California Lingerie Inc.

:912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of a bargaining contract by his employees he had reason to doubt the designation .of Local 810 without some proof. This doubt he chose to resolve by direct inter- rogation and the result of that interrogation could certainly lead him to conclude that the men rejected Local 810 as they had rejected Local 355. I do not find, how- ,ever, that his subsequent dealings with Local 810 were governed entirely by a good- faith doubt. Rather he chose to go through the motions of collective bargaining through fear of picketing while forestalling the execution of a contract through fear ,of repudiation by his employees. He may have requested an election of the Union, as his own testimony avers, but he did not insist upon one and he continued to meet with the Union and discuss contract terms with its representatives. Thus his own conduct was inconsistent with his denial of majority status. But the issue on which this case must rest is not Gottleib's motives or his conduct but his obligation, and I do not find that an obligation to bargain existed after the meeting at which his em- ployees rejected Local 810. Without condoning his conduct in continuing negotia- tions, even though motivated by fear of economic reprisal, I do not believe it was in violation of the Act. Had Gottleib signed a contract with Local 810 after the ex- pression of opinion by his employees he would have been guilty of unlawful assistance to Local 810 if it did not, in fact, represent a majority.18 It cannot then fairly be said that his refusal to sign a contract was a violation of Section 8(a) (5). The diffi- culties in this case stem directly from the failure of either Respondent or the Union to utilize the procedure of Section 9(c) and to determine the question of representation by secret ballot. The value of those procedures is nowhere better illustrated than in this case. This case makes no contribution to labor law. My finding is confined to the pe- culiar circumstances of the case. I find that Gottleib did have reason to doubt that the Union represented a majority of his employees and that, however inconsistent his action in meeting with the Union was in the face of such asserted doubt, the ob- ligation to bargain was never incurred.19 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2. Local 810 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. [Recommendations omitted from publication.] 18 Bernhard-Altmann Texas Corporation, 122 NLRB 1289. 1B In view of this finding I reject the contention that the unilateral application of the incentive plan during a period from May until July 1959, was also in violation of Sec- tion 8(a) (5). Since Respondent was under no obligation to bargain with the Union at this time it was lawful for it to make such a change in working conditions unless the change waa made to interfere with, restrain, or coerce its employees. I find the change had neither an unlawful motive nor did it constitute unlawful interference. California Lingerie Inc. and Industrial Workers Federation of Labor, Local 886. Case No. 21-CA-3846. December 9, 1960 , DECISION AND ORDER On June 20, 1960, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Rhspondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also found that the Respondent lead not engaged in certain other unfair labor practices alleged in the 129 NLRB No. 108. CALIFORNIA LINGERIE INC. 913 complaint, and recommended dismissal of such allegations. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Kimball]. The Board 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 Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions and recom- mendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent violated Section 8(a) (3) and (1) of the Act by the layoffs of employee Robert Martinez on December 10 and 18, 1959, and January 12, 1960. The Respondent is engaged in the manufacture and sale of lingerie. Its plant is divided into various departments among which is the bouffant department where primarily the sewing of petticoats is per- formed, and the cutting department where the material sewed in the plant is cut by machinery. Robert Martinez was first hired in 1955 by the supervisor of the cutting department. He spent, however, most of his working time in the bouffant department. At those times when work in the bouffant department was slack, he was employed in the cutting department. By means of these transfers and retransfers between departments, in- cluding the shipping department, Martinez worked full time, 40 hours a week, for a period of 5 years. This was in accordance with the Respondent's policy of offering its employees full employment even if the company had to accept business which returned no profit. In July 1959 the Charging Union commenced to organize the Re- spondent's employees. Martinez lent full support to the organiz- ing drive, accepted 300 union authorization cards for distribution, and induced 60 to 70 employees to sign cards. His activity soon became known to the Respondent. In September 1959 one Wittaker, super- visor of the bouffant department, told Martinez that some girls had complained about his efforts to sign them up for the Union, and warned him, "to better watch out or else." On October 13, 1 day be- fore the election conducted by the Board on the representation peti- i At the hearing the Trial Examiner ruled that the tape recording of a speech made by Respondent's president, Harvey Morse, on October 13, 1959 , was not admissible in evi- dence We find no merit in the Respondent 's exceptions to that ruling We are reluctant to accept dictaphone tapes and /or transcriptions thereto as being accurate because of the mechanical possibility that they may be "altered." Walton Manufacturing Company, 124 NLRB 1331 , 1333. Moreover, Morse's speech on October 13, 1959, has not been found to constitute, or be evidence of, an unfair labor practice. 58,6439-61-vol. 129-59 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the Charging Union, Frank, the supervisor of the cutting department, told Martinez that if the Union got in, he (Martinez) would have to go home when the work in the bouffant department ran out. Sometime after the Union won the election, Frank in a con- versation with another employee referred to Martinez in derogatory terms because of his adherence to the Union. On December 10, 1959, Martinez was working on his primary job in the bouffant department when his supervisor, Wittaker, came over to Martinez' binding machine and told him that he had to lay him off. He gave as reasons lack of work in the department and an order of the "big boss," meaning President Morse, that Martinez be laid off if work in the bouffant department ran out. Contrary to the prior practice of 5 years, Martinez had to leave his work on that day rather than being employed in the cutting department or elsewhere in the plant. On December 14, Martinez was recalled as of the following day and worked in the bouffant department until the 18th. On that day, he was again laid off rather than transferred to another assignment. He was subsequently recalled for work from December 29 to 31 and from January 6 to 12, 1960. Each of these recalls was to the bouffant department only, and no assignments were given to Martinez in any other department. After the last layoff Martinez looked for and found work with another employer. When the Respondent recalled him again on January 27 he declined to return. On these facts, and the record as a whole which shows the Re- spondent's antiunion attitude and other unfair labor practices, we agree with the Trial Examiner that the Respondent changed Martinez' working conditions and earnings, not for economic reasons but be- cause of Respondent's resentment of the employee's activities on be- half of the Union. We find no merit in the Respondent's assertions that no work was available for Martinez in the cutting department or anywhere in the plant. We are persuaded on the record that but for Martinez' union activities the Respondent would have continued to employ Martinez on a full-time basis, and that the series of layoffs was designed to retaliate against a strong union proponent. We also find, in agreement with the Trial Examiner, that Respondent's tele- graphic recall of Martinez on January 27, 1960, was not made in good faith as it did not indicate that the discriminatory working condi- tions imposed by the Respondent since December 10, 1959, had been removed and that Martinez was recalled to his prior position. 2. We agree with the Trial Examiner that the Respondent violated Section 8(a) (1) of the Act by threatening and interrogating its em- ployees and by curtailing their coffee-break privileges. We are not, however, persuaded that a preponderance of the evidence sustains a finding that the Respondent also committed an unfair labor practice by closing the front entrance of the plant to the employees. At certain CALIFORNIA LINGERIE INC. 915 stages of the Union's campaign, the Respondent had reason to be- lieve that the Union would call the employees out on strike. Re- spondent consulted with police authorities as to the safety measures necessary in such an event, and was advised by the police to close the front door because of the narrowness of the passage leading thereto. On these facts we are unable to find that the closing of the entrance was an act of harassment against the employees. Accordingly we shall dismiss the complaint as to the entrance closing. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, violative of Section 8(a) (1) and (3) of the Act, we shall order the Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily laid off em- ployee Robert Martinez on December 10 and 18, 1959, and January 12, 1960, because he had engaged in certain protected concerted activities and that the Respondent has not since recalled him to a position carrying the same or substantial working conditions enjoyed by him prior to December 10, 1959, we shall order Respondent to offer Martinez immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment of a sum of money equal to the amount he would have earned from the respective dates of the discrimination to the date of the offer of reinstatement, less his net earnings during those periods. Backpay shall be computed in accordance with the formula enun- ciated in F. W. Woolworth Company, 90 NLRB 289. Because the character and scope of the unfair labor practices found to have been engaged in by the Respondent goes to the very heart of the Act, we shall order the Respondent to cease and desist from in any manner interfering with, restraining, and coercing the employees in their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). ORDER Upon the entire record in the 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, California Lingerie Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Industrial Workers Federation of Labor, Local 886, or any labor organization of its employees, by 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laying off employees, by reducing their employment to intermittent work because of their union membership or other concerted activities, or by discriminating in any other manner in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening employees, interrogating employees concerning their union membership and activities in a manner constituting inter- ference, restraint, or coercion, and changing working conditions by curtailing their coffee-break privileges. (c) 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 Industrial Workers Federation of Labor, Local 886, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Robert Martinez immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. (b) 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 of backpay due and the rights of employment under the terms of this Order. (c) Post at this plant in Los Angeles, California, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent or its representative, be posted by the Respondent immediately upon the receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to the employees are customarily posted. Reasonable steps shall be taken by the Re- .spondent to insure that said notices are not altered, defaced, or cov- -ered by any other material. 2 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." CALIFORNIA LINGERIE INC. 917 (d) 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. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated Section 8(a) (1) of the Act by preventing its employees from going out dur- ing lunch hours, talking to each other, and using the front entrance to the plant. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in Industrial Workers Federation of Labor, Local 886, or any labor organization of our employees, by laying off our employees and by reducing their employment to intermittent work because of their union mem- bership or other concerted activities, or by discriminating in any other manner in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees, interrogate our em- ployees concerning their union membership and activities in a manner constituting interference, restraint, or coercion, and change working conditions by curtailing their coffee-break privileges. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Indus- trial Workers Federation of Labor, Local 886, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and 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 offer Robert Martinez immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make him whole for any loss of pay suffered as a result of the discrimination against him. CALIFORNIA LINGERIE 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 case was tried in Los Angeles, California, on March 14, 16, 23, and 24, 1960. The ,issues include whether one Robert Martinez was discharged because of his activities in behalf of the Union and whether Respondent interfered with the rights guaranteed its employees by the Act by changing working conditions and interrogating and threatening its employees. Upon the entire record, my observation of the witnesses, and consideration of the General Counsel's brief, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY California Lingerie Inc., herein called Respondent, at all times material herein is, and has been, a California corporation with its principal office and place of business in Los Angeles, California, where it is engaged in the manufacture and sale of lingerie. Respondent annually ships products out of the State of California in an amount exceeding $50,000 and is engaged in commerce and in a business affecting commerce within ,the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Industrial Workers Federation of Labor, Local 886, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues (1) The complaint alleges Respondent on December 10 and 18, 1959, and January 12, 1960, laid oft Robert Martinez because he joined or assisted the Union or engaged in other concerted activities for the purposes of collective bargaining or mutual aid or protection. (2) The complaint further alleges that on December 1959 Supervisor Gene Whit- taker interrogated Robert Martinez with reference to his effort to have union authorization cards signed and warned Martinez that he had better watch out or else. (3) The complaint also alleges that on September 19, 1959, Supervisor Joe Frank in the presence of two employees stated that if the Union got in the employees would go home when they ran out of work. (4) The complaint lastly alleges that on or about October 1, 1959, Respondent changed its working rules by refusing to allow its employees to go outside the plant during lunch and coffee breaks, refusing to allow people to talk to one another, and refusing to allow employees to continue to use the front entrance to Respondent's plant. With all the above Respondent takes issue and offers evidence which it contends points to an economic justification for the layoffs of Martinez and either denies or offers evidence which it contends justifies the alleged unlawful activities of Respondent. B The events In July 1959 union organization commenced at Respondent's Los Angeles plant. Martinez was asked to help organize the Union and was given 300 cards of which he had 60 or 70 signed through his individual efforts. As will be demonstrated below his activity in this connection was known to Respondent prior to his layoffs. The CALIFORNIA LINGERIE INC . 919 National Labor Relations Board conducted an election on October 14, 1959, which resulted in a vote in favor of the Union as the bargaining agent of Respondent's employees. On October 10, 1959, Respondent sent a lengthy letter addressed to each employee with reference to the forthcoming election, a portion of which is set out below. On October 13, the day before the election, President Harvey Morse had had all the employees assembled and, with a labor relations consultant, Mrs. Edwin Selvin, standing by as monitor, made 'a speech to the employees referring to the letter of October 10, 1959, which he asked them to read very carefully. The discriminatory aspects of the layoffs of Martinez and the other evidence per- taining to interference, restraint, and coercion, although related with reference to explaining Respondent's antiunion motive, will be treated under separate headings. The Question of Discrimination with Respect to Robert Martinez Martinez was hired in January 1955 by Joe Frank, the supervisor of Respondent's cutting department. The cutting department is engaged in cutting material by ma- chine so ,that the manufacturing department of the plant will have this material for sewing. A division of the manufacturing department under the supervision of Gene Wittaker is known as the bouffant department in which Martinez worked most of the time during his employment with Respondent. He was engaged here in operating what is called a binding machine. However, since work in the bouffant department was not continuous he would work for substantial periods of time in the cutting department and occasionally in the shipping department. Respondent's witness, Wittaker, estimated Martinez worked approximately 200 hours 'a year in the cutting department. The estimate of Martinez was considerably greater. During his ap- proximate 5 years of employment with Respondent, Martinez had never been laid off on any prior occasion. In this connection Harvey Morse, the president of Re- spondent, testified that it was 'a company policy to do everything possible to give employees 52 weeks of work a year. This policy was expressed in a lengthy letter of Harvey Morse dated October 10, 1959, and sent to all employees 4 days prior to the NLRB election which included the following: But what is most important of all to you-did any union ever provide steady work throughout the year with a minimum amount of layoffs? Of course not. And did you ever stop to consider how the company has been able to main- tain the steady flow of work? It is very simple. During slack times-instead of sending you home for lack of work as most factories do, your company has accepted business in a competitive market which returned no profit, and at times even resulted in a loss. This was done for one reason only- to keep our people working when otherwise it would be necessary to lay them off for lack of work. Has the union ever pointed out to you that you enjoy much more steady work per year than is normal in garment factories? Of course not. Respondent's claimed reason for the layoffs of Martinez on December 10 and 18, 1959, and January 12, 1960, was that there was a shortage of work in the bouffant department. However, at the time Martinez was laid off he was working in the cutting department. At this time there were five people who had been employed in that department for periods ranging from 2 to 6 months. There were also several people hired shortly after his layoffs began in the cutting department Valente Chacon, who had been a cutter with Respondent for 13 years, testified that the cutting department was at least as busy in 1959 as in 1958. The record estab- lishes that the job of a cutter is to operate a cutting machine that cuts cloth for use in the manufacturing department. The work that Martinez was doing in the cutting department consisted of spreading the cloth as it went through the machine and assisting the cutters as necessary. Chaeon testified that immediately after Martinez' first layoff a new employee came into the cutting department and that three other employees quit after Christmas. He also testified that Frank, the supervisor of the cutting department, told him that Martinez was a "schmoe" for being for the Union when he was making as much money as he was He ,testified that Martinez was an experienced worker and could do much better work than the newer employees who worked in the cutting department. Charles Lastusky, who had worked for Respondent since 1952 in the cutting de- partment, testified that Martinez helped him frequently and that after Martinez was laid off quite a few new people were hired in the cutting room He said that nine or more were hired since Martinez was laid off and that Martinez was much better than the new employees In the light of Martinez' previous employment history, and Respondent's hos- tility toward the Union, as reflected by the entire record, his treatment by Respondent 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shortly after the Union won the election reflected -a pattern of reprisal designed to induce him to gain employment elsewhere, which he did. Respondent offered evidence that the work in the bouffant department had slowed down considerably and that this was the reason for Martinez' termination on the respective dates indicated above. The record shows that the work in the cutting de- partment, however, had been lust as busy, if not more so, as in the previous year and that in August 1959 the cutting department commenced to supply material for a plant in Utah owned by the principal owners of Respondent Company. The record is uncontradicted that Martinez was a more experienced and senior employee than many who were retained in the cutting department and also that several were hired during the 2-month period following his initial layoff. Chacon, one of the cutters, testified that he heard Wittaker, one of the principal supervisors of Respondent, tell Martinez that the "big boss" said that whenever there was no work in his (Wit- taker's) department he was going to let him go. I can find no probative evidence in this record why Martinez was not permitted to continue his practice of 5 years of working in the cutting department when work slowed down in the bouffant department. When be was called back to work after his layoffs in December 1959 he was given no work in the cutting department but only permitted to work in the bouffant department. When he finally received word of recall after the third layoff, he had obtained another job. Wittaker had made it clear that the "big boss" had decreed that Martinez henceforth would in effect have only sporadic employment because he would be laid off from the bouffant depart- ment whenever it shut down which it did on frequent occasions. To a man earning less than $2 an hour the prospect of unpredictable layoffs rather than steady employ- ment would in all probability represent a major deterioration in his employment status. The "big boss," who I find on this record to mean President Harvey Morse, had evidenced his idea that as far as his employees were concerned it was a valuable thing to work 52 weeks a year. Hence when Wittaker told Martinez that the "big boss" had given orders that would necessarily make his employment sporadic and irregular Morse was imposing working conditions on Martinez that Morse as well as Martinez regarded as inferior. In view of the foregoing it is found that Martinez was laid off by Respondent on December 10 and 18, 1959, and January 12, 1960, because of assistance and activities on behalf of the Union. It is further found that the telegraphic recall sent January 27, 1960, was not made in good faith as Martinez was not advised that the discrimi- natory working conditions imposed by Respondent had been removed. Interference, Restraint, and Coercion The record reflects that in September 1959 Supervisor Wittaker told Martinez that some of the girls had complained that Martinez was trying to make them join the Union and that Martinez had better watch out or else. This credited testimony of Martinez was denied by Wittaker. 1 The complaint next alleges that in September 1959 Supervisor Frank in the presence of two employees stated that if the Union got in the employees would go home when they ran out of work. Martinez testified that on the day before the election Frank asked him in the pres- ence of an employee named Dick Palmer whether he thought "that the union would get in the company." Martinez replied that he didn't know and that Frank then told him that "if the Union got in, when I run out of work in my department I would go home." The complaint next alleges that on or about October 1, 1959, the Respondent changed his working rules and refused to allow its employees to go outside the plant during lunch and coffee breaks and refused to allow the people to talk to one an- 1 In addition to the favorable impression with respect to candor evidenced by Martinez, the testimony of Supervisors Wittaker and Frank are not credited insofar as they deny conversations with Martinez, mainly because the testimony of Martinez is more consistent with the uncontroverted events contained in this record For example, in addition to the change for the worse in the working conditions afforded Martinez and the expressed opposition of President Morse to the Union, and the curtailment of coffee breaks after the Union won the election, there is also evidence that many of the women employees started to work shorter shifts after the election won by the Union All of these events reasonably lead to the inference that Respondent was attempting to demonstrate by such economic reprisal as was considered safe that its employees had made a mistake in selecting the Union as its representative. CALIFORNIA LINGERIE INC. 921 other and refused to allow employees to continue to use the front entrance to Re- spondent's building which they had done for a number of years. The action of Respondent in this context in refusing to let the employees use the front entrance cannot be reasonably explained on any other basis than an act of harassment against the employees because of union organization. The effect upon the employees of Respondent which can be reasonably inferred makes this action of Respondent in barring its front entrance an act that would be understood by the employees as a hostile and coercive action of Respondent following the inception of union organization. The reasons given by Respondent for closing the front entrance are completely unpersuasive. Respondent offered no explanation as to why the front entrance could not be kept open until a strike occurred even if their theory for closing it was accepted. The record reflects the undenied testimony of Martinez that Harvey Morse in his speech to the employees on October 13 said that after the election the front entrance would be open. This entrance was not open after the election nor was it open until the date of the hearing. Its closing imposed an unnec- essary inconvenience on the employees. The evidence on the coffee break indicates that the day after the election Frank came up to employee Gomez in the presence of Martinez and told Gomez that he could not go out and get coffee for employees 10 minutes prior to the coffee break as had been his custom heretofore. Martinez' testimony attributing to Frank a statement in this connection that "if we wanted a union we were going to have it run by the Union" is credited. The speech of President Harvey Morse on October 13 to the employees at Re- spondent's plant referred to the letter of October 10 and according to Morse on the occasion of this speech he referred to the letter and asked the employees to read it very carefully. In his letter of October 10 he made it clear that it was the policy of the Company absent the Union to give its employees a full year's work. After the election there was evidence in the record that in addition to the layoff of Martinez the hours of other employees were curtailed. No finding is made on the employees other than Martinez in connection with reduced working hours as the allegations in the complaint do not provide a basis for finding these events constituted an unfair labor practice. The testimony of witnesses attributing to Morse the generalized promise of continued employment if the Union stayed in and the lack of it if the Union won in his speech of October 13, is not significant inasmuch as Morse's own testimony in effect incorporating his letter of October 10 recites in substance the testimony of these witnesses. As far as can be determined there is no evidence in the record that Respondent refused to permit employees to go outside the plant during lunch and insufficient evidence on which to base a finding that Respondent refused to allow people to talk to one another as alleged in the complaint. Based on the above it is found that the evidence preponderates in support of a finding that Robert Martinez was discriminatorily laid off on the dates of December 10 and 18, 1959, and January 12, 1960, and that Respondent did not in good faith offer Martinez reinstatement to his former job or its equivalent. It is also found that based on the successive layoffs contrary to the former practice of Respondent in providing continuous yearly employment to Martinez for the past 5 years that Mar- tinez was justified in assuming that he would be subject to the continuing discrimi- natory treatment in the course of his employment by Respondent. The discrimina- tory layoffs and failure to recall Martinez were occasioned by his union activities. It is also found that the evidence preponderates in support of a finding that Re- spondent threatened and interrogated its employees and changed their working con- ditions by closing the front entrance to the plant and curtailing coffee break privileges, thereby interfering with, restraining, and coercing its employees with respect to their rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operation of Respondent as set forth in section I, above, have a close, inti- mate, 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 thereof. 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. Respondent, California Lingerie Inc., is engaged in commerce within the mean- ing of the Act. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Industrial Workers Federation of Labor, Local 886, is a labor organization within the meaning of the Act. 3. The Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act by: (a) Laying off Robert Martinez on December 10 and 18, 1959, and January 12, 1960. (b) The Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act by ( 1) interrogating an employee with respect to union activities, (2) threatening an employee with economic reprisal because of union ac- tivities, and (3 ) instituting inferior working conditions as a reprisal against its employees because of their support of the Union. [Recommendations omitted from publication.] International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 154, AFL-CIO; Inter- national Association of Bridge , Structural and Ornamental Iron Workers, Local 3, AFL-CIO; and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Plumbers Local 27, AFL-CIO [Cuyahoga Wrecking Company] and International Hod Carriers' Building and Common Laborers ' Union of America, Housewreckers and Scrap Metal Yard Laborers, Local 178, AFL-CIO. Case No. 6-CB-659. December 13, 1960 DECISION AND ORDER On April 29, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermedi- ate Report attached hereto. Thereafter, the Respondents filed excep- tions to the Intermediate Report and the General Counsel and the Re- spondents filed briefs. The Board 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions , and recommendations 1 of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- 1 The Respondents have excepted to the Trial Examiner's broad recommended order which directs the Respondents to cease causing or attempting to cause "any other em- ployer," in addition to Gulf and Cuyahoga, to discriminate against employees in violation of Section 8(a) (3) of the Act In view of the fact that Respondents ' unlawful activity was directed solely against Gulf and Cuyahoga , we find merit in Respondents ' exception in this regard and shall accordingly limit the scope of the order herein. 129 NLRB No. 113.