M. Yoseph Bag Co.

YOSEPH BAG COMPANY 211 in a disruption of existing intraunion relationships." Under the cir- cumstances, we find that a schism does not exist. On the basis of the foregoing, we find that the petition is prema- turely filed and that the contract between the Intervenor and the Employer is a bar to the petition.' Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] MEMBER RODGERS took no part in the consideration of the above Decision and Order. 'Hershey Chocolate Corporation , 121 NLRB 901, 906-909 5 Deluxe Metal Furniture Company, 121 NLRB 995, 999. Morris and David Yoseph, d/b/a M. Yoseph Bag Company and District 65, Retail, Wholesale and Department Store Union, AFL-CIO. Case No. 4-CA-1593. July 21, 1960 DECISION AND ORDER On May 2, 1958, Trial Examiner Henry S. Salim issued his Inter- mediate Report in the above-entitled proceeding finding that the Re- spondent had not engaged in certain unfair labor practices alleged in the complaint and that incidents adduced in support of certain allegations were too isolated to warrant a remedial order, and recom- mending that the complaint be dismissed in its entirety as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Charging Party and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. On June 16, 1959, the Board issued its Order remanding this proceeding to the Regional Director. The parties waived their rights to a further hearing and Supplemental Intermediate Report and entered into a stipulation of fact. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was commited. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, the stipulation of facts, and the entire record in this case and finds merit in the exceptions to the Intermediate Report for the reasons discussed below. Accord- ingly, the Board adopts only those findings, conclusions, and recom- mendations of the Trial Examiner which are consistent with the Decision herein. The record facts, some of which were not alluded to by the Trial Examiner in his Intermediate Report, are as follows: The Respond- ent, a New Jersey partnership, was engaged in purchasing feed bags 128 NLRB No. 21. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from various sources, cleaning and repairing them, and selling these reconditioned bags to various customers. By July 11, 1957, District 65, Retail, Wholesale and Department Store Union, AFL-CIO, here- inafter referred to as District 65, had been designated by 14 of the Company's 16 employees as their bargaining representative. Through organizers Saul Klein and Romadell Jones, District 65, on that date, informed partner David Yoseph of its majority status and requested recognition as the collective-bargaining agent of Yoseph's employees. Yoseph told the union organizers that the Company's financial po- sition'had been deteriorating since 1956 due to the inroads being made by the bulk feed system on the use of bags,' and that he was in the process of deciding whether or not to continue his business. Yoseph requested additional time to talk to his employees and to decide whether or not he was going to remain in business. He told Klein he would advise him as to his decision in a week. On Friday, July 12, David Yoseph asked employee Vernal Soltau why he had joined the Union and Yoseph said, according to Soltau, "It is going to be hard for you because he was going to cut us down to 40 hours a week." Subsequently, Soltau and employee Robert John- son were deprived of all overtime work. Yoseph testified that on the same day he called the R & T Bag Com- pany of Lakewood, New Jersey (which is in the same business as Re- spondent), whose employees were represented by District 65, with whom R & T had a collective-bargaining contract. Lakewood, New Jersey, is not in the same competitive area where Respondent did its business; Yoseph's competitors were located in metropolitan Phila- delphia. Yoseph stated that he was advised what the R & T Bag Company contract with District 65 provided for in regard to wages and conditions of employment. Yoseph testified that shortly after receiving this information, he decided he would be unable to make ends meet if he had to pay the Lakewood wage scale. He then con- tacted the Girard Bag Company of Philadelphia and began to ne- gotiate for the sale of his business to Girard. On Monday, July 15, 1957, employee Annie Johnson, who had been sick, returned to work and was questioned as to her knowledge of District 65, to which she replied that she knew nothing. Employee Randolph Allen, one of Respondent's drivers, testified that on that same day, Yoseph said to him "I know that you joined the Union, but with or without the Union would you still continue buying bags for me? I am going to close the plant down and if I can have the 2 drivers, including myself and the other driver, I would have the Union licked." 1 Under this system, feed is delivered by truck directly from mill to farm without the use of bags. YOSEPH BAG COMPANY 213 Yoseph stated that he orally agreed on that day to sell to Girard Respondent's business, consisting of its goodwill, all customers but two, inventory, and physical assets except for two pieces of equipment and the plant itself. In return, David Yoseph became a director and a salaried vice president of Girard and obtained stock and real estate valued at about $45,000, which represented approximately a one-third interest in Girard. Girard had, immediately before this sale, pur- chased a new plant approximately two and one-half times the size of its old plant, and the Trial Examiner found additional employees were hired at that time. On Wednesday, July 17, District 65's organizer called Yoseph and was told to come to the plant at 4: 30 p.m., on Friday, July 19, for Yoseph's decision. Yoseph testified that on the morning of July 19, he assembled the employees and told them that he could not pay the wage rates de- manded by District 65, that he had decided to close the plant, and that the employees had the choice of quitting immediately or finishing out the day. Employees Robert Johnson and Vernal Soltau, however, testified that on the morning of July 19, Yoseph told them he would not be able to meet the rates which District 65 demanded and remain in business, but that he had looked over the contracts of the "Phila- delphia Union," which represented the employees of his competitors, and that if the employees chose that union instead of District 65 he could stay in business. Johnson and Soltau testified further that Yoseph gave them until 4 p.m. to decide what they wanted to do, since he told them that he must inform District 65 of his decision at 4: 30 p.m. That afternoon the employees told Yoseph that they had deter- mined to remain with District 65. At 4: 30 p.m., July 19, 1957, Romadell Jones, District 65's assistant organizer, arrived at the plant and, in the presence of the assembled employees, was told by Yoseph that the business was being closed because of Yoseph's inability to meet the wage rates that District 65 would demand. When Jones replied that there were no fixed wage rates, that District 65 was willing to negotiate, and that he was sure they could come to an agreement, Yoseph refused to discuss the matter further. All employees were terminated as of July 19, 1957, but the Respond- ent did not cease functioning entirely. It appears that only that part of its operations which had to do with cleaning, baling, and packing of bags was shut down, while Yoseph continued to receive and deliver bags for some time thereafter. The assets of the Respondent, with the exception of the land, build- ing, and two pieces of equipment were sold by bill of sale to the Girard Bag Company of Philadelphia on August 17,1957. 577684-61-vol. 128-15 ° 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Trial Examiner found that the Respondent did not violate Section 8 (a) (3) of the Act by closing its plant, selling the assets of its business, and discharging its employees. We do not agree. The Trial Examiner correctly stated the legal proposition in- volved-shutdown of a plant and/or sale of a business with resultant discharges based upon valid economic considerations are not illegal, whereas the same conduct based upon an employer's union animus is violative of the Act 2 However, he found that there was no such animus here. One of the two principal reasons for the Trial Ex- aminer's conclusion of lack of unlawful motivation on the part of the Respondent was his crediting of Yoseph's testimony that he had not threatened to close the plant unless the employees selected the Phila- delphia union in preference to District 65. According to the Trial Examiner, Yoseph's denial that he so threatened them was credited 3 because the Trial Examiner was convinced that Yoseph merely ex- plained that the wage rates of his Philadelphia competitors under contract with the Philadelphia union were the equivalent of those he was paying and that he could afford to pay those rates and still remain in business, that he could not afford to remain in business if he were compelled to pay the same wage rates provided for in District 65's contract with the R & T Bag Company, and that he therefore re- quested the employees to decide what they wanted to do and let him know by 4 p.m., as he had an appointment with District 65's repre- sentative at 4: 30 p.m. But these latter statements, as found by the Trial Examiner, are based on the employees', not Yoseph's, testimony.4 Indeed, Yoseph testified that at this meeting he told the employees that he was closing up and offered them only the choice of leaving then or finishing out the day. Upon analysis of this credibility resolution, it is apparent that the Trial Examiner has credited merely Yoseph's denial, but not his testi- mony as to what he said. The Trial Examiner has then found, in effect, that the statements made by Yoseph were as testified to by the employees but that these statements were tantamount to an explanation of his position rather than a threat. We do not agree that by eu- phemistically describing what occurred as constituting an "explana- tion" by Yoseph the Trial Examiner has effectively disposed of the 2 Rudy Barber, Louis B. Barber and Robert Hamiyn, d/b/a Barbera Iron Foundry, 126 NLRB 30. 3In crediting Yoseph's denial, the Trial Examiner also stated that "[ d]ue to language difficulties, the employees, most of whom were natives of the west Indies, were not articulate and found it onerous to express themselves when they testified. As a con- sequence, their testimony, much of which was in reply to leading questions , might appear on the cold record to indicate that Yoseph threatened to close the plant unless they selected the Philadelphia union in preference to the charging union." However, the record is devoid of any evidence as to the national origin of the employees. Nor are the findings that they were not "articulate" and that many of their replies were to "leading questions" borne out in any sense by the record. * In this. connection, it may be noted that the three employees who testified on this point were in agreement, but there is no corroboration of Yoseph' s denial. YOSEPH BAG COMPANY 215 impact or thrust upon the employees of Yoseph's statements. When, as here, an employer "explains" to his employees that if they select union A he can remain in business, but if they choose union B he cannot remain in business, and requests them to decide what they want to do, we are drawn to the inevitable conclusion that he has thereby threatened to close the plant unless they select union A. Moreover, the Trial Examiner's statement, quoted in footnote 3 above, that it might appear from the "cold" record that Yoseph threatened the employees, indicates that he in fact agrees that there is support in the record for his conclusion. Under these circumstances, the Trial Ex- aminer's crediting of Yoseph's denial cannot be sustained. The second major reason of the Trial Examiner for concluding that the Respondent was lawfully motivated was his finding that the closing of the plant and the discharge of the employees were based upon valid economic considerations. Briefly, the economic factors relied upon by the Trial Examiner were : (1) the fact that the com- bined types of operations of Respondent and Girard complemented each other; (2) lower gross sales of Respondent for the first 6 months of 1957 as compared with the same period of 1956; (3) increased labor costs; (4) the advent of the aforementioned bulk feed system; (5) the testimony of William J. Fox, manager of the Farmers' Co- operative Association of Vineland, Inc., that his mill purchased all of its bags from the Respondent and that there had been a substantial decrease in the number so purchased each week; and (6) Yoseph's testimony that because of the bleak prospects of the business he had been negotiating with Girard "any number of times, over a period of a couple of years." On the other hand, the record discloses the following supervening factors: (1) the complementary nature of Respondent's and Girard's operations does not appear material (if, instead, Respondent's opera- tions had been identical with Girard's so that the acquisition of Re- spondent's business would not have necessitated the use of different equipment, the utilization of more space, and the employment of ad- ditional personnel to replace those discharged by Yoseph, the char- acter of the two operations would be of significance) ; (2) the func- tions previously performed by Yoseph were merely taken over by Girard, which proceeded to serve the same customers in the same area; (3) Girard had found it necessary to expand its physical fa- cilities by acquiring a new plant approximately two and a half times the size of its former building, and it was allegedly because of this expansion that it could take over Respondent's operations; (4) the very nature of the operation as it was performed by Girard after the sale, that is, to purchase bags in the Bridgeton-Vineland, New Jersey, area, where Yoseph's plant and customers were located, ship them to Philadelphia for processing, and return them to the New Jersey area 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for sale, as must now be done, necessitates a total of some 80 miles of trucking with attendant costs as well as tolls on the bridges which must be used in driving between Philadelphia and the New Jersey area; (5) in March 1957, Respondent purchased a bailing press valued at $700 to $800 and a forklift truck for $450, and about 2 weeks before the closing Respondent hired two new employees; 6 and (6) contrary to the Trial Examiner, Fox's mill did not deal exclusively with Re- spondent, and Fox's testimony was couched in extremely qualified language, and he repeatedly stated that his figures were not complete. If the Respondent's general behavior during the months preceding District 65's appearance on the scene did not reflect actual confidence in its business future, it established, at the very least, the intention to continue as an operating concern. It was not until District 65 re- quested recognition on July 11 that the Respondent's attitude toward its operations abruptly changed. Only then, and in a short span of 4 or 5 days, did Yoseph extract a promise from District 65's organizers to wait a week while he decided whether to close his business; question his employees regarding their union activities; call R & T Bag Com- pany about the wage rates under its contract with District 65, despite the fact that R & T was not a competitor of Yoseph; and enter into a verbal sales agreement with Girard. Indeed such intention to con- tinue operating is made manifest by the fact that thereafter, on July 19, despite the asserted deterioration of the business and sale thereof, Yoseph clearly indicated to the employees that if they renounced District 65 as their representative he would remain in business. Also, as the Trial Examiner and we have found, Yoseph's decision to close the plant was not announced until he was informed of the employees' choice to continue being represented by District 65.6 In these circumstances we cannot accept the Trial Examiner's second major reason, namely, that the closing of the plant and the attendant discharges were based upon valid economic considerations. On the contrary, we are impelled to conclude that Respondent's alleged eco- nomic justification for its conduct constituted a pretext to obscure its real motivation which was to evade dealing with the Charging Union. The mere coincidence of union organization of a plant with the shutting down thereof is not conclusive evidence of a discriminatory 6 Respondent alleges that these employees were hired on a temporary basis, and the General Counsel contends they were permanent employees One of these employees testified that when they were hired , Yoseph told them that his employees had "worked for him steady, 5 or 6 years" and that he could be employed only if be intended to stay in the area. Moreover , Yoseph testified they were to replace two ill employees , but only one was sick and another was on 1 week's vacation and was known to be returning. The two allegedly temporary employees were terminated with all the others on July 19. 6 Since Yoseph would not have closed down if the employees had not chosen District 65, this situation is clearly distinguishable from that in the case of Mount Hope Finishing Company v . N.L.R.B., 211 F. 2d 365 ( C.A. 4), cited by the Trial Examiner, where no violation was found when the appearance of a union merely substantiated a decision to close based on preexisting lawful considerations. YOSEPH BAG COMPANY 217 motive in shutting down that plant, although the coincidence itself is evidence bearing upon discriminatory intent.' However, here there is a substantial additional showing of union animus, and when we con- sider all the circumstances referred to above, we think the evidence of unlawful motivation is conclusive. Based upon the entire record herein, we find that the Respondent discriminated in regard to its employees' tenure of employment by closing its plant and going out of business 8-thereby discharging the employees-and, because the plant closing and cessation of operations was the direct result of the employees' selection of District 65 as their collective-bargaining rep- resentative, the Respondent's retaliation against them for their ac- tivity on behalf of District 65 discouraged the employees' continued membership in District 65.1 2. We find, in disagreement with the Trial Examiner, that the Respondent also violated Section 8(a) (5) of the Act. District 65 was the designated representative of the majority of the employees at Yoseph's plant when it requested recognition from him on July 11. We have found that the Respondent did not determine to go out of business until July 19 (if, indeed, then). As heretofore indicated, on that day Jones informed Yoseph that District 65 had no fixed wage rates and that it was willing to negotiate. We construe what Jones said to Yoseph as a clear request to bargain. In the absence of an adamant insistence upon a particular wage rate on the part of District 65, the Respondent had a positive duty to meet and bargain with that Union, and its refusal to do so in the face of Organizer Jones' pro- testations of desire to negotiate constituted a violation of Section 8(a) (5). Moreover, that duty to bargain survived the unlawful decision to avoid the Union by closing down the plant and ceasing operations.10 3. We find, contrary to the Trial Examiner, that the Respondent violated Section 8(a) (1) of the Act by : (a) interrogating the em- ployees; (b) threatening to deprive them of overtime and in fact doing so; (c) threatening individual employees that the plant would be closed; and (d) threatening the assembled employees on July 19 that the plant would be closed if they did not renounce their chosen representative. The Trial Examiner found, principally on the basis of the Board's Blue Flash decision," that this conduct did not violate the Act. The Trial Examiner's application of the Blue Flash rule to the threats is erroneous, since that decision holds that interrogation 7Walter Holm ,& Company, 87 NLRB 1169. 8 Barbers Iron Foundry, supra. 9 AT L R B v. Jones J Laughlin Steel Corp, 301 U S 1; Associated Press v A'.L R.B., 301 U.S. 103. 10 Symns Grocer Co., et al., 109 NLRB 346, 348 , 349; Jefferson Company, Inc., 110 NLRB 757, 760; Industrial Fabrlcatong. Inc., et al., 119 NLRB 162, 173-174. " Blue Flash Express, Inc., 109 NLRB 591. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing alone is not sufficient to constitute a violation of the Act. Nor can we agree with the Trial Examiner that these incidents were isolated when viewed in the context of the unfair labor practices by the Respondent which we have heretofore found. CONCLUSIONS OF LAW 1. Morris and David Yoseph, d/b/a M. Yoseph Bag Company (Respondent) is engaged in commerce within the meaning of the Act. 2. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of the Act. 3. On July 11, 1957, and at all times since, the Union aforesaid has been the exclusive representative of all the employees in an appro- priate unit of the Respondent's employees for the purposes of collec- tive bargaining within the meaning of Section 9 (a) of the Act. The unit of the Respondent's employees, appropriate for collective bargaining is and has been : All production and maintenance employees, including truckdrivers, of the Employer's Bridgeton, New Jersey, plant, but excluding office clerical employees, guards, and supervisors as defined in the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of the employees by closing its plant and discharging the em- ployees on July 19,1957, the Respondent has discouraged membership in a labor organization and by such discrimination and by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, as hereinabove found, the Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act and Section 8 (a) (1) thereof. 5. By refusing, on and after July 19, 1957, to bargain collectively with the aforesaid Union as the exclusive representative of the em- ployees, in the aforesaid appropriate unit, the Respondent has engaged in, and is engaging in, an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 6. By interrogating the employees, threatening to deprive them of overtime and in fact doing so, threatening individual employees that the plant would be closed, and threatening assembled employees, on July 19, 1957, that the plant would be closed if they did not renounce their chosen representative, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. YOSEPH BAG COMPANY REMEDY 219 For the reasons stated in Barbers Iron Foundry," and under all the circumstances, we conclude that although the discriminatees are en- titled to backpay for the period from which their employment was terminated (July 19, 1957) until the business was sold (August 17, 1957) or until the Respondent in fact ceased functioning, whichever was later, they are not entitled to any monetary compensation for the period subsequent thereto. In reaching this conclusion, we are not unmindful of the hardships imposed upon these employees by the Respondent's decision to go out of business rather than deal with the Union. We do not condone such conduct, but at the same time, contrary to the views of Members Jenkins and Fanning, we do not feel that an employer, who perma- nently closes his plant and discontinues business operations, should be ordered to continue paying wages to its employees for an indefinite period of time, the duration of which is contingent upon the em- ployees obtaining substantially equivalent employment elsewhere. As the Respondent has permanently discontinued its business opera- tions, we shall not order immediate reinstatement for the discrimina- tees. Instead, we shall order the Respondent to create a preferential hiring list, notify its employees of said list, and, in the event it resumes operation of its business, to offer the discriminatees immediate rein- statement to -their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed. We also expressly reserve the right to modify the backpay and reinstatement provisions of this Decision and Order if made necessary by a change of conditions in the future, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent.13 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, Morris and David Yoseph, d/b/a M. Yoseph Bag Company, Bridgeton, New Jersey, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with District 65, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit consisting of all production and maintenance employees including truckdrivers, 22 Supra. 13 Bermuda Knitwear Corporation, 120 NLRB 332. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Employer's Bridgeton, New Jersey, plant, but excluding office clerical employees, guards, and supervisors as defined in the Act. (b) Threatening employees with loss of employment if they do not renounce the Union as their collective-bargaining representative. (c) Threatening to deprive employees of overtime and to close the plant. (d) Interrogating employees in a manner violating Section 8 (a) (1) of the Act. (e) Discouraging membership in District 65, Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organiza- tion of its employees, by discriminating in any manner in respect to their hire or tenure of employment, or any term or condition of employment. (f) Discouraging membership in the above-named labor organiza- tion or any other labor organization by discharging employees for their union activities. (g) 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 District 65, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organiza- tion, or bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) If and when the Respondent resumes its operations , bargain collectively, upon request, with District 65, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of all employees in the appropriate unit here found, and embody any understanding reached in a signed agreement. (b) Make whole those individuals found discriminated against for any loss they may have suffered by reason of the discrimination against them in the manner set forth in the section of the Decision herein entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary for determination of the amount of back- pay due under the terms of this Order. YOSEPH BAG COMPANY 221 (d) Create a preferential hiring list containing the names of all those individuals found herein entitled to reinstatement if and when the Respondent resumes its operations, such reinstatement rights aris- ing from the layoff of the individuals on July 19, 1957. The Respond- ent shall notify the Union and all said listed employees of the estab- lishment of said list and its content and shall offer all said individuals full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed if and when the Respondent resumes its operations, all as set forth in the section entitled "The Remedy." (e) Inasmuch as the posting of a notice as customarily required would result in a notice posted in a plant not operating and therefore be inadequate to inform affected parties, the Respondent shall mail an exact copy of the notice attached hereto marked "Appendix." 14 to the Union and to each of the employees. Copies of said notice to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by an authorized representative of the Respondent, be mailed immediately after receipt thereof. (f) Notify the Regional Director for the Fourth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the Board reserves to itself the right to modify the backpay and reinstatement provisions of this Order, if made necessary by circumstance not now apparent. MEMBERS JENKINS and FANNING, concurring in part and dissenting in part : We are in complete agreement with Chairman Leedom and Member Bean regarding the substantive violations described and found in the main opinion. We also concur in the Order adopted by our colleagues as far as it goes. However, we believe that an order much broader in scope is required to remedy the unlawful conduct engaged in by the Respondent. Our colleagues have noted, and we, too, are aware of, marked simi- larities between this case and Barbers Iron Foundry; 15 our findings of violations here are predicated upon much of the same reasoning as convinced us in that case. And, as in that case, we differ with our colleagues on the applicability of the usual backpay order; we did not see then, and we do not see now, any logical basis for the denial of backpay for a period of unemployment caused, beyond any doubt, by the Respondent's discrimination. As we noted in our separate opinion in Barbers, none of the cases cited to support the majority >A 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." 15 Supra. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rationale was apposite. We therefore adhere to our position and would direct backpay for the discriminatees. However, there is a salient distinction between the case at bar and Barbers which war- rants a different measure of relief. That distinction is the existence in Barbers of an intervening, nondiscriminatory cause for shutdown of the business; a factor which is not present herein. We concluded, as a matter of fact in Barbers that the death of Louis Barber, which occurred after the shutdown of the business, would in any event have caused the respondent to legally cease operations, since Louis Barber was the moving or most important partner essential to the continued operation of the plant. Here, however, not only is David Yoseph, the essential partner in the operation, still living and active in the same business in the same area, as an officer of Girard, but also there is no evidence of any circumstances subsequent to the violations found, which would either convince or suggest to us any nondiscriminatory -reason for Yoseph to go out of business. Consequently, we perceive no basis upon which to limit Respondent's backpay liability. Accordingly, we would expand the Order entered herein by award= ing backpay to the discriminatees for loss of earnings resulting from the discrimination against them'until such time as they obtained sub- stantially equivalent employment with other employers." The only possible reason we discern for our colleagues' reluctance to join us in this award is the statement that they do not feel, that the employer should be ordered to pay wages to-its employees for an in= definite period of time, contingent upon the employees' obtaining sub- stantially equivalent employment elsewhere. We do not consider this statement meaningful. As we have previously shown, in our dissent in Barbers Iron Foundry, 126 NLRB 30, the remedy we propose is identical in principle and effect to the Board's normal backpay order. It is true that when an employer is actively in business, he can always end the period of his liability by an offer of reinstatement. However, it is clear that in the conventional case of discriminatory discharge, no less than in this type of case, the period of backpay is necessarily indefinite. Thus, in a long series of cases the Board has made it clear that this period between discrimination and reinstate- ment is not one in which the employee may do nothing. The possi- bility of backpay is not an excuse for the employee to remove himself from the labor market. On the contrary, the amount of backpay ulti- mately is based on the requirement that the employee will attempt, in good faith and with all diligence, to seek other employment. And to the extent that this is not done, backpay is not awarded. Further in- vestigation and possibly formal backpay proceedings will be had to "Pursuant to Board practice, we would also reimburse the employees for expenses justifiably incurred in seeking such employment. YOSEPI-I BAG COMPANY 223 make certain that the employer will not be unjustly mulcted or the employee unjustly enriched. Precisely the same istandards will, in our view, be applicable in this type of case.l' We wish to stress that the absence of so clear an end point as reinstatement does not change either the nature of the remedy or what its amount will be. The duty of a discriminatee in either case is exactly the same, and would be so measured at the compliance stage of the proceeding. The remedy we propose is not intended to, and does not, require any more. Of course, as the Respondent is no longer in business, and hence in no position to reinstate its former employees, we concur with our colleagues that Respondent should not be ordered to reinstate its former employees. MEMBER RODGERS , dissenting : The Trial Examiner concluded that it had not been shown that the Respondent shut down its plant for other than valid business consid- erations. My colleagues, reversing this finding, have concluded that Respondent's real reason in shutting down its plant was to evade dealing with the Charging Union. I need not, and do not, decide whether the Trial Examiner or my colleagues are correct in the reason they attribute to the Respondent for shutting down its plant. The fact remains, and all agree, that the plant has been shut down and Respondent is no longer in business. For the reasons set forth in my dissenting opinion in the Barbers Iron Foundry case, 126 NLRB 30, "there is nothing contained in the Act which limits an employer's right to go out of business at such time and under such circumstances as he chooses, regardless of the reasons therefor." See also my dissent in Bonnie Lass Knitting Mills, Inc., 126 NLRB 1396. Consequently, regardless of the Respondent's motivation, I would not find that Respondent violated the Act by going out of business, and I would issue no remedial order with respect thereto. 17 Thus , in the case at bar, of course , the period between the issuance of the Trial Examiner's Intermediate Report finding no violations of the Act, and the issuance of this decision , would also be excluded from any backpay order. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, if and when we resume operations, upon request, bargain collectively with District 65, Retail, Wholesale and Der partment Store Union, AFL-CIO, as the exclusive representative 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of all the employees in the unit described below with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees, including truck- drivers in our Bridgeton, New Jersey, plant, but excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT threaten employees with loss of employment if they do not renounce the Union as their collective-bargaining representative. WE WILL NOT threaten to deprive employees of overtime and to close the plant. WE WILL NOT interrogate employees. WE WILL NOT discourage membership in District 65, Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization of our employees, by discriminating in any manner in respect to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT discourage membership in the above-named labor organization, or any other labor organization, by discharging employees for their union activities. WE WILL make whole those individuals found discriminated against for any loss they may have suffered by reason of the dis- crimination practiced against them by their discharge on July 19, 1957. WE WILL offer those individuals found discriminated against immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, if and when we resume operations. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form, join, or assist any 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 employment as authorized in Sec- tion 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above-named Union or any other labor organization, except to the extent that this right may be affected YOSEPH BAG COMPANY 225 by an agreement in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. MORRIS AND DAVID YOSEPH, D/B/A M. YOSEPH BAG COMPANY, Employer. Dated--- ------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE The question here presented is whether the dismissal of his employees by an employer when he disposed of his business and which resulted in a shutdown of operations was motivated by valid economic considerations or because he wanted to avoid bargaining with the Union and thus defeat the Union's organizational efforts. The complaint alleges (and Respondent denies ) that the Respondent, M. Yoseph Bag Company, engaged in the following unfair labor practices: ( 1) Restrained and coerced employees in violation of Section 8(a) (1). (2) Discriminatorily discharged 15 employees because of union activities in violation of Section 8 (a) (3). ( 3) Refused to bargain with the Union in violation of Section 8(a) (5). The proceeding was heard in Vineland, New Jersey, on December 17 and 18, 1957, pursuant to due notice and with all parties represented by counsel. Both parties filed briefs. FINDINGS OF FACT Respondent is a partnership who had been doing business as M. Yoseph Bag Company near Bridgeton, New Jersey. It was engaged in purchasing feed bags from various sources, cleaning and repairing them, and selling these reconditioned bags to various purchasers . During the year 1956 , Respondent shipped more than $50,000 worth of such bags to customers located outside the State of New Jersey. By reason of the foregoing facts, it is found that the Respondent partnership was engaged in commerce at all times within the meaning of the National Labor Rela- tions Act, as amended (61 Stat. 136), herein called the Act, and that it will further the purpose and policies of the Act to assert jurisdiction in this case. On or about June 23, 1957 , District 65, Retail, Wholesale and Department Store Union, AFL-CIO, the Charging Party, hereinafter called the Union , which is a labor organization within the meaning of Section 2(5) of the Act, began to organize the employees of M. Yoseph Bag Company , the Respondent in this proceeding. By July 11, 1957, 14 of the approximately 16 eligible workers employed by Respondent, signed cards authorizing the Union to represent them in collective- bargaining negotiations with the Company. On July 11, Saul Klein, organizer for the Charging Union ,' accompanied by Romadell Jones, his assistant, came to David Yoseph's home. He stated the Union represented a majority of the partnership's employees and requested that it be recognized as the collective-bargaining agent for the employees . Yoseph told Klein that the partnership 's financial position had been deteriorating since 1956, due to the inroads being made by the bulk feed system on the use of bags2 and I Klein's geographical jurisdiction includes within New Jersey , the following : Vineland- Bridgeton area in the southern portion of the State and as far north as Somerville on the west and Freehold on the east. Under the bulk feed system which eliminates the use of bags , bulk feed is loaded into a truck at the mill . The truck then parks near the farmer 's bulk bin setup which is a superstructure usually located on the top of the chicken coops ( the principal use of feed in this area is by poultry farmers). The feed is conveyed to the back of the truck by means of a drag belt in the bottom of the truck. At the end of the truck , the feed is 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since he took a pessimistic outlook of the bag industry's prospects with the advent of bulk feed that he was then in the process of deciding whether to continue his business.3 Yoseph requested additional time and told Klein he would advise him as to his decision in a week. On July 12, Yoseph testified that he telephoned the R & T Bag Company at Lake- wood, New Jersey (which is in the same business as Respondent), and whose employees are represented by the Charging Union and with whom R & T has a collective-bargaining contract.4 Yoseph spoke to a Mr. Rosenberg, one of the own- ers of the R & T Bag Company, who told Yoseph the terms of the contract he had with the Charging Union with respect to rates of pay and fringe benefits. Shortly after receiving this information, Yoseph testified that he decided he would be unable to make ends meet if he had to pay the "Lakewood" wage scale, whereupon he contacted the Girard Bag Company in Philadelphia, one of his competitors. He spoke to Mr. Wolf of the Girard Bag Company and inquired whether his company would be interested in buying the Respondent partnership. At a subsequent meeting in Philadelphia, a verbal understanding was arrived at on July 15, 1957, and a bill of sale executed on August 17, whereby Respondent sold its business to Girard for $45,000 in stock which represented a one-third interest in the Girard Company.5 David Yoseph is now vice president of the Girard Bag Company, Inc. Yoseph met with his employees at the plant around noon on July 19, and informed them he could not afford to pay the wage rates that the R & T Bag Company in Lakewood,6 which had a contract with the Charging Union, was paying its employees and still stay in business.? He explained that his competitors, who were principally located in the Philadelphia area (approximately 40 miles away), all had contracts with a union in Philadelphia (Local 57, Laborers Union, AFL-CIO), whose wage rates were "the equivalent" of what he was presently paying his employees. How- ever, explained Yoseph, he could not afford to remain in business if he were com- pelled to pay the same wage rate provided for in the contract that the Charging Union had with the R & T Bag Company in Lakewood. He, therefore, requested them to decide what they wanted to do and to let him know by 4 p.m. as he had an appointment with the Charging Union's representative at 4:30 p.m. At 4 p.m. his employees advised Yoseph that they desired the Charging Union to represent them. Shortly after Yoseph received the employees' decision, Romadell Jones, assistant organizer for the Union, came to the plant at about 4:30 p.m. on July 19, to ask Yoseph what he had decided to do. Yoseph's answer, which was stated in the presence of the assembled employees, was that he had decided to close down the discharged from the belt into a rotary feeder which conveys the feed to the bottom of the feeder. At the bottom of the feeder, the (feed is met and continuously conveyed by a stream of air from an air pump located near the front of the truck and blown through flexible lengths of hose into the farmer's bin where it is stored and used as needed. In addition to the convenience of this method, there is a saving of 15 cents on each 100 pounds of feed purchased, so that in about 6 months the average purchaser pays for the installation of the bulk feed system. I Klein testified that Yoseph said to him • "I don't know how long I'm going to stay in business, whether I am going to stay in business ; this was a decision I figured I might have to make, so I might as well make this decision now, seeing as this cropped up, instead of waiting maybe 6 months or a year, and make the decision at that time." Yoseph's version is as follows : "Well, I told Mr. Klein that I just received reports from my wife ['his bookkeeper] for the first 6 months of 1957, . . . and our gross had dropped and our labor costs had increased. . . . I told him that I didn't know whether I was going to remain in business or go out of business ; that I would have to think it over, but it looked like a pretty good bet to me that I would go out of business." * Lakewood, New Jersey, is not in the same competitive area where Respondent did its business. Yoseph's competitors were located in metropolitan Philadelphia which in- cludes the Vineland-Bridgeton area. G In addition to the tangible assets of Respondent (see Respondent's Exhibit No. 1), Girard took over all of Respondent's customers except two accounts. The partnership still owns the plant in Bridgeton and two baling presses. U Lakewood, which is 75 miles distant from Bridgeton, is not in Respondent's competi- tive area. 7 Yoseph estimated the Lakewood wage rates to be approximately 30 percent higher ( including fringe benefits) than the wage rates he was paying his employees. YOSEPH BAG COMPANY 227 plant.8 Klein was told the same thing when he telephoned Yoseph on July 19. This resulted in all of the employees being terminated on July 19, 1957. Discussion and Conclusions Before resolving whether Respondent committed unfair labor practices by shutting down its plant under the circumstances related above, it might be well to consider what the Board and courts have decided in analogous situations. Where the Board has held an employer to have violated the Act by shutting down his plant, it was found that it was caused by his union antipathy and that his purpose was to abort a union's organizational campaign, or to exclude an incumbent statutory representa- tive, or otherwise to evade the duty to bargain collectively.9 However, it is no violation of the Act where the employer locates his plant elsewhere, or ceases oper- ating his plant, or part of it, for reasons having no connection whatsoever to either concerted or union activities. Thus, where the evidence does not allow a finding that a discontinuance, reduction, suspension of operations, or a change in the methods of operation was motivated by purposes condemned by the Act, but was due to a decline in business, loss of customers, or some similar reasons involving economic considerations, with the resultant discharge of employees, it was held that no unfair labor practices could be predicated upon such action.10 It would appear, therefore, in this type of situation, that the test is whether the employer closed his plant for valid economic considerations or to get rid of his employees for union activity or to break an existing union or impede the organization of a new union. In applying the principles enunciated above to the facts in this case, it is manifest that the key to resolving the issue as to whether Respondent closed its plant for valid business reasons or reason proscribed by the Act is dependent upon a determi- nation of what was its motive. Motivation is a subjective matter, which if found, must be found from objective circumstances established by the entire record after duly considering all countervailing testimony. What then are the objective circum- stances revealed by this record? One objective circumstance is that beginning in 1956 with the advent of the bulk feed system, substantial inroads had been made in the bag business with a resultant decrease in income. Another objective circum- stance is that the gross sales of the partnership for the first 6 months of 1956 were $207,173.46 and for the first 6 months of 1957, $187,008.84. An additional ob- jective circumstance is that labor costs for the same periods of time increased from $20,917.86 to $23,747.48.11 Moreover, Yoseph testified that another factor in his decision to cease operating the Bridgeton plant was that the combined types of 8 Jones' testimony is as follows : "He told me he was going to close the place down. He said he couldn't afford to pay the wages, that this union [Charging Union] was asking the same that we had at the R. & T. Bag Company in Lakewood." E.g., N.L.R.B. v. Sam Wallick, et al., d/b/a Wallick and Schwalm Company, et al., 198 F. 2d 477 (C.A. 3) ; N.L.R.B. v. Somerset Classics, Inc., et al., 193 F. 2d 613 (C.A. 2), cert. denied 344 U.S. 816; N.LR.B. v. E. C. Brown Co., et al., 184 F. 2d 829 (C.A. 2) ; N.L.R.B. v. Piedmont Cotton Mills, 179 F. 2d 345 (C.A. 5), enfg. as modified 79 NLRB 1218; N.L.R.B. v. Cowell Portland Cement Company, 148 F. 2d 237, 243 (C.A. 9) ; N.L.R.B. v. Cape County Milling Company, 140 F. 2d 543 (C.A. 8) ; N.L.R B. v. National Motor Bearing Company, 105 F. 2d 652, 657-658 (C.A. 9) ; N.L.R.B. v. Hopwood Re- tinning Co., Inc., 98 F. 2d 97, 100 (C.A. 2) ; Industrial Fabricating, Inc, et al., 119 NLRB 162; Tennessee-Carolina Transportation, Inc., 108 NLRB 1369; L. W. Scott, d/b/a Scott Paper Boa Company, 81 NLRB 535; Howard Rome, an individual, d/b/a Rome Products Company, et al., 77 NLRB 1217, 1219-1220; Max M. Joffee, at al., d/b/a M. M. Joffee Company, et al., 74 NLRB 1568; Pepsi-Cola Bottling Company of Mont- gomery, 72 NLRB 601, 602. ioE.g., Trim fit of California, Inc., 101 NLRB 706 (alterations of machines) ; Walter Holm i Company, 87 NLRB 1169 (financial loss from particular operation) ; Worthington Creamery and Produce Company, 52 NLRB 121 (decline in orders) ; Julius Breckwoldt t Son, Inc, 9 NLRB 94 (where protected strike) ; C. C. Bennett, d/b/a Novelty Peanut Company, 69 NLRB 1031; Diaper Jean Manufacturing Company, 109 NLRB 1045 (3-day shutdown due to lack of material) ; Bickford Shoes, Inc., 109 NLRB 1346, 1347 (activity in a portion of plant made it uneconomical to continue other operations, a shutdown of remaining operations was not an unfair labor practice). See also Ballston-Stillwater Knitting Co., Inc. v. N.L.R.B., 98 F. 2d 758 (C.A. 2) ; Acme Air Appliance Company, Inc., 10 NLRB 1385, 1402; Trenton Garment Company, 4 NLRB 1186; Lengel-Pencil Company, 8 NLRB 988; Brown-McLaren Manufacturing Company, et al., 34 NLRB 984. n Yoseph was apprised of these figures by his wife, the bookkeeper for the partnership, shortly after July 4, 1957. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations of the partnership and Girard Bag Company complemented one another, resulting in a more efficient and economical operation after the merger.la William J. Fox, manager of the Farmers Cooperative Association of Vineland, Inc., a dis- interested witness called by the General Counsel, testified that his mill purchased all its bags from the Respondent and that for the 6-month period before August 1956, the mill used approximately 13,500 bags each week. After this mill converted to the bulk feed system in July 1957, Fox testified they purchased only 10,400 bags from Respondent, a decrease of 3,100 bags a week. Fox's testimony also revealed that "there has been a continual decrease in bags since that time." Although a countervailing circumstance in this case is the fact that the sale of Respondent's business occurred at approximately the same time the Union asked for recognition, nevertheless, Yoseph's testimony that due to the bleak prospects which the future held for the bag business, he had been negotiating with Girard for the sale of the partnership's business "any number of times, over a period of a couple of years," stands not only uncontradicted on the record but partially corroborated. Indeed, there is support for a finding that the employees' terminations would have occurred in the not-too-distant future even absent the intervention of the Union.'3 Moreover, there is nothing in the record which reflects upon Respondent's good faith: it did not mislead the employees or the union representatives as to its future plans, nor is there present the element of a plan to escape the union by subterfuge in its decision to close its Bridgeton plant.14 Furthermore, Respondent's bargaining obligation with respect to the Union, if any there was, terminated when it decided to sell out to Girard and it notified the employees and their union representatives that it was discontinuing its business in Bridgeton.15 Nor is there any probative evidence in the record casting any doubt upon the bona fides of the contractural agreement whereby the partnership disposed of its business to the Girard Bag Com- pany. Finally, it is concluded there is not substantial evidence that the Respondent's decision to close the plant with its resultant discharge of the employees was in derogation of its statutory responsibilities or that the evidence proves by a pre- ponderance of the probative evidence that union animus rather than valid economic considerations was Respondent's purpose in selling its business . The rights con- ferred upon Respondent's employees by the statute rise no higher than Respondent's fundamental right of economic self-preservation. It is concluded, therefore, that Respondent did not violate Section 8(a)(3) or (5) of the Act because it has not been shown that its actions were motivated by illegal antiunion reasons rather than valid business considerations based upon economic survival.16 The General Counsel raised some interesting theories in his brief. However, he failed to elicit at the hearing, or to introduce into the record, tangible evidence to buttress these theories that Respondent was illegally motivated. The burden of proving unlawful motivation rests with the General Counsel and this determination must be based on "substantial" evidence on the record considered as a whole and not on surmise or speculation.17 It is not the burden of the Respondent to show the absence of illegal motivation but that of the General Counsel to show its pres- ence.1s Nor is this burden satisfied by evidence which gives equal support to incon- "When Respondent partnership sold its assets and transferred its customers to Girard, Girard purchased a building large enough to accommodate the combined operation and additional workers were employed. 13 Fox's testimony, supra, corroborates the decline in sales, and Klein, the Union's organizer, estimated that of those mills which, in recent years, had converted to delivering feed in bulk-that 65 to 75 percent of their feed "goes out in bulk " 14The Girard Bag Company has had a collective-bargaining agreement for the past 10 years with Laborers Local No. 57, AFL-CIO, covering its employees. 15,Cf. California Footwear Company. 114 NLRB 765. 10 In Mount Hope Finishing Company v. N.L.R.B., 211 F. 2d 365 (C.A. 4), the court absolved an employer of alleged unfair labor practices growing out of the removal of a textile plant from Massachusetts to North Carolina. The court at page 372 said : "The glaring and undeniable fact which dominates all others in the record is that long before the union made its appearance the business was deteriorating and operating at a loss and that the managers were seeking a suitable location in the South. . . . The Union was not the cause that closed the plant in Massachusetts " See also Brown Truck and Trailer Manufacturing Company, Inc., et at, 106 NLRB 999. 17 N L.R B. v. Consolidated Edison Co. of New York, 305 U.S. 197, 229; N.L.R.B. v. Columbian Enamelinq & Stamping Co., Inc, 306 US 292, 299; N L R.B. v. Stafford Operating Company, 206 F. 2d 19, 22-23 (CA. 8) ; N.L.R B. v. Montgomery Ward d Co., 157 P. 2d 486, 491 (C.A. 8). >e Brady Aviation Corporation v. N.L.R.B, 224 F. 2d 23 (C A. 5). YOSEPH BAG COMPANY 229' sistent inferences.19 Under these circumstances, it is found that the General Counsel has failed to sustain the requisite burden of proof. With respect to the allegations of the complaint that Respondent violated Section 8(a) (1), the record reveals that Vernal Soltau, an employee, testified that on July 12, 1957, while he was at the plant, David Yoseph asked him why he joined the Union. Yoseph said, according to Soltau: "It's going to be hard for you be- cause [he was] going to cut us down to forty hours a week." Randolph Allen, an employee, testified that on July 15, Yoseph said to him: "I know that you joined the Union, but with or without the Union, would you still continue buying bags for me? I am going to close the plant down and if I can have the two drivers including myself, and the other driver, I would have the Union licked." These incidents did not reasonably tend to restrain or interfere with said employees in the exercise of their rights under the Act.20 The General Counsel also contends that the Respondent threatened to close the plant unless the employees selected the "Philadelphia Union" as their bargaining representative. The Trial Examiner's interpretation of the record does not, how- ever, confirm this contention. Due to language difficulties, the employees, most of whom were natives of the West Indies, were not articulate and found it onerous to express themselves when they testified. As a consequence, their testimony, much of which was in reply to leading questions, might appear on the cold record to. indicate that Yoseph threatened to close the plant unless they selected the Philadel- phia Union in preference to the Charging Union. Yoseph's denial that he so threatened them is credited because the Trial Examiner is convinced Yoseph merely explained to the assembled employees, on July 19, that since the wage rates provided for in the collective-bargaining agreement which his competitors had with the Philadelphia union were "the equivalent" of what he was paying them, he could afford to pay that wage rate and still remain in business. However, explained Yoseph to the employees, he could not afford to remain in business if he were compelled to pay the same wage rate provided for in the contract that the Charging Union had with the R & T Bag Company at Lakewood because it was approximately 30 percent more than he was presently paying his employees. Based upon the isolated incidents described above which the General Counsel adduced with respect to his allegations of violations of Section 8(a)( I), it is found that there is insufficient evidence upon which to predicate a finding that Respondent restrained, interfered, or coerced the employees within the meaning of Section 8(a)(1) of the Act21 Accordingly, it is recommended that the complaint against the Respondent be dismissed in its entirety 22 11 Eastern Coal Corporation v. N.L R, B., 176 F. 2d 131, 135 (C A 4) Cf. N L R.B. v. The Citizen-News Company, 134 F 2d 970, 974 (C A. 9) ; N L.R B. v. West Point Mfg. Co., 245 F. 2d 783, 786 (C.A. 5) ° Blue Flash Express, Inc., 109 NLRB 591, 593 21 See Howard Aero, Inc., 119 NLRB 1531 ; General Electric Company, Apparatus Service Shop, 119 NLRB 1821 ; Mid-South Manufacturing Company, Inc, 120 NLRB 230'. No evidence was produced with respect to the allegation in the complaint that Respondent refused "to give vacation pay because the employees joined District 65." This allega- tion is, therefore, dismissed. 22 N L R B. v. Adkins Transfer Company, Inc, 226 F 2d 324 (C A. 6). See N.L.R.B. v. New Madrid Manufacturing Company et al., d/b/a Jones Manufacturing Company, 215 F. 2d 908, 914 (C.A 8). Industrial Fabricating, Inc, et al., supra, and The R. C. Mahon Company, 118 NLRB 1537, which are cited by the General Counsel in his brief, are inapposite. In Industrial Fabricating, the dischargees were represented by a union which the Board had certified as the employees' statutory representative and which the company had dealt with for over 6 years. Moreover, unlike this case, the respondent company had committed unfair labor practices prior to discharging the employees and had "surrepti- tiously continue[d] in business at a different location and under an assumed name," from which the Board concluded that the plant's shutdown was motivated by union 'hostility and not economic considerations In Mahon Company, although the guard force was not represented by a certified union , there was a certified union in the plant which repre- sented the production employees. Moreover, when the guards attempted to organize a union, the company engaged in various illegal activities which showed union animus and discriminatory motivation in abolishing its guard force and contracting out its plant protection work. Furthermore, it was shown it was not as economically advantageous for the company to contract for its guard protection services with an outside firm and that its purpose in doing so was motivated by the advent of the union and to avoid dealing with the union. 577684-61-vol 128-16