcing the clauses of any agree- ment with the Respondent Gottfried Baking Company, Inc., or with the Respondent R. K. Baking Corp., or with any other employer, which require employees to join, or maintain their membership in, 14 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." 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent Union as a condition of employment, except insofar as such action may be permitted by Section 8 (a) (3) of the Act. 2. In any like or related manner causing or attempting to cause the Respondent Gottfried Baking Company, Inc., the Respondent R. K. Baking Corp., or any other employer, or its officers, agents, suc- cessors, or assigns, to discriminate.against any employee or applicant for employment, in violation of Section 8 (a) (3) of the Act. 3. In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed ip Section 7 of the Act, in- cluding the right to refrain from membership in or activity on behalf of Respondent Union or any other labor organization except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 1. Notify the Respondent R. K. Baking Corp. in writing that it does not object to, but on the contrary now requests, that Company to employ Max Winzelberg as a route salesman. 2. Notify Max Winzelberg in writing that it has so advised the Respondent R. K. Baking Corp. 3. Post at the office of Respondent Union in New York City, copies of the notice attached hereto marked "Appendix B." 15 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by representatives of the Re- spondent Union, be posted by it 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 members are customarily posted. Reasonable steps shall be taken by the said Respondent to insure that such notices are not altered, defaced, or covered by any other material. 4. Mail to the Regional Director for the Second Region copies of this notice for posting at the New York plants of the Gottfried Baking Company, Inc., and of the R. K. Baking Corp., such Com- panies willing, in places where notices to employees are posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed as provided in the para- graph above, be forthwith returned to the said Regional Director for said posting. 5. Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 25 See footnote 14, supra. R. K. BAKING CORP. 781 III. The Respondent R. K. Baking Corp. and the Respondent Bakery & Pastry Drivers and Helpers Union, Local No. 802, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and their respective officers, agents, successors, and assigns, shall jointly and severally make Max Winzelberg whole for any loss of pay or earnings he may have suffered because of the discrimination against him, in the manner and to the extent set forth in the section entitled "The Remedy" in the Intermediate Report issued on November 13, 1952, including a loss of pay or earnings through April 2, 1955, amounting to $12,438.11. If possible, one-half of such back pay shall be paid by Respondent Union." MEMBER FANNING took no part in the consideration of the above Supplemental Decision and Order. 'ON. L. R. B. v Puerto Rico Steamship Association, 211 F. 2d 274, 277 (C. A. 1). APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT enter into, renew, or enforce the clauses of any agreement with Bakery & Pastry Drivers and Helpers Union, Local No. 802, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, which requires employees to join, or maintain their membership in, such labor organization as a condition of employ- ment, unless such agreement is in conformity with the proviso to Section 8 (a) (3) of the Act. WE WILL NOT encourage membership in the above-named labor .organization, or in any other labor organization, by refusing to hire applicants for employment unless they are members of the above-named labor organization or of any other labor organiza- tion, or by discriminating in any manner in respect to hire and tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under .Section 7 of the Act, including their right to refrain from mem- bership in or activity on behalf of the above-named Union or any bother labor organization except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Max Winzelberg immediate employment as a route salesman and will make him whole for any loss of earnings suffered as a result of the discrimination against him. 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, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. R. K. BAKING CORP., 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. APPENDIX B NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF GOTTFRIED BAKING COMPANY, INC., AND R. K. BAKING CORP. 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 enter into, renew, or enforce the clauses of any agreement with the Gottfried Baking Company, Inc., with the R. K. Baking Corp., or with any other employer, which require employees to join or maintain their membership in any labor organization as a condition of employment, unless such agreement is in conformity with Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner cause, or attempt to cause, Gottfried Baking Company, Inc., or R. K. Baking Corp., or any other employer, to discriminate against an employee or an applicant for employment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, including their right to refrain from membership in or activity on behalf of any labor organization except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. WE WILL notify R. K. Baking Corp., in writing, and so advise Max Winzelberg, that we do not object to, but on the contrary now request, that Company to employ him as a route salesman. R. S. BAKING CORP. 783 WE wmL make Max Winzelberg whole for any loss of earnings he may have suffered because of the discrimination against him. BAKERY & PASTRY DRIVERS AND HELPERS UNION, LOCAL No. 802, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SECOND SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDATIONS 1. THE PRESENT REMAND AND THE GENERAL HISTORY OF THE PROCEEDINGS TO DATE The present phase of the proceedings in the two above-entitled cases is the result of an enlargement of a remand of these cases to the Board by the Court of Appeals for the Second Circuit, for the purpose of taking certain evidence which had not been offered in the original hearing in 1952, and then determining whether or not those portions of the orders originally issued by the Board i against the two Respondents which were based upon findings of discrimination against the complainant, Max Winzelberg, should stand, should be vacated, or should be modified. The two cases thus remanded to the Board and a third case against the Gottfried Baking Company, Inc. (Case No. 2-CA-1741) were all initiated by charges filed by Max Winzelberg and then, after the Regional Director's issuance of separate complaints and an order consolidating the cases for trial, were tried together before Trial Examiner Scharnikow on various dates from February 4 to May 7, 1952. The complaint against each of the two Employer-Respondents alleged that it had discriminated against its employees in regard to their hire and tenure of employ- ment in violation of Section 8 (a) (3) and (1) of the Act, by executing and main- taining an illegal union-security agreement with the Union, and also by refusing to hire the complainant, Max Winzelberg, because he was not a member of the Union in good standing. The complaint against the Union alleged that the Union violated Section 8 (b) (1) (A) and (2) of the Act by causing each of the Employer- Respondents thus to discriminate against its employees. In addition to the fore- going allegations, the complaint against the Respondent R. K. Baking Corp. alleged that that Respondent also violated Section 8 (a) (4) of the Act, by offering the complainant employment on condition that he withdraw the charges he had filed against the Union. On November 13, 1952, the Trial Examiner isued a single intermediate Report and Recommended Order for all three of these cases and, on March 3, 1953, the Board issued its Decision and Order,2 adopting all of the Trial Examiner's findings, conclusions, and recommendations with respect to the unfair labor practices. In its Decision, the Board, in agreement with the Trial Examiner, dismissed certain portions of each of the complaints. Although the complainant,- Max Winzelberg had testified that, on a number of occasions in 1951, he had applied for employment to Maurice Gottfried, president of the Respondent Gottfried Baking Company, Inc. (for" whom he had worked until December 27, 1949) and had been told by Maurice Gottfried that the Union would not permit the Company to take Winzel- berg back, the ' Board credited Maurice Gottfried's denials both that Winzelberg had asked him for employment and that he had ever refused to hire Winzelberg. The Board therefore dismissed the allegation of the complaint in Case No. 2-CA-1741 ,that the Gottfried Baking Company, Inc., had violated Section 8 (a) (3) and (1) of the Act by refusing to hire Winzelberg, and also dismissed the allegation of 1103 NLRB 227, a 103 NLRB 227. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint in Case No. 2-CB-578 that the Union had violated Section 8 (b) (1) (A) and (2) of the Act by causing Gottfried Baking Company, Inc., thus to discriminate against Winzelberg. In addition, although the Board found (upon Winzelberg's uncontradicted testimony) that President Charles Gottfried of the Respondent R. K. Baking Corp. had offered Winzelberg employment in March 1951, on condition that Winzelberg withdraw the charges he had filed against the Union, the Board ,held that under the circumstances, the Respondent R. K. Baking Corp. had not thereby committed an unfair labor practice within the meaning of Section 8 (a) (4) of the Act and it therefore dismissed the allegations of the complaint in Case No. 2-CA-2067 to that effect. In further agreement with the Trial Examiner, the Board found, however, that the evidence which was given at the original hearings sustained the unfair labor practice allegations of the three complaints with respect to the Respondents' reten- tion of illegal union-security clauses in their contracts and also with respect to the discriminatory rejection of Winzelberg's application for a job by the Respondent R. K. Baking Corp. on January 27, 1951. As noted by the Trial Examiner in the course of his findings in his Intermediate Report, there was no conflict in this evidence which could have affected the Board's decision on these particular matters. Admittedly authentic copies of the Respondents' contracts, covering the entire period of time relevant to the issues in the cases, were all received in evidence. As to the discriminatory refusal of R. K. Baking Corp. to hire Winzelberg, the only evidence submitted at the original hearings was the uncontradicted testimony of Winzelberg and his wife; a letter from Winzelberg to President Charles Gott- fried of the Respondent R. K. Baking Corp., which was dated January 25, 1951; and the answering letter from Charles Gottfried to Winzelberg, which was dated January 27, 1951. As noted by the Trial Examiner in his Intermediate Report, Winzelberg and his wife both testified that on December 11, 1950, Winzelberg applied orally to Charles Gottfried for a job with R. K. Baking Corp.; that Charles Gottfried asked Winzelberg whether he had any trouble with the Union and whether his dues were paid up; that, upon Winzelberg's saying that the Union refused to accept his dues payments, Charles Gottfried suggested that Winzelberg tender his dues to the Union; that Winzelberg and his wife went to the Union's office in New York City and told the cashier that he wanted to pay his dues; and that the cashier told him that he had been suspended. According to Winzelberg's further uncontradicted testimony, he again applied to the R. K. Baking Corp for a job, in his letter of January 25, 1951, and in reply received from Charles Gottfried a letter which was dated January 27, 1951. Winzelberg's letter of January 25, 1951, to Charles Gottfried follows: I am applying for a position of route salesman with your firm. It has come to my attention that you have a position open at this time, due to a salesman's illness. I have worked for many years with a wholesale bakery, and will furnish references if required. I worked for the "Gottfried Baking Co.," and am considered one of the top men in the line. Kindly advise when I can see you for an interview. The answering letter of Charles Gottfried to Winzelberg, dated January 27, 1951, follows: I have your most welcome letter of January 25. Frankly I could use a man of your qualification as a replacement even if only temporary to take over Artie Greenhoots route. He may be out for two or three months and by the time he returns I could use you as a vacation relief man. When this is over we would be glad to establish another route for you as I feel you are just the right man for us. We have had a lot of difficulty in getting replace- ments from the union. The last experience cost us a fortune and the union has no qualified replacements. I know you are marked lousy at the union because of your situation at Gottfrieds. I am very anxious to put you to work immediately but I cannot get involved in a fight with Local 802 on your account. I would suggest that you go to Local 802 and try to straighten yourself out with them and get "a Union Book." If you do this, I will put you right to work. Although Charles Gottfried was present at the original hearings at which this evidence was received, he did not testify (nor was there any offer by counsel for any of the Respondents to have him testify) concerning any alleged job application made by Winzelberg to him or the letters of January 25 and January 27, 1951. R. K. BAKING CORP. 785 Upon the basis of the contracts and the other evidence just summarized, the Board found, as had the Trial Examiner: (1) That the contracts between the Union Respondent and each of the Employer- Respondents contained illegal union-security provisions, the retention of which constituted unfair labor practices on the part of the Employer-Respondents within the meaning of Section 8 (a) (3) and (1) of the Act, and unfair labor practices on the part of the Union Respondent within the meaning of Section 8 (b) (1) (A) and (2) of the Act. (2) That, in its letter of January 27, 1951, the Respondent R. K. Baking Corp. committed an unfair labor practice within the meaning of Section 8 (a) (3) and (1) of the Act, by discriminatorily refusing to hire the complainant, Max Winzelberg, unless he presented evidence of union membership in the form of a union card. (3) That the refusal of the Respondent R. K. Baking Corp. to hire Winzelberg on January 27, 1951, "constituted an apparent reluctant compliance by it with the union-security provisions of its 1950 contract with the Union," and therefore that the Respondent Union had caused the Respondent R. K. Baking Corp. to discriminate against Winzelberg and had thereby committed an unfair labor practice within the meaning of Section 8 (b) (1) (A) and (2) of the Act. Finally, in its Decision and Order, the Board adopted the recommendations made by the Trial Examiner upon the basis of these findings and conclusions. In the portions of its Order dealing with the Respondents' illegal union-security agree- ments, the Board issued its usual cease and desist provisions forbidding each of the three Respondents from entering into, renewing or enforcing any illegal union-security agreement. The remaining portions of the Board's Order were directed to the Respondent R. K. Baking Corp. and the Respondent Union and dealt with the individual discrimination suffered by Winzelberg. By these provisions (which are the only provisions put in question under the present remand) the Board ordered: (a) That the Respondent R. K. Baking Corp. offer Winzelberg immediate em- ployment as a route salesman? (b) That the Respondent Union inform the Respondent R. K. Baking Corp. in writing that it did not object to, but on the contrary, requested the Respondent R. K. Baking Corp. to employ Winzelberg as a route salesman.4 (c) That the Respondent Union notify Winzelberg in writing that it has so advised R. K. Baking Corp .5 (d) That both the Respondent R. K. Baking Corp. and the Respondent Union, jointly and severally make Winzelberg whole for any loss of pay or earnings suffered by him because of the discrimination against him.e On February 15, 1954, the Court of Appeals for the Second Circuit upheld the Board's findings of discrimination, but denied enforcement of that portion of the Board's Order requiring an offer to Winzelberg of "immediate employment as a route salesman" with compensation for interim loss of pay and earnings, because, in the opinion of the court, such an offer of permanent employment (requiring, as it would, the establishment of another sales route) was "too drastic a remedy," and the loss of earnings beyond the clearly contemplated period of Winzelberg's temporary replacement of Greenhoots, the sick employee, would be "too conjectural to be computed." 7 The General Counsel thereafter filed a petition for rehearing, and the court, on May 17, 1954, withdrew this portion of its decision and remanded the proceeding to the Board for the purpose of "hearing and determining the matter of the Respondent's specific obligations under the `reinstatement' and back- pay provisions of its order." 8 Such a hearing was subsequently held before Trial Examiner Lloyd Buchanan, and on April 11, 1955, Trial Examiner Buchanan issued a Supplemental Intermediate Report, finding that the complainant, Max Winzelberg, was entitled to immediate "reinstatement" and $12,738.11 in net back pay. The Respondents filed exceptions to this Report. In view of subsequent developments leading to the present phase of these proceedings, the Board has not yet acted upon Trial Examiner Buchanan's Supplemental Intermediate Report and the Re- spondents' exceptions thereto. 3 Section II, 2 (a) of the Order. 4 Section III, 2 (a) of the Order. 6 Section III, 2 (b) of the Order. 6 Section IV of the Order. 7 N L. R. B. v. Gottfried Baking Company, Inc., et al., 210 F. 2d 772 (C. A. 2). 6 Ibid. 483142-59-vol. 120-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the pendency of the supplemental hearing before Trial Examiner Buchanan, counsel for the Respondent Union wrote to the Board requesting that the scope of the remand be enlarged to take certain evidence, the substance of which was set forth in an affidavit of President Charles Gottfried of the Respondent R. K. Baking Corp., dated January 12, 1955. In this affidavit, which became the basis for the present phase of these proceedings, Charles Gottfried stated that: (1) In their conversation on December 11, 1950, Winzelberg told him that be wanted to go back to work for the Gottfried Baking Company and did not want to buy any of the three retail bakeshops which Charles Gottfried had shown to him and offered to sell him in October. (2) Upon learning that Winzelberg had not paid his union dues, Charles Gottfried told him to pay his dues and place himself in good standing. (3) Charles Gottfried next heard from Winzelberg when Winzelberg visited him on January 25, 1951. (4) On that date, Winzelberg told Charles Gottfried that, having filed a charge against Gottfried Baking Company for refusing to reemploy him, Winzelberg had been advised by the Board that if he could get a letter from Charles Gottfried that there was a job available for him, he would have a strong case against the Gottfried Baking Company. (5) Charles Gottfried told Winzelberg that he could not think of any job but then "reminded" himself that Greenhoots, one of his drivers, was out sick. (6) Charles Gottfried thereupon wrote out a draft of the letter of January 25, addressed to R. K. Baking Corp , with the understanding that Wmzelberg was to have it typed out and sent to Charles Gottfried, and that Charles Gottfried would answer him by letter. (7) Charles Gottfried did write the letter of January 27, 1951, to Winzelberg, pursuant to this understanding. (8) As he had previously told Winzelberg, Charles Gottfried " was in serious controversy and litigation in connection with the Gottfried Baking Company, Inc." because, although he was the largest individual stockholder, he had been "removed" from the Company in 1943. (9) Since 1943 and "in 1950 and 1951," there were four law suits in this matter which were "being bitterly and vigorously pressed"; that Charles Gottfried had applied for a receiver for the Gottfried Baking Company; and (to quote his lan- guage ) "I was very bitter and it was my feeling that any pressure which I could bring to bear against Gottfried Baking Company, Inc., and its then management would be helpful to me personally." (10) Again quoting the language of Charles Gottfried's affidavit concerning his conversation with Winzelberg on January 25, 1951 • "I made it clear to Winzelberg that I had an interest as well as he in proceeding against Gottfried Baking Company, Inc., and that for that purpose I was of a mind to cooperate by writing this letter." (11) "Winzelberg knew that there was no job available for him at R. K. Baking Corp.," and merely asked Charles Gottfried, "at the suggestion of the National Labor Relations Board, to cooperate and create an exchange of correspondence for the sole purpose of buttressing the charge which Winzelberg had instituted against Gottfried Baking Company at the Board." (12) In view of his and Winzelberg's understanding "that the letters were being written solely to embarrass the Gottfried Baking Company, Inc. [Charles Gottfried] was shocked when [he] was advised by Local 802 in the middle of February 1951 that they had become involved in charges made by Winzelberg because R. K. Baking Corp., had written the aforesaid letter"; and that he therefore called Winzelberg into his office in March 1951, and telling him "that he was wrong in filing charges against the Union, because it was not our intention to use the letters against the Union," Charles Gottfried requested Winzelberg to withdraw the charges against the Union and offered him a job in the sales department of R. K. Baking Corp." (13) Charles Gottfried did not reveal any of the foregoing information either to his counsel in the present proceedings or to the Union, until December 27, 1954, when, "in the interest of justice" and because of Winzelberg's "many untruths" and his "vicious attack on the Respondents," he disclosed these matters to his attorney and, at his attorney's suggestion, to the attorney for the Union during a recess in Trial Examiner Buchanan's hearing. In addition to the motion thus made by the Respondent Union on the basis of Charles Gottfried's affidavit, the Board received a motion of the Respondent R. K. Baking Corp. on August 26, 1955, to reopen the record to permit it to adduce evidence which it alleged would be relevant to the issue of Winzelberg's right to the R. K. BAKING CORP. 787 back-pay award , his job qualifications , and good - faith in his original application for a position with the said Respondent Company. On October 3, 1955, the Board, by the General Counsel, filed a motion with the court of appeals requesting enlargement of the scope of the remand order to enable the Board to receive evidence of all the circumstances surrounding Winzelberg's application for employment , to consider its unfair labor practice findings in the light of such evidence , and then to make such findings and order as would appear to be appropriate Referring to the Respondent Union's position that the proffered evidence was newly discovered insofar as the Respondent Union was concerned, the Board stated in its motion to the court that the allegations of fraud made by the Respondent Union, if sustained , might substantially affect the Board's findings of unlawful discrimination against Winzelberg . On October 31, 1955, the Respondent R. K. Baking Corp. moved the court to further enlarge the remand order by directing the Board to take all relevant evidence proffered by any of the parties as to Winzelberg's good faith , his job qualifications, and his right to back pay over a 4-year period. On November 3, 1955, the Respondent Union moved the court to further enlarge the remand order by directing that proof be received concerning all circumstances relating to an alleged offer of employment , acceptance of employ- ment, existence and availability of a job, and all facts which may bear on the bona fide nature of this claimed transaction. On November 30, 1955, the court of appeals disposed of all of these motions by deciding that the "Motion of the Board [is] granted , all other motions denied." On April 10, 1956, the Board issued the following order: IT IS HEREBY ORDERED that the record in the above entitled proceedings be reopened, and that a further hearing be held with respect to the bona fides of the complainant's application for employment and the respects in which the allegations of fraud made by the Respondent Union may affect the Board's initial findings of unlawful discrimination against the complainant; and IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Trial Examining Division for the purpose of conducting such hearing and for such further report by the Trial Examiner as the record , inclusive of that made at the reopened hearing, may in his opinion warrant. Pursuant to the order of the court and the aforesaid order of the Board, and upon due notice to all parties , a hearing was held in New York City on July 23 and September 10, 1956, and also on March 26 and 27, 1957,9 before the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the com- plainant, and both Respondents appeared by counsel and were afforded full oppor- tunity to be heard, to examine and cross -examine witnesses , and to introduce evidence bearing upon the issues under the court's and the Board 's remands . All counsel waived their, right to submit oral argument at the hearing . On May 13, 1957, the Trial Examiner received briefs from counsel for Max Winzelberg , the Respondent R. K. Baking Corp. , and the Respondent Union. In the following portions of this Report , the Trial Examiner makes his findings, conclusions, and recommendations , upon the entire record in the present cases and his observation of the witnesses who appeared before him in both the 1952 hearing and the reopened hearing in 1956 and 1957. II. FINDINGS AND CONCLUSIONS UPON ALL THE EVIDENCE Charles Gottfried, Max Winzelberg, and Betty Winzelberg (his wife ) were the only witnesses at the supplemental hearing before the Trial Examiner . Gottfried's testimony followed the outline provided by him in his affidavit dated January 12, 1955. Winzelberg , in his testimony, generally repeated the substance of the pertinent portions of his 1952 testimony and denied Gottfried's testimony concerning the alleged fraud on the Board at Winzelberg 's suggestion. And, in her testimony at the supplemental hearing, Mrs. Winzelberg merely corroborated her husband's denial that they had visited Charles Gottfried on January 25, 1951, although she had testified in detail in 1952 concerning all the matters now put in question by Gott- OAt the session on September 10, 1956, the Geneial Counsel , Alr Winzelbeig, and counsel for the two Respondents advised the Ti nil Examiner that they had signed a stipu- lation for a proposed settlement of the cases , subject to the approval of the court and the Board At the request of the parties, the Trial Examiner thereupon adjourned the hearing indefinitely On January 18, 1957 , the Board rejected this proposed settlement and, oil February 26, 1957, so advised the Trial Examiner and counsel for the parties Upon an older and notice issued by the Trial Examiner on March 7, 1957 , the hearing was there- upon resumed on March 26 , 1957, and was completed on the following day 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fried's affidavit and testimony. For convenience, Charles Gottfried will be referred to as "Gottfried" in the following discussion. References to Maurice Gottfried will be made only through the use of his full name. From the testimony in the supplemental hearing, as well as the testimony of Mr. and Mrs. Winzelberg in the 1952 hearing, it appears clear, and the Trial Ex- aminer accordingly finds, that Gottfried showed the Winzelbergs three retail bake- shops in October 1950, in an attempt to sell one of them to the Winzelbergs.10 Furthermore, there is no disagreement in the testimony of the witnesses, and the Trial Examiner also finds, that Winzelberg and his wife visited Gottfried at his office on December 11, 1950, and that in the course of their conversation, Gottfried suggested, and Winzelberg agreed, that Winzelberg should tender his dues to the Union.ii The conflicts in the evidence concern the rest of the conversation between Gottfried and the Winzelbergs on December 11, 1950, and the circumstances under which Winzelberg and Gottfried exchanged their letters dated January 25, 1951, and January 27, 1951, i. e., the letters which have already been quoted in full in section I and which the Board found constituted, respectively, a job application by Winzelberg and a discriminatory rejection by the R. K. Baking Corp. The Evidence Concerning the Conversation of December 11 As to Winzelberg's and Gottfried's conversation on December 11, 1950, Gottfried testified that he asked Winzelberg if he were going to buy one of the stores which Gottfried had showed him; that Winzelberg answered that he was not interested in the stores but that all he wanted was to get his job back with the Gottfried Baking Company; and that, in this connection, Winzelberg also said that both he and Gottfried had been "virtually kicked out" of the Gottfried Baking Company by Maurice Gottfried and therefore "had things in common." According to Gott- fried, Winzelberg did not apply for a job with the R. K. Baking Corp. and Gottfried's suggestion that Winzelberg tender his union dues was prompted solely by Winzel- berg's statement that he wanted to go back to work for the Gottfried Baking Company. In his testimony at the supplemental hearing, Winzelberg testified (as he and his wife had testified in 1952) that on December 11, 1950, he simply asked Gottfried for a job with R. K. Baking Corp.; that Gottfried asked Winzelberg about his "standing" with the Union; and that, upon Winzelberg's saying that the Union had refused to accept his dues payments, Gottfried not only suggested that Winzelberg tender his dues to the Union, but also said that if Winzelberg's union dues were paid up, Gottfried would have a job for him immediately. In addition, Winzelberg testified at the supplemental hearing that, before leaving Gottfried on December 11, 1950, he gave Gottfried his telephone number. The Evidence Concerning the Exchange of Letters With respect to Winzelberg's and Gottfried's exchange of letters in January 1951, Gottfried's testimony at the supplemental hearing generally followed and amplified the outline provided by his affidavit of January 12, 1955. According to this testimony of Gottfried, Winzelberg telephoned Gottfried on Saturday, January 27, 1951, and then, with his wife, went that same afternoon to Gottfried's office where they found Gottfried alone, since it was not a regular working day.12 Concerning ii Gottfried so testified at the supplemental hearing, as did Mrs. Winzelberg in the 1952 hearing. At the 1952 hearing, Winzelberg testified that Gottfried showed him several stores for the purpose of interesting Winzelberg in operating one of them but that Winzel- berg later told Gottfried that he had no money to invest. When asked again about this during the supplemental hearing, Winzelberg replied : "I hadn't looked at anything Everything [Gottfried] says there is not true. What he says that I was looking at the stores, that is not true. He drove down and showed us a store and asked me if I knew anybody that wanted to . . . buy this business. He wanted to get out of the retail business, and I had not looked." "Gottfried and Winzelberg so testified at the supplemental hearing before the Trial Examiner. Testimony to the same effect was given by both Winzelberg and his wife in the 1952 hearing. ii In his affidavit, Gottfried had stated that the Winzelbergs' visit "was on January 25, 1951," In his testimony, Gottfried first said, "This was in my office on a Saturday after- noon. I believe we will have to fix that date. I believe that date was January 25. It definitely was on a Saturday. There was no one around the office at that time " Later in his testimony, Gottfried said that the Winzelbergs' visit to his office took place on Saturday, January 27, 1951. R. K. BAKING CORP. 789 the substance of their. conversation, Gottfried testified that Winzelberg said that he had started proceedings before the Board against the Gottfried Baking Company and that Goldberg, one of the Board's field examiners,13 had advised him that, "to help him along in the Gottfried Baking Company matter," Winzelberg would have to get a letter from Gottfried "offering him a position"; that Gottfried asked Winzelberg how that would help him and also said that he had no job for Winzelberg; that Winzelberg nevertheless insisted upon a letter from Gottfried and wanted it dated that day; and that finally, because Gottfried "felt very bitter towards" his brother, Maurice Gottfried, the president of Gottfried Baking Company, he agreed to give Winzelberg the letter but told Winzelberg that it must be in answer to an application made by Winzelberg. According to his further testimony, Gottfried thereupon wrote out a draft of a letter for Winzelberg to use as an application and, giving it to Winzelberg, said that the letter should be written out and mailed by Winzelberg to Gottfried but that it must be predated so that Gottfried could answer it with a letter dated January 27. In the course of this testimony about this con- versation with Winzelberg, Gottfried denied that he discussed with Winzelberg the possibility that driver Artie Greenhoot's job might be temporarily available for Winzelberg, although he did testify that, in the course of their conversation, he did tell Winzelberg that Greenhoot, whom Winzelberg had known for 25 years, was sick. This, then is Gottfried's explanation of how it came about that Winzelberg wrote him the letter dated January 25, 1951, and he answered it with the letter dated Janu- ary 27, 1951. According to Gottfried, Winzelberg's letter was received by him on Monday, January 29 and on the same day he prepared and sent his reply but dated it January 27. Still according to Gottfried, Winzelberg's letter was in substance the same as the draft prepared by Gottfried, except that it contained recitals concerning Winzelberg's job capabilities and experience with the Gottfried Baking Company which Gottfried had not included, because these matters were well known to Gott- fried and needed no statement. For further proof that Winzelberg had not intended to apply for a job with R. K. Baking Corp. and would not have accepted one if it had been unconditionally offered to him in January 1951, Gottfried gave testimony at the supplemental hearing con- cerning conversations with Winzelberg in March 1951 (after Winzelberg had filed his charge against the Union on February 16, 1951) and again in July 1951 (after Winzelberg had filed his charge against the R. K Baking Corp. on July 26, 1951). The conversation in March 1951, it appears, was the conversation in which the Board, crediting Winzelberg's and his wife's uncontradicted testimony, found that Gottfried offered Winzelberg a job if he would withdraw his charge against the Union, but concluded, as had the Trial Examiner, that there was nevertheless no violation of Section 8 (a) (4) of the Act. According to the substance of Gottfried's testimony, he berated Winzelberg in March and in July 1951, for having filed the charges and "offered to give him a job to withdraw these charges," 14 but that Winzelberg said that "he didn't want to go to work for" the R. K. Baking Corp.; that he wanted to go to work for the Gottfried Baking Company; that "he was going to get all the back pay that was coming to him" from the Gottfried Baking Company and the Union "if he [had] to stay out of work the rest of his life"; and that he did not want to bring charges against the R. K. Baking Corp. and would have withdrawn them but that Field Examiner Goldberg said that R. K. Baking Corp. "had to be implicated." Finally, to support Gottfried's testimony and their present contention that Winzel- berg maneuvered Gottfried into writing his letter of January 27, 1951, as a basis for Winzelberg's charges of unfair labor practice rather than to procure a job from the R. K. Baking Corp., the Respondents also point to testimony given by Field Ex- aminer Goldberg in the 1952 hearing as to what he told Winzelberg when Winzelberg came to the Board's Regional Office on December 15, 1950 . Goldberg's testimony, upon which the Respondents thus rely, was quoted in the original Intermediate Report and was the following: Well, I cannot tell or actually recall word for word what I said to him. At the time he came to me and presented his case. He said that he had applied for a job and that one of the Gottfrieds told him that they are willing to hire him, but the reason they cannot hire him is because the Union is opposed to him. is Goldberg was the Board's field examiner who took Winzelberg's charge against the Gottfried Baking Company on December 27, 1950. His testimony in the 1952 hearing as to an earlier conversation between him and Winzelberg concerning the Gottfried Baking Company on December 15, 1950 , was quoted in the original Intermediate Report and, for convenience is again set forth in the text below u The quoted language is taken from Gottfried's testimony ; he later testified that he had not conditioned the job offer upon Winzelberg 's withdrawal of charges 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And I asked him who else was present at the time he had this conversation, and whether or not Gottfried would cooperate in this investigation, if presumably a charge was filed; and he said Gottfried would. I asked him whether or not Gottfried would give him such a statement in writing. He seemed to think that Gottfried would cooperate, that he was very friendly with him. I explained to him that if he could get such a statement from Gottfried, that we would have a much simpler job of proving his charge. If we could prove his charge, he would have a good case. In his testimony at the supplement hearing, Winzelberg generally repeated the material substance of the testimony which he had given in the original hearing, and denied the different version given by Gottfried as to their exchange of letters in January 1951 and their subsequent conversations. In sum, Winzelberg's testimony at the supplemental hearing was the following: (1) That he had his son write the letter to Gottfried on January 25, 1951, after learning of driver Greenhoot's illness from another baking company's drivers when he met them on the subway. (2) That he wrote Gottfried a letter, instead of telephoning him, because "it is hard to get a man like that in" and because he thought that a letter would be more effective, would create "a little sympathy," and "could be used by Gottfried to straighten [Winzelberg] out" with the Union, which, according to Winzelberg, had been the cause of his trouble. (3) That he was "anxious" to get a job in December 1950 and in January 1951, and therefore wrote the letter for that purpose and not for the purpose of procuring a letter from Gottfried. (4) That, at the time of the supplemental hearing, he had no recollection of the substance of his conversation with Field Examiner Goldberg on December 15, 1950, in which, according to Goldberg's testimony, Goldberg suggested that he procure a letter from "Gottfried"; but that he never told anybody that he "was friendly with Charley Gottfried and he would give [Winzelberg] a letter." (5) That, although he expected an answer from Gottfried by telephone since he had given his telephone number to Gottfried on December 11, he received his answer in Gottfried's letter dated January 27. (6) That, after his conversation with Gottfried on December 11, 1950, he had not seen Gottfried again until March 17, 1951. (7) That, upon receiving a telephone call from Gottfried on March 17, 1951, he went to Gottfried's office with his wife and son; that Gottfried then offered him a job if he would drop the charge which he had filed against the Union; that Winzel- berg said, "I accept the job" but added that he had no authority to drop the charge; that Gottfried made a telephone call which he told Winzelberg was a call to the Union, and then, turning to Winzelberg, said, "Well, you can go now." All of Winzelberg's testimony which was thus given at the supplemental hearing, appears to the Trial Examiner to be consistent with his testimony at the 1952 hearing, except, possibly, with respect to the approximate date of his receipt of information that driver Greenhoot was sick. In the original hearing, Winzelberg testified that he learned of Greenhoot's illness from another baking company's drivers sometime in January 1951, before he wrote his letter to Gottfried When questioned about the matter in the supplemental hearing, Winzelberg repeatedly protested that "it is so far back, I cannot remember it" and that he could therefore no longer fix "the exact date." When pressed, however he testified, in succession, that it was after seeing Gottfried on December 11; that it was in December or perhaps in the beginning of January; that it was in December but he could not say what part of the month, nor whether it was before or after his meeting with Gottfried on December 11, 1950; that he had heard "about Mr. Greenhoot's job" before his conversation with Gottfried on December 11; and, finally, again that it "was after December 11, 1950." Gottfried's Eventual Offer of His Present Testimony and His Explanations for His Delay Gottfried testified that, although he was present at the 1952 hearing when Winzel- berg testified and was cross-examined by Gottfried's attorney concerning the exchange of letters in January 1951, he told neither his attorneys nor any representative of the Union of the substance of his present testimony concerning the letters until Decem- ber 27, 1954, during the supplemental hearing before Trial Examiner Buchanan on the "back pay" and reinstatement provisions of the Board's Order. So far as the Respondent Union was concerned, Henry Weiss, its attorney testified that this was the first time he had heard of these matters. Thus it would appear from Gottfried's and Weiss' testimony that Gottfried deliberately withheld what he now claims to be R. K. BAKING CORP. 791 the true facts, nor only from the Board, but also from his own attorneys and from the Respondent Union, for more than 31 months after the original hearing, for more than 21 months after the Board's decision against his company, and for more than 7 months after the Circuit Court's affirmance of the Board's findings in accordance with Winzelberg's testimony. To the Trial Examiner, it appears clear from Attorney Weiss' testimony, and it is accordingly found, that the Respondent Union first learned of the substance of Gottfried's present testimony on December 27, 1954, and therefore that so far as the Respondent Union is concerned, the substance of Gottfried's testimony was evidence discovered after the trial of the issues at the original hearing. But the general credibility of Gottfried's testimony, upon which the Respondent Union as well as the Respondent R. K. Baking Corp. must now rely, depends to a great extent upon the credibility of the reasons given by Gottfried for his eventual decision on December 27, 1954, to tell the "true facts" and for his failure to make an earlier disclosure. To explain why he finally decided to disclose the "true facts" on December 27, 1954, Gottfried testified. I just got my belly full of all the dirty double-dealing by this presumed good friend of mine that I was trying to be friendly to and help, and all that he was doing was costing me thousands and thousands of dollars. I was wast- ing a lot of my time in my office, being away from my office, just because I tried to help him and help the NLRB. A little later in his testimony, Gottfried further explained his eventual disclosure by saying: I was very conscience-stricken about all that had happened in this here matter. I was outraged. Finally Gottfried was questioned as to why he had delayed so long in disclosing the substance of his present evidence. His answers, in substance, were that he had not believed it necessary to tell his attorney the "true facts" in the matter, and also that he had not been permitted to tell his story at the original hearing. Concerning the latter reason, he testified: Oh, I imagine the first hearings before the NLRB in this matter must have been in 1952 or maybe-yes, it was in 1952 or maybe 1953. There have been many, many hearings over here, but I have not testified in defense of my actions or in defense of my company in all of these years. Everybody has objected all the way along the line. Everybody has objected. Mr. Scharnikow has objected.15 The counselor has objected. Another counselor has objected. Everybody objects. When later asked whether he had been aware during the course of the hearings that there might be a decision against his company, Gottfried replied: "No, not until the facts were known, not if the true facts were known " Then, upon being asked whether he had disclosed what he claimed to be the true facts, his answer was: "We were never permitted to testify during this hearing." Findings and Conclusions The only question which is now presented for decision is whether (as Winzelberg and his wife have testified) the letter of January 25 from Winzelberg to Gottfried and Gottfried's reply in his letter of January 27, were written and exchanged without a prior meeting and arrangement between them, or whether (as Gottfried has testified) there was a meeting between the men on January 27 at which it was arranged at Winzelberg's suggestion that the letters be exchanged for the sole purpose of bolstering Winzelberg's charge against the Gottfried Baking Company. The opposing testimony having already been summarized, the remaining problem is one of credibility, requiring a consideration not only of the details of the conflicting testimony but also of the apparent general credibility of the witnesses under the peculiar circumstances of the present cases. The Respondents' arguments attacking Winzelberg's testimony may be summed up as follows: (1) Contrary to his testimony at the original hearing, Winzelberg denied in his testimony at the supplemental hearing that Gottfried had showed him several '5 Gottfried obviously intended by this statement to refer to the Trial Examiner in his conduct of the original healing in 1952. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stores and attempted to sell him one of them in October 1950 (see footnote 10, above); (2) Winzelberg was uncertain in his testimony at the supplemental hearing whether he learned of Greenhoot 's illness in January 1951 ( as he had originally testified ) or whether it was in December 1950 and perhaps even before December 11, 1950; (3) From Winzelberg's testimony in the supplemental hearing it would thus appear that he wrote the letter of January 25, 1951, about 5 weeks after he learned about the possible vacancy in Greenhoot's job, an inexplicable delay if he really wanted a job, as he says he did; (4) Winzelberg's letter of January 25, 1951, shows on its face that it was not written for the purpose of securing a job, but rather to procure a letter from Gottfried and thereby to create a basis for an unfair labor practice charge, since (a) The letter unnecessarily recites Winzelberg 's job qualifications and his experi- ence with the Gottfried Baking Company, all of which was known to Charles Gottfried. (b) The letter asks for an interview with Gottfried, which was also unnecessary in view of Gottfried's long acquaintance with Winzelberg and the fact that, accord- ing to Winzelberg's testimony, he had seen and asked Gottfried for a job on December 11, 1950. (c) Winzelberg's statement that he expected a reply to his letter by telephone and not by letter, is unbelievable , since his letter did not give Gottfried his telephone number. (5) Further evidence that Winzelberg wrote his letter of January 25, 1951, simply to procure a letter from Gottfried which would bolster his unfair labor practice charge, is furnished by the testimony of Field Examiner Goldberg in the original hearing, to the effect that he made such a suggestion to Winzelberg on December 15, 1950. (6) Contrary to Winzelberg's testimony at the supplemental hearing, it is unbe- lievable that he did not then recall his conversation with Field Examiner Goldberg on December 15, 1950, although Goldberg had testified in the original hearing in Winzelberg's presence and his testimony was read to Winzelberg during the supplemental hearing. On the other hand, counsel for Winzelberg , in his brief and in his cross-examination of Gottfried, has in substance advanced the following points and arguments in attacking Gottfried's testimony- (1) In his affidavit, Gottfried had said that Winzelberg visited him on January 25, 1951, and made the suggestion that they fabricate evidence harmful to Maurice Gottfried and the Gottfried Baking Company, but in his testimony he said that the visit was on January 27, 1951, a Saturday when no one else was in the office, and that the letters were predated at Winzelberg 's insistence. (2) It is incredible, if Gottfried's testimony presents the true facts concerning the January letters, that he should not have disclosed these facts in the original hearing. (3) It is incredible that Gottfried should not have disclosed the substance of his present testimony even to his attorney during the original hearing. Upon consideration of all the evidence and these particular cross-attacks by counsel on the testimony of the opposing witness, the Trial Examiner feels that the decision of whether the general narrative of Winzelberg or that of Gottfried is to be credited , must turn upon a weighing of (1) The general significance of Field Examiner Goldberg's testimony during the original hearing. (2) The fact that Gottfried did not at that time also come forward with his present story. (3) The comparative plausibility of Winzelberg's and Gottfried's explanations of the January letters. (4) The reasons given by Gottfried for his failure to disclose the substance of his present testimony until long after the original hearing. (5) The relative credibility of Gottfried and Winzelberg as shown by their own testimony. As the Trial Examiner ,appraises the evidence , the other points raised by counsel could not possibly affect the conclusion which should be reached upon a consideration of these five really pivotal points . Thus the Trial Examiner does not believe that the few internal inconsistencies in Winzelberg's and Gottfried's testimony, which have been pointed out by counsel , are of any particular importance in weighing the relative credibility of their general narratives . Nor is the Trial Examiner impressed by the Respondents' arguments that the contents of Winzelberg 's letter of January 25 show that it was written , not for the purpose of securing a job, but rather for the R. K. BAKING CORP. 793 purpose of procuring a letter from Gottfried which Winzelberg could use to support an unfair labor practice charge. Winzelberg's explanation that, although perhaps unnecessary, the recitals and the request for an interview were merely "a form of writing" (i. e., dictated by his sense of desirable formality and completeness in applying for a job in writing) does not appear unreasonable to the Trial Examiner. He cannot see, therefore, why the insertion in the letter of these recitals and the interview request, should in itself be regarded as inconsistent with an actual desire on Winzelberg's part to secure the job for which he asked. Nor, in the opinion of the Trial Examiner, does the letter's omission of Winzelberg's telephone number negate a reasonable expectation on Winzelberg's part that Gottfried's reply would be by telephone rather than by letter. For not only did Winzelberg testify that he had given Gottfried his telephone number on December 11, but, according to Gottfried's testimony, Gottfried did in fact telephone to Winzelberg to summon him to the office on March 17, 1951. A telephone call by Gottfried to Winzelberg in answer to the letter of January 25 was, therefore, not as unlikely as Respondents' counsel seem to assume. Turning now to the possible significance of Field Examiner Goldberg's testimony at the original hearing (the critical portion of which has already been quoted in full), it should first be noted that he was testifying concerning a conversation with Winzelberg on December 15, 1950, in which Winzelberg was complaining to him about the Gottfried Baking Company. According to Goldberg, his meetings with Winzelberg occurred only on December 15 and 27, 1950, when he prepared Winzelberg's charge against the Gottfried Baking Company at Winzelberg's request, and were limited to discussions of Winzelberg's difficulties with the Gottfried Baking Company. Consequently, the references in Goldberg's testimony to "one of the Gottfrieds" and to "Gottfried" must be understood to have been references to the Gottfried Baking Company and to Maurice Gottfried, its president, and not, as counsel for the Respondent R. K. Baking Corp. have apparently assumed both at the hearing and in their brief, to either the Respondent R. K. Baking Corp. or to Charles Gottfried, its president. Even so, the fact remains that Goldberg did suggest to Winzelberg on December 15, 1950, that a charge against an employer could be more easily proved if the employer would "cooperate" and give Winzelberg "a statement in writing " The question, then, is whether Winzelberg pursued this suggestion, as Gottfried says he did, by going to Gottfried and arranging the exchange of the January letters in order to support his unfair labor practice charges rather than to secure a job. In dealing with this block of the evidence, counsel for both Respondents rely, of course, not only upon Goldberg's testimony, but also upon Gottfried's testimony concerning his alleged conversation with Winzelberg on January 27, 1951, accord- ing to which Winzelberg told Gottfried of Goldberg's suggestion and asked Gott- fried for a letter so that he might use it against the Gottfried Baking Company. The square conflict in the evidence is between this testimony of Gottfried and Winzelberg's testimony that he did not see Gottfried on January 27, 1951, and that he wrote his letter of January 25 in order to get a job and not to secure a letter from Gottfried to bolster his unfair labor practice charges. Goldberg's advice to Winzelberg on December 15, therefore, has a bearing upon the resolution of this conflict between Gottfried and Winzelberg's testimony only if it appears reasonable to infer therefrom, without the support of Gottfried's testimony, that Winzelberg wrote the letter of January 25, 1951, solely for the purpose of securing evidence upon which an unfair labor practice charge could be based and not also for the purpose of securing a job. For there is nothing inconsistent, nor for that matter improper, in hoping that a job application will be granted and at the same time hoping that, if the application be discriminatorily rejected, the rejection will be in writing and will thus afford concrete, indisputable evidence of the discrimina- tion. Thus, the mere fact that Goldberg had previously advised Winzelberg that it would be easier to prove discrimination by procuring a letter, has no independent significance. Its significance, if any, must necessarily depend upon Gottfried's testimony as to his alleged conversation with Winzelberg on January 27 in which Winzelberg allegedly asked him for a letter on Goldberg's advice-and this, Winzel- berg has denied. Instead of supporting Gottfried's testimony, therefore, Goldberg's previous advice to Winzelberg is of no significance unless we believe Gottfried's disputed testimony. Indeed, Goldberg's testimony, given as it was at the original hearing, appears to the Trial Examiner to have a significance quite different from that urged by Respondents' counsel. For Gottfried's failure to tell his present story at the original hearing and thus, at that time to have linked Goldberg's testimony to Winzelberg's letter of January 25, provides one of the bases for inferring that Gottfried's present 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD story of the January letters is a fabrication which occurred to Gottfried after the original hearing when he had had time to consider the possibilities which had been presented to him by Goldberg's testimony. It also seems to the Trial Examiner that although Winzelberg's general narrative is plausible, Gottfried's story on its face is implausible. Thus Winzelberg's story is a simple story, resting upon the exchange, and language, of the January letters, both of which are in evidence. The Trial Examiner has already found that there is no merit to the Respondents' argument attacking Winzelberg's letter of January 25 as being on its face a mere attempt to secure evidence to support an unfair labor practice charge. The only other criticism the Respondents have leveled at Winzel- berg's story is based upon his uncertainty at the supplemental hearing, more than 6 years after the events, as to whether he might have learned about the temporary vacancy in Greenhoot's job before December 11, 1950. Upon this basis, the Respond- ents argue that if Winzelberg really wanted the job, he would.not have waited until January 25 to apply for it. But, in the original hearing in 1952, when his memory must have been clearer on the point, Winzelberg testified that he found out about the vacancy in Greenhoot's job in January 1951 and thus shortly before he applied for it in his letter of January 25. Under the circumstances, the Trial Examiner finds no merit in the Respondents' argument based upon Winzelberg's uncertainty on this particular point in 1957. On the other hand, the story of the January 1951 letters which Gottfried has belatedly presented to the Board, is a complex story, embracing a disputed visit by Winzelberg and his wife to Gottfried's office on January 27, 1951, a Saturday when no one else was present; a request by Winzelberg for a letter from Gottfried "offering [Winzelberg] a position" so that, in some unexplained way, it could be used to support charges which Winzelberg had filed against the Gottfried Baking Company; an agreement by Gottfried to comply with Winzelberg's request in order to hurt his brother who was president of the Gottfried Baking Company; an arrangement by Winzelberg and Gottfried to exchange the January letters in accordance with Winzel- berg's request, and a predating of the letters. Although a number of the elements of this story, as it was told by Gottfried, invite suspicion, it seems particularly incredible to the Trial Examiner that Gottfried would have been induced to write his letter of January 27, 1951, in the expectation that he was thereby bolstering Winzelberg's charge against the Gottfried Baking Company and thus hurting Maurice Gottfried, without realizing that he was actually giving Winzelberg evidence of his own viola- tion of the Act. The Trial Examiner cannot accept Gottfried's explanation that his writing the letter at Winzelberg's request was merely "stupid," as he later found out when Winzelberg filed his charge against the R K. Baking Corp An examination of the reasons given by Gottfried for his failure to disclose the substance of his present testimony, even to his own attorney, until long after the original hearing, furnishes additional ground for being highly skeptical of his testi- mony His first reason, that he had not believed it necessary to tell his attorney "the true facts," obviously requires no comment. And his second and only other reason, i. e., that he had not been permitted to tell his story during the original hearing, just is not true The record of that hearing, which was also conducted by the Trial Examiner, shows that Gottfried was never presented for the purpose of testifying as to either the meeting between 'him and Winzelberg on December 11, 1950, or the exchange of the letters of January 25 and 27, 1951; that neither he, nor his attorney, brought to the attention of the Trial Examiner any claim that there had been a meeting between Gottfried and Winzelberg on or about January 27, 1957, in which they agreed to fabricate evidence harmful to the Gottfried Baking Company in the form of the letters dated January 25 and 27, 1951; and, finally, that there was no ruling made by the Trial Examiner which could possibly have been regarded as precluding the admission of the substance of Gottfried's present testimony. What has already been said would, in an ordinary case, provide ample basis for crediting Winzelberg's rather than Gottfried's version of the January 1951 letters. But the problem of credibility in the present cases is most unusual. The Trial Examiner has pointed out what he believes to be the flaws in Gottfried's testimony in the present phase of these proceedings Yet, in his Report on the original hearing, and for reasons therein fully set forth, he also refused to credit Winzelberg's testi- mony against the Gottfried Baking Company in the face of contradictions by other witnesses. Obviously, as witnesses, neither Gottfried nor Winzelberg has generally impressed the Trial Examiner. But it is also obvious that one of them has been telling the truth concerning the January letters. In resolving the conflict of the testimony as to this matter in favor of Winzelberg's version, the Trial Examiner has done so not only because of the substantive defects in Gottfried's testimony and his failure to produce his present testimony at the R. K. BAKING CORP. 795 original hearing, but also because of his opinion of the relative general credibility of the two witnesses. Although Winzelberg's testimony against the Gottfried Baking Company was discredited because the conflicting testimony of other witnesses appeared to be credible, Gottfried's testimony also contains within itself the clearest possible indication of his unreliability as a witness For, according to his own story he was capable of fabricating evidence which he believed would harm his brother and has now come forward with this admission only after he found out that he had actually hurt himself. He has thus furnished the Board with his own appraisal of his credibility. Upon that appraisal, as well as the substantive defects in his testimony, his testimony as to the January letters appears to be unworthy of belief. Upon the foregoing considerations, the Trial Examiner rejects Gottfried's testi- mony concerning his conversation with Winzelberg on December 11, 1950, and also his testimony concerning the alleged exchange of the January 1951 letters at Winzelberg's request for the sole purpose of bolstering Winzelberg's unfair labor practice charge against the Gottfried Baking Company. Upon Winzelberg' s testi- mony at the supplemental hearing, upon Winzelberg's and his wife's testimony at the original hearing, upon the letter of January 25 and January 27, 1951, and upon the 1950 contract between the Respondent R. K. Baking Corp. and the Respondent Union, the Trial Examiner again finds, as he did in his original Intermediate Report, that: (1) On December 11, 1950, Max Winzelberg visited Charles Gottfried, president of the Respondent R. K. Baking Corp. and applied for a job, and that Charles Gottfried suggested that Winzelberg tender his dues to the Union. (2) On January 25, 1951, Max Winzelberg mailed a letter to the R. K. Baking Corp. in which he again applied for a job. (3) By letter dated January 27, 1951, the Respondent R. K. Baking Corp. refused to hire Max Winzelberg unless he presented evidence of union membership in the form of a union card. (4) The action of the Respondent R. K. Baking Corp. in thus refusing to hire Max Winzelberg constituted an apparent reluctance compliance by it with the union- security provisions of its 1950 contract with the Union. Upon the foregoing findings of fact, the Trial Examiner also concludes, as he did in his original Intermediate Report, that. (1) By refusing to hire Max Winzelberg on January 27, 1951, unless he presented evidence of his union membership in the form of a union card, and thereby dis- criminating against Max Winzelberg, an applicant for employment, in regard to his hire, and encouraging membership in the Union, the Respondent R K. Baking Corp. committed unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act (2) By requiring the Respondent R. K Baking Corp. on and since January 27, 1951, to refuse to hire Max Winzelberg, an applicant for employment, because of his suspension from, or lack of, membership in the Union, the Respondent Union committed unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. (3) The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication I SUPPLEMENTAL INTERMEDIATE REPORT Affirming the findings i that Winzelberg had been discriminated against and that he was entitled to be made whole for any consequent loss of pay suffered, the United States Court of Appeals, Second Circuit, on May 17, 1954,2 remanded the case to the Board for "the purpose of hearing and determining the matter of the respondents' specific obligations under the `reinstatement' and back pay provisions of its order." Thereafter, by decree dated September 10, 1954, the Court remanded the case to the Board "for the purpose of hearing and determination of the specific obligation of Respondents R. K. and the Union under that portion of the Board's order of March 3, 1953, which requires R K. to offer Max Winzelberg immediate employ- ment as route salesman, and requires that Respondents R. K. and the Union jointly and severally make Winzelberg whole for the loss of earnings incurred because of the discrimination practiced against him." 1103 NLRB 227 2 210 F. 2d 772. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A hearing was held before me at New York, New York, on December 21, 27, and 28, 1954, and February 8 and 9, 1955. Counsel were heard in oral argument at the close of the hearing. Preliminary to and during receipt of testimony, there was detailed discussion concerning the scope of the hearing. The instant Respondents first argued, in support of a motion to dismiss for want of jurisdiction, that the Board's new juris- dictional standards are not here met. In denying the motion, I pointed out that the Board has refused to review the question of jurisdiction where the issue had already been passed upon and was covered by Board decision In this connection it was noted that the new standards were adopted about July 1, 1954, the Court's remand decree issued on September 10, 1954, and the case was thereafter processed to hearing. I need not point out that to apply to this long-standing case the jurisdictional standards recently adopted would encourage procrastination in the hope of similar windfall application of up-to-the-minute standards to ancient situations. In Coca-Cola Bottling Company of Stockton,3 the Board declared its policy as follows: The Board will apply the recently announced jurisdictional standards to all future and to all pending complaint cases which have not yet resulted in the issuance of a Decision and Order either finding unfair labor practices or dis- missing the complaint. As to all other complaint cases in which a Decision and Order has already issued, the Board will proceed with compliance, enforce- ment and contempt proceedings, depending upon the status of the case, without regard to whether the particular case meets the revised jurisdictional standards. The reasons for such policy are thereinafter set forth? While the issue of Winzelberg's good faith was before us with respect to any relevant occasion not covered by the prior hearing or merged in the Court's decision, the Respondents also sought to try here the issue of his good faith in applying to R. K. for employment in December 1950, January 1951, and any other occasion covered by the prior hearing.5 This issue, beyond our present concern, was excluded for two stated reasons: first, it is a defense properly to be pleaded against the allegations of discrimination, and was therefore covered in the Board's and the Court's decisions that there was discrimination. As the Court declared,6 the Board had found that Winzelberg was, in violation of the Act, denied employment. The violation by the Respondents followed a bona fide application by Winzelberg; the former proposition depends upon the latter. Had Winzelberg not applied in good faith, there would be no finding of discrimination.7 It is true, as argued by counsel for the Union, that violation is sometimes found even in the absence of proof that a job was available. But even in such a case good faith is found or presumed in an application either made or dispensed with because of anticipatory refusal.8 But in any event this is a different situation since there has been an express finding that there was a refusal (and causation by the Union) to employ Winzelberg on January 27, 1951, and thereafter. Reference in that finding was first to a job made available by the illness of Greenhoot, another employee, and the finding precludes inquiry at this late date into the existence of such a job. As to later jobs, the discrimination having been found, details concerning their existence, their dates and nature, are the subject of the instant hearing within the terms of the remand. The second reason stated at the hearing for excluding this issue of early good faith was that we are here limited by the terms of the Court's decree and the extent of the remand there set forth. That the Respondents were under an "obligation" has already been determined; there remained here but to find the extent of such 110 NLRB 840 * See also Ray Brooks v N L. R. B, 348 U S 96, in which the Supreme Court declared, footnote 16: "In Wilson Oldsmobile, 110 NLRB 534, the Board has applied new jurisdic- tional yardsticks, which would place this case, if now brought, outside them " 8 The question of his search for employment in mitigation of loss sustained being before us under the remand, his good faith in such search was of course open for consideration. The hearing was recessed on December 28, 1954, to permit counsel to check on Winzelberg's efforts to obtain employment elsewhere, and any evidence of bad faith in such efforts would presumably have been presented 8 210 F. 2d 772, 783. 7 As also pointed out at the hearing, the Court, in its decision of May 17, concluded that Winzelberg's loss, not the discrimination against him , was conjectural . ( See penulti- mate paragraph of the Court's original opinion, later withdrawn.) 8 The Lummus Company, 101 NLRB 1628. R. K. BAKING CORP. 797 obligation, or what is the Respondents' "specific obligation." I would entertain no application to modify the terms of the remand. This matter was included in an appeal which the Respondent Union took to the Board in January, while the hearing was in recess. The Board having acted,9 the matter has no longer been a subject for my consideration. Upon the entire record of this hearing and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) I have not, except when it first issued, read the earlier Intermediate Report io in this proceeding, not because of lack of interest in it or of regard for a colleague's work; but because such regard might influence the credibility findings herein. Whatever the earlier testimony and demeanor of the witnesses, findings herein are based on the testimony before me and the demeanor as I observed it. Each of the principal witnesses, Winzelberg, the discriminatee, and Gottfried, president of the Respondent R. K., sought beyond the scope of the questions put to him to "prove his case." • Their extreme subjectivity, together with occasional lapses and discrepancies, detracted from their reliability. Yet enough is clear from their testimony to provide a basis for findings on the issues here presented. (I find it unnecessary and prefer not to consider Gottfried's affidavit of January 12, 1955, which must be regarded as self-condemnatory.) I have not overlooked such items as Winzelberg's uncertainty and confusion concerning dates, beginning with his references to the time when he learned of Greenhoot's illness, whether it was in December or in January, and whether he then went to see Gottfried the following day or several days later. That these conversa- tions took place is not denied. If Greenhoot's illness could not have been discussed in December because it did not occur until the following month, we have the circumstance that Winzelberg testified to two conversations with Gottfried but incorrectly placed in the earlier conversation something which occurred in the latter. Such testimony is considered here, not on the issue of discrimination which has been found, but in connection with Winzelberg's credibility. Winzelberg's testimony concerning his search for employment, described infra, is itself reliable and hardly affected by his confusion of two dates in his account of conversations which took place 4 years earlier. I have also considered such elements of contradiction as, for example, between Winzelberg's earlier testimony: "I asked him for a position there, if he has. I heard they had a route on, and he says they did. There was Artie Greenhoot's"; and his later reply that he did not recall whether Greenhoot 's name was mentioned. Thereafter, he thought, though not sure, that Gottfried mentioned Greenhoot' s name. (Gottfried, on his part, testified that he has not hired any new route salesman since January 27, 1951. Later he listed new hirings and their circumstances.) In the face of searching cross-examination, Winzelberg testified credibly concern- ing his employment and efforts to obtain employment. Although the record reflects moments of confusion in the repeated references to various memoranda and nota- tions, there can be traced and I find an acceptable history of his search for em- ployment. A list of places was received in evidence with the explanation that, except for an employment agency named, these were the places which he visited in search of em- ployment. He also testified that he called many other places on the telephone, too 9 On February 3, 1955, the Board decided the appeal as follows The Board upon consideration of the request of Local 802 that it overrule certain rulings of the Trial Examiner and further that it direct him to expand the scope of the pending hearing upon the remand from the U. S. Circuit Court of Appeals for the Second Circuit to permit relitigation of certain issues relating to the otiginal refusal of employment by Respondent R. K. Baking Corp., directed that the request be, and it hereby is, denied because the issues sought to be raised by this request already have been decided and clearly are outside the scope o1 the matters under consideration upon the remand. As appears on page 276 of the transcript, the affidavit of Charles Gottfried, verified January 12, 1955, and the Union's letter to the Board, dated January 25, 1955, Union's Exhibits Nos. 1 and 2, which constituted the appeal papers, were received, as was the Board's order, dated February 3, 1955, General Counsel's Exhibit No. 10. The two former have been mistakenly bound with the rejected exhibits. 1O But I have noted the references thereto by counsel and the portions indicated aml relied upon especially. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD many to record. While he stated that he did not go to places which were not included in the list, it appears that he was there referring to places which he visited without first telephoning; he was clearly familiar with those places which appeared on the list. As to those which did not appear on the list, when he said that he had not gone there, he added, "I said I had the names"! A composite of his testimony on cross- examination in this connection, which covers 30 pages on the record, indicates that he made many calls, using the telephone "instead of wasting time, and save time to call another one." But he also "kept calling a lot of places and went to places there." (A similar reconciliation of what at first appear to be contradictory statements can be made between his first description of the list as a record of the places where he looked for jobs and his volunteered addition, "And many others that I called on the telephone." He was apparently fearful that some of his efforts might be over- looked; but the list does not include these other places.) The first place where Winzelberg sought employment, Fink Baking Corp., was initially entered on a pad or, as he later testified, on a piece of scrap paper, before he went there in April 1951. After he returned home, he marked that visit on the paper which became the list received in evidence. Thereafter he noted on the pad other visits that he made in search of a job. He destroyed the pad "when (he) was through with the last entry," that of April 4, 1953, first copying on the paper which up to that time contained only one entry the various notations of visits made. (He later testified that he threw the papers away approximately 4 or 5 months ago. "Around that, not to the exact. ... ) On the pad he had also kept telephone num- bers, with names and addresses, of places he called for work. The witness declared that he had made a mistake in writing 1953 instead of 1951 after the notation of the first visit to Fink. His explanation was that after the first visit there in April 1951 he wrote only the Company's name and address, and that he added the dates when he made the other entries in 1953. Winzelberg's destruction of the original notations was not shown to have been done with this proceeding in mind. Certainly, if he falsified with respect to any of the attempts to obtain employment as he related them, there was ample opportunity, names and addresses having been provided and time allowed, to show such falsifica- tion.u The list shows that between April 1951 and 1953, Winzelberg called on six bakeries. He testified that he made a total of 12 visits to these. Parenthetically he listed a seventh bakery, Wonder Bread, to which he went in response to an ad. (This place does not appear on the list in evidence) In addition to the employment agency, which he did not personally visit, the list includes four other firms in dif- ferent kinds of business, upon which he called in person for employment. He had previously registered with the State Unemployment Insurance office and had ex- hausted his right to benefits. He was told at the latter place that they had no such job, and he therefore "started looking on (his) own" and did not go back there. He testified further on cross-examination that he called half a dozen or more employment agencies in 1951 and 1952 (and in 1953 the one mentioned supra, in response to an advertisement which listed a bread route), but getting no response there, proceeded to answer newspaper advertisements. While he testified that he did not ask for or seek temporary employment, it is clear that he "called up and asked what job is available." It does not appear that he was offered or that he rejected any temporary job except such as was offered by R. K.12 Winzelberg obtained his first job after January 1951 on April 5, 1953; he worked for 1 week and earned $45. A week or 10 days later he found another job, on which he is still employed. His earnings there in 1953 totaled $1,294. He was ill and unable to work during the first 13 weeks of 1954. Thereafter, and through Decem- ber 31, 1954, he earned $1,527. He testified that since the latter date he has aver- aged $45 per week, this figure being slightly higher than the average of those previ- ously noted. (Since his earnings at no time reached indicated earnings with R. K , as found infra, it will be unnecessary to apply the Woolworth formula.) 13 Diligence in seeking employment is to be evaluated not only in the light of such obvious factors as employment conditions. Winzelberg testified without contradic- -Even if it were difficult for the Respondents to attack Winzelberg's testimony and figures, the evidence adduced does not warrant disregard of such testimony and figures. Cf Efco Manufacturing, Inc., 111 NLRB 1032. 12 The record does not indicate the circumstances surrounding his 1-week employment, and we do not know whether it was taken as a temporary job in advance of certain holidays 13 F W Woolworth, 90 NLRB 289, 291-294 R. K. BAKING CORP. 799 Lion by either of the persons mentioned that at the prior hearing, in February 1952, Gottfried asked Cohen, one of the Union's attorneys, "Why don't we put Mr. Winzelberg back to work, and give him his book, and straighten this matter out'" and that Cohen replied, "On your last pint of blood will he ever be able to work in the industry." Bearing in mind the various pertinent elements, I find that Winzelberg made diligent effort to obtain employment Not only is there no contradiction of his testi- mony that no other jobs were available to him, but aside from any question of credibility in that connection I find that he could well have relied on his impression, supported by the unremedied findings of violation by the Union, that he would not find employment with employers who had dealings with this or an affiliated union In this connection, he testified that "every time (he) went to get work" he was told, "Look, Max, don't knock yourself out, because we are not going to try to get involved with Local 802. They can put out of business any firm they want that is going to hire you " Questioned about his means of support since January 1951 or shortly before that date, when he was likewise unemployed, Winzelberg testified that his son works and that his wife receives income from other apartments in the house in which they reside. He testified further that he 14 has made various loans from the National City Bank, citing loans of $2,000, $500, and $300, and from his wife's family, for a total of approximately $5,000. He referred to six booklets indicating bank loans, the proceeds of which were allegedly used for subsistence. He also pointed to about $4,000 in savings which he had "prior to" 15 January 1951, and which he used for living expenses and cost of illness. Some of these loans have been repaid. One was for three refrigerators; but Winzelberg testified that instead of repaying that loan, the money for that purpose was otherwise used It later appeared from his testimony that only two of these loans were made during the period under con- sideration: one in January 1953 for $2,100, and the other in February 1953 for some $240. Testimony thereafter received and based on bank records indicates that in January 1953, Mrs. Winzelberg borrowed $480, collateral being a savings bank account in the amount of $515 and in the name of Mr. and Mrs. Winzelberg; in July 1953 she purchased an automobile for $3,124 90, borrowing $2,136 and trading in a used automobile; and in August 1953, one of Winzelberg's sons borrowed $324. (The first two of these loans were refinanced.) This testimony concerning bank loans can be weighed in two connections: as evidence of Winzelberg's financial need during the period, and as evidence of his credibility. On the question of his need, the loans are hardly probative. They were not made to him, and if financing indicates someone's need for cash, it was not his.- If a son's need is to be equated as Winzelberg's own, as well conclude that the relative affluence indicated by the purchase of a new automobile was also his But to say that the bank loans do not indicate the financial stress which Winzelberg suggested is not to say that such stress was disproved or even that it was not shown. He did testify without contradiction that he drew on his wife's income. Beyond her ownership of some real property the nature and extent of such income were not detailed. None of the parties made a complete analysis of Winzelberg's income and expenses; we have but an inconclusive and piecemeal series of references to various elements. The issue in this connection is the amount of Winzelberg's earnings, and as to that he offered evidence. The attempt to question how he "got along" during the period, because incomplete, did not refute this evidence of earnings. That attempt represented a proper means by which the Respondents could meet Winzelberg's testimony concerning his earnings, and the burden of proof or of going forward with the evidence in such attempt was the Respondents'. That the attempt was incomplete and the results inconclusive leaves us where we were before, i. e , with the evidence concerning his earnings. As for Winzelberg's credibility, his reference to the bank loans as proof of his need indicates unreliability. But this, added to his errors concerning dates, noted supra, does not overcome the specific and unassailed testimony concerning his attempts to obtain employment and his earnings. Nor, as I evaluate his entire testimony, do I feel warranted in rejecting his statement that he was not employed except as he indicated. Although his explanation was not quite adequate, including as it did loans outside the period or for other purposes, there are general statements 14 He later testified that his wife, who owns property, borrowed the money 15 Subsequent questioning suggests that the reference here was to December 31, 1949 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning loans from relatives, exhaustion of savings, and income received by his wife and son. Certainly there was not even an attempt to delve into these other sources of income, to analyze them, and to prove inconsistency in that connection. As we seek here to impose neither penalty nor bonus, but to make Winzelberg whole for loss sustained because of the discrimination found, I credit the evidence con- cerning his earnings, his attempts to obtain employment, and his lack of employment despite his deceptive attempt to support such evidence with testimony concerning bank loans. Before considering the proof of what Winzelberg's earnings would have been but for the discrimination against him, we should consider the argument strenuously and repeatedly asserted that valid and reasonable limitations would effectually have prevented Winzelberg's employment by R. K. If custom or practice in the industry offered a defense to Winzelberg's claim to a job, it was properly to be raised at the earlier hearing as a sufficient defense to the allegation of discrimination. It cannot be held that he was discriminated against by the failure or refusal to put him to work and at the same time that established practice justified such failure or refusal. But the first of these propositions has already been found: the second must therefore fall. Likewise untimely is argument addressed to Winzelberg's experience or lack of it, and even to any valid contract restrictions on employment, none of these issues being before us. If it be necessary to make a credibility finding concerning Winzelberg's qualifications and Gottfried's evaluation of them, it is clear that there was and can be no question concerning either: Winzelberg was qualified and was so regarded by R. K. Similarly, while it is clear that any offer of employment by R. K. in or about March 1951 was not of substantially similar employment,16 that question too was properly litigable at the earlier hearing; requests for and offers of employment to the close of the hearing in May 1952, as well as an alleged statement by Winzelberg in March 1951 that he wanted a job at Gottfried Baking Company only, were covered by the finding of refusal to employ since January 27, 1951, and by the order of instatement. Whether and when such employment was available are questions covered by the remand, not, assuming such availability, whether R. K. could lawfully refuse employment. As for the offer of temporary employment made at the Board's office on March 20, 1953, that presents no more than the question whether an offer of temporary employ- ment is sufficient; and when Gottfried testified that he offered Winzelberg a permanent job as a swing man, he described it as a job which "led to a better job as a permanent route salesman." Such jobs did not constitute substantially equivalent employment. (Under the 1954 contract between the Respondents, the swing man's pay base has been improved.) Several basic and well-established propositions are relevant and need to be con- sidered here. First, one who has been discriminatorily refused employment by an employer need not thereafter apply to such employer, but may properly await (the question of seeking employment elsewhere, aside) an offer of employment from such employer. Second, the offending employer's offer of employment, to limit liability, must be of the position previously denied or its substantial equivalent. Third, while obliged to seek other employment to minimize the loss sustained, the discriminatee may reject an offer of less than a substantially equivalent position by the offending employer. Further, it is the law of this case that any offers made to Winzelberg by R. K. up to the time of the earlier hearing (and any similar offers thereafter) were insufficient and did not limit R. K.'s liability. Since there is this difference in the regard for lesser offers when made by the offending employer and when made by others, Winzelberg's refusal of such offers by R. K. is no indication that he would not accept lesser employment by others in mitigation. In fact, the record shows that he has accepted lesser employment elsewhere. We come now to the question of Winzelberg's earnings at R. K. but for the dis- crimination. It appears first that Greenhoot, whom Winzelberg would temporarily have replaced, returned and worked during the entire week ending March 17, 1951. Winzelberg would thus have been employed on Greenhoot's route for 6 weeks after January 27. R. K.'s records indicate that over a period of slightly more than 6 months' employment, beginning with the week ending October 21, 1950, and ending on April 28, 1951, Greenhoot's earnings averaged $116.06. There has been no suggestion that the period or the earnings were not representative. I find therefore that Winzelberg would have earned $996.36 during this period. (I do not rely on Winzelberg's uncontradicted testimony, elicited on cross-examination, that Gottfried 16 The insufficiency of the offer in R. K's letter of March 20, 1953, is likewise clear. R. K. BAKING CORP. 801 told him Greenhoot earned approximately $150-$160 per week. Such a statement, like Gottfried's assurance that Winzelberg could earn $10,000 a year, is mere puffery and certainly not to be relied on where specific data are available.) With respect to vacation relief employment, the record shows that Klein was employed during the weeks ending June 23 and 30, 1951, and that Klein and Tuchfeld were employed from the week ending July 7 through the week ending August 25. For the weeks ending September 1 and 8, Tuchfeld's name replaces Klein's in the first listing, and there is added another employee, Schlager. From the fact that Klein alone was employed during the first 2 weeks of the vacation period, and the further fact that there is no other reference to either Tuchfeld or Schlager, Klein appears to be the senior of these. Gottfried testified that Klein had not been employed prior to January 27, 1951; he became a vacation relief man in the week ending June 23. (Whether he had been a swing man before the latter date, Gottfried did not know.) It is thus clear that Winzelberg had greater seniority than any of the 1951 vacation relief men; aside from a right, if any, to a permanent job under the letter of January 27, he is thus to be made whole for loss of employment as measured by the vacation oppor- tunities in 1951. I would credit Winzelberg with the earnings of Klein, the senior vacation relief man, through August 25, and with Tuchfeld's during the next 2 weeks, when he was the senior, the total as listed being $1,312.87. There is no question of vacation employment in 1952 or thereafter since, as will be seen infra, Winzelberg became entitled to regular employment before 17 the summer of 1952. Nor is there question of other temporary employment since his entitlement was to a regular route when that became available. The third aspect is the question of Winzelberg's entitlement to employment as a regular route salesman, and as of what date. The General Counsel has mentioned only in passing 18 the routes which were purchased by R. K. from other bakeries and which continued to be served by the men who had previously served them for such other bakeries, even though these men were now employees of R. K. "Passing the question of Schirloff and Rosenzweig, whose routes may very well have been acquired with the men," he argues that "at a minimum . Winzelberg certainly would have been entitled to the next route that opened up since that was the clear import of Charles Gottfried's letter" of January 27. Thus we need not answer the question whether Winzelberg's rights'were in fact limited by any practice with respect to purchased routes,19 nor the further question, likewise not raised, whether the promise to "establish" a route covered one which was purchased. Conversely, the Respondents have not claimed 20 that the promise of January 27, 1951, did not embrace routes made available for bidding. The letter of January 27 refers to establishment of a route and might therefore lead to consideration of an obligation to do so regardless of the fact that no new route has been opened (as distinguished from routes purchased) since that date. That letter was in the record when the Court in its opinion of February 15, 1954, declared: "Neither the Board's brief nor the record shows that R. K. could employ Winzelberg without discharging another employee. In effect, the Board has di- rected R. K. to establish another sales route. We think that under the circumstances of this case this is too drastic a remedy." This portion of the opinion was withdrawn by the Court on May 17, 1954, judgment being suspended and the case remanded to the Board. Conceivably, the "circumstances" as indicated by additional evidence might warrant a direction to establish another route. The Circuit Court did not 17 Theie is no evidence of earlier vacations in 1952 Is Earnings for a period on one such route and on another "acquired" (not "purchased" ! ) and assigned before January 27, 1951, are included in the record, but no argument made for considering them, much less for attributing them to Winzelberg. 19 The claim that route and salesmen are tied to each other as long as the route con- tinues, that "the man goes with the job," and that a purchased route is valueless unless the driver is transferred with it loses much of its force in a system where bids for trans- fer of routes cut across such experience- when a route is available, the senior employee has a preferred claim to it without reference to any difference in the nature or require- ments of the route. As for the concept that the route is transferred with its driver and that it is of no value to the purchaser without that driver, the suggestion of the driver as a commodity and value is contrary to the declaration that labor is not a commodity (N Y. State Constitution, art. I, sec. 17.) ° If they made any such claim, it was covered and denied by the decision heretofore made since a valid restrictive hiring practice would have been sufficient defense and would have left nothing to remand for consideration of instatement. 483142-59-vol. 120-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consider the letter of January 27 a "specific obligation"; hence the remand. But neither has any evidence been offered here to show that another route should have been established; and, despite the General Counsel's argument "that a new route would have been established for him, which is exactly the clear language of the January 27 letter," I will not go beyond the Court in its refusal to impose a remedy on any implication in the letter of January 27. On the issue of establishment of a new route for Winzelberg, we have only Gottfried's uncontradicted testimony that no new routes have been established, without testimony or even argument 21 that any should have been or should be opened. The remedy will be limited by the Court's limitation, the position taken by the General Counsel, and this testimony by Gottfried. Both evidence and argument were directed to the issue of relative seniority and the respective rights to bid for routes. In this connection, we can credit Winzelberg with seniority from January 27, 1951, and can consider that he would have served his "apprenticeship" with R. K. as replacement for Greenhoot and as vacation relief man.22 It remains to determine when Winzelberg's right to a route salesman's job would have been realized, but for the discrimination, not by discharge of another salesman, but by assignment in preference to another. We can then proceed to consideration of the loss which he sustained. The seniority of those who were route salesmen on January 27, 1951, and therefore had priority over Winzelberg as all parties apparently agreed, references to seniority not being questioned, will here be recognized. Further, despite the promise of establishment of a route for Winzelberg and the implication that he would thus be given the first available route, emphasis on seniority has been so marked and accepted by all parties, that precedence will be accorded to anyone who served even as swing or relief man prior to January 27, 1951. Under the circumstances, I believe that it would be "too drastic" to find that R. K. was guilty of discrimination if it had recognized such precedence; it should be observed here 23 The procedure will thus be in accordance with the Court's decision and its indicated position. Were we to confine ourselves to "establishment" of another route, we would be weighing what the Court declared would be too drastic a remedy. On the other hand, the modification and the remand indicate that consideration should be given to and determination made of Winzelberg's right to employment, not by discharge of another employee on dr after January 27, 1951, but by assignment in preference to another. As we follow the seniority pattern recognized by the parties, R. K.'s employment records point to availability of a route for which Winzelberg could have bid In acceding to all that the Respondents claimed for the system of seniority and bidding for routes, I do not pass upon the validity of the prevailing system or of any agreement which provides therefor. Any issue of prior experience or hiring practice, whether lawful or sufficient as a defense, which could allegedly bar Winzelberg was litigable at the earlier hearing. His seniority date being January 27, 1951, Winzelberg takes precedence over Green- berg, who was first hired on February 7, 1951, "as a temporary relief man." Of others who served on regular routes and whose earnings have been listed, Gordon, according to Gottfried, was a shipping department employee who filled in "until such a time as we could acquire from the union someone to replace him." Rosenzweig 21 I would once more refer to the General Counsel's "contention" in closing argument that a new route would have been established under "the clear language of the January 27 letter " Since we have no mole evidence on the point than had the Circuit Count (except, as noted, foi Gotttried's contrary testimony), I find no "clearer," support for the General Counsel's position than did the Court. 22 Although it was stated that regular routes were assigned only to men who were serv- ing as swing men, Gieenberg, who had earlier been a swing man, was given a regular route although not employed immediately betore (The transciipt, which incorrectly omits the word "not," suggested by the context, on the last line of page 389, is hereby corrected The situation is correctly described on pages 400 and 410 ) Winzelberg's situation would have been similar, but with gieater seniority, except foi the disciimina- tion. The season stated, that as a swing man an employee would get necessary experience, does not apply to Winzelberg Under a system of seniority bidding, there is no assur- ance that a ioute would be awarded to one who had served it as swing man. 23 The practical effect lies in substituting Winzelberg Tor Greenberg, as will be seen infra, instead of for Felderman Additional evidence that seniority is recognized, match- ing Gotttried's accepted testimony concerning it, is found in the absence of any claim that Winzelberg was of is entitled to any available ioute in piefeience to employees senior to himselt The iecord is silent concerning availability of othei and preferred routes beyond those herein considered. R. K. BAKING CORP. 803 served a route acquired from another. But in any event both Gordon and Rosenzweig were senior to Winzelberg, as is indicated by the record of the two former during the week ending January 27, 1951. Schirloff started later, in the week ending March 10, 1951. But he "came with" a purchased route, and is excluded from further present consideration. Felderman succeeded to Rosenzweig's route during the week ending March 1, 1952, when Winzelberg was available and entitled to employment. But under the system of senior- ity followed, Winzelberg was junior to Felderman, who had entered R. K.'s employ in the fall of 1950. We thus return to Greenberg, to whom assignment of routes should have been made only after assignment or offer thereof to Winzelberg. Greenberg was hired as a temporary relief man on February 7, 1951, and served on a route until February 17. On February 19 he rode with Gordon on Greenhoot's route, and thereafter served that route from February 20 during Greenhoot's recovery, i. e., through March 10, 1951. As noted, Greenberg was not employed by R K. immediately prior to June 1952, when he replaced Schirloff, who had bid for another route. Greenberg suc- ceeded to Schirloff's route immediately after a 2-week strike which took place in May or June. The exact date when Greenberg took over this route has not been given. With various references by Gottfried to a 2-week strike in June and in May or June, we will take June 16, 1952, as the date when Greenberg was given this route. He remained on it until about August 1954, when he bid on and received Felderman's route. Greenberg's earnings on his regular route have been shown only for a single week during each of the following months: October, November, and December 1952, and February, March, and June 24 1953. These indicate an average of $104.36 per week. On March 23, 1955, after the close of the hearing, I sent a letter to counsel for the respective parties, stating that I proposed to use the six amounts opposite Greenberg's name, referred to supra, and suggested, if it was claimed that these figures are not representative, a stipulation or proposed stipulation covering all of Greenberg's earn- ings. A copy of that letter, marked Trial Examiner's Exhibit No. 1, shall be part of the record I have received no reply. Omitting the 13 weeks in 1954 when he was ill, Winzelberg would presumably have earned 133 (considering the number of weeks from June 16, 1952, through April 2, 1955) times $104.36, or $13,879.88, as a regular route salesman through the week ending April 2, 1955. In thus projecting an average of Greenberg's weekly earnings, I have not allowed for any increase in August 1954, which he may at least have expected after he bid for the route previously served by Rosenzweig and Felderman, there is no sufficient basis for assuming, nor guide for computing, any such increase. (The General Counsel's suggestion that an average be taken of earnings on all routes was made in connection with establishment of a new route for Winzelberg. While it is supported by authority,25 it does not apply here ) Others with less seniority than Winzelberg are now employed as route salesmen The job to which he has been entitled is thus a continuing one, and Winzelberg is still entitled to immediate instatement. If counsel for the Respondents have any contrary ideas concerning the validity of the earnings figures and their comparability as urged by the General Counsel or as found herein, they have not indicated such in presentation of testimony, oral arguments, or by submission of any briefs. Confining themselves to questions con- cerning the validity of any finding of loss, they have either adopted the proposed method of computation or defaulted on that question. To the argument that the loss sustained is speculative and conjectural, it may be conceded that we cannot avoid the element of speculation as we seek to find "what would have been" but for the discrimination found. Within the limits of reasonable- ness and probability, we must substitute probabilities for the certainty which could exist only if there had been no discrimination 26 In Eastern Massachusetts Street 21 The last reference is to a period mainly in May, the week ending June 1, 1933 Despite the peculiar position of the June 1 figures , at the top of a new page. no other explanation has been submitted There was considerable discussion and a suggestion that the $120 figure noted was not in fact earnings for that week ; but the stipulation remains unexplained by any turther stipulation of affidavit , which counsel weie given leave to submit in explanation of that figuie. 25 Harvest Queen Mill & Elevator Company, 90 NLRB 320, 322-:323 26 That the computation of back pay for overtime work contains some variables or may present some difficulties . is undeniable ; but that does not lender the calculation of such back pay 'too speculative to admit of determination ,' and is no reason for doing nothing to make whole these employees As we have explained , we leave the development 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Railway Company,27 the Board concluded that where "in almost all instances" 29 disciplinary action "seldom" exceeded 10 days, "a 10-day suspension would have been fair and reasonable and that suspension beyond that period was discrimina- tory. Back pay was there directed for the period of suspension beyond 19 days. I find that between January 27, 1951, and April 2, 1955, Winzelberg would have earned from the Respondent R. K. $996.36, $1 ,312.87, and $ 13,879.88, for a total of $16,189.11 . His interim earnings were $45, $1,294 , $ 1,527, and $585 , for a total of $3,451. I further find that the net back pay due Winzelberg through April 2, 1955, is $12,738.11. CONCLUSIONS Upon the foregoing findings and computations , I conclude: 1. That the total net back pay due Max Winzelberg up to and including April 2, 1955, is $12,738.11. 2. That Max Winzelberg is entitled to immediate reinstatement as a route salesman. of a detailed formula to the compliance stage of the proceeding " Thomason Plywood Corporation, 109 NLRB 898 . Cf also Bigelow v. REO Radio Pictures , Inc., 327 U. S. 251,263-266 '7110 NLRB 1963. 2B The quoted portions indicate the indefiniteness which the Board there faced. The Kilborn-Sauer Company and United Steelworkers of America, AFL-CIO, Petitioner. Case No. 2-RC-8985. May 6,1958 DECISION AND CERTIFICATION OF RESULTS OF ELECTION On August 9, 1957, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted, under the direction and supervision of the Regional Director for the Second Region, among the employees of the Employer in the unit hereinafter found appropriate. Following the election a tally of ballots was furnished the parties which showed that of the approximately 62 eligible voters, 22 cast valid ballots for the Petitioner, 25 cast valid ballots against the Petitioner, 1 cast a void ballot, and 11 cast ballots which were challenged. Thereafter Petitioner timely filed objections to the election. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director caused an investigation of both the objections and the challenges to be conducted and on January 27, 1958, issued a report on objections and challenged ballots in which he found that the objections were without merit and recommended that they be overruled. He also found that some of the challenges should be overruled and the remainder of the challenges sustained. How- ever, as the ballots, the challenges to which he found should be over- ruled, were insufficient in number to affect the result of the election, he further recommended that the Board issue a certification of results of the election. The Petitioner timely filed exceptions to the Regional Director's report. 120 NLRB No. 46.