J.E. Plastics Mfg. Corp.

J.E. PLASTICS MFG. CORP. 299 IV. THE REMEDY Having found that Respondent has engaged in activities which violate Section 8(b)(C) and 8(b)(1)(A) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally or- 'dered in such cases, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. 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. Dynamic is an employer within the meaning of Section 2(2) of the Act. 2. Respondent Union and Vibrator's Union are labor organizations within the meaning of the Act. 3. At all times since May 16, 1958, Vibrator's Union has been the duly certified representative of the employees of Dynamic in an appropriate unit, under the pro- visions of Section 9 of the Act. 4. By inducing and encouraging employees of Dynamic and other employers to ,engage in a strike or in a concerted refusal in the course of their employment to per- :form services for their respective employers, with an object of forcing or requiring Dynamic to recognize and bargain with it as the representative of Dynamic's em- .ployees in an appropriate unit, at a time when Vibrator's Union was the duly certi- fied bargaining representative of the said employees in said unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (C) of the Act. 5. By picketing Dynamic's plant when it did not represent a majority of Dynamic's employees, with an object of forcing Dynamic to recognize and bargain with it, thereby restraining and coercing Dynamic's employees in the exercise of rights guar- anteed in Section 7 of the Act, Respondent has engaged in unfair labor practices 'within the meaning of Section 8(b) (1) (A) of the Act. 6. The aforesaid unfair labor practices having occurred in connection with Dy- namic's operations as set forth under section I, above, have a close, intimate, and ,substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. I[Recommendations omitted from publication.] J.E. Plastics Mfg. Corp. and General Paper & Artificial Flower Workers Union , Local 679, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO. Case No. s-CA- 7324. April 27, 1961 DECISION AND ORDER On January 11, 1961, Trial Examiner Phil Saunders issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Interme- diate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices and recommended that such allegations be dismissed. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' 1 The Respondent's request for oral argument is hereby denied Inasmuch as the record, exceptions, and brief adequately present the issues and positions of the parties. 1131 NLRB No. 44. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Interme- diate Report,3 the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions' of the Trial Examiner. ORDER Upon the entire record in this proceeding and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, J. E. Plastics Mfg. Corp., Yonkers, New York, its officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in General Paper & Artificial Flower Workers Union, Local 679, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, or Local 1, Pock- etbook and Novelty Workers Union of New York, International Leather Goods, Plastics and Novelty Workers Union, AFL-CIO, or any other labor organization of its employees, by discharging or re- fusing to reinstate any of its employees; or in any other manner dis- criminating in regard to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating employees concerning their interests in, and in- tentions with respect to joining, the above-named or any other labor organization, in a manner constituting interference, restraint, or co- ercion violative of Section 8 (a) (1) of the Act. (c) Threatening employees with discharge or other economic re- prisals for their union activities. At the hearing the Respondent requested the General Counsel to permit a Board agent to testify with respect to an affidavit which he had taken from Respondent 's president The General Counsel refused to grant such permission and the Respondent has excepted on the ground that its inability to examine the Board agent was prejudicial to the presen- tation of its case. Section 102 118 of the Board 's Rules and Regulations makes it clear that the General Counsel may not be compelled to permit an employee under his super- vision to testify Moreover, such refusal, in this case, could not have been prejudicial since the Trial Examiner found that the affidavit which the General Counsel introduced for the purpose of impeaching the president's testimony was in fact consistent with his testimony The Trial Examiner relied on the president's testimony in finding that Respondent had not promulgated an invalid no-solocitation rule and dismissed that allega- tion of the complaint The General Counsel has not excepted to such dismissal 8 We note and correct the Trial Examiner 's inadvertent reference to Benitez as a Board agent Benitez is a private individual who assisted Maldonado after her discharge. 4In its examination of Maldonado , the alleged discriminatee , Respondent asked her if she wanted to go back to work for J.E. Plastics, and Maldonado replied, "I don ' t think so " Respondent urges that this exchange constituted an offer and refusal of reinstate- ment and that any backpay liability should be terminated as of the date of the hearing We do not agree Respondent' s query does not indicate that it was ready to offer Maldonado her former or an equivalent job even if she had answered more specifically. Cf Minimac Stores, 95 NLRB 129 Nor does Maldonado ' s answer indicate an un- equivocal resolve not to accept reinstatement when and if such an offer is properly made. Arista Service, Inc, 127 NLRB 499. J.E. PLASTICS MFG. CORP. 301 (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities except to the extent that such right may be affected by an agreement 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 to Julia Maldonado immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the Respond- ent's discrimination against her in the manner set forth in that section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all records necessary to analyze the amounts of backpay due under the terms of this Order. (c) Post in its plant at Yonkers, New York, copies of the notice at- tached hereto marked "Appendix A." 5 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by Respondent's representative, be posted by the Re- spondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent had an unlawful no- solicitation rule, in violation of Section 8(a) (1) of the Act. MEMBER BROWN took no part in the consideration of the above De- cision and Order. I 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." 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A 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 General Paper & Arti- ficial Flower Workers Union, Local 679, International Brother- hood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, or Local 1, Pocketbook and Novelty Workers Union of New York, International Leather Goods, Plastics and Novelty Workers Union, AFL-CIO, or any other labor organization, by discharg- ing or refusing to reinstate any of our employees, or in any other manner discriminating in regard to their hire or tenure of em- ployment, or any term or condition of employment. WE WILL NOT interrogate employees concerning their interests in, and intentions with respect to joining, the above-named or any other labor organization, in a manner constituting interference, restraint, or coercion violative of Section 8(a) (1) of the Act. WE WILL NOT threaten our employees with discharge or other economic reprisals for their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or- other mutual aid or protection, and to refrain from any and all such activities except to the extent that such right may be affected- by an agreement authorized in Section 8 (a) (3) of the Act. WE WILL offer to Julia Maldonado immediate and full rein- statement to her former or a substantially equivalent position without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay suffered as a result of the discrimination against her. All our employees are free to become or refrain from becoming- members of the above Union, or any other labor organization, except to the extent that said right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act as modified by the Labor- Management Reporting and Disclosure Act' of 1959. J. E. PLASTICS MFG. CORP., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof,. and must not be altered, defaced, or covered by any other material.. J.E. PLASTICS MFG. CORP. INTERMEDIATE REPORT AND RECOMMENDED ORDER 303 STATEMENT OF THE CASE This proceeding, with the Respondent and the General Counsel represented, was heard before the duly designated Trial Examiner in New York City, on July 18 and 19 and August 15 and 16, 1960 , on complaint of the General Counsel and answer of the J. E. Plastics Mfg. Corp ., herein called the Respondent or the Company. The issues litigated were whether or not the Respondent violated Section 8(a)(1) and (3 ) of the Act. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence pertinent to the issues. At the close of the hearing the parties presented oral argument , and both parties , also filed helpful briefs which have been duly considered. Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation, and at all times material hereto has main- tained its principal office and place of business in the city of Yonkers, New York, and a sales office in the City and State of New York, where it is now and has been continuously engaged in the manufacture, sale, and distribution of plastic containers and related products. During the calendar year 1959, Celanese Corporation of . America sold products to J. E. Plastics Corporation, in the amount of $361,158. Such products were manufactured by Celanese Corporation of America outside of New York State, and shipped from such place of manufacture directly to the premise of the Respondent within the State of New York. I find that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATIONS INVOLVED General Paper & Artificial Flower Workers Union, Local 679, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, herein called the Union; and Local 1, Pocketbook and Novelty Workers Union of New York, Inter- national Leather Goods, Plastics and Novelty Workers Union, AFL-CIO, herein called Local 1, and each of them are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Events and issues On August 1, 1958, the Company and the Union (Local 679) executed a 3-year contract for the employees of the Respondent. The contract terminates August 1, 1961, and also contains the usual union-security clause. The record established that a majority of the employees in the company plant are Spanish people, and that within the last several months some of these workers, and in particular the alleged discrimi- natee Julia Maldonado, became dissatisfied with the contract between the Company and the Union, and desired certain changes and additional benefits. The record further reveals that on March 9, 1960,1 there was a meeting at the company plant, and present at this meeting were the president of the Union, Anthony Barbaccia, Vice President Weinberg of the Company, and a committee of employees, including- the alleged discriminatee Julia Maldonado, who represented the Spanish-speaking employees. While there is numerous testimony in the record as to the initial reasons for calling this particular meeting, and the statements vary in some of the details, the record, nevertheless, clearly reveals that throughout this March 9 meeting Mal- donado discussed insurance, holidays, hospitalization, and other desired benefits for the employees. In addition Maldonado questioned the Respondent's Vice President, Weinberg about certain employees who were not paying their union dues. The record also reveals that after the March 9 meeting, Maldonado spoke to fellow employees, and on several occasions relayed the impression that she would not sup-- port or sign any contract which did not contain additional benefits, as aforestated. Julia Maldonado, the only 8 (a) (3) involved here, was discharged by the Company on March 16. On the day following her discharge Maldonado distributed union, cards for Local 1 at the entrance of the Respondent's premises. In this proceeding the complaint alleged that the Company discharged Julia. Maldonado because of her union activity; the Company has maintained and enforced, i All dates are 1960 unless specified otherwise. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a plant rule which prohibits employees from discussions, meetings, and solicitation for purposes of mutual aid on the Respondent's premises during nonworking time; the Company interrogated employees concerning memberships and activities on behalf of Local 1; and the Respondent threatened Maldonado with discharge to induce her not to engage in concerted activities. The Company entered a general denial to the material allegations, and also sets forth certain affirmative and separate defenses.z In addition, the Respondent also relies upon the theory that at the time the Union filed the instant charge, its president, Anthony Barbaccia, did not believe that the Respondent had committed an unfair labor practice, but that the Company had dis- criminated against Maldonado because of her Puerto Rican extraction. Regardless of whatever initial thoughts the Charging Party may have had, the record discloses that the charges filed by the Union and signed by its president, Anthony Barbaccia, on April 13 and May 13, specified therein that the Company had engaged in unfair labor practices within Section 8(a) (1) and (3) of the Act. I am unable to find any authority that the Charging Party's opinion is controlling or material to the final determination as to whether a violation exists and a complaint should issue. Here, when regular and formal charges were filed by the Union, the General Counsel, after an investigation of the case, decided that the circumstances and statements which were secured during the investigation warranted the issuance of a complaint. All the testimony on which the General Counsel relied to sustain the complaint was then presented at the hearing, and the Respondent had full and complete oppor- tunities to refute this testimony and to present whatever evidence was available to them. Further, the Union's President Barbaccia testified that when he was first contacted about the actual discharge of Maldonado, he was told that there had been "discrimination," and that in this specific conversation about the discharge be- tween Barbaccia and a representative for the alleged discriminatee, Benitez, no mention was made of racial discrimination .3 The record also discloses that when the Union's President Barbaccia testified, he was asked by the Respondent if he wished to withdraw the charges in view of the Respondent's position that when the Union filed the charge the initial intentions ostensibly involved racial discrimination, and that Barbaccia then replied, "I don't think we should withdraw the charge unless we see the whole thing, go right through the whole case now. I don't see why we should withdraw anything." Further, there is no credible evidence in this record as to the exact status of Benitez, or on what specific basis he made his interven- tion on behalf of Maldonado, but nevertheless, the record does reveal that the charges by the Union and the complaint which followed were all made on the basis of unfair labor practices, and certainly, under these circumstances, prior discussions, numerous considerations, and conversations between parties cannot impede the nor- mal course of litigation once the formal charges of unfair labor practices have been duly filed and authenticated, and upon an investigation it is determined that a com- plaint should be issued. Also the evidence here will not support the position of the Company that the Union only intended to file charges on racial discrimination.4 The Respondent's contention in this respect is rejected. B. The evidence as to alleged violations of Section 8(a)(1) of the Act; findings and conclusions with respect thereto 1. Interrogations and threats Julia Maldonado credibly testified that on March 9, following the meeting with the Union and the Company and wherein she had discussed several additional bene- fits desired by the employees, as aforestated, the Respondent's Foreman Frank Meyer 2 The Company maintains that the activities of the alleged discriminatees in behalf of Local 1 constitute a violation of the Respondent's agreement and contract with the Union, that any order against the Company would result in impairment of the Respond- ent's contractual rights, and that alleged discriminates Maldonado was discharged for cause. a The testimony .reveals that alleged discriminatee Julia Maldonado first contacted Benitez after her discharge, that she was sent to him by a friend of Local 1, and that she had heard over a radio program of his help to Spanish people. Benitez then contacted Union President Barbaccia, and discussed with him Maldonado's discharge, as afore- stated. There are some conflicting statements in the record as to the status and type of services rendered by Benitez The Company contends that Benitez represented Spanish people with racial discriminatory problems. 4 Maldonado credibly testified that she never told Board Agent Benitez or Union President Barbaccia that she was fired for racial discrimination Sixto Vicens also credibly testified that Benitez never mentioned discrimination as against Puerto Ricans J.E. PLASTICS MFG. CORP. 305 told Maldonado, "Julia, it's better for you to keep your mouth shut. The boss doesn't want nobody to bother him with the Union and if you go ahead talking about the union business, you will be discharged." Maldonado replied to Foreman Meyer that she would not remain silent, and the record established that on several subsequent occasions Maldonado did speak to other employees about the union contract and her wish for more benefits .5 Employee Elizabeth Rivera corroborated the above testimony , and stated that on March 9 Foreman Meyer had told Maldonado , in the presence of Rivera, that Julia was a "nice girl," but to keep from union "trouble," or Maldonado might be discharged . Rivera further testified that sometime after March 16, the date on which Maldonado was discharged, Respondent's Vice President Weinberg told her that he did not want to see any picketing, that he did not want Maldonado there with another union, that in case such happened "he was going to close the factory," and that Weinberg then inquired if Rivera had signed "a card" for Maldonado. Sixto Vicens credibly testified that he heard Foreman Meyer tell Maldonado, "Keep your mouth shut because you can be discharged," and that this statement was made to Maldonado on March 9, and after she had attended and spoken at the union and company meeting. Vicens also testified that the day after Maldonado was discharged, March 17, Vice President Weinberg had asked Vicens if he had signed "some of Julia's cards." Foreman Frank Meyer testified that he did not make any statement to Maldonado about union activities, or that she would be discharged, and that on the occasion in question on March 9, his duties at the plant required his services at the timeclock and elsewhere. Vice President Weinberg testified that Maldonado did speak at the union and company meeting on March 9, and that a few days later he had also observed Maldonado speaking to a large group of employees during the lunch hour. Weinberg admitted that he then questioned some of these employees and had inquired of them as to what it was all about, and in response was told that Mal- donado was interested in getting membership in another union. Weinberg further testified that on March 17, the day after the discharge, he had observed Maldonado near the company gate talking to employees and giving them cards, and that he had then inquired of certain employees if they had received cards, and had also inquired of others if they had signed cards.6 Weinberg stated that he did not "do anything" after his questioning of employees. As to the antiunion threats attributed to Foreman Meyer by the witnesses for the General Counsel, Meyer testified that he never made any such statement. Meyer's denial in this respect cannot be supported with the consistent and corroborated testimony against him. Whether Meyer actually phrased his threatening state- ment in the exact way and manner as so attributed to him , could possibly be sub- ject to some conjecture or rebuttal, but Meyer's position that he never made any such statement is untenable. On the record as a whole, for the reasons given here, my observations and the demeanor of the witnesses, I credit the testimony of the General Counsel's witnesses as to what Foreman Meyer said. Vice President Wein- berg admitted in his testimony that he questioned employees as to what Maldonado was speaking to them about, and that on subsequent occasions he questioned certain employees if they had received and signed union cards. It is also noted that Wein- berg did not specifically refute or deny the antiunion statements attributed to him by Elizabeth Rivera and Sixto Vicens, as aforestated. Weinberg admitted that he had conversations about signing cards, and had then made inquiries of Marina Tatis, Norman Wiener, and Josephine Ruiz. On the basis of the above, I credit the witnesses for the General Counsel. In determining whether an employer's conduct amounts to interference , restraint, or coercion within the meaning of Section 8 (a)(1), the test is not the employer's intent or motive , but whether the conduct is reasonably calculated , or tends to, interfere with the free exercise of the rights guaranteed by the Act. N.L.R.B. v. Illinois Tool Works, 153 F. 2d 811, 814 (C.A. 7). Then, too, on the issue of whether the Respondent violated Section 8(a)(1) of the Act, it is not required that each i-em of the Respondent Company's conduct be considered separately and apart from all others, but consideration must be given to all such conduct as a whole. N.L.R.B. v. Popeil Brothers, Inc., 216 F. 2d 66, 68 (C.A. 7). If the setting, the S The record clearly reveals that Foreman Frank Meyer exercised functions, duties, and authority with respect to hiring, transfers, discharge, and work assignments of employees, and was acting in a supervisory capacity. 6 The cards referred to in the above testimony by Weinberg were union authorization cards of Local 1. 599198-62-voL 131-21 306 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD conditions, the methods, the incidents, the purpose, or other probative context of the particular situation can be appraised, in reasonable probability, as having the effect of restraining or coercing the employees. in the exercise of such rights, such activity on the part of employer is violative of this section of the Act. N.L.R.B. v. Protein Blenders, Inc., 215 F. 2d 749, 750 (C.A. 8). In applying these well-established principles of law to the testimony I have credited, it is found that the Respondent's course of conduct violated Section 8(a) (1) of the Act. The surrounding circumstances in this case, which are singly and in combination unfair labor practices, are: (a)i Interrogating employees about their union activities, and their signing of union cards. (b) Threatening an employee with loss of employment for engaging in union activities. (c) Threatening an employee with closing of the plant because of union efforts. It is found, therefore, that the conduct described above has had the effect of interfering with the rights guaranteed to employees by Section 7 and constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. 2. The alleged no-solicitation rule The Respondent's president, Herbert Magnes, testified that the Company does not have any rule which prohibits employees from discussing union activities in the plant. To impeach the credibility of this testimony, the General Counsel intro- duced into evidence the affidavit of President Magnes which was taken by a Board agent in the investigative phase of the case Magnes stated in the affidavit that 8 or 9 years ago the Company had some difficulties, which arose out of the conflict between rival Puerto Rican political groups, and as a result, a serious riot occurred at the plant. The affidavit further stated that thereafter the Company promulgated a rule which prohibited discussions, meetings, congregations, solicitations, etc., and that the rule was established due to the riot and also because of solicitations by various salesmen for cosmetics, etc. The affidavit concluded by stating that the Company does not allow meetings, solicitations, and discussions, during working or nonworking time, which do not pertain to the work of the plant, and that on several occasions workers have been reminded of the rule and it has been discussed with employees and their bargaining representative. Magnes testified that everything stated in the affidavit was true, but then stated in his testimony at the hearing that he now completely repudiates the affidavit on the basis that he was told what to say by the investigator, that the affidavit does not contain all the facts involved, and that his statement to the investigator contained a good deal more than the affidavit reflected, and that, therefore, the contents of it were not true. Company President Magnes further testified that he had been asked by the investigator whether there was a rule against discussion of labor relations or union activities during the time the employees were in the plant, and that Manes had replied that there was no such rule, and that Maldonado was not prohibited from doing so at any time. Magnes also testified that the aforementioned rule was last enforced in 1953 when an attempt was made by Puerto Ricans on the life of former President Truman, that it was never brought up again until the investigation of this case, and there were no rules by the Company prohibiting union discussions. Employee Sixto Vicens testified for the General Counsel that he did not know of any rule at the Company concerning solicitation by salesmen, charities, or unions, and was never told or informed that any existed. Vicens also stated that when this case was being investigated, it was the first time he had heard about such rules Employee Elizabeth Rivera testified that Maldonado did not speak to other employ- ees about union matters during working hours. Dorothy Koski testified that Mal- donado went around the plant with union cards, and that she contacted Koski during working time. A union shop steward at the plant, Helen Barico, testified that employees could talk about union business and activities even on working time, that they had never been told that they could not do so, and further stated that if there had been any rule otherwise she would certainly have been informed of it. It is well-settled law by both the courts and the Board that in circumstances involv- ing this type of an operation, it is a violation of the Act for an employer to maintain a rule prohibiting union solicitation on company property during nonworking hours. However, from the testimony and the record in this proceeding, I am unable to find that the General Counsel has sustained this allegation by a preponderance of the credible evidence. J.E. PLASTICS MFG. CORP. 307 In the first instance, one of the main witnesses for the General Counsel, Sixto Vicens, testified that he had never heard of any such rule until the case was investi- gated. The shop steward also stated that there was no such rule. The.General Counsel , in proving this aspect of the case , relies to a considerable extent on the apparent discrepancy as between the statements that appeared in the affidavit of President Magnes, and the oral statements of Magnes made at the hearing. A closer examination of the affidavit by Magnes discloses that, while he and the investigator had some initial difference as to whether or not the case would be actually litigated , the affidavit nevertheless only reflected that the Company had a rule which prohibited group political discussions or meetings, where beforehand very serious consequences had resulted, and the rule also prohibited the usual type of nuisance solicitations by cosmetic and other outside salesmen . The affidavit further shows that the rule in question applied to employees at all times including nonworking hours, but I believe that a reasonable interpretation of this provision shows that the pro- hibited activities only related to the specific restrictions , as aforestated . There is nothing in the Act which in any way prevents an employer from adopting these types of limitations in the running of his business . As stated beforehand, President Magnes repudiated the affidavit in his oral testimony, but even in accepting the affidavit and assuming the full content therein , it appears to me that there is no actual or basic conflict in the affidavit which would seriously impeach the credibility of the oral testi- mony. The affidavit does not state that union discussions or solicitations were pro- hibited, and in due recognition of the initial premise reflecting the reason and cir- cumstances for the rule , it is certainly much too indefinite and unrelated to find that the Company therein prohibited employees from union activities. In the final analysis here, it is further noted that the alleged discriminatee was permitted, in the plant, to discuss union matters on nonworking time on several different occasions between March 9 and the date of discharge on March 16 . There is no contention that Maldonado was prevented from holding these meetings and discussions, and it is freely admitted by all parties that she did so , and without any warning or mention by the Company that any rule was being violated. It is also noted that the meeting on March 9 between the Company, Union , and several employees , was held at the plant and for the most part even on working time . From these events, and for the other reasons stated herein , it appears highly unlikely to me that the Company had any established or recognized rule which prevented or prohibited union activities of employees on nonworking time. In accordance with the above , it will be recom- mended that this allegation of the complaint be dismissed. C. The alleged discriminatory discharge of Maldonado; findings and conclusions with respect thereto 1. The -testimony The record established that Julia Maldonado worked for the Company for several months on two prior occasions, and in her last employment worked for the Respond- ent from August of 1959 until March 16, 1960 . Maldonado was a member of the Union, and at the March 9 meeting , as aforestated , was also a member of the shop committee for employees. The record here further established that the Company granted a general pay raise to its employees in August 1959, which also included a wage increase to the dis- criminatee, and that several months later, February 16, Foreman Meyer had recom- mended a pay raise for Maldonado and that she then received the same. Foreman Meyer in his testimony could not recall any other employee receiving a wage increase during February. Foreman Frank Meyer testified that on February 26 he told the Respondent's vice president, Weinberg, that he wanted to have Maldonado laid off. Meyer stated that prior to February 26 Maldonado was a good worker, but that then a very sudden drop occurred in her production . According to the testimony of Foreman Meyer, Vice President Weinberg then called Maldonado into the office and warned her, and Weinberg then told Meyer to give Maldonado another chance, but that during the next 2 weeks period Meyer was to keep a record on her daily work performance. Weinberg testified that Foreman Meyer had told him that Maldonado's produc- tion had "fallen off completely," that he had then instructed Meyer to keep a definite record on her work for the next 2 weeks, and Weinberg further testified that at this time he also contacted the Union about the matter , ad had then been prevailed upon to give Maldonado additional time. Weinberg also testified that on March 16 he examined the record on Maldonado, and that he then decided that her work was sub- standard to her prior production, that this performance was unsatisfactory with the Company, and on this basis Maldonado was discharged . Weinberg stated that 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he then informed President Magnes, and again notified the, Union of these circum- stances and his action on the matter. The Respondent's president, Magnes, testified that the discharge of Maldonado was based on the sudden slowdown in her work, and that union solicitation had nothing to do with it. Magnes further stated that there was never a regular employee dis- charged for bad work, and that when workers were not satisfactory in a particular job the Company would offer them other ,types of work. Magnes, in his testimony, explained that Maldonado was a sealer in the sealing and beading department, and that each sealer to a machine would have two or three "packers" at the end of each machine. In respect to the performance of a sealer, Magnes stated that the Com- pany has a "norm" based on all of the sealers in the plant and their daily production, but that each job would stand on its own depending on the size of the pieces being processed. Magnes testified that if a sealer operator is not performing the work at the pace at which the machine runs, then there are no duties for the packers and they must then be assigned other work. Magnes also testified that a sealer "is the most skilled job." Maldonado testified that she had never been informed that her work was unsatis- factory until she was discharged, and denied any conversation with Foreman Meyer about it. Maldonado also testified that she was satisfied with the Company until the March 9 meeting, but that she had been dissatisfied with the Union ever since she had joined it. Maldonado further testified that she attended one union meeting in Novem- ber which was held outside the plant, and stated that at this November meeting she was told that the contract with the Company would expire on January 15, 1960, and that she then had her initial conversations with some of the other employees, and also informed them on subsequent occasions that she would not sign another contract without the inclusion of additional benefits. 2. Conclusion From the record in this proceeding there can be no dispute that Julia Maldonado was the main instigator among Spanish employees in open opposition to the current contract between the Union and the Company, and on frequent occasions expressed her viewpoints on the matter. Nor can is be disputed that from at least March 9 and up until the discharge on the 16th, the Company had full knowledge of this fact and of Maldonado's union activities in this respect. Maldonado's efforts to solicit support for another union, regardless of an existing and current contract, is clearly protected union activity. So, too, were her activities at the meeting on March 9, and her talks and discussions with other employees. Respondent's Vice President Weinberg testified that during the 2-weeks trial period, as aforestated, he had instructed Foreman Meyer to keep a record on Maldonado; and that after Weinberg had then reviewed this record he decided to make the dis- charge. Meyer testified that his written record on Maldonado was prepared by him on a day-to-day basis. On Thursday, March 3, Meyer's daily record, which was received into evidence, shows an entry to the effect that he looked for Maldonado at 3:10 after the break in work, and that she had punched her timecard. Meyer then told Vice President Weinberg about this incident and that Meyer "wanted to let her go for just walking out like that." According to Meyer's record he then assigned Maldonado's work to another employee, Mariana Tatis. Meyer's record further shows that on the following day, March 4, Maldonado failed to report for work and did not call in. Since this daily record by Foreman Meyer on Maldonado covers the period between February 26 and March 16, its validity and authenticity becomes highly important in the final decision of this phase in the case. The timecards of the Company, and the testimony of Respondent's witness Helen Barico and others, established that employees left the plant at 3 p.m. on March 3 with the permission of the Company because of snow conditions that existed in the area. This also included Mariana Tatis, the employee who, according to Foreman Meyer's daily report, was assigned by him to complete Maldonado's work after she had left on March 3. Maldonado credibly testified that on March 3 all the em- ployees had left the plant at 3 p in., with permission, because of bad snow and weather conditions. Foreman Meyer then admitted, on cross-examination, that employees had left on March 3 with the permission of the Respondent's vice presi- dent, and further admitted that he could not have assigned Maldonado's work to Mariana Tatis on March 3 as she had also punched out at 3 p.m. On the following day, March 4, Maldonado credibly testified that she and many other employees could not report to work because of weather conditions, and Meyer then admitted that these circumstances were true and also stated that Luis Carrion, his best worker, did not report to work on March 4. Meyer's explanation of the discrepancies in his report was that "maybe I made a mistake in dates." J.E. PLASTICS MFG. CORP. 309 From the above facts and circumstances in this case I reject the report of Foreman Meyer as to the work performance of Maldonado. It is obvious from the pertinent testimony set out here that Meyer's report was grossly inaccurate. Meyer himself established that he prepared and kept this report on a day-to-day basis, and it appears very unlikely, therefore, that he could have confused the dates or incidents. Yet on March 3, when employees were excused at 3 p.m. because of bad weather, he stated in his report that he then wanted to discharge Maldonado for walking out. He also stated that on March 3 Mariana Tatis was assigned the work that Maldonado had left, and yet the company timecards, and Meyer's own testimony, duly estab- lished that this employee was also excused at 3 p.m. and could not have been given this assignment. Meyer's daily written report further stated that on March 3, after Maldonado had punched out at 3 p.m., he informed Vice President Weinberg of this fact and that he wanted to discharge her for walking out. Foreman Meyer then denied at one stage in his testimony that he had talked to Weinberg about this but, nevertheless, the fact still remains that Foreman Meyer, on March 3, expressed in a written report, which was later reviewed and used as the basis for discharge, that he wanted to let Maldonado go for leaving the plant, and yet at the same time the Company was well aware that at 3 o'clock on this date the employees were excused. Foreman Meyer contended that he prepared his report on Maldonado on a day- to-day basis after February 26 and, therefore, a goodly portion of it was compiled before the Company had any recognized knowledge of Maldonado's union activities on March 9. However, from the above glaring discrepancies it appears highly un- likely to me that Meyer's report could have been prepared at these regular intervals. Even assuming, arguendo, that Meyer complained on February 26 about the falloff in Maldonado's production and was then told to make a daily report, the Respondent then at this time rejected the discharge when it was without attributable knowledge of her union activities, but the Company then decided on the actual discharge on March 16, when it had full knowledge of Maldonado's union efforts steming from the March 9 meeting where the discriminatee had openly voiced opposition, as afore- stated. Further, it is also noted in the Meyer daily report on Maldonado that certain production figures were given on various days. President Magnes stated that each particular job stands on its own, and that the Company had established a production "norm" determined by the size of the pieces being processed by the sealer. Magnes further stated that if a sealer is not operating at a propr pace, then there is nothing for the packers to do, and that they are "in complete confusion" and have to be put on other jobs. In view of this testimony by the Company, it appears to me that the figures in Meyer's report relating to Maldonado's production, would not be con- trolling as to performance of the discriminatee without a like comparison as to the size of the pieces being processed by other sealers. More important, there is no reference whatsoever in Meyer's report that packers working with Maldonado were without work, or that any packers had to he put on other jobs because of Maldo- nado's slow production. It appears to me that if the packers were in "complete confusion" under these circumstances, as stated by Magnes, then certainly in view of the other remarks made by Meyer in his report some mention would have also been made of this situation had it actually existed. From the sequence of events and circumstances here it is obvious to me that the work record and contention that Maldonado's production suddenly fell off, were a mere pretext for the discharge, and for the reason stated herein are hereby rejected. This proceeding further shows that the Company also deviated in at least two other respects as between Maldonado and other employees. Maldonado received a wage increase in August 1959, along with the general pay raise, but then on February 16, 1960, and only a month before the discharge, Maldonado was the one known em- ployee to receive a pay increase, and in the words of Respondent's President Magnes the discriminatee was then performing duties "in the most skilled job in the plant " It seems highly improbable to me that without antiunion motivation, the Company would give one employee a pay raise in February, and then in the next month be required to discharge the same employee because of failure in work performance In the second instance the Company established by its own testimony that never before had there been a regular employee discharged for bad work, and that the usual prac- tice of the Respondent was to reassign unsatisfactory employees in one particular operation to a more suitable type job. Maldonado was not offered reassignment or given any other opportunity as had been the custom, and certainly her prior work and advancements in status and pay established that the Company thought well of her past performance. It is also noted here that in the testimony of Helen Barico, the shop steward for the Union, she admitted that the Maldonado discharge was the first time that the Respondent had discussed or notified Barico about such a matter. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From my observations and demeanor of the witnesses , and based on the reasons ,given here, it is accordingly found that Julia Maldonado was discharged by the Re- spondent on March 16, 1960, in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , which occurred in connection with the operations of the Respondent 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. Having found that Respondent discriminated in regard to the hire and tenure of employment of Julia Maldonado, I will recommend that the Respondent offer to her immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the Respond- ent's discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discharge to the date of the Respondent's offer of reinstatement, less her net earnings during said periods, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Having found that the Respondent interfered with , restrained, and coerced its em- ployees set forth herein, the Trial Examiner will recommend that the Respondent cease and desist from this conduct. It will also be recommended that the Respondent preserve and, upon request, make available to the Board, payroll and other records to facilitate the computation of the backpay due. As the unfair labor practices committed by the Respondent were of a character striking at the root of employee rights safeguarded by the Act, it will be recom- mended that the Respondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and Local 1 are labor organizations within the meaning of the Act. 3. By discriminating in regard to the hire and tenure of employment of Julia Maldonado, thereby discouraging membership in the Union, and other labor organ- izations, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By engaging in conduct with respect to interference , restraint, and coercion, as set forth herein, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Stewart Hog Ring Company, Inc. and Earl P. Strike and Darwin L. Knight. Cases Nos. 14-CA-2163, 14-CA-2164, and 14-CA- 2180. April 27, 1961 DECISION AND ORDER On June 22, 1960, Trial Examiner Owsley Vose issued his Inter- mediate Report in the above-entitled consolidated proceeding, finding 131 NLRB No. 49.