Cal-Style Furniture Manufacturing Co.

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT cause or attempt to cause Earl D. Creager, Inc., to discharge employees because they have sought to defeat the reelection of union officers or otherwise engaged in concerted union activities , or to discriminate against Paul Lewis or any of its employees in violation of Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify Earl D . Creager, Inc., in writing, that we withdraw our ob- jection to the employment of Paul Lewis and request his reinstatement to his former or a substantially equivalent position. WE WILL NOT in any other manner restrain or coerce employees of Earl D. Creager, Inc , or any employee member of this Union , in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. This Union WILL make Paul Lewis whole for any loss of pay suffered because of the discrimination against him. LOCAL UNION No. 18, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) GEORGE E. MILLER, AGENT, LOCAL UNION No. 18, INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL-CIO, Individual. Dated ------------------- By-------------------------------------------- GEORGE E MILLER 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, Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Cal-Style Furniture Manufacturing Co. and International Union, Allied Industrial Workers of America, AFL-CIO. Case No. 21-CA-4670. Mllarch, 15, 1963' DECISION AND ORDER On December 17, 1962, Trial Examiner Morton D. Friedman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions, and the General Counsel filed a .memorandum in support of Intermediate Report and Recommended Order of the Trial Examiner. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Re- 141 NLRB No. 45. CAL-STYLE FURNITURE MANUFACTURING CO. 523 port, the General Counsel's memorandum, Respondent's exceptions 1 and brief, and the entire record in the case, and hereby adopts the find- ings,2 conclusions, and recommendations of the Trial Examiner. ORDER The Board hereby adopts as its Order the Recommended Order of the Trial Examiner.3 i The Respondent's exceptions to the Intermediate Report are in large part directed to the credibility resolutions of the Trial Examiner We will not overrule the Trial Examiner's resolutions as to credibility, unless a clear preponderance of all relevant evi- dence convinces us that they are incorrect. Upon the entire record, such conclusion is not warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C A. 3). 2 Respondent contends that because the General Counsel has failed to show that Respond- ent was aware of the union activity of Frank Giles, the Trial Examiner incorrectly found that Giles' discharge violated Section 8(a) (3) of the Act. Contrary to Respondent, we believe the record amply supports the Trial Examiner's conclusions. In addition, we note that Grossman had threatened to discharge all of McAdams' friends, and he knew that Giles was one of McAdams' friends. Borg-Warner Controls, 128 NLRB 1035, 1043-1044 ,'For the reasons stated in the dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, Member Leedom would not grant interest on backpay INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed November 29, 1961, by International Union, Allied Industrial Workers of America, AFL-CIO, herein called the Union, and an amended charge filed December 22, 1961, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region, issued his complaint dated January 2, 1962, against Cal-Style Furniture Manufacturing Co., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent's answer to the com- plaint and its amendment denies the allegations of statutory violations therein. Copies of the complaint, the charges, and a notice of hearing were duly served upon all of the parties Upon motion made at the hearing amendments to the complaint and the answer were permitted. Pursuant to notice, a hearing was held at Los Angeles, California, between February 7 and 11, 1962, inclusive, before Trial Examiner Morton D Friedman. All parties were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. After the close of the hearing counsel for the General Counsel, the Respondent, and the Charging Party filed briefs which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation with its place of business at Los Angeles, California, is engaged in the fabrication, manufacture, and sale of metal furniture. During the year immediately preceding the filing of the complaint herein, a representative period, Respondent shipped its manufactured products valued in excess of $50,000 directly to customers located outside the State of California. 1 Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me Is based, at least in part, upon his de- meanor as I observed it at the time the testimony was given Cf Bryan Brothers Pack- ing Company, 129 NLRB 285. To the extent that I Indicate hereafter that I reject in part or entirely the testimony of any given witness, it Is my intent thereby to indicate that such part or whole of the testimony as the case may be, Is discredited by me. Jack- son Maintenance Corporation, 126 NLRB 115, 117, footnote 1. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The issues As ultimately amended at the hearing, the complaint alleges that the Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) Interrogating its employees with regard to their union activities; (b) threatening their employees with discharge if the Union were successful in its organization of the plant; (c) threat of elimination of employment benefits if the Union were successful; (d) threat of layoffs if the Union were successful, (e) attributing failure to obtain wage increase to the Union's advent; (f) instructing an employee to tell other employees he was fired for union activity; (g) threatening employees with discharge if they joined the Union; (h) changing the working rules of the plant as retaliation for union activity; and (i) attributing failure to receive a wage increase to an employee's union membership. The complaint further alleges violations of Section 8(a) (3) of the Act by discrimina- torily discharging employees Robert Simmons, Joseph McAdams, William Sweet, Franklin Giles, and James Mitchell. Answering the allegations of the complaint, the Respondent denies commission of any conduct violative of Section 8(a)(1) or (3) of the Act. It admits the discharges of employees Simmons, McAdams, Sweet, and Giles but asserts such discharges were for cause. With regard to employee James Mitchell, the Respondent's answer, as amended, contends that Mitchell failed to return to the Respondent's employ after a period of illness and that his job has always been open and waiting for him. B. Interference, restraint, and coercion 1. The Union 's organizing attempts The Union began to organize the Respondent's employees during the early part of October 1961. On October 13, 1961, Robert Coto, the Union's International rep- resentative, visited the Respondent's plant, waited for the employees to come out at the end of the day, and distributed a number of union authorization cards. He returned to the plant at noon on October 16,2 and talked to the employees who came outside the plant to eat their lunch. At this time six or seven signed cards. Those who signed cards agreed that employee James Mitchell would carry blank authorization cards and that all the employees would assist him in getting the cards signed. Coto returned almost every noon and picked up signed cards. During this organizing period, Coto spoke a couple of times to employee Robert Simmons, who, at those times, was operating a forklift truck on the street between two of the Respondent's plant buildings. Also during this period, three meetings were held with the Respondent's employees away from the plant. Two of these meetings were held at the home of James Mitchell and the third was held in a hall. On November 1, Coto telephoned the Respondent's plant and spoke to Allen Grossman, Respondent's secretary-treasurer. He informed Grossman that a majority of the Respondent's employees had signed up with the Union. Grossman stated that he knew nothing about this and that he would have to talk to his employees. They agreed to meet tentatively on the following Monday, November 6, 1961. On November 3, Grossman called Coto's office and left a message for him to call. Coto did so and Grossman told him that the Company would not recognize the Union and that the Union would have to file a petition with the Board. This telephone call took place on November 6 and, as a result, the Union filed a petition the follow- ing day, November 7.3 Following Coto's telephone call to Grossman, a meeting was held in Grossman's office which was attended by Foremen Pedro Bordenave, Peter Jellenek, and Henry 2 Unless otherwise specified all events set forth herein occurred in 1961 S From the credited testimony of Robert Coto. Grossman in his testimony admitted that Coto made a demand on the Respondent, through Grossman, on the date stated and that Grossman later refused to recognize and bargain with the Union However, it should be noted here that no allegation of refusal to bargain has been alleged in the complaint CAL-STYLE FURNITURE MANUFACTURING CO. 525 Lorenzeni , by Bernard Butnik, the Respondent's president, and by Grossman, during which meeting the Union was discussed .4 2. The interrogations About the same time and probably soon after this meeting, Supervisor Pedro Bordenave spoke individually to the employees in the assembly department. He spoke first to Atrise Williams and asked Williams, who was working at his bench, if the latter had signed a union card and Williams replied that he had not . Bordenave then questioned employee Fred Jackson, who worked about 3 to 5 feet away from Williams, asking him the same question and receiving a like reply . After Jackson, Bordenave approached employee Jerry Hughes of whom the same question was asked and answer returned as before. Finally, Bordenave asked employee Bob Ransom if he had signed a union card and Ransom also answered , "No." 5 About the same time,6 Bordenave also visited the receiving department , which he also supervises, with a cigarette in his mouth and employee Kenneth Paige remarked that he did not know that Bordenave smoked, whereupon Bordenave said that he usually did not, except when he was angry. When Paige asked why Bordenave was angry the latter answered by asking Paige whether Paige had joined the Union. Paige replied that he did not know of any union but if Bordenave would bring him a card he would sign it because they needed a union . At that point employee Andrew Cheval spoke up and asked Bordenave if the latter thought the men were crazy enough to tell who had signed union card, and Bordenave answered , "No, I don't think they are going to tell me, but if I find out they are going to be fired ." Bordenave then said he did not mind the men getting a union but wanted to know why they did not get one that would benefit them; that joining this Union would be just throwing $5 away. He then asked Paige again whether he had joined the Union 7 On or about November 7 or 8,8 Bordenave asked Newton whether he had signed a union card and at the same time stated that regardless of whether Newton had 'From the admissions on cross-examination of Bordenave and Grossman G The foregoing is from the credited testimony of Jackson as supported in part by the testimony of Williams . Jackson impressed me as a straight-forward witness He was still employed by the Respondent at the time of the hearing . Although Williams' testi- mony was somewhat vague as to precise dates and as to some details, I find his testimony credible On the other hand, I do not credit the denials of Pedro Bordenave that he never spoke to any of the employees concerning union matters in all the 7 years of his employ- ment at the Respondent's plant except with regard to the incident involving the list of questions, infra Bordenave was evasive in answering and his testimony contained numer- ous contradictions . Nor do I credit leadman Ronny Diaz ' testimony that conversations in the assembly department could not be heard due to the noise made by the power tools used in the assembly process . Upon cross-examination Diaz admitted that there were times when he did actually overhear conversations between Bordenave and others while work was going on. Moreover, Diaz testified that he could not remember Bordenave circulating a questionnaire (see infra) although Bordenave and other Respondent wit- nesses admitted the incident Upon the foregoing and from my observation of him, I do not consider Diaz a reliable witness. 6 Employee Kenneth Paige placed the date about October 27. P From the credited testimony of Kenneth Paige, supported by the credited testimony of Franklin Giles. From my observation, of the witnesses and because I have found that Bordenave was not a credible witness in other respects , I find Paige and Giles to be more credible witnesses than Bordenave. Although Cheval supported Bordenave's denial that the conversation as related by Paige and Giles ever occurred , Cheval merely could not remember it Moreover, I do not credit Bordenave's sweeping statement that he never smoked in the plant during his 7 years of employment. There would seem to be no logical reason for Paige and Giles to introduce the conversation with a completely con- trived story of Bordenave's cigarette smoking. Additionally , I believe that, although as testified by Cheval, the machines used by the various employees in the department make some noise , I find that they were not making sufficient noise to drown out the conversa- tions or to render Bordenave's conversations with the other employees inaudible to Paige. 8 Although employee Ernest Lee Newton testified at first that the incident occurred about October 15 , he corrected himself and placed the incident a couple of weeks before Thanksgiving, about November 7 or S. I accept this date as Newton was an otherwise reliable witness wham I credit. Although he was not certain of exact dates on which events occurred , he recalled with clarity the events themselves . In any event , I credit Newton's version of the incident over Bordenave's denial that he ever spoke to any employee about the Union. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed a card, if the Union came into the plant on days when the conveyer at which Newton worked was not running, Newton would be at home, laid off. Again, on or about November 15, Bordenave spoke a second time to assembly department employee Fred Jackson. Present were employees Atrise Williams and the employee identified by Jackson as Ronny Diaz. Bordenave again asked Jackson if the latter has signed a union card to which Jackson replied in the negative. Then Bordenave stated that work was slow and that the Company was being good to the men and letting them work, but if the Union came in they would be laid off.9 Bordenave again spoke to Jackson on a third occasion on or about November 27, when Jackson was again at his own work desk and present were Williams and Ronald Diaz. This time Bordenave had a sheet of paper with him upon which were printed some questions . Bordenave asked Jackson to read the paper . Jackson did not take notice of the questions particularly but at the same time Bordenave asked him to ask Mitchell about some of the questions that were on the paper. He stated to Jackson, "Ask the fellows about some of these questions on here and ask Mitchell. He knows. He is a union guy . He has been to college and everything ; he was put in the Company for the purpose of organizing." Then Bordenave also told Jackson that the Respondent had a list of names of the employees who had signed union cards Bordenave refused to allow Jackson to keep the paper with the list of questions on it On the same occasion Bordenave also spoke to employee Atrise William and showed him the paper. Williams also could not remember most of the questions although one question that he could recall was "if the Union struck would the employees be paid." 10 This same questionnaire was also shown to employee Cheval and McAdams and to other employees not only by Bordenave but also by Foreman Jellenek. Around December 1 , Bordenave engaged in yet another conversation in which an employee was interrogated . On that day in the shipping department Bordenave spoke to employee Otis Fuller. Bordenave asked Fuller whether the latter had joined the Union and the answer was "No " He then asked Fuller if Fuller had signed a card and again the answer was in the negative He also asked Fuller whether he had been approached by union men in any way and Fuller again answered , "No." 11 Although the Board has held under certain circumstances that an employer may law- fully interrogate his employees to ascertain whether the Union represents a majority,12 I cannot hold that such is the case here. The Board has but recently held that an employer's polling of employees where the employees were not informed that there would be no reprisals for engaging in union activities was violative of the Act.la In the instant case , the interrogations by Bordenave, above set forth, were accom- panied by threats that the employees would lose work if the Union came in and also by threats that if the Company found out which employees became members of the Union they would he discharged . Interrogation under such circumstances is clearly unlawful , and I so find. 3. The change in working conditions Three days after Coto had made his telephonic demand for recognition, Allen Grossman, the secretary-treasurer of the Respondent , announced to all of the em- 9 Although Williams , who was present at the time , did not relate this incident in his testimony , relating instead another incident that took place on that day, I credit Jackson and do not credit Bordenave 's denial 11 From the credited testimony of Paige supported by the credited testimony of Williams Also, Bordenave and other employee witnesses admitted the circulation of a paper with questions on it and a paper which Respondent contends was a duplicate of the paper so circulated was admitted in evidence . However, the document introduced by the Respond- ent concerns the Teamsters Union rather than the Charging Union and I cannot find under the circumstances that this exhibit represents a true copy of the paper circulated by Bordenave However, inasmuch as the General Counsel's witnesses ' recollection of what was printed on the sheet circulated by Bordenave was so vague , I do not make any finding as to whether this series of questions constituted unlawful interrogation Although employee McAdams testified that one of the questions was to the effect that "are you a member of the Union" and although I credit McAdams as to certain other parts of his testimony, I do not credit him as to this particular portion of his testimony inasmuch as his recollection generally was as uncertain as was that of the other employees as to the contents of the circulated questionnaire. n From the credited testimony of employee Otis Fuller 12 Blue Flash Express, Inc, 109 NLRB 591 13 The Western Reserve Telephone Company , 138 NLRB 755. CAL-STYLE FURNITURE MANUFACTURING CO. 527 ployees gathered together to receive their paychecks that he did not want anyone eating outside the plant in the future and that benches were being constructed in the rear of the plant for purposes of utilization by the employees during their lunch hour. He announced that if employees left the building they would be obliged to punch out on the timeclock and if they did not punch out when they left they would be dismissed. The Respondent later posted a sign on the bulletin board near the timeclocks to the same effect as Grossman's previous announcement. There is no question and no issue is raised as to the practice before the announce- ment by Grossman. Before this announcement, the employees ate their lunch and took their breaks outside the plant, usually on the street in front of the plant where a lunch wagon selling luncheon items customarily parked during the lunch hour. No employee was ever required to punch out when leaving to eat lunch or during break times. Nor does the Respondent contest the fact that it put this new arrangement into effect. The difference between the parties lies only in what the purpose of the new arrangement was. The General Counsel contends that the purpose of this change in working condi- tions was to restrain and interfere with the Union's organizational activities, as much of the organizing was accomplished outside the plant during the lunch hour. The Respondent, on the other hand, contends that the change was brought about by the necessity of eliminating a condition outside of the Respondent's plant which brought complaints from persons living in the neighborhood adjacent to the plant and to eliminate crowding at the door of the office through which visitors to the plant and office employees had to pass. Both Bernard Butnik and Allen Grossman testified that in the late spring or early summer of 1961 the Respondent had received numerous complaints from neighbors with regard to the littering of their property by sandwich wrappers, soft drink containers, and other debris left by Respondent's employees who ate lunch outside the plant. As a result of these complaints, a notice was posted on the bulletin board, according to Butnik, informing the employees to stop littering the area near the building However, the Respondent did not produce such notice and although the Respondent's other officer, a Mr. Koenigsfeld, was alleged to have posted the notice, Koenigsfeld did not testify. The substance of the notice was that the employees were not to throw garbage around the area but were to deposit their litter in a barrel which was provided near the door of the plant. To support its contention, the Respondent produced two witnesses, Harold McWee- ney and Barbara Ann Neria, both of whom live in the immediate vicinity of the plant and each of whom testified that upon occasion litter was found in the front of their houses and that their lawns and the front of their premises were made unsightly by luncheon litter left by the Respondent's employees. McWeeney testified that he stopped Butnik as Butnik was using the mailbox near McWeeney's home and complained about it. This complaint was lodged somewhere around June or July 1961. Miss Neria also complained that her lawn had been littered upon occasion and that lunch bags and orange peels and other fruit peels were found on the lawn. She stopped Koenigsfeld and complained to him about the unsightliness of her lawn and the front of her house caused by the Respondent's employees. This complaint was also registered during the summer of 1961. Although I credit both Butnik and Grossman to the effect that lawns in the immediate neighborhood were littered and otherwise made unsightly by the luncheon activities of the Respondent's employees, and although I certainly credit disinterested witnesses McWeeney and Neria, whose testimony bolstered the testimony of Gross- man and Butnik to the effect that the employees made the neighborhood unsightly, I do not credit the Respondent's contention that the change in working conditions and of causing the employees to eat inside and to punch out if they left the plant during the lunch hour, was brought about by the complaints. In so concluding, I note par- ticularly the fact that the complaints were registered in the summer of 1961 but the sudden announcement of the change in luncheon arrangements was not made until 3 days after the Union's demand for recognition. Unanswered by the Respondent's arguments or anywhere in the record is the question of why the Respondent waited from summer to late fall to take action which it ultimately did and then only after the Union's organizational activity and demand for recognition had been made. In view of all of the circumstances in this case and in the context of the Employer's other unlawful activity, I am constrained to conclude that the Respondent took the action it did with regard to the luncheon hour conditions because of the Union's demand and for the purpose of hindering the Union and the Respondent's employees in further organizational activities. Accordingly, I find that the Respondent adopted the new luncheon plan for unlawful reasons and that the action was violative of Section 8(a)( I) of the Act. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Other restraint and coercion On November 2, the day after Coto made the bargaining demand upon Grossman, Pedro Bordenave approached James Mitchell, a mill employee, and Peter Jellenek, the mill foreman, and stated that the Company had to negotiate with the Union. Jellenek replied, referring to Mitchell, "Jim, here is a union man." Bordenave then stated that if the Union came into the plant all benefits would be diminished and Mitchell asked what benefits Bordenave referred to. Bordenave replied. "The $100 bonus we would receive after 3 years of employment." To which Mitchell replied that he did not intend to remain in the Respondent's employ that long.14 It is clear from the foregoing that the statement of Bordenave to the effect that the benefits would be diminished and that the $100 bonus would not be received if the Union came in is a threat contingent upon the Union's success in organizing the Respondent's plant. Further, it is elementary that such a threat, in the context in which the foregoing was made, is violative of Section 8(a) (1) of the Act. I so find. Later the same day Mitchell asked Foreman Jellenek for a raise. Jellenek an- swered, "You know they are up in the air about the Union " When Mitchell stated he was not concerned about the Union, only himself, Jellenek told him he would put Mitchell in for a raise but he did not know whether he would be able to get the raise for him. The General Counsel contends that Jellenek's remark, "You know they are up in the air about the Union," is equivalent to stating that the Respondent would not give Mitchell a raise because of the advent of the Union. He further contends that this remark was, therefore, a violation of the Act. I do not agree. The term "up in the air about the Union" is as best ambiguous and subject to a number of interpretations. It could as well mean that the Respondent did not know whether it could lawfully give Mitchell a raise because of the advent of the Union, as it could mean the Respondent would not give Mitchell a raise because of the advent of the Union. Therefore, I do not believe that the remark was sufficiently definite to be interpreted as a reprisal. Accordingly, I will recommend dismissal of that portion of the com- plaint which alleges that this remark was violative.15 Earlier in this report I have alluded to two remarks by Bordenave to two different employees in which he threatened that work would be diminished and employees would be laid off if the Union came in. The first of these remarks was made by Bordenave on November 15 to employee Jackson At that time, Bordenave, after asking Jackson if he had signed a union card, told Jackson that work was slow and that the Company was being good to the men and letting them work but if the Union came in they would get laid off. A conversation of similar content was had by Bordenave with employee Newton in the paint department. Again, after asking Newton whether the latter had signed a union card and receiving a negative answer Bordenave said that regardless of whether Newton signed a card or not, if the Union came into the plant the days that the conveyor was not running Newton would be out of a job and would be at home. It is clear that these remarks of Bordenave to employees Jackson and Newton were threats of retaliation against the employees if the Union were to be successful in its campaign and were made specifically to dis- courage membership in the Union. Accordingly, I find them to be violative. Bordenave was involved in a third, somewhat similar, incident This occurred on approximately October 27 and has also been referred to hereinabove. This was in connection with the smoking incident in which Bordenave was smoking a cigarette and Kenneth Paige inquired as to the reason thereof. The questioning of Paige with regard to his union membership led up to the question by Andrew Cheval that, "Pete do you think these guys are crazy, going to tell you who signed a card and who did not?" to which Bordenave answered, "No, I don't think they are going to tell me, but if I find out they are going to be fired." It is clear that this statement is coercive and violative of the Act, and I so find. Additionally, when Bordenave showed the questionnaire to employee Jackson on November 27, as hereinbefore related, he told Jackson that the Respondent knew the names of the employees who had signed union cards; that employee James Mitchell was organizing for the Union; and that Jackson should ask Mitchell the answers to the questions. I find that, in the circumstances, these remarks were also coercive and in violation of the Act. "From the testimony of James Mitchell. Foreman Jellenek did not testify and, as noted above, I do not credit Bordenave's broad denial that he never talked to any em- ployee about the Union. Accordingly, and from my observation of him, I credit Mitchell 35 See complaint paragraph numbered 8(f). CAL-STYLE FURNITURE MANUFACTURING CO. 529 Finally, on November 22 employee Ernest Lee Newton had a discussion with Allen Grossman. Newton had learned that employee McAdams had just been dis- charged and Newton asked Grossman if there would be a job for his brother-in-law. Grossman said, in answer, "The way this union thing is going on your never can tell." He stated that Joe McAdams was laid off and Newton said that this was the job he was referring to for his brother-in-law. Grossman then stated that he wasn't doing anything because of "this union thing that was going on" and besides Newton's brother-in-law would not want to work there because they were not paying enough. Newton answered that he was only interested in the job, to which Grossman stated that he didn't care how Newton stood with the Union, he "didn't give a damn," but that the way things were going Newton might have to have a job himself by the next week. Grossman went on to state that he didn't know why any of the men would want to join the Union because he had checked in various places and he was paying more than the average place was paying for the same work, and then he said to Newton, "You know you are an ex-con and you wouldn't be able to get a job in a place anyway because they would ask you about your jail record and if you tell them they won't hire you." Grossman also stated that if some of the men weren't happy about the rate of pay they should talk to him about it and if they were entitled to a raise he would give it to them. Grossman further stated that if Newton's brother-in-law was still looking for a job after the union business was over he would talk to him. Grossman ended the conversation with the statement that "He didn't care which way Newton stood with the Union because it would be his word against Newton's and that if the Union came in if there were still guys in the shop for the Union it wouldn't make any dif- ference, he would close up the shop completely." Newton had a further conversation with Grossman on January 25, 1962. This conversation concerned a raise which Newton had asked of Grossman. Grossman answered, "There is guys in the plant that is for the Union and I am not doing anything because they want me to lose money and I don't see why I should have them at all and if you don't like it here you can find a job some place else and go out and join Coto. He is a pretty smart man maybe he can give you a couple or three bucks." is The foregoing conversations between Newton and Grossman clearly exhibited Grossman's animus toward the Union. Grossman's remarks can be interpreted in no other way than as threats of retaliation for union activity. It is elementary that such threats interfere with employees' Section 7 rights and that such interference is violative of the Act. I so find. Another alleged incident involving Grossman occurred on November 22. Em- ployee Joseph D. McAdams was discharged under circumstances hereinafter dis- cussed At one point during the conversation concerning the discharge, Grossman said to McAdams, according to McAdams, "I heard you are one of the leaders of this union. I am going to fire you. I don't want you to feel that you're being laid off; you're fired You're a good worker and the fellows that you brought out here they are good workers and I am going to make an example of you, you can tell all your friends they are next " 17 Grossman testified that he did not tell McAdams when he discharged him that he was doing so for union activities. In fact, Grossman denied that he knew of any union activities on McAdams' part. In the context of all of the other events which occurred herein, and from my observation of the witnesses, I conclude and I find that McAdams' version of the conversation is the more reliable of the two and I credit it I conclude, as contended by the General Counsel, and as alleged in the com- plaint, that this foregoing statement of Grossman's to McAdams was an instruction to McAdams to tell other employees that McAdams had been discharged because of his union activities. Such an instruction is clearly a threat proscribed by the Act Accordingly, I find this threat to be an additional violation. 5. The discharges a. Robert Simmons As heretofore related, Simmons was an active participant in the Union's organiza- tional efforts. As a tow motor (forklift) operator, Simmons visited various parts of 19 All of the foregoing testimony is from the testimony of Ernest Lee Newton and was denied by Allen Grossman I find that from Newton's testimony and from my observa- tion of him on the witness stand, he is a reliable and credible witness. I do not credit Grossman's denial. 17 From the credited testimony of Joseph McAdams. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent's plant picking up and delivering material. As we have seen before, he had two conversations with Union Organizer Coto while he was operating his forklift between two of the buildings of the Respondent's plant. Simmons signed a union authorization card on October 30. According to Simmons, during the second conversation with Coto, about Novem- ber 13, he looked over toward the plant building he had just left and saw Foreman Pedro Bordenave looking out a window at him. Bordenave denied having seen Simmons, although he admitted that it was quite natural to look out of the particular window involved while speaking into a wall telephone alongside the window. However, Bordenave claimed that because of his height and the height of the window from the floor, together with the position in which he would stand while talking on the telephone, he would be looking in the opposite direction from where Coto claims he was running alongside the Simmons-driven tow motor. But, Bordenave did not say that it would have been impossible to see Coto and Simmons at the time and place indicated and, since I have indicated heretofore that I find Bordenave to be an unreliable witness, I credit Simmons' version of this incident.18 The day following Bordenave's observation of Simmons and Coto, Simmons left the plant at noon, with permission, for personal reasons. He remained out the fol- lowing day, the 15th, also with permission, and returned on the 16th. On the morning of the 16th when he returned to work, Simmons was asked by Bordenave where he had been and he answered that he had been attending to some personal business. Whereupon Bordenave said to Simmons, "I make more money than you do and I can't be off. I don't see how you can be off." Then Bordenave told Simmons to start operating the tow motor and get some upholstery material up to the upholstery area. Simmons did as he was told and took the upholstery to the wood- shop. When he arrived at the woodshop there was a call for him to go to the Great Western Arms Building. When he arrived at Great Western Arms, the man in charge said that he wasn't quite ready with the upholstery and he would be a few seconds more. Simmons took advantage of this delay to go to the restroom Im- mediately after he went into the restroom, the door suddenly opened and Bordenave followed him in. Bordenave looked at Simmons, did not say anything, turned around, and walked out. That same day. after lunch, Simmons went back to the woodshop where Jellenek ordered him to go once again to the upholstery department. When Simmons re- turned with a load from the upholstery department the loading dock was crowded and so was the doorway. The shipping clerk said that he could not come in until he could clear off the dock and that it would only be a moment. A truckdriver from another firm was standing there and Simmons started to converse with him while he was waiting to go on to the dock Bordenave at that moment walked up to Simmons and asked him what he was doing and when Simmons told him he was trying to get in so that he could unload his tow motor Bordenave told him to move out, at which point the shipping clerk told him that he would let him in in just a moment. The clerk finally moved the material out of the way so that Simmons was able to proceed with his work. About 4.20 that afternoon Simmons was working a bandsaw when Bordenave walked up to him, punched him on the shoulder, and told him to cut the motor. Bordenave then told Simmons that they were going to have to let Simmons go because his work was unsatisfactory. Simmons asked Bordenave what he meant by unsatisfactory and Bordenave an- swered, "Just what I mean. You walks around with your white shirts on. Really, I think you are the leader of this union " After reporting to Jellenek that he had been discharged, Simmons once again went to Bordenave. Simmons told Bordenave that he thought Bordenave had given him a dirty deal inasmuch as Bordenave knew that Simmons' wife was pregnant at the time. Simmons also stated that if he had been going to quit he would have given the Company a 2-week notice Bordenave answered, "Not necessarily. Simmons, it is just like I said. We think you are the leader of the Union and you are a Teamsters' man, aren't you?" 19 Simmons admitted that his foreman, Jellenek, did criticize him in connection with his work in the woodshop. This was when Simmons first went to work and was using a sanding machine. But once Jellenek had assigned Simmons to the tow 18 In doing so, I do not ignore President Butnik's testimony that standing at the spot where Simmons and Coto were located at the time Simmons saw Bordenave at the window, he was unable to identify a person looking out the window although he could make out a head However, on all the testimony regarding this incident, I do not find that Simmons could not have correctly identified Bordenave 19 From the credited testimony of Robert Simmons. CAL-STYLE FURNITURE MANUFACTURING CO . 531 motor there were no further criticisms . Nor did Bordenave, according to Simmons, ever criticize any of the work that Simmons had done. With the exception of the day Simmons was discharged, Bordenave never told Simmons that the latter's work was unsatisfactory. The Respondent contends that Simmons was discharged for being an unsatisfactory employee. In support of its contention, the Respondent introduced several witnesses whose testimony would tend, if believed, to prove the Respondent's contention. Thus, John Johnston, a maintenance mechanic, testified that in October and Novem- ber 1961 he was called on several times to repair the forklift driven by Simmons. The difficulty each time was that the line that leads up to the cylinder that raises and lowers the forklift had been pulled off in operation Johnston testified this is a very unusual happening. When he spoke to Simmons about it, Simmons merely denied that it was his fault and didn't explain how it had come off. In the witnesses' opinion, the hose could not have come off without force being applied. Clarence B. Maury, foreman of the upholstery department, recalled that at one time he overheard Pedro Bordenave talking to Simmons and heard the former instruct Bordenave how to perform the job of operating the tow motor and how to do it the right way. He also remembers President Butnik talking to Simmons. This was on the day they noticed that some damage was done to some shelves in the department. Maury did not observe the actual incident in which the damage occurred. He merely noticed the damage along with stack of shelves and told Butnik about it Butnik, the Respondent's president, testified that during October or November, Maury reported that some shelves which contained backs of fiberglass chairs had been damaged. While Butnik was inspecting the damage, Simmons, the forklift operator, came into the building Butnik told Simmons that he thought this damage was created by the forklift dragging across the edge of the shelves. Simmons said at first that he was not aware of it but then he admitted that he had done it and said that he was very sorry; that it would not happen again. Bordenave testified that almost from the very start of Simmons' employment he had had trouble with him; he was very slow about getting things done and argued con- sistently each time he was given an instruction Bordenave also received complaints from Clarence Maury that Simmons was driving his forklift too slowly. Maury also complained to Bordenave that although he had showed Simmons a number of times how to stack upholstery materials so they would not be damaged, Simmons neverthe- less just would not do it properly. Moreover, Bordenave testified, there were times when Bordenave caught Simmons in the assembly department talking to other em- ployees and not working and keeping the other employees from working. When he reminded Simmons of this Simmons denied it and said he was not talking. However, Bordenave observed Simmons talking just about every time he was distributing mate- rials throughout the plant Bordenave estimated this to be at least five or eight times a day. On the day Simmons was discharged Bordenave saw him at the ship- ping dock talking to a delivery driver from another firm. When he told Simmons that the latter should stop, Simmons told him that he was talking and that was that. He then ordered Simmons to stop talking and go about his work Then he proceeded into the office where he talked to Allen Grossman who stated that he thought that there was a satisfactory reason for letting Simmons go. Thereafter, on Grossman's instructions, Bordenave terminated Simmons at 4:30 that afternoon. He did not specifically deny that he had told Simmons that he thought Simmons was the union leader. With regard to Maury's testimony, I found Maury to be a very vague and hesitant witness whose recall of the incidents to which he testified was so poor as to render him completely unreliable as a witness . With regard to the testimony of Butnik, although I believe that the incident could have occurred in which Simmons did, in fact, do some damage to the shelving in the department Maury supervised, I note that this occurred sometime prior to Simmons' discharge. Butnik did not testify that this matter was one of the matters which was considered in discharging Simmons. Moreover, it would seem that if the shelf-damage incident was of any great importance to the Respondent, Simmons would have been discharged at the time this occurred However, Simmons was neither given this as a reason for discharge nor, as previously noted, was this a matter which was discussed between Bordenave and Grossman at the time that Grossman ordered Bordenave to discharge Simmons. Therefore, in view of Simmons' credited testimony with regard to the statement as to the Respondent's belief that Simmons was the leader of the Union, given to Simmons at the time that he was discharged, and in view of the rather minor incident which Bordenave indicates was the reason why Grossman had Bordenave discharge Simmons , together with Bordenave's sudden interest in Simmons' activity on the day 708-006-64-vol 141-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the discharge, I conclude that, although Simmons may not have been a very satisfactory employee , the primary reason for Respondent's discharge of Simmons was his union activity . Accordingly , I find, that Simmons was discharged for discrimina- tory reasons in violation of Section 8(a)(3) of the Act. b. William Sweet Sweet signed a union authorization card on October 18, 1961, and was thereafter active in soliciting membership for the Union . He filled out his own card, which was given to him by Coto, outside the plant. At that time he received approximately four or five other cards, half from Coto and about half from employee James Mitchell. Of these cards that were handed to him, he distributed a number around the plant and received one back, which he turned over to Mitchell. He also attended one union meeting at Mitchell's home. Sweet was hired by the Respondent in June 1961 and worked the first 3 or 4 weeks as a laborer. He was assigned ultimately to making chair backs or backs for bar stools in the mill department. Admittedly Sweet was a satisfactory employee in the mill department. On November 20 he was transferred to the metal shop after his foreman, Peter Jellenek, told Sweet that he was to go with Grossman over to the mill department because there were no more chair backs to be made. Grossman confirmed to Sweet that they had plenty of chair backs and that he was taking him over to the metal department where he would not lose any of his pay because of the transfer. He was introduced to Henry L. Lorenzeni, the metal department foreman. Sweet testified that while he was in the metal department, a period of only a few days, he had various duties working at various machines, grinding, cutting, and smoothing metal parts. When he first went into the metal department, he used what he called a punch press, and then two other machines; one called a cutoff machine, according to Sweet, and the other a grinding machine. He finally also used a last machine which he called a smoother. The first assignment was to cut off the ends of metal tubes and Sweet admitted that he had trouble using that machine because some of the parts clogged the machine. He stated, however, that no one gave him any instructions on how to use this machine except some fellow, whom he could not identify, who showed him how to place the part on the machine for two or three operations, and who told him not to take too much off. Sweet successively used the different machines during the few days he was there, each time having some difficulty. At one point he was given instructions by a man named Paul Cahn. Cahn showed him how to use the machines, how to smooth off the materials around the edge, and Cahn also worked some parts to show Sweet how to perform the operation. Another employee by the name of Eugene Ford assisted him in his work and helped to show him how to operate the machines. Sweet admitted that during the time before he was discharged and while he was working in the metal shop Grossman complained to him on two occasions that he was too slow in his work. The first time was on the second day that Sweet was in the metal shop when he was working what he called the grinding machine and Grossman told him that he was slow, that he would have to get on the ball or he would be looking for another job. When he told Grossman that he was on the job only 2 days Grossman answered, "Well, goddam how long is it going to take you to catch on." Then Grossman showed Sweet how to speed up his work. The second time Grossman spoke to him was on November 28, the date of his discharge. Again Grossman told him that his work was too slow. Sweet also admitted that he was criticized for being too slow by Henry Lorenzeni, his foreman. Lorenzeni told him that there was another employee who could run three parts to Sweet's one and Lorenzeni had the individual demonstrate. However, Sweet believed that the man was faster because he had been there for some time and had more experience than Sweet. He also admits that at one time while he was working in the metal shop Lorenzeni returned a batch of parts which Sweet had worked on and told Sweet that the parts had to be reworked because they were not satisfactory. Sweet was terminated on November 28. Thus the total time he worked in the metal shop was under 5 days because the plant was closed for the Thanksgiving holiday on November 24, 25, and 26. Moreover, Sweet testified that he did not work at any machine more than 6 or 7 hours. Sweet further admitted that when Loren- zeni told him he was slow, Sweet asked Lorenzeni why the latter did not discharge him. Lorenzeni answered that they wanted to help him. Sweet further admitted that when he was discharged, Grossmna made the following statement to him, "I put you around here thinking maybe I could keep you on but the foreman says you are a little bit slow. I am going to have to let you go because you are not putting out as I CAL-STYLE FURNITURE MANUFACTURING CO. 533 thought you would. I thought maybe if I brought you around here you would work out all right, you are just too slow." Henry Lorenzeni stated that he first put Sweet to work on the abrasive cutter and Sweet's performance was not satisfactory because it was on the slow side. Loren- zeni testified that the operation is very simple and requires no training. As a result of Sweet's working so slowly, Lorenzeni had to explain the operation a second time. Even after the second explanation, Sweet showed no improvement. The second day, Lorenzeni testified, Sweet was put on a belt sander, where material is sanded smooth. However, many of the parts Sweet worked on the belt sander had to be re- worked because they were unsatisfactory. It soon became obvious that Sweet could not master the work on the sander and Lorenzeni transferred Sweet to the grindstone which ground off burrs left over from cutting. Sweet proved to be too slow on that job too. Lorenzeni then told Grossman that Sweet was on the slow side and that "they could hardly use a man like that in the shop"; Grossman said that he would take care of it. Lorenzeni had no recollection of when Sweet was discharged, or whether he was discharged, inasmuch as after a few days he no longer saw Sweet in the shop. Lorenzem insisted on cross-examination that although he gave Sweet instructions for only a short period for each of these machines, that was all he ever gave anybody who began working on these machines. He again reiterated that they were very simple operations. I was very much impressed with Lorenzeni's sincerity as a witness. Accordingly, and because his testimony does not conflict to any great extent with that of Sweet's, I credit Lorenzeni's testimony. Substantially, Allen Grossman, stated that he was familiar with Sweet's work at all times that Sweet was employed by the Respondent. Sweet at first was performing a stapling operation in the woodworking department where he was making upholstered chairback units but that by the time of the transfer to the metal department, as heretofore related, Sweet had created such a substantial surplus of these chairback units that the Respondent no longer had any requirement for them. Inasmuch as there was no other experience that Sweet had that could be utilized in the assembly department, and because there was an opening in the metal fabrication division, Grossman thought it best to transfer Sweet to the metal fabrication department to relieve the work situation there. He testified that he observed Sweet on several occasions working in the metal working department. On one operation, doing cutoff work with an abrasive cutoff saw, Grossman noticed that by his general attitude of performance on that job, Sweet was doing very poorly. Grossman found it necessary to advise Sweet that he was doing so, and that if he continued to do this he would not only wear out the saw blades but would increase the cost of the operation phenom- enally just because of his sheer inadequacy. Grossman then demonstrated to Sweet how the job should be done and told him to speed up because he was only working about 20 percent of normal speed at that time. As a matter of fact, Gross- man showed him how to save time in loading the machine by placing parts to be machined on top of a barrel instead of reaching into the barrel on each operation. On the third or fourth day Lorenzeni advised Grossman that he did not think that Sweet would make the grade and that he just did not seem to fit in; that he was all thumbs and had no natural aptitude for the work. He then advised Lorenzeni to once again instruct Sweet in the operations and to see if Lorenzeni could not help Sweet to increase his production and performance generally. Thereafter Sweet was put on other jobs and rotated to see if a job that suited him could be found. Lorenzeni advised him on the following day that Sweet had been making remarks to the effect that if Lorenzeni "did not like my work why don't you fire me," but apparently Sweet's ability to perform the work did not improve. On the last day of Sweet's employment Grossman observed Sweet working on the cutting operation with the abrasive saw and again Grossman observed that Sweet's performance was not up to par. At that time Lorenzeni advised Grossman that his actual performance was only 50 percent of what any other inexperienced man might perform. Accord- ingly, Grossman terminated Sweet. The termination was due to the fact that Sweet was not performing his job satisfactorily and because a certain amount of the material that he had worked on was so poor that it had to be worked over. Grossman further denied that he had knowledge that Sweet was engaged in any union activity. To the extent that Grossman testified that Sweet's work was not up to par for an employee even with his inexperience and, because Grossman's testimony tallies with that of Lorenzem whom I have already credited, I credit Grossman's testimony to that effect. The problem remains therefore, whether Sweet, who was demonstrably a substandard employee at the metal shop task assigned to him, and who was active in the union organization effort, and who was discharged during the height of the Respondent's antiunion campaign, was discharged because he was substandard or 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of his union activity. Admittedly, the circumstances of Sweet' s discharge coming when it did gives rise to the suspicion that the Respondent used Sweet's poor performance as a pretext to eliminate an active union adherent. However, as I have stated before, I was impressed with Lorenzeni's testimony to the effect that they attempted to assist Sweet in many ways before he ultimately told Grossman that he could not use Sweet in his department. Because Grossman's testimony so closely follows that of Lorenzeni's to the effect that they attempted to help Sweet accom- modate himself to the new work and because there is no showing that Sweet's transfer from the fabrication of chair backs was not necessary, I am convinced that, despite the aura of suspicion surrounding Sweet's discharge, he was discharged for cause. In arriving at the foregoing conclusion, I am not unmindful of the fact that, admittedly, Sweet was a satisfactory employee up to the time of his transfer from the assembly department to the metal working department. However, he admitted that he experienced considerable difficulty with the machinery in the metal working department. Therefore, under all the circumstances, I do not believe that it was necessary for the Respondent to tailor its operations to accommodate an employee who happened to be active in union activity, which activity the Respondent may have known about. Nor has the General Counsel satisfactorily proven to me that Sweet's lack of pro- ficiency was but a pretext utilized to camouflage a discriminatory discharge. A con- clusion that Respondent had knowledge of Sweet's activity can be inferred only from the fact that Sweet was active in the Union's efforts in the Respondent's plant. How- ever, the record is completely lacking in any direct evidence of Respondent's knowl- edge. Noting, as I have, that Sweet's work was corrected by both Lorenzeni and Grossman, and considering the manner in which they transferred him from machine to machine to give him an opportunity to adjust himself to the new work, I con- cluded that the action was justifiable and I cannot conclude that Sweet's discharge was discriminatorily motivated. Accordingly, I shall recommend that allegations of the complaint which relate to Sweet's discharge be dismissed 2° c. Joseph McAdams McAdams was employed on August 18, 1961, as an assembler in the packing and shipping department. His foreman was Pedro Bordenave. McAdams signed a union authorization card on October 18 His card had been given to him by Coto outside the plant. He took the card home and signed it and the next day at the plant gave it to James Mitchell. During the Union's organizational campaign, McAdams attended three union meetings, two at James Mitchell's home and the other at a public hall. Sometime in October, probably about October 10 or 11, the Respondent received a notice of assignment of McAdams' wages from a Victor Clothing Company. At that time Grossman spoke to McAdams about the assignment and McAdams asked Grossman if he could have time off to go downtown and straighten the matter out with Victor. The next day McAdams brought in a release of the notice of assign- ment of wages to Grossman. As noted earlier in this report McAdams was one of the individuals to whom Bordenave displayed the printed questionnaire. McAdams testified that at the time Bordenave showed him the questionnaire, Bordenave stated to him, "This really applies to you because you are always asking for money." About noon on November 22, the day on which McAdams was discharged, Bordenave informed him that the Company had another wage assignment against his salary from the Victor Clothing Company. McAdams stated that he did not know about it and said that he would like to get time off to go downtown to try to take care of it. Bordenave answered that he would go to the office and see about it. McAdams also stated that he had a sore hand and at the same time would like to have a leave slip to see a doctor. Bordenave returned a short while later with a leave slip for Mc- Adams to see the doctor. McAdams then went to clock out and discovered that his timecard was not in the rack. He asked Bordenave why his card was not in the rack and Bordenave said that he did not know but that he would find out. Bordenave went back into the office and returned saying, "Al says he is going to let you go." McAdams asked Bordenave why this action was taken and Bordenave professed lack of knowledge McAdams then proceeded to the personnel office and saw Allen Grossman. He asked Grossman why the latter was letting him go and Grossman told him that he had a garnishee against his salary whereupon McAdams stated that people get these every week. Grossman then answered, "I heard that you are one of the leaders of 20 See Borden Cabinet Corporation , 131 NLRB 890, 897-899 CAL-STYLE FURNITURE MANUFACTURING CO. 535 this union. I am going to fire you. I don't want you to feel that you are being laid off; you are fired." Then Grossman further stated, "You're a good worker and the fellows that you brought out here, they are good workers and I am going to make an example out of you, you can tell all of your friends they are next." When McAdams asked him why he took this attitude Grossman stated, "Well, if I get you, if I fire you, maybe I can shake someone else in the Company." Later Grossman gave him his pay envelope in which was enclosed a copy of the notice of assignment.21 Also earlier in this report I have related a conversation between Grossman and witness Newton in which Grossman referred to Newton's being an ex-convict. During that conversation, Grossman stated that he had liked the work of Joe McAdams and that he was paying both McAdams and Newton $1.75 an hour and that "it was just one of those things because he did not want to lay McAdams off but it was one of those things because he realized Joe McAdams had a family and children." Grossman testified that he received the second wage assignment against Joseph McAdams' salary on November 22 and that although it was Thanksgiving weekend it was found necessary to terminate McAdams because, at the time of the first wage assignment, Grossman warned McAdams that he would have to automatically terminate McAdams under company policy if McAdams had another wage assign- ment against him ; that McAdams nevertheless allowed a second wage assignment to be filed. Grossman testified that he told McAdams he was sorry but that it was against company policy and therefore it was necessary to let him go. Grossman emphasized that these are matters of company policy. He denied he ever told McAdams that he was discharging the latter because of union activity. He further stated that he did not know anything about the union activities of McAdams. On cross-examination, Grossman admitted that there were others working for the firm at that time and presently for the firm who had more than one wage assign- ment filed against them One individual mentioned was Paul Cahn. At one point during the cross-examination, Grossman stated that he did not have any employees during the period of 1961 who received more than one notice of assignment. How- ever, under further questioning he reversed his testimony and finally admitted that there was at least one, and there might be one more. He ultimately named Paul Cahn as one and admitted also that there was another employee named Herbert Kimkikume. Grossman sought to explain away these two situations by inferring that these were extremely valuable employees that he knew of their personal situation and had made special exceptions in their cases. I am impressed by the fact that Grossman at first denied that any other employee had more than one garnishee against him and then, after prodding, finally admitted that there were others, actually naming two such employees. I am not impressed, however, with Grossman's explanation that these employees were special cases. I also note that the Respondent failed to name any other employees who were let go during the year 1961 or, at any other time, because they had more than one garnishee levied against their salaries. Heretofore, I have credited McAdams over Grossman with regard to the conversation in which Grossman stated to McAdams that he was firing McAdams as a union man to set an example for other employees. Accordingly, I find that Respondent not only had knowledge of McAdams' union activities but also seized upon the second garnishee as a pretext to discharge McAdams and that the true motivation for McAdams' discharge was the latter's union activity. d. Franklin David Giles Giles was first employed by Cal-Style on August 28, 1961, and worked in several departments, the last being the upholstery department. Pedro Bordenave was his foreman during the entire time he worked for the Respondent. Giles signed a union card on October 16, 1961. The card was given to him by Coto, the union organizer, at the plant. Giles filled the card out and returned it to James Mitchell. Giles testified that on two different occasions Mr. Coto spoke to several employees, including Giles, while they were lunching in front of the plant. On October 11, 1961, Giles received a notice of assignment of his wages from Victor Clothing Company. He was told about it by Allen Grossman. Two days later, on October 13, Grossman stopped Giles and informed him that he had spoken to the Respondent's lawyer and the lawyer stated that he did not think that the assignment was legal; that Grossman would give him his full salary, as usual, that 21 This last conversion between Grossman and McAdams has been fully related hereto- fore as an incident of coercion and restraint and was found to be violative of Section 8(a)(1) of the Act. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afternoon. Giles took the money, paid the amount due, and the garnishee was then withdrawn. At the time that Grossman spoke to Giles about the garnishee in October, Gross- man made no threat to discharge Giles if another wage assignment was received, nor was any matter of company policy discussed with Giles at that time.22 On November 29, the day of Giles' discharge, Grossman informed him that the Respondent had received another wage assignment, also from the Victor Clothing Company. Giles then attempted to display to Grossman the receipts he had received for payments and to explain to Grossman that the matter was evidently a mistake and that the payments were up to date. Grossman said he didn't have anything to do with that. Giles tried to talk to Grossman, but Grossman said Giles had to go. Grossman also said that if Giles had made the payments to tell Victor Clothing that they had cost him his job and that he could probably sue them for about $5,000. In support of the foregoing testimony of Giles, employee Atrise Williams testified that Grossman, thinking him to be Franklin Giles, spoke to him sometime in the early part of October 1961. Grossman informed him that he had a wage assignment from the Victor Clothing Company and that he did not want any losses so that he would like the witness to go down to the Victor Clothing Company and take care of the matter as soon as possible. Williams stated that no one ever told him that the Company had a rule under which an employee would be discharged if he received more than one notice of garnishment. On the other hand, Grossman testified that at the time of the earlier wage assign- ment against Giles he had spoken to Giles and told him to take care of the matter so that it would not happen again and that he warned Giles "If we have another assignment of your wages from Victor Clothing Company you will be dismissed." As heretofore set forth with regard to the discharge of Joseph McAdams, Grossman further testified that the discharge upon a second wage assignment or garnishee was was mandatory under company policy. For the reasons heretofore set forth in discussion of the discharge of employee Joseph McAdams, I find that the Respondent utilized the second garnishee against Franklin Giles for the purpose of a pretext to discharge Giles and that the real motive for Respondent's discharge was Giles' union activity.23 e. James Mitchell As heretofore shown, Mitchell was the most active of all of the union adherents in the plant. He signed his union authorization card on October 18. The card was given to him by Robert Coto. He was designated by the Union to be the individual who would distribute and receive authorization cards in the plant. He also had two of the three meetings held with the Respondent's employees in his home. As hereinabove set forth, his name was mentioned as the union leader by both Bordenave and Jellenek to other employees. Mitchell was hired in July 1961 as a laborer. After his first 4 weeks on the job as a laborer, Mitchell was placed on a routing machine which cuts faces and sides and backs to be fitted into furniture drawers. After working on the router for about 6 weeks, Mitchell was transferred to an even more complicated machine, a table saw, where he ripped and cut wood material for use in the manufacture of furniture. On or about October 25, he was placed back on the router. About 2 or 3 weeks before he was discharged, and without any explanation whatsoever, Mitchell was taken off all machinery and put back to work as a laborer. This was after Mitchell had asked to be moved from the router to the table saw permanently and Jellenek, his foreman, had refused this request claiming that he could not spare Mitchell from the routing machine. After Mitchell was removed from the rout- 22 From the credited testimony of Franklin Giles. 23 In making this finding I credit the testimony of Giles and 'do not credit Grossman's testimony with regard to company policy and the reasons for discharging Giles. In com- ing to the conclusion that Giles was discharged for his union activity, I am not unmindful of the fact that there is no direct testimony of Respondent's knowledge of Giles' union activity However, as set forth in the text above, Giles did speak to Coto outside the Respondent's plant in plain view of possible observation from the Respondent's office. In view of the fact that I have found that the Respondent did not at the time it dis- charged Giles and McAdams have a policy of discharging employees who had a second garnishee placed against their wages , and since I have discredited Grossman to this effect, I further discredit Grossman's denial that the Respondent knew of Giles' union activity. Accordingly, I conclude from all of the circumstances that the Respondent did have knowledge of Giles' union activity. CAL-STYLE FURNITURE MANUFACTURING CO. 537 ing machine back to a laboring position, he saw another man, who had been a laborer, transferred to the routing machine. Yet Jellenek never criticized his work as a router, and, as heretofore stated, had said that he could not spare Mitchell from the routing machine. Moreover, Mitchell received pay increases several times during his period as an employee of the Respondent. During the month of October, Mitchell was forced to remain away from work for a period of more than 3 days because of an infected foot. Mitchell had informed both Butnik and Jellenek at that time that he would be out of work until the foot was healed. When he informed them that he would be out and told them why, they both told him to take it easy. During the period of his absence he received two paychecks. When he returned he was put to work immediately by Jellenek. At no time while he worked for the Respondent was Mitchell ever informed that the Re- spondent had a policy of terminating employees who were absent for more than 3 days. On November 28, Mitchell was injured in an automobile accident and incurred a whiplash injury to his neck. He informed Jellenek of the accident on the morning of the 29th; that he would not be able to work that day; and that he was on the way to see a doctor. Jellenek asked Mitchell how long he would be out of work and Mitchell told him that he did not know. Jellenek then requested that Mitchell keep in touch with him. The following day Mitchell visited Jellenek and told the latter that he probably would be back to work on the following day. Jellenek ex- pressed surprise because of the brace that Mitchell was wearing on his neck. On December 1, Mitchell spoke to Grossman in the mill department. Mitchell had gone to the plant to pick up his check. On the check was written the words "Final check. Terminated." Mitchell asked Grossman what the meaning of the words was and whether this meant that Mitchell was discharged. Grossman's reply was that Mitchell was "one of those who was looking for a better paying job." Then Mitchell asked Grossman if it was because Mitchell was looking for a raise and Grossman did not answer. Mitchell then asked Grossman if it was because of the Union and again Grossman did not answer. Finally, Mitchell asked Grossman if it was because of the accident and Grossman said, "You are not able to work." Thereupon Mitchell said, "I will be back to work on Monday." Grossman then said, "Well, after 3 days we will let you go anyway." This ended the conversation. Mitchell further testified that when he did get his release from his doctor on Decem- ber 4 he did not bring it to Cal-Style because he had considered himself fired by Grossman on December 1. Butnik testified that when Mitchell returned from his illness with the infected foot in October, Jellenek came to him and, because Mitchell had a reputation as a good worker, Butnik told him to put Mitchell back to work. However, Butnik testified, Mitchell's card had been removed from the rack and he had been considered termi- nated after 3 days of illness at that time. Butnik inferred that this was a common practice of the Company in all cases . He stated that when Mitchell returned at the former date Butnik gave Jellenek a new timecard for Mitchell and reentered Mitchell's name on the roster of active employees. Grossman testified that he remembered when Mitchell was discharged; that it was an automatic termination according to company policy which requires automatic termination of an employee after absence if he is not available for work or does not present himself for work in 3 days. This does not preclude an employee from reapplying for work. Grossman testified further that the last time he saw Mitchell was when the latter came for his check on December 1. Grossman handed him his check and said to him, "I notice that you had this automobile accident, that you are wearing this neck brace. I'm sorry to hear about your misfortune, and I hope you have a speedy recovery." Grossman testified that he told Mitchell that although the check was marked "Terminated," that this was an automatic procedure and did not preclude him from reapplying; that it was merely a bookkeeping procedure and that he could be rein- stated and reemployed by the Company upon presentation of a release from the physician by whom he was being treated. Then, according to Grossman, Mitchell said that he was ready to work right then and there. Grossman told Mitchell that the latter could not work in his condition, with a neck brace and with his head positioned up in the air; that Mitchell could not perform any job functions under these circumstances. Then Grossman again emphasized that as soon as Mitchell was in physical condition he would gladly put him back to work. Grossman admitted that Mitchell's reputation as a workman was good and that his foreman, Jellenek, had spoken highly of him and that they were grooming him for a more skilled job, one which required training for specific operations . He stated that he had absolutely no knowledge of Mitchell's union activities. He further reiterated that he explained 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Mitchell that the company policy was just a matter of convenience and did not mean that Mitchell was not eligible for rehire and all that was necessary for him to do was to produce a certificate from his physician that he was physically able to work and that they would rehire him under those circumstances. Mitchell then replied, according to Grossman, that the Respondent was firing him for union ac- tivities and Grossman stated that it was nothing of that sort. Under all of the circumstances herein, I cannot credit Grossman's denial that he was aware of Mitchell's union activities. As heretofore stated, Mitchell was the most active union adherent in the plant and credited testimony heretofore set forth demon- strates that Mitchell was well known as the union leader by various supervisors in the Respondent's plant. With regard to the Respondent's policy of terminating employees who are absent for more than 3 days, I especially note that the Respondent failed to produce the person who ordinarily keeps the payroll records showing employee hirings and discharges. Certainly, the payroll book or other corporation records would amply demonstrate such policy if, in fact, such policy existed. Accordingly, I do not credit Grossman's and Butnik's testimony to the effect that the 3-day dis- charge was a company policy. Inasmuch as I do not credit the other portions of Grossman's testimony, I do not credit that portion of the testimony in which Gross- man stated that he informed Mitchell that the policy was merely automatic and that Mitchell was free to return to work upon presentation of a doctor's certificate to the effect that he was able to perform his duties. Because of Mitchell's well known union activities and because the record presents no further or additional reason for Mitchell's discharge, I find upon the entire record that Mitchell was discharged for engaging in protected activities. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operation of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent, by threats, interrogations, and changes of working conditions interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist therefrom.24 Also, having found that Robert Simmons, Joseph McAdams, Franklin Giles, and James Mitchell have been discriminated against in respect to their hire and tenure of employment, I shall recommend that the Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, and make each whole for any loss of earnings he may have suffered because of the discrimina- tion against him, by payment of sums of money equal to the amount each would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during this said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289, 291-294. Computation of backpay shall include 6 percent interest per annum as provided for by the Board in Isis Plumbing & Heating Co, 138 NLRB 716. I shall also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amounts due under this recommended remedy. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. 211 shall not however, recommend that the Respondent he ordered to reinstate the lunch hour conditions which prevailed prior to the advent of the Union In my opinion, although the change in policy was unlawful because It was adopted to Interfere with the employees' attempts to organize, It was also salutary in view of the littering and loitering conditions prevailing before the change Under the circumstances, It would seem un- necessary to resume a policy which In t1" past gave rise to marked abuse, In order to remedy this particular unfair labor practice. CAL-STYLE FURNITURE MANUFACTURING CO. 539 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Cal-Style Furniture Manufacturing Co., a corporation, is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By coercively interrogating employees concerning their union sympathies, by threatening to lay off or discharge employees for engaging in union activities, by threatening to close its plants if its employees choose the Union to be their bargain- ing representative, and by changing working rules to prevent the employees from engaging in protected activities, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of employees Robert Simmons, Joseph McAdams, Franklin Giles, and James Mitchell the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that the Respondent, Cal-Style Furniture Manufacturing Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization of its employees, by dis- criminating in regard to hire or tenure of employment of its employees. (b) Coercively interrogating employees concerning their union sympathies, threat- ening to lay off and discharge employees for engaging in union activities, threatening to close its plant if its employees became unionized, and changing working rules to interfere with its employees efforts to organize. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Robert Simmons, Joseph McAdams, Franklin Giles, and James Mitchell full reinstatement to their former or substantially equivalent positions and make each of them whole for any loss of earnings suffered as a result of the dis- crimination against him in the manner described in the section entitled "The Remedy." (b) Post at its plant in Los Angeles, California, copies of the attached notice marked "Appendix." 25 Copies of said notice, to be furnished by the Regional Di- rector for the Twenty-first Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, time- 25 In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by the 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" 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards, personnel records and reports, and all other records necessary to determine the amount of backpay due. (d) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply therewith.26 It is recommended that paragraph numbered 8(f) and so much of paragraph num- bered 6 of the complaint which alleges the unlawful discharge of employee William Sweet, and all allegations of the complaint as to which specific findings of violation have not been made, be dismissed. 20 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Twenty-first Region, In writing, within 10 days from the date of the receipt of this Order, what steps the Respond- ent has taken to comply herewith." APPPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights to engage in or to refrain from engaging in union activities by interrogating them concerning their union sympathies and activities, by threaten- ing to discharge them or lay them off for engaging in union activities, by institut- ing changes in our employees working conditions for the purpose of discourag- ing their attempts to organize, or by threatening to close our plant if our employees select International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization as their representative. WE WILL NOT discourage membership in International Union, Allied Indus- trial Workers of America, AFL-CIO, or any other labor organization of our employees, by discriminating in any manner with regard to hire, tenure, or any term or condition of employment. WE WILL offer immediate and full reinstatement to Robert Simmons, Joseph McAdams, Franklin Giles, and James Mitchell to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings resulting from our discrimination against him as provided in the Intermediate Report and Recom- mended Order issued by the Trial Examiner of the National Labor Relations Board. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from engaging in any or all such activities, except to- the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment in conformity with Section 8(a) (3) of the Act. All our employees are free to become, remain, or to refrain from becoming or remaining members of any labor organization except to the extent above stated. CAL-STYLE FURNITURE MANUFACTURING Co., 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 ap- plication 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, Eastern Columbia Building, 849 South Broadway, Los Angeles 14, California, Telephone No. Richmond 9-4711, Extension 1031, if they have any question concerning this notice or compliance with its provisions.