Western Bank and Office Supply Co.

WESTERN BAND. AND OFFICE SUPPLY COMPANY 511 2 By interrogating its employees, concerning their union memberships, sentiments, and desires, by threatening to close the plant if the Union came in, by promising benefits if the employees form their own organization and if they abandon their union membership, and threatening discharge and other reprisals if union member- ship were not abandoned , Respondent engaged in interference, restraint, and coercion of its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act 3 By failing to recall and reinstate B T Hawkins, Thurman Nix, Robert D McGregor, Jr, and Frank Elmore on and after September 18, 1958, and by refusing to reinstate Kenneth Haney, Charles Goodwin, Ray Freeman, Carroll Herron, and Jimmy Nix on and after October 27, 1958, Respondent engaged in discrimination to discourage membership in the Union and thereby engaged in unfair labor prac- tices proscribed by Section 8(a) (3) and (1) of the Act 4 All production and warehouse employees at Respondent's Atlanta plant, ex- cluding office employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act 5 On September 8, 1958, and at all times thereaffter, the Union has been and now is the exclusive representative of all the employees in said unit within the meaning of Section 9(a) of the Act 6 By failing and refusing to bargain with the Union on and after September 10, 1958, Respondent engaged in unfair labor practices proscribed by Section 8(a) (5) and (1) of the Act [Recommendations omitted from publication ] Western Bank and Office Supply Company and Amalgamated Lithographers of America. Case No 16-CA-1213 December 1, 1959 DECISION AND ORDER On July 16, 1959, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto Thereafter the Respondent filed exceptions to the Intermediate Report. 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 [Members Rodgers, Bean, and Fanning] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the followmg addition We agree with`the Trial Examiner that the Respondent discharged employee Richard Cabrera in violation of Section 8 (a) (3) of the Act Cabrera was hired on November 5, 1957, as a part-time apprentice Soon after, he was given full status as an apprentice operator and assigned to run an offset press Although only an apprentice, he was 125 NLRB No 62 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .deemed qualified, and was expected, to do the work of a fully trained multilith operator. Like most of the other operators, he did not at first reach the standards of quality and production called for by the Printing Industry of America. However, in the last 2 months before his dicharge his work improved so that he exceeded these standards. We are persuaded on the record, that he was not an unsatisfactory employee. On the morning of November 21, 1958, a conversation took place between Cabrera, Superintendent Bush, and Sales Manager Bennitt concerning the plans of the Company to sell one of two multilith machines. Cabrera was asked which of the two machines was the better one. When he replied that number one was better than number two, he was ordered by Bennitt to put some of the good parts from number two machine into number one. He was further told to do this work during his spare time within the next week or two. In the afternoon of the same day, Superintendent Bush told Cabrera that the Respondent intended to loan him for 2 or 3 days' work to another lithographing company which was then being struck by the Charging Union. Cabrera declined this proposition on the ground that he was a member of the striking union. He took out his wallet and showed Bush his union card. Bush said, "Oh, No; not you too?" and walked away.1 At the end of the working day, Bush discharged Cabrera without giving any reason for that action. On November 25, Bush, without any prior request on the part of Cabrera, sent to him a letter to the effect that the discharge was because of a "reduction" due to lack of work. On these facts, and the record as a whole, we find, in agreement with the Trial Examiner, that Cabrera was discharged for union activities and not for inefficiency as contended by the Respondent. ORDER Upon the entire record in the 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, Western Bank and Office Supply Company, Oklahoma City, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Lithographers of America, or any other labor organization, by discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing 'We agree with the Trial Examiner ' s finding that this conversation took place on November 21, 1958, regardless of whether the struck company asked the Respondent for help on November 14 or 21, 1958. WESTERN BANK AND OFFICE SUPPLY COMPANY 513 their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Lithogra- plhers of America, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from 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 condi- tion of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Richard Cabrera 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 interference, restraint, coercion, and discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Post at its plant in Oklahoma City, Oklahoma, copies of the notice attached to the Intermediate Report marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent 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 its 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. (c) 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 amount of backpay due and the rights of employment under the terms of this Order. (d) Notify the Regional Director for the Sixteenth Region in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 2 This notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." 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 a United States Court of Appeals , Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein alleges that the Company has violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended , 61 Stat. 136, by discharging Richard Cabrera on or about November 21, 1958, and failing and refusing to rein- state him, because of his concerted activities . Admitting the discharge and refusal, 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the answer denies that they occurred because of Cabrera's concerted activities. A hearing was held before me at Oklahoma City, Oklahoma, on March 26 and 27, 1959. Briefs were thereafter filed by the General Counsel and the Company. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, an Oklahoma corporation with principal place of business in Oklahoma City, Oklahoma, sells at retail at its plant in Oklahoma City, printing, stationery, and office equipment; and that during the 12-month period preceding the complaint it sold products valued at more than $500,000, of which at least $25,000 was derived from goods and merchandise which was shipped from outside the State of Oklahoma directly to the Company's plant in Oklahoma City. I find that the Company is engaged in commerce within the mean- ing of the Act. It was admitted and I find that the Union is a labor organization within the mean- ing of the Act. II. THE ALLEGED VIOLATION OF SECTION 8(a)(3) Cabrera was employed by the Company as a part-time apprentice multilith opera- tor on November 5, 1957, and given full-time status on January 7, 1958. He was thereafter assigned to running a Harris offset press, "LSB," and then to the "Big Harris, LTC." On the morning of November 21, 1958, during a conversation between Cabrera, Bush, the plant superintendent, and Bennitt, the Company's printing sales manager, the latter told Cabrera that the Company was thinking of selling one of the multiliths, and asked Cabrera which machine was better. Cabrera replied that No. 1 was better than No. 2. Bennitt then told him to switch some good parts from No. 2 to No. 1 during his spare time or some time during the next week or two as the Company was thinking of selling No. 2. Immediately after lunch on that day (the testimony whether this conversation took place on November 21 or exactly 1 week before, on November 14, will be analyzed infra) Bush told Cabrera that American-Bond Printing & Lithographing Company, where the Union had called a strike on November 13, needed help and he was to be sent there for a few days, i.e., the following Monday, Tuesday, and possibly Wednesday. Cabrera replied that he could not go since he had a card also; and he took his wallet out to show his own union card. Bush's comment was ",Oh, no; not you too?" Cabrera affirmed, "Yes, me too," and Bush "just turned and walked away." If Cabrera's statement that he too was a member of the Union annoyed or disappointed Bush, his gesture in taking out his wallet to show his card was no abirritant. At quitting time on November 21, Bush discharged Cabrera. At issue is the reason for the discharge: whether it was because of Cabrera's indicated union mem- bership or because, as claimed, his work was unsatisfactory. There is no issue here concerning Cabrera's refusal to cross the picket line at American-Bond or to work there; he was not discharged for that reason. Gaines, owner of American-Bond, testified that on November 14 he telephoned and asked Bennitt for a replacement for one of his strikers; that Bennit said he had one man 1 whom he was going to let go because he was no good; that Gaines replied that anything was better than nothing at all; and that Bennitt said that he would talk to the man and see whether he was willing to make the change, but called Gaines back in he afternoon and told him that he would not want that man: he had joined the Union the week before. Gaines maintained that, while he called other Oklahoma City printers for help the following week also, repeating calls to some, he called the instant Company only once, on November 14. According to Bennitt, he and Bush had decided during the first week in November that they would discharge Cabrera. They had allegedly checked production records, decided to discharge a man in the lithographing department, agreed that it would be Cabrera, and decided to wait a couple of weeks (this would explain the November 21 date for the discharge) until they got a replacement. (How they knew that it would take a couple of weeks to get a replacement does not appear. In fact, :'It is unlikely that Gaines remembered at the time of, the hearing the name of a possible prospective employee mentioned over the telephone while he was trying to obtain strike replacements in November-if the name was mentioned. WESTERN BANK AND OFFICE SUPPLY COMPANY 515 Cabrera's place was taken by other men already in the Company's employ.) According to Bush, they had tentatively set the firing date 2 weeks later, but for a different reason : so that they could finish the work on hand. (If the work on hand was a determining factor, here again it does not appear that they knew whether additional orders would be received in the meantime, as they were, or how many.) As we shall see,, the work on hand was not completed when Cabrera was discharged; neither was the special task which had been assigned to him on the morning of November 21. Where statistical or adjectival data is relied on to support a claim that Cabrera was inefficient, no conclusion can reasonably be drawn from figures concerning his spoilages standing alone without comparison 2 of spoilage by other multilith opera- tors, as was pointed out at the hearing. The claim that Cabrera was inefficient is limited to his work on the multilith and data from the Company's records was made available in an attempt to compare his efficiency percentages, cost per thousand impressions, and spoilage records with those of other employees who worked on the multilith. After Bennitt first testified to Cabrera's spoilage on three jobs, it developed from Cabrera's and Bennitt's further testimony that the extent, reason, and respon- sibility therefor were equivocal to say the least. Further, when questioned concern- ing Cabrera's spoilage, Bennitt testified that he had spoilage records for each employee; but it was later stated on the record that the Company does not keep such records. Bennitt's recollection on spoilage was clearly limited and unreliable. It is unnecessary to detail here the evidence submitted to show that Cabie' rats performance on the job was inadequate. As the record indicates, I followed this evidence closely. Suffice it to say that the data and the testimony concerning-'it, d6 not show that Cabrera was inefficient or that he was discharged for that reason. The last study of Cabrera's work was allegedly based on his production from Febrii- ary through the first week in November. Thus the better and poorer periods were averaged although it is clear from even a quick glance at the figures offered by the Company that he attained a far higher efficiency percentage during the last 2 full months, and more than called for by the PIA (Printing Industry of America) stand- ard, which the Company cited. During the first week in October, Bush announced to the employees that their output must increase: they must reach the PIA standard, and would be removed if they failed. Cabrera exceeded the standard but, when the month ended, Bush and Bennitt allegedly decided,to discharge him for inefficiency- but*later. Bush had here told the employees that he would evaluate their work in futuro. His last alleged study, a month later, was allegedly based on a different yardstick.3 None of this supports the alleged defense. Nor, can comparison be made with work done by others after Cabrera was discharged and after the machine was taken out of production and improved. (Bush testified that the machine had pre- viously been in good shape.) Where comparison could be made, with another employee, Adomitis, who worked during part of Cabrera's employment and then quit for another job, Bennitt testified that Adomitis' production records had been destroyed. He admitted that Foreman Myers had told him that he preferred Cabrera to Adomitis as a pressman. . Bennitt testified further that, although Cabrera was an apprentice, he was "con- sidered" a journeyman. While he received apprentice pay, this was indeed flattering consideration; it contradicts the alleged conclusion that he was inefficient, for efficiency and relative quality are high when production is comparable with a journeyman's while the cost is an apprentice's. Thus inefficiency was not shown, and the stated expectation that he would not be continued in employment remains to point up the discrimination in Cabrera's discharge a few hours after that statement was made. Further negating the defense of inefficiency is Bennitt's testimony that, when he asked Bush whether someone was available to help American-Bond, Bush replied that Cabrera "wasn't too busy, really . the stuff we were doing was jobs that we could do then, or we could do later, and he would check with him and see if he wanted to go up there and go to work." [Emphasis supplied.] Here was no question of Cabrera's inefficiency, and no suggestion of the decision allegedly made before to discharge him. 2 See American Life and Accident Insurance Company of Kentucky, 123 NLRB 529. 'With Cabrera's average being computed on the period since February 1, there is no good explanation for the failure to discharge him in October (two others were discharged during that month for inefficiency), when it was apparent that the average was and must remain low in' view of that long base period. Further trial or opportunity for Cabrera could be explained only if, contrary to Bush's testimony, the prior period were to be ignored ; and if it were ignored, Cabrera's excellent performance during the last 2 full months would have barred any claim of inefficiency. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If as Bush testified, after he made up his mind at the end of the first week in November to discharge Cabrera for inefficiency, he would not have considered any improvement in Cabrera's work during the 2-week period ending November 21 because Cabrera's efficiency percentage through the first week in November was poor, averaging only 66 percent,4 then the same reason would have prompted Cabrera's discharge on October 1 or immediately thereafter as Bush announced a new-broom policy and immediately started to sweep clean. Cabrera's record on average from the beginning of February was worse on October 1 than early in November and predetermined the average on which Bush allegedly based the decision to discharge him. In fact, as we have seen, Cabrera's efficiency improved consid- erably in October (as in September) over his prior average and boosted his overall average. Yet Bush, allegedly concerned with efficiency percentage and basing on that his decision to discharge, ignored the marked improvement during the last 2 full months, and relied on the overall record on which, when that was worse, he had not acted! This is an implausible explanation,5 and I do not believe that it had been decided about November 7 to discharge Cabrera. Gaines provided a detail which Bennitt had omitted when he testified that, when Bennitt called him back on November 14, he reported that the man he had in mind for Gaines would not do: that man had joined the Union the week before. ( Bennitt later testified that he had been in error in stating that it was in his second conversa- tion with Gaines on November 14 that he told him that the Company was going to discharge the man he had been ready to send to American-Bond; it was during the first conversation that day.) It does not appear from Cabrera's or Bush's testimony that the former said when be joined ; or from Bennitt's or Bush's that the latter men- tioned a date of union joining. There is thus no connection between Cabrera's statement to Bush of his union membership and Bennitt's statement to Gaines. In fact, Cabrera testified earlier in the hearing that he joined the Union on February 5, 1958. All of this indicates that Cabrera was not the man whom Bennitt mentioned to Gaines and who had joined the week before! Conceivably, when Bennitt spoke to Gaines concerning a man to be let go, he may have been referring to one of the others whom the Company laid off in Novem- ber or December (those terminations are not in issue here and have not been liti- gated) or to anyone else. Clearly the 2-week period cited as having been earlier fixed by Bennitt and Bush for Cabrera's discharge on November 21 had not expired on November 14. Further, Bennitt was to have the man whom he was going.to discharge go to see Gaines at noon if he wanted to make the change. Whether on the 14th or the 21st, Cabrera was not that man for he was not spoken to about this until after noon so that he could not go to see Gaines at noon or during his lunch period. Beyond this is a fact which has been noted , will next be considered, and stands out in this welter of conflicting stories: As late as the morning of November 21, both Bennitt and Bush expected Cabrera to be continued in his employment. With these reflections on Bennitt's and Bush's credibility, we come to the question whether (distinguishing this from the conversation between Bennitt and Gaines) it was on November 14 or 21 that Bush spoke with Cabrera about working for American-Bond for a few days. Admittedly it was on the morning of the 21st that Bennitt asked Cabrera to switch some parts from one multilith machine to another during the next week. It is clear that as late as the morning of the discharge Bennitt and Bush expected Cabrera to continue in the Company's employ. If as Gaines testified, Bennitt called him back at noon, this also would indicate that Bennitt had another man in mind when he spoke with Gaines and that the Bush- Cabrera conversation after lunch occurred later. I find that the reaction to Cabrera's show of union support came on the afternoon of November 21, and I credit his testimony that he was asked on that day, not on November 14, to assist at American-Bonds This permits the possibility that Gaines and Bennitt had talked on the earlier date, with the idea that another company employee was then being considered, as noted supra. .Why, then, Bennitt spoke to Cabrera about this on * Sometime during the summer, when Cabrera's efficiency percentage was at its lowest according to the data submitted, Bennitt told him to become familiar with the more difficult operation of the press so that he could take it over temporarily in case of emergency need. As Cabrera's record improved, his apparent desirability, based on his efficiency, was allegedly lessened. 5 This explanation is not bolstered by the different explanations noted concerning finish- ing the work on hand and getting a replacement. I do not rely on Cabrera's statements to Foreman Myers since , to assume that they were made at the time of the events described is to assume that those events occurred on November 21-which is what Myers' testimony was intended to prove. WESTERN BANK AND OFFICE SUPPLY COMPANY 517 November 21 we need not speculate; but he did and learned of Cabrera's union activities, and action followed swiftly. While this sequence indicates violation of the Act, it may be noted that the evidence indicates discrimination even had it been on November 14 that Bush spoke to Cabrera about American-Bond and learned about his union membership. For then we would have Bush's implausible explanation that he acted on Cabrera's record as of the end of the first week in November, noted supra; Bush's and Bennitt's expectation on the morning of the 21st that Cabrera would be working there the next week; and no valid explanation for the discharge that afternoon. Were it necessary to provide here a reasonable explanation where the Company has failed to do so, one could guess that, with orders on hand which were not sufficient to keep all employees busy, Bennitt and Bush assigned to Cabrera on November 21 the task of putting the No. 1 multilith machine in better condition with parts from the No. 2; that they then recognized the opportunity to answer Gaines' plea of the week before, and spoke to Cabrera about it; and that this com- bination of circumstances led to the disclosure of his union membership and to his refusal to work at the strike-bound plant. But all of this would still spell out discrimination since, while the Company could have discharged or laid off Cabrera for lack of work (this would point to Bush's alleged and inconsistent reason on November 7 as an attempt to explain the action taken 2 weeks later) it had not discharged him but found other duties for him in addition to his regular duties. The union activities would thus have weighed more heavily and triggered the decision to discharge.? If any slight basis remained for crediting the testimony that Cabrera was discharged for inefficiency, Bush's letter of November 25 to the effect that the "reduction" was due to lack of work would effectively remove it. Nor did Bush enhance his credibility when he attempted to gloss over that letter by declaring that the reason stated, lack of work, was "partially the reason. It could have been gone into, if you measured it down, we could have said lack of work." Ostensibly to assist Cabrera in getting another job, this letter was apparently sent without request on his part and was thus a voluntary statement made at the time by the Company and contrary to the reason now assigned for the discharge. Nor was this reason, that his work was unsatisfactory, stated to Cabrera when he was discharged. While there are several references to lack of work, this was at most to be the occasion, not the reason, for the discharge already agreed upon; we recall that the decision to discharge Cabrera for inefficiency had allegedly been made on November 7, to be carried out in 2 weeks, when the work already scheduled would be com- pleted. But not only did a few days' work remain on the job on which Cabrera was engaged on November 21, but he now had an additional rush job which was not included in Bush's 2-week-old schedule list; and this rush job was completed the following week by another employee who Bush believed ("hoped" might be a more accurate - 'ord) was competent, because of alleged multilith experience elsewhere, to handle it although he had not done multilith work for this company before.8 Here we not only have the different explanations noted supra for delaying the discharge for 2 weeks (Bennitt's to get a replacement, and Bush's to finish the work), but having seen that the defense of inefficiency has not been sustained, we now find that lack of work has not been shown. It is conceded that Bennitt and Bush now knew that Cabrera was a member of the Union; and he had refused to cross the picket line to work at American-Bond. Discrimination is no less such even if other employees who indicate union sympathy 7N.L.R.B, v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A. 1). 8 This was hardly the type of replacement which an employer would use after waiting 2 weeks ; if, as claimed, Bennitt wanted a well-qualified man to replace Cabrera and put Cabrera's discharge off for 2 weeks so that a replacement could be obtained, he would have waited longer to find a proved and adequate one. In fact, it appears that the multilith was operated for several months after Cabrera's discharge by Willis, an operator who does not appear to have 'had multilith experience, had to have the press made ready for him, and had a high cost per thousand impressions. (It was later stipu- lated that for 2 weeks in August, when Myers was on vacation and Cabrera replaced him on the Big Harris, Willis handled a few and the simplest multilith jobs.) Supervisor Myers testified that there was "no comparison" between Willis' work and Cabrera's, in the latter's favor. Several men appear to have followed Cabrera in rapid succession. If, as the Company argues, Willis was not expected to do as well because he was paid less than Cabrera, the further comparison which the Company cites, between Cabrera and employee Campbell, must fail for the similar reason that the latter was paid still more. 535828-60--vol. 125-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are not discharged. To the evidence of discrimination in the different and insuffi- cient explanations for Cabrera's discharge, can be added the finding that it was on November 21 that he was spoken to about working at American-Bond so that there is now the factor of timing: disclosure of union membership and refusal to work at a strike-bound plant, and immediate discharge. (The interrelationship of the facts testified to and found has made it necessary to cite them in one connection and then to repeat them in another. An outline will clarify understanding and indicate the unified whole.) With all of this said, loudest and re-echoing above the evidence concerning dates, decisions allegedly made, reasons therefor, and deficiencies in performance, is the plangent tone struck by the admitted expectation on the morning of November 21 that Cabrera would be continued apparently indefinitely and for at least another week as he was assigned duties in addition to those connected with operation of the machines. The suddenly acquired knowledge of his union activity explains the palpable about-face and his discharge on November 21. No other explanation of the precipitate reversal of the attitude and expectation expressed that morning has even been suggested. Nor is explanation or support for the Company's action to be found in Bush's testimony that some employees are members of this or other unions. For example, it was testified that the present multilith operator is a member of the Pressmen's Union. On the other hand, he worked at American-Bond for 12 days during the strike there. If one fact sheds light on the Company's attitude, the other may also. Neither does failure to discharge Myers for his refusal to handle "struck work" after Cabrera's discharge negate the earlier discrimination. If Cabrera's show of his union card was provocative where other union members were not so, that difference may explain the different reaction; it does not justify it. This otherwise unexplained about-face falls into place with the finding that it was on November 21 that Cabrera informed Bush of his union membership, sympathy, and support. But a contrary finding, that this conversation occurred on November 14, would be of little help to the Company. For we would then have the 7-day-old knowledge, the intention on November 21 to continue Cabrera's employment, the clear and unexplained reversal of that intention, and the insufficient reason assigned for the discharge. The failure to discriminate earlier during the 7-day period would not bar the finding of discrimination when it did occur. To all of this must be added the fact, testified to by both Bush and Cabrera, that the latter was to be loaned out to American-Bond for only 2 or possibly 3 days. Whether on November 14 or 21, if the Company could thus spare Cabrera at that time, the prior decision to discharge him (had there been such a decision) would have been expressed at that time instead of the proposed transfer. In sum, I find that Cabrera had been a satisfactory employee; continuation of his employment had been indicated on the very day of his discharge; and the discharge followed his disclosure of union membership and support and was not otherwise satisfactorily explained. Cabrera's alleged shortcomings did not become so im- portant as to warrant discharge until he disclosed his union activities. I do not credit the testimony that Bennitt and Bush had earlier decided to discharge him but to wait for 2 weeks to obtain a replacement according to one, to finish the work according to the other. Not only does it not appear that Cabrera's discharge was not warranted from the evidence received concerning his and other employees' production; by itself this might indicate only mistaken judgment on the Company's part when it discharged him. But the evidence shows that, as late as the morning of November 21, it was not the Company's judgment and decision to discharge him, and that the triggering and determinative factor was his union activity. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section II, above, occurring in connec- tion with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by discharging Cabrera, discriminated against him in respect to his hire and tenure of employment in violation of Section 8(a)(3) WESTERN BANK. AND OFFICE SUPPLY COMPANY 519 of the Act . I shall therefore recommend that it cease and desist therefrom and from infringing in any other manner upon the rights guaranteed in Section 7 of the Act. I shall further recommend that the Company offer to Richard Cabrera immediate reinstatement to his former or substantially equivalent position ,9 without prejudice to his seniority and other rights and privileges , and make him whole for any loss of pay sustained by reason of the discrimination against him , computation to be made in the customary manner.10 I shall further recommend that the Board order the Company to preserve and make available to the Board upon request payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Amalgamated Lithographers of America is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Richard Cabrera, thereby discouraging membership in a labor organization , the Company has engaged in and is engaging in unfair labor organization , and the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By such discrimination , thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 9 The Chase National Bank of the City of New York, an Juan , Puerto Rico, Branch, 65 NLRB 827. 10 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L.R.B., 311 U. S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Amalgamated Lithographers of America, or any other labor organization , by discharging any of our employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization, to form labor organi- zations, to join or assist Amalgamated Lithographers of America , or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL offer to Richard Cabrera 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 suffered as a result of the interference , restraint, coercion, and discrimination against him. WESTERN BANK AND OFFICE SUPPLY COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.