Norrich Plastics Corp.

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Peninsula Asphalt & Construction Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Each of the Unions named herein is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees in the Company's paving and plant operations, exclusive of office clerical employees, watchmen, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Unions, by virtue of the certification issued by the Michigan Labor Media- tion Board, were on October 24, 1958, and at all times thereafter have been, the exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with the Unions as the exclusive bargaining representative of the employees in the aforesaid appropriate unit, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By unilaterally granting wage increases to employees in the bargaining unit without notifying or negotiating with the exclusive representative of the employees, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By refusing to reemploy John R Harrand, Lawrence Haines, Paul Johnson, Harry G. Arnold, and George E. Killingbeck, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 8. By the foregoing conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of their 'rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 9. 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.] Norrich Plastics Corp. and Local 517, International Production, Service & Sales Employees and Norrich Plastics Employees Union, also known as Collective Bargaining Committee, Party to the Contract. Case No. f-CA-6535. April 12, 1960 DECISION AND ORDER On December 18, 1959, Trial Examiner A. Bruce Hunt 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, and further finding that the Respond- ent had not engaged in other unfair labor practices alleged in the com- plaint, all as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and Respondent filed ex- ceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. 1127 NLRB No. 25. NORRICH PLASTICS CORP. 151 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 briefs, and the entire record in the case, 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 the Respondent, Norrich Plastics Corp., New York, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Norrich Plastics Employees Union, or with the formation or administration of any other labor organization, and contributing support to said organization or to any other labor organization. (b) Recognizing or in any manner dealing with Norrich Plastics Employees Union, or any reorganization or successor thereof, as a representative of any of its employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. (c) Discouraging membership in Local 517, International Produc- tion, Service & Sales Employees, or in any other labor organization of its employees, by discharging, refusing to reinstate, or otherwise discriminating against any of its employees because of their con- certed or union activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 517, International Produc- tion, Service & Sales Employees, or any other labor oaganization, 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 organiza- tion 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from, and completely disestablish, Norrich Plastics Employees Union as a representative of any of its employees for the purpose of dealing with it concerning grievances, 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor disputes, wages, rates of pay, hours of employment, or conditions of work. (b) Offer Dionisio Nunez, Marion Mergestik, Ann Millerman, and Emanuel Quezel immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and make whole each of them plus Howarth Gobarth, Pedro Rodriguez, Tito Gon- zales, and Manuel Colon 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 and re- ports, social security payment records, timecards, personnel records and reports, and all other records necessary or appropriate to analyze the amounts of backpay and other benefits due and the right of em- ployment under the terms of this Order. (d) Post in conspicuous places at its plant, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix." l Copies of said notice, to be furnished in both the Spanish and English languages by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days there- after. 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 said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT Is FURTHER ORDERED that except as otherwise found herein, the allegations of the complaint be, and they hereby are, dismissed. 1 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted tor 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 dominate or interfere with the administration of Norrich Plastics Employees Union, or with the formation or ad- ministration of any other labor organization, nor will we con- NORRICH PLASTICS CORP. 153 tribute support to Norrich Plastics Employees Union or to any other labor organization. WE WILL NOT recognize or in any manner deal with Norrich Plastics Employees Union, or any reorganization or successor thereof, as a representative of any of our employees concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or conditions of work. WE WILL NOT discourage membership in Local 517, Interna- tional Production, Service & Sales Employees, or in any other labor organization of our employees, by discharging, refusing to reinstate, or otherwise discriminating against any of our em- ployees because of their concerted or union activities. 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 organizations, to join or assist Local 517, International Production, Service & Sales Employees, or any other labor organization, to bargain collectively through representatives of their own choosing, or 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 of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL withdraw all recognition from, and completely dis- establish, Norrich Plastics Employees Union as a representative of any of our employees for the purpose of dealing with us con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. WE WILL offer Dionisio Nunez, Marion Mergestik, Ann Miller- man, and Emanuel Quezel immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to any seniority or other rights or privileges previously enjoyed. WE WILL make whole Dionisio Nunez, Marion Mergestik, Ann Millerman, Emanuel Quezel, Howarth Gobarth, Pedro Rod- riquez, Tito Gonzales, and Manuel Colon for any loss of pay they have suffered as a result of our discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of Local 517, In- ternational Production, Service & Sales Employees, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the National 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. NORRICH PLASTICS CORP., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding involves allegations that the Respondent, Norrich Plastics Corp., violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, 61 Stat. 136. On September 8, 9, and 10, 1959, Trial Examiner A. Bruce Hunt con- ducted a hearing at New York, New York; at which the General Counsel, the Respondent, and Norrich Plastics Employees Union, herein called NPEU, were represented. No appearance was entered for Local 517, International Production, Service & Sales Employees, herein called Local 517. Upon the entire record in the case and from my observation of the witnesses, I make the following. FINDINGS OF FACT 1. THE RESPONDENT The Respondent, a New York corporation, has its office and place of business in New York City where it is engaged in the manufacture and sale of plastics, metal components for electronic and commercial industries, and related products. During 1958 the Respondent shipped products valued in excess of $50,000 from its plant directly to points outside the State of New York. There is no dispute, and I find, that the Respondent is engaged in commerce within the meaning of the Act. H. LOCAL 517; NPEU Local 517 and NPEU are labor organizations admitting to membership employees of the (Respondent. III. THE UNFAIR LABOR PRACTICES A. The issues Our principal issues are whether the Respondent violated the Act by (1) domi- nating and interfering with the formation and administration of NPEU; (2) exe- cuting and maintaining in effect a collective labor agreement with NPEU; and (3) discharging Dionisio Nunez and refusing to reinstate him and certain striking employees. B. The events During March 1959, Nunez spoke with an organizer for Local 517 and suggested that an effort be made to organize the plant. On March 16 the president of Local 517, Phillip Goldstein, sent two organizers to interview employees. On March 17 Goldstein and an organizer spoke with employees outside the plant during the lunch period. Later that afternoon, when the work of the day shift had ended, a meeting of employees was held at Chelsea Bar & Grill across the street from the plant. Goldstein, who previously had received signed union designations, received additional ones. Nunez and Sylvia Rodriguez were selected to join representatives of Local 517 at bargaining sessions with the Respondent. Rodriguez soon became active in formation of NPEU, however. On March 18 Goldstein called at the plant and talked with Norman Thaw, Richard Thaw, and Frank Guzman, the Respondent's president, vice president, and plant superintendent, respectively. Goldstein claimed to represent the employees and asked for recognition. Guzman asked how he could know that Local 517 represented the employees. Goldstein, having in mind Nunez and Rodriguez, replied that a committee had been selected by the employees and that the members could be called from their places of work. Guzman rejected the suggestion. Gold- NORRICH PLASTICS CORP. 155 stein produced some union cards but refused to let Guzman inspect them. It was agreed that Guzman and Reuben Silver, an organizer, would go into the production area and select two employees at random . They returned with N,%niiez and Alba Marlene Cartaya. Goldstein then listed Local 517 's demands. Not han Thaw and Guzman said that they were powerless to act upon the demands because an unidenti- fied "big boss" was in Florida . Goldstein waited outside the plant for the balance of the day but recognition was not forthcoming.' On March 18 and 19, Norman Weiss, who worked on the day shift, engaged in activity which was a forerunner to formation of NPEU . Weiss testified that he is a "working foreman" and that, as such, at the time of his activity he did not believe that he would be eligible for membership in the organization which he sought to have created? Weiss testified also that on March 18, about 1i hours after work on the day shift had ended , he went to Guzman and asked whether the Respondent would recognize "an inside union," that Guzman answered affirma- tively, that he said to Guzman that he would ascertain how many of the employees favored such a union , and that Guzman told him to do as he wished.3 After talking with Guzman, Weiss went among the approximately 20 employees on the night shift and solicited their signatures to a paper which, according to Weiss, was cap- tioned, in substance, that the signers "wanted their own union, independent union." All of those employees signed . Weiss testified that he began soliciting signatures about 6:30 o'clock and that he spent about 2 hours in the solicitations. We was paid at his overtime rate from 4:30 to 9 :45 o'clock. No one of more authority than Weiss was in the plant that night . 4 The next morning Weiss solicited signa- tures of employees on the day shift. He was less successful , however, and he testi- fied that employees were "nervous and afraid," believing that the Respondent had sent him around with the paper, and that he ceased his efforts and destroyed it. While soliciting on March 19 , Weiss was aided by Cartaya who translated his remarks to the Spanish-speaking employees. Three employees testified concerning the solicitation of them to sign the paper. Marion Mergestik, who went on strike as described below, testified that Weiss asked her to sign a "petition" against Local 517 and that she refused . She testified also that Weiss solicited her signature more than once and that he pressed her to state her objections to signing . Rodriguez testified that she could not recall who solicited her signature but that she was told , "If you don't want to be bothered any more, if you don't want a union, just sign here." Rodriguez testified also that nothing was said to her about the formation of a union . Nunez testified that Weiss spoke to him of a petition for the employees' "own union," that Weiss thrice unsuccessfully solicited his signature , and that upon the third occasion Weiss quoted Guzman as 3 The findings concerning this conversation are based upon the credible testimony of Goldstein and Nunez. Cartaya, who became president of NPEU, was not a witness, nor was Richard Thaw. Norman Thaw, who was a witness , did not testify concerning the conversation Thus, the Respondent's evidence, in partial contradiction of that of Goldstein and Nunez , was given by Guzman . According to Guzman , Goldstein requested recognition as the representative of the production and maintenance employees , produced a pack of union cards , but did not claim to represent a majority . Guzman testified further that he inquired whether Local 517 possessed majority status , that Goldstein re- plied that Local 517 would have a majority "very soon," and that Guzman then said that he would .be happy to recognize Local 517 when Goldstein could prove that a majority had been obtained Guzman also testified that there was no reference to a "big boss ." I can- not credit Guzman's denial that Goldstein claimed to represent a majority of the em- ployees He impressed me as an unreliable witness and his testimony is rejected in other instances described below. In this instance, an affidavit which he executed on April 24, 1959, contradicts his testimony concerning the conversation with Goldstein . According to the affidavit , "I [Guzman] recall that Goldstein made a long list of demands , and said that he represented a majority of the employees In addition , I recall Goldstein telling us (Norman Thaw , Richard Thaw and myself ) 'If you don 't come across we are going to put you out of business ' I recall that we told him 'that we would think it over'." The quoted statements make it clear, contrary to Guzman's testimony , that Goldstein did claim that Local 517 had been designated by a majority of the employees. 2 The contract between the Respondent and NPEU, described below, excludes working foremen from the bargaining unit. 8 Guzman's testimony concerning the conversation corresponds largely with that of Weiss 4 Guzman testified that there is no foreman on the night shift Weiss testified that Guzman and the Thaws left the plant before he began to solicit signatures. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having said that Nunez would be discharged if Nunez did not sign. I credit the testimony of Mergestik , Rodriguez, and Nunez.5 At this poin an issue to be decided is whether the Respondent is responsible for Weiss' activity. The General Counsel asserts, and the Respondent denies, that Weiss is a supervisor within the meaning of the Act. Both Weiss and Guzman testi- fied in accord with the Respondent's position although Weiss characterized himself as a "working foreman." Guzman insisted that there was only one foreman in the plant, a person other than Weiss. There is testimony contrary to that of Weiss and Guzman but I believe it is unnecessary to recite it because of admissions in Guzman's affidavit . That affidavit, already mentioned in footnote 1, was executed before Weiss' activity was put in issue by issuance of the complaint . It names six foremen and recites, in part: . Norman Weiss, foreman of the Tool room, day shift, he supervises and direct two (2 ) employees . There is no second shift foreman in the Tool room. . . . The foremen are in charge of their departments, they have the authority to mildly discipline employees under their direction . . . . The fore- men are responsible for the work performed by employees under their super- vision. The foremen have the authority to recommend the discharge of employees working under them. . . . Guzman was called as a witness by both the General Counsel and the Respondent. The General Counsel called him under rule 43 (b) of the Federal Rules of Civil Procedure, and the Respondent and NPEU conceded that he was properly called a "managing agent" of the Respondent . I hold that the quoted portions of his affi- davit constitute admissions against the Respondent's interests I find that Weiss is a supervisor within the meaning of the Act. In any event , assuming arguendo that Weiss is not such a supervisor, he was the Respondent's agent while engaged in the activity described herein . This is so because his initial activity took place, with the Respondent's knowledge, after his regular working hours and he was com- pensated therefor. Thus, as we have seen , Weiss testified that on March 18 his regular working hours had ended when he spoke with Guzman and received Guz- man's approval to canvass employees on the night shift and that he spent about 2 hours in soliciting signatures . He was paid at his overtime rate for the time spent on that day in talking with Guzman and in soliciting. During the morning of March 19, Weiss and Guzman spoke concerning the activity in which Weiss had engaged . Weiss testified that he did not tell Guzman of having solicited signatures to the paper but that he said instead that he had can- vassed the night-shift employees and that they all appeared to favor the formation of "their own union." He testified further that, although only about 5 employees of the approximately 20 on the day shift had signed the paper, he told Guzman that he had found few employees on that shift who did not also favor forming "their own union" and that Guzman's reaction was to direct him to send to Guzman a few employees "to represent them [all]." Cartaya and Rodriguez soon called upon Guzman. According to Guzman, he was asked whether the employees might form their own union and he replied that he had no power to assist them, that they should seek "competent help," and that if they should be able to form a union he would "accept it." During that same morning , Local 517's president, Goldstein , again called upon Guzman and Norman Thaw. Goldstein was informed that they were expecting the unidentified "big boss" soon . That afternoon Guzman discharged Nunez, under circumstances described in section III, D , below. Nunez went outside the plant where he told Goldstein of the discharge . Goldstein then went to Guzman and unsuccessfully protested the discharge. i Weiss' testimony, to some extent, is contrary to that of the three named employees He testified that he expressed no threat to anyone in order to obtain a signature, that he explained to employees that the paper was "for their own union," and that he told some of them that the circulation of the paper was his "own idea" and for his "own personal knowledge and it would go no further than here if they signed it or not " I cannot credit Weiss' denial that he told Nunez that Guzman had threatened to discharge Nunez if Nunez did not sign Weiss was not content to accept Mergestik's and Nunez' refusals to sign, but repeated his solicitations in his effort to forestall the organizing activities of Local 517 It is reasonable to conclude that Weiss would not have stopped short of making a threat 9 Guzman sought to repudiate the statements in the affidavit by testifying that he had not read them carefully before signing the document and that he had merely "glanced" through it. He acknowledged, however, that he had made corrections in it and, indeed, that some pages had to be rewritten because of his corrections. NORRICH PLASTICS CORP. 157 About 4:30 o'clock that afternoon , when the shifts changed , most of the em- ployees on the day shift joined employees on the night shift in attending a meeting in the plant.? The employees selected two persons from the day shift , Cartaya and Rodriguez, and two from the night shift, Luis Ayala and Demetrio Martinez, as a committee to represent them. No foreman appears to have been present. Approval was given to certain demands to be presented to management , but the record is unclear concerning when the demands were formulated , as set out in the footnote.8 The employees suffered no loss of pay for the time spent at the meeting. On the same or the next day, members of the committee called upon Guzman and Norman Thaw and submitted the demands. With one exception, they were granted. On March 20, about 7 of the approximately 40 employees began a strike in protest of the Respondent's actions including the discharge of Nunez. Picketing occurred daily. On March 23, Norman Thaw and the committee members executed a collective labor agreement between the Respondent and "the duly elected collective bargaining committee of the employees of the Norrich Plastics Corporation ." As "proof" that the committee had been selected by a majority of employees , Guzman testified that he accepted their word that they had been "elected by the complete shop." On or about March 26, the strike ended. Goldstein asked Guzman to reinstate Nunez, who had been discharged , and the strikers . Guzman answered that he would reinstate only Howarth Gobarth , who appears to have been reinstated promptly. During May Pedro Rodriguez, Tito Gonzales, and Manuel Colon were reinstated. At the time of the hearing, Mergestik , Ann Millerman , and Emanuel Quezel had not been reinstated.9 Subsequent to March 26 , the activity which had led to creation of the committee was continued and it crystallized in the formation of NPEU . At an undisclosed time, the committee members visited the Board 's Regional Office seeking advice, and they were paid by the Respondent for the time consumed by the visit . Sylvia Rodriquez testified that a field examiner suggested that they consult an attorney. Thereafter, Attorney Samotin was retained . At a meeting of employees , officers of NPEU were elected and, according to Rodriguez , the officers were authorized to have a constitution and bylaws prepared . Samotin prepared such a document but, at the time of the hearing , the employees had not voted upon its acceptance. The record does not disclose the extent to which employees are members of 7 Mergestik did not attend the meeting Her testimony concerning a simultaneous event gives rise to the allegation that Guzman was engaged in keeping "under surveillance . . [another] meeting and other concerted activities " of employees . As Mergestik left the plant, Richard Thaw asked her not to talk with representatives of Local 517 who were outside Nevertheless , as she passed Goldstein , she arranged to meet him within a few minutes at the Chelsea Bar & Grill across the street . Sometime later , as Mergestik pre- pared to leave that establishment, she noticed that Guzman was seated outside in front of a garage Although Richard Thaw was not a witness and Guzman did not testify con- cerning the incident , the most that can be said for Mergestik 's testimony is that it may create a suspicion that Guzman was seated there in order to learn what was taking place in the Bar & Grill . Mergestik testified, however , that there was no meeting of Local 517's adherents in progress in that establishment She, Nunez , and "a couple of other boys" were the only employees conversing there with Local 517's representatives . Moreover, there is no evidence that Guzman could see , or sought to see , anyone in the establishment or could hear , or sought to hear, anything that was said therein , and Mergestik testified that from her observation of Guzman she could not say that he was not waiting for his auto to be delivered by an attendant at the garage. Under all the circumstances, I find that there has been a failure of proof in connection with this allegation 8 There is evidence that at the meeting some employees suggested improvements in work- ing conditions to be presented to management and that, after the meeting , members of the committee called upon Weiss, who made a list of the improvements On the other hand , there is evidence that before the meeting Cartaya and perhaps Rodriguez , both of whom had called upon Guzman as described above, called upon Weiss, asked him to reduce certain demands to writing , and thereafter at the meeting obtained the employees ' approval of the demands The conflict need not be resolved. Whatever may be the time when a list of demands was prepared, it is clear that Weiss assisted in the preparation 9 The Respondent denies that Mergestik , Millerman , and Quezel applied for reinstate- ment. In rejecting the denial , I credit the testimony of Goldstein that he asked for the reinstatement of all strikers plus Nunez . Moreover , Guzman acknowledged that Goldstein requested the reinstatement of all strikers Finally , the testimony of Mergestik and Colon establishes that Mergestik individually applied for reinstatement , and Guzman so acknowledged in his affidavit. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NPEU. Although Attorney Samotin said at the hearing that he had "some cards" at his office, he did not produce them. The record does disclose, however, that NPEU has no funds, a decision having been made to postpone the collection of dues pending the outcome of the issues herein. The parties are agreed that NPEU has succeeded the committee as a party to the collective labor agreement with the Respondent. C. Conclusions concerning NPEU The General Counsel advances various theories to support his contentions that the Respondent's relations with NPEU, and with the committee which preceded it, were violative of the Act. It is unnecessary to discuss each theory. It suffices to say that the evidence leaves no doubt that NPEU is the Respondent's creature. We have seen that the initial move toward formation of NPEU was a conversation between Guzman and Weiss in which the former approved Weiss' remaining in the plant after his normal working hours, and at overtime pay, in order to promote the formation of NPEU. We have seen too that Weiss' activity continued on the fol- lowing day and that it was vigorous, including a threat to Nunez and repeated solicitations of Mergestik and Nunez as means of inducing those two employees to sign a paper which he was circulating. Thereafter Weiss assisted employees in pre- paring a list of improvements in working conditions to be presented to management. Finally, we have seen that, in matters relating to the committee and NPEU, the employees met on company time and property and that upon one occasion the members of the committee were paid for the time spent in visiting the Board's Regional Office to seek advice. In sum, every encouragement and assistance was given by the Respondent to the committee and to NPEU, which contrasts with the hostility displayed by the Respondent toward Local 517. Recognition of the com- mittee by the Respondent came quickly, along with execution of a contract, not- withstanding the pending claim of Local 517 that it represented the employees I find that the Respondent promoted the movement which culminated in formation of NPEU and that the Respondent has dominated that labor organization and con- tributed support to it, and to its predecessor committee, in violation of Section 8(a)(2) and (1) of the Act. I find also that the Respondent's recognition of the committee, and its execution of the contract, constituted restraint and coercion of employees in violation of Section 8(a) (1) and support to the committee in viola- tion of Section 8(a) (2). D. The discharge of Nunez Nunez was hired about September 1958 at $40 weekly. He operated automatic screw machines. Within about 6 weeks he received two wage increases totaling $8 weekly. He was discharged after approximately 6 months' employment. According to Guzman, Nunez was "totally unreliable and irresponsible" and brought about much discord between the Respondent and its customers by faulty work and by causing late deliveries of goods. Although the Respondent did not support Guzman's testimony by identifying any customer who may have complained of faulty or delayed work by Nunez, the Respondent did offer additional testimony that Nunez was incompetent. Ayala, an officer in NPEU and an employee on the night shift who performed work like that done by Nunez on the day shaft, testified that upon various occasions he reported to Guzman that he had observed machined parts which had been poorly made and which he believed had been Nunez' work. Ayala also testified that a day or so before Nunez' discharge, Ayala showed to Guzman certain defective work. Guzman, in testifying about the last-mentioned incident, asserted that on the day before Nunez' discharge, after Nunez had left the plant at the end of the day shift, Ayala showed the material to Guzman, that the error in workmanship had been made by Nunez in performing a "rush" job, that the loss approximated $90, and that Guzman decided to discharge Nunez. On the other hand, Nunez, while acknowledging that he had made errors shortly after beginning work, denied that he had worked on a rush job just before his discharge, that he had improperly performed his work at about that time, and that Guzman had criticized him during the month in which he was discharged I cannot credit the testimony of Guzman and Ayala. Guzman, as already found, was a demonstrably unreliable witness. Ayala, as an officer in NPEU, was not a disinterested witness If they are believed, one must conclude that Nunez was a notoriously inefficient employee throughout most of the approximately 6 months of his employment. We have seen, however, that Nunez received two wage increases. We have seen too that Nunez was the most active employee in behalf of Local 517, that he refused to sign the paper which Weiss circulated, and that Weiss told him that Guzman had said that a discharge would follow a continued refusal to sign. In addition, there is the credible testimony of Nunez and Goldstein that Guzman said NORRICH PLASTICS CORP. 159 to them in separate conversations that Nunez was discharged because he was a troublemaker and the employee who had brought Local 517 into the plant.10 I find that the Respondent, by discharging and refusing to reinstate Nunez, violated Section 8(a)(3) and (1). E. The strike and the refusals to reinstate As recited, on March 20, a few employees began a strike in protest of the Respond- ent's actions. The strike continued for about a week and ended with a cessation of picketing and with Goldstein's request of Guzman that all strikers be reinstated. With the possible exception of Gobarth, no striker was reinstated promptly. Pedro Rodriguez, Gonzales, and Colon were reinstated during May. Mergestik, Millerman, and Quezel had not been reinstated at the time of the hearing. Since the strike was caused by the Respondent's unfair labor practices, the seven named employees were unfair labor practice strikers and, therefore, were not vulnerable to refusals to reinstate them. I find that the Respondent, in refusing to reinstate the striking em- ployees promptly, violated Section 8(a) (3) and (1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Since the Respondent has dominated and interfered with the formation and admin- istration of NPEU, and has contributed support thereto, I shall recommend that the Respondent cease and desist from such conduct and that it withdraw recognition from and completely disestablish NPEU as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Nothing in these recommenda- tions, however, shall be deemed to require the Respondent to vary or abandon those wage, hour, seniority, or other substantive features of its relations with its employees, established in performance of its contract of March 23, 1959, with NPEU, or to prejudice the assertion by the employees of any rights they may have under such agreement. Since the Respondent invalidly discharged Nunez and refused to reinstate certain unfair labor practice strikers promptly, I shall recommend that the Respondent offer 'Nunez, Mergestik, Millerman, and Quezel immediate and full reinstatement to their former or substantially equivalent positions (The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827), without prejudice to their seniority or other rights or privileges, and that the Respondent make whole each of them and the other strikers for any loss of pay he or she may have suffered as a result of the discrimination, by payment to him or her of a sum of money equal to that which he or she normally would have earned from the date of the discrimina- tion 11 to the date of a proper offer of reinstatement, 12 less his or her net earnings (Crossett Lumber Co., 8 NLRB 440, 497-498) during said period, the payment to be computed upon a quarterly basis in the manner established in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. I shall recommend also that the Respondent preserve and make available to the Board or its agents, upon request, 10 Guzman's version of his conversation with Nunez upon the occasion of the discharge contains an implicit denial that he said the reason for the discharge was Nunez' activity in behalf of Local 517. But Guzman did not deny having had -the conversation with Goldstein when the latter protested Nunez' discharge and having made the remarks attributed to him by Goldstein. 11 For Nunez, this date is the date of his discharge, March 19, 1959. For the strikers, this date is the date upon which Goldstein asked Guzman to reinstate them, on or about March 26, 1959. 13 For Gobarth, Pedro Rodriguez, Gonzales, and Colon, all of whom have been re- instated, this date is the date of their respective reinstatements. For Nunez, Mergestik, Millerman, and Quezel, who have not been offered reinstatement, the date is in the future. 160 DECISIONS OF NATIOIQAL LABOR It,EJ TIONS BOARD for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and the rights to reinstatement under the terms of these recommendations. In order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend further that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in said section. •N.L.R.B. v. Express Pub- lishing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). 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. Local 517 and NPEU are labor organizations within the meaning of. Section 2(5) of the Act. 2. By dominating and interfering with the formation and adminstration of NPEU, and contributing support thereto, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 3. By discriminating in regard to the hire or tenure of employment of Nutlet and the striking employees, thereby discouraging membership in Local 517, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Pay Less Drug Stores, Petitioner and Retail Food Clerks. Union, Retail Clerks International Association, Local 870, AFL-CIO. Case No. _30-RM-331. April 12, 1960 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Albert Schneider, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 organization involved claims to represent certain em- ployees of the Employer. 3. The Employer-Petitioner seeks a representation election in a unit composed of employees at its new Hayward, California, retail drugstore. The Union contends that there is a contractual bar to this proceeding, and further that, under the circumstances , the requested single-store unit is inappropriate in view of the Employer's prior bargaining on a multiemployer basis. The Employer, Pay Less Drug Stores, is a California corporation operating about seven retail drug establishments in the State of 127 NLRB No. 24.