Packard Bell Electronics Corp.

1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD already represented as part of a larger unit. Here, the IAM is only trying to do in one consolidated action what it would clearly have been permitted to accomplish in separate proceedings. We would therefore permit the IAM to participate in the elections for the two units it seeks-the machine shop group and the produc- tion and maintenance unit, excluding the machine shop. Packard Bell Electronics Corporation and Radio-TV Service Technicians Union, Local 202, International Brotherhood of Electrical Workers, AFL-CIO. Case No. 20-CA-1719. March 3, 1961 DECISION AND ORDER On July 20, 1960, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and finds merit in certain of the Respondent's exceptions. Accordingly, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent with the decision herein. The issue presented 2 is whether the Respondent's lockout of its employees was discriminatorily motivated, as the Trial Examiner found, or was one justified and motivated by special economic consid- erations of the type set forth in the Betts Cadillac case,3 as contended by the Respondent. The Respondent is engaged in the business of manufacturing and selling television and radio receivers and other electronic devices. The Respondent maintains a "service division" which operates through a number of branch establishments. The division's function is to install and repair products manufactured and sold by the firm. There are three service branches involved in this proceeding, one in San Fran- 1 Respondent's request for oral argument is denied as, in our opinion , the record , excep- tions, and brief adequately present the positions of the parties. 2 Absent specific exceptions, we adopt, pro foram, the Trial Examiner's findings that the interrogations of employees Musich, Mealing, and Garcia, and Branch Manager Sessa's threat to employee Gisslow that the employees "would be automatically out of jobs" if they struck, violated section 8 ( a) (1) of the Act. Contrary to the Respondent's conten- tion, we also find, as did the Trial Examiner , that Area Manager Tabor's threat to Musich that "he would be finished'? If the employees struck, violated section 8(a) (1). 8 Bette Cadillac Olds, Inc., et al., 96 NLRB 268. 130 NLRB No. 117. PACKARD BELL ELECTRONICS CORPORATION 1123 Cisco, another in Oakland, and the third in San Mateo, California. A substantial volume of business at these shops consists of'servicing some 3,500 or 4,000 contracts which require the Respondent to provide repairs and services for a monthly fee payable by the service subscriber. The service technicians and dispatchers employed by the Respond- ent at these three branches are represented by the Union, with whom the Respondent had bargaining relations for a period of some 18 years prior to December 31, 1957. In September 1959,. following a series of bargaining sessions, an oral accord was reached on all areas of disagreement save that of union security. With respect to the latter, the Respondent took the position that it would not sign a new con- ract containing a union-security clause, although such a provision had been contained in previous contracts. On September 23, 1959, the Union telephoned the Respondent to 'see if it would alter its position on the union-security provision. It appears that the Respondent answered in the negative. On or about October 2,1959, the Union, by means of a circular, notified the employees, that a meeting would take place on October 7, 1959, for the purpose of presenting the Respond- ent's "final . . . offer" and to submit the question of strike action to the employees for a decision. The Respondent's area manager, Tabor, learned of the circular within a day or two after October 2. At' the union meeting of October 7, the employees voted 17 to 7 to authorize the Union "to call a strike when it deemed appropriate." After the meeting, one of the employees asked Cunha, the union busi- ness representative, when he "would call the strike." Cunha replied that he did, not know, that he "might call it within 48 hours or .. . might not call it until next week." - The next morning, October 8, an employee told the Respondent's San Francisco branch manager, Widmer, that the employees had "voted for a strike," and that it would take place "within the next 48 hours." Widmer conveyed this information to Tabor who in turn relayed the information to Duffy, vice president of the Respondent, in Los Angeles. Duffy instructed Tabor to survey the prospects of having their work subcontracted. Later that day, Tabor reported to Duffy that arrangements for such subcontracting could be made. Duffy then directed Tabor to make the arrangements and, as that was done, to "lay off" all the technicians in the Bay area branches. The Respondent made arrangements with various service enterprises, in- cluding its wholly owned subsidiary, Factory Service, to perform work for the the 3 branches, and the 28 employees at these branches were laid off or terminated by the close of business on October 10. Up to that time no strike had been called nor had any taken place. On October 20, 1959, the Respondent wrote a letter to each of the 28 employees, stating, among other things, that it was "herewith 1124. DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminating its forced lockout and will immediately begin operations" at the 3 branches, and requesting the employees to report for work on October 23. Of the 28 employees affected, 12 returned to work and those who did not have been replaced. As stated above, the Trial Examiner found that the lockout was, discriminatorily motivated, i.e., that an objective of the lockout was, the weakening of the Union. We disagree. In our view, the record will not support such a finding. Although, as noted above, the Re- spondent would not agree to a contract with a union-security clause, and although two of the Respondent's supervisors engaged in Sec- tion 8 (a) (1) conduct involving four employees, we do not think these factors sufficient to establish, under the circumstances here, that the Respondent was motivated by an unlawful design. To the contrary,. the record establishes, as the Respondent contends, that the shut- down of the three branches was for reasons recognized in Betts Cadillac, supra, as justifying such action. In the Betts Cadillac case, some 19 respondent automobile dealer employers were charged with violating the Act by closing down their service departments when two members of their employer association were struck. The primary reason given by the respondents for closing down their service departments was to avoid tying up cus- tomers' cars in an incomplete state of repairs. Stressing this pri- mary reason, the Board held that the respondents had justified the shutdowns and had not violated the Act. The Board adopted the Trial Examiner's statement (96 NLRB 268 at 286) that: An employer is not prohibited from taking reasonable meas- ures, including closing down his plant, where such measures are, under the circumstances, necessary for the avoidance of economic loss or business disruption attendant upon a strike. This right may, under some circumstances, embrace the curtailment of oper- ations before the precise moment that the strike has occurred. ... The nature of the measures taken, the objective, the timing, the reality of the strike threat, the nature and extent of the an- ticipated disruption, and the degree of resultant restriction on the effectiveness of the concerted activity, are all matters to be weighed in determining the reasonableness under the circum- stances, and the ultimate legality, of the employer's action. We think that this test of reasonableness has been met here. As stated above, the Respondent was aware that the employees had voted to authorize a strike, and the Respondent was advised that a strike would be called within 48 hours. Certainly, the Respondent had a legitimate interest in taking the steps it did in order to make sure that its customers' television sets would not be tied up during the strike. As the Respondent notes, if it waited until the authorized PACKARD BELL ELECTRONICS CORPORATION 1125 strike was actually in progress the movement to other shops of its customers' partially dismantled sets would have presented an extreme hardship. Moreover, at the time it was compelled to make its de- ccision to subcontract, the Respondent had no assurance that other shops could, or would, take its work after a full-scale strike was in progress. Although, as evidenced by its recall letters of October 20, the Respondent may have later learned that it could properly protect its customers' interests in the event of a strike, this subsequently acquired knowledge does not detract from the force of the Respond- ent's contention that when the shutdown decision was made, serious doubt about the matter existed, and it would have been derelict had it not resolved that doubt in favor of its customers. Under all these circumstances, we find that the shutdown was not discriminatorily motivated, and we shall dismiss the complaint inso- far as it alleges that the shutdown was violative of the Act. 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, Packard Bell Electronics Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating any employee with respect to his activities in, sympathy for, or support of, any labor organization in a manner con- stituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (b) Warning, telling, or otherwise informing any employee that he will be discharged or otherwise denied employment in the event that he supports, engages, or participates in a lawful strike or any other lawful concerted cessation of work. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self -organization; to form, join, or assist any labor organization; to join or assist Radio- TV Service Technicians Union, Local 202, International Brotherhood of Electrical Workers, AFL-CIO ; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection; 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. 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of_the Act: (a) Post at the Respondent's principal place of business in Los Angeles, California, and at each of its California service branches located in Oakland, San Francisco, and San Mateo, copies of the no- tice attached hereto marked "Appendix."' Copies of such notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being signed by a duly authorized representative of Re- spondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customar- ily posted. Reasonable steps shall be taken by the Respondent to in- sure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twentieth 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, dis- missed except as to the violations found herein. CHAIRMAN LEEDOM and MEMBER JENKINS took no part in the con- sideration of the above Decision and Order. ' 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 : WE WILL NOT interrogate our employees concerning their union membership or activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT warn, tell, or otherwise inform any employee that he will be discharged or otherwise denied employment in the event he supports, engages, or participates in a lawful strike or any other lawful concerted cessation of work. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization; to form, join, or assist any labor organization; to join or assist Radio-TV Service Technicians Union, Local 202, International Brotherhood of Electrical Workers, AFL-CIO; to bargain collectively through representatives of their own choos- PACKARD BELL ELECTRONICS CORPORATION 1127 ing; to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection; or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. PACKARD BELL ELECTRONICS CORPORATION, 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 The complaint in this proceeding, issued by the General Counsel of the National Labor Relations Board (also called the Board herein), alleges that the Respondent, Packard Bell Electronics Corporation (also called the Company herein) "locked out and terminated" various employees in violation of Section 8(a)(3) of the National Labor Relations Act, as amended (61 Stat. 136-163; also referred to herein as the Act), and has, by such conduct, and by questioning employees as to their union activities, by statements or warnings that they would be discharged if they engaged in a strike, and by promises and offers of wage increases to induce them not to strike, .interfered with, restrained, and coerced. employees in the exercise of rights guaran- teed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the statute.' The Respondent has filed an answer which, in. effect, denies the commission of the unfair labor practices imputed to it in the complaint. Pursuant to notice duly served by the General Counsel upon the other parties, a hearing upon the issues raised by the complaint and answer has been held before me as duly designated Trial Examiner. All parties appeared through, and were repre- sented by, respective counsel, and were afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument . I have read and considered a brief filed with me by the Respondent since the close of the hearing. No other party has filed a brief. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD The Company is a California corporation; is engaged in the business of manu- facturing and selling television and radio receivers and other electronic devices; and, for the conduct of its enterprise, maintains its principal office and place of business in Los Angeles, California, and branch establishments in California and other States. In the course and conduct of its business, the Company annually purchases and receives goods and materials valued in excess of $50,000, which are shipped to it in California from points located outside thereof; and annually sells and ships products valued in excess of $5'0,000 from its establishments in the said State to points outside thereof. By reason of such interstate shipments, the Company is, and has been at all times material to the issues in this proceeding, engaged in interstate 'commerce within the meaning of the Act. Accordingly, the Board has jurisdiction over the subject matter of this proceeding. 'The complaint is based on a charge filed with the Board on October 16, 1959, and on an amendment thereof filed on January 4, 1960. Copies of the charge, amendment, and complaint have been duly served upon the Respondent. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Radio-TV Service Technicians Union, Local 202, International Brotherhood of Electrical Workers, AFL-CIO, admits to membership individuals employed by the Company; exists for the purpose, in whole or in part, of dealing with employers, including the Company, concerning terms and conditions of employment; and is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement The Company maintains a "service division," whose function it is to install and repair products manufactured and sold by the firm. The division operates through a substantial number of branch establishments in California and other States. The .issues in this proceeding center on three of the California service branches, all lo- cated in the vicinity of San Francisco Bay (and described below collectively as the Bay Area branches), one of them situated in Oakland, another in San Francisco, and the third in San Mateo. A substantial volume of the business of these branches consists of the performance of "service contracts" between the Company and purchasers of its products such as, for example, household television sets. There are normally some 3,500 or 4,000 of these contracts in effect in the service area involved, and typically, under such an agreement, the Company is required to provide repairs for the product affected for a monthly fee payable by the service subscriber. The service functions of each branch are performed by television and radio tech- nicians, a few of whom do their work in the shop of their branch, and the rest, upon dispatch, at the customer's location. Each branch operates under the immediate supervision of a branch manager. These supervisors are subject to the direction of a northern California area manager, Hal V. Tabor, who, in turn, is subject to the supervision of a vice president of the Company, Carl A. Duffy. The latter, whose office is at the Company's Los Angeles headquarters, functions as general manager of the service division and, in that ca- pacity, has overall responsibility for the division's operations. Duffy, Tabor, and each of the Bay Area branch managers, as the undisputed evidence establishes, are, and have been at all times material to the issues, supervisors within the meaning of the Act .2 The Respondent, it may be noted for future reference, owns all the stock of a corporation known as Factory TV Service (also called Factory Service herein) which was organized by the Respondent in or about June 1958 to engage, primarily, in the business of installing and repairing television sets or, in other words, to perform much the same type of work as the Bay Area branches, although, unlike those estab- lishments, not confined to work on products manufactured by the Respondent .3 Since its formation, the subsidiary's officers have consisted of Duffy, who has been, and is, its president, and two other individuals who also serve the parent corporation either in the capacity of officer or director. The subsidiary began operations, soon after its organization, in Oakland, California, and discontinued them, because of lack of business, shortly before the hearing in this proceeding. With the exception of a period of about 2 weeks in October 1959, Factory Service's staff of technicians did not exceed four in number, including one Francois G. May, who served, by ap- pointment of Duffy, as manager of the subsidiary's establishment and supervisor of its employees substantially throughout its entire operating period. In that ca- pacity, May functioned under Duffy's direct supervision and was, at all material times, a supervisor within the meaning of the Act. There can be no doubt that Factory Service has been, since its formation, subject to complete control by the Respondent and, through Duffy, directed and dominated by it. Over a period of some 18 years prior to December 31, 1957, the Company and the Union were parties to successive collective-bargaining agreements prescribing terms 2 The Bay Area branch managers are Louis Sessa (Oakland), -Charles J. Widmer, Jr. (San Francisco), and Earl Robertson (San Mateo). 8 The evidence does not establish the precise corporate name of the subsidiary, which Is referred to in the record by a number of names resembling Factory TV Service. Another matter that may conveniently be noted here is that I Inadvertently omitted to pass on a motion to strike evidence of the address of the subsidary as listed in its corporate articles. I deny the motion, noting that the proof of the address has no operative effect upon the issues, but is no more irrelevant than evidence of an identifying nature, such as the address of a witness , for example, which Is traditionally received. PACKARD BELL ELECTRONICS CORPORATION 1129 and conditions of employment of service technicians employed by the Company, in the San Francisco Bay area. For about 10 years preceding the expiration of the last of these agreements on December 31, 1957 , the contract terms included provisions for membership in the Union , as a condition of employment , couched in language authorized by the union-security proviso of Section 8 (a)(3) of the Act. There is no evidence, nor any claim , for that matter, that the union-security provisions of the contracts were in any way unlawful. On March 3 , 1958 , the Union filed with the Board a petition seeking certification as the representative of a bargaining unit that included the television and radio tech- nicians employed in the Bay Area branches . The upshot of the matter was that fol- lowing a representation election , the Board, on April 4, 1958, certified the Union as the bargaining representative of all "television and radio technicians , including the dispatchers" employed by the Company in the Bay Area branches. The certification is still in effect. The Union and the Company had begun negotiations for a new contract affecting the technicians in the Bay Area branches prior to the filing of the representation petition and continued them after the certification . The Company's representatives in the negotiations included Duffy and its director of industrial relations , Robert C. Hogan ; the Union was represented by its business agents, Edward Bird and Peter Cunha. There were three major areas of negotiation : wages, a classification system, and union security. After a series of meetings held over a period of a substantial num- ber of months an oral accord was reached, in or about September 1959 on wages and classifications. No accord was reached on the subject of union security, not- withstanding the repeated inclusion of union -shop provisions in contracts between the Company and the Union over a period of about a decade preceding the negotiations. The Company voiced its opposition to a union shop for the first time in the negotiations at a bargaining meeting held in August 1959, Hogan then telling the Union's representatives that the Company was "going to ask for ... an open shop proposal in the contract." As Hogan testified, the Union's representatives rejected the proposal, indicating by laughter and gesture that they believed that the Company had advanced the proposal in jest; and asked why it had been put forward. Hogan replied that the Company felt that the employees represented by the Union did not want "a union shop provision in the next contract"; and that the management did not wish to be in a position of "forcing [the] employees to join a union " as a con- dition of employment. With respect to this position, either at the same meeting or at a subsequent one in August, the Union made a proposal to the Company that an election be held among the employees to determine whether they were in favor of provisions for union se- curity, but the Company rejected the proposal. During the latter part of August 1959, the Company, for the first time, informed the Union that it would not sign a contract containing provisions for union member- ship as a condition of employment. On September 23, 1959, Bird telephoned Hogan, and pointing out that the parties were in accord on all matters "with the exception of the union shop ," stated that the Union "was most anxious to get the contract signed," and inquired whether there was any chance that the Company would alter its position on the subject of union security. Receiving a negative reply, Bird asked Hogan to inquire of Duffy whether the latter would "change his mind" on the sub- ject, and the upshot of the talk was that Hogan agreed to make the suggested inquiry, and to call Bird that evening. It does not appear that he called Bird. Within a few days after the telephone conversation, two central labor bodies (one located in Oakland, and the other in San Francisco), with which the Union is affiliated, wrote to the Company, each council stating in its letter that the Union had asked it for "strike sanction" against the Company , and inviting the firm to pre- sent its position at a specified time and place to such council 's executive body before the latter passed on the Union's request. Replying for the Company, Duffy wrote each council , one on September 29 and the other on October 1, 1959 , expressing the view that it was the Company's duty to continue to bargain with the Union "and not to get involved in discussions or negotiations beyond those directly concerned and knowledgeable about the matters under discussion "; and declining the invitation on the stated ground that "this matter must be confined to the parties in interest without involvement of other private groups." On or about October 2, 1959 , the Union, by means of a circular bearing that date, gave notice to the Company's Bay Area technicians of a meeting scheduled by the organization for October 7, ' 1959 , and inviting all such employees to attend, whether members of the Union or not. The document noted, among other things, 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that one of the labor councils mentioned above had already sanctioned "strike and consumer boycott" action against the Company, and that the other council would do so before the date of the meeting. The purpose of the meeting, as the document intimates, and as Cunha testified, was to present the Company's "final . . offer" to the employees, and to submit the question of strike action to them for decision. Tabor, as he conceded, was informed of the substance of the circular within a day or two after October 2. On October 5, 1959, Tabor discussed the subject of a possible strike with a San Francisco branch technician, Albert Musich, who had the title of "shop foreman" but was actually a' leadman (and not a supervisor within the meaning of the Act). Tabor, who spoke to Musich at the latter's workbench, told Musich that he "would be finished" (or, in other words, lose his employment) if the employees went on strike. Musich replied that he would take his "chance," and Tabor remarked that Musich, because of his experience, would find it easier than other technicians to secure another job. The remarks were overheard by another shop technician, Leslie B. Mealing, whose workplace was adjacent to that of Musich.4 Tabor's remark that Musich "would be finished" in the event of a strike had a coercive content, par- ticularly when considered in conjunction with other unlawful conduct by the Com- pany to be described later; and as a result of the statement, the Company interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the statute. Two days after the conversation with Musich, Tabor asked the employee at the latter's workbench whether he would come to work through a picket line in the event of a strike, and Musich replied in the negative. The area manager put much She same query to Musich again on the following day (after a strike vote was taken at the scheduled union meeting ), and was given the same 'answer. In addition, Tabor made a similar inquiry of Mealing, while the latter was at work, a day or two before the meeting, and similarly received a negative reply. Also, within a period ,of about a week preceding the meeting, Louis Sessa, manager of the Oakland branch, asked a technician named Hilliary J. Garcia, then employed there, whether he would be willing to continue to work for the Company in the event of a strike. I am unable to share the Respondent's view that these acts of interrogation were merely "isolated" incidents. The evidence, as will appear, establishes a substantial volume of unfair labor practices by the Company, and particularly against such a background of inhibition of the free exercise by the employees of their statutory guarantees, the correct view of the acts of interrogation, whether by Tabor or Sessa, was that each was, in effect, an inquiry, without lawful justification, into the organ- izational sympathies and intentions of the employees involved, and that by each such act, as I find, the Respondent interfered with the exercise by employees of rights guaranteed them by Section 7 of the Act, and thereby violated Section 8(a)(1) of the statute.5 4 Findings as to the conversation between Tabor and Musich are based on the latter's ,credited testimony. Mealing, it may be noted, substantially corroborates Mustch's version. I do not credit a claim by Tabor that he never told Musich that he would be terminated or be "through" with the 'Company if he engaged in a strike. The fact is that Widmer, Musich's immediate supervisor, told him on'October 8, ,the day after the employees voted to strike, that he was "terminated as of right now," and, indeed all the Bay Area branch technicians were locked out by the Company within a short period after the vote. These circumstances tend to corroborate Musich and Mealing. Moreover, Tabor evinced a dis= position to give evasive testimony, turning meanings to suit his convenience. Thus, although no strike took place before the lockout was put into effect, be nevertheless testified that a strike had begun "as far as I was concerned" ; then, when queried again whether a strike had started, parried the question with another as to "what is a strike"; and thereafter, asked whether any employee had "left work as a consequence of any strike," stated in effect that one had done so, although the fact was that the employee in question had quit not because of an existing strike but because of his expecta- tion that there would be one and he wished, in the event of a strike, to avoid going through a picket line as a condition of employment. 8 The complaint specifically alleges the interrogation by Sessa as a violation of the Act, but not that by Tabor. However, the Respondent makes no point of the omission, con- tending in its brief that Tabor's questioning was not unlawful. In my judgment, Tabor's relevant conduct, and the question of its legality, have been "fully litigated," notwith- standing the posture of the complaint , and thus findings with respect to the issue are appropriate. Olin Industries, Inc., 86 NLRB 203, 206, footnote 10, enfd. 191 F. 2d 613 (C.A. 5). I note, too, that I base no findings on evidence of similar interrogation by one Joseph A. Curcio, who is employed by the Company as a "sales manager." Not. PACKARD BELL ELECTRONICS CORPORATION 1131 The meeting announced by. the Union for October 7 was held as scheduled, and, .after a discussion of the Company's position on an "open shop," a vote was taken by "secret ballot" on a motion that the Union be authorized "to can a strike when it deemed appropriate." The proposal carried by a vote of 17 in favor to 7 opposed. Some of the employees remained after the meeting, "sitting . . . and talking," and one of the group asked Cunha to forecast the date for which he "would call the .strike," and he replied that he did not know, and that he "might can it within 48 hours or . . . might not call it until next week." Cunha made no definition pre- diction that a strike would be called, informing his auditors, in effect, that such .action would be taken if the Union "couldn't get the issues resolved." On the following morning, an Oakland branch technician, Robert L. Gisslow, asked Sessa if he would be permitted to continue "the Company's health insurance" in the event of a strike, and the branch manager replied, as Gisslow credibly testi- fied, that he had been told that the employees "would be automatically out of jobs" .if they "did go out on strike." Sessa's answer (which, it may be noted, went beyond the scope of Gisslow's inquiry) had a coercive content, and, as a result of the statement, the Company abridged the Section 7 rights of employees, and thus violated Section 8 (a) (1) of the Act. Whether the Company was aware of the strike vote at the time of Sessa's state- ment to Gisslow does not clearly appear, but, in any case, about 8:30 on the morn- ing following the vote, the San Francisco branch manager, Charles Widmer, asked employee John Azizi, who served as shop dispatcher and Widmer's assistant, what had taken place at the meeting, which Azizi had attended, and the latter replied that the employees had "voted for a strike," and that it would take place "within the next 48 hours." Widmer conveyed this inaccurate version of the Union 's inten- tions to Tabor about a half hour later.6 Shortly thereafter that same morning, Tabor telephoned Duffy at the latter's office in Los Angeles and relayed Widmer's information to him. Duffy thereupon instructed Tabor to survey the prospects of having other television and radio service establishments handle the Bay Area branches' work orders and commit- ments. Later that day, Tabor reported to Duffy that arrangements for such sub- contracting could be made, and Duffy thereupon directed Tabor to make them, and as that was done, to "lay off" all the technicians in the Bay Area branches. Tabor transmitted these instructions .to the three branch managers involved, and the upshot of the matter was that the Company made arrangements with various service enterprises, including its wholly owned subsidiary, Factory Service, to per- form work for the branches; and laid off or discharged all of its Bay Area branch technicians, numbering 28 employees in the aggregate, by the close of business on Saturday, October 10, 1959. (Some were told that they were laid off; some that they were discharged; and others that they were locked out.) Up to that point, no strike had, in fact, been called, nor had any taken place; nor had the Union in- formed the Company of the strike vote or of any purpose or intention to imple- ment it; nor had the Company attempted to secure confirmation from.the Union of the inaccurate information that the Union had resolved to call strike "within the next 48 hours." withstanding this occupational title, the evidence does not establish that Curcio is a supervisor within the meaning of the Act, nor is there any other probative basis for imputing any such interrogation by him to the Company. E For reasons that will appear, the legality of the lockout that followed soon after the strike vote is unaffected by the content of the remarks Cunha made after the meeting or by the version of the Union's intentions reported to the management, but I nevertheless note that I do not credit the testimony of employee Samuel Sarhad to the effect that Cunha said that he would not tell anyone when the strike would take place, but that it would occur "within 48 hours." Sarhad, who is not a member of the Union, appeared to me to have a hostile attitude toward it, and I believe this colored his testimony at various points. Another matter to note is that he depicts himself as informing Widmer, on the morning after the meeting, of the strike vote and Cunha's remarks; whereas Widmer, in quoting the source of his information, makes no mention of Sarhad, imputing it, instead, to Azizi, who is Sarhad's brother-in-law. The minutes of the Union's meeting, the credible evidence of what stook place there and of Cunha's remarks, and my appraisal of Sarhad, Widmer, and Tabor (Azizi did not testify), combine to leave me in some doubt that the management was actually told, whether by Azizi or Sarhad or anyone else, that the Union intended to call a strike within 48 hours, but, in the absence of evidence to the contrary, I accept the testimony of Widmer and Tabor that they received information to that effect, noting in that connection that It is possible that Sarhad or Azizi mis- understood Cunha and that this misunderstanding led to an erroneous report to the management. 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 20, 1959, the Company wrote a letter to each of the 28 technicians, stating, among other things, that it was "herewith terminating its forced lockout and will immediately begin operations" at the applicable branch, requesting the ad- dressee to report for work on October 23, 1959, and specifying the manner in which he could secure an extension of time to report. Of the technicians affected, 12 returned to work at their respective branches. Those who did not return have been replaced. B. The legality of the lockout The major issue in this proceeding is whether the lockout of the 28 technicians constituted unlawful discrimination within the reach of Section 8(a)(3) of the Act. In connection with that issue, it may be noted that the General Counsel concedes that the letter of October 20, 1959, addressed to each technician "constituted a valid offer of reinstatement" to the employee involved; and that, hence, he does not seek reinstatement of the replaced technicians in the event of a holding that the lockout was unlawful. In its brief, citing the letter from the two labor councils and the report to the management on the morning of October 8 that the Union had, on the previous evening, resolved to call a strike within 48 hours, the Respondent asserts that "economic considerations" legally justified it in laying off the employees and "farm- ing out . the service work." According to Duffy, the determination to lay off the technicians and subcontract the work was his "sole decision," and, thus, the claim that the decision was moti- vated by "economic considerations" rests, basically, on testimony he gave to the effect that because he believed on the morning of October 8 that a strike was imminent at the Bay Area branches, he decided "to farm . . . out" their work in order to protect the Company against loss of customers, including the monthly service subscribers; avoid undue delay in returning customers' products to them; and carry out the Company's responsibilities under the monthly service agreements, which, according to Duffy, imposed a "contract liability" upon the Company. (Actually, it may be noted, each agreement expressly provides that it "may be canceled at any time upon written notice of either party to the other.") One may agree that the factors Duffy describes played a role in his decision, but there is nevertheless good reason to conclude, in the perspective of the whole record, that he was not as frank as he should have been, and that his motivation for the lockout went much beyond the "economic considerations" he spells out. Indeed, the Respondent's own brief suggests as much, for there, as an alternative to the justification based on "economic considerations," the Respondent takes the position, in substance, that the lockout was "a legitimate economic weapon" to compel the employees "to accept terms in an economic dispute," or, in other words, in the context of the negotiations preceding the lockout, to force the Union and the em- ployees to agree to forgo the union-security provisions that had been a part of every previous contract for about a decade. Moreover, in the letter of October 20, sent to each technician, Duffy himself pictures the Company as shutting down the Bay Area branches "as a counter measure against a strike to be called by Local 202, and as a means of assuring that other servicing institutions would continue to take care of Packard Bell sets so long as this strike situation continued." [Emphasis supplied.] The "counter measure against a strike," and the "weapon" to compel acceptance of the Company's terms, reside, as reasons for the lockout, at a con- siderable distance from the motivation Duffy ascribes to himself in his testimony. The sum of the matter is that whether or not the claimed "economic considerations" entered into Duffy's decision, the evidence establishes, as will presently appear, that a prime objective of the lockout was to dissipate organizational support of the Union among the employees, and to demonstrate to them that strike action would be a failure. The road to this conclusion properly starts, in my judgment, with the Company's demand, made during the collective-bargaining negotiations some months before the lockout, that the Union forgo the long-standing union-security provisions and replace them with an "open shop." It is quite beside the point to say, as does the Respondent, that it had a right to seek abandonment of the union-security pro- visions, for this right is neither in issue nor open to question. What is relevant is an inquiry into the reasons for the Company's insistence that the Union forsake the union-security arrangements . The answer to that question , it seems to me, pro- vides some measure for the accuracy of the Respondent's claim, voiced in its brief, that "there is a complete dearth of evidence with respect to union animus on the part of Respondent" (a contention that is wide of the mark, if for no other reason than that it disregards the evidence of the coercive statements made by Tabor and Sessa, to which previous reference has been made). PACKARD BELL ELECTRONICS CORPORATION 1133 As the Respondent would have it, judging by its position in the negotiations, it sought abandonment of the union-security provisions because it felt that "the em- ployees" did not want them, and it did not wish to force the men "to join a union to retain their position." These alleged reasons have a flimsy posture. One may note first, in that regard, that the Union had represented the Bay Area branch technicians for a considerable number of years; and that the right of representation had been reaffirmed in an election conducted among the employees by the Board only about 16 months before the "open shop" demand. Significantly, there is no evidence that any employee had ever registered any objection with the Company to the inclusion of the union-shop provisions in the contract under negotiation, or, for that matter, in any of the prior agreements. In fact, one may reasonably infer that none of "the employees" had made any such objection, for, if Hogan is to be credited, what induced the Company's belief that the Bay Area branch technicians did not desire such provisions was the management's "impression that many of the employees . .. were no longer paying their dues" (an "impression" based, according to Hogan, on reports by Tabor and two Bay Area branch managers that they had overheard technicians say that "many" were no longer paying dues or attending meetings). The falling off of dues payments obviously does not necessarily mean that "many" of the employees were opposed to the union-security provisions, for the condition could have been the product of the Union's choice, and, in fact, when the Company "raised the question" during the negotiations, the Union replied that it had been following the course of not seeking new members or requiring dues payments "as long as (it) had been unsuccessful in getting a contract signed." (Contract negotiations had been in progress for about 11/z years when the "open shop" demand was made.) This explanation had no impact upon the Company's position, and the reason for that, I am convinced, was that the explanation was alien to the Company's purpose. That purpose is made evident by the hard fact that the Company, as Hogan ad- mitted, rejected a proposal by the Union that an election be held among the employees to determine whether they "favored or didn't favor a union shop." The Company was admittedly aware that the facilities of impartial public agencies were available for such an election; yet offered no explanation at the hearing (nor to the Union, so far as appears) for its rejection of the proposal. In the light of the hard evidence mentioned above, I am unable to place any reliance on the subjective claim that the Company believed that "the employees" did not desire union-security provisions and that it took the "open shop" position out of solicitude for its employees' freedom of choice? Due regard for rational interpretation of the total record impels the conclusion that the Company rejected the election proposal either because it feared the result or was uninterested in the wishes of "the employees"; that its profession of solicitude for their wishes is but a self-serving abstraction designed to cover an ulterior motive in insisting that the Union forego the longstanding union-security provisions; and that the motive was to weaken the Union, irrespective of the wishes of the employees. That conclusion is not negated by the fact that the Union and the Company had had collective-bargaining and contractual relations for many years prior to the expiration of the last contract in 1957. The record tells us nothing of substance concerning the internal state of these relations beyond the fact that they existed; we are not informed how amicable, trusting, or mutually respectful they were; but, in any case, experience teaches us that the climate and context of collective bargaining are, like other human affairs, subject to change, and that such alterations may be the product of shifts in managerial or union personnel or direction, economic conditions, or collective bargaining mores. The record does not permit a determination whether any such shift underlay the Company's "open shop" demand; but what it does tell us is that the Respondent sought to wipe out union-security arrangements of many years' duration; that it has given a thin and implausible explanation for its position; and that, particularly taking into account its unexplained rejection of the election proposal, the evidence leaves one no rational choice but to conclude that its adamant insistence that the Union forego the union-security provisions was rooted in a design to undermine the organization's strength among the Bay Area branch tech- nicians, irrespective of the state of the prior relations. 7 The strike vote provides evidence that a large majority of the technicians actually favored the Union's position on union security, and this gives added support to the view that there is a flimsy cast to the Company's subjective claim, expressed by Hogan, that it took its "open shop" position because it felt that "the employees" were opposed to the union-security provisions. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOA1W The lockout, in my judgment, was both an outgrowth and an expression of such a purpose. This becomes apparent upon consideration of the sequence of events that followed Hogan's promise, on September 23, 1959, in response to Bird's request, to call the later and let him know whether Duffy had altered his position on the union- security issue. The record warrants a belief that Hogan did not telephone Bird, as. promised; but, in any case, there can be no doubt that the Company's insistence that the Union forego the preexisting union-security arrangements was the direct cause of the strike vote, for the negotiating impasse centered on the union-security issue;, and that the vote was a manifestation of support for the Union by a considerable majority of the employees. It is fair to conclude that the lockout, too, was a product of the Company's "open shop" position, for, plainly, the lockout was the Company's response to the strike vote. Duffy said as much in his letter of October 20, 1959,. as is evident from his statement there that the Bay Area branches had been shut down "as a counter measure against a strike to be called" by the Union. Sessa, too,, as the undisputed evidence establishes, made basically the same point when, on several occasions within a few days after the lockout, in response to queries by Garcia, whether employment would be available at the Oakland branch, he told Garcia than the employees had "voted for a closed, shop" and had been given one by the management. Duffy's own characterization of the lockout as a "countermeasure against a strike to be called," and Sessa's remarks of similar purport, of themselves imply that the lockout was a device to undermine the employees' support for the Union, as mani fested by their strike vote, but the implication takes on clearer dimensions when it is borne in mind that both the strike vote and the lockout grew out of the Company's insistence that the Union forgo long-standing union-security arrangements, and that the underlying objective of this attitude was to weaken the Union or, in other words, the employees' organizational strength. Viewed against the background of the basic aim of the "open shop" position, I think it reasonable to conclude that the- "counter measure" was a projection and implementation of that aim, taking the form of 'a temporary denial of employment (about 2 weeks) in order to demonstrate to the employees that the Company could successfully deal with a strike and that the organizational activity they had authorized would result in disadvantage to them. That conclusion is buttressed by the text of the letter Duffy wrote to each locked out employee on October 20, 1959. There, as a preface to offering the given em- ployee reinstatement, and after describing the shutdown of the Bay Area branches "as a counter measure against a strike . and as a means of assuring that other servicing institutions would continue to take care of Packard Bell sets so long as this strike situation continued," he states: "Your Company has successfully countered this strike threat and its obviously intended injury to our customer relationships.. Being now in a position that Packard Bell sets will be appropriately serviced in a. timely manner, your Company is able to reopen its service branches without further concern." [Emphasis supplied.] Construing the meaning of the letter beyond its self-serving descriptives (such as, for example, claims that the lock-out was "forced" upon the Company, and that it "was forced to shut down" the three branches), I think it reasonable, particularly in the light of the evidence of an underlying purpose by the Company to dissipate the Union's strength among the employees, to read the letter as informing the employees, in effect, that the measures taken, including the lockout, had demonstrated that the Company could deal with a strike (had "success- fully countered this strike threat") so that one would be fruitless for the employees; and now that that had been accomplished, they could return to work. Needless to say, the natural tendency of the denial of employment involved in such a demonstra- tion would be to discourage membership in the Union, and the lockout was thus unlawful .8 8In somewhat the same vein as portions of the letter of October 20, Duffy gave testi- mony to the effect that he did not wait until a strike to subcontract the work because he wished to have "some assurance" that he would be able to do so in the event of a. strike ; and that he decided, on October 20, "to reopen the branches," because he had "proof" that the work could be subcontracted "from actually doing it," and he "felt like. some of the employees would return to work." Assuming, arguendo, that this testimony- is credible, the lockout was nevertheless unlawful, for, particularly bearing in mind than it followed bard on the heels of the strike vote and was a reaction to the vote, the reasonably. foreseeable result of the denial of employment entailed in getting the "assur- ance" or "proof," to which Duffy alludes, would be to interfere with the employees' free exercise of their Section 7 rights and to discourage membership in the Union. See The Radio Officers' Union etc. ( A. H. Bull Steamship Company ) v. N.L.R.B., 347 U.S. 17. PACKARD BELL ELECTRONICS CORPORATION 1135, In summary, for the reasons stated, I find that an objective of the lockout was to further an underlying aim of the Company to weaken or dissipate support for the Union among the Bay Area branch technicians by demonstrating for them that the Company could successfully deal with a strike, and that a strike would be disad- vantageous for them; that the reasonably foreseeable consequence of the lockout would be to discourage membership in the Union; and that by laying off, discharging, or locking out the Bay Area branch technicians, the Company discriminated against each of them in violation of Section 8(a)(3) of the Act, and interfered with re- strained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the. Act, and thereby violated Section 8 (a) (1) of the statute.9 C. The alleged promises and offers of increased wages There remain for disposition averments of the complaint to the effect that the Company violated Section 8 (a) (1) of the Act by offering Bay Area branch technicians wage increases "to induce them not to strike" and "to refrain from striking." 10 The allegations center, in part, on operations of Factory Service, the Company's wholly owned and controlled subsidiary, during the lockout period of about 2 weeks. The arrangements made by the Company for the handling of work by Factory Service for the Bay Area branches added considerably to the subsidiary's business volume and resulted in a large increase in its previously small work force. Sessa, Tabor, and May, manager of Factory Service, took or initiated steps to re- cruit technicians for the subsidiary from among some of those who had been laid off in the lockout. Thus, a few days after the lockout, Sessa made a proposal to Garcia and another technician named Kraft that they work for Factory Service, telling Garcia that they would receive higher pay rates than the Company had given them; and telephoned May that he was "sending a couple of good men up to go to work." Act- ing on Sessa's proposal the two technicians went to Factory Service's place of business on October 13 and were interviewed there by May. The upshot of the matter was that May offered them employment at rates of pay that were higher than those they had previously received, telling them to report for work on the following Monday." Upon subsequent advice of the Union , Garcia and Kraft did not report as directed. The conduct of Sessa and May, outlined above, does not sustain the allegations in question, for the proposals or offers of higher wage rates were not attended by any stated requirement that Garcia and Kraft refrain from participation in a strike. This is also true of the circumstances in which some seven or eight of the locked-out tech- 9 In view of the findings regarding the motivation for the lockout, it would, in my- judgment, be but an academic abstraction to pass on the Respondent's position , expressed' in its brief, that it had a lawful right to lock out the employees to compel them to accept its collective-bargaining terms. It may be pointed out, in that regard, that Duffy, who says he was solely responsible for the lockout decision , does not ascribe such a motive to himself either in his testimony or in his letter of October 20, 1959. I note, too, that by passing the matter, I intend no implication that I see merit in the notion that the Act sanctions a denial of employment as an instrument .to force employees to accept their employer's terms in collective bargaining. I intend no more than to say that it would not be a profitable use of time to determine the validity of the position in view of the findings made. 10 Intermingled with these allegations of violation of the Act is one (paragraph III of the complaint ) to the effect that "on or about" various dates early in October 1959• (before the lockout ) Oakland Branch Manager Sessa and Sales Manager Curcio "sought to• induce ( employees ) not to strike." This allegation is in addition to those dealing with offers of wage increases , discharge warnings , the lockout, and interrogation. In connec- tion with the allegation in question, I note that an effort by an employer to induce em- ployees not to strike is not per se a violation of -the Act, for such conduct , depending on its nature, may be privileged within the range of Section 8(c) of the Act. 11 May testified that he "wasn't familiar with the wage structure of Packard Bell," thus implying that be was unaware that he offered Garcia and Kraft higher wages, and' that the rate he paid another locked-out technician ( Sarhad ), whom he hired' during the. lockout period , was higher than that given him by the Company. In view of May's posi- tion, his considerable prior service with the Company, the relationship between Factory Service and the Company, and the undisputed evidence of what Sessa told Garcia, I have substantial doubt, to say the least, of the credibility of May's relevant testimony and its implication . In any case, whether or not one accepts this testimony , what he did in the premises is imputable to the Company, since, bearing in mind his relationship to Duffy, and that of the subsidiary and the Company , there can -be no doubt that he was an agent of the latter. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nicians, upon Tabor's initiative, and that of May, applied to the latter for employ- ment by Factory Service on or about October 15, and were hired, working for the subsidiary until the end of the lockout about a week later. (Actually, the record-does not establish that any of these, with the exception of Samuel Sarhad, were either promised or paid higher rates than they had received from the Company.) More- over, to assert that the offer or payment of higher rates was harnessed , by implica- tion, to a condition or requirement that the employees affected refrain from striking would be to guess one's way into such a conclusion, particularly as it is evident that the the governing consideration was to enable Factory Service to handle the work turned over to it during the lockout period. To be sure, in that aspect, the higher rates offered or paid were an implementation of the lockout, with its design of demon- strating to the employees that a strike would be fruitless for them, but that does not appear to be, in sufficiently clear terms at least , the thrust of the allegations under consideration. Nor is there credible support for them in the testimony of an Oakland branch technician named Richard G. Avedikian, who was among those laid off by the lock- out, and who returned to work about a month after its termination. During the course of investigation of the charge in this proceeding, Avedikian had given a representative of the General Counsel an affidavit, stating, among other things, that on several dates early in October (before the lockout) Sessa and a sales employee of the Company, Joseph A. Curcio, asked him if he would continue to work in the event of a strike, and promised him a wage increase if he did so. Called as a witness, however, although admitting that he had told the General Counsel's representative what the affidavit contained, and had sworn to its truth, he testified that Sessa and Curcio had not made the relevant statements to him stating that he had "lied" in the affidavit because Cunha had told him to do so (an allegation denied by Cunha in his testimony). At subsequent points, Avedikian conceded that Cunha had said nothing to him about Curcio, and affirmed the truth of portions of the affidavit to the effect that Sessa and Tabor asked him to go to work for Factory Service; that Tabor offered him a wage increase if he did so, and that the affidavit "is true and correct" (thus in his testimony affirming, in effect, that Sessa and Curcio had made the pre-. lockout statements he imputes to them in the affidavit). I can see no useful purpose in pursuing added details of Avedikian's evidence, deeming it sufficient to note that it is so infected with evasiveness, self-contradiction, and professions of loss of recollection that appeared to be convenient rather than truthful, that no reliance can be placed on his testimony, including his affirmations that portions of the affidavit were true. To this, one may add that the affidavit is not of itself, of course, a permissible basis for findings that the employment and wage offers described there were made to him. The sum of the matter is that the evidence does not establish that the Company sought to induce employees not to strike by offering or promising them wage increases. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connec- tion with the operations of the Company 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 that the Company has engaged in unfair labor practices violative of Section 8 (a) (1) and (3) of the Act, I shall recommend below that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Company's unfair labor practices strike at the heart of rights guaranteed the employees by Section 7 of the Act.12 The rights involved are closely related to other rights guaranteed by Section 7. Because of the nature of the unfair labor prac- tices found above, there is reasonable ground to believe that the Company will in- fringe upon such other rights in the future unless appropriately restrained. There- fore in order to make effective the interdependent guarantees of Section 7, I shall recommend an order below which will have the effect of requiring the Company to re- frain in the future from abridging any of the rights guaranteed employees by Section 7.13 12 N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). '3May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376; Bethlehem Steel Company/ v. N.L.R.B., 120 F. 2d 641 (C.A.D.C.). AURORA CITY LINES, INC. 1137 Having found that the Company laid off or discharged 28 employees between some point on October 8 and some time on October 10, 1959 , and thereafter offered each of these employees reinstatement to his former position, requesting such employee to report for work on October 23,'1959 , I shall recommend that the Company make each of said employees whole for any loss of pay he may have suffered by reason of the discrimination against him as found above, by payment to him of a sum of money equal to the amount of wages he would have earned , but for said discrimination, be- tween the time that he was laid off or discharged and October 23, 1959 ; and that the said loss of pay be computed in accordance with the formula and method prescribed by the Board in F.W. Woolworth Company, 90 NLRB 289, to which the parties in this proceeding are expressly referred. On the basis of the foregoing findings of fact, and of the entire record in this pro- ceeding, I make the following: CONCLUSIONS OF LAW 1. The Union is, and has been at all times material to the issues, a labor organiza- tion within the meaning of Section 2(5) of the Act, 2. By discriminating against employees in regard to their tenure of employment, as found above, 'thereby discouraging membership in the Union, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The said unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and 2 (7) of the Act. [Recommendations omitted from publication.] Aurora City Lines, Inc. 'and Robert C. Tester. Case No. 13-CA- 3558. March 3, 1961 DECISION AND ORDER On June 27, 1960, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor' practices, and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. "Pursuant,to the provisions of Section 3(b)'of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers,Jenkins, and Fanning]. 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 Inter- mediate Report, the exceptions and the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions; and recom- 'We note and correct the following inadvertent errors appearing in the Intermediate Report: On January 3 , 1960, Stephen Carter was secretary-treasurer-elect of, and Walter Sutherland held no office in, Local 215 , Amalgamated Association of Street, Electric Rail- 130 NLRB No. 101. 597254-61-vol. 130-73