Economy Furniture

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Economy Furniture and Upholsterers International Union of North America, AFL-CIO. Case No. 23-CA--855. January 12, 1960 DECISION AND ORDER On September 1, 1959, Trial Examiner Vincent M. Rotolo issued his Intermediate Report in the above-entitled proceeding, finding that 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 and a supporting brief. The Board 1 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 Inter- mediate Report, the exceptions and brief,2 and the entire record in this case,3 and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 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 Respondent Economy Furniture, Austin, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Upholsterers International Union of North America, AFL-CIO, or any other labor organization, by discharging employees and failing or refusing to reinstate them be- cause of their membership in or activities on behalf of said labor organization or by otherwise discriminating against them in regard to hire, tenure, or terms or conditions of employment. (b) Interrogating employees concerning their membership in or activities on behalf of Upholsterers International Union of North America, AFL-CIO, or any other labor organization, or offering to '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]. 2 The Respondent , in its brief , alleges that a Board agent improperly interviewed a witness concerning the unfair labor practices of the Respondent at least 1 day before the unfair labor practice charge was filed. According to the Board ' s investigation , the agent concerned was in the geographical locale of the Respondent 's place of business repre- senting the Board in a different matter. While there, he was informed that unfair labor practice charges against the Respondent were to be filed the next day As a key witness was immediately available , and in order to save the time and expense of addi- tional travel (the Respondent's factory is located approximately 200 miles from the Board's Regional Office) the Board agent conducted his investigation at that time. In these circumstances we find no impropriety in the Board agent's conduct. s The Respondent has requested oral argument The request is denied as the record, including the exceptions and brief , adequately sets forth the positions of the parties. 126 NLRB No. 15. ECONOMY FURNITURE 91 help or soliciting employees to withdraw from the aforesaid labor organization in a manner constituting interference, restraint, or coer- cion in violation of Section 8 (a) (1). (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join, form, or assist Upholsterers International Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the 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 em- ployment as authorized in Section 8(a) (3), 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 Angel Gonzalez immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges previously enjoyed. (b) Make whole Angel Gonzalez for any loss of pay she may have suffered by reason of the discrimination against her, in the manner set forth in the Section of the Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due and the rights of reinstatement under the terms of this Order. (d) Post at its plant in Austin, Texas, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter, in such conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. ' 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." 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 in or activities on behalf of Upholsterers International Union of North America, AFIf- CIO, or any other labor organization, by discharging employees and thereafter failing or refusing to reinstate them to their jobs because of their membership in or activities on behalf of said labor organization or by otherwise discriminating against them in regard to hire, tenure, or terms and conditions of employment. WE WILL NOT interrogate our employees concerning their mem- bership in or activities on behalf of Upholsterers International Union of North America, AFL-CIO, or any other labor organiza- tion, or offer to help or solicit employees to withdraw from the aforesaid labor organization, in a manner constituting interfer- ence, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join, form, or assist Uphol- sterers International Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL offer to Angel Gonzalez immediate and full reinstate- ment to her former or substantially equivalent position without prejudice to any seniority or other rights and privileges previous- ly enjoyed by her and make her whole for any loss of pay she has suffered as a result of our discrimination against her. ECONOMY FURNITURE, 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. ECONOMY FURNITURE INTERMEDIATE REPORT AND RECOMMENDED ORDER 93 STATEMENT OF THE CASE Upon a charge and amended charge filed by Upholsterers International Union of North America, AFL-CIO, herein called the Union, against Economy Furniture, herein called the Company, the General Counsel of the National Labor Relations Board, herein called the Board, caused the Regional Director for the Board's Six- teenth Region to issue a complaint and notice of hearing, based on such charges, against the Company on April 23, 1959, under Section 10(b) of the National Labor Relations Act as amended (61 Stat. 136-163), herein called the Act. With respect to the claimed unfair labor practices, the complaint alleges, in sub- stance, that beginning with on or about October 3, 1958, the Company through its supervisor, Gailon Pound, interfered with, restrained, and coerced its employees in the exercise of their statutory right to join a labor organization and to engage in concerted activities for the purpose of collective bargaining by (1) interrogating its employees concerning their union affiliation and activities; and (2) soliciting its employees to sign cards withdrawing their affiliation from the Union. The complaint also alleges, in substance, that since on or about October 23, 1958, the Company has unlawfully discriminated against one of its employees, named Angel Gonzalez, in regard to her hire and tenure of employment by discharging and failing to reinstate her to her former position of employment because she joined and was active on behalf of the Union. The conduct of the Company through its supervisor, Gailon Pound, in interro- gating the Company's employees concerning their membership in and activities on behalf of the Umon and in requesting that they withdraw their membership from said Union are alleged to be independent violations of Section 8(a) (1) of the Act. Conduct of the Company, through its supervisor, Gailon Pound, in discharging employee Angel Gonzalez because of her membership and activities on behalf of the Union is alleged to be a violation of Section 8(a),(3) and derivatively of Section 8(a) (1) of the Act. By its answer to the complaint the Company admitted the allegations upon which the Board's exercise of jurisdiction in this proceeding is based. Although by its answer the Company denied that the Umon is a labor organization as defined in Section 2(5) of the Act, it subsequently, by stipulation, admitted this allegation of the complaint and conceded that the Union is a labor organization under the Act. The Company's answer further denied generally that it or any of its agents or supervisors committed the unfair labor practices charged against it in the com- plaint. By way of affirmative defense to the allegation of discriminatory discharge and refusal to reinstate employee Angel Gonzalez, it alleges that it did not dis- charge said employee but that she voluntarily resigned her employment and that she has not since said resignation requested employment with the Company.' Pursuant to notice, a hearing was held before me, a duly designated Trial Exami- ner of the Board, at Austin, Texas, on May 19 and 20, 1959. All of the parties were represented by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally on the record, and to file briefs and propose findings and conclu- sions. Ruling on a motion to dismiss the complaint was reserved by me. Said motion is disposed of by my findings and conclusions set forth below. The representative of the General Counsel and the attorney for the Company filed briefs with me subsequent to the hearing. I have considered the contentions and arguments contained in these briefs in reaching my findings and conclusions set forth below. Upon the entire record of the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, Economy Furniture, is a Texas corporation engaged in the manu- facture and sale of furniture. In connection with its business operations it main- tains an office and plant located at 5100 East 5th Street in the city of Austin, Texas. In the 12-month period prior to the issuance of the complaint in these proceedings, 'The Company failed to adduce any testimony at the hearing to support this affirma- tive defense Under its general allegation that it had not committed the unfair labor practices charged, it submitted testimony to prove that employee Gallon Pound was not a "supervisor" as that term is defined in Section 2(11) of the Act. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it purchased materials and supplies, necessary for the conduct of its business, which were valued at more than $1,000,000 of which more than $50,000 worth was shipped directly to its plant from points located outside the State of Texas. During the same period it manufactured and sold furniture valued at more than $1,000,000 of which more than $100,000 worth was shipped from its plant in Austin, Texas, to points located outside the State of Texas. On the basis of the above conceded facts, which were recited in the complaint and not denied by the Company in its answer, I find that the Company is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED Upon the basis of a stipulation of the parties which was made a part of the record after the hearing closed, I find that Upholsterers International Union of North America, AFL-CIO, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Issues The Company failed to adduce any testimony to rebut the testimony of the wit- nesses of the General Counsel concerning -the alleged antiumon activities of its em- ployee, Gailon Pound. It also failed to adduce any testimony to prove its affirmative defense that employee Angel Gonzalez voluntarily resigned her job and that she has not since said resignation requested employment with the Company. At the hearing and in its brief it argued: (1) Employee Gailon Pound is not and was not a supervisor of the Company during the time or times he is alleged to have engaged in unfair labor practices. (2) The testimony and other proof submitted by the General Counsel, to prove the allegations of the complaint, is not of a substantial and credible nature and is in- sufficient to support a finding that a violation of the Act has been committed by the Company. Thus the only issues presented to me in this proceeding are: (1) Was employee Gailon Pound a supervisor of the Company when he engaged in the antiunion activities alleged in the complaint? (2) Is the testimony and other proof submitted by the General Counsel to prove the allegations of the complaint of a substantial and credible nature and is it suf- ficient to support a finding that the Company has violated the Act? A. The alleged supervisory status of employee Gailon Pound In resolving the question as to whether employee Gailon Pound was a supervisor of the Company during the period in question in these proceedings it is necessary to look at the entire history of his employment by the Company, his functions and duties, how he carried out these functions and duties, his wages, hours, and work conditions, and how his fellow employees regarded him. Pound is an expert wood finisher who was first employed by the Company some- time in 1955 or 1956. He has charge of a group of the Company's employees who sand, grain, and finish furniture with paints or stains. He works at a fixed weekly salary of $110 a week and is classified, for Wage and Hour Law purposes, as a "bona fide professional employee" who is alleged to meet the requirements set forth in sub- section (2) of the definition of that type of employee set forth in the Fair Labor Standards Act .2 Pound does not punch a timeclock and the time which he loses from his work for personal reasons does not affect his weekly salary. His main function and duty is to see to it that the employees who work in the wood finishing department of the Company, herein called the wood finishing room, perform their work in accordance with standards of high quality wood staining and finishing. In connection with his work Pound mixes paints and stains in accordance with certain formulas known -to him as a wood finishing expert so as to give the wood a certain color tone or shade. He directs the work of about 20 to 25 employees who are 'Under the Fair Labor Standards Act there are two types of professional employees defined The first type is the professional employee who has general or special knowledge in some branch of learning or science which he acquired by academic and professional training at a school. The second type, under which Pound has been classified, is an employee who has "recognized original creative ability in a field of artistic endeavor as opposed to work which can be produced by a person endowed with general, manual, or intellectual ability and training, and the result of which depends primarily on the invention, imagination, or talent of the employee." ECONOMY FURNITURE 95 divided into sanders, grainers, finishers, and inspectors. The Company concedes in its brief that insofar as the technical aspects of the work performed by the employees in the wood finishing room is concerned, Pound has the responsibility to direct ,them and to see to it that they perform high quality work. In this respect also, it con- cedes that lie can exercise his independent judgment and discretion. Pound also has the duty of instructing and training new employees assigned to the wood finishing room. In connection with this he can make recommendations as to whether an em- ployee is more suited to perform one type of work rather than another. The em- ployees under his direction work an average of 40 hours a week at an hourly rate of not less than $1 per hour, which is the minimum established by law. Prior to June 1958, Pound had the title of "foreman" of the wood finishing division and as such was recognized as the supervisor of the wood finishing employees. At that time Pound and his wood finishing employees worked in the same general area of the plant where the frame making employees were working under the supervision of Foreman Joseph Evanatz. At that time also the Company's mill division employees worked in a separate room of the Company's plant under the supervision of Fore- man Alvin McFarland. All three foremen were in turn directly responsible to Plant Production Superintendent Edward Kern. In June 1958, the Company purchased its own mill building on McNeil Road on the outskirts of the city of Austin. The millroom equipment and employees were then moved out of the main plant to the separate mill building located on McNeil Road. The wood finishing equipment and employees were then moved to the separate room of the main plant where the mill equipment and employees were formerly located. The title of "foreman" was taken away from Pound and Fore- man Joseph Evanatz then became the foreman of both the frame making and wood finishing divisions and the recognized supervisor of the employees working in both divisions. The basic work functions and responsibilities of Pound to direct the performance of the work of the wood finishing employees remained the same. The only apparent change in his functions was that he was now responsible for the volume and quality of the work performed by the wood finishing employees to Foreman Joseph Evanatz instead of to Plant Superintendent Edward Kern. Prior to June 1958, Pound made recommendations for the hiring, assignment, promotion, discharge, or layoff of the employees in the wood finishing division directly to Plant Superin- tendent Kern in his own name. After June 1958, he made these recommendations informally to Foreman Joseph Evanatz. The record indicates that his recom- mendations in this respect are now generally accepted by Evanatz who passes them on in his name to Superintendent Kern who then makes the necessary changes on the employees' personnel cards. The record further indicates that Evanatz has a group of about 20 to 30 frame making employees under his direct supervision in a separate room of the plant. Most of his time is spent in this room directing the work of the frame making employees. Two or three times during the day he visits the wood finishing room but these visits are of short duration and his time there is spent in consulting with Pound and the inspectors. Requests for leaves of absence and excuses for absences are first submitted to Pound who acts upon them on his own subject to the subsequent approval and clearance by Evanatz. Day-to-day work and personnel problems of the wood finishing room employees are discussed by the employees with Pound first who then makes suggestions and recommendations on the same to Evanatz who then passes them on to Plant Superintendent Kern in his name. The suggestions and recommendations which Pound makes to Evanatz concerning the work performance and. status of the employees of the wood finishing room are generally accepted by Evanatz who is not an expert on wood finishing techniques. As recognized supervisor of both the frame making and wood finishing employees, Evanatz receives a fixed weekly salary of $100 per week with a Christmas bonus each year. As indicated above, Pound receives a fixed weekly salary of $110 without any Christmas bonus. A supervisor's desk, located in the wood finishing room, is shared by both Evanatz and Pound. Pound keeps records of the orders and ship- ments which are to be made out of the wood finishing room and makes reports on the same to Evanatz. All of the witnesses submitted by the General Counsel testified that they have worked in the Company's wood finishing division for the past several years and that ever since Pound was hired by the Company they have considered him as their immediate supervisor or "boss man." Although they recognize that now Evanatz is also one of their supervisors and that Pound is subordinate to Evanatz, in their view, Pound still is their immediate supervisor who now, as always, gives them their orders and directions on how, when, and where they are to perform their work. Mrs. Helen Smith, the wife of the company president, testified in great detail as to the work functions and work status of Pound. In addition to describing the 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons why Pound was classified as a professional employee under the fair Labor Standards Act and why he has not been recognized by the Company as a supervisor since June 1958, she admitted that Pound still has the power to make recommenda- tions concerning promotions and work assignments of the employees in the wood finishing room but that such recommendations are made informally to Evanatz who in turn formally passes them on in his own name to Superintendent Kern. Mrs. Smith also admitted that Pound is first consulted by the employees concerning their work and personnel problems and that he then consults with and makes recommendations and suggestions to Evanatz on how to dispose of the same. On the basis of the above facts, I find and conclude that Pound exercises some of the functions and duties of a supervisor as that term is defined in Section 2(11) of the Act and that he was exercising these functions and duties when the alleged unfair labor practices occurred. My finding in this respect is generally based on evidence in the record which indicates that Pound chooses the manner, means, methods, and types of employees being used by the Company in its wood finishing department and that his decision in such matters requires the exercise of inde- pendent judgment and discretion and are not of a routine nature. I also generally base my finding on the evidence in the record which indicates that Pound is allowed a large amount of discretion and control over changes which are effected in the work status of the employees in the wood finishing room and that his recommenda- tions on these matters are generally accepted by management representatives. Finally I base it on the evidence that the employees of the wood finishing room have always regarded him and still regard him as their immediate supervisor and a representative of management. I conclude, therefore, that Pound was a supervisor of the Company within the meaning of Section 2(11) of the Act and a representative of management when he engaged in the alleged unfair labor practices set forth in the complaint. B. The proof in support of the allegations of interference, restraint, and coercion Since the Company has not adduced any testimony to rebut the testimony of the witnesses of the General Counsel who testified concerning the alleged acts of interference, restraint, and coercion engaged in by Gailon Pound among the em- ployees of the wood finishing room in October 1958, and having found that Pound was acting as a supervisor and representative of management during the period in question, the only question remaining to be decided on this issue is whether the proof submitted by the General Counsel is of a substantial and credible nature. The General Counsel submitted the testimony of four witnesses to prove this allegation of the complaint. A summary of the testimony given by each of these witnesses, and my findings thereon, follows: 1. Gonzalo Serrano testified without contradiction as follows: He has been an employee of the Company working in the wood finishing department for over 9 years. When the Union began its organizing campaign in October 1958, he signed a union membership card at the solicitation of Frank Ramirez, a fellow employee who works with him in the wood finishing room. After he became a member of the Union, he and Gailon Pound, who he described as his "boss man," went to a beer tavern near the plant one evening after work. At the tavern they discussed the Union's organizing campaign. During the discussion Pound asked him whether he had signed a union card. When he told Pound he had done so, Pound told him "that Union is not good." Serrano further testified that after this conversation, Pound came to him in the plant during the luncheon hour recess one day and asked him to sign a card for him. He then told Pound to leave the card with him as he wanted to think it over. Pound, however, did not leave the card and he never signed it. He did not know then what was on the card.3 With the exception of having a union membership card, there is nothing in the record to indicate that Serrano is biased in favor of the Union. While testifying, he impressed me as a truthful witness. His answers to Counsel's questions were straightforward and to the point. Indeed, Counsel for the Company made no attempt to impeach the witness' credibility and he makes no attack upon his testimony in his brief. His testimony being uncontradicted and no effort having been made to impeach his credibility, I see no reason why his testimony should not be credited. I accordingly find that Pound interrogated Serrano concerning 8 Although Serrano did not know what the card represented at that time,^I find from a similar request made by Pound to employee Frances Gonzalez at about the same time that he was asking Serrano to sign a union membership withdrawal card. ECONOMY FURNITURE 97 his membership in the Union some time during the Union's organizing campaign in October 1958, and that Pound told him at that time that the Union was no good. I also find -that Pound's interrogation and remarks to Serrano, concerning the Union were designed to discourage Serrano from continuing his membership in the Union. I also find that Pound subsequently requested Serrano to sign a card withdrawing his membership in the Union. 2. Ignacio Felan testified without contradiction as follows: He had been employed by the Company for the past 7 years. He joined the Union in October 1958 and later became active in assisting Ramirez, the union organizer of the wood finishing room, to solicit members for the Union. After he joined the Union, Pound came to him one day in October 1958 and asked him where the next union meeting was being held. He then told Pound he did not know. Later, Pound came to him again and informed him that he had found out where the meeting was going to be held. While he was sitting at his worktable in the wood finishing room during the lunch hour recess one day thereafter he saw Pound go to the worktable, where employee Frances Gonzalez was seated, with some cards in his hand. At that time, he overheard Pound ask Frances Gonzalez to sign one of the cards he had. He also heard Pound explain to Gonzalez that the cards were for the withdrawal of the employees' membership in the Union. For the purpose of impeaching the testimony of this witness, counsel for the Company submitted an affidavit given by the witness to a Board agent during the investigation of the charges. The affidavit, which was prepared by the Board agent during the interview, gives more detail concerning the antiunion activities of Pound in the wood finishing room in October 1958, but essentially it is consistent with the testimony which Felan gave at the hearing that Pound solicited Frances Gonzalez to sign a card withdrawing her membership in the Union. Felan is no longer em- ployed by the Company, having since left voluntarily to work elsewhere. He im- pressed me as a simple, uneducated worker who lacks the guile to be an untruthful or dishonest witness. I accordingly credit his testimony and find that sometime during the Union's organizing campaign Pound questioned him concerning the Union's meeting place and later requested employee Frances Gonzalez in his pres- ence to withdraw her membership in the Union 3. Frances Gonzalez testified without contradiction as follows: She has been employed by the Company for the past 5 years in the wood finishing department as a sander. During the Union's organizing campaign of October 1958, she signed a union card at the request of her sister-in-law, Angel Gonzalez. After she joined the Union, and during the same month of October 1958, Pound came to her in the plant during the lunch hour recess one day and asked her whether she had signed a union card. When she told him that she had done so, he asked her whether she would sign a card for him. When she asked him what the card represented he told her it was for her to get out of the Union When she asked him if any of the other employees had signed a card for him, he answered in the negative. She told him to leave the card with her and that she would decide later whether she would sign it but he told her she would have to sign in then and there. She refused to do so and has never signed such a card. She asserts that at the time Pound had this conversa- tion with her, Ignacio Felan was seated at his worktable nearby. The cross-examination of this witness by company counsel failed to shake the essential parts of her testimony concerning the alleged conversation Pound had with her in October 1958 when he requested her to withdraw her membership in the Union. Furthermore, her testimony concerning Pound's request that she sign a union withdrawal card is substantially corroborated by witness Ignacio Felan, whose testi- mony I have already credited. I have taken into consideration the fact that this witness is closely related to Angel Gonzalez, one of the principals involved in this case. I feel constrained, however, to credit her testimony, nevertheless, in view of the failure of the Company to call Pound as a witness to contradict her testimony and because her testimony is substantially corroborated by the credited testimony of Ignacio Felan. I accordingly find that sometime during the Union's organizing cam- paign in October 1958, Pound, while acting as a supervisor of the Company, inter- rogated employee Frances Gonzalez concerning her union membership and requested her, in the presence and hearing of employee Ignacio Felan, to sign a card withdraw- ing her membership in the Union. 4. Angel Gonzalez testified without contradiction as follows: She worked for the Company for 5 years, at times as a sander and grainer and at other times as an inspector. For about 3 of the 5 years of her employment with the Company she worked as an inspector. Upon her return to work in August 1958, after giving birth to a child on July 15, 1958, Pound gave her light work to do as a sander. In October 554461-60-vol 126-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1958 she joined the Union and thereafter, at the request of Frank Ramirez, the Union's organizing committeeman for the wood finishing room, she passed out union membership cards to her friends and obtained their signatures thereon. In this manner she succeeded in getting five of her closest friends in the wood finishing room to join the Union, among them being her own sister-in-law, Frances Gonzalez. On the day that she obtained these signatures Pound came to her and told her that he knew the identity of all the employees who had signed union cards and that she had also signed a union card. Gonzalez admitted that she had done so. Pound then told her that he could arrange for the employees to withdraw from the Union. When she asked him why he was making such a statement he told her that he was trying to help the employees because the Company was not going to give them a raise even if they were represented by a union and that they would be giving the Union money for nothing. Gonzalez told him that if the Company was determined not to give them a raise then the employees being represented by a union should make no difference to it. Company counsel vigorously attacked the credibility of this witness at the hearing and in his brief. For the purpose of impeaching her testimony he called for and introduced two prehearing affidavits obtained by the Board agents from her during the investigation of the charges. I have carefully examined these affidavits and except for some inaccuracies as to the time when the events she related occurred I find nothing therein which substantially contradicts the testimony she gave at the hearing. Since the Company failed to call Pound as a witness to rebut the testimony of this and the other witnesses who testified as to his antiunion activities and since her testimony is consistent with the credited testimony of the other witnesses who testified as to these activities, I see no reason why her testimony on this aspect of the case should not be credited. Accordingly, I find that sometime during the Union's organizing campaign of October 1958 Pound informed Angel Gonzalez that he was aware of the identity of the employees of the wood finishing room who had signed union cards and that he knew that she also had signed a union card I also find that Pound offered his help to the employees to effect their withdrawal from the Union telling them at the same time that being represented by a union would not get them a wage increase and that they would be giving the Union money for nothing. Conclusion On the basis of the above uncontradicted and credited testimony, I find that during the Union's organizing campaign Pound engaged in systematic interrogation of the employees working in the wood finishing room to ascertain the identity of those who had signed union cards; that upon ascertaining who had signed such cards he began a campaign to persuade them to withdraw from the Union by offering to arrange for their withdrawal from the Union, telling them that being represented by a union would not get them a wage increase and that they would be paying money to the Union for nothing; that the employees, particularly Angel Gonzalez, rebuffed his offer of help to get them to withdraw from the Union; and that he prepared union withdrawal cards and solicited the employees to sign them. C. The alleged discharge of Angel Gonzalez for her union activities Concerning the circumstances surrounding the termination of her employment with the Company, Angel Gonzalez testified, without contradiction, as follows: She had been employed by the Company for 5 years prior to her cessation of work with the Company on or about October 23, 1958. During all this time her work had always been found to be satisfactory .4 Because she was a good worker she was always treated with consideration and sympathy whenever her personal and home problems forced her to be absent from her work. In the early part of 1958 she was given almost 5 months' maternity leave of absence. Part of her medical expenses for the birth of her child were paid by the Company. After the birth of her child on July 15, 1958, she was allowed to remain away from her work for an additional 3 weeks to recuperate. When she returned to work on or about August 5, 1958, Pound assigned her to perform light work with the privilege of taking time off whenever necessary to bring her newborn child to the doctor for a checkup. When her husband purchased a beer tavern in the latter part of August 1958, she requested and received permission from both Pound and Evanatz to take some days off from her work to help her husband obtain the necessary licenses to 4 The Company concedes that Gonzalez was always a good worker and that it never found any fault with her work. ECONOMY FURNITURE 99 operate the business .5 Gonzalez testified further that a few days after she rejected Pound's offer to help her and the others who had signed union cards to withdraw from the Union, her child became ill and it was necessary for her to absent herself from work for 1 day. At 7:30 p in. that day, October 22, 1958, she called Pound at his home to explain the reason for her absence from work during that day. Pound immediately asked her whether she had quit her job. When she told him she had not done so he told her that he had already given her job to someone else because "somebody" had informed him that she had quit her job. Gonzalez testified that she had not indicated in any manner prior thereto that she was going to quit her job. On the contrary she testified that she informed both Pound and Evanatz in the early part of September 1958 that if her personal and home problems were such that she could no longer hold her job she would give the Company at least 2 weeks' notice of her intention to quit. When Pound informed her that he had given her job to someone else she asked him whether that meant that she was being discharged from her employment. In response to this question he gave her an evasive answer telling her, "Well, I don't know, 1 have just got somebody else in your place." He then advised her to go to the company office to get her pay- check for the 2 days she had worked during that workweek.6 On this issue of the case Union Representative Woodall testified, without con- tradiction, that Gonzalez' abrupt termination of employment by Pound on October 22, 1958, and his antiunion activities among the wood finishing employees was dis- cussed at a union meeting which was held on November 12, 1958 . It was then decided to file unfair labor practice charges against the Company . On November 14, 1958, after a hearing on the Union's petition to be certified as the bargaining agent of the Company's production and maintenance employees was held, he had a conversation with the Company 's attorney and the Company president 's wife during which he informed them of the antiunion activities of Pound in the wood finishing department and how he had abruptly terminated the employment of Angel Gonzalez. He requested them to reinstate Gonzalez to her job. They informed him then that Gonzalez' employment had been terminated because she had habitually absented herself from work to help her husband operate his new business and because she had indicated to her foreman that if she was absent from work again he could consider that she had quit her job . Woodall told them then that Gonzalez had not quit her job but that Pound had discharged her because she had been active as an organizer of the Union . However, they told him that the Company would not employ Gonzalez again under any circumstances. For the purpose of impeaching the testimony of Gonzalez that she had been discharged by Pound on October 22 , 1958, company counsel introduced into evi- dence a copy of an application for a beer tavern license which she made to the Texas Liquor Control Board to show that she had misrepresented to that Board that she was the sole owner of the business when in fact her husband also had an interest therein . The questionnaire she filled out when she applied for the license contained a question as to whether any person other than the applicant had an interest in the business . Gonzalez answered this question in the negative. She admitted at the hearing, however, that her husband did have a financial interest in the business. Company counsel argues from this that Angel Gonzalez is a dishonest and untruthful person and that her testimony in this case should not be believed. I do not find this a sufficient reason to brand her as an untruthful or dishonest witness. It is common knowledge that married persons who start a business or buy a property with their common funds frequently place the title to the business or property in one name only . I believe that Gonzalez, being inexperienced in filling out question- naires of this type, thought that the Liquor Board wanted to know whether some person other than herself or her husband had an interest in the business. In any event I am not convinced that Gonzalez intended to be untruthful or dishonest in not revealing her husband's interest in the business when she submitted the applica- tion fora beer license to the Liquor Control Board. In a further effort to discredit her testimony company counsel then introduced a copy of the two unemployment s The Company concedes in its brief that Gonzalez' employment was not terminated because of her absences from work nor does it contend that she was terminated because it had good grounds to believe that she was misrepresenting the reasons why she was absenting herself from work in the period immediately prior to the termination of her employment. 9 The Company's workweek begins on Friday of each week and ends on Thursday of the following week. At the time Pound filled Gonzalez' job with another employee on October 22, 1958, she had worked the Friday of the previous week and the Monday of the current week. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compensation claims made by Gonzalez following her termination of employment with the Company . The purpose of introducing these documents into evidence, he stated, was to show that Gonzalez gave inaccurate and inconsistent information to the unemployment compensation commission concerning the circumstances of the ter- mination of her employment with the Company . I have examined the claims care- fully and I do not find that the statements she made therein substantially contradict her testimony on the witness stand. In a final effort to impeach Gonzalez' testimony company counsel called for and obtained two affidavits made by Gonzalez during the investigation of the charges in this case He introduced these affidavits into the record to show that Gonzalez gave contradictory versions of the conversations she had with Pound and the circumstances surrounding the termination of her employ- ment. I have carefully examined these documents and with the exception of some minor inaccuracies and inconsistencies I do not find that they substantially contradict the testimony which Gonzalez gave at the hearing. I accordingly credit the testimony of Angel Gonzalez concerning the circumstances under which her employment was terminated by Pound on October 22 , 1958. I also credit Union Representative Woodall's testimony that he informed the company officials on November 14, 1958, of the antiunion activities of Pound and of his abrupt discharge of Gonzalez on October 22, 1958, and that when he requested her reinstatement they told him the Company would not hire Gonzalez again under any circumstances because she had habitually absented herself from work to help her husband operate his new business. Conclusion I have found that Pound was a supervisor and representative of management when he engaged in the antiunion activities among the wood finishing employees during the Union's organizing campaign . I have also found that Pound discharged Gonzalez on October 22 , 1958, by giving her job to someone else and insisting that she had quit her job when she in fact had not done so. The only question remaining to be decided is whether Pound's discharge of Gonzalez on October 22, 1958, was motivated by his demonstrated antiunion animus. An examination of all the circum- stances surrounding the discharge leads me to the inescapable conclusion that Pound decided to get rid of Gonzalez because of the negative attitude she displayed towards his offer to help her and the others who had joined the Union to withdraw their membership from the Union and because he believed that she was preventing him from obtaining the signatures of the other employees on his union withdrawal cards. The evidence indicates that the conversation which Pound had with Gonzalez during which she rebuffed his statements that the Union could get nothing for the employees occurred sometime during the week before he discharged her on October 22, 1958 I find that Pound became convinced then that Gonzalez would stand by the Union and that he could not get her to help him in his campaign to persuade the employees to sign his union withdrawal cards. When Pound thereafter began his campaign to persuade the employees to sign his union withdrawal cards and he met with little success he suspected that Gonzalez was influencing them not to do so. He became convinced that this was so when Gonzalez' sister-in-law, Frances Gonzalez, rejected his request that she sign one of his union withdrawal cards. He decided then and there that he would get rid of Gonzalez at the first opportunity because of her disloyalty and opposition to his efforts to get the employees to withdraw their membership from the Union . I believe that these are fair and reasonable prima facie inferences which can be drawn from the facts. There is nothing else which occurred between Pound and Gonzalez that can explain his change of attitude on October 22, 1958, from friendly and sympathetic under- standing of her home problems to one of cold and inconsiderate treatment. His sudden action in filling her job with another employee without notice or warning and before he had even talked to her about her absence shows that he was anxious to get rid of her. This anxiety, I believe, stemmed from his determination to get rid of her for her opposition to his efforts to get the employees to sign his union withdrawal cards. Pound's effort thereafter to justify his actions by insisting that Gonzalez had quit her job shows a determination to keep her out of the plant at all costs . He had no real basis for believing that she had quit her employment. She had been absent several times during the months of September and October 1958 and had always returned to work. She had told him clearly in early September 1958 that if she decided to quit her job she would give the Company at least 2 weeks' notice. In the face of these facts he could not reason- ably assume that she had quit her job when she did not report for work on October ECONOMY FURNITURE 101 22, 1958. Nor can his action in fulling her job with someone else, without notice and before he ascertained the reason for her absence, be justified under the cir- cumstances. Nor can his explanation that he did so because "somebody" told him she had quit her job. Another circumstance which leads me to believe that the Company, acting through Pound, was anxious to get rid of Gonzalez and that this anxiety had some causal connection with her union activities, is the fact that when Union Representative Woodall informed the company president's wife and the company attorney on November 11, 1958, that Pound had engaged in antiunion activities among the wood finishing employees and that he had discharged Gonzalez because of her union activities, they immediately rejected his request that Gonzalez be reinstated to her job and told him she would not be given employment again under any circum- stances because she had habitually absented herself from work to help her husband operate his business. All of the above circumstances raise, in my mind, a prima facie inference that the Company desired to get rid of Gonzalez because of her union activities. It was incumbent, under these circumstances, upon the Company to go forward with its proof to show, as it contended, that Gonzalez had in fact quit her job. It made no attempt to call either Pound or Evanatz as witnesses to dispel the inferences of discriminatory action having been taken against Gonzalez because of her union activities or attitudes. It made no explanation for its failure to call these witnesses who had such vital information on the issue of whether Gonzalez had quit her job or been discharged. It contented itself with attempting to prove that Pound was not a supervisor and hence not a representative of management. In this state of the record, I have no alternative but to conclude that the Company violated Section 8(a)(1) of the Act through the antiunion activities of its supervisor and agent Pound and that it violated Section 8(a)fl) and (3) of the Act by discharging Angel Gonzalez on October 22, 1958, for her union activities, through its super- visor and agent, Pound. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in con- nection with the operations of the Company set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which I find necessary to effectuate the policies of the Act. Having found that the Company unlawfully discharged Angel Gonzalez on October 22, 1958, and that it thereafter failed or refused to reinstate her to her job because of her union activities, I shall recommend that the Company offer her immediate and full reinstatement to her former or substantially equivalent position of employment without prejudice to her seniority and other rights and privileges and that it make her whole for any loss of pay she may have suffered by reason of the discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned as wages with the Company from date of her discharge on October 22, 1958, to the date when, pursuant to the recommenda- tions herein contained, the Company shall offer her reinstatement, less her net earnings during said period. Said backpay loss shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Upholsterers International Union of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By interrogating them concerning their union membership and activities; by offering to help them withdraw their membership in the Union and by soliciting them to sign union withdrawal cards, the Company interfered with, restrained, and 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act and thereby it engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. By discharging Angel Gonzalez on October 22, 1958, because of her con- tinued union membership in and activities on behalf of the Union and by thereafter failing or refusing to reinstate her to her former position of employment for the same reason the Company discriminated against her in regard to her hire and tenure of employment to discourage membership in the Union, thereby violating Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Puerto Rico Glass Corporation and Union de Molderos de la Puerto Rico Glass Corporation , Ind., Petitioner. Case No. P34-RC-1160. January 10, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Anthony J. Di Salvo, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Rodgers and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations 1 involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to sever a unit of moldmakers and proba- tionary moldmakers from an existing production and maintenance unit which has been represented by Intervenor since at least 1951. The Employer contends that the unit is inappropriate as the mold- makers do not constitute a craft group entitled to separate representa- tion and the Petitioner is not a craft union entitled to seek such sepa- rate representation, under the American Potash doctrine? In addi- tion, the Employer argues that, in view of the collective-bargaining i Intervenor, Union de Empleados de la Industria del Cristal, Local 1970 , IBL-AFL-CIO, was permitted to intervene on the basis of its having represented molders under a recently expired contract. a American Potash and Chemical Corporation, 107 NLRB 1418 126 NLRB No. 11.