Edmund A. Gray Co., Inc.

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole the employees named below for any loss of earnings they may have suffered by reason of the discrimination against them: Theresa Francis Gloria Stoddert Mary Piche Olivia Cruickshank Lillian Francis All our employees are free to become, remain, or refrain from becoming or remaining members of Local 597, Chauffeurs , Teamsters , Warehousemen & Helpers, a/w International brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers, of America, or of any other labor organization. MAYER B . COHEN, BERNARD COHEN AND PEARY COHEN, D/B/A RIVERSIDE WHOLESALE DISTRIBUTORS, Employer. Dated------------------- By-------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Boston, Five Cents Savings Bank Building, 24 School Street, Boston 8, Massachusetts, 02108, Telephone No. Lafayette 3-8100 , if they have any question concerning this notice or compliance with its provisions. Edmund A. Gray Co., Inc. and United Steelworkers of America,, AFL-CIO. Case No. 21-CA-49f3. May 14, 1963 DECISION AND ORDER On February 20, 1963, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, Respondent filed exceptions to the Intermediate 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 [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions 2 of the Trial Examiner. 'Member Leedom adopts, as do his colleagues , the Trial Examiner 's finding that the Respondent violated Section 8 ( a)(3) by terminating the employment of its female em- ployees In view of this finding Member Leedom also adopts the Trial Examiner 's further finding that the Respondent violated Section 8 ( a) (5) by terminating the female employees without consulting with the Union See his separate opinion in Hawavi Meat Company, Limited, 139 NLRB 966 2 For the reasons stated in his dissenting opinion in Isis Plumbing it Heating Co., 1318. NLRB 716, Member Leedom would not award interest on the backpay due 142 NLRB No. 70. EDMUND A. GRAY CO., INC. 591 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.3 3 The following shall be added to the Appendix attached to the Intermediate Report immediately below the signature line at the bottom of the notice : 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 applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard before Trial Examiner Martin S . Bennett at Los Angeles, California, on December 3, 4, and 17, 1962, and January 8, 1963. The amended ,complaint ' alleges that Respondent , Edmund A. Gray Co., Inc., had engaged in unfair labor practices within the meaning of Section 8(a)(1), (3 ), and (5) of the Act by unilaterally terminating six employees, Dolores Williams, Marian Flinn, Audrey Tosh, Martha Williams, Madlene Williams, and Elvira Beltran, shortly after .the certification of United Steelworkers of America, AFL-CIO, herein called the Union, as the representative of its employees . Oral argument was waived and briefs have been received from the General Counsel and Respondent. 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 RESPONDENT Edmund A. Gray Co., Inc., is a corporation engaged in the manufacture of pipe nipples at Los Angeles, California, and ships products valued in excess of $50,000 .per annum directly to points outside the State of California . I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is a labor organization within the _meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Introduction; the issues The complaint alleges , Respondent's answer admits, and I find that all production and maintenance employees of Respondent , excluding office clerical and professional .employees, watchmen, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The complaint alleges, Respondent's answer admits, and I find that , following an election on or about April 25, 1962, and its certification on or about May 3, 1962, the Union was and now is the exclusive representative of the employees in said unit within the meaning of Section 9(a) of the Act. The parties commenced a series of weekly meetings on June 5 , 1962, and the Gen- eral Counsel contends that by the unilateral termination of the six above -named em- ployees on or about August 3, 1962, during the course of these negotiations, Respond- . ent has discriminated with respect to their tenure of employment, has refused to bargain with the Union, and has interfered with, restrained, and coerced employees in the exercise of their right to engage in union activities. At the time material herein, Respondent had a complement of approximately 60 employees. Four of the six complainants, Dolores Williams, Marian Flinn, Martha Williams , and Madlene Williams worked in the packaging department. They - were the only women in the department which also had a number of male employees. 'Issued October 31, 1962, amended December 4, 1962, and based upon charges filed .August 7, October 25, and December 4, 1962. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The other two complainants, Audrey Tosh and Elvira Beltran, together with some men, worked in another department identified herein as the factory; they were opera- tors of hand threading machines and threaded pipe nipples of various sizes. Only in the case of an absence or when it was necessary to fill a special order, were Tosh and Beltran assigned to the packaging department. These six constituted the entire complement of female employees in the plant. Tosh had entered Respondent's employ in July 1958 and Beltran in June 1961. The respective seniority of the four packers dated back to 1959, 1960, 1961 and 1962, although Martha Williams and Madlene Williams had enjoyed previous terms of employment commencing in 1959 and 1960, respectively. Women have worked for Respondent in these classifications for 5 or 6 years with no substantial change in the nature of their duties, except to reflect the use of different and, in some cases, smaller packages. B. The negotiations As indicated, weekly negotiating meetings commenced on June 5, 1962. Represent- ing Respondent were Vice President Lawrence Gray and Vice President and Office Manager Bonnie McCaslin. They were joined at the third meeting, apparently that of June 19, by Richard Cords, industrial relations consultant for Respondent, who was the chief spokesman thereafter. Spokesman for the Union was Staff Rep- resentative Gilbert Anaya; also participating were Business Representative Henry Martinez and a three-man employee committee whose membership included employee Carlos Thorne. The Union submitted its initial contract proposal at the June 5 meeting. The General Counsel points out that section VIII thereof contained a proposal that in all cases of "decrease of forces, and rehiring, seniority shall prevail provided the employee is qualified to capably perform the work." Following page 20 thereof is the "UNION'S WAGE PROPOSAL" wherein the Union asked for "Correction of job classification rate inequities" and for "Correction of job classification inequities of employees, if any." On June 26, Respondent submitted a counterproposal which listed hourly wage rates of $2 for women packers in the packaging department and $2.05 for women in the factory.2 Consistent with Respondent's existing wage struc- ture, these rates were beneath the rates proposed for men in comparable classifications. Representative Anaya, as he testified, immediately noticed that Respondent was proposing a lower wage scale for women packers and contended that the job should carry one rate irrespective of sex. Vice President McCaslin argued that there should be a wage differential because women could not lift as much as men . It was then contended that lifting was not involved in the job; as will appear below, Respondent has stressed the claim that these women were prone to violate an order of the California Industrial Welfare Commission forbidding women to lift or carry packages over 25 pounds except with permission from that department. The Union also insisted that as long as production standards were met there should be equal pay for equal work .3 At the July 3 meeting, the Union submitted a wage proposal with identical wage rates for male and female employees in the same classification . Vice President Mc- Caslin again took the position that there should be a wage differential. Anaya, on behalf of the Union, adhered to his position that the respective classifications should carry a single rate of pay. The plant has a safety committee composed of employee and management rep- resentatives. Monthly meetings are held and they are usually attended by a safety engineer, Thomas Porter, who is employed by or for the carrier of Respondent's workmen's compensation insurance . Vice President McCaslin testified that Porter was present at the July 10 safety meeting after which he inspected the plant and reported to her that the women employees were lifting packages weighing in excess of 25 pounds; that he, Porter, had wieghed such a package; and that it "was much in excess of the legal weight [25 pounds]." Vice President Gray similarly testified that both McCaslin and Porter had reported to him that the girls were lifting weights in excess of 25 pounds. Porter, however, presented testimony of a far less drastic import. He testified that he had told committee members and complainant Marian Flinn that she was responsible for seeing to it that the proper conveyors were used and the packages 0 The latter would include the pipe threading machines. 0It is undisputed that men were available to lift cartons which weighed over 25 pounds. Much testimony was developed concerning this issue, including the claim that no lifting was necessary if Respondent's machinery for transporting packages was not pushed out of line as a result of bumping by the operators of forklift trucks. EDMUND A. GRAY CO., INC. 593 not lifted by the girls, but he placed this talk with Flinn in approximately August 1961.4 Porter also testified that something had been said to him about lifting by the women, that he had inspected the plant and that he saw no lifting by them. He did note that Respondent's conveyor was out of line and that if it were properly posi- tioned this would remove any temptation for lifting; he so informed management, including Plant Superintendent Cameron. Porter also testified that the lifting problem applies to both sexes and that the insurance carrier is interested in avoiding large awards for the aggravation of preexisting conditions as well as for initial injuries. The testimony of Union Committeeman Thome agrees with that of Porter. Thorne testified that during the inspection of the plant on July 10, he, Thome, personally lifted and weighed a carton and ascertained that its weight was in excess of 40 pounds. The girls, he testified, and I so find, had not lifted it. I find, therefore, that Porter did not tell McCaslin, as she claimed, that the girls were lifting too heavy objects. That evening, the regular weekly negotiating meeting was held. Vice President Gray claimed that the union committee argued that objects over 25 pounds had been lifted and that it was difficult to stop. Gray also stated that he told the committee that "recurrence of this excessive lifting would be subject to instant dismissal." This testimony is treated hereinafter in evaluating Respondent's motivation herein. McCaslin also testified that Committeeman Thorne claimed that Porter had weighed a 49-pound package and that girls were lifting such packages. As found above, Porter testified to the opposite effect. That the girls were not engaging in such lifting is disclosed by their credited testimony which is set forth hereinafter. McCaslm admitted that Staff Representative Anaya asked Vice President Gray at this meeting to sign a contract agreeing not to reduce wages. Gray replied that he had no such intention but that business was off and that "we may have to have a layoff." At unspecified meetings prior to August 3, according to Anaya, the company representatives rejected the Union's seniority proposal that seniority be considered on a departmental rather than on a plant basis. That the Union's position on equal pay for women was a cause for management concern, is reflected by the testimony of Vice President Gray that the Union on several occasions had sought this result, and in the testimony of Plant Superintendent Winston Cameron that Gray had informed him of this action. On August 2, 1962, Superintendent Winston Cameron was instructed by Vice President Gray to terminate the six women and Cameron did so, making this effective at the close of business on August 3. As noted, they constituted all the women in the bargaining unit. One of the girls being on vacation, Cameron testified that he told the other five that business conditions required a reduction in the work force and they were to be laid off.5 The girls requested letters of recommendation and Cameron obliged. The letters are identical except for name, position, and tenure. That of Tosh states as follows: To Whom It May Concern: Audrey F. Tosh has been in our employ as a hand machine operator since July 28, 1958. During this period she has been an excellent employee. Her honesty and loyalty to her job has been beyond reproach. Cooperation, attendance and ability to perform her duties are of the best. Any further information desired by a prospective employer relative to work performance habits will be readily furnished. Her release from our employ is due to re-organization and is positively no reflection upon Audrey F. Tosh as an individual. It is undisputed that the subject of termination of the women was never raised at any of the bargaining meetings prior to August 7; nor was there any communica- tion of this decision by Respondent to the Union. The knowledge of the Union stemmed solely from the fact that the girls, after their termination, notified Union Committeeman Thorne of the act. Respondent in fact relies on this indirect com- munication as satisfying Respondent's obligations under the Act, and admitted herein that the Company never notified the Union of its decision to terminate the women. In fact, its representative during the negotiations, Cords, testified that 4 There is not an iota of evidence that it was more convenient for the girls to lift pack- ages or that it was to their financial advantage to do so. Stated otherwise, one must assume, on Respondent's theory of the case, that the girls preferred to lift heavy packages, but this is hardly a tenable result 5 Cameron identified the vacationer as Tosh, but the record indicates that it was Martha Williams. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had no "obligation to notify the Union because no agreements had been reached regarding seniority or anything else that would affect the Company's de- termination in this matter." He also testified that Respondent felt that it had no obligations to discuss the termination of the women with the Union because (1) the topic had never been raised at any negotiating meeting and (2) discussion thereof was not in order unless the Union first brought up the topic. The record also indicates that a male employee, Shaw, was discharged on August 3. Vice President Gray testified both that Shaw was released for the same reason as the girls and that the discharge was caused by his bad work habits. Never- theless, Shaw was rehired about 2 weeks later after allegedly promising to mend his ways. C. Discussion (1) Initially treated is Respondent's contention that its decision to terminate the entire complement of female employees, viz, the six complainants, was made in February 1962, prior to the commencement of organizational activities by the Union which resulted in the subsequent certification of the latter in May; the General Counsel does not dispute that union activity started subsequent to February. In considering this contention, it is to be noted that because of procedural and other problems, the testimony was presented in three separate stages. In support of this contention, Executive Vice President Gray testified at the final stage of the hearing that he met with Vice President McCaslin and Plant Superin- tendent Cameron early in February 1962. They discussed alleged limitations on the types of work which women could perform and noted that restrictions on lifting and on the performance of outdoor work restricted their use. The group then con- cluded that when a general layoff became necessary, all of the women would be terminated and the plant made an all-male plant for reasons of efficiency.6 Gray was corroborated by Plant Superintendent Cameron who testified that each year a layoff is anticipated due to a seasonal slowdown and that it was decided at this meeting to terminate the women "when this time arrived." Further corrobora- tion was presented by Vice President McCaslin who testified that it was decided at this meeting to lay off women rather than men when business dropped off because the women required the assistance of men in the performance of some of their duties and they could perform neither as much work nor as many types of work as the male employees. The date of the layoff or discharge was not decided upon and was left contingent upon business conditions. McCaslin also testified that these layoffs generally involved six or seven employees. This testimony by these three witnesses which is in substantial agreement, is not credited in the light of previous testimony of a significantly different tenor by these very same witnesses. Thus Gray previously testified concerning a contract ne- gotiating meeting on July 10, 5 months subsequent to February, wherein the problem of lifting by women was discussed. He allegedly stated at the time, according to his testimony, that "recurrence of this excess lifting would be subject to instant dismissal"; this is hardly consistent with a previous decision to terminate the women because of then existing grounds. Again Gray was asked when he decided to discharge the group of employees and replied that the decision was made in mid-July, that it was caused by lack of business, and that if business had been satisfactory "In all probability" no one would have been terminated. I am unable to reconcile this with a purported decision 5 months earlier to put the plant on an all-male basis. Again Gray was previously asked whether he made a decision as to each of the six or whether it was decided to discharge them as a group. He testified that in selecting the six female employees "There was point by point brought out about each and every one, and things seemed to point out that the entire group should go " In this respect, it may be noted, as will appear, that he claimed Tosh and Beltran selected only because of lifting, something they rarely did, and that Dolores Williams was chosen in part because of her "attendance record," a point concerning which no evidence was adduced. Paradoxically, Gray again testified that because of reports made to him about a discussion of lifting at the July 10 safety meeting, heretofore discussed, he decided then and there to select the women for discharge. In fact, Gray admitted that he made the final decision to terminate the women after the subject initially arose in July; that discussions were then held with the foremen of the two departments involved, the plant superintendent, and other plant executives; that the meeting 8 While the Respondent's witnesses testified both that Respondent discharged the women and laid them off, I deem it immaterial for the purposes of this immediate discussion which action was taken. EDMUND A. GRAY CO., INC. 595 at which the decision was made as to which employees would be discharged took place in mid-July; and that he thought the decision was "finalized " at that time. He further testified that the seniority of the girls had been considered in arriving at this decision. Again, I find this irreconcilable with a purported policy decision predicated upon their sex and weakness made 5 months previously. The earlier testimony of Cameron is similarly in great contrast to his later testimony. He testified at one point that it was on August 2 that he was advised by Vice President Gray of the decision to terminate the women. He later testified that he knew of the impending layoff because of business conditions and that 1 or 2 days prior to the layoff, Gray told him that Respondent would have to lay off "some people." Gray informed him that he had decided to lay off the women because of limitations in the types of work they could perform. Cameron also testified that Gray "asked my opinion" in order to verify or bear out Gray's views on the matter. This was consistent with Gray's practice of obtain- ing Cameron's opinion when layoffs were necessary as to who should be chosen. It is significant that, according to Cameron, Gray had mentioned to him that the Union had sought equal pay for women, but that, so far as Cameron was concerned, this topic played no part in his recommendation . Be that as it may, this purported conference on or about August 1 is hardly indicative of a decision made in the previous February to eliminate all women from the plant. This testimony reflects rather consideration of the matter and arrival of a decision at the time and not 5 months earlier. As for McCaslin, she testified that she was not involved in the decision to lay off the women , but that she did participate in the discussion thereof. However, the entire thrust of her testimony at an earlier stage of the hearing is in terms of a decision in August to terminate the women without a word being said as to a previous decision in February. And, in discussing the termination , she testified that it was little different than previous reductions in force where-"Some of these girls have been laid off and brought back." This, as will , I deem inconsistent with a longstanding decision to eliminate women from the plant for efficiency reasons. If they were being eliminated and were to be replaced by men , when the occasion arose, the possibility of their being returned to work when conditions improved serves only to refute the claim by Respondent that it changed to an all-male plant for reasons of efficiency and economy. (2) Respondent has raised the contention , as Gray initially testified, that the women were terminated because they had been lifting packages weighing in excess of 25 pounds, contrary to California law forbidding such activity. Gray claimed that the women had been notified many times, at his direction , not to lift such weights; that he had stated on July 10 that this would result in instant dismissal; that "We were always after them about weights . . .'; and that he gave instructions that the women were to be so notified. Evidence was adduced of two inspection reports from the Division of Industrial Welfare of the California Department of Industrial Relations . The first dates back to July 28, 1959 , and noted five conditions wherein correction was required. One of these was that "Women may not lift more than 25 pounds." In a letter dated February 5, 1962 , the department wrote to Respondent concerning a reinspection made on February 2 and stated as follows: On February 2, 1962, a reinspection was made of your establishment to ascertain compliance with the Labor Code and Industrial Welfare Commission Order Number 1-57, particularly with respect to those violations which were previously brought to your attention. The necessary corrective action has been taken with respect to all items except those pertaining to lifting by women, and the maintenance of a minimum tem- perature of 65°. Although you stated that Company policy prohibited women from lifting more than twenty-five pounds, it may be necessary for you to extend your supervision to insure that this is complied with. It is essential that the installation of adequate heating facilities be completed without further delay . Due to the working environment of women employees, it was suggested that reflective infra-red heaters be installed at the locations where women are working which would provide the required conditions and yet be the most economical to operate . It is anticipated that the installation of necessary facilities will be accomplished prior to March 1, 1962. No further action is contemplated by this Division until a reinspection is made shortly after the above date. 712-548-64-vol. 142-39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is readily apparent from the letter that it is primarily concerned with the maintenance of adequate heat in the plant. It devotes almost two full paragraphs to the topic and states that: "It is essential" that adequate heating facilities be com- pleted "without further delay." With respect to lifting, the letter states only that, "it may be necessary for you to extend your supervision to insure that this is complied with." The letter ends, as noted, with the statement that no further action was contemplated until a reinspection was made. But Gray, McCaslin, and Safety Engineer Porter all testified that they never observed women lifting in excess of 25 pounds. Even Plant Superintendent Cameron who suspected that some of the packages might weigh over 25 pounds was doubtful that a violation had occurred. Cameron also testified that the women received in- structions against such lifting at the time of hire. But he was unable to state when he last spoke with the women on the topic and no supervisors or foremen were presented to testify concerning the giving of such instructions, despite the testimony of Cameron that he had so instructed his foremen. And all of six complainants denied that they had received such instructions upon hire or at any other time .7 In fact, Dolores Williams and Audrey Tosh testified that they had been originally hired by Cameron himself and, according to Williams, Cameron explained her duties but said nothing about lifting heavy packages. The other four women were hired by other named members of the managerial staff, but they also denied receiving any such instructions. Of significance here is the fact that the two women machine operators worked in the packaging department only in case of absence of one of the other four and when special packaging might be required. Gray testified that it was "possible" for these two girls to daily lift "containers," as distinguished from packages in the packaging department. As noted, Gray admitted that he had never seen this take place. I find that the women in this plant received no instructions or warnings from Respondent either at hire or during their employment concerning the lifting of heavy packages. I further find that Respondent has attributed herein much more emphasis to its communications from the State of California than it displayed toward its individual employees8" (3) Respondent has claimed that it experiences a seasonal slump each year and, as Cameron testified at the close of the hearing concerning the alleged February meeting, "we would anticipate a layoff for each year." However, Vice President Gray testified earlier in the hearing that although there was a slowdown each year, "I wouldn't say that we did [lay off employees] each year." Indeed, Gray admitted that prior layoffs rarely affected employees in the factory where the two hand machine operators were stationed. In this respect, it is noteworthy that the record refutes Respondent's claim that the women were not replaced by new hires and that their duties were absorbed in- ternally by existing employees. Actually, Respondent's contention is partly true because there is evidence that what Respondent did was to transfer employees in- ternally to perform some of the duties normally handled by the girls and that there were new hires from the outside to replace the transferees. Thus, McCaslin testified that no one was hired to replace the women, but admitted that subsequent to their termination, two cleanup men were hired, that one of them was promoted to a hand machine and that he did well at it. There is no evidence, it may be noted, of any complaints concerning the quality or quantity of work performed by the two girls assigned to these machines and I note that the seniority of one, Tosh, dated back to, July 1958. Superintendent Cameron testified originally that three named cleanup men, Jack- son, Wadley, and Stewart, were hired after the women were terminated; that Wadley did not run a machine although he did some "feeding"; and that Wadley and Stewart did cleanup work. He admitted that it was possible that a cleanup man had been promoted to machine operator as that was sometimes done because cleanup was a starting job from which people progressed. On cross-examination during his second 7 About 1 week prior to August 2, 1962, three of the packagers, Dolores Williams, Madlene Williams, and Marian Flinn were told by a fellow-worker, Goldsmith, who was identified as a shipping clerk, that they would be discharged immediately if they lifted packages weighing over 25 pounds. Goldsmith did not testified and no contention was, made that he was an agent of Respondent or that he was instructed to make any such statement 8 Perhaps the most concern displayed herein came from Safety Engineer Porter whose interest was admittedly in preventing injuries to either sex and in the problem of excessive compensation awards against the insurance carriers whom he represented EDMUND A: GRAY CO.;-INC. 597 appearance on the witness stand, Cameron admitted that `Wadley had replaced one Richard Bennett, who had been transferred to operator of a hand machine; this was the job held by Tosh and Beltran. (4)This brings up the intrinsic conflict in Respondent's position as to whether it laid off the women or discharged them. Gray, on the one hand, after testifying that he regarded a discharge as a permanent severance of the employment relation- ship as contrasted with a temporary layoff, flatly stated that the women had been discharged. Subsequent thereto, McCaslin testified that the girls were laid off. When spe- cifically queried in respect thereto, she replied that "It might have been temporary. I don't know how long ..... She further testified that it "Might not have been permanent. Some of the girls have been laid off before and brought back." As noted above, she characterized this as reflecting "Not too much difference" from pre- vious layoff situations. Plant Superintendent Cameron testified that this was a layoff rather than a dis- charge because "they could be recalled, not necessary, but could be." He also indicated that a dischargee might not be beyond salvation as is reflected by the case of employee Shaw who was discharged at the same time the girls were terminated because of unsatisfactory work. Be that as it may, this original testimony by Cameron and McCaslin that the women might be recalled is deemed to be inconsistent with any claim that the women were permanently eliminated from the plant due to a policy decision made 6 months earlier in February. (5) Another point renders Respondent's position herein suspect. While Respond- ent stressed its concern aboot the excess lifting by women as of July 10, it neither reprimanded nor talked to the women about it. More specifically, it terminated the women without even informing them of the cause for the discharge, except for Cameron's testimony that he told them that business conditions required a layoff. And for that matter, if it was a decision to make the plant all male, no reason appears why Respondent was reluctant to say so, especially where it was willing to give the women, including some of long tenure, letters of recommendation. D. Conclusions The Union had been meeting weekly with Respondent and negotiating for a con- tract since June 5, 1962, on which date the Union had submitted a contract proposal calling for seniority prevailing in work force reductions, assuming ability to perform the work, and also calling for the correction of wage rate inequities. On June 26, Respondent submitted a wage proposal which, consistent with Respondent's existing wage structure, provided for lower wage rates for female employees than for male employees. The union representative expressly challenged this double standard and urged that no wage differentials be established in the contract. Pursuant to this position, the Union on July 3 submitted a wage proposal which listed identical wage rates for all employees in the same classification. The Union persisted in this position in ensuing meetings and Respondent resisted it. In addition, at bargaining meetings prior to August 3, Respondent rejected the Union's proposal that seniority be con- sidered on a departmental basis. It was in this context that Respondent, with no notice whatsoever to the Union or to the employees, decided on August 2 to terminate all six women employees, four packagers from the packaging department and two machine operators from the factory department. Respondent has attempted to peg this decision to a drop in business since the preceding March, but produced no records in support of its con- tention. Moreover, its contradictory claims, initially with respect to a July decision predicated upon the lifting and later upon an earlier policy decision in February predicated upon the general unsuitability of women, do not hold water for the reasons previously set forth. Moreover, during this very period, Respondent was attempting at bargaining meetings in June and July to persuade the Union to accept the double standard wage scale.9 The thought occurs that if a policy decision had been made, whether in February or later on July 10, to eliminate the female employees, Respondent was then engaging upon a wholly unnecessary course of conduct and had only to so inform the Union at the bargaining table of its decision. This, it did not do, and when the course of negotiations did not proceed to its liking, Respondent quickly 9 This is not to say that such a demand'or position is in of itself improper in collective bargaining. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and unilaterally resolved the problem by eliminating all of its female employees on a pretextual ground , despite the lengthy tenure of at least several. Moreover, at least one or two were replaced by the thinly disguised technique of internal transfers and the hiring of a new employee to replace the transferee. That Respondent's concern over the lifting was minor at best is demonstrated by its long toleration of the condition with no reprimand of or discussion with the women and by the fact that the alleged problem basically did not concern the two women in the factory. I find under these facts that Respondent discharged its women employees in order to avoid collective bargaining with the Union over the latter's demand for equal wages. This constitutes discrimination under the Act because the women had embarked upon the path of unionization and this was an attempt to resolve the problem which, I find, violated the Act. I find that by terminating the six com- plainants on August 3, 1962, Respondent has discriminated with respect to their hire and tenure of employment within the meaning of Section 8(a)(3) of the Act. I further find that by such conduct Respondent has interfered with, restrained, and, coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) thereof. Ethel J. Hinz, as an Individual and as Executrix of the Estate of Lester F. Hinz, d/b/a Myers Ceramic Products Co., 140 NLRB 232. I further find that by the foregoing conduct Respondent has refused to bargain within the meaning of Section 8(a)(5) of the Act. It took the step of unilaterally eliminating the female employees of its plant at the very moment that the Union was negotiating for equal pay for them and was negotiating concerning the type of seniority which would prevail in a reduction in force. Respondent took this unilateral action without notice to the Union in an effort to bypass collective bar- gaining over the women. That the Union had not first requested bargaining on the matter, as urged herein by Respondent, is not a defense. Nor is it a defense that the women upon learning of their discharge reported it to a member of the plant committee. All that was reported was a fait accompli which amounted to a rejection of the collective- bargaining process. I find, therefore, that Respondent, by unilaterally terminating the six complainants on August 3, 1962, without notice to the Union, has refused to bargain in good faith within the meaning of Section 8(a)(5) of the Act. I further find that by such conduct Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736; Railroad Telegraphers v. Chicago & Northwestern Railway Co., 358 U.S. 282; N L R B. v. Brown-Dunkin Company, Inc., 287 F. 2d 17 (C.A. 10); Exchange Parts Company, 139 NLRB 710; Robert S. Abbott Publishing Company, 139 NLRB 1328; and Central Illinois Public Service Company, 139 NLRB 1407. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations set forth 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 commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall rec- ommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has discriminated with respect to the hire and tenure of Dolores Williams, Marian Flinn, Audrey Tosh, Martha Williams, Madlene Williams, and Elvira Beltran. I shall therefore recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. I shall further recommend that Respondent make them whole for any loss of pay suffered by reason of its discrimination against them. Said loss of pay, based upon earnings which they normally would have earned as wages from the effective date of discrimination, August 3, 1962, to the date of offer of rein- statement, shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B. v. Seven-up Bottling Company of Miami, Inc., 344 U.S. 344. Interest thereon at the rate of EDMUND A. GRAY CO., INC. 599 6 percent per annum shall be added, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent be ordered to bargain with the Union, upon request, concerning rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding be reached, embody such under- standing in a signed agreement and further, that Respondent be ordered to cease and desist from making unilateral changes in the terms and conditions of employ- ment of its employees without consulting their designated bargaining representative and offering the latter a reasonable opportunity to be heard. The unfair labor practices committed by Respondent involve pretextual discharges and unilateral conduct in derogation of the principles of good-faith collective bar- gaining. The inference is warranted that Respondent maintains an attitude of opposition to the purposes of the Act with respect to the protection of employee rights in general. It will accordingly be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. 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. Edmund A. Gray Co., Inc., is an employer within the meaning of Section 2(2) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Dolores Williams, Marian Flinn, Audrey Tosh, Martha Williams, Madlene Williams, and Elvira Beltran, thereby discouraging membership in a labor organization, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. All production and maintenance employees of Respondent, excluding office clerical and professional employees, watchmen, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. United Steelworkers of America, AFL-CIO, has been since May 3 1962, and now is the exclusive representative of the employees in the above-described appro- priate unit within the meaning of Section 9(a) of the Act. 6. By unilaterally terminating its female employees on August 3, 1962, Respond- ent has refused to bargain collectively with the Union and has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the foregoing conduct, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. 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, it is recommended that Respondent, Edmund A. Gray Co., Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or in any other labor organization of its employees, by discharging employees or by discriminating in any other manner in regard to hire or tenure of employment or any term or condition thereof, except to the extent authorized by Section 8(a) (3) of the Act. (b) Refusing to bargain with United Steelworkers of America, AFL-CIO, as the exclusive representative of its production and maintenance employees, excluding office clerical and professional employees, watchmen, guards, and supervisors. (c) Unilaterally changing rates of pay, hours, or other terms or conditions of employment of employees in the above unit without prior consultation with the above-named labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be 600 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD 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. . 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Dolores Williams, Marian Flinn, Audrey Tosh, Martha Williams, Madlene Williams, and Elvira Beltran immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them, in the manner provided above in the section entitled "The Remedy." (b) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, or other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant at Los Angeles, California, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof, and be maintained 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.ll 10 In the event 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 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." n In the event this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX 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 National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization of our employees, by discharging employees, or by discriminating in any other manner in regard to hire or tenure of employment or any term or condition thereof. WE WILL offer the following employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to seniority or other rights and privileges, and we will make them whole for any loss of pay suffered by reasons of our discrimination against them. Dolores Williams Martha Williams Marian Flinn Madlene Williams Audrey Tosh Elvira Beltran WE WILL, upon request, bargain with the above-named labor organization as the exclusive bargaining representative of our production and maintenance em- ployees, excluding office clerical and professional employees, watchmen, guards, and supervisors, with respect to rates of pay, wages, hours of work, or other terms and conditions of employment , and, if an understanding is reached, emboly such understanding in a signed agreement. EASTERN DIE COMPANY 601 WE WILL NOT unilaterally change rates of pay, wages, hours, or other terms or conditions of employment of employees in the above-described unit without prior consultation with the above-named labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. EDMUND A. GRAY Co., INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 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 , 849 South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711, Ex- tension 1031, if they have any question concerning this notice or compliance with its provisions. Eastern Die Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case No. 1-CA-3850. May 14, 1963 DECISION AND ORDER On February 20, 1963, Trial Examiner George J. Bott issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- 1 The Respondent has excepted to credibility findings made by the Trial Examiner. As it Is the Board 's established policy not to overrule a Trial Examiner 's resolutions with respect to credibility unless , as is not the case here , the clear preponderance of all the relevant evidence convinces us that the resolutions were Incorrect , we find innsufficient basis for disturbing the Trial Examiner's credibility findings. Standard Dry Wall Prod- ucts, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). The Respondent's contention concerning alleged fabrication of testimony is predicated on certain matters quoted out of context and Is clearly without merit. 142 NLRB No. 68.