Tak Trak, Inc.

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I will further recommend that the Respondent , upon reasonable request, make available to the Board and its agents, all payroll and other records pertinent to an analysis of the amount due as backpay. Since I have found that the Respondent , by various acts, interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in the Act, and, particularly because the discriminatory discharge found herein goes "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4), and indicates a purpose to defeat the self-organization of his employees, I am con- vinced that the unfair labor practices committed are related to other unfair labor practices proscribed and that the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, I will recommend that the Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed by the Act. May Department Stores d/b/a Famous-Barr Stores v. N.L.R.B., 326 U.S. 376, 386-392. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All truckdrivers at the Respondent's terminal in Fort Dodge, Iowa, excluding office clerical employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since January 10, 1959, the aforesaid union has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing, on and since January 21, 1959, to bargain collectively in good faith with the Union as the exclusive representative of his employees in the aforesaid appropriate unit, and by unilaterally granting to his employees wage increases and other benefits, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Carl Reisner and by discriminatorily withholding work from Earl Hall, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, 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 com- merce within the meaning of Section 2(6) and (7) of the Act. 8. The General Counsel has not proved by a preponderance of the evidence that the Respondent: (1) refused to execute a contract which had been agreed to in negotiations with the Union; or (2) interfered with, restrained, or coerced its em- ployees, in the exercise of the rights guaranteed by the Act, except by the acts and conduct found herein to have been violative. [Recommendations omitted from publication.] Tak Trak, Inc., and District Council of Painters #36, Brother- hood of Painters, AFL-CIO. Case No. 921-CA-3648. August 24,1960 DECISION AND ORDER On April 6, 1960, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the 128 NLRB No. 103. TAK TRAK, INC. 877 Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, exceptions, and briefs, and hereby adopts the findings,3 conclusions, and recom- mendations of the Trial Examiner, with the following clarifications : 1. The Trial Examiner found, and we agree, that the Respondent discharged its entire crew of production employees because of their union activities. In reaching this conclusion, we rely inter alia on the following : (1) the fact that the discharges occurred less than 3 days after the first employee meeting held on July 14, 1959, to discuss the cutback in overtime and advisability of obtaining union representa- tion; (2) the Respondent's knowledge of the meeting as shown by the fact that Foreman Stillwell and Superintendent Ryder observed it, learned what its purpose was from employee Moore, and reported the matter to Plant Manager Kraut; 3 (3) the statements made by Fore- man Stillwell to Gastelum, Soto, and Waggoner attributing the dis- charges to union activities; and (4) the fact that the record fails to support the Respondent's contention that the employees were dis- charged because of the decrease in quality and quantity of their pro- duction during the period July 13, 14, and 15 a Under all the circumstances, therefore, we find that the Respondent's employees were discriminatorily discharged in violation of Section 8(a) (3) and (1) of the Act 5 2. We agree with the Trial Examiner that the coercive remark made by Foreman Stillwell to employee Soto on July 16 to the effect that I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Leedom and Members Bean and Fanning]. 2 Respondent contends that the Trial Examiner's credibility findings are erroneous. However, as the clear preponderance of all the relevant evidence does not demonstrate the Trial Examiner's credibility findings to be incorrect we adopt them . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (CA. 3). 3In view of our finding as to knowledge, we do not adopt the Trial Examiner's ex- pression of doubt as to how the Respondent learned of its employees ' union activities. We specifically do not rely on the Trial Examiner's conjecture that employee Bill Ryder may have informed his father, Superintendent Joseph Ryder, as there is no evidence to that effect and Superintendent Ryder denied it. 4In addition to the reasons given by the Trial Examiner for rejecting the Respondent's defense, we also rely on the fact that no evidence was presented by the Respondent purporting to show that the work of any of the dischargees , other than tacking and nailup machine operators and the packer, was unsatisfactory ; and the further fact that one of the discharged employees was absent from work during the entire period of July 13 to 15. We do not, however, rely on area wage figures referred to in the Inter- mediate Report which were not available to the Respondent at the time of the discharges or introduced into evidence at the hearing 5 In view of the nature of the unfair labor practices committed by the Respondent, which are of a nature which go to the very heart of the Act, we shall adopt the Trial Examiner's recommendation that a broad cease and desist order be issued in this case. N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some employees who had been stirring up union trouble would be discharged constituted an independent violation of Section 8(a) (1). 3. We also find, in agreement with the Trial Examiner and for the reasons given by him, that the Respondent, in violation of Section 8(a) (5) and (1), unlawfully refused to bargain with the Union, the majority representative of the employees in the appropriate unit, by refusing to meet with Union Representative Buckley, as requested, on and after July 17, 1960. 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 Tak Trak, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in District Council of Painters #36, Brotherhood of Painters, AFL-CIO, or any other labor organization, by discriminating against its employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening to discharge employees for engaging in union activities. (c) Refusing to bargain collectively with District Council of Painters #36, Brotherhood of Painters, AFL-CIO, as the exclusive representative of all its employees in the following appropriate unit : All production employees, apprentices, helpers, and assistants, ex- cluding office clerical employees and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organizations, to bargain collectively through repre- sentatives 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 re- quiring membership in a labor organization as a condition of em- ployment 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) Offer the following employees immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dis- missing, if necessary, any employees hired since July 16, 1959, and TAK TRAK, INC. 879 make them whole in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy" : Arthur L. Moore Raymond L. Brown Irwin Wilson Bobby L. Foster John W. Wilber Johnnie Walker James B. Trotter S. D. Moncreif Robert E. Waggoner Willie Roland Pugh Domingo Mata Cecil Jeffries Clarence Wilson David E. Brown Norman A. Rodriguez Barnell Sims David J. Soto Armando Acosta Arthur O'Neil Craig L. S. Campbell Luis Montes Philip Ghoston Claude R. Moffett (b) Upon request, bargain collectively with District Council of Painters #36, Brotherhood of Painters, AFL-CIO, as the exclusive representative of the employees in the above-described appropriate unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents 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 due under the terms of this Order. (d) Post at its plant in Los Angeles, California, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director of the Twenty-first Region, shall, after being duly signed by the Respondent's authorized representa- tive, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 0 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in District Council of Painters #36, Brotherhood of Painters, AFL-CIO, or any other labor organization by discriminating with regard to the hire or tenure of employment or any term or condition of employment of our employees. WE WILL NOT threaten to discharge employees for engaging in union activities. WE WILL NOT refuse to bargain collectively with District Coun- cil of Painters #36, Brotherhood of Painters, AFL-CIO, as the exclusive representative of all employees in the following appro- priate unit : All production employees, apprentices, helpers, and assist- ants, excluding office clerical employees and supervisors as defined in the Act. 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 labor organizations, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and 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. WE WILL upon request bargain collectively with District Coun- cil of Painters #36, Brotherhood of Painters, AFL-CIO, as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL offer the following employees immediate and full reinstatement to their former or substantially equivalent posi- tions and make them whole for any loss of pay suffered as a result of our discrimination against them : Arthur L. Moore Bobby L. Foster James B. Trotter Willie Roland Pugh Clarence Wilson Barnell Sims Arthur O'Neil Craig Philip Ghoston Raymond L. Brown John W. Wilber S. D. Moncreif Domingo Mata David E. Brown David J. Soto L. S. Campbell Claude R. Moffett TAK TRAK, INC. 881 Irwin Wilson Norman A. Rodriguez Johnnie Walker Armando Acosta Robert E. Waggonner Luis Montes Cecil Jeffries All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation 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. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment, against any employee because of membership in, or activity on behalf of, any labor organization. TAX TRAK, INC., Employer. Dated------ ---------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was tried before me in Los Angeles, California, on November 12, 13, and 16, 1959. At issue is whether Tak Trak, Inc., herein the Respondent, un- lawfully discharged 23 named employees and unlawfully refused to bargain with District Council of Painters #36, Brotherhood of Painters, AFL-CIO, herein the Union. The complaint of the General Counsel alleges that the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3) and (5) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein the Act. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation with its principal place of business in Los Angeles, California, where it is engaged in the manufacture and sale of tackless carpet stripping and related products. During the 12-month period preced- ing the issuance of the complaint the Respondent shipped products from its Los Angeles plant valued in excess of $50,000 to points outside the State of California. I find that the Respondent's operations are in and affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES The volume of Respondent's production is controlled by the output of six large tacking machines. Time studies have established that it is possible for a machine operator to produce, without extraordinary effort, about 25 cartons of carpet stripping in a shift. A compilation by the Respondent offered and received in evidence shows that for the period of February through July 10, 1959, leaving out of account the week ending March 26 when for some reason production was ex- 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tremely low, an average of 91 cartons was produced for every 100 man-hours. This includes the labor necessary to pack, ship, inspect, and repair. At sometime in June 1959, the Respondent, through its factory manager Joseph Kraut, called the employees together and told them that their work had in some respects been unsatisfactory; that a recent shipment to a valued customer had been of such low quality as to result in its rejection. On July 6, 1959, Kraut notified the employees that at the end of that month a new pay schedule providing automatic increases would be put into effect. Either on that day or on Lie following Monday July 13, the employees were told that their workweek was being cut from 421/2 to 411/2 hours thus eliminating 1 hour of over- time. On July 14 most of the employees on the day shift and a number of those on the night shift gathered at a point near a plant entrance and discussed the loss of overtime. One of them, Arthur Moore, was designated to investigate the pos- sibility of securing a union to represent them in dealings with the Respondent. Shortly after the end of the day shift on July 16, 8 or 10 employees met with Kenneth Buckley, an organizer for the Union, near the plant. All of them signed cards in the conventional form designating the Union to represent them. During that evening, at the close of the night shift about 1:30 in the morning of July 17 and finally, from employees gathered before the plant shortly before 8 in the morn- ing of July 17, Moore obtained additional signers. At about 8 a.m. on July 17, 20 of the 29 employees in the plant had signed union designation cards. Jerome Kraut, Respondent's general manager, testified that during June and July the machine operators appeared not to be cooperating with supervision. One man- ifestation of this, according to Kraut, was the failure of the operators to make simple adjustments to their machines and to move funnels slightly out of line so as to cause a malfunction in operation. Foreman Renda Stillwell and Superintendent Joseph Ryder testified to the same effect and further that the two of them for this period were called upon to make machine adjustments that the operators in prior months had quickly and easily made themselves. Along with this failure to cooperate, according to Kraut, occurred a sharp increase in rejected material with the result that not only was production lessened but also that which was produced was often of inferior quality. In the hope, Kraut testified, that a wage increase would change the attitude of the employees and bring an end to low production and poor quality, he announced on July 6 that some improvement in wages would become effective on July 31. After an absence of several days, Kraut returned to the plant in the morning of July 16 to learn from Stillwell and Ryder, he testified, that production had not improved and that there seemed to be a purpose on the part of the employees deliberately to slow down the tempo of their work. Still according to Kraut, he brought this matter to the attention of Morris A. Linsky, Respondent's president. That afternoon accepting Kraut's appraisal of the situation, Linsky, he testified, directed that all employees immediately be discharged and that a new crew be hired. Effectuating this direction, Kraut testified , he told Stillwell of the decision and during that evening prepared final paychecks for all employees. Stillwell testified that in the early evening of July 16 he told the night foreman, Frank Gastelum, that the night shift would be terminated at the end of its day and that Gastelum should report to the plant at 8 in the morning of July 17. The day shift reported for work at 8 a.m. on July 17 and found the plant to be closed. After a delay of about 30 to 45 minutes all were given final checks and were told that they were discharged for lack of production. Arthur Moore who began working for Respondent in October 1957 and who on the date of his discharge was receiving the highest hourly rate paid, testified to the dissatisfaction of the men occasioned by the cut in overtime. During the lunch hour on July 15, according to Moore, he told a number of employees that those who were interested in the Union could meet with a representative of that organiza- tion immediately after work on July 16. Moore, who the evidence establishes was regarded by Respondent's supervisors as occupying a position of leadership among the employees, testified that at quitting time on July 16 he was called to Kraut's office. Kraut asked Moore, according to the latter's undenied and credited testi- mony, if there was anything wrong in the plant; Moore answered that the only dissatisfaction concerned the cut in overtime. Kraut then asked if Moore was sure there was nothing else and when Moore said there was not, remarked enigmatically "I don't know where you stand." Frank Gastelum for the last 6 months of his 21/2 years with the Respondent, was night foreman. During the week ending July 17, according to Gastelum, he heard some of the employees say that a union might benefit them. Early in that week, still according to Gastelum's testimony, Stillwell remarked that it looked as if the men were trying to bring in a union. On this occasion Stillwell commented that a union, TAB TRAK, INC. 883 would not adversely affect him or Gastelum and that the men might be better off with one. Gastelum asked, he testified, if Kraut was aware of this development. Stillwell answered that he thought not and observed that if Kraut did learn of it something would happen. Gastelum testified that not until about 10 p.m in the evening of July 16 did he learn from Stillwell of a proposal to lay off anyone. Then, he testified, Stillwell told him to lay off three men who were related in some fashion to men working on the day shift and to tell those laid off that the action was attributable to a cutback in production. Following Stillwell's instruction, according to Gastelum, he told others in the crew to report for work, as usual. Gastelum testified that in the late afternoon of July 17, he came to the plant to find that no crew was working and to learn from Stillwell that all empolyees had been laid off. Gastelum then told arriving members of the night shift that they too were laid off.' At sometime on July 17, accoiding to Gastelum, Kraut asked hum if he had attended any union meetings. On July 17 and for the early days of the following week the supervisors, including Gastelum, worked in the plant. Until about July 22 they, with the Superintendent's son, Bill Ryder, constituted the work force. Some of the discharged crew members were of Spanish ancestry; others, of the Negro race. Seemingly in the belief that only the Negroes were active in union organization and that the others had held themselves aloof from it, Gastelum during the week of July 20 asked Stillwell if any of the latter group would be rehired. Stillwell answered, "No," tadding that it had been discovered that they too were union supporters. Gastelum was discharged in mid-August because he permitted employees on his shift to work overtime without prior authorization. Gastelum's mother, apparently convinced that the discharge was unfair, called upon Stillwell with Gastelum and attempted unsuccessfully to arrange for Gastelum's reemployment. The point of this last bit of testimony is to establish that Gastelum was resentful over the fact of his discharge and to suggest that his testimony to the extent that it is unfavorable to the Respondent be examined with care. Norman Rodriguez testified that about 3 days before the layoff while at lunch with some employees including Bill Ryder, the son of the superintendent, he was asked if he thought the Union would come into the plant and answered that he did not know. Clarence Nelson who worked on the night shift under Gastelum testified that during the evening of July 16, Gastelum told him that some men were to be laid off and that the rest of them should return to work on Monday July 20. David Soto testified that in the evening of July 16 at about 11 p.m. Stillwell called him aside from his work place and asked him if he liked his job. When Soto said that he did Stillwell commented that he liked the way Soto worked and said that he wanted to keep Soto in Respondent's employ. Stillwell then asked if he had heard anything about the Union. Soto conceded that there had been some talk about it. Stillwell said that a few employees had been stirring up trouble and that they would be discharged. On the afternoon of July 17, according to Soto, he came to the plant prepared to go to work, Stillwell handed him his check saying, "As soon as everything settles down I will call you back." About 2 weeks later, still according to Soto, he went to the plant and asked Stillwell if he was to be recalled, Stillwell answered that he did not know, saying that the decision was up to Kraut. Stillwell asked if Soto had anything to do with the Union; Soto answered that he had not. Cecil Jeffries who was hired on July 8 testified that about 11 p.m. on July 16, Stillwell asked him how he was getting along and commented that he was doing a good job. During that evening, according to Jeffries , Gastelum said that the night shift would not operate on July 17 and that Jeffries should report for work on Monday, July 20. When Jeffries returned to the plant on the 17th for his paycheck he was told that the plant was closed. David Brown who had been working for the Respondent for less than a month testified that on the night of July 16 Gastelum told him that some men were being laid off; that Brown should return to work on July 20; and that nothing should be said about this matter to other employees on the shift . Brown returned to the plant on July 20 and was told that the plant was closed. Robert E. Waggoner who was hired on April 15, 1959, testified that he worked for a time as a packer but did not perform satisfactorily with the result that he 1 It is apparent that Gastelum is confused in his chronology. It is reasonably certain that he worked a day shift on July 17 and that he told some on the night shift early that morning not to report for work until July 20. 1 consider this to reflect no more than an imperfect recollection as to the sequence of events and not to impair his credibility generally. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was transferred to a printing operation. He heard no complaints, he testified, con- cerning his work in printing. Waggoner testified that when he received his pay- check from Stillwell on the morning of July 17, Stillwell told him to come back in about an hour. Waggoner did so and Stillwell put him to work in packing. In the guilty belief that he was misleading the Respondent, he told Stillwell after working a few minutes, that he, too, had signed a union card. Stillwell then said that Waggoner was laid off. Waggoner then left the plant. Each of the employee witnesses testified that he had received no individual criti- cism of his work performance by any of Respondent's supervisors. Although Super- intendent Ryder testified that he had reprimanded some machine operators for failure to make adjustments on their machines, he did not specify in his testimony to whom he spoke in this matter. Kenneth Buckley, the Union's organizer, testified that when he learned of the discharges in the morning of July 17, he telephoned Kraut saying that the Union represented the employees and asking for an appointment. Kraut deferred giving Buckley an immediate answer but later in the day told him to speak to Mrs. Edwin Selvin, Respondent's advisor in such matters. Buckley reached Selvin by phone, told her that the Union represented the employees, and asked for an appointment to discuss the discharges. Selvin answered that the Respondent had no employees and that a meeting would be futile. Kraut testified that he was dismayed to learn in the morning of July 16 that pro- duction for the first 3 days of the week had shown a further and continuing decline. The Respondent's own figures refute this conclusion. It has been noted that the average production of cartons per 100 man-hours over a substantial period of time has averaged 91. For the Monday, Tuesday, and Wednesday of the week beginning July 13 using the same factors, production was 105. Rather than evidencing a slowdown, these figures show a rather substantial improvement over the production rates for the weeks immediately preceding. It thus seems highly improbable that the Respondent's decision to terminate its entire force on July 16 derived from any consideration related to production. Some of the employees, notably Moore, had been working for more than a year and testified that they never as individuals had been subjected to any sort of criticism connected with their work. Others had been employed for such short periods as to afford little opportunity for the Re- spondent to come to a conclusion concerning their potential value. This is not to say that the Respondent found its work force to be wholly satisfactory. Its wage scale is not one which would attract the more efficient and potentially skilled workers to its employ. In July 1959, Respondent's hourly rates in the plant ranged from a low of $1.35 to a high of $1 90. Only Moore received the higher amount. The average hourly wage was $1.55. The Bureau of Labor Statistics reports that in November 1959 unskilled laborers in manufacturing and nonmanufacturing in- dustries employed in counties adjacent to Los Angeles received an average hourly wage of $1.96. In January 1960, acocrding to the Research Division of the Cali- forma Department of Industrial Relations, the average hourly rate paid to employees in manufacturing industries in Los Angeles was $2.56 2 So the Respondent had to man its plant from among those who, perhaps for a variety of reasons, could not obtain employment at the higher rates. By reason of its wage scale the Respondent obviously could not be as selective in hiring as it may have wished to be. But the Respondent hastily stripped its plant of workers and willingly faced the problem of securing replacements in a labor market where its competitive position was not strong. There must have been a compelling reason for this. As has been seen, the production rate in the 3 days preceding July 16 showed marked improvement in comparison with the average for the earlier months of the year. Kraut and Stillwell, however, asserted that the quality of the work performed was a factor leading to the discharges. Moore testified that there was an unusual amount of rejected material in July but attributed this to the use of plywood stock considerably more brittle than that ordinarily supplied. I regard Moore as the more credible witness and, finding that the Respondent's witnesses did not testify -truthfully in regard to production, I am skeptical of their testimony as to quality. In sum, I do not believe that the Respondent acted to discharge all the employees -for the reasons recited in the testimony of Linsky, Kraut, Ryder, or Stillwell. Stillwell denied that he spoke to any employee concerning the Union and denied that the subject of unions came up between him and Gastelum. Stillwell denied that he came to the plant or was in the plant in the evening of July 16 after 8 p.m. Witnesses for the General Counsel, Soto, Jeffries, and Gastelum, in their testimony placed him there at 10 and 11 p in. Soto testified that Stillwell said that evening, after asking some questions about the Union, that those responsible for the "trouble" 2 This is an average including skilled workers. TAK TRAK, INC. 885 would be discharged. As to this testimony, Stillwell said only that he did not recall it. Gastelum testified that Stillwell said, in effect, that none of the discharged employees would be rehired because all were suspected of involvement in the union campaign. Other than by a denial that he ever spoke to Gastelum on the subject of the Union, this testimony stands unchallenged by Stillwell. Waggoner testified that he was discharged on July 17 when he confessed to Stillwell that he had signed a union card. Stillwell was not question about this incident and Waggoner's testi- mony stands without substantial denial. Considering the evidence as a whole, I have no doubt but that the employees were discharged because the Respondent feared they had joined or were about to join the Union and that such a development was considered to be a threat to the economy of the business. I do not credit the testimony of Linsky, Kraut, Stillwell, and Ryder that they knew nothing of the union campaign until Buckley phoned in the morning of July 17. How the Respondent discovered that its employees were interested in the Union I do not know. It is possible that merely a shrewd guess is involved or that Stillwell overheard some discussion concerning the Union as Gastelum did or that Bill Ryder, out of loyalty to his father, told the Superintendent what was going on. In any event, I am convinced that at sometime on July 16 the Respondent decided that its employees either had joined or were about to join the Union and that the closing of the plant followed: I find that the closing of the plant on July 17, 1959, was decided upon as a device to avoid dealing with a union and that the loss of employment which then befell the 23 individuals named in the complaint is attributable to this purpose. By the closing of the plant and the discharge of the 23 employees the Respondent dis- couraged membership in and activity in behalf of the Union and thereby engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. The complaint alleges that all production employees, apprentices, helpers, and assistants exclusive of clerical, office employees and supervisors constitute a unit appropriate for purposes of collective bargaining. This is a traditional unit. There is nothing in this record to suggest its impropriety and I find that the unit described is one appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. As has been said on the morning of July 17, a majority of the employees had designated the Union as their representative. The unlawful discharges do not in any respect relieve the Respondent of its obligation to recognize and to bargain with the majority representative of its employees. The flat rejection by Selvin of the Union's request for a meeting coupled with the discriminatory discharges establish beyond a doubt the Respondent's determination not to accord to the Union the status which the employees had given it. In these circumstances I find that the Respondent unlawfully on July 17 refused to bargain with the Union and that by this refusal the Respondent engaged in an unfair labor practice within the meaning of Section 8(a) (5) of the Act. By telling Soto that union advocates would be discharged, by the discharges, and by the refusal to bargain the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 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 its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the hire and tenure of employment of 23 employees it will be recommended that it offer to each of them immediate and full reinstatement each to his former or substantially equivalent position without prejudice to seniority and other rights and privileges previously enjoyed, and make each whole for any loss of earnings sustained by any reason of his discharge by payment to him of a sum of money equal to the 577684-61-vol 128-57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount he would have earned from July 17, 1959, to the date of offer of reinstate- ment less his net earnings during that period. Backpay shall be computed in accordance with the Board's Woolworth formula.3 Loss of pay shall be determined by deducting from a sum equal to that which he would have earned for each quarter or portion thereof his net earnings in other employment during that period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter. Having found that the Respondent has unlawfully refused to recognize or to bargain with the Union as the representative of its employees in an appropriate unit, it will be recommended that the Respondent be required upon request to extend recognition to and to bargain with the Union. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. District Council of Painters #36, Brotherhood of Painters, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging on July 17, Arthur L. Moore, Bobby L. Foster, James B. Trotter, Willie Roland Pugh, Clarence Wilson, Barnell Sims, Arthur O'Neil Craig, Philip Ghoston, Raymond L. Brown, John W. Wilber, S. D. Moncreif, Domingo Mata, David E. Brown, David J. Soto, L. S. Campbell, Claude R. Moffett, Irwin Wilson, Johnnie Walker, Robert E. Waggoner, Cecil Jeffries, Norman A. Rod- riguez, Armando Acosta and Luis Montes, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. All production employees, apprentices, helpers, and assistants at Respondent's plant excluding clerical employees, office employees, and supervisors constitute a unit appropriate for the purposes of collective bargaining with the meaning of Section 9(b) of the Act. 4. On and since July 17, 1959, the Union has been and is the majority repre- sentative of the employees in the appropriate unit for purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment and other terms and conditions of employment. 5. By refusing on July 17, 1959, to recognize and to bargain with the Union 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 the discharges, by unlawfully refusing to bargain with the Union, and by threatening the discharge of Union advocates, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section, 7 of the Act and has thereby 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 com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 3F. W. Woolworth Company, 90 NLRB 289. Jolog Sportswear, Inc. and Jonathan Logan, Inc. and Pearl McAbee Wyatt and International Ladies' Garment Workers" Union, AFL-CIO, Party to the Contract Jolog Sportswear, Inc. and Pearl McAbee Wyatt International Ladies' Garment Workers' Union, AFL-CIO and Pearl McAbee Wyatt. Cases Nos. 11-CA-1433, 11-CA-14179, and 11-CB-91. August 24,1960 DECISION AND ORDER On April 1, 1960, Trial Examiner A. Bruce Hunt issued his Inter- mediate Report in the above-entitled proceeding finding that the 128 NLRB No. 108.