The Forston Co.

THE FORSTON CO. 561 Claude E. Forston, d/b/a The Forston Co. and Robert M. Stahl,. Clarence Wilshire, Sr., Don Edward Pemberton, Theodore Avalos. Cases Nos. 23-CA-1389, 23-CA-1389-2, 23-CA-1389-3, and 23-CA-1400. October 29,1962 DECISION AND ORDER On August 21, 1962, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that he cease and desist therefrom and- take certain affirmative action, as set forth in the attached Intermediate Report. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of such allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting- brief, and the Respondent filed a brief in support of the Intermediate Report. 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 Leedom 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 and the entire record in the case, including the excep- tions and briefs, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial' Examiner.' 1 Appendix A, attached to the intermediate Report, is hereby modified by adding the following immediately below the signature : NOTE -We will notify any of the above -named employees presently serving in the Aimed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the- Armed Forces INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges of unfair labor practices filed by Robert M. Stahl on March 5, 1962, by Clarence Wilshire, Sr., on March 13, 1962, by Don Edward Pemberton on March 19, 1962, and by Theodore Avalos on March 23, 1962, all amended on April 9, 1962, the General Counsel of the National Labor Relations Board issued' 139 NLRB No 42. .562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a consolidated complaint dated April 10, 1962, alleging that Claude E. Forston, d/b/a The Forston Co. (herein called the Respondent), had engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein ,called the Act. In substance the complaint alleges that during the pendency of a petition filed with the Board by Local No 54, Sheet Metal Workers International Association, AFL-CIO (herein called the Union), for certification as the exclusive bargaining representative of Respondent's employees, the Respondent interrogated employees concerning their union activities, threatened to close down its plant be- fore it would recognize a union, threatened employees with loss of employment if the Union received a majority of the votes at the Board election, and discharged and/or laid off the four Charging Parties because of their membership in or activi- ties on behalf of the Union. The Respondent filed an answer denying the sub- stantive allegations of the complaint and the commission of unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross in Houston, Texas, on May 22 and 23, 1962. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argument, and to submit briefs. On June 15, 1962, briefs were filed by the Respondent and the Gen- eral Counsel, which I have carefully considered. Upon the entire record in the case, and from my observation of the witnesses and -their demeanor, I make the following: FINDINGS OF FACTS 1. COMMERCE The Respondent, a sole proprietorship whose principal office and place of business is located at Houston, Texas, is engaged in the manufacture, fabrication, and sale of air-conditioning units for residential, commercial, and automotive use. During the 12 months preceding the issuance of the complaint, a representative period, the Respondent sold and shipped air-conditioning units valued in excess of $50,000 from its plant in Texas to points and places outside the State of Texas. On the foregoing admitted facts, I find and conclude that the Respondent is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local No. 54, Sheet Metal Workers International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The advent of the Union About the middle of February 1962, after discussion among Respondent's em- ployees regarding the advisability of representation by a union, employee Robert M. Stahl contacted Louis Krzesienski, an assistant business agent of the Union, and arranged for the latter to meet with the employees. On February 19 or 20,1 all 10 of Respondent's employees, and Louis Lang, the sole employee of J-F Sales Company, an affiliated enterprise,2 met after work with Krzesienski at the 7-11 Store "right next door" to the Respondent's premises. At this meeting, all but Lang signed union authorization cards. Thereafter, on February 21, the Union filed a petition with the Board for certification as the exclusive bargaining representative of Respondent's employees.3 The parties hereto stipulated that a copy of the said petition was received by the Respondent, Claude E. Forston, or his wife, Thelma C. Forston,4 on February 23. 1 This and all dates hereinafter refer to 19G2 unless otherwise specifically noted. 2 The precise relationship between Respondent and J-F Sales Company will be de- scribed and considered hereinafter 3 Case No. 23-RC-1868 4 Mrs Forston assists her husband Claude in the management of the business on a full -time basis . She hires and supervises employees , manages the office, and participates with her husband In decisions to discharge and lay off employees. THE FORSTON CO. 563 2. Interrogation According to the credited testimony of Clarence Wilshire, Sr., also known as "Shorty," on the day following the union meeting, Raymond Forston, the brother of Respondent Claude Forston, asked Wilshire whether he knew anything about the union meeting, Wilshire replied that he did not, and Forston said that those who attended would be fired. Later that same week, Raymond Forston admittedly similarly interrogated employees Robert M. Stahl, Alvin Emshoff, Don Edward Pemberton, Theodore Avalos, and other employees, regarding whether they had attended or knew who had attended the union meeting. All of the named employees denied knowledge of or attendance at the meeting .5 Forston also asked Emshoff and Pemberton whether they knew "Shorty" Wilshire's son, and asked Pemberton whether Wilshire's boy had asked him to sign any papers for the Unions Raymond Forston admitted that he had engaged in interrogation of Respondent's employees, and that he "might have" so questioned "all of them." Forston further admitted that he was aware that his brother Claude "was prohibited by the law from [so] inquiring," but testified that he did not regard the proscription as applicable to him- self because he was neither an employee of, nor owned any interest in, the business of Respondent. Forston also denied that he was requested by his brother to engage in such interrogation, and, although, for reasons hereinafter explicated, I do not regard his testimony as reliable,7 there is no evidence to the contrary in the record. 3. Raymond Forston's coercive speech On the following Monday, February 26, while Respondent's employees were at lunch in the plant, Raymond Forston called them all together and delivered a talk to them about the Union. Forston told the assembled employees that his brother was not "at liberty" to talk to them on the subject of the Union, but that since he had no financial interest in "The Forston Company," there was no reason why he could not do so. He further told the employees that he knew that they had attended a union meeting,8 that they were "organizing to join the Union," that he did not "care for unions in small businesses like this," that anyone who had dealings with the Union was a Communist, that there would never be a union in the plant, and that before they would let the Union come in, they would padlock the doors .9 At the hearing herein, Raymond Forston denied that his brother, the Respondent, either requested him to make the talk or even knew about it before he gave it. He ad- mitted, however, that his brother learned of the talk a day or two later, and that the latter never disavowed it or told the employees that it was made without his sanction or authority. 4. Additional coercion On March 12, upon the execution by Respondent of a consent-election agreement in the Board proceeding based upon the Union's petition for certification, the Regional Director scheduled the election for Wednesday, March 21. During the period immediately preceding the date of the election, Respondent's orders on hand for air-conditioners were concededly very low. On March 15, employee Emshoff, who was working on his last order, asked Raymond Forston whether he would be laid off when he finished working on it.is According to Emshoff's uncontradicted 5 The record does not disclose what information, if any, was imparted to Forston as a result of his interrogation of the other employees. 6 The significance of this latter interrogation is that Wilshire's son, a former em- ployee of Respondent, had visited the plant in December 1981, accompanied by a man who identified himself to Respondent as "a union representative," and had attempted, unsuccessfully, to speak with Respondent. 7 See, e g, footnotes 11, 12, and 17, infi a s It is, therefore, quite apparent that Forston had not been deceived by the employees' previous denial of attendance at the union meeting. U The foregoing findings are based on the composite testimony of employees Stahl, Wil- shire, Emshoff, Pemberton, and Avalos, and on the testimony and admissions of Raymond Forston to the extent that I credit him. The quoted portions above are from Forston's testimony In respect to the threat to close the plant, Forston testified that he said, "If the situation were in my lap, . before I would have a union I would put a padlock on the place " I credit the employees' version of the threat. 10 The Saturday before, Clarence Wilshire, Sr., had been laid off, allegedly for lack of work. 672010-63-vol. 139-37 564 DECISIONS OF NATIONAL LABOR RELATION, S BOARD testimony, Forston replied that he did not know whether Emshoff would be laid off, that in the past "they had tried to look out after the boys," but "they would know more about it Wednesday [the day of the election]." The complaint alleges that the foregoing statement constituted a threat that continuation of employment was dependent upon the Union's defeat in the election. 5. Concluding findings in respect to interference, restraint, and coercion Respondent's answer denies that Raymond Forston is an agent of Respondent within the meaning of the Act. The record in respect to Raymond Forston's status in Respondent's plant is as follows: Raymond Forston has no financial interest in, and is not on the payroll of, the Respondent. He is, however, an equal partner with his brother, the Respondent herein, in an enterprise located at Respondent's premises, known as the J-F Sales Company, which sells Respondent's products exclusively." There is no physical separation of the portion of Respondent's premises used by J-F Sales from the balance of Respondent's plant. Raymond Forston occupies one of the four private offices in Respondent's office section. Both companies use the same telephone number.12 J-F Sales' books and records are maintained in Respondent's office by Respondent's bookkeeper. Both Raymond Forston and Louis Lang, the employee of J-F Sales, frequently perform work for Respondent in the latter's plant, for which Respondent pays no compensation. Raymond Forston interviews applicants for employment by Respondent, and his recommendations regarding their hiring are generally followed. According to the uncontradicted testimony of Robert M. Stahl, Raymond Forston effected Stahl's transfer from Respondent's sheet metal department to the assembly department. Wilshire, Senior, was reemployed by Respondent after an earlier lay- off, by requesting such reemployment from Raymond Forston. Pemberton credibly testified that he was hired to work for Respondent by Raymond Forston, that the latter accompanied him into the plant and showed him where he was to work and with whom.13 Alvin Emshoff was interviewed for his job with Respondent by Raymond Forston, was told by the latter that he had a job, what his compensation would be, and what work he would do. In addition, a number of Respondent's employees testified that Raymond Forston instructed them in respect to the manner in which their work was to be done, and told them what to do. In the light of the close integration of the business of Respondent with that of J-F Sales, and the regular exercise by Raymond Forston, with Respondent's knowledge and consent, of supervisory functions in both the hiring, transfer, direction of, and assignment of work to Respondent's employees, the conclusion is inescapable that Re- spondent clothed his brother Raymond with supervisory authority,14 and that, there- fore, the latter was, at the times material herein, an agent of Respondent within the meaning of the Act, for whose conduct and statments the Respondent must bear legal responsibility.15 In view of my conclusion above, it follows, a fortiori, that Respondent is respon- sible for Raymond Forston's interrogation, speech, and other antiunion statements to employees. Accordingly, there remains for consideration whether such conduct constituted interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. Raymond Forston testified that his interrogation of the employees to ascertain the identity of those who attended the union meeting was motivated solely by curiosity. In the light of the systematic nature of the interrogation, the admission that it was directed to all the employees, the fact that except as to Wilshire, Senior, 11 Contrary to the testimony of Raymond Forston that J-F Sales sells products of other companies, J-F's books and records disclose no purchases from anyone other than the Respondent 12 Raymond Forston denied that J-F Sales has the same telephone number as The Forston Company. However, contrary to his testimony, the letterheads of the two com- panies (General Counsel's Exhibits Nos. 5 and 6) disclose that they have one telephone number in common. 11 Pemberton was assigned by Raymond Forston to work with Louis Lang, doing more or less the same kind of production work for Respondent as Lang, although Lang allegedly was a warehouse employee, not of Respondent, but of J-F Sales. 14 In this connection, it will be recalled, as noted above, that it was to Raymond Forston that employee Emshoff addressed his inquiry on March 15 , as to whether he would be laid off for lack of work. 16 Cf. International Association of Machinists, Tool and Die Makers Lodge No. 35 (Serrick Corp.) v. NL.R.B., 311 U.S. 72, 79-81 ; Taylor Manufacturing Company, Incor- porated, 83 NLRB 142, 156-157. THE FORSTON CO. 565 the interrogation was engaged in on the day Respondent received the Union's petition for certification,16 and that Shorty's [Wilshire's] boy is the instigator of this [the Union's advent]," 17 I am persuaded that the interrogation was engaged in, not out of curiosity, but for the purpose of ascertaining the identity of the employee or employees responsible for the advent of the Union in the plant. In any event, the Respondent does not contend that the purpose of the interrogation was, either to extend recognition to the Union if it represented a majority of the employees, or for any other lawful purpose.18 Moreover, in the case of Wilshire, Senior, the interrogation was accompanied by the threat that those who attended the union meet- ing would be fired. In addition, after the interrogation, the Respondent engaged in further threats and unfair labor practices as hereinafter found. Under all the circumstances, I find that Raymond Forston's interrogation of employees, inter- fered with, restrained, and coerced employees in the exercise of their rights guar- anteed by the Act, and thereby Respondent engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act.19 Similarly, it is quite evident that the coercive statements of Raymond Forston on February 26, that there would never bea union in the plant, and that before they would let the Union come in they would padlock the place, constituted a threat of loss of employment if a majority of the employees designated the Union as their representative. Accordingly, I conclude that thereby Respondent further inter- fered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act.20 Finally, in the context of his prior antiunion statements and threats, Raymond Forston's statement to employee Emshoff, that the question of whether Emshoff would be laid off for lack of work or not would have to wait until Wednesday, the date of the election, constituted an implicit threat that his continued employment depended on the Union receiving less than a majority of the votes in the forthcoming election. I therefore conclude that Respondent thereby further restrained and coerced employees in violation of Section 8(a)(1) of the Act. 21 B. The discriminatory discharge and/or layoff of employees 1. Robert M. Stahl Stahl was hired by Respondent on January 3 and was first assigned to work in the sheet metal department. After 4 weeks of admittedly satisfactory work, he was transferred to the assembly department where his duties consisted principally of installing coils into air-conditioners. As reported above, about February 15, Stahl enlisted the interest of the Union in representing Respondent's employees, and arranged for the union meeting at which all of Respondent's employees signed union authorization cards. On February 23, the Respondent received the Union's petition for certification as the employees' representative. On the following day, according to Mrs. Forston, she and Respondent discussed whether they should discharge Stahl for unsatisfactory work habits. During the week following the filing of the petition, Stahl's supervisor, Superintendent LaVerne Green, criticized Stahl regarding the insufficient volume of work he had performed that morning, and told Stahl that if he did not want to work he should punch the clock and go home.22 The following Saturday Stahl was given his final paycheck by Mrs. Forston and told that his services were no longer needed. The Respondent's answer denies knowledge of Stahl's union interest or activity, and asserts that he was discharged for cause. On the issue of knowledge, both Superintendent Green and Mrs. Forston denied that they either knew or suspected that Stahl was in any way responsible for the advent of the Union in the plant 23 Indeed, Mrs. Forston also denied that she had even heard about a union meeting 10 Wilshire may have been mistaken in regard to the date when he was interrogated. 17 Forston at first denied, but later reluctantly admitted , that he said the foregoing to Green 11 Cf. Blue Flash Bxpress, Inc, 109 NLRB 591. 10Firedoor Corporation of America, 127 NLRB 1123 , enfd. 291 F 2d 328 ( CA. 2), cert denied 368 U.S. 921 20 Cf. Lee-Rowan Manufacturing Company, 129 NLRB 980, 981 21 Cf Stockbridge Vegetable Producers, Inc., 131 NLRB 1395-1396 22 Stahl admitted that he had performed very little work that morning, but testified in explanation that he was waiting for unfinished parts on which other employees were working Stahl's explanation was corroborated by his fellow employee, Theodore Avalos. 23 The Respondent, Claude Forston , was not called to testify. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Respondent's employees until the hearing in this proceeding 24 However, con- trary to this testimony, Green's affidavit, executed before a Board agent, stated the following: 25 Mr. Raymond [Forston] and I both (although we can't prove it) are pretty well convinced that Robert Stahl and Shorty [Wilshire] both were instigators of the Union. Mr. [Claude] and Mrs. Forston both agreed that Shorty and Stahl were behind the Union getting in.26 In attempted explanation of the apparent conflict between the affidavit and his testimony, Green testified that he was confused by the word "petition" in the affi- davit, and thought it referred to Stahl's unfair labor practice charge. Green's attempted explanation is patently implausable, and I do not credit it, since the subject matter of the entire paragraph concerns who was "the instigator" of the Union's petition, and not who was responsible for Stahl's filing of an unfair labor practice charge. Moreover, as found above, it was the receipt of the Union's petition for certification which triggered Respondent's coercive interrogation of employees to ascertain the identity of the employee or employees responsible for the advent of the Union in the plant. Accordingly, I conclude that notwithstanding Green's denial,27 his affidavit constitutes an admission that he knew or suspected that Stahl was responsible for the Union's advent prior to Stahl's discharge. The record herein also discloses that Respondent's plant is quite small, that Respondent employs only a few employees, that Green learned of the Union's meet- ing and advised Raymond Forston thereof on the day after it took place, and that Forston engaged in extensive interrogation of employees regarding the Union's meeting. Under all these circumstances, it is fairly inferrable that Respondent also acquired knowledge that Stahl was interested and/or active in the union movement, and I so find. In any event, since Stahl was discharged by Green, and Green's knowledge of Stahl's responsibility for the Union's advent is admitted by his affidavit, I conclude that Respondent is chargeable with Green's knowledge. Respondent contends that Stahl was discharged because he allegedly lost interest in his work, and despite repeated reprimands, wandered about the plant talking to other employees. The only direct testimony to support this contention of Respond- ent was that given by Superintendent Green 28 Green testified that Stahl's work "was fair the first few weeks he worked there," but thereafter, "he began to get a little bit rough on his work," "he burned up some material, and he wouldn't stay on the job all of the time. He would be around talking to other men, and I [Green] had to get him back several times to his place of work. I put up with that two or three weeks before I let him go." Green further testified that Stahl's alleged propensity for wandering about the plant was "the main" reason 29 for his dissatisfaction with Stahl, and that he reprimanded Stahl therefor on six or seven occasions. When pressed for details regarding the times when and the incidents for which he adminis- tered the alleged reprimands, Green first professed lack of memory, but then pro- ceeded to give precise details of several occasions when Stahl was not at his place of work and was ordered by him to return. Green admitted that notwithstanding the frequency of Stahl's wanderings, he never warned Stahl that he would be fired if he persisted in this practice. 241n the light of her brother-in-law's interrogation of employees regarding the union meeting, I regard this denial incredible. 25 General Counsel's Exhibit No. 1. 28 Although the verb used in the affidavit, "are pretty well convinced," is in the present tense, and thus, at first blush appears to refer to the date of the affidavit, after Stahl's discharge, in the context of the first sentence of the paragraph which refers to the period "after the [Union's] petition was filed," I conclude that Green was referring to beliefs he entertained prior to Stahl's dismissal 27 For additional reasons more fully set forth hereinafter, I regard Green's testimony as generally not worthy of credance 2s As noted above, Respondent, Claude Forston, was not called as a witness. No expla- nation was offered for the failure to do so Mrs. Forston testified that on several occa- sions, her husband mentioned Stahl's alleged lack of interest in his work, but since this testimony is obviously heresay, I do not place any reliance thereon. Mrs. Forston also testified that she personally observed Stahl "away from his position" on a few occasions, but in the absence of any testimony that Stahl was either loitering, loafing, or not sup- posed to be where she saw him on those occasions, I regard her testimony in this respect as inconclusive 29 Green gave no details about any material alledgedly "burned up" by Stahl. THE FORSTON CO. 567 Contrary to Green's testimony Stahl denied that he had received any reprimands other than the one, a few days before his discharge, when Green admonished him for low production. I was favorably impressed with Stahl's candor and demeanor, and credit his testimony in this respect. Conversely, I find it implausible and difficult to believe that if, as Green testified, he had frequently and repeatedly reprimanded Stahl for not staying at his place of work, that the latter, a relatively new employee, would ignore the admonitions and reiterate the same offense. It similarly seems inconceivable that if Stahl had offended in this respect so many times in so short a period, that Green would not have warned Stahl that he risked discharge. I find Green's testimony in respect to Stahl's alleged shortcomings especially difficult to believe, in view of the admitted record that after his first 4 weeks of employment, Stahl was complimented for his good work by Mrs. Forston and promised a raise if he kept it up. On the entire record, I conclude that I can place no credence in Green's testimony regarding Stahl's alleged unsatisfactory behavior.30 Significantly, Stahl was not told at the time he was discharged that his work or work habits were unsatisfactory, but merely that his services were no longer needed. Admittedly, he was a satisfactory employee until approximately the time that the union activities of Respondent's employees commenced 31 In the light of Respond- ent's overt opposition to the Union, manifested by the threat to close the plant if the Union came in and the intensive interrogation of employees to ascertain who was responsible for the Union's interest in the plant, the belief of Superintendent Green that Stahl was one of "the instigators," and my disbelief in Green's testimony re- garding Stahl's unsatisfactory work habits, I am persuaded and find that the assertion of Stahl's alleged unsatisfactory work habits as the motive for his dismissal is a mere pretext of the Respondent to lend legality to the discharge of the employee it regarded as one of the two "instigators" of the Union, and that the true motivation for Stahl's discharge was Respondent's hostility to the Union. Accordingly, I con- clude that Respondent thereby discriminated against Stahl in regard to tenure of employment, because of his activities on behalf of the Union, and discouraged membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. 2. Clarence Wilshire, Sr. Wilshire was hired by the Respondent about November 1, 1958. He worked for Respondent continuously thereafter, doing principally welding work, until the spring of 1961 when he was laid off for lack of work. During the 2 or 3 months that he was on layoff, Wilshire worked as a welder in a shop "next door" to the Respondent's premises. As found above, Wilshire applied to Raymond Forston for reemployment by Respondent and was rehired about June 21. He was again assigned to do weld- ing work. In addition to welding, he also assembled bottoms, condensers, coils, and crated air-conditioners. On February 19 or 20, Wilshire attended the union meeting and signed an authorization card for the Union. As noted above, Wilshire was one of the two employees who was regarded by Respondent as responsible for the advent of the Union in Respondent's plant. On March 10, the week after Stahl, the other "instigator" of the Union, was discriminatively fired, Wilshire was told by Mrs Forston that he was laid off, and he was given a pink slip on which the follow- ing was stated: At this time, we do not have work for you due to reduction in orders we are receiving which governs our production and warehouse work. T. F. Since March 10, Wilshire has not been offered reemployment, although two other employees, subsequently laid off by Respondent for lack of work,32 have received such offers. ii Additional reasons which appear in the record for not crediting Green's testimony include: (1) Green's testimony that Stahl's work was only "fair" during his first 4 weeks of employment, is obviously less than frank in the light of Mrs Forston's admission that she promised Stahl a raise if he kept up his good work , (2) Green first testified that he gave Stahl his final paycheck out in the plant, but later contradicted this testimony and admitted that Mrs. n'orston had given the check to Stahl in the office; (a) the precise details turnished by Green regarding the reprimands he allegedly administered to Stahl, after first professing lack of memory in respect to such details, impels me to doubt the veracity of the details : and (4) Green's denials, that he either knew or told Raymond Forston about the union meeting, were contradicted by Forston's testimony that Green was the source from whom he learned about it 41 According to Green, the first time he admonished Stahl for not being at his place of work was 21/ weeks before his discharge 32 Don Edward Pemberton and Theodore AN aloe 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel concedes that at the time of Wilshire's termination, there existed economic justification for a layoff of employees, but he contends, neverthe- less, that although the form used by Respondent suggests that Wilshire was tempo- rarily laid off, in fact he was discriminatorily and permanently discharged because of Respondent's belief that he was an "instigator" of the Union in Respondent's plant. For the reasons hereinafter stated, I find ment in the General Counsel's aforestated contention. On cross-examination, Mrs. Forston was asked and admitted that reemployment had been offered to Pemberton and Avalos , but not to Wilshire. She then was asked whether she intended to offer employment to Wilshire, and replied, "Not at this time." When asked whether she would offer Wilshire employment at any time, she evaded a direct answer, and testified, "Well, I would not say we would never offer him employment. He has been in and out a number of times during a period of years." She was then asked whether during the investigation of Wilshire 's unfair labor practice charge, she had made the statement that she would not take Wilshire back under any circumstances. Again she evaded a direct answer, and testified, "Not in exactly those words." Finally, after again attempting to evade a direct answer, she reluctantly admitted that in her affidavit to the Board's agent she stated, "Also Shorty [Wilshire] will not be recalled as his work has always been on a borderline." 33 Mrs. Forston then testified , in attempted explanation , that this statement in her affi- davit had reference only to recalling employees "within the next two or three weeks." In the context of the entire statement, especially the sentence immediately preceding the reference to Wilshire , that Stahl would not ever be recalled , and the use of the word "also" which associates Wilshire's future employment prospects with that of Stahl, I regard Mrs . Forston's attempted explanation as patently implausible, and I do not credit it. In the light of all the foregoing , I conclude that it is quite evi- dent that when Wilshire was allegedly laid off, Respondent 's intention was not to recall him at any time, and that the layoff was in fact a permanent discharge. As noted above, Mrs. Forston's affidavit and testimony assigned as the reason that Wilshire would not be employed, that "his work has always been on a border- line." Presumably, this was a reference to some deficiency in the quality of Wil- shire's work. However, the record is silent in respect to the nature of the alleged deficiency. On the issue of the motivation for Wilshire's discharge, the following facts stand out significantly: (1) With the exception of a 3-month layoff for lack of work, Wilshire worked for Respondent for 31/2 years doing primarily welding work; (2) after his layoff an the spring of 1961, he was again reemployed for the same work; (3) the record does not disclose that any alleged deficiency in Wilshire 's work was ever called to his attention; (4) on February 16, just 1 month before his discharge, and before the advent of the Union in Respondent 's plant, Wilshire was given a raise of 5 cents per hour; 34 (5) Respondent concealed from Wilshire the permanence of his ter- mination , and did not tell him that his termination was based on his so-called "borderline" work; (6) all of the other laid-off employees have since been offered reemployment; and (7) since Wilshire's termination, welding and other work has been available at Respondent 's plant 35 In the light of the foregoing, and especially the long tenure of Wilshire on the same job, the absence of any complaints regarding his work, and the raise given to him shortly before his discharge, I am persuaded and conclude that the assertion that Wilshire's termination was based on his "borderline" work is a further pre- textual device of the Respondent to conceal the real motivation for his discharge. On the record herein, the real reason for Wilshire's termination is readily perceived. As found above, after the Union's petition was filed, Respondent regarded Wilshire as one of the two employees who were the "instigators" of the Union. Thereafter, Respondent engaged in coercive interrogation and threats to close the plant to dis- courage adherence of the employees to the Union. Moreover, as found above, the Respondent also discriminatorily discharged Stahl , the other employee who was regarded as an "instigator" of the Union . For all of the foregoing reasons, I am persuaded and find that Respondent discharged Wilshire in order to eliminate from The entire statement in this respect reads as follows Pemberton is on recall status and will be recalled if work picks up On the other hand, Robert Stahl will not be recalled in that he was discharged because his work during the short time he was here was definitely unsatisfactory. Also Shorty will not be recalled as his work has always been on a borderline i4 General Counsel's Exhibit No. 8(b). Most of such work has been performed by Raymond Forston. THE FORSTON CO. 569 its plant, the other employee who was regarded as responsible for the advent of the Union in the plant. Accordingly, I conclude that thereby Respondent discriminated against Wilshire in regard to the tenure of his employment because of his activities on behalf of the Union, and discouraged membership in the Union, in violation of Section 8 (a) (3) and (1) of the Act. 3. Don Edward Pemberton and Theadore Avalos On March 12, after Wilshire's termination, Respondent executed a consent-election agreement in the Union's representation proceeding, and the Regional Director scheduled the election for March 21. On March 17, the Respondent laid off two employees, Don Edward Pemberton and Theadore Avalos, because of lack of work. The notices advising Pemberton and Avalos of their layoff contained a statement advising these employees that their "layoff in no way affects your privilege to vote 3/21; in case you happen not to be working that day." On April 17, Respondent offered reemployment to Pemberton but he declined the offer. On or about May 7, Respondent similarly offered reemployment to Avalos, but he likewise elected not to return. As noted above, the General Counsel concedes that at the time of the layoff of Pemberton and Avalos, Respondent had no orders on hand and that economic justification for the layoff existed. He contends nevertheless, that the layoff of Avalos and Pemberton was discriminatorily motivated "to further dissipate the proposed bargaining unit." 36 In respect to knowledge of Pemberton's union interest and activity, the General Counsel relies on testimony in the record that during the week after Stahl's discharge, Pemberton and Stahl, while seated and talking to- gether in Stahl's automobile parked near Respondent's premises, were observed by Raymond Forston as the latter drove away from the plant, and that he then drove back to the plant a few minutes later and again observed Pemberton and Stahl together.37 In respect to Respondent's like knowledge of Avalos' union interest, the General Counsel relies on the fact that he worked alongside of Stahl before the latter was discriminatorily discharged, and that the Respondent's business is "a small operation." Although I believe that on the entire record herein, including the smallness of Respondent's plant, there can be little doubt about Respondent's knowledge of the union interest of Pemberton and Avalos, I nevertheless conclude that the General Counsel has failed to establish discriminatory motivation for their layoff. Thus, the record shows that in prior years, when no union was attempting to secure representative status, Respondent laid off employees for lack of work.38 More- over, the advice to Pemberton and Avalos that they were privileged to vote, not- withstanding their layoff status, and the subsequent offer of reemployment to both of these employees, negates the General Counsel's assertion that Respondent, by their layoff, was seeking "to dissipate the bargaining unit." Unlike Stahl and Wil- shire, who were regarded by Respondent as "the instigators" of the Union, Pember- ton and Avalos were not in any respect different in respect to their union interest and activities than all of the other employees who attended the union meeting and signed authorization cards but were nevertheless retained in Respondent's employ.39 In the light of all the foregoing, and the absence of any evidence that but for their union interest Pemberton and Avalos would not have been laid off, I conclude that the General Counsel has failed to sustain the burden of proving by a preponderance of the evidence that their layoff was discriminatorily motivated. Accordingly, I shall recommend that the complaint in this respect be dismissed 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 thereof. ae General Counsel's brief, p 7 ar There is no allegation in the complaint that this conduct constituted unlawful surveillance Wilshire was laid off in 1961 for this reason au The small size of Respondent's plant as well as the interrogation of employees pre- viously described, suggest that Respondent also had knowledge of the Union interest of all the employees. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged and discriminatorily refused to re- instate Robert M. Stahl and Clarence Wilshire, Sr., I will recommend that the Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions , 'without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered because of the discrimination against them , by the payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289, 291-294. I shall also recommend that the Respondent make available to the Board, upon request, payroll and all other records necessary to facilitate the determination of the amounts due under this recommended remedy. In view of the nature and extent of the unfair labor practices committed. and because discriminatory discharges go to the very heart of the Act,40 the commission of other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from "in any other manner" infringing upon rights guaranteed to employees by Section 7 of the Act, in addition to those rights found to have been violated herein. In view of the absence of sufficient evidence that Respondent's layoff of Don Edward Pemberton and Theadore Avalos was motivated by antiunion considerations, I shall recommend the dismissal of those allegations of the complaint which charge that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, by the layoff of these two employees. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local No. 54, Sheet Metal Workers International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discouraging membership in a labor organization through discrimination in employment, and by interfering with, restraining, and coercing employees in the exercise of their rights under the Act, the Respondent has engaged in and is engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the Act. 3 The General Counsel has failed to establish by a preponderance of the evidence in the record, that the Respondent's layoff of Don Edward Pemberton and Theadore Avalos was motivated by antiunion considerations RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Claude E. Forston, d/b/a The Forston Co., his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of Local No. 54, Sheet Metal Workers International Association, AFL-CIO, or any other labor organiza- tion of his employees, by discharging or refusing to reinstate any employee, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning union affiliation, attendance at union meetings, activities, or desires in a manner constituting interference , restraint, or coercion in violation of Section 8(a) (1). (c) Threatening employees with shutting down the plant or with other economic sanctions to discourage union affiliation or adherence. (d) In any other manner interfering with , restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local No. 54, Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their 40 N L R R. v Entw stle Mfg Co , 120 F 2d 532 , 536 (C A 4) THE FORSTON CO. 571 own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Robert M. Stahl and Clarence Wilshire, Sr., immediate and full re- instatement 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 as a result of the discrimination against them, as provided in "The Remedy" section of the Intermediate Report. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records , as set forth in "The Remedy" section of the Intermediate Report. (c) Post at his plant at Houston, Texas, copies of the attached notice marked "Appendix A." 41 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by him for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-third Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps he has taken to comply herewith.42 I further recommend the dismissal of the complaint insofar as it alleges that by the layoff of Don Edward Pemberton and Theadore Avalos, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 43 In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order 42 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read • "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the Labor Management Rela- tions Act, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Local No. 54, Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our employees or in any other manner discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively or unlawfully interrogate our employees regarding their union membership, activities, or desires. WE WILL NOT threaten our employees with shutting down our plant or with other economic sanctions to discourage their union affiliation or adherence. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist Local No. 54, Sheet Metal Workers International Association, AFL-CIO, 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 pro- tection, and to refrain from any or all such activities WE WILL offer to Robert M. Stahl and Clarence Wilshire, Sr., immediate and full reinstatement to their former or substantially equivalent positions, with- out prejudice to any seniority or other rights and privileges previously enjoyed, 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and make them whole for any loss of pay suffered as a result of the discrimina- tion against them. All our employees are free to become or remain or to refrain from becoming or remaining members of Local No. 54, Sheet Metal Workers International Associa- tion, AFL-CIO, or any other labor organization. CLAUDE E. FORSTON, D/B/A THE FORSrON CO., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Federal Office Building , 515 Rusk Avenue, Houston 2, Texas, Telephone Number, Capitol 8-0611 , Extension 271, if they have any questions concerning this notice or compliance with its provisions. The Diversey Corporation and Local 478, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 22-CA-1225. October 29, 1962 DECISION AND ORDER On August 7, 1962, Samuel M. Singer 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 attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a supporting brief. 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 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 1 and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. 1 The Respondent's offer of proof asserted merely the conclusion that Carmine Armenti was a supervisor and contained no allegations of specific facts which, if true, would establish that the Regional Director was arbitrary and capricious in rejecting the Re- spondent's contention that the Union's showing of interest in the representation case was tainted. The burden of alleging such facts is on the party seeking to attack the action of the Regional Director. Sumner Sand & Gravel Company, 128 NLRB 1368, 1371-1372, enfd , 293 F. 2d 754 (C.A. 9). 1 We do not adopt that portion of footnote 10 of the Intermediate Report referring to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, inasmuch as that section has no application where a consent -election agreement pursuant to Section 102.62 (a) of the said rules is involved. 139 NLRB No. 45.