Unanue & Sons, Inc.

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Name Badbe number Date of hire of discriminatory replacements Stone, Leffel C----------------------- 1921 ------------------ Todd , Bud H------------------------ 835 ------------- Trivitt, Oliver E---------------------- 1340 ------------------ Young, Alonzo- ---------------------- 696 ------------------ III Discriminatory Replacements Adams, G. D------------------------ 4306 1/19/50 Blair, D. W-------------------------- 2944 3/20/50 Burns, H. H------------------------- 4313 4/24/50 Cockrum , C. B----------------------- 2984 1/13/50 Denny, Bill-------------------------- 4308 1/13/50 Denton , C. E------------------------ 2916 7/ 3/50 Fletcher, Vernon---------------------- 2915 1/ 3/50 Hughes, L. W------------------------ 4301 5/ 6/50 Kelley, Woodie----------------------- 1492 12/19/50 Lantz , C. V-------------------------- 4318 1/16/50 McGinnis, A. V---------------------- 1191 1/25/50 Morton , T. N------------------------ 4302 1/13/50 Smith, R. Q------------------------- 3888 8/21/50 WAGON DRILL OPERATORS (1) I Promotional Reclassifications or Old Employees Rehired During Strike in a Classification Not Formerly Held Date of hire of Badge dhscrunsnatory Name number replacements Cranfill, Richard L------------------- 1264 II Replacements None. None. III Discriminatory Replacements Unanue & Sons, Inc. and Manuel Alvarez, Eugenio Garcia, Pedro Goyco, Frank Marti, Thomas Monllor, Raul Nieves, Juan Ruiz, and Juan Seijo. Cases Nos. 2-CA-7340-2, P3-CA- 7340-3, 92-CA-7340-4, P3-CA-7340-5, P3-CA-7340-6, 2-CA-7340-7, 2-CA-7340-8, and Pd-CA-7340-9. July 31, 1961 DECISION AND ORDER On February 13, 1961, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. He further found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. 132 NLRB No. 33. UNANUE & SONS, INC. 573 Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modification noted below. The Trial Examiner found that Charles Unanue, president of the Respondent, did not condition his offer of reemployment made to his employees on April 20 upon withdrawal of the unfair labor practice charges. In so doing he stated that employees Monllor and Goyco were silent upon the issue. The record indicates that both Monllor and Goyco testified that such a condition was imposed by Respondent. There is, however, substantial evidence in the record that Price, president of Local 138, which was one of the Charging Parties, sug- gested this condition. In view of this evidence we accept the finding of the Trial Examiner. In agreement with the Trial Examiner we find that Respondent, by its purported change in the status of its local sales force from that of salesmen to independent brokers, and by effectuating other changes in their working conditions, discriminated against the sales- men within the meaning of Section 8(a) (3) of the Act. In reaching this conclusion we have given consideration both to the manner in which and the time at which the change was made. Instead of giving the salesmen the 2 weeks' notice of the change from general to ex- clusive sales areas, which Respondent admits was contemplated, it hurriedly completed its plans for the change on the night of April 11 and summoned the salesmen to a special meeting on April 12. The salesmen were then peremptorily notified that they were all dismissed from Respondent's employ. They were told that those who .wished might file "applications" for engagement as brokers. The fact that the device of dismissal and reengagement was not required to effectu- ate the change is evidenced by the fact that none of the salesmen who signed the applications was required to execute a brokerage contract. They were simply reassigned to specific territories with a reduction in commission, a change requiring no such formal action as dismissal from employment. The reason for the employment of the dismissal and reengagement procedure is made clear, we think, by Respondent's letter to the Board, dated April 18. (General Counsel's Exhibit No. 1 Respondent's request for oral argument is denied as the record and exceptions and briefs adequately present the issues and the positions of the parties. _ 5574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11.) On April 12 Respondent had already entered into an agreement for a consent election in a unit of local salesmen scheduled for April 18. By telephone call and by its letter to the Board (for which a ,signed receipt was required from the Board agent who attended the election) the Respondent notified the Board that all 12 of its local 'salesmen (including those who had signed applications for engage- ment as broker) had been dismissed for cause on April 12 and were ineligible to vote. When this action is considered in relation to the other factors establishing discriminatory motive it appears that the dismissal of the salesmen on April 12 was intended to thwart the organizational rights of the salesmen, including their right to desig- nate a collective-bargaining agent at a Board-conducted election. The 'Trial Examiner found the statement made by Respondent's president to his employees that he could resign as president coercive within the meaning of the Act. We do not agree. The statement con- tained no implied threat that Respondent would go out of business if he resigned or that working conditions would be worse. It was a part of his expression of dissatisfaction with the employees for not responding to his interrogation concerning their union activity. As such it was embraced within the unlawful interrogation. We shall not, therefore, make a separate finding. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Unanue & Sons, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 138, International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of Amer- ica, or in any other labor organization of its employees, by discharging employees, refusing to reinstate them, offering to reengage them as independent brokers or contractors, making it mandatory on them to communicate by telephone with Respondent between 8 and 8:30 a.m. each morning from the location of the first customer, except to the extent provided in the section of the Intermediate Report entitled "The Remedy," or in any other manner discriminating against them in re- gard to their hire and tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (b) Interrogating its salesmen employees as to their union activities, interests, or affiliations, in a manner constituting interference, re- straint, or coercion. UNANUE & SONS, INC. 575 (c) Threatening its salesmen employees with reprisals, including loss of employment, moving the business or closing it down, if they engage in union or other concerted activities. (d) Placing in effect reprisals against salesmen employees for join- ing the Teamsters or any other labor organization, or engaging in union or other concerted activities. (e) Representing to salesmen employees that it solicited customers to order directly from Respondent and discontinued salesmen's com- mission on direct orders because the salesmen employees had engaged in union activity or other concerted activity. (f) Promising benefits to salesmen employees if they did not become union members or engage in union or other concerted activity. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the aforesaid Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by 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 purposes of the Act : (a) Offer Manuel Alvarez, Pedro Goyco, Frank Marti, Thomas Monllor, Raul Nieves, Juan Ruiz, and Juan Seijo immediate and full reinstatement, without prejudice to their seniority and other rights and privileges, to their former or substantially equivalent positions, or take such other steps as the circumstances of Respondent's business operations may require, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," and make the said em- ployees whole for any loss of earnings suffered by reason of the dis- crimination against them 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 se- curity payment records, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights to reinstatement under the terms of this Order. (c) Post at its principal place of business in Brooklyn, New York, copies of the notice attached hereto marked "Appendix." 2 Copies of 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said notice, to be furnished by the Regional Director of the Second Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and main- tained by it for a period of 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employees are custom- arily 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 of the Second Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges that the Respondent has engaged in any unfair labor practices,in violation of Section 8(a) (1), (3), and (4), except as above specifically found. 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959, we hereby notify our employees that: WE WILL NOT discourage membership by our salesmen em- ployees in Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging any salesman employee, re- fusing to reinstate him, or offering to engage him as a sales representative in a manner that would deny him the protection of the National Labor Relations Act, as amended, or by discrimi- natorily making mandatory the requirement that he call in be- tween 8 and 8 :30 a.m., daily from the location of the first customer, or in any other manner discriminating against him in regard to his hire or tenure of employment, or any term or condition of employment, except as authorized by Section 8(a) (3) of the National Labor Relations Act, as amended, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT interrogate our salesmen employees as to their membership, interests in, or activities on behalf of Local 138, International Brotherhood of Teamsters, or any other labor or- ganization, in a manner constituting interference, restraint, or coercion. WE WILL NOT threaten our salesmen employees with reprisals, including loss of employment, moving the business or closing it UNANUE & SONS, INC. 577 down, if they join, become interested in, or engage in activities on behalf of the above or any other labor organization. WE WILL NOT engage in acts of reprisal against salesmen em- ployees, including representing to them that we had solicited direct orders from customers and were eliminating commissions on direct orders because the salesmen employees became members of Teamsters or any other labor organization, or became interested in, or engaged in activities on behalf of, such a labor organization. WE WILL NOT promise benefits to salesmen employees if they reject union membership or not engage in union or other con- certed activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form labor organizations, join or assist the afore- said Teamsters or any other labor organization , to bargain collec- tively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of such activities , except to the extent that such rights may be effected by an agreement requiring membership in a labor or- ganization as , authorized by Section 8 (a) (3) of the National Labor Relations Act, as amended , as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges , to Manuel Alvarez, Pedro Goyco, Frank Marti, Thomas Monllor, Raul Nieves, Juan Ruiz, and Juan Seijo, dismissing if necessary any replacements hired on and after April 12, 1960. If, after such dismissals, suffi- cient positions are not available, we will place these salesmen on a preferential hiring list . We will make these salesmen em- ployees whole for any loss of pay they have suffered by reason of our discrimination against them. All our employees are free to become or remain, or refrain from becoming or remaining, members of the aforesaid Teamsters, or any other labor organization, except as provided under Section 8(a) (3) of the National Labor Relations Act, as amended , modified by the Labor-Management Reporting and Disclosure Act of 1959. UNANUE & SONS, 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. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Cases Nos. 2-CA-7340-2, 3, 4, 5, 6, 7, 8, and 9 were brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, on charges filed on April 20, 1960, by Manuel Alvarez, Eugenio Garcia, Pedro Goyco, Frank Marti, Thomas Monllor, Raul Nieves, Juan Ruiz, and Juan Seijo (herein called the Charging Parties). The cases were con- solidated for hearing, and were heard by Trial Examiner Foley during the period from July 25 to August 5, 1960, on a complaint' of the General Counsel issued June 3, 1960, and answer of Respondent Unanue & Sons, Inc. (herein called Respond- ent), of June 24, 1960. The complaint alleges, and Respondent's answer denies, that Respondent on March 25 and 30, 1960, and various dates in April 1960, interrogated its salesmen employees with respect to union activity and membership, warned and threatened them with reprisals if they became union members or engaged in union activity, and engaged in acts of reprisal against these employees for embracing union membership and activity; on April 12, 1960, discharged the eight Charging Parties, who had been salesmen employees, because of union membership and activity; and on April 20 offered to reemploy them under conditions less favorable than those in effect when they were discharged, and conditioned their reemployment on their with- drawal of the unfair labor practice charges they had filed with the Board on that date. The complaint charges that Respondent violated Section 8(a)(1), (3), and (4) of the Act by this conduct. Respondent and General Counsel were represented at the hearing, and all parties were afforded an opportunity to be heard, to introduce evidence, make oral argu- ment, and file briefs. Counsel for the Respondent filed a brief after the close of the hearing. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT The complaint alleges and Respondent's answer admits that Respondent, a New York corporation, with its office and place of business in Brooklyn, New York, is engaged in receiving, selling, and distributing food products and related products at wholesale; that during the fiscal year ending May 31, 1960, it caused to be pur- chased, transferred, and delivered from outside the State of New York to its place of business in Brooklyn, New York, food products and related products with a value in excess of $50,000, and during the same fiscal year it had gross sales at its Brook- lyn, New York, place of business with a value in excess of $3,000,000, and sold to customers located outside the State of New York, and shipped to them in interstate commerce, food products and related products with a value in excess of $50,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) of the Act, and that assertion of jurisdiction is warranted. 11. THE LABOR ORGANIZATION INVOLVED Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Teamsters), is a labor organization within the meaning of the Act. HI. THE UNFAIR LABOR PRACTICES A. Evidentiary findings 2 1. Respondent's business Respondent is a corporation wholly owned by the Unanue family. Prudentio Unanue, the father, founded the business in 1922 as an individual proprietorship, doing business as a food broker. In 1937, he changed the business to a wholesale 1 The Trial Examiner granted, without opposition, General Counsel's motion for leave to amend the complaint to exclude any and all allegations of illegal conduct specifically connected with Charging Party Eugenio Garcia or his employment or association with Respondent. 2 Although the transcript of testimony Is 1,425 pages, the evidence deals only with alleged unfair conduct occurring on 9 occasions during the period from March 25 to April 20, 1960 There were 20 witnesses, 9 for the General Counsel and 11 for Respondent. Eight of the twenty witnesses testified In Spanish. Eli Garmizi, the first interpreter, was replaced when Charles Unanue, president of Respondent, who sat at the counsel table r UNANUE & SONS, INC. 579 and jobbing operation. In 1946, it was incorporated, with Prudentio as president. Charles Unanue, his son, who first came with Respondent as a full-time employee in 1948, became president in 1953. He had been acting head of Respondent since 1950, and had had the title of office manager since 1950. At all times material to this proceeding, Charles Unanue was president of Re- spondent and its executive head. Joseph Unanue, a brother, was vice president. Joseph was also president and executive head of Puerto Rico Food Products Cor- poration, a family-owned operation located in Puerto Rico. Prudentio Unanue and sons Charles, Joseph, and Frank were members of the board of directors of Respondent. Prudentio was chairman. Frank, like Charles, was a full-time member of Respondent's management staff. He was secretary and treasurer of Respondent, and also held the title of traffic manager. Anthony Unanue, another brother, left the management of the family business in 1958.3 During Charles Unanue's association with Respondent, its gross sales rose from $247,000 in 1948 to approximately $4,200,000 for the fiscal year ending May 31, 1960. Respondent deals principally with retail outlets which sell in whole or in part to the Puerto Rican trade. The principal line of food products Respondent carries is of Spanish origin. , Goya food products are its principal trade name products. Respondent sells to retail outlets chiefly through sales representatives. It is un- disputed that until April 12, 1960, the sales representatives were Respondent's em- ployees. Their earnings, except in the cases of one or two beginners, were com- missions on sales. On April 12, there were 12 local salesmen and 2 out-of-town salesmen .4 The earnings of the established salesmen ranged from $10,000 to $17,000 per year. Respondent's growth in sales volume and sales area kept pace with the growth of the Puerto Rican population in the metropolitan area of New York City. In 1948, its customers were concentrated in the east Harlem area of the Borough of Manhattan, New York City. Three salesmen serviced these customers. By April 12, 1960, Re- spondent's sales area covered the entire city of New York, except Staten Island. It also extended north as far as Hartford, Connecticut, south to Maryland, and west throughout the hearing , contended through his attorney that Garmizi did not translate correctly a statement by General Counsel 's witness , Raul Nieves , on cross-examination. Max Schwartz , of counsel for General Counsel, agreed with Unanue . Both Unanue and Schwartz were conversant with the Spanish language No objection was raised by Respond- ent to any other translation by Garmizi , nor to any translation by Mario Schroeder, the interpreter who replaced Garmizi Nor was any objection raised by the Respondent to the Trial Examiner's rulings that Garmizi and Schroeder had qualified to act as interpreters in the proceeding. The testimony of three of Respondent's witnesses was given in Spanish and translated by Schroeder In evaluating the testimony of witnesses , and in making evidentiary findings as to what occurred with respect to matters in issue, I have considered the demeanor as well as the testimony of each witness for the General Counsel and each witness for the Respondent. And I have followed the principle stated by the Court of Appeals for the Second Circuit in the words "It is no reason for refusing to accept everything that a witness says because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all " N L R B. v. Universal Camera Corp , 179 F. 2d 749, 754, reversed on other grounds, 340 U S 474 S Joseph spent most of his time in Puerto Rico managing the family business there. The father, Prudentio , who was not associated actively with the management of Respondent's everyday operations , resided part of the year in Puerto Rico and part of the year in the United States . His residence in New Jersey , like that of Charles , was within commuting, distance of the place of business in Brooklyn , New York. * As will be seen infra. Charles Unanue discharged the 12 local salesmen on April 12, 1960, informing them at the time of discharge that its local sales from then on would be made through independent brokers rather than through salesmen employees. When Charles discharged the salesmen , lie invited them to complete applications for independent brokers which lie had prepared Oscar Rodriquez , Joseph L. Roldan , Joseph Alvarez, and Oscar Cruz filled out the forms and gave them to Charles on April 12, 1960. Eugenio Garcia, who filed a charge against Respondent on April 20 , 1960, filled out a form later that day. Respondent contends that the first three were engaged as independent brokers on April 12 , 1960, and that Cruz and Garcia were so engaged on April 13 and 21, 1960, respectively. The remaining salesmen , Manuel Alvarez, Goyco , Marti, Monllor , Nieves, Ruiz, and Seijo , who are Charging Parties, refused to fill out the application forms. One of the issues in this proceeding is whether Respondent discharged these seven salesmen for their union membership and activity. 614913-62-vol . 13 2-3 8 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Chicago.5 As previously stated, Respondent employed 12 local salesmen and 2 •out-of-town salesmen on April 12, 1960. Each of the local,salesmen had customers across the whole area of New York City on April 12, 1960 . This had been the practice since Respondent began selling through salesmen. Each salesman could have customers in the Bronx, Brooklyn , east Man- hattan and west Manhattan . He endeavored to visit each of his customers at least once a week as well as solicit new customers in such areas. In brief, the salesmen had a common sales territory. In May 1959, Charles Unanue had installed International Business Machines equip- ment at Respondent's place of business . It has been in use in Respondent's business operations since that time. The equipment is rented from International Business Machines Corporation. It was originally used for invoicing , billing, and the furnish- ing of suggested retail prices to customers . At or about the time it was installed, Charles Unanue studied the IBM system in use by Seaman Brothers, a competitor. By means of area codes, Seaman 's IBM system placed incoming orders in the same order as its warehouse inventory. Charles was exploring the possibility of adapting the system used by Seaman Brothers to the routing of trucks by Respondent .6 He also had in mind the preparation of accounts receivable, accounts payable, and payrolls by the IBM equipment. By March 31, 1960, the IBM equipment had been programed , and was being used to handle the accounts receivable, accounts payable and payrolls in addition to invoicing and billing. Frank Fernandez, an office worker, and another office worker by the name of Vargas, who prepared the accounts receivable by another system, were let go on April 8, 1960 , because their services were no longer required.? 2. Union activity and membership Four of the salesmen and Frank Fernandez met with Abe Price , president of Teamsters, at Fernandez' home on February 26, 1960 .8 They discussed with Price membership in and representation by the Teamsters . Price told them that 51 percent of the salesmen would have to designate Teamsters as bargaining representative before it could represent them . Cards which were applications for membership in Teamsters and designations of Teamsters as collective-bargaining representative, hereinafter referred to as union cards , were signed by at least 9 of the 12 local salesmen and given to Price on March 23 and 28, and April 2 or 3, 1960. On March 29, 1960, Teamsters filed with the Board a petition for certification as collective-bargaining representative for a unit of salesmen employed by Respondent. On April 2 Respondent , by Charles Unanue, consented to a Board election in the unit of salesmen . The written consent was filed with the Regional Office on April 7. On April 12, the Regional Director directed, and gave notice of, an election to be held at Respondent's premises on April 18 . The election was held on that date as scheduled, but a certification of results was never issued by the Regional Director as Teamsters withdrew its petition . Teamsters filed a request for leave to withdraw the petition on April 21. It was approved by the Regional Director on April 30, 1960. 3. Respondent's knowledge of union membership and activity Between March 23 and the weekly sales meeting held by Respondent in the late afternoon of Friday, March 25,9 Price, the president of Teamsters , stated to Charles 5 By August 1960 , 30 percent of Respondent 's sales were made beyond the New York metropolitan area. In 1948, only 5 percent were made beyond the metropolitan area. 8 Charles Unanue held a degree In electrical and mechanical engineering from Ohio Uni- versity. He was familiar with methods and systems for business operations. 7 These findings , dealing with the history of Respondent and its use of IBM equipment, are background to the findings dealing with the evidence in support of and against the allegations of General Counsel's complaint. They are premised on the testimony of Charles Unanue and Frank Fernandez and documentary evidence introduced on behalf of Respond- ent This evidence is clear and undisputed . The testimony of Charles Unanue and other witnesses as to the use of IBM equipment by April 12, 1960, to prepare customers ' state- ments by truck routes and by salesmen is evidence directly related to Respondent 's defense. Findings are made thereon infra, along with other such evidence. 8 Teamsters had two collective-bargaining contracts with Respondent . The anniversary or renewal date for both contracts was April 30, 1960 The employees covered by these contracts were the drivers and warehousemen and the office workers. Fernandez was shop steward for the office workers. The salesmen were Nieves, Manuel Alvarez, Marti, and Goyco. 9 Respondent held a weekly sales meeting in the late afternoon of each Friday . Charles UNANUE & SONS, INC. 581 by telephone that the salesmen were interested in organizing and joining a union other than Teamsters, and suggested to him that they should join the Teamsters. Price apparently did not feel he should disclose at that time that the salesmen were interested in becoming members of and being represented by Teamsters. On or about March 28, Price informed Charles Unanue by telephone that all but two of the local salesmen had joined Teamsters.1e 4. Respondents alleged intimidation, coercion, and restraint of employees It is undisputed that at the regular sales meeting on Friday, March 25, 1960, Charles Unanue brought up the subject of the salesmen's organizational activity, and told the salesmen they would have to call in from the first stop between 8 and 8:30 a in., that he held a special meeting about 8 a.m., on Wednesday, March 30, to find out what the salesmen had done with respect to union membership and designation of a bargaining representative; at the Friday sales meeting on April 1, he announced his resignation as president of Respondent and designated his brother, Frank, as acting president; at the regular meeting on Friday, April 8, Frank announced that salesmen would no longer receive a commission of 3 percent as they had in the past on sales given directly to Respondent; and the time allowed for payment of an account was decreased from 30 or more days to 20 days, in order to have a new order honored. The General Counsel contends that statements made by Charles in the course of his inquiry on March 25 and 30 regarding union activity and membership consti- tuted illegal interrogation and threats of reprisal for engaging in union activity and embracing union membership. General Counsel also contends that the requirement of calling in from the first stop between 8 and 8:30 a.m., each morning, Charles Unanue's resignation, the elimination of commissions on direct orders, and reduction in the credit period, were reprisals for embracing union membership and engaging in union activity. General Counsel also introduced evidence of statements made by Frank Unanue in conversations with Nieves on April 4, Marti on April 4 and 6, and Manuel Alvarez on April 5, and made by Charles Unanue in conversations with Manuel Alvarez on April 6 and July 1, and Marti on April 11. These statements, claims the General Counsel, constituted interrogation, coercion, intimidation, and restraint. Respondent contends, and furnished evidence to support its contention, that the statements made to assembled employees were permissive and intended to be the means of Respondent's finding out if the employees had a bargaining representative with which it should deal or whether it should continue to deal directly with the em- ployees on bargainable matters. It offered evidence and argues thereon that the re- quirement to call in from the first stop, and the representations to the salesmen that commissions on orders received directly from customers were to be discontinued, and the reduction in the time allowed for payment of an account from 30 or more days to 20 days were actions motivated entirely by business reasons, and had no connection with union membership and activity. Its evidence and argument thereon are also aimed at showing that the resignation of Charles Unanue on April 1, 1960, as president, was a personal matter due to an attractive offer made to him by a company on the west coast, and an effort to escape from a number of pressures on him which he considered to have stemmed from his position as president of Respondent, including the impact on him of having an additional group of employees represented by a collective-bargaining representative. The evidence of what occurred on each of the dates of March 25 and 30, April 1, 4, 5, 6, 8, and 11, and July 1, is considered in chronological order in the following paragraphs. Unanue presided . The salesmen , and usually Frank Unanue , attended. Sales, collections, visits to customers , price changes , and products were discussed, along with other matters that had the attention of a management which exercised a close control over its sales force. io This finding is premised on Price's testimony. Price was Respondent's witness Charles Unanue testified that he talked to Price about March 28, regarding the salesmen's joining a union, but that it was not until after the March 30 meeting that Price disclosed to him that it was Teamsters they had joined. Price's testimony is corroborated by the filing on March 29, 1960, by Price, on behalf of Teamsters , of a petition of certification as bargaining representative of the salesmen. Nothing in the record other than Charles Unanue's testimony would support a finding that Price was still concealing the identity of the Union on March 28, shortly before his filing of the petition for certification in which the Union's identity was disclosed. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. The March 25,1960, sales meeting The testimony of General Counsel's witnesses and Respondent's witnesses disclose that Charles Unanue opened the March 25 sales meeting with the statement that he had heard rumors that the salesmen were joining a union, that he then asked them, "What about it," and what their grievances were. There is also agreement in the testimony that the salesmen remained silent. I credit the testimony of salesman Nieves, General Counsel's witness, that the salesmen had instructions from Price, president of Teamsters, not to discuss their union activity with Respondent, and that he would be their spokesman Charles then proceeded to cover the matters ordinarily discussed at a sales meeting.ii In the course of his discussion of these matters, he gave the instruction that the salesmen were to telephone Respondent daily between 8 and 8.30 a.m. from the first stop. This in effect iequired the salesman to be at the location of at least the first customer by 8 to 8:30 a.m. Manuel Alvarez told Charles he could not do it as he lived on Staten Island, and had to reach the metropolitan area by ferry. This trip, according to Alvarez, made it very difficult to make his first visit to customers by 8:30 a.m. Charles said he would have to call in at that time. Monllor said to Charles that he would not call in between 8 and 8.30 a in., but would call in after 9 a.m. Charles Unanue testified on cross-examination that he did ask them at this meeting to call in from the first stop between 8 and 8:30 a.m. He claimed that he had asked them in the past to do this, but that the salesmen always ignored the request. He said he considered it unenforceable, as the salesmen could call in from their homes, and say that they were calling from the first stop. According to him, he made it a positive requirement in the case of Manuel Alvarez on March 25, because he made an issue of his inability to call in at that early hour. Nieves and Manuel Alvarez testified that the 8 to 8:30 call prior to the March 25 meeting did not have to be from the first stop, and that the salesmen would often make their first call after 8.30 a.m., without any criticism from Respondent. Charles Unanue's testimony corroborates the last part of Nieves' and Alvarez' testimony. I credit their testimony that prior to March 25, 1960, the salesmen were asked by Charles Unanue to make the first call daily between 8 to 8:30, but he accepted or ratified their practice of calling in for the first time after that call, and that for the first time on March 25, Charles required all the salesmen to call in from the first stop between 8 and 8.30 a.m., and made compliance by all salesmen with the instruction mandatory. Oscar Rodriguez, Re- spondent's witness, testified that Charles "insisted" that they call in in the morning. b. The March 30, 1960, special meeting As previously found, it is undisputed that Charles Unanue held a special meeting of the salesmen at or about 8 or 9 a.m. on March 30 to discuss their union activity. Charles Unanue opened the meeting with the statement that he understood they had joined a union. He then asked who were the ones who started the union activity, what their grievances were, and what they wanted. As on March 25, no one answered. Charles said at this time or later that he might as well resign if no one would talk to him. He said that there were several things he could do if they became organized, such as the bringing in of salesmen from Puerto Rico, moving the business to New Jersey, closing it, selling direct to customers or through brokers like Joseph Victory and Sons. He also said that he had a substantial sum of money to fight union organization and that he was willing to spend it. He also referred to a company in Puerto Rico whose employees selected a collective-bargaining representative and made their demands on the employer through their representative. According to Charles, the employer moved the business overnight, and the employees were out of work. On two occasions during the meeting, Charles and his brother Frank were asked to leave the meeting, once by salesman Roldan and once by salesman Rodriquez. 11 1 do not credit Nieves' and Manuel Alvarez' testimony that before proceeding with the matters ordinarily handled at the sales meeting , Charles asked who the leaders of the union movement were. When asked on cross-examination to restate what was said by Charles at this meeting they failed to mention their testimony that Charles had asked about the Identities of the leaders. The other five witnesses of General Counsel were silent regard- ing it, and Respondent's witnesses who testified as to what occurred at this meeting denied, it. While Garcia who filed a charge against Respondent and then testified for Respond- ent, stated In an affidavit he gave to General Counsel that Charles did ask this question, be denied on the witness stand under repeated questioning that Charles asked it. I credit his oral testimony. UNANUE & SONS, INC. 583 Roldan and Rodriquez suggested to the other salesmen during the absences of Charles and Frank that the salesmen discuss with Charles what they were seeking through union organization. They refused. On the return of Charles and Frank to the meet- ing room, Charles was told by Roldan or Rodriquez that the salesmen had nothing to say. After the second return, Charles asked the salesmen if they wished to know anything about unions from him. Manual Alvarez asked him what he thought about Teamsters, and he replied, "That's a good union, is that the one you joined?" According to Charles' recollection, one of the salesmen either answered that they did not know, or they all remained silent. At this point, Charles Unanue concluded the meeting with the statement that time was being wasted, and that the salesmen should go out and make some sales and collections.ia c. The April 1, 1960, meeting At the regular sales meeting on the afternoon of April 1, Charles Unanue began the meeting by asking the salesmen what they were doing about organizing and what they wanted from Respondent. The reply from one of the salesmen was that he would have to wait for Price, president of Teamsters, to answer. Charles then said that he could not understand why they could not go to him if they wanted certain benefits or whatever it was they wanted. Manuel Alvarez answered by saying that the salesmen had been asking him right along for vacations and income insurance. 'Charles then said that he felt the men had lost confidence in him, and that he would be better off by resigning because he had been offered $22,000 a year to work for someone else. He announced that his brother Frank would be in charge from then ,on, and arose, bowed his head, and walked out. He had tears in his eyes. Manuel Alvarez followed Charles outside the building and talked with him while he was getting into his automobile. He said to Charles that he did not think that drastic action like resigning was necessary. Charles replied that no one appeared to desire to tell him anything, that he had a wife and children to think of, and there was a job waiting for him. He said he could not wait a few days for Price, president of Teamsters, to give him the answers he was seeking, that the job would not stand around waiting for him. After saying that he did not have things as good as people thought he had, he drove away. Frank Unanue conducted the meeting for a short time after Charles left. He dis- cussed routine matters such as prices and collections, and then ended the meeting. Manuel Alvarez told Frank that Charles ought to wait a few days before making a decision, that a few days would not make any difference. Frank answered that they could not expect anything else from Charles since no one wanted to tell Charles anything, that he was cornered like a rat, and did not have a chance to defend himself. Frank then asked what the salesmen wanted, and Alvarez said income 12 These findings are premised largely on the testimony of Manuel Alvarez, who testified in English and was subjected to intensive cross-examination by counsel for Respondent. His testimony is corroborated by that of General Counsel's witnesses Marti, Monitor, Seijo, - and Goyco Charles Unanue's testimony would have shown, if credited, that he called the meeting to find out what the salesmen wanted and whether they had selected a collective- bargaining representative with whom he should deal or negotiate, or whether he could still discuss the salesmen's demands or grievances directly with them He admitted that he may have said that he might as well resign since no one would talk to him He recalled that he mentioned about the plant in Puerto Rico closing down but that he referred to the incident after the meeting when he was talking to four or five of the salesmen Sales- man Rodriquez, Respondent's witness, testified that Charles referred to the closing down of the Puerto Rican plant during the meeting Respondent's counsel in his intensive cross-examination of Manuel Alvarez referred only briefly to the latter's testimony of what occurred at the meeting on March 30, 1960. He asked him if Charles Unanue threatened the salesmen at this meeting Alvarez answered "yes " He also asked him if the subject of a brokerage system was brought up at that meeting. The witness answered "no," that it was first brought up at the April 12 meeting. I construe this answer to be in response to the question understood by Alvarez to be whether Charles Unanue said at that meeting that a change would be made from sales- men to brokers I do not consider the witness' answer "no" to be testimony contradictory to his testimony on direct examination that at the March 30 meeting Charles included in a list of things he could do to offset union organization the giving of the selling "to brokers and jobbers like Joseph Victory and Sons." Charles claimed in his testimony that at the March 30 meeting he was endeavoring to find out what union the salesmen had joined. I have found, supra, that Charles had knowledge before this meeting that the salesmen had joined Teamsters The evidence does indicate that he did not disclose this knowledge to the salesmen on March 30. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insurance, vacations, and seniority, that they had no raises, or money, in mind. Saying to Frank that he did not know what else to tell him , Alvarez left.13 d. Conversations between Frank and Charles Unanue and individual salesmen in April 1960 On April 4, 1960, Frank Unanue, who considered himself as acting head of Re- spondent, told Nieves and Manuel Alvarez, in separate telephone conversations, that no orders would be delivered to customers who had an account unpaid 20 days or more from date of delivery. He informed Manuel Alvarez that the salesmen would have to convey this information to the customers. He also informed salesman Marti personally of this new requirement at Respondent's place of business on April 6. In a conversation with Manuel Alvarez on April 5, Frank Unanue made it clear that orders were held up at least temporarily starting April 5 where the customers' accounts were outstanding 20 days or more. The practice was in full force and effect on April 11, 1960. Frank Unanue contended in his testimony that no more than the usual number of orders were held up, and that the terms of 30 days were not changed. According to him if new orders were honored when an account was unpaid after 20 days, then the terms were greater than 30 days. According to the testimony of Charles and Frank Unanue, the holding up of orders to a customer if his account was unpaid after 20 days was in effect at the time of the hearing. They claimed that the customer still had 30 days to pay his account. Frank testified that the trade had notice of this new selling policy. When Manuel Alvarez telephoned in on April 6, 1960, he was told by Frank Unanue that Charles wished to talk to him. Charles asked him what was wrong with the salesmen , were they "crazy," who were the fellows that had started the busi- ness of organization, how far had it gone, and what was the other union. According to Alvarez, Charles was still under the impression that the salesmen had joined a union other than Teamsters. It is to be noted that on March 31 Respondent had notice of the filing of a petition for certification by Teamsters on March 29 and that Charles, on behalf of Respondent, along with Price, on behalf of Teamsters, had consented to an election on April 2, 1960. Charles testified that it may have been Price who brought the agreement to him on April 5. On April 6, 1960, when salesman Marti had left some orders at Respondent's and was leaving, Frank Unanue called to him and asked him to sit next to his desk. He asked him his opinion of the Union. Marti replied that he knew nothing about unions. Frank then asked him if he planned to "continue with the union" and his answer was that he would follow the majority. Frank's response to this statement of Marti was that while he liked him and would do anything for him, since he was going to join the Union, "the axe would fall on his head the same as with the other people." Marti telephoned Respondent on Monday, April 11. He was told by the person answering the telephone that Charles wished to talk to him. When he was con- nected with Charles, the latter asked him if he had much work to do. He told Charles that he was half-finished, that on Mondays he was in Brooklyn and had a lot to do there. After disclosing to Charles that he was on Bushwick Avenue, Charles asked him to come to Respondent's office by taxi. He did so. When he entered Charles asked him to be seated, and then asked him his opinion of the Union. Marti answered "that his opinion had nothing to do with it." Charles next said that if he had nothing to do with it who was the party organizing "all this." Marti responded with the statement that he did not know. Charles, at this point in the conversation, said that if he, Marti, left the Union, he would give him better work and more money. Marti's reply was that during his life he had often been hungry, and had worked 7 days a week, and that to do his duty toward Respondent by working 7 days a week, he did not have time to take his wife to the theater next is I have credited Manuel Alvarez' testimony of what was said and done on April 1, 1960. The testimony of the other witnesses, those for General Counsel and Respondent, corrobo- rates substantially Alvarez' testimony. According to Frank and Charles Unanue, the latter was still making an effort to find out the identity of the collective-bargaining repre- sentative selected by the salesmen, and what the grievances or demands were. Credit Manager Bonfiglio prepared a letter to Charles in which it was stated that the salesmen wished Charles to remain as president of Respondent . Salesmen Rodriquez and Cruz, Respondent's witnesses, testified that the letter was prepared at the request of all the salesmen. The names of the salesmen , however, were typed in the place on the letter where the signatures would normally be placed. There were no signatures on the letter. The letter was delivered to Charles at the latter's home by his brother Frank. UNANUE & SONS, INC. 585• door to his home to see the opera "Carmen," that was playing there. He continued that he then had enough money , and was not interested in working as hard as he had been doing. The conversation ended. On July 1, 1960 , when Manuel Alvarez visited Respondent to obtain a recom- mendation for use in his seeking of a position with another company, he and Charles had a conversation . Charles asked Alvarez who the salesmen were who started- the organizing and why the salesmen had not come to him first. He then asked Alvarez to consider all the trouble they were getting into . Alvarez replied that he was not the leader of the organizational activity although Charles thought that he was. He told Charles that he would not be able to live with himself if he disclosed who the leader was. Charles replied that he knew who it was, and mentioned Nieves. Alvarez then inquired how it could be Nieves as he had been making $12,000 a year, and made more in the year ending in April 1960 . Charles replied' that the section in which Nieves was selling was going down.14 e. The April 8, 1960, meeting Frank Unanue presided at the regular weekly sales meeting on Friday afternoon, April 8. Charles Unanue was in and out of the meeting but did not take part in, it.15 Frank informed the salesmen of the requirement that no new orders would' be delivered to a customer who had an account unpaid 20 days or longer. He also distributed a proposed form letter to the trade in which it was stated that a 2-per- cent discount from retail list price would be allowed on orders given directly to the- Respondent and an additional 1 percent from list price for payment within 10 days. "The statements of Charles Unanue made to Manuel Alvarez on July 1, 1960, could- not be held violative of the Act as the complaint does not allege them to be a violation. However, they are evidence of the motive behind the conduct of Respondent which the- allegations of the complaint place under scrutiny. I have premised my findings on the individual conversations Nieves, Alvarez, and Marti- had with Frank and Charles Unanue on the testimony of Nieves, Alvarez , and Marti. Frank Unanue admitted talking to Nieves, Manuel Alvarez, and Marti about the change in the time allowed for payment of accounts during the times they telephoned in during- April 4, 5, and 6. His testimony is silent as to the testimony of Marti about their con- versation on April 6 , 1960, about union activity. Charles Unanue's testimony is silent with respect to Marti's testimony of a conversation with him at Respondent 's place of- business on April 11, and of a telephone conversation between him and Alvarez on April 6, 1960. As previously stated, supra, I have been impressed with the holding up of Manuel Alvarez' testimony in spite of intensive cross -examination by Respondent 's counsel, and,, his demeanor as a witness In evaluating Alvarez' testimony of what was said in the con- versation between him and Charles Unanue on April 6, and Marti's testimony of what was said in a conversation between him and Charles on April 11, I have given weight to the silence in Charles Unanue 's testimony with respect to such conversations . While Marti testified that he had a conversation with Frank Unanue on April 4 by telephone along the same line as his conversation with him on April 6, I do not give this testimony any weight as it lacks definiteness I do not agree with Respondent's counsel's contention that Marti's testimony should be disregarded because of his sometimes excitable attitude and his testi- mony on cross-examination . In response to Respondent 's counsel's question whether Charles Unanue had said anything more about union activity than that he had heard' some rumors about it, Marti replied that he had already testified on the point , that counsel could refer to it, that he was getting hoarse . Respondent's counsel did not press the witness to answer. If he had done so, I would have directed the witness to answer. He readily responded in a similar circumstance. Marti, an older person in his sixties or- seventies, was obviously under severe nervous strain. However, be appeared to me to- be aware of his obligation to testify truthfully, and strove to do so. His cross-examination failed to disclose any falsification in the course of his testimony on direct. >s Frank Unanue testified that his duties prior to his designation by his brother Charles as acting head of Respondent at the meeting on April 1, 1960, were those dealing with office administration and traffic . He identified office administration as spot-checking on office procedures like collections , seeing that the billing was sent out on time, that the- warehouse was readying orders for delivery , and that "cash is being posted." He described his traffic duties as scheduling trucks, making sure merchandise was picked up from piers, following up on customs entries, and keeping posted on all freight traffic. Charles Unanue- testified that Frank was his assistant in all the details , and that it was Israel Rodriquez, who, in fact, handled the scheduling of the trucks. Charles further testified that Frank was not qualified to operate Respondent 's business operations According to Charles, if he left the business, his brother Joseph , the vice president, would be the executive head. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The salemen would not , as they had in the past, said Frank, receive any commission on these sales . Their commission had been the regular 3 percent. I credit Charles and Frank Unanue's testimony and the testimony of other wit- nesses of Respondent that this form letter was never distributed to the trade . Charles testified that he had no intention of permitting such a practice to be effective. 1 credit General Counsel's rebuttal witness, Maratea, that he received in the mail an undated -copy of the form letter. His copy, like the copies distributed for discussion at the April 8 meeting, had only the typewritten signature of Unanue & Sons, Inc., by Frank- Unanue, secretary-treasurer. The evidence of record placed the burden on General Counsel of showing distribution to the trade by more than receipt of this form letter by one customer. This particular copy could have been dropped in the mail by one of the salesmen. It is undisputed, however, that Frank Unanue gave the salesmen to understand, on April 8, that it would be mailed out to customers, and that they were going to lose the 3-percent commission on all the direct orders that it could attract from the trade. It is likewise undisputed that Charles was aware of what Frank was doing, and did nothing to remove this pressure on the sales- men which such an announcement placed on them.16 f. The election on April 18, 1960 The Board-conducted election of April 18, supra, was held at Respondent's place ,of business between 8 and 8:30 a.m ., in a unit of "all sales employees employed by the employer at its Brooklyn, New York, plant, during the payroll period closing March 23, 1960." The vote of each of the 12 local salesmen was challenged by the Respondent on the ground that they were all discharged for cause on April 12, 1960. The discharges will be discussed infra. I credit Marti's testimony that while Marti was waiting in the hallway to enter the room where the voting was held, Charles Unanue stopped close to him and stated in a loud voice in Spanish that through the fault of two salesmen who had made no progress, they had been convinced to join the Union , and they had fol- lowed them . The Board's Regional Office representative supervising the election then said something to Charles . Thereupon the salesmen , some of whom were ahead of him upstairs, and some behind him on the stairway, and some immedi- ately outside, went by turn into the room upstairs and voted . I also credit Charles Unanue's testimony that after the salesmen voted he said to them on the stairway "that just because they voted in an election did not mean that they couldn't make an application as a broker ," and "whether they were a broker, or not has nothing to do with the election, whether they voted for me or against me." I find that Charles made this statement in Spanish. The record shows that he spoke to the salesmen in Spanish. g. Respondent's defenses to allegations of intimidation, coercion, and restraint Respondent's defenses to the alleged conduct constituting interrogation, threats .and reprisals, and promises of benefit are premised on its attacking the evidence of General Counsel as to what was said and done during the times set forth in sub- section 4, above. My credibility findings have resolved the issues arising out of the adverse positions of General Counsel and Respondent. Respondent relies strongly on the testimony of Rodriquez supported by Cruz that it was Rodriquez who said on March 30 , that Respondent would close the plant or move it to New Jersey. Counsel for Respondent points to the testimony of saleman Seijo, General Counsel's witness, that Rodriquez made this statement to the sales- men on April 12, 1960. I took this contention of Respondent into consideration in finding that Charles Unanue said at the March 30 meeting that Respondent could close the plant down or move it to New Jersey , when he was listing for the salesmen's benefit several things Respondent could do to thwart the union organizational activity and repre- sentation of the salesmen by a collective-bargaining representative. I do not discredit Rodriquez' testimony that he made this statement to the em- ployees. I find that if he did say it, he said it after it was first stated by Charles Unanue, and as a reminder of what Charles Unanue said , and as an inducement to have the salesmen go along with his suggestion to them that they discuss their griev- ances or demands with Charles Unanue and abandon their plan for representation by a collective-bargaining representative. Absent more convincing evidence, I find 19I credit Manuel Alvarez' testimony that in an April 4 telephone conversation he had with Frank Unanue, the latter told him of the discontinuance of the 3-percent commission ,on the orders received by Respondent directly from the customers. UNANUE & SONS, INC. 587 that Rodriquez would not suggest that Respondent would commit the illegal act of moving the business or closing it down to avoid a legal duty to recognize a union se- lected by the majority of the salesmen and negotiate with it, without some prior state- ment to that effect by Charles Unanue or some other representative of management. 5. The discharges of the salesmen and the offers to engage them as "brokers" a. The April 12, 1960, meeting At or about 5 p.m., on Monday, April 11, Respondent sent -a telegram to each of the 12 local salesmen at his home address , informing him he must be present at a special meeting to be held on Tuesday morning, April 12, at 8 a.m. Respondent also stated in the telegram that the salesman had to bring account books, collection sheets, blank order books, and any property in his possession belonging to Re- spondent. The salesmen appeared at the scheduled time on Tuesday morning, April, 12, with the material they were asked to bring with them. The meeting was begun by Charles Unanue about 8:25 a.m. Frank Unanue and Joseph Unanue were also - present. Frank Unanue had flown to Puerto Rico on Friday, April 8, and returned with Joseph on Monday morning, April 11. From an evaluation of the testimony of the seven witnesses of General Counsel' and the seven witnesses of Respondent, including Frank and Charles Unanue, who, testified as to what occurred at the special meeting on the morning of April 12, I find that the following occurred. At the outset Charles Unanue instructed the salesmen to place the property they were asked to bring with them on a table outside the conference room. When they returned to the meeting room, Charles told the salesmen that because of all the trouble due to union organization, that nobody seemed to know anything about it, and nobody wanted to tell him anything about it, he was forced to change the selling system from salesmen to independent brokers, and from open territories to closed territories, and that in view of the change, the sales department was being dismissed. He further said that he would naturally consider them for the jobs as brokers if they wished to file applications for such jobs. He stated that they could better sell the Goya food products in view of their experience in selling that line. He further stated that if they filed applications he would give them preference for the jobs, that each salesman would have a definite territory as a broker or another position of an equivalent nature, and each one of them would earn as much as he did the previous year. Then Charles stated that if there were any questions he would sit at his desk and answer them. Charles then brought the meeting to an end. Manuel Alvarez asked him if they were out. Charles replied, "Let's say you are just no longer needed." The salesmen went out of the meeting room. Monllor asked Joseph Unanue for the application form. Joseph replied there were no forms, that there was not anything. Charles then came out and said that the applications would be ready by 12 noon. He had improvised a simple application form containing requests for information which was already available to Respondent The salesmen who were- the eight Charging Parties left. They did not appear again at Respondent's premises until the election on April 18, 1960, which is discussed supra. Salesmen Rodriquez, Roldan, and Joseph Alvarez, Respondent's witnesses, remained. They received application forms about 10:30 a.m. They filled out applications and were inter- viewed by Charles Unanue and hired by him that day as what Respondent contends were and are independent brokers. Oscar Cruz who had been mostly engaged in setting up Respondent's products on shelves in supermarkets and other retail stores filled out an application in the afternoon and was hired that evening or the next morning. On or about April 15 Charles Unanue began advertising for "independent brokers." 17 17 These evidentiary findings are a composite of the testimony of Manuel Alvarez and Charles Unanue . The testimony of these witnesses was evaluated against the background of the testimony of six other witnesses of General Counsel and six other witnesses of Respondent who testified as to what occurred at the meeting on April 12. In crediting Alvarez' testimony that Charles stated that the union activity was the cause of the change in Respondent's system of selling, I have considered the testimony of Respondent's wit- ness Garcia , and General Counsel 's witnesses Seijo, Nieves , Marti, Monllor, and Ruiz to the effect that Charles laid the blame on the union activity, at the outset of the meeting. In arriving at this finding , I have also considered the complete silence and complete lack of reference, in the testimony of Charles and Frank Unanue and Respondent's other wit- nesses, Rodriquez, Roldan, Cruz, and Joseph Alvarez, with respect to anything being said in Charles' statement to the salesmen as to the cause of the change from salesmen to 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The April 20,1960, meeting On the morning of April 20, salesmen Alvarez, Garcia, Goyco, Marti, Monllor, Nieves, Ruiz, and Seijo filed the separate but identical unfair labor practice charges against Respondent. They were accompanied to the Regional Office of the Board by President Price of the Teamsters. He filed an identical charge against Respondent on behalf of Teamsters, and assisted the eight salesmen in the filing of their charges. Following the filing of the charges, and after Price and the eight salesmen had had a conversation, Price called Charles Unanue at Monte's where he was having lunch. Price asked him if he would take the salesmen back if they withdrew the charges and he stepped out of the picture. Charles replied that he could take back only four of the salesmen at that time, but would take back the remainder as quickly as he could. Price suggested to Charles Unanue that he meet with him and the eight salesmen. After a colloquy initiated by Charles as to whether Price represented the salesmen, and whether he should be present at a meeting between him and the salesmen, Charles told him to arrange a meeting and to attend the meeting with the salesmen. Price arranged for a room at the Hotel St. George in Brooklyn. Shortly thereafter, Charles Unanue, Price, and the eight salesmen ap- peared at the place where the meeting was scheduled to be held. Price first spoke to Charles. He spoke to him in English since he did not speak Spanish. He said he felt that he was responsible for the men losing their jobs, that there was no law stopping Charles from changing Respondent's selling system from salesmen to brokers, and that off the record he would like to make some kind of arrangement so that he could get back to work and forget the whole matter. He further said he would leave it to Charlie to see if he could arrange something so that the salesmen could go back to work under the old conditions without any reprisals, and that the whole thing would be dropped. He was asking Charles to take the salesmen back as employees on the same basis as existed prior to April 12, 1960. In effect, he stated that the Teamsters would withdraw its charge, and he would attempt to persuade the eight salesmen to withdraw their charges and abandon their organizational efforts. Price withdrew the Teamsters' charge on -April 21. Charles said to the eight salesmen in Spanish that they would have to file applica- tions for "brokers," that he would review them and select four to begin work im- mediately. The other four would receive letters of recommendation, and would have an opportunity to collect unemployment insurance. Charles said he would help the others to be placed in jobs if he could do so. He also said they would all make as much as they did the prior year, and he would not take on any more brokers until he had taken aback all of the eight and had given them a franchised territory. In response to a question Charles said the commission would be 2 per- cent. Marti spoke to Charles Unanue. He told him that if he gave the salesmen the same routes as before and would pay 50 percent of the insurance cost, the men would return to work and pay the remainder of the insurance cost. The insurance .cost was the premium on insurance to indemnify Respondent against losses from bad debts. The salesmen were required to absorb some of the bad debt expense. Charles replied to Marti that he would take back four, then in a couple of months another one, so that after a couple of years he would have them all back. He made it clear that they had to file the applications he considered applications for jobs as "brokers." The salesmen asked Charles for applications; he said they were at the office. The salesmen and Charles went to the office, but they did not go to- gether. The salesmen received application forms at the office and specific times -during the next morning for individual interviews by Charles. However, 15 min- utes after they had received the applications and the times for the interviews, Manuel Alvarez came to Charles' office, returned the application forms to him, and said that the salesmen did not wish to fill out the forms unless he would agree to take them all back. Charles would not agree to do this, and they all left. Salesman Garcia, one of the salesmen who had filed a charge that morning, telephoned Charles Unanue about 6 30 p in., and told him he would like to fill out an application. Charles told him to do so and to come to the office the next morning. He was engaged as a "broker" on April 21, 1960. The above findings as to what occurred at the April 20 meeting are supported "brokers," except the statement that it followed a decision between or among the IInanue brothers . I have credited Charles IInanue 's testimony that he referred to a change from -open sales territories to closed sales territories in view of the supporting testimony of Rodriquez and Roldan, the nature of the record, and the complete silence in the testimony -of General Counsel's witnesses as to any reference by Charles IInanue to exclusive sales areas. General Counsel did not offer any rebuttal testimony to this position of Respondent. UNANUE & SONS, INC. 589 by the testimony of both General Counsel's and Respondent's witnesses . The con- flict is in the testimony dealing with the withdrawal of the charges , and reversion to the nonunion conditions. General Counsel's witnesses Nieves and Alvarez testi- fied that Charles made the statement that his offer to take four back and the re- mainder as quickly as he could was conditioned on the withdrawal of the charges. Charles testified that he made no reference to withdrawal of the charges in this conversation , that whatever reference was made to it was made by Price. Price testified that he was the one who mentioned the withdrawal of the charges . Garcia also testified that it was Price who referred to the withdrawal of the charges. The testimony of General Counsel 's witnesses Monllor, Seijo , Goyco, and Ruiz is silent on this issue. I find that Charles Unanue made no reference to the withdrawal of the charges or to reverting to the prior nonunion conditions in any statement he made either to Price in the conversation over the telephone in which it was agreed to meet at the Hotel St. George , or later in the discussion he had with Price and the Charging Parties at the Hotel St. George . However, it is clear from the testimony of Price and Charles Unanue that the responses Charles made in answer to Price to the effect that he would take back four and the rest when he could were in response to the statements of Price that he would withdraw the Teamsters ' charge and attempt to persuade the other Charging Parties to do the same, if Charles would take the men back under the old conditions and with no reprisals . The question that remains for resolution is whether the willingness of Charles Unanue to take back four sales- men immediately and the others when conditions permitted resulted from the offer of Price to withdraw his charge and to attempt to persuade the others to do the same, and the representation that the employees would return to their prior non- union status. c. Respondent's defenses of the discharge (1) The December 19 and 20, 1959, decision to change the selling system Respondent's chief defense is that a fundamental change was made in its selling system on April 12, 1960, in accordance with a plan adopted by Respondent's board of directors in December 1959, and that the change caused the discharge of Re- spondent's salesmen and not any antiunion motivation as General Counsel contends. Charles Unanue's testimony deals at length with the adoption of the plan in December 1959. He testified that he had a meeting with brothers Joseph and Frank on December 19 and 20. They decided at this time to have the IBM machines handle accounts receivable, accounts payable, and the payrolls, and also decided to have the IBM machines programed to arrange orders by routes within designated delivery areas. It is also the contention of Respondent that a decision was reached to have each salesman assigned to an exclusive sales area which would be, tied in with the truck routes within the delivery areas. The IBM machines were to prepare the cus- tomers' statements to bear the number of the route , within one of the designated delivery areas , and the number of the salesman selling within that route. This program was to be effective on April 30, 1960, and to overcome the opposition of the salesmen to being denied overlapping and open sales territories, they were to be discharged with 2 weeks' notice and reengaged as independent brokers. Accord- ing to Charles, he told his brothers at the December meeting that the new program would make possible the reduction of salesmen's commissions from 3 percent to 11/2 percent. Charles testified clearly that he considered an independent broker to be an independent contractor, and not an employee. This is evident from the testimony that he said to his brothers in December 1959 that the salesmen would be separate and apart from the Company , and from his testimony that he considered an independent broker to be an "independent businessman ." Frank Unanue cor- roborated, on direct examination, Charles' testimony about truck routes and ex- clusive sales areas. He made no mention of independent brokers. On cross-exami- nation, he testified he believed Charles referred to independent brokers, and that he said brokers would result in more savings. He gave his opinion that there would be savings in automobile insurance and hospitalization (2) The placing in effect of the selling plan adopted in December 1959 Charles further testified that upon the failure of the salesmen, except Cruz, to call in on Monday, April 11. 1960, and his receiving word from a customer that one of the salesmen had said that there was 'a good chance of a strike by the salesmen on Wednesday, April 13, and being questioned by another customer as to whether the salesmen were going to strike, he recommended to his brothers Joseph and 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frank in a meeting in the afternoon of April 11 ,18 that the plan adopted in December 1959, to change selling system from open to closed sales territories and from sales- men to independent brokers, be placed in effect immediately instead of on April 30. He testified that he told them it would have to be without the 2 weeks' notice as originally planned . According to Charles, his brothers and he reached a decision to, follow this recommendation . Through to midnight on April 11 , and on to 2 a.m. on April 13, said Charles, route numbers were given to some new accounts , the older accounts already having them , and the IBM machines were programed to produce, customers' statements containing route numbers within designated delivery areas and numbers for the salesmen handling the accounts . According to Charles, on April 12 the "brokers" were given customers' statements set up in this way. ' Respondent's counsel offered in evidence , through Respondent's witness Rod- riquez, a customers' statement dated June 30, 1960 , as representative of the situation that prevailed on April 12 , 1960. On inquiry by the Trial Examiner as to the reason why statements as of April 12 , or close thereto, were not offered by Respondent, customers' statements dated March 31, 1960 , and April 1960 , were offered and received in evidence . While the April 30 statement had a route number on it, the March 31 statement did not. The testimony disclosed without dispute that March 31 statements were the statements distributed on April 12 to the four who had been engaged as "brokers ." The testimony also discloses that the customers' numbers on the statements had been assigned to customers in alphabetical order when the IBM machines were first used, and that the salesmen 's numbers were assigned in 1959 for the purpose of computing commissions and for research purposes . Charles testified that the salesmen 's numbers had to be reassigned . The evidence does not disclose whether the, salesmen 's numbers on the March 31 or the April 30 state- ments identified the salesmen actually handling the particular accounts. The testimony of Respondent's witnesses discloses that Israel Rodriquez, who routed the trucks, took all the March 31 statements that were to be handed to the four "brokers" and manually separated them .in four groups identified with the four sales areas given to the four "brokers." Since there were only four "brokers," there ,were only four sales areas. Rodriquez was given the Bronx, and Roldan was given Brooklyn. Without bothering to consult Charles , they exchanged sales areas and, I presume, the March 31 customers' statements . The sales areas were at best tem- porary since Charles advertised for brokers on or about April 15 and, according 11 Pursuant to instructions from Charles Unanue on April 7, Frank Unanue flew to Puerto Rico on April 8 and returned with his brother Joseph on April 11 In a meeting of the three brothers in the morning of April 11 , Joseph remarked , according to Charles , that he understood he was quitting. Charles stated that he listed a number of things that were influencing him to take a job on the west coast , one of which was that the salesmen were organizing. He also testified that he received the offer of employment from the west coast firm in August 1959, and that while he was at a canners' convention in Miami, Florida, in January 1960 , he met a representative of the firm who made some reference to it. He bought a plane ticket on April 5, 1960, to San Francisco for Friday , April 8 He said he made a few telephone calls arranging appointments for Saturday and Sunday of that weekend Although he had the plane ticket on April 6, he directed Frank on April 7 to depart for Puerto Rico on April 8, when he purportedly was to embark for San Francisco. It is difficult to believe that a position offered to him the prior August was still open . If he had received some definite information that it was , he would certainly have disclosed it at the hearing. In addition , in the absence of more convincing evidence , I find it hard to believe that business appointments were arranged for Saturday and Sunday . If they were, it was incumbent on Charles Unanue to disclose enough information about them to clear away the nebulous appearance his testimony had with respect to this matter. Also, the con- tinued close supervision Charles gave Frank after resigning and designating him as execu- tive head appears to indicate that he did not contemplate actually going through with it. No testimony was offered by Charles that he had to, of did , call off any appointments on the west coast for the April 9 weekend . He testified that he told his wife that he was going to San Francisco and went into New York City and rested . It could be that he intended to take a junket to San Francisco , but it was only to further mislead the sales- men into thinking that lie was leaving the di in because thev refused to disclose their union activity to him or to abandon it and negotiate directly with him. His readiness to give up the west coast plans without some hesitancy because of plans or commitments he supposedly had made, when Joseph, according to Charles, said that he was needed to supervise the change in the selling system, further supports the inference I draw that he never intended to leave, did not check with any firm regarding an offer it had previously made to him , and had no schedule of appointments on the west coast for the weekend of April 9 and 10. UNANUE & SONS, INC. 591 .to Rodriquez, Respondent employed six or seven "brokers" between April 12 and 20. This would mean three over and above four on April 13 . As stated supra, Garcia, a former salesman, became a "broker" on April 21 . Ernesto Perez was engaged on May 6. So the sales areas required adjustment as the complement of "brokers" was supplemented. Apparently the June 30 , 1960, customers' statement represented everything that Charles Unanue contended was in effect on April 12. Charles testi- fied that in May and June 1960 , Respondent had nine "brokers." The nine salesmen had designated sales areas . The June 30 customers' statement showed the truck route, which also identified the sales area , and the salesman's number handling that sales area. I suppose Charles had reassigned the salesmen's numbers by then. To support Respondent's position that the plan to change to independent brokers was adopted on December 19 and 20, 1959, Charles Unanue testified that he told Price, president of Teamsters , in a conversation occurring a few days later, after Christmas, that there would be changes in Respondent's operations. This testimony was corroborated by the testimony of Price. However, Charles admitted on cross- examination that when he mentioned changes to Price he had in mind possible re- ductions in the number of drivers and warehouse and office personnel . This could result from the use of the IBM machines to handle accounts payable, accounts receivable, and payrolls , and the arranging of orders to be delivered by truck routes. These reductions had no relation to a change in the selling system. To be considered with this defense of Respondent is the admission by Charles that no one was informed of the proposed changes in the selling system adopted in December 1959 but brothers Frank and Charles , and the absence of evidence that any steps had been ' taken by April 12 to prepare the 2 weeks' notice which the salesmen were to receive in the middle of April with respect to the change that was to affect them radically starting April 30, 1960. (3) The defense that the salesmen did not call in on April 11 Also to be considered is the testimony of the salesmen with respect to their calling in on April 11 . According to Charles Unanue, Oscar Cruz was the only salesman who called in. He called in in the afternoon . Frank Unanue testified that he did not talk to any of the salesmen on April 11. Charles testified that when Oscar called in he told him that the salesmen told him not to call in. Cruz, who was Respondent's witness, testified that at a meeting at Fernandez ' house on April 8, following the weekly sales meeting, the salesmen decided not to call in, but gave him permission to call in when he told them he was on salary. Rodriquez, Respondent's witness, testified he called in . Garcia, another of Respondent's witnesses, testified he did not call in. Monllor testified that he called in twice on April 11. Seijo said he did not call in at the first stop on that date because he went to the airport , but that he called in about 2 o'clock in the afternoon. Alvarez and Goyco testified that they called in from the first stop that morning. Ruiz' testimony is silent as to what he did. So also is the testimony of Roldan and Joseph Alvarez . Nieves testified that it was his best recollection that he called in, that he always called in and had no reason to believe he did not. I have already credited Marti's testimony that he called in on April 11, and as a result of a request made to him by Charles in the course of the telephone conversation , he visited the Respondent's business in Brooklyn the same day and had a personal conversation with Charles. So 8 of the 12 salesmen testified that they called in on April 11 , 1 testified that he did not call in, and the testimony of 3 of the salesmen is silent as to whether they did or did not call in. Six of the salemen who testified they called in were witnesses for the General Counsel . The testimony of one of General Counsel 's witnesses is silent as to what happened. Two of Respondent's witnesses testified they called in, one, Garcia, testified he did not call in, and the testimony of the other is silent as to this matter. Colon , Respondent's telephone operator and witness , testified that Respond- ent's witnesses Rodriquez, Roldan , and Garcia called in, but that General Counsel's witnesses Nieves, Goyco , Monllor, Marti, and Alvarez did not call in. As stated above, Garcia testified, contrary to Colon, that he did not call in. And the testimony of Roldan, who called in according to Colon, is silent as to whether he did or did not call in. The testimony is undisputed that usually the salesmen called in every day. In view of the "too pat" testimony of Respondent 's witness Colon, and the contrary testimony of Respondent's witness Garcia, and the conflict between what Charles Unanue testi- fied Oscar Cruz told him about calling in on April 11, and Cruz' version of what the salesmen purportedly told him on that date , and the positive testimony of Manuel Alvarez, Monllor, Seijo, Goyco, Rodriquez, and Marti that they called in , and Nieves' testimony that it was his best recollection he called in, I do not credit the testimony of Charles Unanue that only Oscar Cruz called in . I credit the testimony of Manuel 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alvarez, Nieves, Monilor, Seijo, Goyco, Marti, Rodriquez, and Cruz that they called in. I also find that the record fails to show whether or not Garcia, Ruiz, Roldan, and Joseph Alvarez called in. It is apparent that there was not the failure to call in that would motivate Charles Unanue in the ordinary course of events, and without the presence of what he considered extenuating circumstances, to change so radically the selling system without notice to the employees substantially affected. (4) The defense that the Charging Parties resigned to enter business Respondent sought to establish that Nieves and other salesmen had contemplated establishing a business of their own, and because of this thinking, they refused to file "brokers" applications on April 12 and 20, 1960. The evidence shows the Nieves, Ruiz, Marti, and two other former salesmen organized a distributing business, competitive with that of Respondent, and incorpo- rated it as United Salesmen, Inc. The General Counsel made available to Respondent for examination on the witness stand Attorney Jerome Gerwitz, who handled the incorporation of this new business, the lease of the premises where they were doing business, and the drafting of the stockholders' agreement, and participated in all the conferences in which the new business began taking shape. His testimony showed that the earliest action taken by the salesmen, to his knowledge, was on April 22, 1960. Manuel Alvarez, who did not participate in the organization of the business and had no part in it, met the attorney through a common friend on April 21 and arranged for the five salesmen to meet with the attorney. His participation ended at that point. Nieves testified that he made inquiry at the Regional Office of the Board with respect to the possibility of starting a business. Price testified that the morning of April 20 the salesmen discussed at the Regional Office the possibility of going into business. Respondent contends that Nieves made the inquiry on April 20 and, there- fore, these five salesmen were not acting in good faith when they met with Charles Unanue at the Hotel St. George. It is Respondent's position that they did not wish reemployment on April 20. (5) Evidence to be considered in connection with Respondent's defenses In the analysis of evidentiary findings and the making of concluding findings that will follow, there is other evidence of record that requires consideration. There is the testimony of Charles Unanue and witnesses of Respondent employed by it prior to April 12, 1960, that these latter witnesses continue to receive hospitali- zation benefits, Blue Cross and Blue Shield, and that their automobile insurance contracts that were executed prior to April 12 had still time to run. Perez, a "broker" not previously employed as a salesman, testified he received no hospitalization or insurance benefits. Both types of "brokers" and Charles testified that taxes had not been withheld since April 12, 1960. Their testimony unequivocally discloses that the same conditions exist for them as "brokers" as existed for the salesmen prior to April 12. They must call in from the first stop, there are weekly sales meetings on Friday afternoon, they receive a com- mission on sales, which is now 2 percent, and they receive commissions on orders given directly to Respondent as well as orders they take personally. The terms on which they sell are 30 days with no new orders when accounts are unpaid 20 days or longer. Charles exercises the same supervision over them as when they were classi- fied as salesmen. For example, he checks them at weekly sales meetings when they do not call in as required. They do not have any contracts with Respondent. The medium of employment is the application Charles Unanue prepared on or about April 12, 1960. The form requires the date completed; name and address of appli- cant; employment experience during the last 5 years; a bank, business, and personal reference; a yes or no answer to the question whether the applicant had been arrested, and if so, the circumstances and results; the territory the applicant preferred; net earnings for the prior 5 years; experience in selling foods in Spanish-American neighborhoods; whether English or Spanish or both was spoken well, some, or not at all; and the applicant's opinion of his ability to work effectively as a broker. There is also the testimony that the "brokers" who were salesmen continued to keep, their accounts in their homes. And that Respondent had had collective-bargaining relations with the labor unions over a period of 61/2 to 7 years when Charles was president, and that he handled all the labor relations. Finally, there is the testimony of Price that the collective-bargaining contracts for the drivers and warehouse em- ployees and the office workers in effect at the time of the hearing in August 1960 ran from May 1, 1960, that they were negotiated in May or June 1960, that the 60-day notice of intention to bargain for changes in the prior contracts was given by Team- UNANUE & SONS, INC. '593 stern to Respondent at the end of March 1960, and that the new contracts contained wage increases. Price further testified that two other representatives of Respondent, and not he, negotiated the changes. B. Analysis and concluding findings 1. The interference, restraint, and coercion of employees I have made evidentiary findings of what Charles Unanue said to the assembled salesmen employees on March 25 and 30, and April 1, 1960, by way of inquiry as to their union membership and activity. I find this inquiry to have contained a tone of aggressiveness which called the employees to disclose to their employer who the leaders of the movement were, and something they had done which they should not have done, and to explain what they were seeking by way of union membership and activity, and why they did not seek these objectives by coming to their employer instead. This questioning clearly interfered with the free exercise of the rights under the Act to embrace union membership and participate in union activity. The questioning of Marti on April 6 by Frank Unanue and on April 11 by Charles Unanue, and of Manuel Alvarez on April 6 by Charles Unanue, carried the same coercive label as the questioning directed to the assembled employees. I find that Respondent's questioning constituted illegal interrogation violative of Section 8(a) (1) of the Act.19 It was not the honest questioning which the Board held to be legal in Blue Flash Express, Inc., 109 NLRB 591. The record does not support Respondent's defense that it was merely atempting to find out whether it had to bargain with a collective-bargaining representative and, if so, who it was. Respondent had no duty at the time to bargain with a collective-bargaining representative. Nor had the salesmen any duty to dis- close to Respondent or its representative the efforts they had been making to embrace union membership and to select a collective-bargaining representative. All the cir- cumstances considered, the questioning was clearly coercive. See Cousins Associates, Inc. v. N L.R.B., 283 F. 2d 242,243 (C.A. 2). I have also found that Charles Unanue on March 30, 1960, stated to the salesmen that as countermeasures to their union activity he could close down the business, move it, replace them with salesmen from Puerto Rico, resign as president of Respondent, sell directly to customers, sell through brokers, and spend a good sum of money to fight the salesmen's organizational activity. I find these statements of Respondent to the assembled salesmen to be threats of reprisal violative of Section 8(a) (1) of the Act 2u I have found that Charles Unanue, president of Respondent, represented to the salesmen on April 1, 1960, that he was resigning although he did not actually do so or intend to do so, and on April 8 Frank Unanue was permitted by his brother, Charles Unanue, to represent to the salesmen that customers were being solicited to order directly from Respondent , and that salesmen would not receive any commission on direct orders as they had in the past. I find the representations, all occurring as they did in a context of interrogation of the salesmen because of union membership and activity, knowledge by Charles Unanue and his brother Frank of the union membership and activity of the salesmen, and threats of reprisal against the salesmen because of such activity by them, to have been reprisals against the salesmen because of their union membership and activity, and to be violative of Section 8(a) (a)( I) of the Act. Although Charles Unanue did not intend that these changes would be placed in effect, the coercive impact on the salesmen of the representations that they were or would be, was as great as it would have been if they had been placed in effect, or intended to be placed in effect.21 I have found that in the conversation of April 11, 1960, which Charles Unanue had with salesman Marti, Charles promised Marti better work and more money if he abandoned the Union. I find this conduct to constitute a promise of benefit violative of Section 8(a)( I) of the Act 22 I hold the statement I found to have been made by Charles Unanue to Marti and the ether salesmen just prior to the Board election on April 18, to the effect that they had been influenced by two salesmen , who were inefficient , to join the Union, to constitute interference with the rights of the salesmen to be free and unhampered in their selection of a collective-bargaining representative, and violative of Section 8(a)(1) of theAct23 io Ptredoor Corporation of America , 127 NLRB 1123. 20 Winchester Electronics, Incorporated, Pyne Moulding, Inc., 128 NLRB 1292. ri Cecil J Aaggett , et al, d/ h/a Allied Chain Link Fence Company, 126 NLRB 608. 22 Borg- Warner Corp , 128 NLRB 1035. 23 Babcock & Wilcox Co., 128 NLRB 239. .594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contends that the placing in effect by Respondent on or about April 8 of the limitation on terms of sale and credit that while 30 days were allowed for payment, no new orders would be shipped if an account was unpaid 20 days or more, is violative of Section 8(a)(1) of the Act. The evidence shows that this re- quirement had been in effect since on or about April 8 to the date of and during the hearing, that there was no intention to abandon it, and that it was considered by Respondent to be a sound business practice. Frank Unanue who placed this require- ment in effect was of the opinion that Respondent needed cash at the time. He testified that the trade was given notice of this requirement. On its face, it appears to be a sound business practice. The General Counsel did not offer substantial ,evidence to show that it was part of Respondent's campaign against the union mem- bership and activity of the salesmen. It is true that the requirement was made effec- tive in the midst of the Respondent's antiunion campaign, but this factor alone is not conclusive. From a consideration of all the evidence, I find the placing in effect of this sales and credit requirement to have been a bona fide business action and not a reprisal against the salesmen because of their union membership or activity. As a result, I conclude and find that such action was not violative of Section 8(a)(1) .of the Act. 1 2. The discharges General Counsel has made a prima facie case against Respondent of a violation of ,Section 8(a)(3) and (1) of the Act by the latter's discharge of the seven salesmen, Manuel Alvarez, Goyco, Marti, Monllor, Nieves, Ruiz, and Seijo by the evidence of Respondent's conduct violative of Section 8(a)(1) of the Act starting on or about March 25 following the receipt of information that the salesmen were joining a union and engaging in union activity, and the discharge on April 12, 6 days before a Board-conducted consent election in a unit of Respondent's salesmen employees. The question is whether Respondent's defense that the discharge of the 12 salesmen .on April 12 was a preliminary act to placing in effect on that date a plan adopted in December 1959, to sell through independent brokers with exclusive sales areas in- stead of salesmen employees with a general sales area, rebuts the prima facie case of General Counsel. According to Respondent, and its evidence in support thereof, the plan was to be effective on April 30 with 2 weeks' notice to the salesmen, but had -to be placed in effect 2 weeks earlier, without notice to the salesmen, because of the refusal of the salesmen, with the exception of Oscar Cruz, to call in during business hours on April 11. I do not credit Charles Unanue's testimony that he and his brothers, who with their father constituted Respondent's board of directors, decided in December 1959 ,to sell through independent brokers. I credit his testimony that the brothers decided to have the IBM machines handle the accounts receivable and payable, and payrolls, and arrange orders by delivery routes within designated areas, and that salesmen would be given exclusive sales areas, in terms of certain routes, with the IBM equip- ment programed to prepare customers' statements showing thereon the numbers of the delivery routes and the names of the salesmen to whom the routes had been assigned as their sales areas. Frank Unanue's testimony corroborates his brother Charles' testimony in this respect. On the other hand, his testimony on direct exami- nation is silent with respect to selling through independent brokers. He referred to independent brokers on cross-examination, but on the basis that he believed it was -brought up in the December 1959 meeting. Joseph Unanue, the brother who Charles stated would take over the operation of the business if he left, did not testify although he participated in the December 1959 meetings and decisions. Charles Unanue's testimony, corroborated by the testimony of Price, that in a conversation with the latter shortly after Christmas of 1959 he mentioned that changes would be taking -place in Respondent's business, does not help Respondent, because on cross- .examination Charles admitted he was referring only to possible reductions in the number of office, warehouse, and driver personnel. On the other hand, more persuasive is the evidence, contrary to Respondent's, that Respondent was not ready on April 12 to place in effect exclusive sales areas for salesmen or sales representatives for economic or other business reasons, and prior to the salesmen's union membership and activity had not planned to sell its merchan- dise through independent brokers or contractors instead of salsemen employees, but on April 12, and thereafter, attempted to do so, or gave the appearance of doing so, in order to defeat the union membership and activity of the salesmen. Respondent had not disclosed to the salesmen that they were to be limited to .exclusive sales areas after April 30 or had taken any steps to prepare such a notice, .although the plan to place this procedure in effect had been adopted, according to Charles, in December 1959, and the salesmen were to receive 2 weeks' notice. The .assigning of exclusive sales areas on April 12 was at most a makeshift arrangement. UNANUE & SONS, INC. 595 Since Charles Unanue himself testified that the purported change from salesmen to brokers was only to assist the major economic change from a general sales area to assigned exclusive sales areas, the lack of preparation and readiness for the latter change shows that the first change was merely a myth or at most a device resorted to by Respondent in its campaign to defeat the union membership and activity of the salesmen. Additional evidence against the change from employees to independent brokers is also persuasive. Contrary to Charles Unanue's testimony, the salesmen did can in on April 11, 1960. Moreover, on April 2 Charles Unanue consented to a Board- conducted election to be held in a unit of his salesmen employees on or about April 18, 6 days after the discharge, and signed the consent agreement to that effect on April 5, just 7 days prior to the discharge. On March 30 he told the salesmen that in reprisal for their engaging in union activity and becoming union members, Respondent could sell through brokers. In addition, the applicants for so-called "brokers" positions filled out a simple application form that was more an application for a job as an employee salesman than a questionnaire to form a basis for a contract or agreement by which the former salesmen were to enter a relationship with Respond- ent as independent brokers. No contracts were entered into between Respondent and the former salesmen to cover their supposedly new status as independent brokers. Respondent exercised the same control over the "brokers" as it did over the salesmen. The only difference between their new arrangement as "brokers" and their former employment was that Respondent did not deduct social security or withholding taxes. The former salesmen continued to receive group hospitalization benefits paid for by Respondent and Respondent did not withdraw any part of its contribution to the cost of automobile insurance (half the amount of the premium) although the contract ran during the period the so-called "broker" system was in effect. I find that the sales representative jobs continued to be employee jobs within the meaning of the Act. As the Board has ruled, the test whether a person is an employee or an independent contractor is whether the manner and means by which a person performs a service for another, as well as the result, are controlled. One may be an employee even though social security and withholding taxes are not deducted from his earnings.24 The evidence shows that the manner and means by which the sales representatives performed their services on and after April 12 con- tinued to be closely controlled by Respondent. I find that Respondent attempted to disguise a discharge of the salesmen because of union membership and activity by a fabrication that it was making a radical change in the selling system by inaugurating a policy of selling through independent brokers instead of salesmen employees. I further find that Respondent, in its attempt to disguise the discharges because of union membership and activity as a bona fide change in the selling system of selling through independent brokers or contractors instead of salesmen employees, assigned exclusive sales areas to salesmen in lieu of a general sales area when it was not ready to do so for economic or other business reasons. On the basis of the above findings, I conclude and find that on April 12, 1960, Respondent discriminatorily discharged salesmen Manuel Alvarez, Goyco, Marti, Monllor, Nieves, Ruiz, and Seijo because of their union membership and activity, in violation of Section 8(a) (3) and (1) of the Act. 3. The effort to have the salesmen continue to represent Respondent but under the identification of independent brokers The evidence clearly discloses that Respondent on April 12, 1960, intended that the salesmen employees remain in its employ, but under the guise of independent contractors so as to enable it to avoid its responsibilities under the Act. The evidence dealing with events on April 12 and 13 shows that he would have continued the employment of all of the salesmen on the terms he prescribed. Although Charles Unanue testified that he would deal with the former salesmen as a group of "inde- pendent businessmen" through Price, the Teamsters representative, or any other representative, he did not testify that he would consider these "independent business- men" to have the protection of employees under the Act. It was this protection he was trying to avoid by the device of identifying the salesmen employees as inde- pendent brokers whom he defined as independent businessmen. Charles had engaged in collective bargaining with labor organizations for over 6 years with respect to employees other than salesmen, and it can be assumed he had knowledge, whether %Buffalo Courier-Express, Inc., 129 NLRB 932; American Broadcasting Company, etc., et al., 117 NLRB 13, 17-18. 614913-62-vol. 132-39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gained by his own efforts or through the expertise of others, that independent business- men or contractors were not employees under the Act, and did not have the protection of the Act. I conclude and find that Respondent's efforts on April 12 to have the salesmen continue in its employ under the guise of independent contractors in order to avoid the legal responsibilities it would have under the Act because of their union member- ship and activity, interfered with the right of these employees to the free exercise of their rights under the Act, and to the protection of the Act, and discriminated against them with respect to the hire and tenure and other terms and conditions of employment, and thereby discouraged membership in Teamsters, in violation of Section 8 (a) (1) and (3) of the Act 25 4. The offer to engage the former salesmen as brokers on April 20, 1960 The evidence of what occurred at the meeting on April 20 at the Hotel St. George shows clearly that Charles Unanue was still intent on having the salesmen identified as independent brokers with the status of independent businessmen or contractors, even though their actual status was that of employees, and that the object of such action was to make it possible for Respondent to shirk its legal responsibilities under the Act that would result from the union membership and activity of the salesmen should they be considered as employees and not independent contractors. This con- duct of Respondent on April 20 was violative of Section 8(a)i(l) and (3) of the Act, for the same reasons as the conduct of April 12, 1960. I do not find that on April 20, 1960, at the Hotel St. George, Respondent violated Section 8(a)(3) and (4) of the Act because Charles Unanue conditioned the hiring of the seven former salesmen with the identification of independent broker on the withdrawal of the unfair labor practice charges these discriminatees had filed that morning at the Regional Office of the Board. There is a suspicion that Charles Unanue. did so from the fact that he said he would then engage four of them, and the other three as soon as he could, immediately after Price, president of Teamsters, asked him to take them back under the old nonunion conditions, and that if he did so he would withdraw the Teamsters' charge and attempt to induce the seven dis- criminatees to withdraw theirs. This is the only evidence except for the background of Respondent's antiunion campaign. However, on April 12, and on April 18 at the election,- Charles asked.the salesmen to fill out the brokerage applications. This and other conduct shows that he was seeking-to engage them as sales representatives prior to April 20, without the withdrawal of the. charges, even though on terms that suited his devious purpose. If they had agreed on April 20 to be what he considered independent brokers, such action would have given the appearance of legality to his conduct both on April 12 and April 20, and the withdrawal of the charges would have followed as a matter of course. So his offer to engage them on April 20 did not have to be con- ditioned on withdrawal of the charges in order for Respondent to escape the conse- quences of-his conduct. Therefore, I do not believe that the juxtaposition of Charles Unanue's reply to Price's statement, in view of the factors I have just discussed, standing alone, can be considered substantial evidence that Charles Unanue condi- tioned the offer to engage the salesmen as "independent brokers" on withdrawal of the charges, violative of Section 8(a)(3) and (4) of the Act as alleged in the complaint. Respondent's counsel argues that Respondent did not violate the Act on April 20 when it refused to reinstate the seven discriminatees to their former positions, and offered to engage them as independent brokers, because they did not desire reemploy- ment as they planned to go in business for themselves. The evidence shows that Raul Nieves may have been seeking information on April 20 about the possibility of the salesmen going into business for themselves. The salesmen had been out of work since April 12. It was an economic necessity for them to seek other means of live- lihood including the establishment of their own business. The evidence shows that Nieves and four others began taking positive steps toward this' end on or about April 23, 1960. I find nothing in this conduct of the seven discriminatees which acts by .way of estoppel against the finding of a violation against Respondent for his conduct of April 20, 1960. 5. Other alleged violations of Section 8(a)'(1) and (3) of the Act. General Counsel's complaint contains allegations of other acts of Respondent violative of Section 8(a)(1) and -(3) of the Act, and he has offered evidence and 25 Hugh Major, d/b/a Hugh Major Truok lervioe,129 NLRB 322. UNANUE & SONS, INC. 597 made argument toward having the Trial Examiner find such conduct violative of these sections of the Act, and to recommend an appropriate remedy against their occurrence in the future. They are, in brief, that because of the salesmen's union membership and activity, Respondent made mandatory on April 12, 1960, the requirement, not previously enforced, that the salesmen call in daily from the location of the first customer between 8 and 8:30 a.m.; that on or about April 8, 1960, it solicited customers to send orders directly to Respondent, and then announced to the salesmen they would not receive commissions on direct orders as they did prior, to that date; refused to fill sales orders brought to it by its salesmen from customers thereby depriving them of commissions; and offered to reengage the salesmen on acceptance of reduced commissions and earnings. I find that on March 25, 1960, Charles Unanue made the calling-in requirement mandatory on all the salesmen as a reprisal against their union membership and activity, and in doing so violated Section 8 (a) (1) and (3) of the Act. As previously found, Charles Unanue did not permit his brother Frank to inform the trade, as the latter intended, that discounts would be given on direct orders and, moreover, did not discontinue the practice of giving commissions on direct orders. Charles did permit Frank to represent to the salesmen that these things were done or were to be done, and I have found the representation to be a violation of Section 8(a) (1) of the Act. However, Respondent did not place these practices in effect as alleged, and therefore did not violate Section 8(a)(1) and (3) in this respect. There was some evidence that orders were held up on or about April 4 to 12. General Counsel contends they were held up because Respondent attempted to deprive the salesmen of commissions by way of reprisal. However, Respondent contends and testified that only the usual number of orders were held up, and these were held up because of the limitation on credit which I have held was placed in effect for bona fide business reasons. General Counsel has failed to prove by a preponderance of the evidence that Respondent has violated Section 8(a)(1) and (3) of the Act in this manner. The remaining allegation to be disposed of is the charge that Respondent in offer- ing to engage the salesmen as "brokers" with exclusive sales areas on April 12 and 20, 1960, did so on a basis that would provide less income for the salesmen. Charles Unanue testified that in December 1959 he told his brothers that the commissions could be changed from 3 percent to 11/2 percent. I have credited Charles Unanue's testimony that he told the salesmen that they would make at least as much as they had been making, and guaranteed them that much. The commissions were in fact reduced from 3 percent to 2 percent. There is also testimony by Respondent that from April 12, 1960, to the time of the hearing in July and August 1960, the former salesmen, except one, made as much as they did in the same period in 1959. Charles Unanue had explained to the salesmen that by having limited sales areas they would have to travel less between customers and be able to devote more time to servicing old customers and soliciting new ones. I conclude and find that General Counsel has failed to prove by a preponderance of the evidence that Respondent violated Section 8 (a) (1) and (3) of the Act by offering to reengage them on acceptance of reduced earnings and commissions. 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 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend- that it cease therefrom and take certain affirma- tive action to effectuate the policies of the Act. I have found that Respondent, in violation of Section 8(a)(1) of the Act, inter- fered with, restrained, and coerced its employees in the exercise of the rights guar- anteed by the Act by interrogating employees, threatening them with reprisals, prom- ising them benefits, placing reprisals in effect against them, and representing to them and leading them to believe that other reprisals would be made against them, although not actually intending to do so. I shall recommend that the Respondent cease and desist from infringing on the rights of employees guaranteed by the Act by engaging in such conduct. I have found that in violation of Section 8(a)(3) and (1) of the Act Respondent discriminated in regard to the hire and tenure of employment of Manuel Alvarez. 5,98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pedro Goyco, Frank Marti, Thomas Monllor, Raul Nieves, Juan Ruiz, and Juan Seijo by discharging them, and refusing to reinstate them under the same terms and conditions of their prior employment, because of their union membership and activity. In view of such conduct by Respondent, I shall recommend that Re- spondent be ordered to cease and desist from discouraging membership in the Teamsters or any other labor organization, by discharging or refusing to reinstate employees, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. I have found that Respondent's offer on April 12 and 20, 1960, to engage the salesmen as sales representatives with the identification of independent brokers was a device to enable the Respondent to consider the salesmen as having the status of independent contractors and thereby deprive them of the protection of the Act. I have also found that Respondent's offer to engage the salesmen as sales representa- tives with exclusive sales areas was to give support and substance to the fraud of having the salesmen considered as independent contractors. I have concluded that such conduct constituted illegal interference with the free exercise of the rights of the salesmen under Section 7 of the Act, in violation of Section 8(a) (1) of the Act, and discrimination against them with respect to their hire and tenure, and other terms and conditions of employment, to discourage membership in the Teamsters in violation of Section 8 (a) (3) of the Act. Because of this conduct, I shall recom- mend that Respondent be ordered to cease and desist from interfering with, coerc- ing, or restraining employees in the free exercise of rights guaranteed under the Act to becoming members of Teamsters or any other labor organization and to the engaging in other concerted activity, and from discouraging membership in Team- sters or any other labor organization by discriminating against employees in regard to the hire and tenure, and other terms and conditions of their employment, because of union membership and activity. Because of Respondent's conduct in violation of Section 8(a)(1) and (3) of the Act with respect to the employment of the seven discriminatees, referred to above, I shall also recommend as affirmative relief that Respondent offer to each of the said discriminatees immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority and other rights and privileges previously enjoyed, and make each of them whole for any loss of earnings sustained by him by reason of his discharge by payment to him of a sum of money equal to the amount he would have earned from the date of his discharge to the date of offer of reinstatement, less his net earnings during that period. Backpay shall be computed in accordance with the Board's policy set forth in F. W. Woolworth Com- pany, 90 NLRB 289. There is nothing illegal in Respondent's placing in effect exclusive sales areas for salesmen, if done for business reasons only, and not as an act of reprisal against the salesmen because of union membership or activity. The evidence shows that Respondent, for business reasons, intended to assign the salesmen exclusive sales areas in accordance with a plan adopted in December 1959, at a future time, which would be subsequent to April 30, 1960. Therefore, the above recommendations with respect to reinstatement and backpay are subject to the proviso that Respondent may assign exclusive sales areas to the discriminatees as of the date it would have done so for business reasons only and not as an act of reprisal, but that in order to insure that this be done without discrimination, Respondent as of that time, shall assign, or reassign as the case may be, the exclusive sales areas to all the salesmen including the discriminatees so as not to discriminate against such discriminatees with respect to their hire and tenure of employment and other terms and conditions of employment. Replacements shall be terminated, if necessary, to give effect to this recommenda- tion. There is evidence that Respondent has employed not more than nine local sales representatives from April 12, 1960, to the time of the hearing in July and August 1960, as compared with the employment of 12 local salesmen prior to April 12. If after the dismissal of replacements, or other disposition of them, there are insufficient positions available for the discriminatees, because of business reasons only, the available positions shall be distributed among them on the basis of sen- iority or such other nondiscriminatory practice as may have been heretofore applied in a reduction in force in Respondent's business. Thereafter, the salesmen for whom no employment is immediately available shall be placed on a preferential hiring list, and recalled as soon as work becomes available, on the basis of seniority or such other nondiscriminatory method as the Respondent may apply Charles Unanue indicated in his testimony that Respondent gave recognition to seniority. I have found that Charles Unanue on March 25, 1960, made mandatory his previous instruction that the salesmen call in daily from the location of the first .customer between 8 and 8:30 a.m., and I have found that Charles made this prac- UNANUE & SONS, INC. 599 tice mandatory as an act of reprisal against the salesmen because of their union activity and union membership, thereby interfering with the free exercise of the rights of the salesmen employees under the Act, and discriminating against them, causing the discouragement of membership in Teamsters. For these reasons, I shall recommend that the Board in its order require Respondent to cease and desist from making this practice mandatory on the salesmen employees. There is evidence, however, that the practice has been followed since April 12, 1960, by the sales representatives who continued in Respondent's employ after April 12, and that there was compliance with it between March 25 and April 12, at least by some of the salesmen. It would appear, thereafter, that it could be a workable mandatory re- quirement premised on sound economic reasons. There is testimony that Charles Unanue told the salesmen in one of the sales meetings that the earlier they started out each day the earlier they would finish that day. It is recommended, therefore, that the order to cease and desist from making the practice mandatory be without prejudice, thereby leaving Respondent free to reinstitute it provided its act of doing so is based on economic reasons, and not on act of reprisal against the salesmen employees because of their union membership, union activity, or other concerted' activity. Since I have found that General Counsel has failed to prove by a preponderance of the evidence that Respondent, because of the salesmen's union membership and' activity, either solicited its customers to send orders directly to Respondent and discontinued the salesmen' s commissions on such orders; or refused to fill sales orders brought to it by its salesmen from customers, thereby eliminating commis- sions payable to the salesmen; or conditioned reemployment of the seven discrim- inatees on acceptance of reduced commissions and earnings and upon other terms and conditions that did not prevail prior to their discharge, I recommend the dis- missal of paragraphs 10 and 12 of the complaint in toto; and also paragraphs 13, 15, and 16 of the complaint insofar as it is alleged therein that Respondent violated Section 8 (a) (1) and (3) of the Act, by such conduct. For the same reasons, it is recommended that the Board strike from paragraph 13 of the complaint the ref- erences to paragraphs 10 and 12 of the complaint contained in paragraph 13. Since I have found that General Counsel has failed to prove by a preponderance of the evidence that Respondent conditioned the offer to engage the seven discrim- inatees as "brokers" on their withdrawing the unfair labor practice charges they filed against it, I recommend the dismissal of paragraphs 14 and 17 of the complaint in toto; and paragraphs 15 and 16 of the complaint insofar as it is alleged therein that Respondent violated Section 8(a)(1) and (3) of the Act because of such conduct. Although General Counsel and Respondent litigated the issue, pro and con, that Respondent placed in effect a limitation of terms of payment, namely, no new orders if an account was unpaid 20 days or greater, as an act of reprisal against the salesmen because of their union activity and membership, I find no allegation in the complaint of such an alleged violation. Therefore, although I have found that General Counsel has failed to prove such a contention, no recommendation with respect to the dismissal in part of the complaint because of such failure is required or made. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce, and Local 138, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization, all within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By discharging Manuel Alvarez, Pedro Goyco, Frank Marti, Thomas Monllor, Raul Nieves, Juan Ruiz, and Juan Seijo, because of union membership and activity, thereby discouraging membership in Local 138, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By refusing to reinstate the aforesaid employees under the same terms and conditions of their prior employment because of their union membership and union activity, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 66OO DECISIONS OF. NATIONAL LABOR RELATIONS BOARD 5. By offering to engage the aforesaid employees as independent brokers after ,discharging them as salesmen, in order to avoid its responsibilities under the Act and to deprive the employees of their rights under, the Act, Respondent-has' engaged ,in and,is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. By making mandatory the requirement that the salesmen call in daily between 8 and 8:30 a.m., at the location of the first customer, as an act of reprisal because of their union membership and activity, Respondent has engaged in and is engaging -in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- -merce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent has not violated Section 8(a)(1) and (3) of the Act by soliciting customers to send orders directly to Respondent, and discontinuing commissions •on such orders; refusing to fill sales orders brought to it by its salesmen thereby :eliminating commissions payable to the salesmen; or conditioning reemployment on acceptance of reduced commissions and earnings, nor has it engaged in con- duct violative of Section 8(a)(3) and (4) of the Act by offering to engage as brokers the aforesaid employees Manuel Alvarez, Goyco, Marti, Monllor, Nieves, Ruiz, and Seijo provided they withdrew the unfair labor practice charges they filed against Respondent. [Recommendations omitted from publication.] James Hotel Company, a corporation , d/b/a Skirvin Hotel and Skirvin Tower and Hotel & Restaurant Employees and Bar- tenders International Union, AFL-CIO, Local No. 246. Case .No. 16-CA-1378. July 31, 1961 DECISION AND ORDER On December 20, 1960, Trial Examiner Stanley Gilbert issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' . 3 The Respondent excepts to the finding of the Trial Examiner that Respondent is -engaged in commerce within the meaning of the Act and that assertion of jurisdiction is warranted. As Respondent purchased goods and merchandise in excess of $10,000 directly from outside Oklahoma , wherein Respondent is located , and as such is more than de 132 NLRB No. 34.