Sakrete of Northern California, Inc.

SAKRETE OF NORTHERN CALIFORNIA, INC. 765 that it intended the percentage levy to be used for a specific purpose, such as a "defense fund assessment." I find that the percentage levy, at all times material, has been "periodic dues" within the meaning of the Act. It having been found that the percentage levy is "periodic dues" within the mean- ing of the Act and not "an assessment" I find that General Counsel has not proved that Respondent has violated either Section 8(b)(1) (A) or Section 8(b)(2) of the Act. Accordingly, I shall recommend dismissal of the complaint. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent and International are, and have been at all times material to this proceeding, labor organizations within the meaning of Section 2(5) of the Act. 2 RCA is, and has been at material times, an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of the Act. 3. The record does not establish that Respondent has engaged in the unfair labor practices imputed to it in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, it is recommended that the Board enter an order dismissing the complaint. Sakrete of Northern California, Inc. and Freight, Construction, General Drivers and Helpers, Local 287, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. G'ase No. 20-CA-2069. January 22, 1963 SUPPLEMENTAL DECISION AND ORDER' On September 24, 1962, Trial Examiner Maurice M. Miller issued his Supplemental Intermediate Report in the above-entitled proceed- ing, 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 Supplemental Intermediate Report. Thereafter, the Re- spondent and the Charging Party filed exceptions to the Supplemental Intermediate Report and supporting briefs.2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing in connection with the unfair labor practices involved 'The Trial Examiner's original Intermediate Report, which Issued on April 6, 1962, recommended dismissal of the complaint for jurisdictional reasons. For reasons set forth In its original Decision and Order, 137 NLRB 1220, the Board asserted jurisdiction and remanded the case to the Trial Examiner for the preparation and issuance of a Supple- mental Intermediate Report with respect to the unfair labor practices alleged in the complaint 2 The Respondent's request for oral argument is hereby denied as , in our opinion, the record, exceptions , and briefs adequately present the positions of the parties. 140 NLRB No. 70. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supplemental Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the following modifications and additions. The Trial Examiner found that the Respondent discriminatorily discharged its striking employees on August 16, 1961; and that these employees "may have" abandoned their strike prior to September 15, 1961, when the Respondent offered them reinstaatement. But in fash- ioning a remedy the Trial Examiner apparently assumed without qualification that the employees had abandoned the strike before September 15. We are unable, on the record before us, to make such a determination, and leave the question to the compliance stage of this proceeding. If it develops that the employees had abandoned their strike prior to the reinstatement offer, the Trial Examiner's recommendations shall apply. In such circumstances, the Respond- ent's reinstatement offer gave the employees an opportunity to resume their employment, satisfied the Respondent's obligation to reinstate them, and also tolled the Respondent's liability for further backpay s On the other hand, if it develops that the employees had not abandoned their strike before the date of the Respondent's offer of reinstatement, no backpay liability exists on the Respondent's part, the employees' strike continued to be a strike, and the Respondent continued to be obligated to reinstate them upon application. Accordingly, we shall amend the Trial Examiner's Recommended Order to provide for backpay and reinstatement of the strikers in a manner consistent with the foregoing.' We reserve the right to modify this Order if warranted by circum- stances arising subsequent to the close of the hearing in this case. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modifications: Paragraph numbered 2(b), which begins "Make whole ... ," is hereby amended by adding: "and, upon application for reinstatement, reinstate Manuel Escajeda, Rual Dean Ellis, and Juan Patino, all in the manner provided in this Supplemental Decision. Interest at the rate of 6 percent per annum, to be computed in the manner set forth s We find no merit in the union's contentions that the offer of reinstatement was not a valid offer, nor in its exceptions to the Trial Examiner's failure to order backpay from the time of discharge of the strikers rather than from the date they abandoned their strike. 'Because the employees never made an unconditional application for reinstatement, Member Rodgers does not agree with the provision for backpay from the date the em- ployees abandoned the strike , and dissents from this part of the decision See his dissent in Sea View Industries, Inc., 127 NLRB 1402. SAKRETE OF NORTHERN CALIFORNIA, INC. 767 in Isis Plumbing & Heating Co., 138 NLRB 716,5 shall be added to the backpay payments accruing under this Order." The first full paragraph on page 785 of the "NOTICE TO ALL EM- PLOYEES" is hereby amended by adding : "and WILL reinstate Manuel Escajeda, Rual Dean Ellis, and Juan Patino to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, all in the manner provided in the Board's Supplemental Decision." 5 For the reasons set forth In the dissenting opinion in Isis Plumbing, Member Rodgers would not award interest. SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Subsequent to a hearing in this case, my Intermediate Report, dated April 6, 1962, was issued. For reasons therein set forth, the conclusion was reached that Respond- ent and Sakrete, Incorporated (licensor of the Respondent firm), should not be con- sidered sufficiently integrated to merit treatment as a single firm, for jurisdictional purposes, despite their common ownership. Since Respondent's participation in commerce, when considered separately from that of its licensor, fell below the mini- mum level which the Board normally considers sufficient to warrant its discretionary assertion of jurisdiction, under presently applicable standards, recommendation was made that the complaint be dismissed. Both General Counsel and the Charging Party filed exceptions to the report. The Board's Decision and Order, dated July 10, 1962, found these exceptions meritorious. Specifically, the Board found that Respondent and Sakrete, Incor- porated, constitute a "single employer" for jurisdictional purposes. Since their business operations, considered together, meet the Board's jurisdictional requirements, jurisdiction was asserted over the Respondent firm. The case was remanded for the preparation of a Supplemental Intermediate Report concerning the merits of the complaint. Based upon the Board's determination, coupled with its decision that statutory policies would be effectuated by the assertion of its jurisdiction, factual findings have been made and conclusions drawn with respect to the remaining issues in the case. Upon the testimonial record, documentary evidence received, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE LABOR ORGANIZATIONS INVOLVED Respondent concedes that Freight , Construction, General Drivers and Helpers, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, designated as the Union in this report, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits Re- spondent's employees to membership. And I so find. Respondent further concedes, through failure to enter a denial, that Cement Proc- essors Union, designated as Cement Processors herein , is now, and at all times ma- terial has been, a labor organization within the meaning of Section 2(5) of the statute. My conclusion with respect to the propriety of such a determination- under the circumstances of this case-will be noted elsewhere in this report. II. UNFAIR LABOR PRACTICES A. Issues Substantially, the General Counsel contends that Respondent, when confronted with the Union's demand for recognition and collective bargaining : ( 1) interrogated employees concerning their union membership and activity, threatened reprisals for their continuation of union support, and promised benefits for their renunciation of union membership, assistance, or support ; (2) initiated, formed , sponsored, and pro- moted Cement Processors , and thereafter dominated and assisted that organization, contributed to its support , and interfered with its administration ; (3) temporarily 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off certain employees on June 9, 1961, and subsequently discharged employees because of their union membership or activity; and (4) refused to bargain col- lectively with the Union, as the exclusive representative of its employees, within a unit appropriate for such a purpose. Denying responsibility for the commission of any unfair labor practice, Respondent contends that: (1) various statements by the firm's managerial representatives, challenged as threats, interrogation, or promises, were really privileged; (2) management representatives played no proscribed role in the formation of Cement Processors, and negotiated a collective agreement with that organization only subsequent to its selection by company employees as their bargaining representative; (3) conceded temporary layoffs on June 9 and 10 were dictated by business considerations, and that a subsequent cessation of work by the firm's employees did not derive from their discharge; and (4) no proscribed refusal to bargain occurred, because the Union's request for bargaining related to an inap- propriate unit with respect to which Respondent was under no duty to bargain Necessary determinations with respect to the various issues thus posed will be found dependent, largely, upon credibility resolutions. B. Facts 1. First contacts On June 5, 1961, after work, Respondent's plant employees, Carl Dean Shelton and Rual Dean Ellis, together with the firm's truckdriver, Manuel Escajeda, visited the Union's San Jose office; Production Superintendent Ray Freeman accompanied them. After brief conversation with Union Representative Spottswood, the four men signed union authorization cards. (The authorization card which Freeman signed bore a written notation of his supervisory status; the word "foreman" was added ) On the morning of June 6, Spottswood visited Respondent's office, but found no management representative present. When Philip Schneider, Respondent's execu- tive secretary and plant manager, subsequently returned to his office that day, his office clerk, Mrs Kostalnick, informed him of Spottswood's visit. On June 7, Spottswood again visited Respondent's plant. When approached by Schneider, he introduced himself. Respondent's executive secretary invited him to enter the firm's office, where the two had a conversation. Spottswood reported that he had signed up Respondent's "four" employees; he added that he wanted to "talk about" a contract. (This determination rests upon Schneider's affirmative response to a leading question, presented under Rule 43(b) of the Federal Rules of Civil Pro- cedure, by the General Counsel's representative. When recalled by Respondent's counsel, the firm's executive secretary declared that Spottswood had said he wanted Respondent to "sign" -a contract The significance of this final variation in Schnei- der's testimony, however, was substantially vitiated by the concession-which he made in cross-examination-that his prior affidavit, given to a Board examiner ap- proximately 1 month after the conversation in question, had referred to the union representative's statement that he wished to "talk about" some agreement Consid- ering the circumstances under which Schneider's prior affidavit had been prepared, signed, and submitted, I am satisfied that his final testimony with respect to Spotts- wood's remark, when summoned as Respondent's witness, merits rejection. Thus, his first concession, when questioned by the General Counsel's representative pursuant to the Federal rule, stands as the only probative testimony with respect to Spotts- wood's request.) The union representative did not produce any document for dis- cussion or signature. Schneider asked to see the cards which the men had signed, but Spottswood declined to produce them. Respondent's executive secretary then declared that he would have to report the matter to his Cincinnati superior, but proffered word that he would have Respondent's local counsel contact Spottswood; the union representative was given that counsel's name and address Sometime subsequent to this conversation, Schneider reported the developments noted to Respondent's president. Testimony proffered without contradiction shows, further, that he requested Respondent's local counsel, Richard Morris, to communi- cate with the union representative. 2. Schneider's reaction Meanwhile, sometime during the afternoon of June 7, Schneider requested Free- man to ascertain the facts with respect to the union adherence of Respondent's em- ployees. Freeman responded by bringing Escajeda, Shelton, and Ellis to his superior's office. Schneider asked the men if it was true that they had signed union cards; Freeman replied that the three men had done so, but that he, himself, had not. (While a witness, Schneider sought to justify his effort to determine the facts, stating that he had been doubtful of Spottswood's declaration that Respondent's employees SAKRETE OF NORTHERN CALIFORNIA, INC. 769 had designated the Union to function as their bargaining representative, because of the union spokesman's refusal to show him any cards which the men had signed. Such a claim, considered in context, might well suggest that the executive secretary's conduct may have been privileged. The propriety of such a determination, however, will be considered elsewhere in this report.) The Respondent's executive secretary then asked what the cards were; he received no answer He was told, however, that none of the men had become union members. When Schneider asked why the men had signed cards, Escajeda cited union promises to procure them substantial wage increases. Respondent's executive secretary told the men, substantially, that they could either "go along" with the Union or form a union of their own Escajeda's testimony with respect to this portion of their conversation, which I credit, reads as follows: .. . and he said, "Well, it would be better if you could bargain with me, as a group, better than with the Teamsters. You could bargain, yourself as a group. You would be better off than bargaining with the Union." And we said that-well, he told us we could form our own group or get a union of our own, and I told him, well, that I had experience in that, because where I worked before we had our own union, and it never did come out the way it was supposed to. I said, "But, we will talk it over and see what we decide " And he said, "Either way you want it. If you want to go Teamsters, it is alight with me, or if you want to form your own group, it is still alright with me." . . . Yes. Oh, yes. He said that he didn't have much experience in . in matters of form- mg a group, but that he would have a talk with Mr. Moms, and if we wanted, he could get Mr. Morris to come and talk to us about forming our own group. . . . Well, we said that we were going to go out and talk it over. . . . About going Teamsters or forming our own group. . . . We went out. Schneider's testimony with respect to this matter, further, reveals his concession that he had (1) outlined certain good and bad features of the Teamsters' Union, and (2) pointed out that while men working under Teamsters' contracts might receive higher wage rates, men working at such rates usually were laid off when not needed. Since his recitals in this respect supplement those of Escajeda, while they reveal no contradiction, his stated recollection with respect to this portion of their conversation has been credited. Later that day, subsequent to a conversation with Respondent's counsel, Schneider told the men-despite his earlier suggestion to the contrary-that if they decided to form some union of their own, Respondent would be unable to help them in any way. The plant manager's proposal, however, was considered by the men on company time. When they left work that afternoon, pursuant to their usual practice, they went through Respondent's office. Schneider was told, substantially, that they had decided to go along with Teamsters representation rather than follow his suggestion. His reaction stands revealed in testimony provided by Escajeda, credibly, as follows: Well, he said if that is the way you want it, that is the way it is going to be, but he said, if you want to go Teamsters, we will go strictly with Teamsters' rules, Union rules. He says, from now on, if there is no delivery, you will be sent home.... While a witness, Schneider conceded telling the men that, with higher costs, they would have to be laid off when not needed, that there would be no overtime work, and that the men would be expected to produce a thousand bags per day. (Testimony which Ellis and Shelton proffered-should it be found credible-would call for a determination that Schneider referred to production requirement of 1,200 bags per day. Their testimony, however, has not been credited. Schneider testified, without contradiction, that one section of the plant machinery was geared to produce 1,500 bags per normal 8-hour day when operated by a 2-man crew; such production would require the filling, sewing, and stacking of 1 bag every 19 seconds; Schneider's stated production goal of 1,000 bags per day would require complete handling of 1 bag every 29 seconds.) When the men left Respondent's office, Freeman stayed behind. Schneider told his production superintendent, substantially, that the men were "a bunch of back-stabbing b-s" because of their reaction The record establishes, however, that this remark was not addressed to, nor intended for the ears of, Re- spondent's employees; they merely overheard it through an open window. 3. Subsequent contact with a union representative During the morning of June 8, Respondent's executive secretary saw Spottswood sitting in a car in the firm's parking lot. Queried, the union representative reported that he had not heard from Richard Morris, Respondent's counsel. Schneider replied 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Morris had tried to telephone Spottswood at least three times the previous day. When the union representative explained that he had been out of his office during the afternoon , Schneider again gave him Morris' name and address . Spotts- wood declared that he would return to his office to await counsel 's call; Schneider was advised that he (Spottswood ) expected to leave his office later, but would leave word as to where he could be reached. Respondent's executive secretary never heard from Spottswood , directly, again. Nothing in the present record, further , reveals his communication with any other management representative. 4. The temporary layoff and its consequences Production on Friday, June 9, began at approximately 7:20 a.m.; Respondent was running materials for the production of mortar mix. Operation of the plant's machinery continued-except for a brief interruption between approximately 8:15 and 8 36 a.m.-until 10:22 a.m., according to Respondent's tachograph production record. Then, pursuant to Freeman's direction, efforts were made to shift the ma- chinery to permit production of concrete mix. Since this type of mix requires a dif- ferent kind of cement than the cement used to make mortar, some suspension of operations was necessary while the men closed the bottom outlet door or gate of the mortar cement hopper. Despite their use of a ratchet wrench, which they supple- mented with vigorous pounding upon the edge of the hopper door, complete closure could not be made. (Reference to Respondent's tachograph production record re- veals that several bags of mix were run between 11:13 and 11:21 a.m.; testimony re- ceived without contradiction, however, warrants a determination that the firm's record in this respect reflects the efforts of the men to clear the machine, rather than some brief resumption of normal production) Ultimately, about 11.30 a.m., Freeman reported his difficulty to Respondent's executive secretary. Schneider inspected the door-which appears to have been relatively difficult to reach-but could not locate the trouble. By noon, despite their continued efforts, the men could only get the door half-way closed. With matters in this posture, Schneider concluded-so he testified-that "quite an amount of work" would be required to complete closure of the door on the mortar cement hopper. He told Freeman to lay off Respondent's two plant workers for the weekend, when they went to lunch. The production superintendent was also told that, since no further deliveries would be required that day, Escaleda should be laid off upon his return from the delivery with which he was then engaged. When Respondent's truckdriver returned at 12:30 p.m., Freeman gave him his check and laid him off "for the day" since no more deliveries would be required. Escajeda also learned that both plant workers had been laid off. Consultation between the truckdriver and these plant workers resulted in Escajeda's placement of a tele- phone call to Spottswood; the latter authorized the men to form a picket line, and the Union provided picket insignia. When Schneider reached Respondent's plant after lunch. Ellis, Shelton, and the truckdriver had a picket line before the premises. Freeman was using the telephone; he had placed a long-distance call to President Avril in Cincinnati. The latter had been advised of the picket line; Freeman had also told him about "some of the problems some of the men had been discussing" with respect to Schneider's treatment of them. When the plant manager's return was reported, Avril requested that he be given the telephone, and asked him what the trouble was. Schneider replied that he did not know. He was asked to bring one of Respondent's employees to talk. Escajeda was designated to speak with Avril; Schneider and Freeman listened on extension phones. When Respondent's president asked what was happening, the truckdriver confirmed the picket line's presence. Queried as to the reason, Escajeda reported that Schneider was "riding" the men all the time, and that they believed themselves entitled to more money. (Avril testified that Escajeda reported Schneider had "put pressure" on the men, and said things which they did not like. Substan- tially, therefore, his testimony confirms that of the truckdriver in this respect Respondent's president declared that he had requested Schneider to apologize for anything derogatory which he might have said, and that apologies were proffered, since his testimony in this respect reveals no conflict with Escajeda's and reflects a reaction consistent with his behavior generally, Avril's recollection relative to Schneider's apology has been credited.) Chiding Respondent's truckdriver for his prior failure to report "any labor problem" by long-distance telephone, Avril re- quested removal of the picket line. When Escajeda reported that he couldn't remove it personally, Avril asked how much the men wanted. He was told what the Team- sters Union had offered to obtain for them. After some discussion , he agreed to wage increases for Respondent's plant personnel and truckdriver; then he renewed SAKRETE OF NORTHERN CALIFORNIA, INC. 771 his request for the picket line's removal. Further conversation persuaded Avril to grant paid holidays under certain circumstances, and to confirm certain previously granted vacation benefits, and related terms and conditions of work. (According to Escajeda, Respondent's president declared, during their conversation, that he could "make it rough" for the men, and that if they wanted to "go union" the conflict could be prolonged, the truckdriver testified that Avril further said his wife could make things "really rough" for them. The latter denied any such com- ments. Upon the entire record, however-particularly certain documentary evi- dence revelatory of the positive position which "M. J. Avril" took with respect to one minor managerial detail-coupled with my observation of the witnesses, Esca- jeda's testimony has been credited.) Escajeda then conferred with Shelton and Ellis; they rejected Avril's offer, however, declaring their intention to "stick" with union representation. Respondent's truckdriver reported their decision, but promised that talks would continue . After further discussion with respect to the possibility of some wage increase, supplemented with an incentive plan, Escajeda requested a written presentation of Respondent's offer; Avril agreed, but renewed his request, once more, for the picket line's removal. Despite Avril's request, picketing continued for the rest of the afternoon. Esca- jeda, however, finally persuaded his fellow workers to accept Respondent's offer, after the firm's plant closed for the day. On Saturday, June 10, Escajeda telephoned Avril to report that the men would accept his terms. Respondent's president requested them to resume work; according to the truckdriver's credible testimony, however, Avril declared further that: "From now on if you got any problems you just place a call to Cincinnati collect and I will straighten it out." He said, "All you got to do is pick up a phone. There's three or four in the office. All you got to do is pick up a phone, ,and I will be happy to hear you out, but just keep those G- d- unions out." While a witness, Avril denied such a reference to unions; upon the entire record, coupled with my observation of the witnesses, Escajeda's recollection is credited in this connection. Later that day, Schneider presented Escajeda with a document, prepared on com- pany stationery. Headed, "Effective Immediately We Offer The Following," the document listed new wage rates, reiterated the firm's regular 40-hour workweek policy, and promised paid holidays under certain designated circumstances. It was signed by Schneider, and by Freeman as Respondent's production superintendent. (Pursuant to Escajeda's request, Schneider further subscribed to a reaffirmation of Respondent's previously declared vacation policy.) The truckdriver's testimony establishes that he requested "some protection" under Avril's terms as noted "because I [knew] Mr. Spottswood was going to try and still negotiate"; Escajeda, therefore, asked whether the men could form their own group, pursuant to Schneider's previous suggestion, for safety's sake. Schneider reported that he planned a talk with Re- spondent's counsel, and that he would let the truckdriver know about the men's formation of their own group. He also promised to have counsel prepare a new contract, which would replace the temporary document he had just presented. On June 12, when work was resumed, Schneider presented the men with a draft agreement, which he promised to mail for Avril's signature. (Respondent's president signed the document, subsequently, on June 15; the copy in evidence, however, does not include the written signatures of Respondent's employees.) In terms, this draft referred to differences with respect to wages and working conditions between Re- spondent's employees and management; the "employee group" was designated by name as Escajeda, Ellis, and Shelton. Declaring that these employees had banded together for the purpose of entering into a collective-bargaining agreement with management, the document revealed various commitments by Respondent with re- spect to wages, hours, certain fringe benefits, and conditions of work. Space was provided for the signature of each employee "individually and as a representative of said group." Further, provision was made for the signatures of Schneider and Freeman in their managerial capacity. Subsequently, Respondent's employees were presented with a five-page labor agreement. Its preamble read as follows: THIS AGREEMENT made the 16th day of June, 1961, by and between SACRETE OF NORTHERN CALIFORNIA, INC., a corporation (hereinafter the "Company"), CEMENT PROCESSORS UNION. an unincorporated, vol- untary association of the employees of the Company (hereinafter the "Union"), and each of the individual production employees of the Company (hereinafter the "Employees") except those employees, including foremen, who are a part 681-492-63-vol. 140--50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of management of the Company, is made and entered into in recognition of the following premises. References were then made to "differences" between the firm and its employees concerning wages and working conditions, the assertion by employees of their right to collective bargaining, and the enforcement of their demands through picketing of the Respondent's plant. Respondent's workers were characterized as having "volun- tarily joined themselves together" within Cement Processors for the purpose of col- lective bargaining through that organization as their "sole" representative. The con- tract declared the intent and purpose of the panties that their agreement would pro- mote and improve industrial and economic relationships between Cement Processors and Respondent by setting forth basic agreements concerning rates of pay, hours of work, and conditions of employment. Substantively, the document contained a rec- ognition clause, provisions with respect to pay scale, hours of work, paid holidays, vacations, terminations, garnishments, group insurance, grievances, and arbitration. By its terms, the agreement was made effective for a 1-year term, and from year to year thereafter, subject to a 30-day notice of termination. The agreement was signed by Avril, Schneider, and Freeman, for the Respondent firm; under the hand- printed designation "Cement Processors Union," Escajeda, Ellis, and Shelton signed individually and as a representative of said "Union." On June 20, 1961, a modifica- tion of this agreement, specifically directed to the contract's provision regarding hours of work, was executed by the same parties; Esoaleda, Ellis, and Shelton once more signed individually and as Cement Processors representatives. 5. Renewal of the picket line On July 25-for reasons not specified-Respondent's truckdriver and production employees again signed cards which authorized the Union to engage in collective- bargaining negotiations on their behalf. Freeman, likewise, executed such a card, on the card, once more, he noted his employment with Respondent in a supervisory capacity. (These cards were signed by Escajeda, Ellis, and Jimmie R. Durant, the latter had replaced Shelton in Respondent's employ.) By August 12, Schneider had learned of this development Credible testimony reveals his preparation of a note for Freeman which instructed the latter to ascertain if the men had in fact signed such cards. The production superintendent reported that they had. Early on August 15, Schneider advised Freeman that he intended to discuss with Al Scaffone, operator of a local truck delivery service, the possibility of contracting out Respondent's current delivery functions. The production superintendent's testi- mony with respect to this conversation, which I credit, reveals his query as to whether this would mean getting rid of Respondent's truck; Schneider replied that it probably would. (Freeman testified further, with respect to a purported comment by Schneider that if Respondent disposed of the truck and its driver, the Union's ground for nego- tiations would be dissipated; he reported that Schneider has asked what the Union would think of such action Respondent's executive secretary, however, denied mak- ing such remarks; he testified, rather, that Freeman had made the first reference to the Union, saying substantially that Schneider's purposed action would make that organization unhappy. Determination of the issues posed by the complaint, however, will not require my resolution of this testimonial conflict.) Later that day, Schneider did, concededly, confer with Scaffone, regarding the possibility of contract- ing out Respondent's truck delivery operation On the morning of August 16, Respondent's employees renewed their picket line before Respondent's plant. They wore armbands by which they were identified as union pickets. The group, included Escajeda, Ellis, and Juan Patino, Durant's replacement. Freeman, presumably not a picket, nevertheless remained outside the plant. Record evidence establishes that Respondent's plant workers decided to renew their picket line because of information received from Freeman regarding Schneider's purported plans for the business. Since Freeman's remarks concededly motivated this renewal of the prior picket line, testimony with respect to their content was proffered and received. Freeman testified that-during his lunch hour on August 15 after his previously reported conversation with Respondent's executive secretary-Mrs Kostalnick, the firm's office worker, told him that she had overheard a telephone conversation between Schneider and Avril, during which Schneider had revealed his intention to "get rid" of Escajeda first, followed by the remainder of Respondent's employees, Freeman included, when he could find a satisfactory reason. Juan Patino and Mrs. Freeman, who had brought her husband's lunch, corroborated the production super- intendent's testimony with respect to the "bookkeeper's" report. While a witness, SAKRETE OF NORTHERN CALIFORNIA, INC. 773 however, Mrs. Kostalnick denied any statements to Freeman consistent with those which he attributed to her; further, she denied their truth and testified, contrariwise, that Freeman had been the source of her information regarding Respondent's plan to eliminate the truck. No resolution of the testimonial conflict between Mrs. Kostalnick and the produc- tion superintendent with respect to the content of their conversation would seem to be required; regardless of its real content, Freeman's version of the purported conversation communicated to the plant crew clearly motivated their August 16 decision to cease work, and the concurrent renewal of their prior picket line. See Lawlor v. Loewe, 235 U.S. 522, 536: Wigmore, Evidence, vol. 6, §§ 1714, 1729, 1789, 1790 (3d ed. 1940) in this connection. When Schneider reached Respondent's plant that morning, he found the plant workers on picket duty, with Freeman present. Summoning the production super- intendent to his car, Respondent's executive secretary queried him as to the reason for his common cause with the pickets And Freeman's testimony with respect to their conversation, which I credit, reads as follows: Well, Mr. Schneider arrived, he had the bookkeeper with him and he asked me what this was all about, when he saw the men on picket, and he said, "Specially you." And I told him, from the report that I had received from his secretary, that all of us there was-he was telling Mr. Avril over the tele- phone that we was a no good bunch of guys and that he had intentions of getting rid of all of us, and that I had to have a source of income for my family, so that I had either to be guaranteed my job, or I would have to go and look for one ... he said that I could still come in the warehouse, so I told him will the Company guarantee my salary to sit in behind locked doors with no crew, and he said, "I don't know." I asked him if he could, and he said he couldn't, and I said, "Well, I will just stay here and wait and when my wife comes over, she can clarify the stories she heard from the bookkeeper, but I can't afford to go in there and not have a job and turn against the Union and not be able to get a Union either, and I would be stuck with no income at all." Schneider telephoned Avril, and left the plant for a short time. Upon his return, he stopped his car in the plant driveway and once more summoned Freeman. Mrs. Freeman was also present and came over to Schneider's car with her husband. Conversation followed. (Credible testimony reveals that Schneider's car was stopped within a short distance of the public highway. Testimony proffered by various workers then on picket duty reveals their presence within 10 to 15 feet of Schneider's car. wi hin hearing distance of his conversation with Respondent's production super- intendent Upon the entire record, and my observation of the witnesses, I am satisfied that these pickets were in a position to hear what was said ) Mr. and Mrs. Freeman told Schneider that Mrs. Kostalnick had reported to them, previously, his plans to discharge everyone Schneider denied the truth of any such report, possibly made by the firm's bookkeeper, saying that Respondent's production superintendent should have known better than to believe her. He declared, however, that since Freeman possessed managerial responsibilities his cessation of work constituted a termination of his employment. Finally, Freeman was told-loudly enough, I find, for the pickets to hear-that as of noon that day the plant was officially closed and everybody there discharged. Schneider declared that he wanted the men to surrender their plant keys and uniforms, he promised that their final checks would be ready the next day, suggesting that they could pick up the checks when their uniforms were returned. According to Schneider, Freeman was merely told that, since all of the men were on strike, Respondent's plant would be unable to operate. Respondent's plant manager declared that his demand for the surrender of plant keys and uniforms was not meant to suggest their discharge; according to Schneider, Respondent's employees were asked to turn over their keys merely because be did not wish strikers to have plant access, while their uniforms were requested because rental charges by the laundry supply house which provided them could only be tolled by their return Regardless of Schneider's purported rationale for his demand that Respondent's plant workers surrender their keys and uniforms, his denial of any verbal reference to their discharge cannot be credited. Concededly, Freeman and his wife, Escajeda, and Respondent's plant workers recalled Schneider's declarations with respect to their termination in substantially parallel language. Parallelism in testimony how- ever-while suggestive of some consensus previously reached-does not necessarily dictate such testimony's rejection. While on the witness stand, Freeman, together with the General Counsel's rank-and-file witnesses, struck me as candid; nothing in the demeanor of these witnesses, nor the content of their testimony, suggested guile, 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disingenuousness, or calculation. Further, with due regard for the record testimony relative to their physical disposition, I am satisfied that various witnesses who testified regarding Schneider's pronouncement were in a position to hear. Freeman and his wife clearly were addressed directly; Patina .and Ellis were within 12 to 15 feet. Escajeda, though probably somewhat further removed, was within hearing distance of statements made in normal conversational tones. While Schneider's declaration may not have been directed to the men, transmittal of his remarks must have been foreseen or desired, since he coupled them with a demand that plant keys and uniforms be surrendered. Considered in context, therefore, Schneider's denial of any reference to discharges must be rejected. On Thursday, August 17, Freeman nand the men received their paychecks for the week; the plant keys and uniforms previously in their possession had been first surrendered. Freeman's regular check bore a notation which indicated his "voluntary termination of employment" as of August 15; the checks of Escajeda and the plant workers bore no comparable notation. (Respondent's regular payday was Friday. Record testimony, however, reveals that Thursday paydays were not unusual; the men were thereby enabled to deposit or cash their paychecks before the weekend. For 3 weeks immediately preceding, Thursday had been payday. With matters in this posture, Respondent's preparation of paychecks for Thursday distribution could not be considered, per se, demonstrative of the men's discharge. Respondent, however, would have the Board go further; the contention has been made that lack of any notation with respect to termination, placed on the paychecks distributed to Escajeda and the plant workers, would justify the conclusion that they were not really dis- charged. Considered in context, however, this contention fails to persuade. Re- spondent's normal practice, indeed, may have been to note "termination pay" some- where on the face of a terminated worker's final paycheck; further, such a practice may have been followed on July 20 when Shelton was terminated, and when Re- spondent's janitress was terminated concurrently with the plant's August 16 closure. When Schneider was asked, however, whether he had a present recollection as to whether his notation "termination pay" had been placed on the latter check, which the janitress received, before that check was signed, he first purported to misunder- stand the question. When it was renewed, his response was evasive. Only when queried sharply, for the third time, did he respond affirmatively. While the lack of such a notation on checks received by Escajeda, Patino, and Ellis might, therefore, suggest the propriety of a determination that such checks did not represent termina- tion pay, such a deduction cannot be considered compelled. Schneider's comments the previous day-coupled with his demand for the surrender of plant keys and uniforms, regardless of his subjective motivation-were reasonably calculated to generate a belief, clearly shared by each of the check recipients, with respect to their discharge.) Nothing in the present record will warrant factual conclusions with respect to the continued presence of a picket line at Respondent's plant; Patino was queried with respect to his presence on such a picket line through August 20, which would have been Sunday, but his negative response merely establishes that he, per- sonally, was not there. The General Counsel's original complaint had not referred to August 16 dis- charges. These were first charged through a complaint amendment filed on Septem- ber 6. Thereafter, on September 15, Schneider wrote Escajeda, Patino, and Ellis, as follows: We note an amended complaint recently received from the regional director of the National Labor Relations Board that you apparently are laboring under the misapprehension that on August 16, 1961, we discharged you. We did not discharge you, and this letter is written to make it perfectly clear that your job is still open to you. None of the workers, however, responded. When the hearing in this case began, September 20, 1961, Patino described himself as unemployed. Escajeda testified that he had started work on a new job September 15. Ellis, testifying on Septem- ber 21, revealed that he had started work elsewhere just 1 week before. C. Conclusions 1. Interference, restraint, and coercion The General Counsel charges that Respondent's executive secretary questioned the firm's employees concerning their union membership and activity. Testimony proffered without contradiction, however, reveals that Schneider merely requested Freeman to discover whether the men had signed union cards; Freeman then brought Escajeda, Shelton, and Ellis personally to his superior's office. Schneider renewed SAKRETE OF NORTHERN CALIFORNIA, INC. 775 his query; Freeman's positive reply in the men's stead was proffered in ,their presence. Confronted, thereby, with confirmation of Spottswood's claim, Schneider pressed more questions. When he questioned the significance of the cards he received no direct response, save a declaration that none of Respondent's workers had become union members. When he questioned the men's motivation, however, Respondent's truckdriver cited the Union's promise to procure them substantial wage increases. Concededly, this Board has rejected contentions that interrogation should be con- sidered, per se, unlawful. Blue Flash Express, Inc., 109 NLRB 591. When it is clear from the record, for example, that some respondent merely desired to ascertain whether the union which had demanded recognition actually represented an em- ployee majority, interrogation may be considered legitimate, provided that questions framed for that purpose are communicated to employees with a legitimate explana- tion for their presentation and with assurances against reprisal, and provided further, that such questions are presented under circumstances free of any suggestion of hostility to unions. See Blue Flash Express, Inc., supra, explained and distinguished in Burke Golf Equipment Corporation, 127 NLRB 241, 245; further, cf. Cosmopoli- tan Studios, Inc., 127 NLRB 788, 791. Record testimony, herem, reveals that Schneider proffered no legitimate explanation for his questions-though Spotts- wood's reluctance to display the designation cards signed by Respondent's complete plant complement could have been cited as his reason-and made no promise to forswear reprisal. Further, while nothing in Schneider's prior conduct could have been considered suggestive of Respondents hostility to unionization-sufficiently to call for characterization of his questions, ab initio, as questions invested with coercive character, his immediately subsequent statements and conduct, however, fully reveal his desire to subvert the plans of Respondent's rank-and-file workers for union representation. (Decisional doctrine, judicially approved, clearly justifies judgment with respect to the legitimacy of questions based upon conduct immediately subsequent to their presentation, which would necessarily form part of their context. While the Board's Blue Flash decision noted that the questions challenged therein had been presented in a "background" free of employer hostility to union organiza- tion, reference was made to the lack of credible evidence that respondent therein "at any time" made threats or promises violative of the statute. Further, the Board disclaimed any determination that interrogation "must be accompanied by other unfair labor practices" before it could be found proscribed; the Board's decision was characterized as a determination that challenged interrogation must be judged "when viewed in the context" within which it occurred.) Herein. Schneider's bald questions, considered in their final context, were clearly invested with a restraining and coercive character. Cf. Syracuse Color Press, Inc., 103 NLRB 377, enfd. 209 F. 2d 596 (C.A. 2), cited with approval in Blue Flash Express, Inc., supra; The Bendix Corporation, Research Laboratories Division, 131 NLRB 599, 604-605, enfd. 299 F. 2d 308 (C.A 6). Consistently with General Counsel's contention, therefore, I find that Schneider's questions, directed to Respondent's plant personnel, interfered with, restrained, and coerced such personnel within the meaning of the statutory proscription. Schneider's declaration during their June 7 conversation, that whatever the men decided to do about unionization would be fine with him, cannot really be said to require a contrary conclusion; the plant manager's subsequent comments when told of the men's decision to "go along" with Teamsters representation, clearly reveal that he had merely given prior lipservice to neutrality concepts, presumably to win some favorable reception for his suggestion that the men bargain through a group of their own formation. While a witness, Respondent's plant manager conceded a subsequent declaration to plant workers that, with higher costs which might reasonably be expected because of their desire for Teamsters representation, they would be subject to layoff when- ever their services were not required, that work beyond their normal hours would be reduced, and that work efforts geared to produce 1,000 bags per day would be required. (Substantially, Schneider told the employees that their decision to "go along" with union representation would cause Respondent to follow "Teamster" rules; actually, that comment by the plant manager meant, I find, that Respondent would react to the Union's presence by adopting a rigorous cost-cutting program, pursuant to which they would be required to work harder, and would find their income-producing work time reduced. General Counsel contends that such pronouncements, translated, threatened Respondent's workers with "layoffs, work speedup, and reduction in hours" because of their decision . With the record in its present posture, this contention must be considered meritorious. N L R.B. v. Kit Manufacturing Com- pany, 292 F. 2d. 686 (C.A. 9), enfg. 127 NLRB 776; N.L R.B. v. Abrasive Salvage Company, Inc., 285 F. 2d 552 (C.A. 7), enfg. 127 NLRB 381; Stewart Hog Ring 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, Inc., 131 NLRB 310, 337-338; Morris and David Yoseph, d/bla M. Yoseph Bag Company, 128 NLRB 211, 217. I so find. 2. The temporary layoff Considerable testimony was proffered relative to Respondent's June 9 difficulty, which involved the plant crew's effort to close the door or gate of the hopper which contained mortar cement. General Counsel contends credible evidence reveals that the hopper door's malfunction on this occasion was "not unique" and that the crew had successfully wrestled the stuck door into a half-closed position before lunch; upon such factual premises, his representative suggests that the door's malfunc- tion presented no serious problem and that Schneider's true reason for temporary June 9 layoffs was to punish Respondent's crew for their decision in favor of union representation. Respondent contends, however, that the hopper door had never been stuck previously. Further firm counsel suggest that Schneider had reasonable grounds for belief that the stuck door could not be forced shut, and that several hours would be required for location and correction of the trouble; for these reasons, Respondent contends, Ellis and Shelton were laid off for the weekend. While a witness, Schneider merely mentioned that the "plant breakdown" provided the motive for his decision. His production superintendent was more specific. When questioned with respect to the reasons which his supervisor had given for his layoff decision, Freeman testified, credibly, as follows: Well, there was no deliveries for the truck Friday afternoon; therefore, they wouldn't need to have the truckdriver there, and then after we was having the trouble with this hopper door being hard to close, he said it wasn't compulsory. He had plenty of stock. Wasn't compulsory to have the men that afternoon, so he laid the men off, too. The production superintendent passed the word, and the crew left Respondent's plant. Establishment of their picket line followed. Consideration of this testimony, within its total context, convinces me that the temporary June 9 layoff was, really, discriminatory. Whatever judgment might be warranted with respect to the seriousness of the hopper door breakdown, no credible justification for the complete cessation of plant operations has been proffered. Testimony, presented without contradiction, reveals that Respondent's truckdriver and plant crew normally devoted Friday afternoon and Saturday to plant cleanup, yet the firm's plant manager suggested no such cleanup work when difficulty with the hopper door prevented further production. Respondent has proffered no explana- tion for this departure from previously normal weekly routine Further, Schneider's stated lack of concern regarding the machine breakdown because Respondent had "plenty of stock" reflects a lack of consistency. Concededly, the summer months-particularly the month of June-were considered part of the firm's "best season" from the viewpoint of sales volume. Continued production was needed. Respondent's plant manager had previously besought the crew to speed normal production; just 2 days before he had cited Respondent's need for production of 1,000 bags per day. Further, since the latter part of May, Respond- ent's production crew had included three full-time workers and one part time worker; 9-hour days for the full-time workers had been customary, with Saturday "generally" worked as a cleanup day. Under such circumstances, Schneider's pro- fessed lack of concern regarding the suspension of production at noon, Friday, particularly in view of his lack of certainty with respect to prospects for the stuck door's repair, clearly reflects his readiness to put aside-temporarily at least-con- ceded demands for stepped-up production. Schneider's conduct in this respect can only be considered consistent with his prior declaration that the plant crew's decision to retain union representation would result in layoffs and lost chances of overtime work And, with matters in such posture, General Counsel's contention with respect to Respondent's questionable motive for the temporary layoffs, previously noted, must be considered meritorious. 3. Further interference, restraint, and coercion During Avril's June 9 conversation with Escajeda, clearly, Respondent's president promised raises and paid holidays; concurrently he confirmed certain previously granted vacation benefits, coupled with Respondent's recognition of a regular 40- hour workweek. Credible testimony reveals that these concessions were coupled with a request for removal of the picket line set up by Respondent's crew with union sponsorship. Further, Escajeda's credible recitals reveal that Avril, whom Schneider had previously apprised of Spottswood's visit, went on to declare, during SAKRETE OF NORTHERN CALIFORNIA, INC. 777 their conversation, that if the men persisted in their desire to "go union" conflict could be prolonged. When the plant crew decided to accept Avril's terms, he prom- ised, finally, that he would "hear [them] out" with respect to any future problems, provided that "unions" were kept out of the company's plant. Respondent contends, however, that Avril did not mention Teamsters and did not condition his concessions upon the plant crew's willingness to relinquish Team- sters representation; Respondent's president testified that his sole concern was to get the plant back in operation. Realistically, this may have been his immediate concern; record testimony, however, will fully support a determination that his concessions were reasonably calculated to subvert the plant crew's demonstrated disposition to seek better wages and working conditions through union representa- tion. True, Avril may not have mentioned Teamsters, specifically, as a matter of concern. Nevertheless, despite his complete awareness of Spottswood's prior visit and the Union's claim to represent the firm's workers, Respondent's president solicited consultation directly with an employee spokesman, questioned that spokesman with respect to crew demands, and presented counterproposals. Successful negotiations, conducted directly with the firm's workers-without regard for the prior designation of Teamsters as their bargaining representative-certainly must be considered rea- sonably calculated to persuade them that such union representation would not be required to guarantee their satisfaction. Further, such conclusions-clearly drawn by Escajeda, for example, following their telephone conversation-could only have been buttressed by Avril's final promise that he would "straighten out" any problems which the men presented if they would only keep "unions" from Respondent's plant. Considered in context, therefore, Avril's promise with respect to raises and holiday pay, coupled with his reaffirmation of Respondent's prior policy with respect to other fringe benefits, clearly merits characterization as interference, restraint, and coercion statutorily proscribed. Cf. N.L.R.B. v. West Coast Casket Company, Inc., 205 F. 2d 902, 905 (C.A. 9), in this connection. 4. Cement Processors Reference has previously been made to General Counsel's characterization of Cement Processors as a labor organization, within the meaning of Section 2(5) of the statute. Respondent has been charged with the initiation, formation, sponsorship, and promotion of Cement Processors; further, General Counsel contends that Re- spondent dominated and assisted the designated group, interfered with its admin- istration, and contributed to its support. Respondent concedes Schneider's June 7 comment that his plant crew could form their own union, and that things "would be better" if they could bargain directly with him, rather than through Teamsters representation. Further, Respondent con- cedes the plant manager's promise to confer with local counsel about helping the men form their own organization, should they decide upon such a course. (While it is true that Schneider's offer-with respect to local counsel's help-was subse- quently withdrawn when he told the plant crew, subsequent to consultation, that the firm's lawyer would be unable to provide them with promised help, General Counsel notes, correctly, that the plant manager's withdrawal of his prior offer did not de- stroy the impetus to formation which that suggestion had previously provided.) Contrary to Respondent's contention, Schneider's comments may not be dismissed as legitimate "views, argument or opinion" favorable to the concept of self- organization by Respondent's employees for collective-bargaining purposes. Such a course, which the firm's plant crew had not previously considered, was positively recommended; Schneider suggested that the men would be "better off" should they bargain for themselves as a group Such verbal conduct-whenever it has con- tributed impetus to the formation of a labor organization-normally has been con- sidered probative of a statutory violation. Questions remain, however, with respect to the status of Cement Processors as a labor organization. Documents and testimony proffered for the record reveal that Schneider's concept of a workers' group, formed to bargain collectively with the Respondent firm, was first rejected by Escajeda and the plant crew. Despite the record's clear revelation that Respondent's truckdriver, later, queried Schneider with respect to formation of an employee group, pursuant to the plant manager's previous suggestion, no positive steps toward such a group's formation were ever taken by the firm's workers. So far as appears. Cement Processors. throughout the period with which this case is concerned, merely represented a subjective conception which Re- spondent's plant manager and counsel attempted to foist upon plant employees. On June 12, when Escaieda, Shelton, and Ellis were presented with conies of a draft contract which Avril subsequently signed they found themselves designated collectively therein as the "employee group" which had differed with management; 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since relevant documents and testimony give no indication that they ever signed the draft contract in question, no presumption can be indulged that they were resigned or receptive to such a designation. Later, documents were presented for their sig- nature which purportedly constituted a contract between Respondent and Cement Processors; each of the workers was requested to sign such documents individually and as representatives of the designated organization . No such organization had previously been created, however. (Schneider's testimony that he supplied the name of Cement Processors to Morris, for use as the name of a contract party, after the employees had given that name to him as the name of their organization, has not been corroborated.) Born as some sort of conceptual device purportedly designed to supplant Teamsters as the plant crew's designated representative, Cement Proc- essors never achieved viability beyond its designation, strictly on paper, as a contract party. Though Respondent's truckdriver and plant crew clearly functioned in con- cert, both before they signed Respondent's June 16 contract and thereafter, nothing in the record really warrants a determination that they functioned, pursuant to plan, as a group "organized" for collective-bargaining purposes. Realistically viewed, Cement Processors would seem to merit designation as noth- ing more than "cover" for the direct negotiations which Respondent conducted with its employees; the firm's local management, which had failed to convince plant per- sonnel that matters of group concern would be better handled through an organiza- tion of their own, seems to have conceived Cement Processors- designating it nom- inally privy to a document which reflected certain concessions for employees- merely to create the illusion of collective, rather than individual, bargaining. Cf. Republic Drill & Tool Company, 66 NLRB 955, 969-970. I so find. (Representa- tives of the General Counsel have, themselves, revealed the organization's will-of-the- wisp character. Their belated effort to serve Cement Processors with a notice of the original charge in the present case was addressed to the organization in care of Escajeda; however, no notice of a first amended charge, subsequently filed, was ever directed to anyone in the organization's name. Notice of a second amended charge, with a September 5 filing date, was served upon Cement Processors in Respondent's care; Schneider signed the return receipt in Respondent 's name. On September 6, the General Counsel amended his complaint. A copy of the amendment was served upon Cement Processors in Escajeda's care, accompanied by belated service of the General Counsel's original complaint and notice of hearing and an order re- scheduling the hearing which had not previously been served upon the designated organization. Finally, the General Counsel's second amendment to the complaint, dated September 12, was served upon Cement Processors in Respondent' s care; no return receipt acknowledging such service has been submitted as part of the formal record.) General Counsel, nevertheless, calls attention to the fact that the status of Cement Processors as a labor organization, within the statute's meaning, has not been controverted; Respondent's failure to deny the relevant complaint allegation in this respect-so the argument runs-must be considered equivalent to an admission with respect to its truth. Concededly, the General Counsel's representative did refer to this posture of the pleadings before his testimonial presentation began; no one, thereafter, proffered evidence relative to the legal status of the purported organiza- tion. Clearly, this facet of the General Counsel's case, having been taken for granted, was never litigated. With matters in this posture, his representative contends that the status of Cement Processors as a labor organization cannot, properly, be ques- tioned; further, General Counsel argues record evidence will support determinations that Respondent dominated and interfered with the formation and administration of Cement Processors, and contributed financial or other support to that body. Section 102.20 of the Board's Rules and Regulations does provide that complaint allegations not specifically denied or explained, within answers duly filed, shall be deemed to be admitted to be true, and shall be so found by the Board, unless "good cause to the contrary" has been shown. Quare: May record proof which reveals that some "labor organization" has nothing more than a sort of ephemeral paper existence constitute good cause for the rejection of a constructive admission-subject to characterization as a concluseon-relative to its viability and legal status? If the Board could be sure that Cement Processors would never become anything more than a paper concept, Respondent's proven disposition to rely upon such a concept to mask its direct negotiations with employees could probably be proscribed on the basis of determinations that management's conduct merited administrative sanctions under Section 8 (a)(1) and (5) of the statute. Since, however, the possibility cannot be discounted that Respondent might subsequently promote the formation of a viable group, qualified to function as some sort of real manifestation of the Cement Proces- sors concept, I am pesuaded that Section 8(a)(2) determinations , bottomed spe- cifically upon Respondent's constructive concession with respect to the status of the designated group, would be proper. ( Since Respondent has conceded Cement SAKRETE OF NORTHERN CALIFORNIA, IN C. 779 Processors' status as a labor organization , and since no question has been raised with respect to the service of necessary Board process on the group thus designated, Section 8 ( a)(2) determinations would seem to be proper regardless of any doubts that might be present with respect to the adequacy of the Board's service. Cf. Republic Drill & Tool Company, supra, at 958, 971, in this connection.) With the record in its present posture, therefore , I find that Respondent initiated, formed, sponsored, and promoted Cement Processors ; further, since that "employee group" stands revealed as Respondent 's creation in every sense of the word , I find that Re- spondent has dominated and assisted the group , interfered with its administration, and contributed to its support. 5. August 16 discharges Reference has previously been made to General Counsel 's claim that Escajeda, Ellis, and Patino were notified of their discharge when Schneider declared Respond- ent's plant closed. Respondent, however, has taken the position that any determina- tion consistent with the General Counsel 's claim would be contrary to the record. Previously, my factual determination with respect to this conflict has been noted; testimony by Freeman with respect to Schneider 's pronouncement , which the General Counsel's other witnesses corroborated, has been credited . With matters in this posture, Schneider 's conceded failure to apprise Respondent's truckdriver and plant workers, personally, that they were fired or otherwise terminated , cannot be con- sidered significant. Whatever further factors may have motivated the plant man- ager's later course of conduct, there can be no doubt that his final demand for the surrender of their plant keys and uniforms-since it was made in conjunction with a public declaration relative to the plant's closure and the crew's discharge-conveyed the necessary termination message. When called by the General Counsel as a witness in rebuttal, Schneider testified that he had requested the men to surrender their plant keys on August 16 because there was "no need" for them to have plant access while on picket duty; he insisted, however, that he had anticipated they would work "further" for the Respondent firm. Schneider's testimony , nevertheless , reveals that-despite his expectation with respect to the eventual reemployment of the men-he had had all of the plant's locks changed early on the afternoon of August 16. Such drastic action-reasonably calculated to forestall any possibility that the men might secure plant access with privately duplicated keys-clearly merits characterization as most consistent with a decision to dispense with their services completely ; I so find. Since Schneider's course of conduct clearly reflected his reaction to the employees' cessation of work and their establishment of a picket line, a Board determination would be fully warranted that Respondent thereby discriminated with regard to their hire or tenure of employment , to discourage union membership . Upon the entire record, I so find. 6. Refusal to bargain a. The bargaining unit and the Union's status as a majority representative General Counsel contends and Respondent concedes, through its failure to controvert the General Counsel's contention, that the following described employee group constituted, throughout the period with which this case is concerned, and presently constitutes, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the statute: All production and maintenance employees of Respondent employed at its Milpitas, California plant ; excluding office clerical employees , plant clerical em- ployees, guards, and supervisors as defined in the Act. With the record in this posture, Board determination that the group thus defined constitutes a unit appropriate is clearly warranted. Throughout the period with which this case is concerned , the group thus defined consisted of Respondent 's truckdriver and two plant workers ; Freeman, though pre- sumably responsible for certain production and maintenance functions, clearly mer- ited designation as a supervisor . By June 5, 1961 , Respondent's complete production and maintenance crew, which comprised the group herein found appropriate for the purposes of a collective bargain, had designated or selected Teamsters as their repre- sentative for such purposes . Credible testimony and documentary material reveals, despite Respondent's formal denial, that the Union designated, at all times material subsequent to that date , has continued to represent Respondent's employees within the unit previously described . I so find. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Demand and refusal Respondent contends, however, that Spottswood's only bargaining request related to a unit which was not appropriate-one with respect to which Respondent, therefore, was under no duty to bargain. Within company counsel's brief, this contention has been amplified as follows: When Spottswood said that he had signed the four men and wanted a con- tract, he was saying as clearly as if he had spelled it out that he wanted a contract covering the four men to whom he had just referred 'as having signed. One of these men was Freeman. A unit which includes a supervisor is not appropriate and a refusal to bargain with respect to such a unit is not a violation of the Act. Schneider's testimony, however, that Spottswood requested Respondent to forthwith "sign" some sort of contract, however, has been rejected. Such credible testimony as the record provides, therefore, will not warrant Respondent's requested determina- tion that Spottswood requested bargaining for workers within some inappropriate unit Further, no testimony was proffered to suggest that Spottswood's request for a chance to discuss such a contract was rejected on the stated ground. Respondent's plant manager testified that Spottswood had reported the Union's designation by four ' employees" generally; yet Schneider, despite his presumptive knowledge that the plant's production and maintenance crew then consisted of three full-time workers and their production superintendent, raised no question with respect to Spottswood's claim. (Under such circumstances, Spottswood's failure to make explicit represen- tations with respect to Freeman's exclusion from possible contract coverage cannot be considered tantamount to a demand for his inclusion.) Since nothing in the record, then, suggests Spottswood's fixed determination to bargain for supervisors, despite his reference to the Union's designation by four employees, any contention that his request for contract discussions necessarily covered some group which could not be considered appropriate for collective-bargaining purposes, must be rejected. Cf. Dallas Concrete Company, 102 NLRB 1292, enfd. 212 F. 2d 98 (C.A. 5), in this connection. True. Schneider did respond with a promise to have his firm's local counsel com- municate with the Teamsters' representative. When told, subsequently, that cir- cumstances had prevented such communication, Schneider did renew his proffer of counsel's name and address General Counsel, however, makes no contention that Schneider's direct contacts with Spottswood reflect Respondent's refusal to bargain; counsel's brief, filed in behalf of the Respondent firm, correctly notes that manage- ment's "subsequent conduct" has been cited to justify the refusal to bargain charge. And considered as a whole, Respondent's course of conduct-beginning with its management's June 9 reaction to the picket line-does merit characterization as a refusal to bargain collectively with union representatives. Decisional doctrine, judi- cially approved, has long since established the principle that an employer's duty to bargain collectively with the chosen representative of his employees, being exclusive, exacts the negative duty to treat with no other. Medo Photo Supply Corporation v. N.L.R.B., 321 US. 678, 683-685 When despite his knowledge with respect to Spottswood's claim, Avril commenced and consummated negotiations with Escajeda treating him as a spokesman for Respondent's workers, management's disregard for its statutory duty was clearly manifested. Respondent's disposition toward a course of conduct calculated to forestall any necessity for negotiation with the properly designated representative of its workers was clearly foreshadowed by Schneider's comment that they would be better advised to form their own group for negotiations. And when direct dealing between Avril and Esoajeda finally led to a consensus, pursuant to which Respondent's crew was persuaded to continue work, the firm's management quickly seized a chance to formalize that consensus through a contract which Respondent had purportedly negotiated with Cement Processors; though supposedly privy to that contract as an "unincorporated, voluntary association" of Respondent's employees, Cement Proc- essors was clearly management's creation, reasonably calculated to supplant Team- sters as its employees' collective-bargaining representative. Whether Respondent's designation of Cement Processors as the party privy to the contract created a viable group or mere "paper tiger" there can be no doubt that its conception reflected man- agement's desire to cut off any legal requirement that it negotiate with union repre- sentatives Thus, when Respondent procured Escajeda, Ellis, and Shelton to sign its proffered June 16 contract, both individually and as Cement Processors repre- sentatives, management's refusal to bargain collectively with the Union herein, con- sistently with statutory requirements, was complete. Cf. Philamon Laboratories, Inc., 131 NLRB 80, 92-93, in .this connection. SAKRETE OF NORTHERN CALIFORNIA, INC. 781 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, having occurred in connection with the business operations described in the Board's decision, mentioned above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, absent correction, would tend to lead, and in this instance have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Since it has been found that Respondent did engage in and continues to engage in unfair labor practices, it will be recommended that the firm cease and desist there- from and take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. It has been found, specifically, that the relationship between Respondent and Cement Processors, established as a result of Respondent's conduct, legally con- stitutes domination and interference with the formation and administration of that organization, coupled with the contribution of proscribed support. It will be recom- mended, therefore, that Respondent cease and desist from such conduct, and that it cease and desist from interference with the representation of its employees through a labor organization of their own free choice. Further, because of my determination that Cement Processors-should it ever achieve more than paper reality-could only function as a dominated organization, recommendations will be made that Re- spondent withdraw recognition from it and completely disestablish it as the representa- tive of company employees, for the purpose of dealing with the Respondent firm con- cerning grievances, labor disputes , wages, rates of pay, hours of employment, or other terms or conditions of employment; Respondent should refrain from recogniz- ing Cement Processors, or any successor organization, for any of the foregoing purposes. Concurrently, recommendation will be made that Respondent cease giving effect to its July 16, 1961, agreement purportedly reached with Cement Processors, or any supplements or other contracts with that organization. This recommendation, however, should not be construed to preclude the firm from continued effectuation of all the substantive terms, conditions of employment, and benefits set forth in such agreements; my recommendation is intended merely to deprive Cement Processors of status as an employee representative , privy to trade agreements. Additionally, it has been found that Respondent discriminated, twice, with respect to the hire, tenure, and employment conditions of certain employees to discourage their union membership, in violation of Section 8(a)(3) of the Act, as amended. Discrimination was found, first, with respect to the June 9 temporary layoff; further discrimination was found with respect to Respondent's August 16 discharges. Nor- mally, such determinations would call for a recommendation that employees dis- charged should be proffered immediate and full reinstatement to their former posi- tions or substantially equivalent employment, without prejudice to their seniority or other rights and privileges. The record establishes, however, that Shelton was terminated before the August 16 discharges, and that Respondent offered the dis- charged workers appropriate reinstatement on September 15, 1961; so far as the record shows , none of the discriminatees has accepted reemployment. My recom- mendations, therefore, will be limited to recommendations that Respondent make whole Escajeda, Ellis, Shelton, and Patino for any loss of pay or other incidents of the employment relationship which they may have suffered as a result of the discrimination practiced against them. With respect to the temporary layoff found discriminatory, Escajeda, Ellis, and Shelton should be made whole by the payment to each of them of sums of money equal to the amount which they normally would have earned as Respondent's employees between their June 9 layoff and their June 12 reinstatement less each worker' s net earnings, if any, during the period indicated. With respect to the August 16 discharges found discriminatory, different remedial principles must be considered applicable. Ordinarily, workers discriminatorily dis- charged are awarded backpay from the date of their discharge to the date of any valid reinstatement offer. Here, however, the discharged employees were clearly engaged in a strike, before and after the date on which they suffered discrimination. Normally, the Board does not award backpay to employees discriminatorily discharged while on strike; Agency theory is that, until it appears that employees who desire work have given up the strike, no determination can be made that their loss of pay was conclusively attributable to their employer's conduct. Herein, however, available evidence suggests that Escajeda , Ellis, and Patino may have abandoned their strike and picket line some time prior to September 15, 1961 , when Respondent offered them reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges . My recommendation, therefore, will 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be that Respondent make the designated workers whole by the payment to them of backpay from the date on which their strike was terminated and picketing ceased, to the date on which they were offered reinstatement by the Respondent firm. Sea View Industries, Inc., 127 NLRB 1402, 1403, 1426, 1438; cf. Liberty Electronics Corp., et al., Case No. 21-CA-4523 (IR) [138 NLRB 1074, 1085], and the cases cited therein. Here, also, the amount of each worker's backpay award should be reduced by the amount of his net earnings, if any, during the period indicated. Recommendation will be made, further, that Respondent, in order to make possible expeditious compliance with the recommendations herein made with regard to backpay, preserve and, upon request, make available to the Board and its agents, all pertinent payroll and other records. Since the pay losses of the workers subjected to discrimination were suffered during two separate periods, falling within two distinct calendar quarters, no necessity has arisen for a recommendation that such pay losses be computed on a quarterly basis, pursuant to the formula which the Board presently utilizes for the computation of pay losses running, continuously, from one calendar quarter into another. Since it has been found that Respondent refused, and continues to refuse, to bargain collectively with the Union as the exclusive representative of certain company em- ployees, within the unit herein found appropriate for the purposes of a collective bargain, my recommendation will be that the Board order the Respondent firm to bargain collectively, upon request, with the Union as the exclusive representative of such employees, and, if an understanding is reached, embody such understanding in a signed agreement. Respondent's course of conduct, previously detailed, goes to the very heart of the statute and suggests the firm's purpose, generally, to limit the lawful rights of em- ployees. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). Upon the entire record, I am persuaded the unfair labor practices found are closely related to other unfair labor practices statutorily proscribed, the future commission of which may reasonably be anticipated because of the conduct found attributable to Respondent in this report The preventive purposes of the statute will be frustrated unless recom- mended remedial action, and any order which may prove necessary, can be made coextensive with the threat. Therefore, to make the interdependent guarantees of Section 7 effective, to prevent any recurrence of the unfair labor practices found, to minimize industrial strife which burdens and obstructs commerce, and thus to effectuate statutory policies, it will be recommended that Respondent cease and desist from infringement, in any other manner, upon rights guaranteed by the afore- said statutory provisions. In the light of the foregoing findings of fact, and of those made by the Board in its decision, previously mentioned, and upon the entire record in this case, I make the following' CONCLUSIONS OF LAW 1. Sakrete of Northern California, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Freight, Construction, General Drivers and Helpers, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Cement Processors Union, are labor organizations within the meaning of Section 2(5) of the Act, as amended, which admit employees of Respondent to membership 3. By interrogation of its employees with respect to their union membership and activities; by threats concerning layoffs, work speedup, and reduction of hours, di- rected to employees consequent upon their continued support for the Union; and by promises of benefit calculated to persuade employees to relinquish union representa- tion, Respondent engaged in and continues to engage in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act, as amended. 4. By domination, assistance, contributions of support, and interference with the administration of Cement Processors Union. through solicitation of employees' sup- port for such an organization, and through the execution, maintenance, and effectua- tion of a collective-bargaining agreement with Cement Processors as a nominal party, Respondent engaged in and continues to engage in unfair labor practices affecting commerce within the meaning of Sections 8(a)(2) and 2(6) and (7) of the Act, as amended. 5. By its discriminatory temporary layoff of Manuel Escajeda, Rual Dean Ellis, and Carl Dean Shelton between noon of June 9, 1961. and June 12, 1961. and by its subsequent discharge of Escajeda, Ellis, and Juan Patino on August 16, 1961, Respondent has engaged in and continues to engage in unfair labor practices affecting SAKRETE OF NORTHERN CALIFORNIA, INC. 783 commerce within the meaning of Sections 8(a)(3) and 2(6) and (7) of the Act, as amended. 6. All production and maintenance employees of Respondent, employed at its Milpitas, California, plant, excluding office clerical employees, guards, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act, as amended 7. Freight, Construction, General Drivers and Helpers, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been at all times material, and still is, entitled to recognition as the exclusive repre- sentative of all Respondent's employees in the unit described above, for the purposes of a collective bargain with respect to rates of pay, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act, as amended. 8. By its refusal to bargain collectively with the Union designated as the exclusive representative of its employees within an appropriate unit, Respondent engaged in and continues to engage in unfair labor practices affecting commerce within the meaning of Sections 8(a) (5) and 2(6) and (7) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, order that Respondent, Sakrete of Northern California, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Domination or interference with the formation or administration of Cement Processors Union, or the contribution of financial or other support to that organiza- tion, or any other labor organization, either through the negotiation, execution, or maintenance of contracts to which such an organization may be a nominal party, or in any other manner. (b) Recognition of Cement Processors Union, or any successor thereto, as the representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment. (c) Discouragement of membership in Freight, Construction, General Drivers and Helpers, Local 287, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, by the tem- porary layoff or discharge of employees, or by discrimination in any other manner with respect to their hire and tenure of employment or any term or condition of their employment, except as authorized under Section 8(a) (3) of the Act, as amended. (d) Refusal to bargain concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, with the Union designated as the ex- clusive representative of all production and maintenance employees of Respondent employed at its Milpitas, California, plant, excluding office clerical employees, guards, and supervisors as defined in the Act, as amended. (e) Interference with, restraint, or coercion of employees in any other manner, in the exercise of their rights to self-organization, to form labor organizations, to join or assist Freight, Construction, General Drivers and Helpers, Local 287, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through repre- sentatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, authorized in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act, as amended: (a) Withdraw and withhold all recognition from, and completely disestablish, Cement Processors Union, or any successor thereto, as the representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment. (b) Make whole Manuel Escaieda, Rual Dean Ellis, Carl Dean Shelton, and Juan Patina for any loss of pay they may have suffered by reason of the discrimina- tion practiced against them in the manner set forth above in "The Remedy" section of this report (c) Preserve and, upon request, make available to the Board or its agents. for examination and copying, all payroll records, social security payment records, time- 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards, personnel records and reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this Order. (d) Upon request, bargain collectively in good faith with Freight, Construction, General Drivers and Helpers, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all production and maintenance employees employed at its Milpitas, California, plant, excluding office clerical employees, guards, and supervisors as defined in the Act, as amended, with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its place of business in Milpitas, California, copies of the attached notice marked "Appendix." I Copies of the notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by a representative of the Respondent firm, be posted by the Respondent firm immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that these notices are not altered, defaced, or covered by any other material. (f) File with the Regional Director for the Twentieth Region, within 20 days of the date of service of this Intermediate Report and Recommended Order, a written statement setting forth the manner and form in which it has complied with these recommendations.2 i Should the Board adopt this Recommended Order, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. Further, should 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" in said notice. 2 Should the Board adopt this Recommended Order, this provision shall be modified to read, "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT dominate or interfere with the formation or administration of Cement Processors Union, or contribute financial or other support to that organization or any other labor organization, through the negotiation, execu- tion, or maintenance of contracts to which such an organization may be a nominal party, or in any other manner. WE WILL NOT discourage membership in Freight, Construction, General Drivers and Helpers, Local 287, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, by the temporary layoff or discharge of employees, or by discrimination against them in any other manner in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act, as amended. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Freight, Construction, General Drivers and Helpers, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or any other labor organization, to bargain collectively through representatives of their own free choice, and 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 activity, 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 amended. WE WILL withdraw and withhold all recognition from Cement Processors Union and completely disestablish that organization, or any successor thereto, as the representative of any of our employees for the purpose of dealing with HOISTING AND PORTABLE ENGINEERS, LOCAL 4, ETC. 785 us concerning grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other terms or conditions of employment. WE WILL make whole Manuel Escajeda, Rual Dean Ellis, Carl Dean Shelton, and Juan Patino for any loss of pay they may have suffered by reason of the discrimination practiced against them. WE WILL bargain, upon request, with Freight, Construction, General Drivers and Helpers, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all our employees in the bargaining unit described as appropriate in the Trial Examiner's Intermediate Report on the case, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and embody in a signed agreement any understanding reached. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment. SAKRETE OF NORTHERN CALIFORNIA, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed 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. 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, 830 Market Street, San Francisco 2, California, Telephone No. Yukon 6-3500, Extension 3191, if they have any question concerning this notice or compliance with its provisions. Hoisting and Portable Engineers , Local 4, International Union of Operating Engineers, AFL-CIO and its Business Agent, Al Morrell and John Aliberti, d/b/a Standard Contracting Co. Case No. 1-CB-767. January 23, 1963 DECISION AND ORDER On November 2, 1962, Trial Examiner Alba B. Martin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondents filed exceptions to the Inter- mediate Report 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 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 and the entire record in the case, including the exceptions 140 NLRB No. 76.