Superior Engraving Co.

SUPERIOR ENGRAVING COMPANY 359 politics with McAboy and Kimble and Lang testified they declined to give him a re- ferral because the Company did not ask them to do so. Boykin and Cieutat testi- fied the Company did not request the local to refer McAboy. I accept the testimony of Kimble, Perkins, Lang , Boykin, and Cieutat and find the local did not refuse to issue a referral to McAboy by reason of union politics or the coming election, but because the Company did not request the local to grant a referral to McAboy. The General Counsel seems to attach some importance to the fact that Lang re- ferred Tate to the job on May 12, and Boykin's testimony he overheard Griffin tele- phone Lang to inquire if McAboy was in good standing , It is true Lang could not recall the details of Tate's referral but I see nothing unusual in his inability to do so. Nor does Boykin's testimony have any bearing on the events of May 12, for he fixed the date of the conversation as sometime in June. It is also clear that Tate reported to and worked for Swanson , not Cieutat. On all the evidence I find the Company did not condition McAboy's employment upon his securing a referral from Local 70, and Local 70 and its agents did not dis- criminatorily refuse to issue a referral to McAboy. Therefore, the Respondents have not engaged in unfair labor practices as alleged in the complaints. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The operations of the Respondent Company occur in commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. The Respondent Local 70 is a labor organization within the meaning of Section 2(5) of the Act and the individuals named as Respondents are agents of Local 70 within the meaning of Section 8 (b) of the Act. 3. The Respondent Company has not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8 (a) (1) and (3) of the Act. 4. The Respondent Local 70 and its agents have not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8 (b) (1) (A) and (2) of the Act. [Recommendations omitted from publication.] Superior Engraving Company and Chicago Photo-Engravers' Union No. 5, International Photo-Engravers' Union of North America, AFL-CIO. Case No. 13-CA-4020. November 17, 1961 DECISION AND ORDER On July 27, 1961, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged 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 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 [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in 134 NLRB No. 44. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case, and hereby adopts the Trial Examiner's findings of evi- dentiary facts. However, the Board finds merit in the Respondent's exception to his conclusion based thereon that Respondent violated Section 8(a) (3) and (1) of the Act. The Trial Examiner concluded that the Respondent, in the course of a reduction in force of six employees for economic reasons in January 1961, selected for termination the three complainants be- cause of their union activity. He based this conclusion on a chain of reasoning which we find too weak to support the conclusion. Thus, the union activity allegedly motivating the Respondent had wholly ceased some 4 months earlier, in September 1960, when a Board election resulted in the Union's defeat. The selections were admit- tedly not based on seniority, for the Respondent had no seniority practice. As the Trial Examiner found, the personal situations of Hacker and Spaeth were such that they were likely, as the Respondent knew, to suffer the least hardship by being laid off; and Dillon was a slow worker. In these circumstances we cannot find a sufficient basis in the record to support the Trial Examiner's conclusion of a discriminatory selection, a conclusion which he apparently based en- tirely on the Respondent's knowledge of the employees' union activity 4 months earlier, and its lawful statements indicating an antiunion attitude but containing no threats or promises. Accordingly, we re- verse the Trial Examiner's unfair labor practice findings, and shall dismiss the complaint. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint alleges, but the answer of the Respondent denies, that the Re- spondent committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and-Section 2(6) and (7) of the National Labor Rela- tions Act, as amended, 29 U.S.C., Sec. 151, by threatening its employees on or about August 26, 1960, with layoffs if the Union won a representation election conducted by the Board, and by laying off or discharging employees Raymond J . Spaeth, Daniel F. Dillon, and Robert G. Hacker on January 6, 1961, because they joined or assisted the Union. Pursuant to notice, a hearing was held in Chicago, Illinois, on April 18 and 19, 1961, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union appeared by counsel and were afforded full opportunity to be heard, to examine and cross- examine witnesses , and to introduce evidence bearing upon the issues. All parties waived oral argument at the hearing. The General Counsel, the Respondent, and the Union have submitted briefs. Upon .the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Superior Engraving Company, an Illinois corporation with its plant and principal place of business in Chicago , Illinois, is engaged in the manufacture of photoengrav- ings, offset positives, and type composition . During the year preceding the hearing, it manufactured, sold, and distributed products of a value of more than $50,000, SUPERIOR ENGRAVING COMPANY 361 which it shipped directly to points in States of the United States other than the State of, Illinois. I find that the Respondent, Superior Engraving Company, is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Chicago Photo-Engravers' Union No. 5, International Photo-Engravers' Union of North America, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The discharges and the general background On September 14, 1960, the Union lost a representation election which the Board conducted among the Respondent's employees. In the preceding 2 months, Edward J. Conforti, the Respondent's president, had twice addressed the employees and had written them two letters in which he urged them to vote against the Union. In both the speeches and the letters, he stressed the benefits received by the em- ployees, such as hospitalization, life insurance, and pensions; pointed out that these benefits were enjoyed by them without the necessity of paying union dues; charged the Union with being interested merely in collecting dues from them; and compared their "steady employment" with the "layoffs or short time" generally experienced by the Union's members in the Chicago area. One of Conforti's prin- cipal themes in the letters, and apparently also in his speeches, was that "Our financial position makes it possible for us to sit back and wait for things to get better instead of getting panicky, laying off people and going on short time." Al- though Conforti exhorted the employees to vote against the Union, he assured them that "It makes no difference whether you have signed a card for the union . . . only you will know how you voted . . . only you can decide the issue of who will represent you. Neither the union nor the company can or will dis- criminate against you because of your choice." Before the election, according to the uncontradicted and credible testimony of employee Robert Hacker, there were a number of discussions between Hacker and Foreman Wallace Ullrich of the possibility that the employees would select the Union as their representative. Hacker argued in favor of the employees' joining and supporting the Union. In several of these conversations, which took place in the presence of other employees, Foreman Ullrich told Hacker that President Con- forti had said that, "If there would be a union shop, there would be layoffs." On January 6, 1961,-the Respondent terminated the services of 6 of the 86 em- ployees in its photoengraving division, including Robert Hacker (a finisher), Ray- mond Spaeth (a half-tone etcher), and Daniel Dillon (a proofer). Hacker had worked for the Respondent since August 23, 1954; Spaeth, since January 11, 1952; and Dillon, since May 1948. All three of these men had received certificates as journeymen photoengravers from the employers' association of which the Respondent is a member, after having completed 6-year apprenticeships in the Respondent's service. The Respondent had no established seniority practice governing any of the facets of its relationship with its employees. But, at the time of his discharge, Hacker was in fact the junior of all the journeymen finishers in the Respondent's employ, although he was senior to a finisher apprentice by the name of Pfaendner, whom the Respondent retained. Among the half-tone etchers, Spaeth was the senior in point of service not only to three apprentices (Benacka, Moynihan, and Lapotka), but also to two journeymen half-tone etchers (Raba and Romano). Dillon was the senior of three proofer-apprentices (Green, Sherman, and Sauer) and three journeymen proofers (Forsek, Schoop, and Novak). Hacker and Spaeth were admittedly competent journeymen but, although they each testified in some detail concerning their superiority to employees whom the Respondent retained, their testimony is not, in my opinion, sufficient to show that they were more competent than the other journeymen in the Respondent's employ. Dillon, however, was by his own admission a slow proofer, although perhaps not as slow as two of the other proofers, and one of the issues in the case is whether, as Conforti testified, he was selected for discharge because he was slow. Hacker, Spaeth, and Dillon were all members of the Union and, with seven other employees, had solicited union memberships from their fellow employees before the September 1960 election which the Union lost. Despite Conforti's general denials, there, is ample reason furnished by the evidence for believing, and 11 therefore find, that Conforti knew of this activity of the three men at the time he discharged them. Thus, to Conforti's admitted knowledge, Hacker had served as the Union's observer in the election. In the case of Dillon, who had been a member of the Union since 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1955, Conforti also admitted that, at that time, he had chided Dillon for not mailing a letter addressed to the Union and left in Dillon's car on the Respondent's parking lot. Furthermore, according to employee Spaeth's uncontradicted and credible testimony, when Conforti was asked by another employee shortly before the elec- tion, Conforti said he did not know who the Union's observers would be "but he had a pretty good idea it would be Danny Dillon and Ed Russetti." Finally, accord- ing to Spaeth's uncontradicted and credible testimony, Spaeth had repeatedly argued with Leadman Ed Dabrowski in favor of the employees' joining the Union, had also solicited the memberships of a number of employees in Dabrowski's presence, and, on one occasion, in Foreman Wallace Ullrich's presence, had passed his union card among a group of employees while they were discussing a slackening of their work, with the comment, "Well, if you had one of these, you wouldn't have to worry so much." i Ullrich was admittedly a supervisor and, although the Respondent contends that Dabrowski was only a leadman and not a supervisor, it is undisputed that, in addition to working as an etcher, he laid out and assigned rush jobs to the other etchers. I conclude that Dabrowsi, as well as Ullrich, was a supervisor within the meaning of the Act. President Conforti notified the men separately of their discharges? He told Spaeth and Dillon that he was letting them go because work was slow, but refused to give any reason for his action to Hacker. Nor did he tell Hacker, Spaeth, or Dillon why they, rather than other employees, had been selected for discharge. Upon being notified of his discharge by Conforti, Hacker remarked that he had been expecting to be fired ever since the Union lost the election, but Conforti denied any connection between Hacker's discharge and his support of the Union in the election, saying, "Well, you remember what I told you fellows. That don't make any difference." Spaeth, upon his discharge, asked Conforti whether his 9 years of service with the Respondent "didn't give me some priority over the other employees that were under me." But Conforti said, "No," that he had already made up his mind, and that, in any case, Spaeth had refused to work overtime. To this, Spaeth replied that, although he preferred not to work overtime, he had not refused but had merely asked Foreman Coomans to bring up his work earlier in the day so that he could finish it on straight time. At the hearing, Conforti testified that he discharged Hacker, Spaeth, and Dillon on January 6, 1961, along with the three other men from the photoengraving division, because of a decline in business; that a year before this he had reduced the photo- engraving staff by seven men for the same reason; that Hacker and Spaeth, although capable workers, were selected for termination because their personal circumstances were such that, of all the finishers and etchers, they would suffer the least hardship; and that Dillon was selected because he was "an excessively slow" workman The General Counsel and the Union dispute Conforti's explanation of the discharges and contend that Hacker, Spaeth, and Dillon were discharged because of their member- ship in and support of the Union. i Neither Dabrowski nor Ullrich testified In addition to the incidents described in the text, there was also testimony by the General Counsel's witnesses concerning two other incidents in which, according to the General Counsel, Spaeth's union membership and activities came to the attention of management Thus, Hacker and Spaeth testified that on one occasion 2 weeks before the election, the Respondent's treasurer, Eugene Kelly, came into a restaurant near the plant while they were arguing with employee Nicholas Lopotka in an attempt to induce Lopotka to join the Union, and that Kelly, after waving to them, sat down nearby while the argument continued In his testimony, however, Kelly denied having overheard any such conversation and I credit his denial. As to the other instance, employee Warren Disbrow testified that, as he and Spaeth were walking up the stairs in the plant in May 1960, he asked Spaeth to see his union card ; that they stopped on a landing between floors and Spaeth showed Disbrow his card ; and that while they were standing there and Spaeth was still holding his card, Foreman Howie Coomans came up the stairs behind them ; and that they stepped aside and permitted Coomans to pass between them. Coomans did not testify, nor did Spaeth testify about this incident Even though it appears that Coomans had once been a member of the Union and had held a union card with the same distinctive design as Spaeth's, and even though I credit Disbrow's testimony, I do not believe that it warrants a finding that Foreman Coomans saw and recognized the card as a union membership card 2 The following findings are based upon the uncontradicted testimony of Hacker, Spaeth, and Dillon concerning their respective discharges by Conforti In his testimony, Conforti gave what he said were his reasons for discharging the men, but he did not testify as to what he told them when he discharged them SUPERIOR ENGRAVING COMPANY 363 B. The evidence relating to the reduction of the photoengraving staff From President Conforti 's testimony and the Respondent's records to which he referred, it appears and I find, that in recent years there has been a steady decline throughout the industry in photoengraving work and that in 1960 the Respondent's sales had continued to decline from a quarterly average of about $400 ,000 to about $360,000, with a progressively decreasing ratio of profit to sales of 5 percent in the first quarter to only 0 7 percent in the fourth quarter, as against a normal expectancy in the industry of. 10 percent. , In spite of this decline in its business, the Respondent's personnel records for the period from December 5 , 1959, to January 7 , 1961 , show that its photoengraving ,employees not only were generally paid for full 40-hour weeks but, in a substantial number of cases, were also credited and paid for overtime work . Conforti explained, however, that not all of the regular or straight time for which the men were paid was spent in productive work, and that even the overtime which they received furnishes no gauge of the volume of. the Respondent's work during that period, since 90 percent of the jobs were rush work which was received from advertising agencies between 4 and 7 o'clock in the evening and had to be completed by the next morning. Ac- cording to Conforti, therefore, the decrease in the Respondent's photoengraving sales, rather than the time records of the employees, reflected what was actually a substantial decline in the Respondent 's business. Conforti testified in substance that because of this decrease in business he had started to cut down his photoengraving staff in December 1959 by terminating the services of some employees and by not filling the jobs of other employees who quit. He insisted that his adoption of this course was consistent with his preelection state- ments that the employees need not be concerned about "layoffs" or "short time," by explaining that he had then been referring not to discharges for lack of work, but to the practice in union shops of suspending men for brief periods or putting them on short workweeks-a practice to which the Respondent had not resorted for the past 10 years. Conforti further testified that in December 1959, just a year before the January 1961 discharges involved in the present case , he had effected the earlier reduction of seven men in the Respondent's working staff because of the progressive decline in its business . According to Conforti, one of these men quit, two were discharged for inefficiency, and two ( named Kelly and Harper ) were transferred to jobs with other employers. No explanation is given in the record for the termination of the other two men . A summary of the Respondent's pertinent employment records shows that there were only seven employees , including Kelly and Harper , whose services with the Respondent terminated between December 5, 1959, 'and January 7, 1961. Pre- sumably, these were the seven employees to whom Conforti referred in his testimony. According to the records, none of these seven terminations occurred in December 1959, although one (Clifford Cywin ) took place on January 2, 1960. Harper and Kelly were terminated on February 13 and March 19, 1960, respectively. The other four employees' services were terminated on March 19 , April 2 and 30, and May 7, 1960, respectively. During the remainder of 1960, 'another employee died and there was another quit but two additional employees were hired in October . As a result of these changes , the net decrease in the number of the Respondent's photoengraving employees was seven. C. Evidence bearing upon the selection of Spaeth and Hacker for discharge As I have noted, Conforti testified that, in further reducing .the Respondent's photo- engraving staff on January 6, 1961 , he selected Spaeth and Hacker for discharge because in his opinion they would suffer the least hardship . In the case of Spaeth, he referred to the undisputed facts that Spaeth was unmarried and,the other five half- tone etchers who were his juniors in service , including the three apprentices , were all married men . In Hacker's case, Conforti testified that he felt Hacker would suffer least of all the finishers because ( as was also undisputed ) Hacker's wife was employed as a nurse and Hacker himself, having attended Chicago Teachers' College while in the Respondent's employ, was about to receive a degree in a few months and would be qualified to teach . Furthermore , according to Conforti (although Hacker denied it), Hacker had told a number of people in the plant that when he received his degree he intended to become a teacher. In the course of his testimony as to Spaeth's and Hacker's personal situations and the comparison with the family situations of other employees which he said led him to discharee Spaeth and Hacker rather than any of the others. Conforti stated that, "I knew all these boys. Some of these boys have been working for a long time. We've had parties; we've had picnics ; I've been introduced to their wives: I know 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who's single, who's married, just about how many children they've got. I know a lot about these boys." Upon then being questioned about numerous individual em- ployees, Conforti was able to state in each case whether the employee was married and whether he had children and, if so, how many, although he was unable to tell whether any of his employees were supporting their parents for, as he explained, "I have never attempted to ascertain whether a man was supporting parents. I assume that parents are supporting themselves." In my opinion, Conforti's testimony shows that his knowledge of his employees' personal circumstances qualified him to make the comparisons he said he did when he selected Spaeth and Hacker for discharge. When questioned by the General Counsel as to whether, from the Respondent's point of view, it would not have been better to retain the more skillful employees without considering their marital or other personal status, Conforti disagreed, ex- plaining in substance that much of the Respondent's work is simple work; that even on more difficult work, an apprentice with his lower salary would be competent even though it would take him longer; and that generally, assuming basic competence and excluding a wide difference in skill, he would retain a married apprentice and release an unmarried journeyman since the Respondent, like other employers, tries to keep married men and thus to avoid inflicting hardship. D. The evidence bearing upon Dillon's selection for discharge In the case of Dillon, according to Conforti, it was Dillon's slowness in his work that led to his selection for discharge. Both Conforti and Foreman Bjurstrom testi- fied that, before discharging the men on January 6, 1961, Conforti told Bjurstrom that he intended to let a proofer go and had selected Dillon because he was slow, and that Bjurstrom agreed with the selection, saying that Dillon was slow and "tired." Dillon was one of 10 proofers, including 3 apprentices, who were employed by the Respondent. He admitted that he was slower than three of these other proofers (Scaliatine, Panek, and Krueger), who were the only ones with longer service with the Respondent and whom he described as "very fine proofers. "- But he testified that be was also a good proofer and that although he was "medium" and "not fast," he was faster than the other six. According to Dillon, he and Foreman Bjurstrom "had a running battle" because, although the finishers delayed making the corrections required by Dillon's first proofs and thus held up Dillon's final proofs, Bjurstrom "would look at the clock and want to know what was holding [Dillon] up." One of the irritants in Dillon's relationship with Bjurstrom, according to Dillon, was Bjurstrom's curiosity about Dillon's working in his stepmother's variety store, 2 hours a night, 4 nights a week, during the 2 weeks before Christmas each year. With respect to this, Dillon testified that just before his discharge, Bjurstrom was "pumping" him about the store and he told Bjurstrom that he was tired and may have said, "I'm pooped." Conforti testified that Bjurstrom had told him a number of times that Dillon was slow and that the Respondent's billing clerk and salesmen had also reported that Dillon was taking more time on his work than the customers could be billed. But Conforti admitted that this had also happened in the cases of some of the other proofers and that he had not spoken to Dillon about it. However, both Conforti and Dillon testified that there was one occasion in 1960 when Dillon asked Conforti whether the latter 'had made the remark that Dillon was lazy. According to Dillon, this happened just before the representation election and he asked Conforti to "quit picking on me or let me go if that's what you want," to which Conforti replied, "Well, if I wanted to get rid of you, I could have got rid of you a long time ago. Don't worry about it. Nobody's going to get fired." According to Conforti, Dillon admitted he was slow but said that he was a good proofer and Conforti, being busy at the time, said merely, "Well, forget about it. I don't care." Conforti further testified that it was upon his own frequent observation of Dillon, while Dillon was working, that he finally had concluded that Dillon was "excessively slow" and should be the proofer to be discharged in the reduction of the staff in January 1961. According to Conforti, for the last 2 years, Dillon "just seemed overly tired . [and] was usually hanging onto the handle of his press or laying over his bench." Summing up his observation of Dillon at work, Conforti testified, "I've been in this business a long time and I've observed many, many thousands of men in the engraving business and I think I know when a proofer is fast and I think I know when a man is working by his motions, and a man just dreams along. Well, then, I know he's slow. When I see his time tickets on some jobs, I know he's slow. When the supervisor agrees with me he's slow, I know he's slow. I reached the conclusion that Mr. Dillon was slow in his attitude and his motions at his press. SUPERIOR ENGRAVING COMPANY 365 He had a hand press and he turned the handle on this press, and he would do it as though he had all day to turn this press. I observed him marking up proofs where he was laying down on a bench as though he was ready to go to sleep. I observed him marking up proofs and going over character for character on type matter; and as a rule, proofers-all they have to do is look at a proof like this and in 2 or 3 seconds they can pick out imperfections and here's Dillon going over word for word. The man was slow. He was tired. He appeared tired. He was laying down." Finally, Foreman Bjurstrom testified that Dillon was a capable worker but was slow and seemed "tired"; that he had known that Dillon was a slow worker for 5 or 6 years; that he had at times discussed this with Conforti; and that when Conforti said he had to let a proofer go and had selected Dillon because he was slow, Bjur- strom agreed with the choice. Bjurstrom, however, also testified that he had at various times had discussions with Conforti of the time taken by other proofers in their work and that two other proofers (Heinekamp and Schroop) worked at about the same rate as Dillon. E. Conclusions The General Counsel and the Union contend that the Respondent interfered with its employees' organizational rights under Section 7 of the Act and thereby violated Section 8(a)(1) by President Conforti's preelection letters and speeches to the em- ployees and Foreman Ullrich's statements to employee Hacker that there would be layoffs if the Union won the election. They also contend that the Respondent vio- lated Section 8 (a) (3) and (1) of the Act by discharging employees Hacker, Spaeth, and Dillon on January 6, 1961, because these men had joined and assisted the Union. In my judgment, the evidence in the record supports the second of these broad contentions but not the first. President Conforti's letters and speeches certainly showed his strong antagonism to the unionization of his employees and the possibility that he might be required to recognize the Union and accept a union shop. He did not, however, threaten the employees with reprisals. Instead, he compared what he said were the favorable existing conditions of employment in the Respondent's plant with what he pictured as the unhappy situation in which the employees would find themselves in a union shop. In this connection, he contrasted his employees' "steady employment" with the "layoffs or short time" encountered in union shops. He did not threaten layoffs or short time if the Union won the election. At most, he expressed a mere "pre- diction of possible-future events beyond the control of the Respondent which the Board in the past has held to be protected under Section 8(c) of the Act as a mere expression of opinion." 3 Against this background, it seems clear to me that Fore- man Ullrich's statements to employee Hacker must also be viewed not as threats, but as mere predictions of layoffs which were likely to be incidental to the union- shop conditions mentioned by Conforti in his letters, and that they therefore can- not be held to be violative of the Act. Turning now to a consideration of the discharges on January 6, 1961, it appears, as Conforti testified, that the Respondent's photoengraving business had been de- clining and that some reduction in the Respondent's force was a natural step for the Respondent to take under the circumstances. It also appears, as Conforti testified, that Conforti knew that of all the Respondent's finishers and etchers, Hacker's and Spaeth's personal situations were such that they were likely to suffer the least hard- ship if they were the ones who were discharged. To this extent, the evidence tends to support the Respondent's claim that Hacker and Spaeth were not discriminatorily selected for separation in the course of a reduction in force .4 3 Glenn Koennecke d/b/a Sunset Lumber Products, 113 NLRB 1172, 1173, and cases therein cited * In this connection, it should be noted, as the General Counsel and the Union point out, that Conforti's preelection assurances to the employees that there would be no economic "layoffs or short time" seem on their face to be inconsistent with his testimony that the January 1961 discharges were shortly thereafter effected as a reduction in force More- over, the reduction of the Respondent's staff by seven men the preceding year had obvi- ously furnished no precedent for the asserted group discharge of six men for economic reasons on January 6, 1961, since (as I have found) it was accomplished at various times over the period of 5 months by the Respondent's failing to fill the jobs of two men who were transferred, two who were discharged for cause, one who quit, and also two others the circumstances of whose separations are not given. Against this background, President Conforti's explanation that in his preelection letters and speeches he had intended to re- assure the employees only against short periods of economic layoff and not discharges for economic reasons, seems to me to be rather weak. But I nevertheless give Conforti's explanation the benefit of the doubt, and accept it. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' But, in spite of this, the rest of the evidence requires a finding that the Respondent selected Hacker, Spaeth, and Dillon for discharge because of their known preelection support of the Union. Thus, as I have found, Conforti's strong antiunion attitude was shown by his letters and speeches, and, at the time he discharged these men, he knew of the roles that they had played in attempting to establish the Union as the employees' bargaining representative. All three of the men had been employed by the Respondent for a long time; Hacker and Spaeth were admittedly competent employees; and yet Conforti discharged them although he retained other junior em- ployees. Then, when he discharged -the three men, Conforti gave Spaeth and Dillon no reason at all for selecting them, and refused to give Hacker a reason, although he suggested to Spaeth that he was being discharged because he had refused to work overtime-a reason which not only had no basis in fact but which was quite different from the reason Conforti later gave in his testimony for Spaeth's selection. Finally, it appears from Dillon's and Foreman Bjurstrom's testimony that Dillon was not the slowest proofer in the shop; that (as even Conforti admitted) Conforti had never criticized Dillon for being slow; and that therefore there was no plausible basis for Conforti's selecting Dillon for that reason as the only proofer to be dis- charged. Upon this evidence, I conclude that the Respondent selected Hacker, Spaeth, and Dillon for discharge, not for the reasons given by Conforti in his testimony at the hearing, but because these three men had assisted and supported the Union in the preelection period. The Respondent thereby discriminated against these men in regard to their hire and tenure of employment and discouraged membership in the Union in violation of Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It has been found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, involving discrimination against its employees in regard to hire and tenure of employment. Since the Respondent's unfair labor practices "go to the very heart of the Act," 5 and constitute a threat of other unfair labor practices in the future, I shall recommend, not only that the Re- spondent cease and desist from the unfair labor practices committed by it and take certain affirmative action in order to effectuate the policies of the Act, but also that it cease and desist from infringing in any manner upon the rights of its employees guaranteed by Section 7 of the Act.6 It has been found that the Respondent discriminatorily discharged Raymond J. Spaeth, Daniel F. Dillon, and Robert G. Hacker on January 6, 1961, in violation of Section 8(a) (3) and (1) of the Act. I will recommend that the Respondent offer each of these employees immediate and full reinstatement to his former or substan- tially equivalent position, and make him whole (in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289) for any loss of pay which he may have suffered by reason of the Respondent's discrimination against him, by pay- ment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of the Respondent's offer of re- instatement, less his net earnings during said period. I shall also recommend that the Respondent, upon reasonable request, make available to the Board and its agents, all payroll and other records pertinent to an analysis of the amount due under these recommendations. 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. Chicago Photo-Engravers' Union No. 5, International Photo-Engravers' Union of North America, AFL-CIO, is a labor organization within the meaning of the Act. 6 N L.R B v. Entwistle Mfg Co , 120 F. 2d 532, 536 (CA. 4). 6 See May Department Stores d/b/a Famous -Barr Company v . N.L R.B ., 326 U.S. 376, affg as mod 146 F 2d 66 (C A. 8) ; NLRB. v. Globe Wireless, Ltd, 193 F. 2d 748 ( C.A. 9) ; Liberty Coach Company, Inc., 128 NLRB 160. UNITED SLATE, TILE & COMPOSITION, ETC., LOCAL NO. 57 367 2. By discharging Raymond J. Spaeth, Daniel F. Dillon, and Robert G. Hacker on January 6, 1961, and thereby discriminating in regard to their hire and tenure of employment and discouraging membership in the labor organization referred to in paragraph 1, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Slate, Tile and Composition Roofers, Damp and Water- proof Workers Association, AFL-CIO, Local Union No. 57 [Atlas Roofing Co., Inc.] and Ernest John Hendrickson. Case No. 12-CC-98. November 17, 1961 SUPPLEMENTAL DECISION AND ORDER On August 16, 1961, Trial Examiner Sidney Lindner issued his Supplemental Intermediate report in the above-entitled proceeding, finding that the Respondent has not engaged in unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Supplemental Intermediate Report attached hereto. Thereafter, the General Counsel filed excep- tions to the Supplemental Intermediate Report. 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- mental Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except as noted below.' [The Board dismissed the complaint.] 1 In adopting the Trial Examiner's conclusion that the Respondent did not violate Sec- tion 8(b) (4) (ii) (B) of the Act, we rely exclusively on his evidentiary finding that the Respondent's agents, Fluck and Vernaglia, sought to accomplish their objective, which was to get Empire to break its contract with Atlas and discontinue the use of Atlas roofers, by persuasion and not by threats, coercion, or restraint. We deem therefore unnecessary for the disposition of the case to pass upon the Trial Examiner's finding that, because the Respondent's agents were "concerned with the threat to social institutions and the democratic process posed by the USEA," their conduct in accomplishing their objec- tive is not within the "pervading sense" of this section of the Act. SUPPLEMENTAL INTERMEDIATE REPORT On October 26, 1960, I issued an Intermediate Report in this proceeding recom - mending dismissal of the General Counsel 's complaint alleging the Respondent Union's violation of Section 8(b)(4)(ii )(B) and Section 2(6) and (7) of the Act, for failure of proof that the Board 's standards for assertion of jurisdiction over the businesses of the employers herein involved have been met. On June 23, 1961, the 134 NLRB No. 35.