Valley Candle Mfg. Co., Inc.

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent having discriminated against Jessie Whitaker by' demoting him from a salaried employee to an hourly employee because of his appearance at the hearing for the purpose of testifying , I recommend that Respondent restore him to his salaried position without prejudice to his seniority and other rights and privileges of employ- ment and make him whole for any loss of pay suffered by reason of the discrimination against him by the payment of a sum of money equal to the amount of salary he would normally have earned from the date on which he was removed from his salaried position , to the date he is restored thereto , less his earnings as an hourly employee, to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. Respondent having engaged in discrimination against Billie Rodgers McNeely by removing him from the position of porter assigned to cleaning the front offices by reason of his appearance as a witness at the prior hearing, I recommend that Re- spondent reinstate Billie Rodgers McNeely to his former position without prejudice to his seniority and other rights and privileges of employment. Respondent having engaged in discrimination against Curtis Anderson because of his appearance as a witness at the prior hearing, I recommend that Respondent forth- with void and destroy the alleged "violation notice" issued to said employee by reason of alleged carelessness, and all records concerning this notice, without prejudice to his seniority and other rights and privileges of employment. It is also recommended that the Respondent be ordered to make available to the Board, upon request, payroll and other records to facilitate checking of the amount of earnings due in the above matters related to Willis McNeely, Willie B. Green, and Jessie Whitaker. In view of the nature of the unfair labor practices committed , the commission of similar and other unfair labor practices reasonably may be anticipated. I shall, therefore, recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment and the terms and conditions of employment of Willis McNeely, Jessie Whitaker, Billie Rodgers McNeely, and Curtis Anderson because they had appeared and given testi- mony under the Act, or appeared for the purpose of giving testimony under the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) and ( 1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Willie B. Green, thereby discouraging nonsupervisory employees in the free exercise of their statutory rights, guaranteed by Section 7 of the Act, and discouraging membership in and activities for the above-named organization , 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.] Valley Candle Mfg. Co., Inc. and Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO Valley Candle Mfg. Co., Inc. and Juan R. Gerena. Cases Nos. 2-CA-6787 and 2-CA-6923. May 21, 1961 DECISION AND ORDER On November 16, 1960, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, find- 131 NLRB No. 92. VALLEY CANDLE MFG. Co., INC. 733 ing that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent and General Counsel each filed exceptions to the Intermediate Report and the General Counsel filed a supporting brief. 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, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in these cases , and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Re- lations Board hereby orders that Respondent, Valley Candle Mfg. Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local 485 , International Union of Electrical, Radio and Machine Workers, AFL-CIO, or in any other labor organization , by discriminating against its employees in regard to their hire or tenure of employment , or any term or condi- tion of their employment. (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organiaztion, to form labor organizations, to join or assist Local 485 , International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three -member panel [Chairman McCulloch and Members Rodgers and Fanning]. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Carmen D. Huertas immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to any rights and privileges previously enjoyed by her, and make her whole for any loss of pay she may have suffered by reason of Re- spondent's discrimination against her, in the manner set forth in the 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 security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its plant in Brooklyn, New York, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent or its representatives, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, nor covered by any other material. (d) Notify the Regional Director for the Second Region, in writ- ing, within .10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. 2In 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 " The Regional Director may in his discretion also require the posting of the notice in Spanish. • APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Local 485, Interna- tional Union of Electrical, Radio and Machine Workers, AFL- CIO, or in any other labor organization of our employees, by discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment. 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 assist Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to bargain collec- VALLEY CANDLE MFG. CO., INC. 735 tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Carmen D. Huertas immediate and full rein- statement to her former or substantially equivalent position, without prejudice to any rights and privileges previously en- joyed by her, and make her whole for any loss of wages suffered as a result of our discrimination against her. All our employees are free to become. remain, or refrain from be- coming or remaining members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by a lawful 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. VALLEY CANDLE MFG. CO., INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, - and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Separate complaints in the above-entitled cases, which were consolidated for hearing and decision, allege that the Respondent committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136). Each of the complaints alleges violations of Section 8(a)(1) of the Act in the period from July 13 to August 12, 1959, by (a) the interrogation of employees concerning their membership in, and activities on behalf of, Local 485 (the Charging Union in Case No. 2-CA-6787 ); (b) warning the employees to refrain from such support and activities ; (c) threatening employees with discharge or other reprisals for disregard of these warnings ; and (d) promising lifetime jobs to those who re- frained from membership in, and support of, Local 485. With respect to the viola- tions of Section 8(a)(3) of the Act, the complaint in Case No. 2-CA-6787 asserts that, on or about July 28, 1959, the Respondent discriminatorily laid off (and has since ' failed and refused to reinstate ) five named employees,' and the complaint in Case No. 2-CA-6923 charges the Respondent with discriminatorily discharging Juan R . Gerena on August 12, 1959. By separate answers filed in each case,2 the 1 Rosa Ortiz, Paula Pinto Ortiz, Josefa Quinones Rivera, Carmen D. Huertas, and Ramon L. Morales. 2 The Respondent failed to file its answers within the time prescribed by the notice served upon it with the complaints On January 11, 1960 , Trial Examiner James A Shaw granted a motion by the General Counsel for a "summary judgment" pursuant to Sec- 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has denied the commission of the unfair labor practices thus alleged in the complaints.3 Pursuant to notice, a hearing was held in New York City on June 6, 7, and 8, 1960, before the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent appeared by counsel and were afforded full opportunity to be heard , to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues . At the conclusion of the hearing , the parties waived oral argument. Since the hearing, I have received briefs from the General Counsel and from the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, Valley Candle Mfg. Co., Inc., is a New York corporation, en- gaged at its principal office and place of business in the Borough of Brooklyn, city and State of New York, in the manufacture, sale, and distribution of votive lights and candles and related products. In the year preceding the issuance of the com- plaints, the Respondent purchased materials of a value of more than $50,000, which materials were transported to its plant in Brooklyn, New York, directly from States of the United States other than the State of New York. During the same year the Respondent manufactured, sold, and distributed products of a value of more than $50,000, which were shipped from its Brooklyn, New York, plant directly to States of the United States other than the State of New York. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in the case. II. THE LABOR ORGANIZATION INVOLVED Local 485, International Union of Electrical, Radio and Machine Workers, AFL- CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Local 485 began organizing the Respondent 's employees in July 1959, although the employees were already covered by a contract between the Respondent and Local 222 of another AFL-CIO International union .4 Between July 13 and 28, 1959, most of the 68 employees had signed Local 485's membership applications, which had been distributed at the Respondent's plant entrance by Organizer Angel tion 102.20 of the Board's Rules and Regulations , Series 8. However, on April 20, 1960, the Board granted a motion by the Respondent to set aside this "summary judgment" and granted the Respondent leave to file the answers to which reference is made in the text. 8 In addition to a general denial, the Respondent 's answer in each case sets forth an "affirmative defense" which is, in substance , that a representation petition filed by Local 485 on July 23, 1959 , was dismissed by the Board's Regional Director on August 7, 1959, because an existing contract between the Respondent and Local 222, Metal, Plastics, Miscellaneous Sales, Novelty, and Production Workers, constituted a bar to the representa- tion proceeding. During the hearing, I accepted a stipulation concerning the filing of the representation petition and the Board's refusal to process It because of Local 222 's existing contract. My receipt of this material was grounded solely upon Its possible bearing upon the question of whether, in view of the "dismissal" of Local 485's petition, It was "likely" that the Respondent would thereafter have attempted to repress Local 485's further organizational activities among the employees. I told counsel on the record that this was, in my opinion, the full extent of the materiality of the abortive representation proceeding in the present cases and that, contrary to the Import of the asserted affirmative de- fenses, ". . . the employees have the right to concerted activities even in support of a union other than either a certified or a contractual union." The Respondent did not thereafter press any general affirmative defense based upon the representation proceed- ing during the hearing or in its brief. In any event, I confirm the opinion expressed by me at the hearing and specifically rule that the matter pleaded by the Respondent as an affirmative defense, is Insufficient In law. For clarity and certainty in my recommended disposition of the present cases , I strike the affirmative defenses from the Respondent's answers. Metal, Plastics, Miscellaneous Sales, Novelty , and Production Workers Union (I.J.W.U.). VALLEY CANDLE MFG . CO., INC. 737 Roman of Local 485. The Respondent's vice president, Domenick Della Valle, admittedly knew of these organizational activities as they were taking place. One of the broad issues in the case is whether the Respondent, through Della Valle, attempted to discourage the employees' interest in joining and supporting Local 485. Employees Paula Pinto Ortiz, Sonia Justiniano, and Carmen D. Huertas testified that, in the latter part of July, Della Valle questioned the girl employees in groups, and then individually, as to whether they had joined Local 485 or knew who had joined. According to Paula Ortiz, when none of the girl workers on the first floor answered Della Valle's questions, Della Valle said that if he caught any employees signing up with Local 485 they would be fired. Huertas, testifying as to Della Valle's questioning the girls working on the second floor, said that he asked them why they had signed with "that union which was a racketeering union," and said "that we already had a union." And, according to Justiniano, when she and other girls who worked on the second floor admitted having joined Local 485, Della Valle said to them, "How can you be so stupid, you Puerto Rican bastards?" Employee Pablo Arroyo testified that the men employees were similarly ques- tioned, one by one, by Della Valle and were asked to tell him if they heard who had signed cards for Local 485. Employee Juan Gerena also testified to a number of threats which Della Valle made after questioning Gerena in the middle of July and learning that Gerena had signed up with Local 485. According to Gerena, 'Della Valle said on the first occasion that if he did not like the place, Gerena should "get the hell out . . . that [Della Valle] could give [Gerena] a couple of days to get another job." A few days later (still according to Gerena) Della Valle spoke to Gerena about three sisters named Ortiz, who were employed by the Respondent, referred to the fact that Rosa Ortiz was "the one who started organizing the girls upstairs," and said that, although he had done many favors for Rosa Ortiz, she was making trouble for him, and that he was going to fire the sisters. On still another occasion, according to Gerena's testimony, Della Valle told Gerena that if the employees "keep that union [referring to Local 485], ... he can close the factory for 3 months and it doesn't hurt him for nothing." According to the further testimony of two of the Respondent's employees, Pablo Arroya and Sonia Justiniano who were married on July 25, 1959, Della Valle attempted to induce them to withdraw from Local 485 on their return from a week's absence from work following their wedding. Thus Pablo Arroya testified that Della Valle told him that both he and his wife were good workers; that "If I quit the idea of joining Local 485, which was a Communist union, I would, together with my wife, have work there for the rest of my life"; and that he (Della Valle) had something for Arroya when he collected his pay on Friday. According to Arroya, on Friday he received vacation pay which had been previously denied to him. Arroya's wife, the former Sonia Justiniano, also testified that on her return to work following her marriage, Della Valle told her that she would receive her "vacation" and at the same time asked her to "quit fooling around about that Local 485 don't pay any attention to that Rosa Ortiz." The General Counsel's witnesses also testified that Domenick Della Valle inter- fered with Local 485s distribution of its membership applications and organizational literature. Organizer Angel Roman testified that Della Valle objected on three occasions to Roman's distribution of pamphlets to the Respondent's employees as they came to or left the plant; that Roman stood at the entrance and never came into the plant; that on the first occasion, Della Valle said "that not so long ago, two guys from another union came around and they were beat up right in front of the plant, that [Roman] should watch out, that they had a union there and these people don't- stop for no rough business . . ."; that on the second occasion a week later, Della Valle called the police after telling Roman he was "obstructing the business," and that he "should get the hell out"; and that on the third occasion, when Della Valle again called the police, Della Valle came after Roman, took off his shirt, and, calling Roman "a damn Puerto Rican bastard," said that he had "15 brothers that could take care of [Roman] any time." Employee Juan Gerena corroborated Roman's testimony as to this last incident and Della Valle's remarks. In addition to this testimony as to these incidents directly involving Roman, employees Paula Ortiz and Carmen Huertas each testified that Della Valle grabbed a leaflet which she had received from Roman and tore it up. Employee Gerena testified that he had seen Della Valle do this to Paula Ortiz. In his testimony, Domenick Della Valle specifically denied each of these accu- sations directed against him by the General Counsel's witnesses concerning his inter- ference with the employees' organizational activities. Referring to the substance of the pertinent testimony of the General Counsel's witness in each case, he denied 599198-82-vol . 131-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having questioned any of the employees as to their signing up with Local 485; having threatened reprisals such as discharges or closing the plant, if they did ; having promised any benefits if they refrained from joining or supporting Local 485; or having threatened Roman while Roman was passing out Local 885's membership applications or pamphlets. With respect to Roman, Della Valle's testimony was in substance that he had objected to Roman's coming into the doorway of the plant and therefore called upon the police to see that Roman moved away . To a great extent, the record thus presents merely the squarely contradictory testimony of Della Valle and that of the General Counsel 's witnesses. In addition to the demeanor of the witnesses, however, there are several matters which must be considered in resolving these blunt, ultimate testimonial conflicts. With the exception of Angel Roman , the General Counsel's witnesses are Spanish- speaking Puerto Ricans with a limited knowledge of English , and therefore testified through an interpreter. Domenick Della Valle speaks and understands no Spanish and, according to the General Counsel's witnesses, made the remarks which they have attributed to him, entirely in English. The obvious question raised is whether they could understand enough English actually to have understood him. The problem was apparent to counsel and to me during the hearing and attempts were made to gauge each of the witnesses' grasp of English by putting questions to each of them directly in English at certain points in their examination , and even in asking for direct answers in English. From all of this, which appears in detail in the transcript of the hearing, I am of the opinion, and conclude, that the General Counsel's wit- nesses possessed a sufficient understanding of English to understand the import of those of Della Valle's questions and statements which I have already summaried 5 Furthermore, I found nothing in the demeanor or manner of presentation of this testimony by the General Counsel's witnesses which suggests any other basis for questioning the reliability of their testimony. On the other hand, Della Valle's testimony concerning the source of his knowledge of which of his employees had become members of Local 485 was so inconsistent and confusing that it casts doubt upon the reliability of any of his testimony. Della Valle admitted not only that he knew generally of the organizational activities among the employees but also that he knew that "practically every one of them" had joined Local 485 . Furthermore, as counsel stipulated, all this was known to the Respondent by July 28 , 1959, as was also the additional fact that all 19 em- ployees whom the Respondent thereafter laid off (12 on July 28 and 7 more on August 11, 1959 ) 6 were among those who had become members of Local 485. Both in his testimony and in a pretrial affidavit , Della Valle denied that he 'acquired any of this information by questioning any of the employees . In his affidavit, Della Valle stated that "I have never asked any of my employees whether they joined Local 485. The only knowledge I have of their union membership is when there were arguments about whether they signed cards or not . I had to stop these argu- ments to continue working." But in his testimony at the hearing , Della Valle offered a variety of explanations of how he had learned which of his employees had joined Local 485 without questioning any of them . At first he said that Local 485's organization of the employees was "so wide open, so openly done." Then he said that an organizer for Local 485 had shown him the employees ' membership appli- cations. But, admitting that he saw only a couple of names on these cards, he then said that "many" of the employees voluntarily came to him and told him they were members of Local 485, only to modify this statement immediately by saying that "a few" of the employees had done so . Finally, after being shown his pretrial affidavit -and affirming his statement that he had to break up arguments among the employees about the Union. Della Valle capped his previous - explanations by admitting that: 5 In reaching this conclusion, I have carefully examined the entire record and have con- sidered occasional statements in several of the witnesses ' testimony which , taken out of context, might indicate that portions of their versions of Della Valle's statements were based upon hearsay from other employees better versed in English I believe, however, that, when properly evaluated, these passages indicate at most that upon being questioned as to their ability to understand Della Valle's remarks, they felt that their own inde- pendent understanding had been confirmed by other employees I have also considered Sonia Justiniano's admission that, while speaking with the girl employees , Della Valle seemed "excited and mad." Although it might thereby appear that Della Valle may have spoken more rapidly than usual, I accept Justiniano's statements that she was able to understand him 9 The evidence and my conclusions concerning these layoffs are set forth in the next section of this report. VALLEY CANDLE MFG. CO., INC. 739 The employees didn't exactly tell me. I was always kidding with them. I says, "Don't tell me you signed up with Local 485." That's how I knew. They said, "Yes we did." That's about all it came to. Upon my foregoing appraisal of the pertinent evidence, I credit the testimony of the General Counsel's witnesses, in spite of Della Valle's denials, and accordingly find that Della Valle attempted to discourage the Respondent's employees' interest in joining and supporting Local 485, by questioning the employees, by threatening discharges or a closing of the plant if they should join Local 485, by taking Local 485's leaflets from several of the girl employees and tearing them up, by promising advantages to individual employees if they did not join Local 485 or if they withdrew their support from the Local, and by threatening Angel Roman, Local 485's organizer, while Roman was engaged in soliciting membership applications from the employees in front of the Respondent's plant. I conclude, moreover, that by these acts of Della Valle as its vice president, the Respondent interfered with, restrained, and coerced its employees in the exercise of their organizational rights guaranteed in Section 7 of the Act and thereby committed unfair labor practices within the meaning of Section 8(a)(1). B. The layoffs On July 28, 1959, the Respondent laid off 12 employees and on August 11, 1959, it laid off 7 more employees. In each case, it told the employees that they were laid off because of a lack of work. As I have already noted, all 19 of the employees who were thus laid off had signed applications for membership in Local 485 and this was known to the Respondent at the time they were laid off. But the com- plaint alleges that the layoff of only five of these employees on July 28 (i.e., the layoff of employees Rosa Ortiz, Paula Pinto Ortiz, Josefa Quinones Rivera, Carmen D. Huertas, and Ramon L. Morales) was because of their membership in, and activities on behalf of, Local 485, and therefore violative of Section 8(a)(3) of the Act. From the evidence it is clear, and I find, that the 19 layoffs in July and August 1959 were occasioned by a usual sesaonal slump in the Respondent's business? But the General Counsel contends that the five employees named in the complaint were discriminatorily selected for layoff because of their membership in, and support of, Local 485, and thus in violation of Section 8(a)(3) of the Act. To support this contention, the General Counsel argues that the five employees in question were selected for layoff, and not again rehired, is disregard of their "department senior- ity" although the Respondent's contract with Local 222 as the representative of the employees provided that "Regular employees shall be so laid off according to their departmental seniority and when rehired must be' rehired in the order of their de- partmental seniority." According to the General Counsel, the layoffs of the five employees in disregard of this applicable seniority principle, when considered against the background of Della Valle's interference with Local 485's organizational activi- ties and his threats to discharge adherents of Local 485 specifically including Rosa Ortiz, demonstrates that the Respondents inclusion of the five persons in the laid-off group was because of their support of Local 485 and therefore in violation of Section 8(a)(3) of the Act. In the pretrial affidavit which he gave to the General Counsel, Domenick Della Valle seemed to support this theory of the General Counsel with the flat statement that, in effecting the 19 layoffs, "I didn't lay them off according to seniority. I laid off people according to the department. I laid them off according to their abilities; that is, the ones who didn't damage the machines or cause disturbances I kept." But in his testimony at the hearing, Domenick Della Valle insisted that the basis for his selection of the employees to be laid off; was departmental seniority. When the contrary statement in his affidavit was brought to his attention, he testified that he was busy when the Board agent visited him and took his affidavit, and that he (Della Valle) "probably missed this paragraph" when he signed the affidavit. Con- cerning his reference in the affidavit to the layoff of employees who caused "damage to machines" or "disturbances," he said merely that some, but not all, were in the laid-off group but that he could not remember their names. He then repeated his statement that the basis for his selection of the employees to be laid off was "to the best of my ability, according to seniority," and that "it was just a coincidence" that 7 Domenick Della Valle's testimony is directly to this effect. He also testified, as did Switchboard Operator Vilma Godentez and employee Carmen D Huertas, that layoffs for lack of work occurred every summer. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the laid-off group included employees who had damaged machines and caused dis- turbances. In explaining the "departmental" seniority which dictated his selection of the 19 employees who were laid off, Della Valle submitted a breakdown of the Re- spondent's employees into 13 "departments," with the dates of hire of the individual employees in each "department." From his testimony and the employee lists sub- mitted by him, it appeared that Della Valle referred to each type of job performed in the plant as constituting a separate "department," including only the employees in that particular job classification. On this basis, he testified that he had determined first the number of employees to be laid off in each of these "departments," and, then, the names of the employees in each "department" who would be laid off in the inverse order of their seniority. The General Counsel challenges this equation by Della Valle of each job classifi- cation with a "department" for the purpose of determining the proper application of the contractual seniority rule in the 1959 layoffs. But the record provides no basis for any contrary finding, much less a finding of any other recognized division of the Respondent's employees into different departments, which might then support the General Counsel's theory by demonstrating the impropriety of Della Valle's se- lections for the 1959 layoffs under the Respondent's contract with Local 222.8 Upon this state of the record, I see no reason for rejecting (and I therefore accept) Della Valle's equation of each of the job classifications with a "department" for seniority and layoff purposes under the contract. In reaching this conclusion, I rely not only upon Della Valle's testimony and the absence of any contradiciton thereof, but also upon the reasonableness of the resulting application of the seniority principle within each job classification, regardless of whether it be termed a "department." There remains, of course, the question of whether Della Valle, in selecting the employees laid off in 1959, did in fact apply the seniority principle within each job classification as a "department." Examination of the lists of the employees submitted by Della Valle shows that the 49 employees laid off in July and August 1959 were selected from 9 different job classifications or "departments"; and that of the 5 employees who the General Counsel claims were discriminatorily selected, 2 were "machine operators," I was a "7-day filling" employee, another was a "7-day machine" operator, and the fifth was 1 of 15 employees classified as "packers domestic." The following table which I have com- piled from the information on the Respondent's employee lists, sets forth the full complement of employees in each of these four classifications or "departments" at the time of the 1959 layoffs, showing the dates of their hire by the Respondent, the consequent order of their seniority, and ( in the cases of those laid off) the respective dates of their layoffs: Machine operators 1. Rita Garcia, hired 3/7/47. 2. Eusabia Rodgruez, hired 8/28/52. 3. Emilia C. Martinez, hired 7/27/53. 4. Maria Kuilan, hired 1/12/55, laid off 7/28/59. 5. Rosa Ortiz, hired 9/26/55, laid off 7/28/59. 6. Carmen D. Huertas, hired 9/30/55, laid off 7/28/59. 7. Amparo Robles, hired 9/5/58. 8. Rosa Lopez, hired 2/12/59, laid off 7/28/59. 7-day filling 1. Angelina Toledo, hired 9/7/54. 2. Fortunata P. Garcia, hired 4/1/55. 3. Paula P. Ortiz, hired 8/15/57, laid off 7/28/59. 4. Lydia B. De Jesus, hired 9/8/58, laid off 7/28/59. 8 There is no evidence as to any understanding between the Respondent and Local 222 as to the scope of the Respondent's "departments" for purposes of layoff, nor any evidence as to any enlightening, previously settled practice under the contract. According to Della Valle, the Respondent 's payroll records themselves furnished no light on the matter since they contain no "departmental" breakdown. It is true that, according to Della Valle's testimony, only 3 foremen supervised the 13 different categories of the Respondent's employees each of which Della Valle said was a separate "department." But although this might raise a question as to the reasonableness, and therefore the actuality, of any so-called "departmentalization" of the employees according to each job classification, it does not show what the departmentalization is, or even should be, nor, therefore, which of the employees should be regarded as falling into each department. VALLEY CANDLE MFG. CO., I N C. 741 7-day machine 1. Charles Shaw, hired 3/5/47. 2. Andre Gumbs, hired 7/11/51. 3. Ramon L. Morales, hired 4/13/53, laid off 7/28/59. Packers Domestic 1. Carmen Rivero, hired 8/16/57. 2. Francisca Gonzalez, hired 8/6/58. 3. Felicita Padilla, hired 8/6/58. 4. Haydee Quinones, hired 9/3/58. 5. Maria Sierra, hired 9/5/58. 6. Isabel Figuerao, hired 9/5/58. 7. Victoria Gonzalez, hired 12/10/58. 8. Rosalia Oliveras, hired 12/10/58. 9. Sarah E. De Jesus, hired 12/17/58. 10. Panchita Inserni, hired 12/26/58. 11. Cristina M. Davila, hired 2/13/59. 12. Martha Santiago, hired 2/13/59. 13. Catalina P. Ortiz, hired 3/4/59, laid off 7/28/59. 14. Sonia G. Justiniano, hired 3/9/59, laid off 8/11/59. 15. Josefa Q. Rivera, hired 3/25/59, laid off 7/28/59. From all this, it appears that, with one exception, Della Valle did lay off employees in each job classification or "department" according to the inverse order of seniority. The only exception occurred in the case of the machine operators, in that Amparo Robles was not laid off although she was the junior in point of service to three of the four machine operators who were laid off. But, as Organizer Angel Roman testi- fied, Amparo Robles (like the four machine operators laid off) had also joined Local 485 and, in view of the Respondent's apparent knowledge of which of its employees had joined, it is unlikely that her exemption from the layoff was due to any intent on the Respondent's part to lay off only employees who had joined Local 485. In any event, Robles' exemption from layoff apparently did not result in the discriminatory selection of any of the five laid-off employees named in the complaint. For Carmen Huertas and Rosa Ortiz were the only alleged discriminatees who could possible have been affected by this isolated departure from the seniority principle and, since they were numbers three and four on the layoff list, they would obviously have been reached in the layoff of four machine operators, even if Amparo Robles had also been laid off. Upon the foregoing considerations, I am of the opinion that the July 28, 1959, layoffs of the five, employees named in the complaint cannot be attributed to discrimination by the Respondent against them because of their membership in, or support of, Local 485. I shall therefore recommend that the allegations of such discrimination in the complaint be dismissed . I have come to this general conclusion purely on the basis of my findings that the July and August 1959 layoffs were effected because of a seasonal slump in the Respondent's business, and that, with an imma- terial exception, the selections of the employees laid off were consistent with the reasonable, established principle of seniority under the Respondent's contract with Local 222. It follows from these basic findings that the layoffs of the particular employees would have occurred regardless of the Respondent's displeasure with their adherence to Local 485, and were therefore not the result of any discrimination on the part of the Respondent because of the employees' affiliation with, or support of, Local 485. In view of this evident absence of an essential causal relation between discrimination and any of the layoffs, it is immaterial that there is such strong evidence in the record of the Respondent's disposition to discriminate against adherents of Local 485 as is provided by Della Valle's interference with Local 485's organization of the employees and his threats of discharge and plant closing. For the same reason, it seems to me to be of no significance on the present point that Della Valle was inconsistent in his pretrial affidavit and in his testimony as to whether he chose the employees to be laid off according to seniority. In absolute rebuttal of any inference of effective or operative discrimination which might otherwise be drawn from these factors in the record, stand the clear facts that the 1959 series of layoffs was economically motivated and that the selections for layoffs were in fact consistent with the seniority principle. Accordingly, it seems clear to me that dis- crimination on the basis of union membership cannot be regarded as the responsible cause for any of the layoffs in the present case. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Respondent's failure to recall laid-off employees and its refusal to reinstate Carmen D. Huertas Having concluded that the Respondent did not discriminatorily lay off any of the five employees referred to in the complaint in Case No. 2-CA-6787, I turn now to a consideration of whether upon the evidence it appears that the Respondent dis- criminatorily failed or refused to reemploy any of them in violation of Section 8(a) (1) and (3) of the Act, as the complaint also alleges. None of these 5 employees has been reemployed by the Respondent, although, from September 2 to November 19, 1959, it again built up its working force to its prelayoff number by hiring or rehiring 19 employees, i.e., by rehiring 3 other em- ployees who had been laid off in July or August, by rehiring 4 employees whose employment had been previously terminated, and by hiring 12 new employees .9 Domenick Della Valle admitted that in filling these jobs, the Respondent made no attempt to get in touch with any of the five employees named as discriminatees in the complaint, and to offer him or her a job. On the other hand, so far as the record shows, none of these five laid-off employees (except possibly Carmen D. Huertas, as to whom there is a dispute) made inquiry or applied for reinstatement or rehire after their layoffs on July 28, 1959. In this connection, it appears and I find upon a com- posite of the uncontradicted testimony of Domenick Della Valle and Vilma Godenez, the Respondent's receptionist, thus it was the Respondent's practice after these seasonal layoffs to make notations of the names of those of the laid-off employees who came in to ask for work, and then, as jobs became available, to send work only to these people and to hire those who were still interested in the order of their seniority. The General Counsel argues in effect that the provisions of the Respondent's contract with Local 222 concerning layoffs required the Respondent affirmatively to recall all laid-off employees in the order of their seniority, and that its failure to do so, in the light of Della Valle's threats to discharge adherents of Local 485, must be regarded as motivated by their known membership in Local 485. But I do not so construe the contract. In my opinion, it permits the practice followed by the Respondent of recalling only those who have applied for reinstatement. I therefore conclude that the Respondent did not discriminate against the five laid-off employees in violation of Section 8(a)(1) or (3) of the Act, by failing to recall and then to reinstate them. The remaining question with respect to the layoff is whether, as Carmen D. Huertas testified but Domenick Della Valle denied, she applied to him for a job 2 weeks after her layoff and again 2 or 3 weeks later, and Della Valle told her she should not come back "until this business with the union [was] settled." I credit Huertas' testimony and find that on or about September 1, 1959, she applied to the Respondent for reinstatement, was refused, and that the Respondent thereby dis- criminated against her in respect to her hire and employment in violation of Section 8(a)(I) and (3) of the Act. D. The discharge of Juan R. Gerena On the morning of August 13 , 1959, employee Juan R . Gerena was discharged by Alfred Della Valle, the Respondent 's secretary and brother of Domenick Della Valle. Gerena testified that Alfred Della Valle saw him taking garbage out of the plant while Organizer Angel Roman of Local 485 was standing on the sidewalk nearby; that Alfred Della Valle charged him with speaking to Roman and then pushed Gerena; and that, on Gerena's objecting to being pushed , Alfred Della Valle discharged him. Gerena further testified that on his later applying to Alfred Della Valle for rehire and being referred to Domenick Della Valle, Domenick told him there was no work and also "spoke to me about the union, that I shouldn't have done that ; that that union was some sort of a racket , that all they wanted was for themselves , and that if that union would come in, they would be having less time to work." According to Gerena , taking out the garbage was part of his job . He testified that he had received no instructions from anyone at any time, nor particularly from 0In this summary of the Respondent's gradual return to its normal full complement of workers after the July and August layoffs, I do not include the return of one Martha Santiago from a maternity leave on August 12, 1959. VALLEY CANDLE MFG. CO., IN C. 743 Alfred Della Valle on the morning of his discharge, that he was not to leave the plant. But he also testified that he left the plant twice on the morning of his dis- charge and that before he left the second time, Alfred Della Valle had see him taking a pushcart outside and said, "Don't go there. I'll do it myself." According to Alfred Della Valle's testimony, he saw Gerena outside the plant on two occasions on the morning of August 13. He testified that on the first occasion he saw Gerena come out of the plant to speak to one of several men distributing pamphlets; that he asked Gerena what he was doing out there; that Gerena did not answer; and that he then said to Gerena, "Well, you better go inside." Alfred Della Valle further testified that when he saw Gerena outside the plant for the second time that morning, he asked him, "Didn't I give you instructions to stay inside?"; that Gerena said, "I will do as I please," used vile language, and made an indecent gesture and comment; and that Alfred Della Valle thereupon discharged him Con- trary to Gerena's testimony, Domenick Della Valle denied that Gerena ever came back to seek reemployment. The General Counsel's contention that Gerena was discharged because he was a supporter of Local 485 rests squarely upon Gerena's testimony which was con- tradicted on all important points by the testimony of one or the other of the Della Valle brothers. As set forth in section III, A, of this report, portions of Gerena's testimony related to remarks and threats of plant closure and discharge which were of the same general antiunion tenor and pattern as those made to other employees according to their testimony. All this, of course, would lend some support, although it would be far from conclusive, to the General Counsel's contention that Gerena was later discriminatorily discharged. On these points I have already credited Gerena's testimony in spite of Domenick Della Valle's denials. But the portions of Gerena's testimony as to the discharge incident and Domenick Della Valle's alleged later refusal to rehire him, do not fall into any such generally corroborating pattern and must therefore stand or fall on their own merits when weighed against the contradictory testimony of the Della Valles. Furthermore, as I view the evidence and the witnesses, the logical order for resolving the conflicting testimony of Gerena and the Della Valles as to these two matters is first to resolve the obviously more important, basic conflict as to the discharge incident and then the conflict as to whether Gerena thereafter applied for rehire and was turned down because of his support of Local 485. In dealing with these matters in this order I, have examined and weighed the conflicting evidence as to the discharge and the alleged refusal to rehire, with a view to the possibility of inferring a discriminatory refusal to rehire from an independently proved preceding discriminatory discharge, rather than the reverse possibility of inferring an original discriminatory motive in the discharge from an independently proved discriminatory refusal to rehire. This was necessary because there appears to me to be no basis for any reasonable choice as between Gerena's and Domenick Della Valle's testimony as to the disputed application for reinstatement, and therefore no reliable basis for any inference as to whether the preceding discharge was discriminatorily motivated. On the other hand, my com- parison of the substance and presentation of Gerena's and Alfred Della Valle's conflicting testimony has led me to what I believe to be a reliable conclusion as to what happened during the discharge incident. On a choice between Gerena and Alfred Della Valle as witnesses, I would credit Alfred Della Valle. Moreover, as I see it, the most important and pivotal point in the conflict of their testimony was whether Gerena left the plant on August 13 in disobedience of Alfred Della Valle's instructions earlier in the morning. As to this, Gerena's original unequivocal denial in his testimony that he had received any such instructions, was weakened by his later admission that Alfred Della Valle had in fact told him not to go outside with the pushcart. All in all, I have come to the conclusion that Alfred Della Valle's testimony as to the discharge incident should be credited and find, in accordance therewith, that Gerena was discharged because he disobeyed Della Valle's instructions not to leave the plant that morning during working time and then, when caught in his disobedience, said he would do as he pleased. In view of this, it is clear that the Respondent did not discharge Gerena because of his support of Local 485. Certainly, Alfred Della Valle was justified in insisting that Gerena stay within the plant and avoid distracting and time-consuming contact with Local 485's agents during his working time. Accordingly neither Alfred Della Valle's instruction nor his discharge of Gerena for its disobedience was violative of c 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any organizational right of Gerena under Section 7 of the Act. I conclude, there- fore, that neither by restricting Gerena to the plant during working hours nor by discharging him for disregarding the instructions, did the Respondent discriminate against Gerena in violation of Section 8(a)(1) or (3) of the Act. With respect to the remaining issue and the conflict in Gerena's and Domenick Della Valle's testimony, I credit Domenick Della Valle's testimony and find that Gerena did not apply for rehire nor, therefore, did the Respondent discriminatorily refuse to rehire him, as the complaint alleges. In accordance with the foregoing considerations , I recommend dismissal of the allegations of the complaint that the Respondent discriminatorily discharged Juan R. Gerena, and thereafter discriminatorily failed and refused to rehire him in viola- tion of Section 8 (a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent set forth 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 thereof. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and ( 3) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent discriminatorily refused to reinstate Carmen D. Huertas on or about September 1, 1959, in violation of Section 8(a) (1) and (3) of the Act. I will recommend that the Respondent offer Carmen D. Huertas immediate and full reinstatement to her former or substantially equivalent position, and make her whole (in accordance with the formula set out in F. W. Woolworth Company, 90 NLRB 289) for any loss of pay which she may have suffered by reason of the Respondent'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 September 1, 1959, to the date of the Respondent's offer of reinstate- ment, less her net earnings during said period . It will also be recommended that the Respondent, upon reasonable request , make available to the Board and its agents all payroll and other records pertinent to an analysis of the amount due as backpay. 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. Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of the Act. 2. By questioning its employees concerning their membership in, and activities in support of, Local 485, by threatening discharges or a closing of the plant if they should join Local 485, by taking Local 485's leaflets from employees and tearing them up, by promising advantages to individual employees if they did not join Local 485 or if they withdraw their support, and by threatening an organizer for Local 485 while he was engaged in soliciting membership applications from the employees in front of Respondent 's plant, the Respondent interfered with, restrained, and coerced its employees in the exercise of their organizational rights guaranteed in Section 7 of the Act, and thereby committed unfair labor practices within the meaning of Section 8 (a) (1). 3. By discriminating in regard to the hire and tenure of employment of Carmen D. Huertas, thereby discouraging membership in Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not committed any of the other unfair labor practices alleged in the complaints in the above-entitled cases. c [Recommendations omitted from publication.]