Swanson's, Inc.

SWANSON'S, INC. 407 nation as encourages or discourages membership in a labor organization is pro- scribed " And, as the Board has held, it does not follow from the fact that a umon has instigated employer action impairing an employee's employment status that such action tends to encourage or discourage union membership if, as in this ease, it is otherwise clear that the action was urged and taken "for reasons unrelated to union membership or the performance of union obligations " 8 Finally, assuming the dispute was settled independently of any agreement, I would reach the same conclusion Here, as stated above, no question of representation is involved nor is it claimed that discriminatory motives played any part in the Com- pany's decision to move and the resolution of the seniority issue In these circum- stances the Company was free to establish any system of seniority, or no seniority system at all, without violating the Act It is the theme of the General Counsel's brief the Company would have adopted a. companywide seniority system, under which the Jersey City men would have re- tained their seniority, but for the unlawful delegation of authority over seniority to Local 560 1 have already found the evidence does not support any such finding Nor do the cases cited 9 support the General Counsel's theory for they are plainly distinguishable In the JAM Lodge 727 case 10 the Board held the enforcement of seniority provisions penalizing the employees for exercising their right to be repre- sented by a union of their own choosing was discriminatory in that it discouraged membership in such union The Richards case 11 did not involve any contract and as the court stated "Reduced to simplest concepts, the case is one of an employer discharging employees in order to replace them with men favored by the union " These cases bear no relation to the facts and law of the present case For the reasons stated above, I find that the Respondents have not engaged in unfair labor practices as alleged in the complaint in this proceeding [Recommendations omitted from publication I 8 Amour case, supra International Longshoremen's and Warehousemen's TJaion, Local No 10, Ind, etc (Pa(,ific Maritime Association), 121 NLRB 938, Daugherty Coripany, Inc, 112 NLRB 986, 989 9 The General Counsel discusses at some length the finding of unfair labor practices by the Trial Examiner in Reich Dairy IR-496 I think it sufficient to say that while I am bound to follow Board precedent, that obligation does not extend to findings, conclusions, or recommendations contained in intermediate reports 10 123 NLRB 627 ii N L R.B v Beth E Richards 4/b/a .Freaghtlines Equipment Company, 265 1+' 2d 855, 861 (CA 3) Swanson's, Inc. and International Brotherhood of Firemen and Oilers, AFL. °-CIO. Cases Nos 1O-CA-3410, 10-CA-3537, and 10-CA-3573 November 07, 1959 DECISION AND ORDER On April 22, 1959, Trial Examiner Max M Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondent filed exceptions and a supporting brief The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed The Board has considered the Intermediate Report, the exceptions and brief, and the entire record 125 NLRB No 48 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. 1. As set forth in detail in the Intermediate Report, a group of four employees met with Swanson, .Respondent's president, on August 12, 1958, and in the ensuing discussion Swanson stated that, if he wished, he could lay off present employees and hire men who had worked for him at a former plant and who would have more seniority. In view of Respondent's antecedent illegal conduct to discourage employee support of the Union and as this remark was part of a discussion of ways by which employees could get out of the Union, we find, in agreement with the Trial Examiner, that the above state- ment was, in such context, a threat to replace employees if they con- tinued to support the Union and was, therefore, a violation of Section 8(a) (1) of the Act. 2. We also agree with the Trial Examiner that the Respondent's discharge of Douglas Johnson on June 9, 1958, violated Section 8(a) (3) and (1) of the Act.' However, in reaching this conclusion, we rely not only on Swanson's statement on August 12, 1958, com- plaining that Johnson had come back from a previous layoff working for the Union, but in addition on: (a) The Respondent's other illegal antiunion activity, including Swanson's illegal interrogation of John- son on his being rehired in May 1958; (b) the fact that Johnson was one of the most active union advocates and that Respondent was aware of this; and (c) the fact that at the hearing Swanson, Walton, Haliday, and Gustofson gave varying and inconsistent explanations of why Johnson was discharged. THE REMEDY The Trial Examiner found that the layoffs of Peck, Berry, and Long violated Section 8 (a) (3) and (1) of the Act and recommended, inter alia, that Respondent be ordered to offer them immediate and full reinstatement. There is evidence in the record that following the discrimination against these employees there was a curtailment of Respondent's operations because of economic difficulties. Under ' The Respondent contends that the complaint and the supporting charge In ease No. 10-CA-3573 improperly allege the discriminatory discharge of Johnson . In support of its position it relies upon the fact that, although the charge in Case No . 10-CA-3410 also alleged that Johnson had been illegally discharged , the Regional Director had dismissed the Section 8(a) (3) allegations of that charge relating to Johnson, with no appeal being taken from his ruling. Under such circumstances , the legality of Johnson 's discharge cannot, the Respondent argues , be revived in the later charge and included in the com- plaint. We find no merit in the Respondent's position, for the charge in Case No. 10-CA-3573 was timely filed with respect to Johnson's discharge, and the principle of res jvdicate, which, in effect. Respondent is seeking to apply here , is not applicable where a prior charge is dismissed before a hearing or adjudication on the merits. See Taylor Forge and Pipe Works, 113 NLRB 093, 705; Textile Machine Works, Inc., 96 NLRB 1333, 1335, footnote 1; Jersey City Welding & Machine Works, Inc., 92 NLRB 510, footnote 2. SWANSON'S, INC. 409 these circumstances, we shall order that the Respondent offer Peck, Berry, and Long immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their sen- iority and other rights and privileges, and, in the event that there is insufficient work for all these employees, the Respondent shall dismiss all persons newly hired subsequent to the Respondent's discriminatory action on August 14, 1958. If there is not then sufficient work avail- able for the remaining employees including those offered reinstate- ment, all available positions shall be distributed among them without discrimination because of union membership or activity, in accordance with the system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of its business. Respondent shall place those employees, if any, for whom no em- ployment is available after such distribution on a preferential list, with priority in accordance with such system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of its business, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work. The possibility that one or more of the three employees discriminated against on August 14, 1958, might have been laid off in a subsequent reduction in work force, even absent the Respondent's unfair labor practices, will be taken into consideration in determining the backpay due these employees, in compliance with our Order. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Swanson's, Inc., Monroe, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Firemen and Oilers, AFL-CIO, or any other labor organization of its employees, by discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating any employee, or seeking information from him, with respect to his membership or interest in, sympathy for, or other activities on behalf of, any labor organization in a manner constitut- ing interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (c) Threatening to close its plant if its employees join or otherwise support the International Brotherhood of Firemen and Oilers, AFL- CIO, or any other labor organization. (d) Threatening to discharge employees if they continue to remain as members of, or otherwise continue to support, a labor organization. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Refusing to bargain collectively with the International Broth- erhood of Firemen and Oilers, AFL-CIO, as the duly certified ex- clusive bargaining representative of its employees in the following appropriate unit : all production and maintenance employees and truckdrivers employed by Swanson's, Inc., Monroe, Georgia, excluding office and clerical employees, professional employees, and supervisors as defined in the Act. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, including the International Brotherhood of Firemen and Oilers, AFL-CIO, to bargain collec- tively through representatives of their own choosing, to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Douglas Johnson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Offer John Peck, Lester Berry, and Manuel W. Long immedi- ate and full reinstatement to their respective former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified in our Decision and Order herein. (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary or appropriate to an analysis of the amounts of backpay due and the rights of employment under the terms of this Order. (d) Upon request, bargain collectively with the International Brotherhood of Firemen and Oilers, AFL-CIO, as the exclusive representative of the employees in the above-described appropriate unit, and, if an agreement is reached, embody such understanding in a signed agreement. SWANSON'S, INC. 411 (e) Post at its plant at Monroe, Georgia, copies of the notice at- tached hereto marked "Appendix." 2 Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the said Regional Director in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 2 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in the International Brotherhood of Firemen and Oilers, AFL-CIO, or any other labor organization, by discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of our employees. WE WILL NOT (1) question any employee, or seek information from him, with respect to his membership or interest in, sympa- thy for, or other activities on behalf of, any labor organization in a manner constituting interference, restraint, or coercion in viola- tion of Section 8(a) (1) of the Act; (2) threaten to close the plant if our employees join or otherwise support a labor organiza- tion; or (3) threaten to discharge employees if they remain in or continue to support a labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form a labor organization, to join the International Brotherhood of Firemen and Oilers, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or 412. DECISIONS OF NATIONAL LABOR RELATIONS BOARD protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. WE WILL offer Douglas Johnson, John Peck, Lester Berry, and Manuel W. Long immediate and full reinstatement to their for- mer or substantially similar positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay suffered as a result of the discrimination against them. WE WILL, upon request, bargain collectively with the Interna- tional Brotherhood of Firemen and Oilers, AFL-CIO, as the exclusive representative of all the employees in the following appropriate unit : All production and maintenance employees and truck- drivers employed by Swanson's, Inc., Monroe, Georgia, ex- cluding office and clerical employees, professional employees, and supervisors as defined in the Act. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Tabor Management Reporting and Disclosure Act of 1959. SWANSON'S, INC., Employer. Dated---------------- By-------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding against Swanson 's, Inc. , herein called the Respondent , involves Section 8(a)(1), (3), and (5 ) allegations , and was initiated by the International Brotherhood of Firemen and Oilers, AFL-CIO, herein called the Charging Party or the Union. The parties neither presented oral argument at the close of the hearing nor filed briefs. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS of FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Swanson's, Inc., a Georgia corporation, maintains its principal office and place of business at Monroe, Georgia, where it is engaged in the fabrica- SWANSON'S, INC. 413 Rion and sale of metal products. During the year ending August 1958, the Re- spondent sold and shipped products valued at more than $50,000 directly to cus- tomers located outside the State of Georgia. It is found that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, International Brotherhood of Firemen and Oilers, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The issues presented are whether the Respondent engaged in specified acts and conduct in violation of Section 8(a)(1), discriminated against Douglas Johnson on June 9, 1958,1 and John Peck, Lester Berry. and Manuel W. Long on August 14, 1958, in violation of Section 8(a)(3) and refused to bargain beginning June 13, 1958, in violation of Section 8(a)(5) of the Act. B. The events The Union did not conduct an organizing campaign among the Respondent's employees. The employees themselves contacted E. G. Bartlett, International rep- resentative of the Union. In about May 1958, Leonard F. Swanson, president of the Respondent, who left Jamestown, New York, where he had operated a plant for many years under the name of Swanson Machine Corporation, because, among other reasons, he became too involved with a labor organization, interviewed Douglas Johnson, an alleged discriminatee, for reemployment after a layoff in February 1958. During the course of this interview, which occurred prior to Johnson's reemployment, Johnson ex- plained that he had not looked for other employment as he expected to return to the Respondent's plant. Swanson replied that he did know about that and stated that he had heard that Johnson was one of the union men. Johnson, who had signed a union card in February, declared that he was not a union man. Swanson continued that he had come,out from under a union at Jamestown, and that he would never work under a union again. While former employee Samuel E. Norris was in a layoff status for several weeks during the spring, Foreman Emil Gustofson, who Norris considered a good friend, came out to Norris' house to borrow a plow. During the course of this incident, Gustofson declared that he had heard that Norris had signed a union card, and Norris admitted that he had. Gustofson stated that he was disappointed in Norris. According to Gustofson they had always been friends, Norris had stated he would never sign a card, and he, Gustofson, did not report this incident to anyone. Gustofson was out to Norris' house during this layoff period on a second occasion to borrow another plow when he told Norris that he needed Norris at the plant and suggested that Norris see Swanson. When Norris was interviewed at the plant office by Swanson, Swanson inquired of Norris as to how he felt about the Union. Norris replied that if Swanson wanted a union at the plant he would join it and that if Swanson did not want a union at the plant he would not join the Union. Swanson stated that it was on account of a union that he left men in Jamestown who'needed jobs.2 Norris was reemployed, and at the plant several weeks thereafter Gustofson asked Norris how he felt about the Union. Norris replied that a good union was all right but that a bad union was an enemy to the country. Gustofson also asked Norris if he knew when the next union meeting was to be held and Norris replied that he did not know. A representation election was held among the Respondent's employees on May 23. Sometime prior thereto, according to the credible testimony of then employee Ernest Frost, Gustofson stated that the Union could paint a pretty picture, but that he did not think Swanson would allow the Union to come into the plant.3 Shortly 1 A summary of the Respondent 's records shows that Johnson was laid off on June 2, 1958. 'Swanson did not impress the Trial Examiner as a reliable witness. His testimony that he did not discuss union matters or activities with Norris on this occasion is not credited. 5 Upon the basis of the Trial .Examiner 's observations , Gustofson did not give the impression of a reliable witness . His denial as to this incident is not credited. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the election, Gustofson also approached Frost, Johnson, and employee Junior Brown, with a newspaper article and stated that some people who had joined some labor organization had been laid off, and that their furniture had been taken away from them. Gustofson then pointed out to the men what a union will cause, and further that if they brought a union in at the plant Swanson would probably close the doors. Johnson declared that there was one good thing, his furniture was paid for. As already noted, a representation election was held among the Respondent's employees on May 23. This election was held in Case No. 10-RC-4122 and the Union secured a majority vote. Swanson testified that he had certain information as to matters reflecting upon the conduct of the Union and that sometime prior to the election he had filed a charge against the Union involving certain threats. This charge was withdrawn prior to the election. No objections were filed after the election and on June 3, the Union was certified as the collective-bargaining representative. On the day of the election while preparations were being made for the conduct of the election, Swanson told Bartlett in the presence of Johnson, who acted as 'a union observer, that if the men wanted a union he would go along with them. Directly after the election also in Johnson's presence, Swanson told Bartlett that he would be ready to bargain any time Bartlett would call him. Thereafter Bart- lett telephoned, wrote, and telegraphed Swanson seeking to bargain but did not letter dated June 13. The last communication is a telegram dated in about the middle of July. Sometime after the election Gustofson asked Frost whether he was in the Union and Frost admitted that he was a member of the Union. On June 9, Plant Superintendent Jack Walton informed Johnson that he was laid off for about 2 weeks and also declared to Johnson that since the men had brought the Union into the plant, the Respondent could not transfer the men to other employment at the plant or have the men sweep floors as had been done in the past. Johnson was not thereafter recalled for employment. As has already been noted, it is alleged that Johnson is a discriminatee. In July, according to the credible testimony of Manuel W. Long, another alleged discriminatee, Gustofson stated that Swanson would not work under a union, that the men should vote the Union out and get an independent union, and that he believed that Swanson would cooperate if the men got an independent union.4 Long, who was a union member, volunteered that while he remained employed by the Respondent and the majority of the men wanted a union he would have to go along with them. Long also stated that under the circumstances he was going to look for another job during the coming vacation and Gustofson suggested that Long would lose time training for another job. About a week prior to the vacation shutdown on July 28, John Peck, an alleged discriminatee, who was a member of the union bargaining committee , talked with General Foreman Webb Anderson about the Union. On this occasion and/or in a conversation directly after the vacation period Anderson told Peck that he could not give him any advice but that maybe they could bargain with Swanson if they left the union representative out. Peck replied that he did not think that they could do that or wanted to do that. The plant was shut down for vacation during the 2-week period beginning Monday, July 28. During the first week, seven employees performed maintenance work only at the plant. During the second week, 13 employees reported for work. These employees lacked sufficient service to be entitled to 2 weeks' vacation. On the first working day after the vacation period, Monday, August 11, members of the bargaining committee spoke to Anderson about leaving the Union. Commit- teeman Berry told Anderson that some of the men wanted to get out of the Union and asked Anderson for advice as to how this could be accomplished. Anderson replied that he could not give any advice, but that they could talk to Swanson and get an independent union. Committeeman Peck approached Anderson the same day, told him that some of the men wanted to get out of the Union, and inquired as to how this could be done. Anderson stated that he did not know, but he would talk to Swanson. Anderson arranged a meeting with Swanson. The next morning, August 12, Swanson met with Union Committeemen Berry, Peck, and Frost. Also present at this meeting was employee Richard Regan. At this meeting Peck inquired as to 4 For the reasons already given, Gustofson's denial that he suggested an independent union to Long is not credited. SWANSON'S, INC. 415 what they would be given to get out of the Union. Swanson stated that the men deserved more money and insurance, but that he could not promise anything. The men also sought advice as to how they could get out of the Union, and Swanson stated that he could not advise them but that he had a certain document on the subject they could see and return to him. Swanson also pointed out that they could go to the Board's Regional Office in Atlanta. One of the men stated that some of the employees feared a layoff if they got out of the Union, and Swanson replied that he was not thinking of laying anyone off, that he did not want to lose a man, that he had a good group of men, that he could get all the work they could handle, and that he wanted to build up the plant and add more men to the force. Swanson continued that if he wanted to he could lay them off and get the men in New York who had worked for him and were walking the streets, and that these men would have seniority over the present employees. Swanson gave one of the men the document on how to get out of the Union and upon inquiry told the men it would be all right to hold a meeting in the back of the plant. The men told Swanson that they would give him an answer the next day as to whether they would stay in the Union. During this meeting Swanson complained to Frost about Frost's having recommended Johnson for reemployment.5 At lunch time the employees held a meeting in the back of the plant. At this meeting a report was made of the discussion with Swanson, and the men decided to have the committee go to Atlanta and consult with Union Representative Bartlett. The committeemen were given time off from work, and the next day they went to Atlanta. The following day, August 14, during the lunch period the men conducted another meeting at the plant. They then unanimously decided to remain in the Union, and committee members reported this decision to Anderson. The layoff of Peck, Long, and Berry, which are alleged to be discriminatory, occurred by the close of business that day. Frost, too, was laid off on this occasion. That afternoon after timecards had been removed from the rack, Long suggested to Gustofson that some of the men were going to get their walking papers. Gustofson declared to Long that the men had made a fool of Swanson, that they had pretended that they were going to vote the Union out, and that they saw Bartlett and unanimously decided to remain in the Union. When Walton handed Berry his check, Berry inquired whether he was laid off or discharged and Walter replied that he did not know. Berry stated that he might want to look for another job and Walton advised Berry that if he could find another job, he had better take it. When Walton gave Peck his check he told Peck that he was laid off for a while. C. The conclusions 1. Interference, restraint, and coercion It is found that the Respondent violated Section 8(a) (1) of the Act by Foreman Gustofson's inquiries concerning the union interest, affiliation , and/or the scheduling of a union meeting of Norris and Frost, and by Gustofson's threat that the plant would be shut down if the Union came into Frost, Johnson, Brown, and Long; and by Swanson's inquiries as to union interest or affiliation of Johnson and Norris, and by Swanson's threats not to work under a union and/or to replace his employees if they continued in the Union to Johnson , Peck, Berry, Frost, and Regan. 2. The refusal to bargain As already found, a representation election was held among the Respondent's employees in Case No. 10-RC-4122 on May 23, 1958, and the Union was certified as bargaining representative on June 3. On June 13, the Union made its first written bargaining request but received no reply. The Respondent contests the validity of the certification urging that the election was held under circumstances which did not permit a fair choice by the employees. No objections to the election were filed within the time provided for in the Board's Rules and Regulations and no showing was made that the matters now urged are newly discovered. It is found that in violation of Section 8(a)(5) of the Act, beginning June 13, 1958, the Respondent refused to bargain with the Union as the certified bargaining representative in the appropriate unit described in Case No. 10-RC-4122. 5 This matter will be discussed in the portion of the report dealing with the allegation of discrimination as to Johnson. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The discrimination a. Douglas Johnson The General Counsel contends that the Respondent discriminated against Douglas Johnson beginning June 9, 1958, in violation of Section 8(a)(3) of the Act. The Respondent's position is that although Johnson was told he was laid off, he was in fact discharged; and further that Johnson was let go for lack of work in his depart- ment, his undesirable conduct in the plant, and his incompetence as an employee. In addition, the Respondent explains that subsequent to Johnson's discharge he engaged in conduct which confirmed the decision not to recall him as being unfit. As appears above, on Johnson's last day of employment, June 9, Plant Superin- tendent Walton told Johnson that he was laid off for about 2 weeks and that because of the Union contrary to the practice of transferring men to other work, Johnson could not be assigned to other employment around the plant. Works Manager William J. Haliday testified that he participated in the decision to terminate Johnson and that the factors involved were lack of work and general plant conduct. In explaining general plant conduct, Haliday testified that Johnson had been doing a lot of arguing with the men at the plant and that employee Rufus Roberts had reported to him that Johnson had threatened to tear up Roberts' car if Roberts did not • join the Union. After Haliday had testified that there were no other factors taken into consideration in Johnson's termination, he was asked further as part of his direct examination whether Johnson's work was satisfactory and replied that in the course of business there had been complaints from Foreman Gustofson that Johnson was slow in setting up his machine and that his slowness increased costs excessively. Haliday also testified that the foremen kept production records which would show employee efficiency. Foreman Gustofson, who testified both that he participated with Swanson in the decision to lay off Johnson the last time and that he had nothing to do with Johnson's last layoff, denied that he kept a record of Johnson's production. Gustofson testified that Johnson was a slow worker and that he had known that for about 3 years. In his testimony Gustofson stated that it was Swanson who decided to recall Johnson after the prior layoff, and also that, "I just needed him [Johnson] and we called him back." Gustofson further testified that Johnson was terminated because he was stirring up a lot of trouble at the plant by causing discontent, and that employee James Peters had reported to him, Gustofson, that Johnson had told Peters that he might find hs car smashed up in the parking lot if he did not sign up in the Union. Gustofson offered a further reason for Johnson's termination, namely, that it had been reported to him that Johnson had had a fight at a union meeting at the hotel with an employee sometime after Johnson was last employed, and that after this incident they definitely decided not to recall Johnson.6 Gustofson did not testify to lack of work as a factor in Johnson's case. Swanson related in his testimony that in May after Johnson had been laid off in a plantwide layoff in February, employee Frost talked to Swanson about taking John- son back. According to Swanson, Frost stated that Johnson had not been able to find a job and he needed the work, and that Johnson was a nervous wreck just hanging around. Swanson continued, that he told Frost to have Johnson come in and that he would talk to him. In his conversation with Johnson prior to reemploying him, according to Swanson, he told Johnson that he would have to change, do better work, produce, and not interfere with the men any more. Swanson testified further that it was he who decided to terminate Johnson around June 9. Swanson explained that after the election of May 23, Johnson had gotten more arrogant than ever, that Johnson had caused a lot of trouble with the men in the plant in that 0 ,According to employee Peters in the press department on the day of the election, which he placed as having occurred on August 16, Johnson threatened to cut his car tires, and in the washroom during the week following the election Johnson asked Peters to join the Union and unnn Peters' refusal threatened to have Peters' tires cut. Peters testified to another incident after a union meeting at the hotel which he also placed as having occurred on August 16. On this occasion, according to Peters who admitted that he had had some beer about an hour earlier and who described himself as not having too big a temper, Johnson accused him of telling lies about Johnson. Upon Peters' denial to Johnson, Peters testified, Johnson struck him and they got into a fight. It is found that the substance of the incidents as related by Peters is correct. Employee Roberts testified that a few days after the election, which he placed as having occurred in October or early fall, Johnson tried to get him to join the Union and stated that Roberts was liable to get his tires cut and his car bent up. The substance of Roberts' testimony is also credited. SWANSON'S, INC. 417 Johnson would not remain at his machine, and that they just decided that they could not keep him. Swanson did not testify that lack of work was a factor in Johnson's case. In view of the testimony of Haliday, Gustofson, and Swanson related above and the Trial Examiner's observation of these witnesses, their explanations as to the factors causing Johnson's termination cannot be accepted as correct. When Swanson interviewed Johnson for his last employment in about May, as already reported, Swanson inquired whether Johnson was a union man. Johnson denied such an interest and was rehired. Johnson had joined the Union in February. He handed out union cards to some of the employees and was elected a committee- man. Johnson also acted as a union observer in the representation election con- ducted on May 23. After Johnson's termination and at the August 12 meeting with the union com- mitteemen, as already noted, Swanson complained to Frost for having recommended Johnson for reemployment. On that occasion. Swanson declared that Johnson had not measured up to expectations, that Johnson had come back working for the Union, and that a few days after Johnson returned he had the men fighting among themselves. It is accordingly found, as Swanson admitted to the committeemen at the August 12 meeting, that Douglas Johnson was discharged on June 9, 1958, for his activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. b. John Peck, Lester Berry, and Manuel W. Long Contrary to the General Counsel's allegation that Berry, Long, and Peck were discriminatorily laid off on August 14, 1958, the Respondent takes the position that these employees along with others were laid off for economic reasons in accord- ance with departmental seniority. The Respondent's records show that a total of six employees were laid off on August 14.7 As has been found, Frost too was laid off on that date. Also, accord- ing to the Respondent's records, the employees who were laid off had less seniority by department than the employees who were retained. According to Swanson and Works Manager Haliday, departmental seniority was applied in this layoff. Swanson explained in his testimony that whenever possible they try to apply seniority in all cases, that in many cases ability will be applied, and that personal histories are also taken into consideration. As has been noted, the Respondent is engaged in the fabrication and sale of metal products. It has its own line of merchandise which it sells to retail outlets, and also manufactures components for segments of the electrical, electronics, aircraft, and other industries. According to Haliday, one of its principal manufacturing con- tracts was with National Linen, which represented a substantial proportion of its production work.8 There was a decline in business in various of these activities and in the latter part of June, according to Haliday, he and Swanson discussed the lack of sufficient work for the employees and decided not to lay off anyone until after the vacation period, July 28 through August 8, as they felt the men were entitled to their vacation pay. Haliday testified further that around July they were fairly certain that the National Linen contract would not be renewed, and that the final decision to lay men off was made right after they returned from vacation. Swanson testified that the layoff decision was reached before vacation, that they felt the men were entitled to their vacation pay, that they wanted to see whether any business developed, and that additional business did not develop. According to Swanson's testimony, the Respondent could not lay men off before the vacation period in view of the union activities as they did not want to get involved. Swanson testified further that they had good employees and that they were "bound to get a few radicals, but they can always be eliminated and taken care of." When the layoff came, Swanson testified that he gave "the superintendent the instructions that they are laid off for lack of work or whatever the reason is." At the time of the layoff there was some work remaining to be done by Berry, Peck, and Long. Frost who was also laid off on this occasion was recalled for employment 3 days later. He worked to about the end of the month and then quit his employ- I In addition to the three employees named above as alleged discriminatees , a summary of the Respondent's records show that employees Choice Wall, Alton Finley , and Samuel Norris were also laid off on August 14. This summary shows a total of 37 production employees prior to the layoff. 8 HIalliday's testimony is not clear as to whether he intended to state that the National Linen contract alone or that contract and another one together constituted 25 percent of the plant 's production. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. According to Swanson, more than half of the work performed in the depart- ments affected by the layoffs arose out of the National Linen contract. No replace- ments were hired for the laid-off employees and, according to Haliday and Swanson, such of their work as the Respondent had was rotated among the remaining employ- ees, Swanson's son and the supervisory personnel. Prior to this layoff, at least when there had been a lack of work which was antici- pated to be of a short duration, according to Haliday and Swanson, men had been transferred around within the plant to provide them with steady employment. On August 12, 2 days prior to the layoff, at the meeting with the union committeemen when, as has been found, there was a discussion as to how the men could get out of the Union, Swanson declared that he was not thinking of laying anyone off, that he did not want to lose a man, and that he could get all the work he could handle. Yet by the close of business on the day the employees unanimously decided to remain in the Union and it was so reported to management, union member Long and Committeemen Peck and Berry were told that they were laid off. Foreman Gustof- son, who, as has been found, had been informed by Long that he would go along with the men so long as a majority of the men wanted a union, explained to Long when the layoffs became known that the men had made a fool of Swanson, that the men had pretended that they were going to vote the Union out, and that after they saw the Union representative they decided to remain in the Union. In view of the findings regarding Haliday and Swanson as witnesses made in con- nection with the Johnson case and the above findings, Haliday's and Swanson's explanations for the layoff cannot be accepted as correct. It is found that Gustof- son's declaration to Long is essentially the correct explanation for the layoffs and that the layoffs were brought about by the decision to remain in the Union. It is accordingly found that John Peck, Lester Berry, and Manuel W. Long were discriminatorily laid off on August 14, 1958, in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free •flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Thus, having found that the Respondent interfered with, restrained, and coerced its employees by the conduct enumerated in section III, C, 1, the Trial Examiner will recommend that the Respondent cease and desist from this conduct. Having also found that the Respondent discriminated with regard to the hire and tenure of employment of Douglas Johnson on June 9, 1958, and John Peck, Lester Berry, and Manual W. Long on August 14, 1958, the Trial Examiner will recom- mend that the Respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of pay suffered as a result of the discrimination against him, by payment to each of them of a sum of money equal to the amount he would have earned from the date of the discrimination to the date of the offer of reinstatement less net earnings to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in any one particular quarter shall have no effect upon the backpay liability for any other such period. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay due. Having found that the Respondent refused to bargain in violation of the Act, the Trial Examiner will recommend that upon request the Respondent bargain collec- tively with the Union and, if an understanding is reached, such understanding be embodied in a signed agreement. As the unfair labor practices committed by the Respondent were of a character striking at the roots of employee rights safeguarded by the Act, it will also be recommended that the Respondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the Act. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 419 Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Firemen and Oilers , AFL-CIO, is a labor organization within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees named above, in the section entitled, "The Remedy," thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 3. By engaging in the conduct set forth in section III, C, 1, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The Union on Jun 3, 1958 , was and at all times thereafter has been the exclu- sive bargaining representative of all employees in the unit found to be appropriate in Case No. 10-RC-4122 , for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit , beginning June 13, 1958, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. 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.] Central Oklahoma Milk Producers Association and Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 886. Case No. 16-CA-1188. November 30, 1959 DECISION AND ORDER On July 17, 1959, Trial Examiner Lloyd Buchanan issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, Respondent filed excep- tions to the Intermediate Report and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and 'Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was cominitted.2 'The Respondent also requested oral argument. As the record, exceptions, and brief adequately present the issues and the position of the parties, the request for oral argu- ment is denied. "At the outset of the hearing, the Trial Examiner overruled Respondent's motion for copies of pretrial statements of all persons interviewed by the General Counsel. Respond- ent excepts to this ruling. Under the rule enunciated by the Board in Ra-Rich Manufac- turing Corporation, 121 NLRB 700, Respondent was entitled to demand such pretrial statements only after the declarants had testified at the hearing. As they had not yet testified when the motion was made, we find the exception to be without merit. The Respondent contends (1) that the amended complaint is defective because it was not signed by the General Counsel, (2) that it was served 4 days prior to the hearing, 125 NLRB No. 56.