Griggs Equipment, Inc.

1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times material hereto engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act 3 The Respondent Union, above named, during the times material hereto, en- gaged in activities in violation of Section 8 (b) (1) (A) and Section 8(b)(2) of the Act 4 The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication 7 Griggs Equipment, Inc. and United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No 16-CA-1171 December 23, 1959 DECISION AND ORDER On May 6, 1959, Trial Examiner James T Rasbury 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 affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect thereto `Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs 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 Intermediate Report, the exceptions and briefs, and the entire record in this case,i and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modification 2 1 The Trial Examiner found that Waters' interrogation of Henry Karl, as to whether he had changed his mind about the Union, did not violate Section 8(a) (1) of the Act As this interrogation occurred against a background of union hostility and in context with other conduct herein found violative of the Act, including the subsequent discriminatory layoff of Karl himself, we find that this interrogation constituted interference, restraint, and coercion within the meaning of Section. 8 (a) (1) of the Act 3 1 The Respondent's request for oral argument is denied because the record and the exceptions and briefs adequately present the issues and the positions of the parties 9 Member Fanning would not find the discharge of Dayton Lee violative of the Act The record established, without contradiction , that Lee had the authority to discharge employees Member Fanning would therefore find Lee to be a supervisor within the meaning of the Act and dismiss the complaint as to him 8 See Blue Flash Express, Inc , 109 NLRB 591 125 NLRB No 108 GRIGGS EQUIPMENT, INC. ORDER 1153 Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby Orders that Griggs Equipment, Inc., Belton, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership of its employees in the above-named Union, or any other labor organization, by discriminatively discharg- ing any employee, or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment, except as authorized by Section 8(a) (3) of the Act. (b) Threatening employees with a reduction of hours or loss of bonuses if they join, become interested in, or engage in activities on behalf of the above-named Union, or any other labor organization. (c) Interrogating employees as to their or their fellow employees' membership or interest in or activities on behalf of the above-named Union, or any other labor organization, in a manner constituting interference, restraint, or coercion. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and 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 by 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 to E. Henry Karl and Dayton Lee immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights or privileges, and make each whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secur- ity payment records, timecards, personnel records and reports, and all 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other records necessary to analyze the amounts of back-pay due and the rights of employment under the terms of this Order. (c) Post at its plant at Belton, Texas, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN LEEDOM took no part in the consideration of the above 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 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, we hereby notify our employees that : WE WILL NOT discourage membership by our employees in United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organization, by discriminatively discharging any employee, or in any other manner discriminating against him in regard to his hire and tenure of employment, or any term or condition of employment, except as authorized by Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT threaten our employees with a reduction of hours or loss of bonuses if they join, become interested in, or engage in activities on behalf of the above-named Union, or any other labor organization. WE WILL NOT interrogate our employees as to their or their fellow employees' membership or interest in or activities on behalf of the above-named Union, or any other labor organiza- tion, in a manner constituting interference, restraint, or coercion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist United Brotherhood of GRIGGS EQUIPMENT, INC. 1155 Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives 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 au- thorized in Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL offer E. Henry Karl and Dayton Lee immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority and other rights and privileges, and make each whole for any loss of pay he may have suffered by reason of our discrimination against him. All of our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. GRIGGS EQUIPMENT, 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, with all parties represented, was heard before the duly desig- nated Trial Examiner in Belton , Texas, on March 11, 12, and 13, 1959, on complaint of the General Counsel and answer of Griggs Equipment, Inc., herein called the Respondent. The issues litigated involved the alleged violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Briefs were submitted by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Texas corporation, maintains its principal office in Belton , Texas, where it has two plants and is engaged in the business of manufacturing and selling seating equipment used primarily in schools and theaters. The complaint alleges, and the answer admits, that for the past 12-month period Respondent has sold products valued in excess of $50,000 and has shipped in interstate commerce products valued at more than $50,000. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE UNFAIR LABOR PRACTICES A. Preliminary statement The Respondent has two manufacturing plants in Belton, Texas, known as plants #1 and #2. While these two plants do not function as a single integrated operation, there is one vice president in charge of production for both plants and over the years there has been some transfer of personnel from one plant to the other; some- times material is transferred from one plant to the other; and while the record is undisputed that the pertinent layoffs were determined at each plant wholly inde- pendent of the personnel at the other plant (and this fact shall at all times be con- sidered by me), nevertheless it does not appear necessary for purposes of this report to constantly distinguish between the two plants. The evidence clearly indicated, and I so find, that Respondent's operation was seasonal. Respondent's production and sales are the greatest during the summer months and as a consequence each late spring finds Respondent hiring and each fall shortly after the school term begins it has a layoff. The crucial period herein involved was 1958. While there are some minor variances between the exhibits and the testimony as to the peak employment in the summer of 1958, and in the number of employees actually laid off, suffice it to consider for this report that there were approximately 400 em- ployees on Respondent's payroll in July 1958, and approximately 300 in November 1958, at which time the normal seasonal layoffs had been completed. (The variances are undoubtedly due to the failure of the Respondent to include in the layoff list pro- vided the General Counsel a number of college students that are regularly hired each summer by Respondent. The exact figures are not necessary for a resolution of the issues herein involved.) Respondent began laying off on September 10, 1958, and the layoffs continued periodically through October 29, 1958. The issues presented by this case involve the alleged discriminatory layoff of employees E. H. Karl, Troy Richard, Raymond Trail, and T. L. Richard on Septem- ber 11, 1958, and Dayton Lee on September_26, 1958. The General Counsel also alleges certain other acts of the Respondent to be independently violative of Section 8(a)(1) of theAct. B. Company knowledge and union animus In June 1958 the Union began an organizational campaign among Respondent's employees . The organizational effort of the Union appears to have proceeded quietly and without serious incident until the layoffs occurred . Respondent had general knowledge of the Union's organizational efforts as indicated in its letter dated September 5, 1958 , that was circulated to all employees . The letter, while not exceeding expressions permissible under Section 8(c) of the Act , clearly sets forth the Respondent's opposition to the Union and establishes Respondent 's knowl- edge of the Union's organizational activity. Respondent's witness, the superintendent of plant #2, Frank Elliot, testified that he had a "conversation " with Troy Richard sometime in August 1958. Troy Richard testified that the conversation occurred on September 1, 1958, and I credit Troy Richard's version of this conversation . Richard stated that Superintendent Elliot had asked him into his office and there Elliot had said, "There is some union activity going around , some cards around the plant," and Elliot "wanted to know if I knowed who was passing them out, and begin to explain to me what it would do to the Company , that they would cut our hours and bonus, and so on, and that's about all I can remember." (As will be found herein this conversation is violative of Section 8(a) (1).) Albert Lott Copeland, the mill department foreman , testified to instances of con- versations with his superintendent . Frank Elliot , which reflected Respondent's knowledge and union animus. While the Trial Examiner does not accept all of this witness' testimony , neither do I believe the entire story was fabricated from whole cloth . I do believe that Elliot told Copeland , "the union was trying to or- ganize and we was going to have to be on the watchout for it." While such an expression standing alone may not be violative of the Act, when considered in con- junction with the total picture it is of value in determining the Respondent's motive for its later action that will be considered in this report . Copeland also testified that Elliot had told him that employee T . L. Richard was going from "house to house to sign them up in the union ." And continuing Elliot also said "that Ray [Trail] was working for the union ." All of the above is convincing to the Trial Examiner that the Company had information concerning the individual union adherents and indicates an intent by the Respondent to take some measures to defeat the Union. The problem then is to discern the true motivating force behind each of its alleged equivocal acts in the light of this background. GRIGGS EQUIPMENT, INC. 1157 C. Interference, restraint, and coercion The complaint alleged six independent acts on the part of Respondent as being violative of Section 8(a)(1) of the Act. I have examined the testimony carefully and I am of the opinion that the General Counsel has not sustained his burden of proof as to all these alleged acts. Foreman Copeland testified to certain antiunion statements made by supervisors to him, but denied that he had made any antiunion statements to the employees and I credit his denial. As indicated previously, in assessing knowledge on the part of Respondent to the extent of the Union' s organizational efforts and its union animus, Copeland's testimony has been given considerable weight and credence, but it does not sustain an independent allegation of 8 (a ) (1) conduct. The superintendent of plant #1, Boyd Waters, testified as follows: "Another time I can remember I had asked Mr. Karl if he had changed his mind about the union, how he felt about it, that some reports or something had come in, and he told me at the time he hadn't that it was still the same, he wasn'•t for the union, couldn't be." There is no conflict in the evidence that this query was directed toward an employee who had previously gone out of his way to tell Waters that he did not want any part of the Union. I am not convinced, under all the circumstances, that such an inquiry reasonably tended to restrain or interfere with the employees in the exercise of rights guaranteed by the Act. See Blue Flash Express, Inc., 109 NLRB 591. This testimony does, however, indicate that Respondent had obtained infor- mation concerning Karl's activity on behalf of the Union and will be considered again in this report in the discussion of Karl's layoff. Ernest Hamilton, the night supervisor at plant #2, is alleged to have stated in reference to the Union that everything was in such a mess that they had decided to sweep the floor clean. On another occasion after a layoff it is alleged that he stated to an employee that he had hated to lose one of the men, but that he was on the wrong side of the fence. Hamilton on direct examination as well as cross-examina- tion was a forth-right and candid witness. His denial of the statements attributed to him by the witnesses for General Counsel is credited by the Trial Examiner. As indicated supra, I credit the testimony of Troy Richard as to his conversation with Superintendent Frank Elliot on September 1, 1958. I find that such expressions by Elliot exceeded that permissible under Section 8(c) of the Act and interfered with, restrained, and coerced employees in the exercise of their rights as guaranteed by Section 7 of the Act. D. The alleged discriminatory layoffs 1. E. Henry Karl E. Henry Karl was first employed by the Respondent on July 17, 1948. He started learning to be an electric arc welder after he had been employed only 4 or 5 months and had worked continuously as a welder until he was laid off on September 11, 1958. Karl walked with a limp, having had paralysis at the age of 2, but other- wise appeared to be a well and healthy adult. According to his own testimony, he signed a union card in July 1958 and secured signed union authorization cards from 72 other employees of the Respondent. On at least three occasions Karl went to a supervisor and volunteered the information that he had heard that he was being "blamed" for the interest in the Union and stated that he wanted to be the first to deny it. On one occasion he tore up a union authorization card in front of a supervisor which he told the supervisor had been given him by the Union. On cross-examination Karl stated very frankly that he had lied to the supervisors con- cerning his activities on behalf of the Union because he knew he would get laid off if he told them he was for the Union. Such a course of conduct, while not particu- larly admirable, cannot be characterized as unreasonable. Boyd Waters testified that he had been employed by Respondent since 1946, and had been superintendent of plant #1 since April 1958; that Will Tyrock had been Karl's foreman for 4 or 5 years; and that Karl's work had never been criticized by Tyrock. As indicated previously Waters' testimony of his conversation with Karl reflected that the "office" had independent information concerning Karl's union activity and the Trial Examiner finds that in spite of Karl's protestations to Respondent of his lack of union interest Respondent did not believe his disclaimer. The Respondent advances as the reason for Karl's layoff his physical condition which it contended affected his versatility in handling jobs other than arc welding during the slack period of this seasonal business. In the nature of an afterthought Respondent alludes to Karl's abuse of candy machines within the plant as further reason to justify his layoff. 53 t 828-80-vol. 125-74 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find the reasons advanced by the Respondent for the layoff of Karl to be a pre- text and that Karl was discriminatorily laid off because of his adherence and activity on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. I reach this conclusion because of these reasons: (1) The record is void of any indi- cation that Karl had not been a competent and satisfactory employee for 10 years. (2) Karl had never been laid off from the date of his initial employment in July 1948. (3) Karl's physical condition had not changed during his period of em- ployment and, according to Superintendent Boyd Waters, the layoff that occurred in the fall of 1958 was no more, nor less, severe than the layoffs that had occurred in past years. (4) As of November 20, 1958 (2 months after Karl was laid off), there were five men still on the payroll at plant #I where Karl worked, classified as arc welders, and each of these men had less years of service with Respondent than did Karl. (Respondent's witnesses testified that ability, stability, and seniority were the factors considered in determining which employees were to be retained. Karl's long uncriticized continuous service stand as proof of the first two factors and retention of the less senior employees, without more than a claim of Karl's lack of versatility, clearly belie Respondent's action in laying him off.) (5) The candy incident had occurred some 8 or 9 months prior to Karl's layoff and had Respondent honestly felt that Karl was responsible for breaking into or abusing the candy machines, it is reasonable to believe that it would have discharged him at the time and not waited until September 1958 to lay him off. (6) Karl was active in soliciting union authorization cards and actually secured 72 signed cards. (7) Respondent had knowledge of Karl's activity and interest in the Union. As Chief Judge Hutche- son stated for the court in N.L.R.B. v. Houston and North Texas Motor Freight Lines, Inc., 193 F. 2d 394, 398, cert. denied, 343 U.S. 934, it is "crystal clear" that where an employer is "set against" a union's attempt to organize the employees, "every equivocal act that was done may be properly viewed in the light of respondent's animus toward the effort to organize its men." 2. Dayton Harold Lee Dayton Lee was first employed by Respondent in 1951. After 3 or 4 months' work he was laid off during a seasonal layoff, but was rehired again in 4 or 5 months and worked continuously thereafter until he was laid off by the Respondent on September 26, 1958. Essentially Lee had always worked in the glue department, although during seasonal lulls he had on occasions worked in the mill department and the finish department. He had not been seriously criticized in his work and he would be considered for recall according to the testimony of Respondent Vice President Louis Richardson. Lee was sufficiently well-skilled in the work of the glue department that he served as the Respondent's "lead man." In addition to performing the same duties as the other employees in the glue department Lee "looked after the glue, mixing of the glue, and he kept the time on the men that worked in it sand also kept a record of the materials that were used." As the most experienced man in the department, he frequently assisted the other employees in performing their work. Lee -testified that he had signed a union authorization card and solicited all the other men (a maximum of seven) that worked in his department to sign cards. Copeland credibly testified that Superintendent Elliot told him that Dayton Lee was working for the Union and "had an office out at his home." The Respondent defends the layoff of Lee as not being violative of 8(a)(3) and (1) of the Act as alleged by the complaint on two grounds: first, Lee is a supervisor and therefore not included in the protection afforded employees under the Act; and, secondly, the seasonal layoff eliminated his job. I find that Lee is not a supervisor and as an employee is to be accorded all the benefits of the Act and, secondly, I find that the layoff of Dayton Lee was discrimi- natory and in violation of Section 8(a) (3) and (1) of the Act. I base these findings on the following: (1) The production quota in the glue department was 11 bales of wood per man per dray. In calculating the total production quota for each day, Lee was always included. Thus if there were 2 men working with Lee, the quota for the shift would be 33 bales of wood. His pay was $1.21 per hour at the time of his layoff and while this was a few cents more per hour than some of the other employees in the glue department, it was the same rate as that received by two "trainees" or "set-up" men working under Foreman Stewart. The other foremen working for Respondent received approximately $1.60 per hour. Respondent's wit- ness, Jim Smith, who had worked in the glue department with Dayton Lee, answered on direct examination that a Mr. Williams was the foreman of the glue department and not Lee. These facts, coupled with the lack of any convincing evidence that Dayton Lee actually possessed or ever exercised authority other than that of a GRIGGS EQUIPMENT, INC. 1159 merely routine or clerical nature, cause me to conclude that Dayton Lee was exactly the type of "straw boss" or "lead man" that Congress intended to have remain under the protective blanket of the Act and that he was not a supervisor within the mean- ing of Section 2(11) of the Act. See United States Gypsum Company, 118 NLRB 20. (2) Lee was sufficiently skilled in the glue department work that he was the Respondent's leadman on the night shift and during the summer of 1958 "led" the efforts of several other employees. In past years during the slack season he had worked in the mill and finish departments when not needed in the glue depart- ment. There is no evidence that his work had ever been anything but satisfactory. Yet in the fall of 1958, following Lee's activity on behalf of the Union, of which I find the Respondent had knowledge, he was selected for layoff while three other employees (two on the day shift and one on the night shift), each one with less service time with Respondent than Lee, were retained. While the work in the glue department was undoubtedly curtailed in the fall of 1958 (as the work in all other departments), according to Night Superintendent Hamilton, work was available periodically in the glue department and -"at the present time we are running quite a bit." In the two prior winters during the slack periods when Lee worked in the mill or finish departments under Hamilton, the only thing approaching criticism was when Hamilton told Lee "That we had to keep busy to try to get something out even though it was slack time." It appears implicit from all the testimony that the layoff of Dayton Lee on September 26, 1958, was an equivocal act by Respondent that warrants 'a concluding finding that Respondent discriminatively laid off Dayton Lee in violation of Section 8(a)(3) and (1) of the Act, and I so find. N.L.R.B. v. Houston and North Texas Motor Freight Lines, Inc., supra; N.L.R.B. v. Robbins Tire & Rubber Company, Inc., 161 F. 2d 798, 801 (C.A. 5). See also N.L.R.B. v. Williams Lumber Company, et al., 195 F. 2d 669, 672 (C.A. 4), cert. denied 344 U.S. 834, where the Court stated: While we of course recognize that the right to hire and fire for sound business reasons is still a managerial prerogative, and that union activity is in no event a bar in itself to the discharge of an employee, the presence of an anti-union attitude and the absence of other valid reasons must necessarily lend strong weight to a finding of discrimination. 3. Troy Richard Troy Richard first went to work for Respondent in the fall of 1950 and worked continuously until he was laid off on September 11, 1958. In contrast, however, to employees Karl and Lee, who had acquired a degree of skill at their respective jobs, Troy Richard had worked at many jobs and was classified as a laborer or a helper. I credit Superintendent Elliot's testimony to the effect that Troy Richard's work on the tubing machines was not satisfactory and that Foreman Stewart had frequently complained of Troy Richard's quality of work. From all the testimony I conclude that Troy Richard was only capable of performing routine or helper assignments and thus Respondent was not motivated by discriminatory reasons in violation of the Act when it selected him for layoff at a time of curtailed business activity, but instead sought to retain the most able and versatile employees except where motivated by antiunion considerations as in the cases of Karl and Lee. I do not regard this finding as inconsistent with the prior finding that Superintendent Elliot's conversation with Troy Richard was violative of Section 8(a)(1). From the entire record it is apparent to me that Elliot regarded Troy Richard as a longtime acquaintance from whom he could obtain information and as a friend whom he might reasonably expect to speak to the other employees in opposition to the Union. Viewed in this light, union sympathies or affiliations on the part of Troy Richard was not a factor that led to his selection for layoff. See N.L.R.B. V. Huber and Huber Motor Express, Inc., 223 F. 2d 748, 749 (C.A. 5). There the court stated, "Where a legal ground for [layoff] existed-as it did in this case-and the employee was [laid off] and that ground alone, . activity protected by Section 7 of the Act, will not insulate him from being [laid off] on such legal ground." I find that the layoff of Troy Richard was not in violation of the Act. 4. T. L. Richard T. L. Richard was last hired by Respondent in 1957. At that time, according to undisputed testimony, he was told that he could not expect permanent employment, because on a previous occasion of employment he had suddenly quit after having been retained as part of the permanent or slack season work force. Respondent's 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses further credibly testified that in determining which employees are to be retained for the slack season forces they endeavor to select employees that will remain with -them as permanent employees. T. L. Richard's past conduct had exhibited that he could not be relied upon in this regard. In reaching the conclu- sion, as I do, that T. L. Richard's layoff was not violative of the Act, I have not been unmindful of Copeland's testimony concerning Elliot's statements about T. L. Richard. However I am not persuaded that the Respondent's motive was illegal, but rather I credit the reasons given by Respondent. See N.L.R.B. v. Huber and Huber Motor Express, Inc., supra. 5. Raymond Trail Raymond Trail was first hired by the Respondent in April 1958. He had never worked in the particular industry before and worked as a laborer in the glue department. There is no serious dispute in the record as to the satisfactory work performance of Trail in the glue department. The record is void of any indications that he had any specific skills that might have qualified him for work in other departments. As was pointed out supra in consideration of Dayton Lee's case, there were three employees retained in the glue department after the 1958 fall layoffs had been completed. However, in direct contrast to the situation as it pre- vailed toward Lee, each man retained in the glue department had substantially more seniority with Respondent than did Trail. There is noting to indicate that the men retained were less competent or less able than was Trail. The language quoted supra from N.L.R.B. v. Huber and Huber Motor Express, Inc., is equally applicable to Trail. I find that the layoff of Raymond Trail was not, as alleged by the General Counsel, violative of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. It will be recommended that the Respondent, upon request, make available to the Board and its agents all payroll and other records pertinent to the analysis of the ,amounts of backpay due. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease and desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in these proceedings, I make the following: CONCLUSIONS OF LAW 1. The Respondent is, and has been at all times material to this proceeding, an employer within the meaning of Section 2(2) of the Act. 2. By discriminatively laying off E. Henry Karl on September 11 and Dayton Lee on September 26, 1958, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, 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 aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent did not discriminatively discharge Troy Richard, T. L. Richard, and Raymond Trail as alleged in the complaint. [Recommendations omitted from publication.]