U.S. Sonics Corp.

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U.S. Sonics Corporation and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case No. 1-CA-3454. February 5, 1962 DECISION AND ORDER On October 18, 1961,' Trial'Examiner C. W. Whittemore 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 supporting brief. The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board had delegated its powers in connection with this case to a three-member panel [Members Rodgers, 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner.' 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 Respondent, U.S. Sonics Corpora- tion of Cambridge and Somerville, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Uniori of Electrical, Radio and Machine Workers, AFL-CIO, or in any other labor organi- zation of its employees, by discharging, laying off, refusing to rein- state, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (b) Advising strikers they will be permanently replaced unless they return to work, offering wage increases to strikers if they return to work, offering to conduct an election to determine whether the employees desire an "inside" or an "outside" union, urging employees of the advantages of an "inside" union over the Charging Union and expressing the desire for a vote, distributing a unilateral agreement, 1 As the record in this proceeding, including the exceptions and briefs , adequately pre- sents the issues and positions of the parties, we deny the Respondent's request for per- mission to argue orally before the Board. 135 NLRB No. 77. U.S. SONICS CORPORATION 819 conducting an election among employees regarding their choice of a union, or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in, Section 7 of the Act. (c) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of em= ployment, with International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive bargaining representative of all its employees in the following appropriate unit : All production and maintenance employees of U.S. Sonics Corpo- ration employed at its Cambridge and Somerville plants, exclu- sive of office clerical employees, guards, professional employees, salesmen, and all supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, or to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as auth- orized 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-policies of the Act : (a) Upon request, bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, with International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive representative of. the Respond- ent's employees in the unit found appropriate and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to employees Antonio Alvarez, Paul Barrett, Shiela Browning, Lillian Henderson, Ann LeVoy, Eugene McMahon,, and Josephine Pacheco immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their senior- ity or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in-the manner set forth in the section of the Intermediate Report entitled -"The Remedy." - (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports,, and all other records necessary to determine the amounts of backpay due and the rights to reinstatement under the terms of this Order. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I (d) Post at its Cambridge and Somerville, Massachusetts, plants, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent or its repre- sentatives, be posted by the Respondent immediately, upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places, where notices to employees are customarily posted. Reasonable steps' shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 2In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to (a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or in any other labor organization of our employees, by discharging, laying off, refusing to reinstate, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. I WE WILL NoT advise strikers they will be permanently replaced unless they return to work, offer wage increases to strikers if they return to work, offer to conduct an election to determine whether the employees desire an "inside" or "outside" union, urge em- ployees of the advantages of an "inside" union over the Charging Union and express the desire fora vote, distribute a unilateral agreement, conduct an election among employees regarding their choice of a union, or in any like or related manner; interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. f WE WILL NOT in any other manner interfere with, 'restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist 'the above-named or any other labor organization, to bargain collecltively through representatives of their own choosing, and to engage in any other U.S. SONICS CORPORATION 821 concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL offer to Antonio Alvarez, Paul Barrett, Sheila Brown- ing, Lillian Henderson, Ann LeVoy, Eugene McMahon, and Jose- phine Pacheco immediate 'and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them. WE WILL, upon request, bargain collectively with respect to rates of pay, wages, hours of employment, and other conditions of em- ployment, with International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO, as the exclusive representative of all employees in the appropriate unit described below and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is : All production and maintenance employees at our Cambridge and Somerville plants, exclusive of office clerical employees, guards, professional employees, salesmen, and all supervisors as defined in the Act. All our employees are free to become or remain or to refrain from becoming or remaining members of any labor organization. U.S. SONICS CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 24 School Street, Boston 8, Massachusetts, Telephone Number LAfayette 3-8100, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges in the above-entitled case having been filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board , and an answer having been filed by the above- named Respondent, a hearing involving allegations of unfair labor practices in viola- ,S22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion• of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, was held in Boston, Massachusetts, on July 17, 18, 19, and 20, 1961, -before the-duly designated Trial Examiner. All parties were represented by counsel, and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from the Respondent and the General Counsel. Upon the record thus made; and from his observation of the witnesses, the Trial '.Examiner makes the following: • FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT U.S. Sonics Corporation is a Massachusetts corporation which operates plants in Cambridge and Somerville, Massachusetts. It is engaged in the manufacture, sale, and distribution of electronic ceramic components and related products. The answer admits and it is found that the Respondent annually ships materials valued at more than $50,000 to points outside the Commonwealth of Massachusetts, and annually receives materials valued at more than $50,000 from points outside the Common- wealth '6f Massachusetts. The Respondent is engaged in commerce, within the meaning Of the Act. H. THE CHARGING UNION International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICFS A. Setting and major issues Following a Board-conducted election, the Charging Union was certified on August 19, 1960, as the exclusive bargaining representative of all, employees of the Respondent in an appropriate unit . Negotiations for a contract thereafter began and continued until March 3, 1961. Although the complaint alleges that from "on or about October 27, 1960," the Respondent refused to bargain in violation of the Act, early during the hearing General Counsel conceded that he was claiming only that "commencing on March 3, 1961, facts took place which show that Respondent bargained in bad faith." Representatives of both the Union and management, as witnesses, testified to the effect that at the conclusion of the March 3 negotiating session agreement had been reached on all points. It appears that the negotiators left this meeting with the understanding that the union spokesman, Joseph Duggan, would commit the agree- ment to paper and submit the document to the Respondent for signature. There is real dispute, however, as to what precisely had been agreed to on March 3; and this dispute will be covered more fully in a later section. In any event manage- ment returned the document unsigned on April 6, and on April 7 a majority of the employees went on strike. In his brief, General Counsel argues alternatively that the strike was an unfair labor practice strike, having been caused by the Respondent in having sent the con- tract back unsigned, and also that the strike was "converted" into an unfair labor practice strike by certain "illegal actions taken by the Respondent during the strike." As will be later discussed, whatever the correct term for the strike, all strikers were permitted to return to their jobs on April 19, the day after the Union called off the strike. There is no issue, therefore, of failure to reinstate unfair labor practice strikers. Within a week, however, after their return to work 18 of the employees participat- ing in the strike were summarily terminated, out of a total complement of about 100. The complaint lists all 18. Near the close of his case, and,apparently because these individuals did not show up to testify, General Counsel struck from the com- plaint the names of 11 of the 18. It is his contention, opposed by the Respondent, that the remaining seven terminations were unlawful. Bearing upon the issue of unlawful interference, restraint, and coercion are alleged acts of representatives of the Respondent, including (1) management's promise of benefits during the strike to discourage union membership and continued protected concerted activities; (2) management's initiation and promotion of the formation of an inside labor organization immediately after the end of the strike; and (3) despite the existence of the Board certification management's conduct of an election among employees on or about April 26, 1961. U.S. SONICS CORPORATION 823 B. The refusal to bargain 1. Relevant facts Credible evidence establishes the following: (1) The- testimony of the union representative, Joseph Duggan, of the former chief steward of the Union (now a foreman), Robert Gaudette,'and of Manager Stanley Miller is-in complete accord that at the conclusion of the negotiating meeting on March 3, 1961, the parties had reached full agreement on all contractual issues, and that-the unionsrepresentative was to reduce such agreement to writing and submit it to management for signature. (2) Duggan did not complete this draft until March 20, when it was forwarded to Vice President Robert Baldwin. As a witness, Duggan admitted that he had no notes as to what precisely was agreed upon at the March 3 meeting, and further that before he sent in the draft of March 20 he had telephoned Miller to ascertain from him what his understanding was as to the "wage clause." (3) At the time of receiving the draft drawn up by Duggan, Baldwin was prepar- ing for a 10-day absence from the plant, and he turned the document over to Miller, with instructions to examine it and report to him upon his return. Baldwin returned to the plant about April 2. He and Miller reviewed the document submitted by Duggan, made certain changes, and forwarded it to his attorney. It was received back from the attorney on April 6 and sent on to Duggan, unsigned. (4) From Duggan's recital of them, as a witness, it appears that most of the changes penciled upon his submitted draft were of no great importance, being chiefly of language. (5) That there was one major issue still in dispute, however, was admitted in effect by Duggan, in his testimony, when he conceded that the question of an "auto- matic wage increase after 90 days" prevented the contract from being signed. In substance, there was disagreement between the parties as to whether, on March 3, the Company had agreed to grant a 10-percent increase after 90 days' service to all new hires or only to those who had been hired at the minimum rate. (6) Appraisal of all the testimony regarding the matter leads theTrial Examiner to this conclusion: There is insufficient foundation for a finding that the Respondent in bad faith precipitated this disagreement as to what had been agreed upon. On the contrary, the undisputed fact that immediately after the March 3 meeting the Respondent put into effect a number of employee benefits to which it had agreed gives support to a conclusion that it fully expected that the contract itself would be executed. (7) Duggan, the union spokesman and representative, was not in his office on April 7, when the unsigned draft was received, and it appears that strike action was precipitated by the chief steward at the plant, John Connor, that afternoon and be- fore any union official had actually seen the draft as returned by the Respondent. (8) According to Connor's uncontradicted testimony, on the morning of April 7 he asked Baldwin when, he had sent the contract back to Duggan and what his decision had, been about the wage increase. Baldwin replied, he testified, that the increase would not be given to those hired at above the minimum wage. (9) Employees at the plant went on strike that afternoon, April 7. Despite Connor's denial, the Trial Examiner credits the substance of President Eric Kohm's testimony that he heard Connor calling employees to go on strike during the after- noon. In any event, Duggan admitted that the first he learned of the strike was that night, and that the strike "had no authorization from me." (10) At this point the Trial Examiner concludes and finds that credible evidence is insufficient to sustain General Counsel's claim that the strike was precipitated by the Respondent's unfair labor practice in "bad faith bargaining." This conclusion is supported by the fact that during the strike, which covered a period of about 10 days, picket signs at all times cited "fair wages" or "decent wages" as the reason for the strike, and at no time referred to "refusal to bargain." (11) Duggan and another union representative met with management officials the night of April 7. And according to ,Duggan's own testimony the Union raised certain "new" issues -not before discussed during negotiations. It appears that no settlement of such issues was reached at this meeting and the strike continued. (12) On April 8 the Respondent began a course of action, however, which in the opinion of the Trial Examiner fully sustains General Counsel's alternate conten- tion: that unlawful conduct on the part of the Employer converted the strike into an unfair labor practice strike. (13) On that date Kohm sent all employees, including the strikers, a letter inviting them to hear the Company's "story" at a meeting scheduled for the following Mon- day, April 10. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (14) The meeting was held at a nearby hall during the afternoon of April 10. Union representatives were not invited. At this meeting President Kohm told the employees that upon their return to work all those who were receiving $1.15 an hour would be raised to $1.25 an hour. (15) Later the same day management officials met with union representatives and, according to Duggan's undisputed testimony, Kohm told them he had "told the people in the meeting that all the girls earning $1.15 an hour would automatically get $1.25 an hour on the cessation of the strike." (16) It is found that on the afternoon of April 10 for the first time the Respond- ent made the offer of the above-described increase to the employees, and upon the implied condition that they return to work.' (17) Employees' testimony on this point is uncontradicted, and it is found, that management representatives offered strikers more money if they would return to work. Thus employee Dunshee, hired about a month earlier, was told by Miller that he would be raised from $1.30 to $1.50 an hour if he "came back to work." Supervisor Buehler told three striking girls, in Dunshee's presence, that he would "give them more money" if they returned. (18) On April 12 management representatives met with union representatives and a State conciliator. No agreement was reached. On the same day the Respond- ent sent all employees a letter outlining its various offers, which it termed an "entire package." (19) On April 15 the Respondent sent all strikers letters advising them, in part, that unless they reported for work by Wednesday, April 19, "the Company intends to hire a permanent replacement for your job." (20) Pursuant to a wire received from the director of the State Arbitration and Conciliation Service, union representatives appeared at the statehouse on April 18 at the scheduled time. No company representatives, however, made an appearance, and after an hour's waiting the union representatives left. (21) Later the same day a union meeting was held, ' and the strikers voted to accept one of the two offers set out in the Respondent's letter of April 12, and to return to work. Duggan the same day notified the Respondent, by wire, that "all employees shall report for work" the next day, "in accordance with your letter of April 15, 1961." (22) On April 19 the Respondent sent the following wire to Duggan: Your telegram of April 18, 1961 is acknowledged. We wish to advise that prior to the receipt of your telegram this Company had concluded that your Union (no) longer represents a majority of our employees in the appropriate bargaining unit and had decided to withdraw recognition from it and terminate all bargaining negotiations. A letter to that effect had been prepared yesterday. This doubt concerning the existence of your majority representation and the decision flowing from (it) was based upon the radical expansion in the size of our work force since your union was certified last August, the slim majority of your election victory, the large number of recently-hired employees, the many and vigorous anti-union sentiments which have been expressed in the past ten days by our employees, and other, pertinent factors. While we are quite convinced that we are correct in our appraisal of the situ- ation, we offer you the opportunity of persuading us to the contrary. We will accept any reasonable evidence to demonstrate that your union at this time still does, in fact, represent a majority of our employees. Barring production of such evidence, we will stand on our position. 2. Conclusions The above summary of relevant facts makes it clear, beyond question, that on April 19, 1961, the Respondent formally notified the Charging Union that it with- drew recognition and terminated "all bargaining negotiations." Such action plainly constitutes refusal to bargain within the meaning of the Act. As previously noted, at the hearing General Counsel contended that beginning on March 3, 1961, the Respondent in effect refused to bargain in that it from that date on bargained in ",bad faith." In his brief, however, it appears that General Counsel has retreated from this date, and urges that by making "Changes in the contract inconsistent with what had already been agreed" and then returning "the 1 The Trial Examiner cannot credit Kohm's claim that this offer had been made at the meeting with union representatives the night of April 7, the day the strike began Had he done so, it is reasonable to believe that at the meeting with the same representatives the night of April 10 he would not have referred to the offer as having been made that afternoon to the employees. U.S. SONICS CORPORATION 825 contract unsigned" the Respondent engaged in "bad faith bargaining." This would place the date as April 6. In finding ( 10), above, the Trial Examiner has expressed his opinion that he considers the evidence insufficient to warrant the conclusions of "bad faith bar- gaining" before the strike . While it is true, as urged by General Counsel, that the Respondent "held onto" the draft submitted by Duggan on March 20 for "17 days," it is equally true that after apparent agreement had been reached on March 3 Dug- gan himself held onto-or did not prepare-the draft of his understanding for 17 days. Both parties indulged in an equal number of days of delay. Also, as has been found, the state of the record does not permit the Trial Examiner to determine precisely what the parties had agreed to on March 3. Witnesses for both parties were in agreement that agreement had been reached , but that there later developed disagreement as to exactly what had been agreed to. This state of affairs does not warrant, in the opinion of the Trial Examiner, the conclusion that the Respondent deliberately and to defeat the purposes of the Act altered its position after March 3 and when it returned Duggan's draft. Findings ( 13), (14), and (15 ), above, however, firmly support General Counsel's position that on April 10 management took action which constituted bad-faith bargaining. Assembling the employees, without inviting their legal bargaining repre- sentative, offering them financial inducements to return to work, and later the same day informing union representatives of its unilateral action was reasonably designed to and tended to undermine the Union and coerce employees to bargain individ- ually. (Quaker State Oil Refining Corporation , 121 NLRB 334, 367.) The Trial Examiner concludes and finds that such unlawful action on April 10 effectively converted the strike into an unfair labor practice strike. In any event, and whatever the date earlier than April 18 is to be found as that upon which refusal to bargain occurred, the Respondent's wire of April 19 establishes that on the preceding day it had determined to withdraw from the legal obligation placed upon it by the Board 's certification of August 19, 1960. As General Counsel rightly urges, such action taken within the certification year "was clearly in violation of the intent of Congress and the language of the U.S. Supreme Court in the Ray Brooks case." (Ray Brooks v. N.L.R.B., 348 U.S. 96.) It appears to the Trial Examiner to be unnecessary here to review the various (grounds the Respondent urges as constituting "unusual circumstances" warranting its refusal to bargain after April 19. Such points are adequately disposed of, it seems, by the Second Circuit in N.L.R.B. v. Henry Heide, Inc., 219 F. 2d 46, where the court said: If an employer has doubts about his duty to continue bargaining , it is his responsibility to petition the Board for relief , while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. In summary, then, it is concluded and found that at all times since August 19, 1960, the Charging Union has been and is now the exclusive representative of all the Respondent's employees in an appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other condi- tions of employment, that such unit consists of: All production and maintenance employees of the Respondent employed at its Cambridge and Somerville plants ex- clusive of office clerical employees, guards, professional employees , salesmen, and all supervisors as defined in the Act, and that on April 10, 1961, and at all times since then, the Respondent has refused to bargain collectively with the Charging Union as required by the Act, and thereby has interfered with , restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. C. Other interference, restraint, and coercion As noted in finding ( 19) in section B , above, on April 15 the Respondent sent the strikers written warning that unless they returned to work by April 19 they would be permanently replaced . This action, occurring after the strike had become an unfair labor practice strike, constituted unlawful interference, restraint, and coercion. (Rice Lake Creamery Company, 131 NLRB 1270.) The offer of wage increases to striking employees if they returned to work, as described in finding (17) in section B, above, also constituted interference, restraint, and coercion. By the following conduct engaged in within a few days after termination of the strike and ,its formal refusal to bargain further with the Union, the Respondent also engaged in unlawful interference: N 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) At an assembly of returning strikers on April 19, President Kohm an- nounced, in effect, that management would conduct an election at which they could vote whether they wanted an "inside" or "outside" union to represent them. (As a witness Kohm admitted that he broached the subject of a "company union" as "one of several possible forms of collective bargaining.") (2) The following day, April 20, a number of employees were called into the office where Kohm urged upon them the advantages to be had from their choosing an "inside" union over the Charging Union, and then declared that he wanted them to "take a vote." 2 (3) On April 21 Supervisor Buchler distributed among employees what appears to be a unilateral agreement containing provisions as to wages and working condi- tions which the Respondent would observe and which would "contribute to harmony and understanding in our relations." The employees decided to take no vote that day, preferring to take the "contract" with them for examination. (4) On April 26, the day after the Respondent admittedly terminated the em- ployment of many former strikers, a vote was taken on company premises during working hours, the choice being between a company union, the Charging Union, or no union. While it does not appear that a management representative was present at the voting, it is found that the taking of the vote was not only precipitated by Kohm, but that it was taken with the full and unlawful permission, approval, and sponsorship of .the Respondent .3 D. The discharges Although the complaint originally listed 18 employees as having been unlawfully discharged by the Respondent on or about April 25, 1961, a majority of this num- ber failed to appear at the hearing, and General Counsel's motion to strike 'their names from the complaint was granted. Thus the following findings will be limited to the discharges of seven individuals: Antonio Alvarez, Paul Barrett, Shiela Browning, Lillian Henderson, Ann LeVoy, Eugene McMahon, and Josephine Pacheco. That the employment of these individuals was terminated is conceded-the answer admitting that they were "discharged." In substance it is the claim of President Kohm that these and other terminations of the same date were the result of management's determination, made "in the be- ginning of March," to reduce the working force because costs were "out of line" with sales. He also claimed that a management decision, in which he participated, was made during the course of the strike to cut back the number of employees. More than a shadow of doubt is cast upon the validity of this claim of decisions made both before and during the strike by the fact that all the strikers were returned to work when the strike ended and continued at work-working overtime- for about a week thereafter. That shadow is not lifted by Kohm's further claim that implementation of the decisions was delayed until "we" were "back to normal operation." For according to the testimony of Manager Miller the decision to cut back was made because management discovered, during the strike, that "we got about 75 percent of the production out with 40 percent of our people." Thus management's various claims become lost in a maze of inconsistency. Had the factor of percentages actually existed and had it been the basis for a reduction de- cision, the reasonable question arises as to why management recalled and permitted to work for a full week some 60 percent of the employees. In summary, a review of the testimony and documentary exhibits reveals the fol- lowing items of inconsistency and contradiction: (1) The answer admits that the employees were "discharged," yet both Kohm and Miller insisted they were merely laid off because not needed. (2) Kohm, at one point in his testimony, said that decision to reduce the force was made in March, yet at another point he admitted that "during the period of the month before the strike" the Respondent did "a considerable amount of hiring." (3) Although both Kohm and Miller contended that the layoffs were a necessary economic reduction in force, company records show that during the week following 2 Kohm admitted the occasion , but implied that the meeting was called because a former union steward had wanted "clarification" concerning another union. The Trial Examiner cannot rely upon his recollection of the event. Having repudiated his legal obligation, it appears immaterial whether he instigated the idea of a company union or merely loaned his assistance toward the same end to a dissident employee. "The described instances of unlawful interference also constitute factors providing additional support to the conclusion of refusal to bargain U.S. SONICS CORPORATION 827 the layoffs more overtime was worked than in any preceding week of the year and that since April-25 and up to mid-July more than 50 new employees were hired. (4) Although Miller claimed generally that he made the ultimate selection of in- dividuals to be laid off, following recommendations by department supervisors, and specifically that he relied "heavily" upon the recommendation of Supervisor Bart- field in selecting employees Browning, Henderson, and LeVoy, when Bartfield was also called as a witness for the Respondent she definitely denied that she had re- ceived any instructions from Miller regarding a reduction in force, and also denied that she had been present at any of the prelayoff conferences of supervisors Miller described. The Respondent's evidence offered in support of its affirmative contentions as to the reason for the terminations being so inconsistent and contradictory, the Trial Examiner turns to the allegation of General Counsel that each of the seven em- ployees was unlawfully discharged because of participating in the strike , protected union activities. Management's unlawful efforts to deprive these employees, as well as others, of their chosen bargaining representative have heretofore been described. It has also been noted that during the strike the Respondent made unlawful financial offers as inducements to return to work . Such unlawful conduct immediately preceding the discharges fully warrant the inference that they were motivated by the same intent to deprive employees of their statutory rights. This conclusion has convincing support in the undisputed testimony of employee Caivello, who stated that Foreman Wright told him he "thought" he would get rid of Alvarez, one of the seven discharged, because "he thought he was a big shot driv- ing those union thugs around." All seven employees here involved were active participants in the strike and known as such by management. In summary, the Trial Examiner concludes and finds that the seven employees named above were discriminatorily discharged to discourage union membership and activity, and that thereby the Respondent has interfered with, restrained, and co- erced employees in the exercise of rights guaranteed by 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 described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. It will be recommended that the Respondent, upon request, bargain collectively with the Charging Union as the exclusive bargaining representative of all employees in the appropriate unit and, if an understanding is reached, embody such understand- ing in a signed agreement. It will be recommended that the Respondent offer Antonio Alvarez, Paul Barrett, Shiela Browning, Lillian Henderson, Ann LeVoy, Eugene McMahon , and Josephine Pacheco immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. It will be further recommended that the Respondent make these privileges whole for any loss of earnings suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which he or she would normally have earned as wages, absent the discrimination, from the date of discharge to the date of the Respondent's offer of full reinstatement, less their net earnings during the said period and in a manner consistent with Board policy set out in F. W. Woolivorth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440. Since the violations of the Act which the Respondent committed are related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is reasonably to be anticipated from its past conduct, the pre- ventative purposes of the Act may be thwarted unless the recommendations are co- extensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by the Act. Upon the basis of the foregoing findings of fact and'upon the entire record in the case, the Trial Examiner makes the following: 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. International Union of Electrical, Radio and Machine Workers , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employees , thereby dis- couraging membership in the above -named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All ,production and maintenance employees of the Respondent employed at its Cambridge and Somerville plants, exclusive of office clerical employees , guards, pro- fessional employees , salesmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. At all times since August 19, 1960, the above-named labor organization has been the exclusive representative of all employees in the aforesaid unit for the pur- poses of collective bargaining in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment , by virtue of Section 9(a) of the Act. 5. By refusing, on April 10, 1961, and at all times thereafter, to bargain collec- tively with the aforesaid labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By interfering with, restraining, and coercing 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. 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. [Recommendations omitted from publication.] M. J. McCarthy Motor Sales Co. and International Vehicle Salesmen's Union of America (Independent ). Cases Nos. 13- CA-4198,13-CA-4198-2,13-CA-4198-3,13-CA-4262, and 13-CA- 4305. February 5, 1962 DECISION AND ORDER On November 3, 1961, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is 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 General Counsel filed a brief in sup- port of the Intermediate Report and the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, 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 Interme- diate Report, the exceptions, the briefs, and the entire record in these consolidated cases, and adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. 1 The Trial Examiner at one place in the Intermediate Report inadvertently referred to Used Car Sales Manager Frank Urban as the "Used Car Salesman." However, it is 135 NLRB No. 84.