Square Binding and Ruling Co., Inc.

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result of interrogation by the employer 26 The Employer's statement to the group of employees to whom he directed some remarks in the shop to the effect that the deci- sion was theirs to make as to whether or not to join the Union , indicates, at worst, ambiguous expression consistent with noncoercive intentions on the part of the Em- ployer.27 There is no evidence of any general, systematic, frequent, or widespread interrogation ; there is no credible evidence of threats of discharge for union activity; there is no background or climate of unfair labor practices ; and there is no claim that there has at any time been even a single instance of discharge , reprisal, or dis- crimination because of union membership or activity .28 It might additionally be considered that the alleged employer action which could be pieced together from the weak testimony of the witnesses may be viewed as hardly more than isolated and therefore either not unlawful or as a practical matter not warranting issuance of a cease-and-desist order,29 in the total texture of the cease 30 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Hatters, Cap and Millinery Workers International Union, AFL-CIO, and Cap Makers Union Local 38, of United Hatters, Cap and Millinery Workers International Union, AFL-CIO, are labor organizations within .the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any of the unfair labor practices alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed. 28,Cf True Temper Corporation, 127 NLRB 839 , 842. As Indicated , this information was a matter of common knowledge around the shop. Cf. Charlton Press, Inc., 129 NLRB 1352, 1357 . Improper motivation on the part of the employer may not be inferred from the mere fact that be knew of union activity by his employees . Lucille of Hollywood, 93 NLRB 37, 38. 27 Cf. Acme Boot Company, Inc, 131 NLRB 1371. 28 Nor is there reason to believe that the same would not be true for other of Respond- ent's employees who might elect to join the Union. 2D Cf. Interstate Hosts, Inc., 130 NLRB 1614 , 1619 ; Charlton Press, Inc., 129 NLRB 1352, 1357; The Great Atlantic & Pacific Tea Company, Inc., 129 NLRB 757, 760: Gibbs Automatic Division, Pierce Industries, Inc., 129 NLRB 196, 198; Lenox Plastics of P.R., Inc., 128 NLRB 42, 44 ; Hot Point Co, a Division of the General Electric Company, 120 NLRB 1768, 1772; Haleyvilla Textile Company, Inc., 118 NLRB 1157, 1158; Blue Flash Express, Inc., 109 NLRB 591. The foregoing cases involved isolated interrogations. The same is true of an isolated veiled threat. The Frohman Manufacturing Co., Inc., 107 NLRB 1308, 1315 30 A case of unfair labor practices cannot be made out through cannibalizing a patch- work from among the defective recollections , contradictions, and conflicting equivocations of unsatisfactory witnesses . Cf. Interstate Hosts, Inc., supra, footnote 29, at 1619; Blue Flash Express, Inc., supra, footnote 29, at 591 , 592, 594. Square Binding and Ruling Co., Inc . and New York Paper Cutters and Bookbinders Union No. 119, International Brotherhood of Bookbinders, AFL-CIO. Case No. 2-CA-9299. February 28, 19641 DECISION AND ORDER On October 28, 1963, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, 146 NLRB No. 21. SQUARE BINDING AND RULING CO., INC. 207 as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision, with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations 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 that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the De- cision and the entire record in this case, including the, exceptions and briefs, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order 2 of the Trial Examiner. 1 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's finding that Morton Lichtenstein 's speech to the employees on April 9 , 1962, was privileged free speech within the meaning of Section '8(c) of the Act. 2 The Recommended Order Is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that Respondent, its officers, agents, successors, and assigns, shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed April 24, 1963 , by the above-mentioned labor organization, the General Counsel of the National Labor Relations Board issued a complaint on May 31, 1963, against Square Binding and Ruling Co., Inc. (herein called Respond- ent or the Company). The complaint alleged that Respondent violated Section 8(a)(1) and (3) of the Act by engaging in certain acts and conduct. Respondent in its answer denied the commission of the unfair labor practices charged. Pursuant to notice , a hearing was held before Trial Examiner Samuel M . Singer in New York, New York, on July 15 to 19 and 24 to 26, 1963.1 All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses. Briefs have been received from the General Counsel and Respondent.2 Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a New York corporation, operates a plant in the Bronx, New York, where it is engaged in performing bookbinding and related services. During the year 1962 , Respondent, in the course and conduct of its business operations , performed services valued in excess of $500 ,000,' of which $75,000 worth of services were 1 Prior to the hearing, Respondent filed a motion to require the General Counsel to pro- duce the prehearing affidavits of certain Individuals. The motion was denied by the Trial Examiner assigned to dispose of the motion. 2 The briefs of both counsel for General Counsel and counsel for Respondent are excellent and have been very helpful in the disposition of, the issues herein. 3 According to Respondent's estimate at the hearing this figure is expected to lie approxi- mately $480,000 In 1963. 744-670-65-vol. 146-15 208 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD performed for the General Foods Corporation. General Foods in turn annually produces goods valued in excess of $50,000, which goods it ships directly out of the State where it is located. Respondent's services for General Foods consists of work on promotional literature used by General Foods, which literature is sent across State lines. I find, contrary to Respondent's contention, that at all times material to this proceeding, it has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. Siemons Mailing Service, 122 NLRB 81; R. E. Smith et al., d/b/a Southern Dolomite, 129 NLRB 1342. Respondent contends that its operations do not have a "substantial impact on interstate commerce" and, in support of its position, it claims that its bindery op- erations represent only a small percentage of the total bindery business in the country and in New York City. It contends that there are "many alternate distributors that can do the same bindery work for General Foods" and, hence, that a labor dispute at, Respondent's plant would not interrupt interestate operations. I must reject Respondent's contentions. As the Supreme Court has long ago pointed out, the Act "cannot be applied by any reference to percentages." Santa Cruz Fruit Packing Co. v. N.L.R.B., 303 U.S. 453, 467. "Congress has explicity regulated not merely transactions or goods in interestate commerce but activities which in violation might be deemed to be merely local but in the interlacings of business across state lines adversely affect such commerce." Polish National Alliance etc. v. N.L.R.B., 322 U.S. 643, 648. And the Board's jurisdiction has been construed as extending to the regulation of all such conduct as might constitutionally be regarded under the commerce clause, subject only to the rule of de minimis. N.L.R.B. v. Fainblatt, 306 U.S. 601, 606-607; N.L.R.B. V. Reliance Fuel Oil Corporation, 371 U.S. 224. It is clear that the value of Respondent's services on goods which move in interstate commerce is well above de minimis. See N.L.R.B. V. Aurora City Lines, Inc., 299 F. 2d 229 (C.A. 7). H. THE LABOR ORGANIZATION INVOLVED New York Paper Cutters and Bookbinders Union No. 119, International Brother- hood of Bookbinders, AFL-CIO, is a labor organization within the meaning of Sec- tion 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The substantive issues in this case are: (1) whether Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) of the Act by certain acts and conduct, including interrogation of employees concerning their union sympathies and activities and threats of reprisals if they organized the plant; (2) whether Respondent, in violation of Section 8(a) (3) and (1) of the Act, discrimi- natorily discontinued one of its departments and permanently laid off seven em- ployees on April 5, 1963, in order to discourage and thwart the employees' union organizational activities; and (3) whether it discriminatorily laid off another em- ployee on April 2, 1963, in violation of the same section. B. Background; Respondent's bindery operations Respondent has been in the bindery business for about 30 years. Its primary operations consist of assembling and preparing pamphlets and various types of business forms. In connection with these operations, Respondent has for a period of 12 to 15 years prior to April 1963 performed hand carbon collating services. Hand carbon collating essentially involves gathering together by hand sheets of paper (either printed or blank) interleafing these sheets with carbon, and then combining them by gluing and finishing them by various other operations, to form complete sets of pads such as sales slip pads or insurance applications.4 In addition * Hand carbon collating differs from plain or straight collating (which Respondent also performs) in that the latter does not involve any carbon Respondent also does automatic collating-an operation done by machine-which may or may not include interleafing carbon. The machine automatically glues paper sheets or carbons together whether or not a particular job can be performed by machine depends on the size of the paper or carbon used. SQUARE BINDING AND RULING CO., INC. 209 to its. hand carbon collating "department," Respondent has other departments or sections, wherein Respondent performs such operations as automatic collating, folding, cutting, plastic binding, wire stitching, scoring and perforating, manifold work, and trucking and shipping. During the period here involved-prior to the first layoff of employees on April 2, 1963, hereinafter discussed-Respondent had 39 employees and 8 part-timers. Morton Lichtenstein and his brother Irving are Respondent' s sole stockholders and both manage the Company. Morton, who is president of the Company, estab- lishes management policy, handles all the accounts, prices all jobs, and does the estimating and billing. Irving is in charge of production and works with Carmine Dom Portoro who is directly under him. Irving, like his brother, can hire and fire employees but does not exercise this authority. Working under Portoro are, among others, Frank Mebert and Dominick Cea whose supervisory status, as we shall see, is here in question. C. Interference, restraint, and coercion 1. The Union's organizational campaign About the middle of March 1963,5 Joseph Ash, the Union' s business representa- tive, commenced an organizational campaign at Respondent's premises. Ash sta- tioned himself outside the plant where he spoke to employees as they entered and left the plant, and solicited them to join the Union. On the first day of the cam- paign, around March 19, Morton Lichtenstein met Ash and, after some discussion of the Union's campaign, Litchenstein invited Ash to his office where they discussed the matter further. When Ash informed Litchenstein 6 that he was attempting to organize Respondent's employees, Litchtenstein told Ash that there "was really no need for a union" at the plant. On March 30 and April 4 Ash held two organizational meetings, each attended by approximately 16 to 18 of Respondent's employees. At the April 4 meeting the employees were told that the Union was going to file a petition for an election with the Board on April 5. The petition was in fact filed on that, date and received by Respondent on April 8. By April 5, Ash had obtained 23 authorization cards. There is no dispute that Respondent opposed the unionization of the plant. The complaint alleges that Respondent by several of its officials and supervisors (Morton Lichtenstein, Carmine (Dom) Portoro, Frank Mebert, Dominick Cea) and its agent, Benjamin Ronis, interfered with, restrained, and coerced its employees by various acts. Respondent denies the commission of the acts in question and, in addition,. disavows responsibility for the conduct of Mebert, Cea, and Ronis? We shall, therefore, first treat the question of Respondent's liability for the conduct of these three individuals before turning to the acts involved. 2. Respondent's responsibility for the conduct of Mebert, Cea, and Ronis ,a. Frank Mebert and Dominick Cea As already noted, Supervisor Portoro works directly with Irving Lichtenstein on production. Portoro directs, among others, Mebert and Cea who, in turn, follow through in assigning work to employees in their departments. During the period here involved Mebert worked in the hand carbon collating department with about seven employees and Cea in the automatic collating department with three em- ployees. While both punched clocks, dressed like other male employees, and per- formed certain work in their respective departments, each also gave employees work orders and assigned employees from job to job. Both also checked and corrected the work of employees in their respective departments. They scheduled overtime or selected particular employees to work overtime. Portoro, their superior, appeared in their departments for only brief periods on an irregular basis, although Portoro at times himself distributed work to the employees in the departments. Both Mebert and Cea earned $110 per week while the employees in their departments earned 5 Unless otherwise indicated, all date references are to 1963. 6 Unless otherwise indicated, all references to Lichtenstein are to Morton rather than Irving Lichtenstein 7 Although first denying the supervisory status of Portoro, Respondent conceded his supervisory status in course of the hearing. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $65 or less. The employees looked upon Mebert and Cea as their foremen or supervisors in their respective departments -8 Based on all of the foregoing and the entire record, I find that Mebert and Cea have "authority, in the interest of the employer . . . responsibly to direct" em- ployees under them within the meaning of Section 2(11) of the Act and, therefore, that both are supervisors for whose conduct Respondent is accountable. See, e.g., N.L.R.B. v. Syracuse Stamping Company, 208 F. 2d 77, 79 (C.A. 2); N.L.R.B. v. Chautauqua Hardware Corporation, 192 F. 2d 492, 494 (C.A. 2); N.L.R.B. v. Edward G. Budd Manufacturing Co., 169 F. 2d 571 (C.A. 6), cert. denied 338 U.S. 909. Under the circumstances, I must reject Respondent's contention that the control exercised by each of them is merely that of a skilled worker over less capable em- ployees and that neither Mebert nor Cea shares the power of management. See N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F. 2d 235, 239 (C.A. 4), cert. denied 359 U.S. 911. To be sure, neither is at the top of the managerial hierarchy but each nevertheless meets the statutory test of supervisor.9 b. Benjamin Ronis Benjamin Ronis has been Respondent's accountant for 20 years, Respondent being one of the 18 or 19 accounts serviced by Ronis. Ronis visits Respondent's plant every week ion Tuesdays, Fridays, and when necessary, Saturdays. Although he is not an officer or stockholder of the Company and he has no financial interest in it, the credible evidence shows, and I find, that he is closely identified with manage- ment. It is clear from the record that Ronis has extensive contact nand dealings with employees which far exceed the normally accepted responsibilities of an accountant handling an employer's books and records. Thus it is common practice among em- ployees of Respondent to discuss with, and request, Ronis for wage increases. The record shows that employees have been given raises after such requests. When the request was denied, Ronis gave the employee the reason for the denial explaining, for example, that the Company could not afford the money or business was slow. Several employees credibly testified that both Irving. Litchenstein and Mortion Lichtenstein had referred employees' requests for wage increases to Ronis.io In addition, the uncontradicted evidence shows that it is Ronis who sets up the vacation schedules for the employees, advising employees of the availability of particular periods for this purpose. The record further shows that Ronis had from time to time discussed and cautioned employees against lateness and garnishments or liens on salaries. Ronis had also handled employee requests for loans. On at least one occasion he interviewed a job applicant, checked his references, and informed him of his starting pay. On an another occasion he arranged for an employee's 8 The foregoing findings are based upon the mutually corroborative testimony of em- ployee witnesses called by General Counsel (including employees Rivera and Mears, dis- intersted witnesses still in Respondent's employ), as well as in part on the testimony of Mebert and Cea. Mebert frankly testified on cross-examination that he "looked after the jobs" and "after the girls" and corrected the employees' work, stating that "if there was a mistake in the job, it would be my fault, I laid the job out." Cea denied most of the responsible functions attributed to him but he did not impress me as a truthful witness Be was frequently vague and evasive, and it was evident that he deliberately withheld facts. When pressed on cross-examination, he admitted that he has assigned employees to particular machines based on his evaluation of the employees' capabilities to operate the machines. He also conceded that Irving Lichtenstein and Portoro had told him to use his own judgment in training employees to use machines 9 As hereafter noted, I do not in fact predicate any unfair labor practices on conduct attributed to Mebert. I nevertheless did make findings as to his supervisory status be- cause his status would become relevant in the event a reviewing authority disagrees with my conclusions as to the nature of Mebert's conduct. 10 Irving Lichtenstein did not testify at the hearing and the employees' testimony that he had referred them to Ronis with the explanation that Ronis handled raises is un- contradicted. Morton Lichtenstein denied referring any employees to Ronis but conceded that he was aware of the employees' practice of asking raises of Ronis. Ronis admitted talking to employees "quite frequently" about raises, explaining at one point that an employee "possibly" came to him because Morton was outside the plant a great deal and Irving "didn't bother much" with employees. Ronis testified, however, that he normally told the employee to see Morton, that he never gave the employee a direct answer, and that he merely served as a conduit in handling wage requests and had no authority to grant wages on his own authority. SQUARE BINDING AND RULING CO., INC. 211 transfer from one job to another. Finally, it was Ronis, as we shall see, who on April 5 informed two employees-one whose discharge is here in issue-that they were laid off because work was slack. Based on the foregoing and the entire record, I find that the employees had just cause to believe that Roms was acting for Respondent and, accordingly, that Respond- ent was responsible for his conduct. International Association of Machinists v. N.L.R.B. (Serrick Corp.), 311 U.S. 72, 80; N.L.R.B. v. Mississippi Products, Inc., 213 F. 2d 670, 673 (C.A. 5); Birmingham Fabricating Company, 140 NLRB 640.11 While I have no doubt, as Ronis and Lichtenstein testified, that the Company did not in fact vest Ronis with authority either to grant wage raises or take other actions on his own, the point is that Respondent by permitting Ronis to act for it in the vital areas of the employer-employee relationship held him out to the employees as an agent of management.12 As already noted, Lichtenstein admitted that he was fully aware of Ronis dealings with employees concerning wages. Lichtenstein also admitted that he had instructed Ronis to speak to employees about lateness. There is no question that the Company was also aware of Ronis' involve- ments with other working conditions, such as Ronis' role in setting up vacation schedules and handling garnishments and other employee matters. Accordingly, I conclude that Respondent must be held liable for Ronis' conduct discussed below, as well as that of its supervisors. 3. The acts and conduct of Respondent's supervisors and agents a. Carmine (Dom) Portoro ,Employee John-Overmars testified that about,a week prior to his layoff (which is referred to infra) Supervisor Portoro asked him what he thought about the Union and -whether he signed a card. Overmars replied that he had not signed a card but he was for the Union. Overmars also indicated that he expected to get a raise if the Union came into the plant. Portoro then said, "Wouldn't you be better off to go into the office and ask for a raise?" .Employee Otway Anderson testified that sometime before the major layoff on April 5, Portoro spoke to him in Lichtenstein's office asking whether he had signed a.card for the Union. When Anderson denied signing, Portoro stated that he had information to the contrary. Employee Mary Samuels testified that on April 2 she overheard Portoro ask two employees if they had signed union cards. Portoro then came over to Samuels and asked if she had signed a union card. Another employee, Curtis Smith, testified that Portoro asked him also if he had signed a card. Employee Raymond Rivera testified that one day in March, during the organiza- tional campaign, he and two employees brought into the plant some union cards which Union Representative Ash had given them to distribute. Portoro met them in the locker room and asked if Ash had talked to them. When they acknowledged to Ash, Portoro told them not to pay attention to Ash. About a week later, Ash gave Rivera a booklet. After Rivera entered the plant Portoro learned about this from another employee and asked Rivera if he wanted the booklet. Rivera told Portoro he did not want it, whereupon Portoro took the booklet. Employee Harry Hunter testified that Portoro had questioned him as to whether he signed a union card and that on more than one occasion Portoro also asked him whether he saw the union man. On one of those occasions Portoro asked him if Union Representative Ash had given him "something." When he admitted getting a union card, Portoro took it from him. Hunter also testified that Portoro had talked to other employees about the Union, and that he once came over to the pack- ing table and remarked, "I know you all signed some cards." Finally, Hunter testified that on April 8, Portoro asked him where the employees held their meeting the previous Saturday. u Ronis' Identification with management is further attested by the fact that Routs' name at one time (3 or 4 years previously) appeared on two of Respondent's trucks for a period of 2 or 3 years. Ronis testified that the Company used his name for convenience and he received no monetary consideration therefor. 12 There is no credible evidence that Respondent had ever put the employees on notice that Ronis had acted on these matters only as "a conduit" and without authority to bind Respondent. I do not credit Ronis' testimony that in discussing a wage increase request with an employee, he told the employee in each case that he was only acting as an inter- mediary between the employee and the Lichtensteins, although there is no question that he often did tell employees that he would look into the matter. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Georgia Little testified that as she was about to leave the plant one night after working overtime, Portoro told her to wait, looked out the window, and stated that some union men were outside. Portoro walked her to the corner after telling her not to say anything to the union men. The next week, when Little was leav- ing early in the afternoon to go to the clinic, Portoro arranged for a salesman, who happened to be in the plant, to take her to the bus stop because if she went downstairs by herself, the union people would talk to her. Portoro told Little, "We don't want them in here. We don't want you to say anything to them." Little passed the union men without speaking to them. Respondent did not call Portoro as a witness and the testimony of the employees recited above is uncontradicted. Indeed, Respondent in its brief concedes that Portoro had questioned employees concerning signing union cards. I credit the testimony of the employees as summarized above. On the basis of the foregoing and the entire record in the case, I conclude that Respondent through Supervisor Portoro (who was at the top of Respondent's managerial hierachy and next in command to the two Lichtensteins) interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act by questioning them about signing union cards and about union meetings, and by interfering with their right to maintain contact with the Union's organizers in leaving the plant.13 b. Frank Mebert The evidence adduced by General Counsel concerning alleged acts of interfer- ence, restraint, and coercion by Mebert is meager. The only substantial incident in which Mebert allegedly engaged in was described by Mary Samuels who testified that one evening when Mebert drove her and two other girls to the station, Mebert told the girls that if the union men said anything to them as they came out of the plant, they should let Mebert do the-talking; and that when they arrived at the station Mebert told them not to have anything to do withthe Union because if they did and it got back to Lichtenstein or any of the foremen, they would be fired and they would have to spend carfare looking for a job. Mebert denied the coercive remarks attributed to him and testified that he never questioned employees regarding their union activities or engaged in any other coercive conduct. He did admit that he had told Samuels on one occasion-and not when he drove her to the station-that he did not like unions, pointing out that when he had at one time belonged to a union, he did not approve of some of the "working conditions." He further testified that he merely told Samuels that she was better off working for the Company because of the pension plan and other benefits and because she was working close to home and saved on carfare. I credit' Mebert's denials that he engaged in any coercive conduct' and I accept his version of the incident in question rather than Samuels'. Mebert testified on'this and some other matters in issue with apparent candor. and forthrightness. Ap- parently Samuels hereself was not certain whether it was Mebert or Cea who drove the girls to the station on the night in question for at the outset of her recitation she stated only that she "believed" it was Mebert. I conclude that Mebert's statement, as credited, although antiunion in tenor, falls within the free- speech protection of Section 8(c) of the Act and is not violative of Section 8(a) (1). c. Dominick Cea Raymond Rivera testified that sometime in April, after the April 5 layoff, Cea called him into-the kitchen of the plant and there questioned him about the Union. Cea asked Rivera why he wanted to join the Union and Rivera answered because he wanted to get more money and other benefits. After some discussion about how much money Rivera would earn if the Union came in, Rivera stated that he also joined the Union to help the employees that had been laid off. Cea told Rivera that the only person Rivera would be turning down is him, Cea, after he had taught Rivera how to work the machine. 23 In addition to the incidents recited in this section, employee Anthony Parente, who was Portoro's brother-in-law, testified that on April 5, Portoro told him that he heard that Parente had signed up with the Union. When Parente replied that he had, Portoro stated, "I know the other people that signed up, too." In view of the numerous state- ments and acts already found to be violations, I do not find it necessary to determine whether this conversation was, or was not, a violation of the Act, considering the relation- ship between Portoro and Parente. The incident does, however, evidence knowledge on the part of Portoro of signers of union cards. SQUARE BINDING AND RULING CO., INC. 213 Cea admitted at one point in his testimony that he had questioned Rivera as to whether he signed a union card and asked him what he thought of the Union. He also admitted similarly questioning separately in the kitchen, the two other employees (Ishmael Rivera and Charles Zampino) whom he supervised in his department. He further admitted telling all three employees that he did not like the Union and if the Union came in they would all probably lose overtime. Employee Ardell Brown testified that the first day Union Representative Ash was outside the plant, Cea came around in Irving Lichtenstein's car and told her and other employees who were with her that he would drive them to the station to keep them "out of trouble." He also told the girls not to talk to Ash. Cea in general admitted driving employees to the station but denied making the remarks attributed to him by Brown. I credit Brown's version of the incident and not that of Cea whom I already found to be an unreliable witness (supra, footnote 8). Under all the circumstances, I conclude that Respondent through its supervisor, Cea, interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) of the Act, by questioning employees concerning their union sympathy and affiliation, by admonishing them that they would probably lose overtime work if the Union came into the plant, and by interfering with their right to maintain contact with the Union's organizers.14 d. Benjamin Ronis Employee Dan Dorsey testified that on the first day Union Representative Ash appeared at the plant he drove Ronis in the Company's truck to Mount Kisco, New York. Ronis asked Dorsey if there was anything he should know. When Dorsey responded, "How do you mean?" Ronis asked about the Union and ques- tioned him as to whether he brought it around. Dorsey denied this and Ronis then-asked if employees Curtis Smith or Dorothy Parker were responsible for the Union. Dorsey stated that he did not think so. Ronis then told Dorsey that "if the Union came around, the only thing he would do would be to hire more peo- ple and cut out the overtime." He asked Dorsey to pass the word around to the rest of the employees. Ronis also questioned Dorsey whether he signed a union card and whether other employees signed cards. Dorsey disclaimed any knowledge. Employee Epsie Simpson testified that on one occasion after she had seen Ash outside the plant, Ronis approached her and asked her if she knew anything about the Union. When she said that she did, Ronis said, "Well, they are offering you more money and different things. . . . But all you are going to get are union dues. They are not going to give you any more money." As he was walking away he asked Mary Samuels, who was working nearby, whether this was not so. Curtis Smith testified that either the end of March or early April, Ronis spoke to him in the men's room. Irving Lichtenstein was present during part of the con- versation. Ronis told Smith, "Curt, I see you've got two boys downstairs" from the Union. When Smith countered that he did not know what Ronis was talking about, Ronis said to him, "I heard you were one of the ringleaders." Smith denied the accusation. Employee Jennie Mears testified that sometime early in April Ronis asked her if she had signed a union card. Mears denied signing one. On another occasion Irving Lichtenstein sent her into the office to speak to Ronis. Ronis told her that he knew that the girls were trying to get her to join the Union and he knew all that was taking place. When Ronis asked if he had not been nice to her, Mears replied that she was not making enough money. Thereupon Ronis replied that he would take care of that. In the course of the conversation, Ronis told Mears that if she joined the Union, she would lose her pension plan and insurance and she would get shorter hours. Ronis flatly denied that he had ever questioned any employee or threatened any employee with loss of benefits. Ronis in his testimony, and also Morton Lichten- stein in his, sought to picture Ronis as a mere bookkeeper who did nothing but attend to Respondent's books, without the least concern for employee working conditions. I have already discredited some of Ronis' testimony on the agency 14 Respondent contends, and there is evidence in the record supporting the contention, that Respondent's supervisors had in the past given or arranged rides for employees especially when they worked late. Respondent argues that there was therefore nothing unusual for its supervisors to arrange for the rides during the Union's organizational drive. I agree that there is nothing inherently improper about such conduct even in organizational campaigns but where, as here, the record discloses that Respondent utilized these arrangements to interfere with the employees' access to, and contact with, the Union's organizers, the conduct becomes illegal. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issue to the extent that it appeared inherently improbable. Contrary to Ronis' assertions, I find that Ronis injected himself all too deeply in the employees' union activities. The speciousness of Ronis' denials is apparent in his claim on the witness stand that he never discussed the Union with Lichtenstein or anyone in management.15 On the other hand, the employees' testimony on the events in question (except for discrepancies not unexpected among witnesses to the same events) appeared mutually consistent. Under all the circumstances, I credit the employees' testimony rather than that of Ronis. In view of all of the foregoing and the entire record I conclude that Respondent, through its agent, Benjamin Ronis, unlawfully interfered with, restrained, and coerced its employees by interrogating them concerning their union sympathies and activities, and threatening them with loss of benefits (including overtime, pension, and insurance) if the Union came into the plant.16 e. Morton Lichtenstein On Tuesday, April 9, 4 days after the April 5 layoff, Morton Lichtenstein called a meeting of all employees in his office. There is some conflict in testimony as to some of the things Lichtenstein said, but witnesses for the General Counsel and Respondent generally agreed that Lichtenstein mentioned that: a union was trying to get into the plant; they were all one "happy family"; they did not need a union and were better off without one; he was obliged to close down the hand carbon de- partment because of losses; he talked about Respondent's "good" pension plan and an insurance plan for employees; and he referred to the plentiful overtime the em- ployees have been able to work in the past. Lichtenstein also called upon several oldtime employees and, when he asked them if they were satisfied with Respondent's treatment, they answered in the affirmative. In addition, three employee witnesses called by General Counsel testified that Lichtenstein warned the employees that if the Union came in, they would lose their pension plan and the overtime would be cut. Two of the three witnesses also testified that Lichtenstein warned one employee that if he joined the Union, he would lose his job because of his drinking. Lichtenstein denied making these threatening remarks and his denial is supported by the testimony of several com- pany officials and employees. In this instance I credit Lichtenstein's version of his statements at the meeting rather than that of the three General Counsel witnesses. I note that at least two other General Counsel witnesses-Harry Hunter and Raymond Rivera, who credibly testified to coercive remarks by some of Respondent's supervisors or agents (supra)-did not make ay reference to the claimed reprisals in testifying about Lichtenstein's speech. It is hardly likely that such serious threats of reprisal would have escaped their attention had they been uttered by the top company official. I further note that despite the various incidents of inter- rogation of coercive remarks herein found to have been made by other supervisory employees and agents, there is no evidence that Lichtenstein had at any other occasion uttered coercive statements to employees. It is hardly likely that Lichten- stein who, as he testified, consulted his attorney just prior to delivering the speech, would have resorted to such outright and open threats in full view of all of the Union's adherents.17 I conclude that General Counsel failed to establish that Respondent, through Morton Lichtenstein, interfered with, restrained, and coerced its employees by the threats of reprisal attributed to him in the April 9 speech. I find that Lichtenstein's talk to the employees was privileged free speech within the meaning of Section 8 (c) of the Act. D. Respondent's discontinuance of the hand carbon collating department and its layoff of employees The complaint alleges that Respondent discriminatorily discontinued its hand carbon collating department and laid off a number of employees, in order to under- is Ronis admitted that lie was present when Union Representative Ash conferred with Lichtenstein on the first day of the Union's drive. iu In reaching the foregoing conclusion I do not rely on Ronis' statement to Sampson concerning the disadvantages of union adherence. I consider this statement to be argu- ment and opinion protected by Section 8(c) of the Act. 17Lichtenstein's attorney, who is also Respondent's counsel of record in this proceeding, impressed me as a careful and conscientious individual , well versed in labor relations. I can only assume that he admonished his client to refrain from making serious threats of the type attributed to Lichtenstein. SQUARE BINDING AND RULING CO., INC. 21'5" mine the Union and to discourage the employees' union activities. Respondent denies the allegation -and, claims that the shutdown of this department and, the layoffs were motivated solely by economic considerations.18 1. The decision to discontinue the hand carbon collating department As already noted, Respondent had operated the hand carbon collating department for 12 to 15 years. According to Respondent, in the latter part of 1961 or early 1962, Ben Ronis, its accountant, observed some of the female hand carbon colla- tors standing around idly and mentioned this to Company President Lichtenstein. The two men then discussed the department and it was decided to watch it closely and run a survey on it. Thereafter, in January and again in April and July 1962, Ronis and Lichtenstein allegedly followed the following procedure: Ronis instructed the bookkeeper to make a running list of all carbon collating sales, both automatic and hand. Lichtenstein broke down the list into hand carbon sales and got a quarterly total. Ronis also read off the quarterly total wage rates of various em- ployees designated by Lichtenstein as being connected with the hand carbon operation and a total was obtained. Lichtenstein then made his calculations with the figures Ronis supplied. Outside of labor, no other costs were mentioned ad at no time did Ronis participate in the computations. Each time Lichtenstein simply told Ronis that his analysis showed the hand carbon department was losing money but never said how much. Lichtenstein told Ronis that despite the losses the hand carbon collating was an important service and accommodation provided Respondent's regular customers and he was reluctant to drop it. In October 1962 Respondent moved its plant to its present location which resulted in an increase of floor space from 12,000 square feet to 13,300 square feet. How- ever, the amount of floor space devoted to the hand carbon department was reduced from the previous 3,000 square feet to 1,000 square feet at the new premises. Lichtenstein testified that because of the plant move, he did not compute figures for the third quarter of 1962. Nor did he compute fourth quarter figures because of the possibility that they would be distorted by unusual factors connected with settling into a new location. Therefore Lichtenstein decided to wait until the end of the year. Moreover, Lichtenstein noted that because of the layout of his new plant he would have an opportunity to give the hand carbon operation his personal surveillance in the hope he would improve the picture. According to Respondent, in the beginning of January 1963, Lichtenstein again ran a cost study of hand carbon collating by following the above-described pro- cedures. Once again his computations allegedly showed that the hand carbon- department was operating at a loss. However, Lichtenstein indicated he wanted to check the results one further quarter rather than rely on the 1962 summary he computed. For the last time, on April 2, 1963, Lichtenstein once more computed figures on the hand carbon department. As before, Ronis only furnished labor and sales figures, did not participate in the analysis, and did not discuss or check Lichten- stein's calculations. Lichtenstein testified that he again found that the depart- ment was losing money and he thereupon decided to close it down.19 2. The layoffs The same day, April 2, Respondent laid off two employees: John Overmars (who did not work in the carbon collating department) and Violet Samuels (who did work in the department but whose layoff is not here in issue) 20 Lichtenstein 18 At the hearing Respondent disclaimed "that Square Binding itself is in financial difficulty," asserting that "the only contention is that there was economic hardship insofar as this one department is concerned." 10The record shows that Respondent had closed down -a department once before in its 30-year history. About 10 years ago Respondent discontinued its paper ruling department, laid off the three employees in the department, and subcontracted its ruling work. Prior to the shutdown Lichtenstein made a survey of the department in which Ronis, however, participated. In 1959, Respondent also surveyed its trucking department but this re- sulted only in the consolidation of territories and the layoff of one driver. 2i Overmars was recalled on May 13 and laid off for a second time on May 24. As to him, General Counsel is claiming a discriminatory layoff only for the period April 2 to May 13. Violet Samuels (who was hired on March 2 , 1963) was originally listed as a discriminatee in the complaint, but General Counsel moved to drop her name at the, opening of the hearing. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same day also asked Ronis to come into the plant early on Friday, April 5, and make out final checks for all the employees in the hand carbon collating de- partment but Lichtenstein did not specify their names. At 5 p.m., April 5, employees Ardell Brown, Mary Samuels, Epsie Sampson, and Georgia Little were called into Lichtenstein's office. Lichtenstein, in the presence of Ronis, told them that they were being laid .off because he was closing the hand carbon department since it was losing money. Lichtenstein also told them that they were selected for layoff because they were hand carbon collators. The em- ployees protested the layoff. Employee Brown stated that she had worked on noncarbon jobs, that she and the other laid-off employees were qualified to work on such jobs, and that they were senior in service to employees retained. Also the same day, Respondent laid off another girl, Dorothy Parker, a driver, Dan Dorsey, and a packer, Curtis Smith.21 Three additional employees (whose layoffs are not here in issue) were also laid off but only temporarily, namely, Pio Franquelli (an assistant collating machine operator and order clerk), Ephraim Marino (a porter), and Dan Welgoss (a paper cutter) 22 It was Ronis who notified Smith and Franquelli of their layoff. Lichtenstein testified that: the "sole and only reason" for the termination of the eight employees here in question was the "economic" condition of the business; the operation of the hand carbon collating department was "uneconomical" and "unprofitable"; five of the eight employees (Brown, Little, Parker Sampson, Mary Samuels) were hired for, or worked in, the department and their services were no longer necessary; and although Smith and Dorsey did not work in the depart- ment, their services as packer and driver, respectively, were no longer needed be- cause there was less packing and trucking work available after the shutdown. As to the eighth employee, Overmars, Lichtenstein testified that his separation was not related to the discontinuance of the hand carbon department 23 3. The employees laid off Ardell Brown was originally hired by Respondent in 1954 to work in the hand carbon collating department. During her 91h years of employment, however, she worked in other departments, performing almost all other operations in the plant, including gang stitching, gang feeding, banding, boxing, punching, tipping or gluing, inserting, hand gathering, etc 24 Brown had on occasion instructed other employees on various operations. She spent approximately 50 percent of her time on other than hand carbon jobs during 1962 and 1963.25 Brown last received a 21 Parker and Dorsey were absent from work and were sent telegrams. 21 Marino returned to work the next workday and Franquelli and Welgoss were recalled April 15. =While Respondent adduced a good deal of evidence purporting to show that practically all of the laid-off employees had some shortcomings-i e, a poor attendance record, or a record of garnishments and liens against salaries-Lichtenstein disclaimed that these were factors In his decision to lay off, or in his selections of the particular employees for lay- off. Respondent contends that the alleged derelictions are relevant only in meeting what it considers to be General Counsel's alternative theory of the case, namely, that even If the layoff were economically motivated, the selections were discriminatory. In view of the finding hereafter made-that the decision to close the department In question was dis- criminatorily motivated-I do not deem it necessary to make any findings with respect to the claimed derelictions. General Counsel and Respondent also adduced considerable testi- mony on the seniority status of the laid-off employees In view of the fact, established by the record (and I so find), that Respondent had no fixed policy of laying off employees on the basis of seniority, I do not make any findings on the specific seniority position of each of the Laid-off employees, although, as noted infra, Respondent's action in failing to offer longtime nonhand carbon collating work to longtime employees qualified to perform such work need not entirely be Ignored in considering the totality of Respondent's conduct. Z+ These (and others to be mentioned in connection with the work of other employees) are different bindery operations in the plant. Some of these are used In both carbon and noncarbon collating jobs ; others are used only on the latter jobs. For example, stitching on the gang stitcher machine entails stitching or stapling together a number of signatures (folded sheets of paper) at the same time. No carbon work is performed on the gang stitcher. On the other hand, in Inserting, for example, carbon or noncarbon sheets may be put into pamphlets or jackets. 25 The above finding is based on the testimony of Frank Mebert, supervisor of the hand carbon collating department, whom I found to be a generally credible witness. I do not credit Brown's testimony that she spent much less than 50 percent of her time on hand carbon collating. SQUARE BINDING AND RULING CO., INC. 217 wage raise in January 1963. She signed a union card and was one of the most active union adherents, having spoken to' other employees about joining the Union. Brown attended the April 4 union meeting. Epsie Sampson was first hired by Respondent in 1955. After working 2 years she left Respondent's employ but was rehired a year later. Sampson started in the hand carbon collating department and worked there throughout her employment. However, from time to time she worked in other departments and the operations she performed include plain collating, stitching, boxing, mounting, punching, slic- ing, etc. Sampson signed a union card and attended the April 4 union meeting. Mary Samuels had worked in the hand carbon collating department since May 2, 1960. In addition, she performed work for other departments. The operations she performed include stitching, punching, boxing, and casing. Foreman Mebert estimated that Samuels worked 20 percent of her time on noncarbon hand collating in 1963.26 She was admittedly a good worker and both Mebert and Lichtenstein complimented her work. Samuels last received a wage raise in January 1963. She signed a union card and attended the April 4 union meeting. Dorothy Parker first worked for the Company in 1957 but was out about 1i years. She returned to work on September 22, 1961. Mebert credibly testified that Parker did straight collating when she worked in his department for a while but no hand carbon collating, and that she did no work in his department after October 1962.27 Parker credibly testified that during the last period of her em- ployment she did gang stitching, folding, feeding, and boxing, and no hand carbon work 28 Parker received her last wage increase in March 1963. She was an active union adherent, having spoken to other employees about the Union. She signed a union card and attended the April 4 union meeting. Georgia Little worked for Respondent on three different occasions for several months each time, first beginning in 1955 or 1956 as a hand carbon collator. After employment by another company, she was again hired on February 25, 1963. During the 6 weeks she was last employed, she performed no hand carbon work and did mostly boxing off the gang stitcher, and some other operations such as cut- ting, gathering, and straight collating.29 Little received a wage raise (from $50 to $55 a week) on April 1, only 4 days before her layoff. She signed a union card and attended the April 4 union meeting. Curtis Smith was hired by the Company on January 11, 1960. He spent 90 percent of his time in the shipping department primarily packing. Other work per- formed by Smith included occasional work on the folding machine and McLain stitcher, boxing and banding, cleaning, and porter work. Smith was one of the most active unionists in the plant. He signed a union card, and signed up other employees, including Ardell Brown and Epsie Sampson. He attended the April 4 union meeting. Daniel Dorsey, hired October 28, 1960, was a truckdriver. Dorsey was one of the most, if not the most, active unionists in the plant. He was one of the first employees to meet with Union Representative Ash. Ash gave him union cards to distribute to other employees. Dorsey then discussed the Union with other employees, and signed up some of them, including Curtis Smith, Dorothy Parker, and Mary Samuels. He attended the April 4 union meeting. John Overmars was hired on May 15, 1959, and worked as a folding machine operator until his first layoff on April 2, 1963. Recalled on May '13, he was again laid off on May 24. Overmars signed a union card. 20 I do not credit Lichtenstein's testimony that Samuels worked full time as a band carbon collator in 1963 Mebert worked more closely with the employees than Lichten- stein who admittedly spent a great deal of time out of the plant. Ronis characterized Lichtenstein as the Company's "outside man." 2 Another company witness, Robert Menigault, shipping clerk, testified that he did not see Parker do any hand carbon collating since October 1962. I do not credit Lichtenstein's testimony that Parker spent 50 percent of her time on hand carbon collating in 1963. 2' Parker named Portoro and another individual, and not Mebert, as her supervisors. This is another indication that she did no hand carbon collating work. 2D I do not credit Lichtenstein's testimony that Little worked full time as a hand carbon collator during her last period of employment. Respondent's witness, Menigault, on cross- examination corroborated Little's testimony that she did not work in this capacity in 19,63. Mebert testified that Little did straight collating or counting work prior to 1963 but could not recall Little working or not in 1963. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondent's subcontracting of hand carbon collating work after ,the April 5 layoff Respondent has not done any hand carbon collating on its premises on orders from customers since April 5. Supervisor Mebert testified, however, that he did complete all of the hand carbon jobs on hand on April 5. Respondent continues to perform plain hand collating and automatic or machine collating at its plant. On May 10, Respondent began to subcontract hand carbon collating jobs for its customers. From May 10 through July 8, Respondent paid $500 for services performed on five jobs and it, in turn, billed its customers $750, thus realizing a 50 percent markup.30 Conclusions 1. The circumstances establishing the discriminatory nature of the shutdown of the hand carbon collating department and the layoff of seven employees Respondent does not dispute the well -settled proposition that the discriminatory shutdown or discontinuance of a department or an operation, resulting in whole- sale dismissal of employees , is no less violative of Section 8(a) (3) and (1) of the Act than the discriminatory discharge of a single employee. See N.L.R B. v. Kelly & Picerne, Inc., 298 F. 2d 895, 898 (C.A. 1); N.L.R.B. v. Rapid Bindery, Inc., 293 F. 2d 170, 174 (C.A. 2); N.L.R B. v. Brown-Dunkin Company, Inc., 287 F. 2d 17, 19 (C.A. 10). The basic question here presented is whether Respond- ent's action in closing down its hand carbon collating department on April 5, 1963, was, as General Counsel contends , motivated by antiunion animus or , as Respond- ent contends, by economic considerations. On the whole record, and particularly in view of the considerations set forth below, I am constrained to find that the General Counsel met the burden of establishing that the shutdown was motivated by union animus. (a) The record shows, as I have found , that Respondent opposed the unioniza- tion of its plant. Its chief executive , Morton Lichtenstein , so indicated to Union Representative Ash on the very first day of the organizational drive. Later on April 9, Lichtenstein assembled all the employees and explicitly told them that they were better off without a union. Respondent 's supervisors (Portoro and Cea) and - its accountant and agent (Ben Ronis ) went even further. They repeat- edly interrogated employees concerning their union activities and sympathies , threat- ened reprisals-including loss of overtime work, pension, and insurance benefits- if the plant were organized , and sought to interfere with the right of its employees to maintain contact with the Union's organizers. Clearly "antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive." N.L.R.B. v. Dan River Mills, 274 F. 2d 381, 384 (C.A. 5). (b) The record further shows , as I have found , that all seven employees laid off at the time of the shutdown of the hand carbon department were union adherents. Included among these were the most active union adherents-Smith, Dorsey, Brown, and Parker-all of whom talked to other employees about the Union or signed up other employees. All seven employees were members of the Union and attended the April 4 union meeting.31 Six of the seven were also targets of interrogation, threats, or other restraint. Such conduct on the part of an employer "sometimes discloses the real motive actuating an antiunion employer in discharging" an employee. N.L.R.B. v. W. C. Nabors, 196 F. 2d 272, 275 (C.A. 5), cert. denied 344 U.S. 865. (c) It is true, as Respondent points out, that there is no direct evidence in this record that Respondent knew of the union membership and activity of the particu- lar employees here involved. But Respondent ignores the settled proposition that such knowledge may be based on circumstantial evidence . F. W. Woolworth Company v. N.L.R.B., 121 F. 2d 658, 660 (C.A. 2); N.L.R.B. v. C. W. Radcliffe, et al., d/bla Homedale Tractor & Equipment Company, 211 F. 2d 309, 315 (C.A. 9), cert. denied 348 U.S 833 I infer such knowledge on the part of Respond- ent from the circumstances surrounding the shutdown and the layoff of the em- 30 Lichtenstein testified, however, that this markup does not represent net profits, since ,Respondent still incurs some expenses such as trucking in handling the work. In addi- tion to contracting out hand carbon work, Respondent has, since the layoff, also contracted out some of the cleaning and porter work. The eighth alleged discriminatee, Overmars, was laid ofd April 2. As already noted, his layoff was not connected with the shutdown of the carbon collating department. SQUARE BINDING AND RULING CO., INC. 219 ployees, including its persistent interrogations of, and threats against, employees; Supervisor Portoro's statement to employee Parente on the day of the layoff that he knew "the other people [in addition to Parente] that signed up, too"; 32 Ronis' statement to employee Curtis Smith that he had heard he was "one of the ringleaders"; 33 the small size of the plant and the close contact of Respondent's representatives with the employees; 34 and the other factors referred to below, in- cluding the disportionate layoff of union employees and the timing of the shutdown. F. W. Woolworth Co., supra; Abbott Worsted Mills, Inc., supra; Angwell Curtain Company v. N.L.R.B., 192 F. 2d 899, 903 (C.A. 7). Moreover, even if Respond- ent had no specific knowledge that each and every employee in the hand carbon department was a union member, this would not be determinative. For where, as is here found, a shutdown is effected as an antiunion measure, it is discriminatory against all the employees affected, nonunion and union employees alike. (d) The disproportionate selection of union employees as against nonunion em- ployees for layoff is a relevant consideration in determining the existence of discriminatory motivation. F. W. Woolworth Co., supra; N.L.R.B. v. Somerset Classics, Inc., 193 F. 2d 613, 615 (C.A. 2), cert. denied sub nom.; Modern Mfg. Co., 344 U.S. 816; Camco, Incorporated, 140 NLRB 361. Respondent employed 37 full-time and also 8 part-time employees at the time of the April 5 layoff. Of these 45, approximately 22 were union employees 35 It is significant that the seven laid off by Lichtenstein as "hand-carbon collators" happened to be union men. Moreover, as already found, some of the laid-off employees, contrary to Lichten- stein's claim, did not in fact do any hand carbon work prior to and at the time of the layoff, and all had in the past performed, and were qualified to perform, other work. And among the laid-off employees were employees of long standing with the Company, including one that had been with Respondent 91/ years. It seems to me that all these matters are relevant factors in determining motivation 36 (e) Also significant is the timing of the layoff. The Union first came on the scene around March 19. It held two organizational meetings on March 30 and April 4, respectively. Respondent effected the layoff the very day after the second meeting-when the Union was close to signing up a majority of the employees- although, according to Lichtenstein, the matter of shutdown had been under con- sideration for well over a year. These circumstances, considered in the light of the whole record, strongly support an inference that the layoff of April 5 "was really no coincidence at all but rather part of a deliberate effort by the management to scotch the lawful measures of the employees" to organize the plant. (N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2).) 2. The inadequacy of Respondent's explanation for the shutdown and layoff The question remaining is whether the evidence adduced by Respondent to show that the layoff was due to economic conditions is sufficient to rebut what I consider to be a strong prima facie case of discriminatory motivation established by the circumstances described above. Cf. Eastern Die Company, 142 NLRB 601; Montgomery Ward & Co. V. N.L.R.B., 107 F. 2d 555, 560 (C.A. 7). As we have seen, Respondent adduced evidence purporting to show that Company President Lichtenstein made several surveys of the economic condition of the hand carbon collating department. According to Respondent, Lichtenstein made five studies: in January, April, and July, 1962, and January and April 1963. Ronis, his ac- countant, did not participate in the studies. He merely supplied the sales figures on hand and automatic carbon jobs, and the wages of employees named by Lichtenstein 33 Portoro also told another employee that he knew he signed a card. 83 Ronis also told an employee that he knew the girls have attempted to sign her up. 84 Although Company President Lichtenstein who effected the layoffs obviously had less contact with the employees than Portoro and Cea, the reasonable inference is that his subordinates' knowledge of the employees' union activities came to his notice. Cf. N.L R.B. v. Abbott Worsted Mills, Inc., 127 P. 2d 438, 440 (C.A. 1) ; N L R B v. Trans- port Clearings, Inc., 311 F. 2d 519, 523 ( C.A. 5). Lichtenstein testified that two em- ployees had talked to him personally about a forthcoming union meeting. 35 Two employees , Violet Samuels and John Overmars , were laid off April 2. The record shows that the latter was a union member. 3e Respondent in its brief places major emphasis on the fact that it retained many union employees . The short answer to this contention is that "the fact that Respondent re- tained some union employees does not exculpate him from the charge of discrimination as to those discharged." N.L.R.B. v. W. C. Nabors, 196 F. 2d 272, 276 (C.A. 5), cert. denied 344 U.S. 865. See also N.L.R.B. v. Williams Lumber Company, 195'F. 2d 669,. 672 (C.A. 4), cert. denied 344 U.S. 834. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lichtenstein himself broke down and determined the sales of hand carbon and the labor costs and other costs chargeable to the hand carbon department. While Respondent introduced into the record three sheets of paper which, it claims, are Lichtenstein's contemporaneous work papers showing how he arrived at labor costs for the year 1962 and for the first quarter of 1963, Respondent did not submit any comparison cost figures for other periods 37 Respondent's Exhibit No. 15 is a summary sheet listing for the year 1962 total hand carbon sales in the amount of $19,000; 38 labor costs (for eight named employees) totaling $28,807; other costs (for carbon, perforating, punching, and cutting) in the amount of $9,283; and "total loss in labor" in the amount of $19,090. Respondent's Exhibits Nos. 16 (a summary sheet) and 17 (work papers) list comparable information for the first quarter of 1963, and the "direct labor loss" arrived at is listed as $5,645. Respondent's exhibits are undetailed and suggest hurriedly drawn scraps of paper. I find that Respondent's exhibits give an inaccurate and distorted picture of the condition of the hand carbon collating department. Thus, Lichtenstein's tabulation of labor costs for the employees in the hand carbon department-which, of course, is by far the major and basic cost item-appears to be so misleading and farfetched as to impugn the trustworthiness of all of Lichtenstein's other calculations and conclusions.39 Thus, instead of allocating an employees' salary on the basis of the amount of time he spent performing hand carbon work, in each case Lichtenstein allocated to hand carbon the employees' total salary. For example, Lichtenstein charged employee Ardell Brown's total earned wages in 1962 ($2,932) and in the first quarter of 1963 ($875) when, by his own admission on the witness stand, Brown spent only 50 percent of her time on hand carbon. Lichtenstein testified that Dorothy Parker likewise spent only 50 percent on hand carbon, yet in her case also he charged total 1962 and 1963 wages ($3,112 and $808 respectively) 40 His errors are even more glaring in the case of employees Dan Dorsey and Curtis Smith, the trucker and packer, respectively, who were let go after the shutdown. Lichten- stein charged their total wages ($5,786 and $1,236 for Dorsey in 1962 and 1963; and $3,889 and $1,191 for Smith) to hand carbon although only a small fraction- less than 4 percent-of the goods they packed and shipped consisted of hand carbon.41 The wages of other employees charged to hand carbon, such as those of Epsie Sampson, Mary Samuels, and Dorothy Little, are likewise inflated in view of Lichtenstein's erroneous estimate of the amount of time these employees spent on hand carbon work.42 I cannot accept Lichtenstein's belated rationalization, given at 37 Lichtenstein testified that he did make separate calculations for the first two quarters of 1962 but in January 1963 he discovered that they were lost , presumably in burglaries which occurred in the plant in 1962. Lichtenstein did not explain why he could not re- construct these figures from company records. 31 Total 1962 sales from all operations were $508,000. 39 While the accuracy of Lichtenstein 's labor cost allocations to the hand carbon depart- ment can be tested by the record evidence ( including Lichtenstein ' s own testimony) as to the amount of time worked by the employees in this department , the same is not true of his other allocations , such as the cost of carbon , cutting, punching , etc. In the light of the conclusions reached herein regarding ,Lchtenstein 's analysis of labor cost, I cannot accept as accurate his analysis of these other costs. 4° Actually , as already found, Parker did no hand carbon work at all. 41 This is a reasonable assumption from the fact that Respondent 's hand carbon sales in 1962 amounted to only $19 ,000, or 3.7 percent of Respondent 's total sales of $508,000. Lichtenstein admitted on cross-examination that the correct way of determining the trucking costs for hand carbon would have been to take into consideration the cost of the entire department rather than Dorsey's salary alone. Respondent's total labor cost in the shipping department is the sum total of the wages of all five drivers who do the shipping ( although one of these appears to be only a part -time driver ) Using Dorsey's salary as a base, total trucking costs in the department were $28,930 ( 5X5,786) Since only about 4 percent of this figure under the state of facts assumed above is properly chargeable to the hand carbon department , only $1 ,157 (and not the $5,786 figure used by Lichtenstein ) was properly allocable for trucking in 1962. Applying the same pro- cedure to determine the amount of Smith's wages allocable to hand carbon would likewise result in allocation of only a small portion of his wages as packing cost. 42 As already found ( and this finding is based largely on the testimony of Respondent's own supervisor of the hand carbon collating department , Frank Mebert ) Samuels spent 20 percent of her time, Sampson some time, and Little all her time , on nonband carbon work. As in the case of the employees already referred to, Lichtenstein charged their total wages to hand carbon. SQUARE BINDING AND RULING CO., INC. 221 the hearing, that he deliberately used the inflated wage figures for the listed em- ployees to offset the time spent on hand carbon work by other employees whom he failed to list in the work papers. There is no credible evidence in the record establishing the amount of time spent by such other employees on hand carbon work. I find that Lichtenstein's summary sheets and work papers are totally unreliable, that they do not present a correct analysis of the hand carbon collating operations, and that they do not support Respondent's claim that the hand carbon department was in the dire financial straits claimed by Respondent (although, as hereafter noted, during the period here involved there evidently did exist a temporary slack in business in Respondent's hand carbon department as well as in its other departments). It is difficult for me to believe that an intelligent and practical businessman-such as Lichtenstein appears to be-could have reached the conclusion he claims to have on the financial status of this department, and then proceeded to close down this 12- to 15-year old department, on the basis of the rough and flimsy calculations de- scribed. A businessman faced with taking such drastic step would at the least have checked the calculations with his accountant-especially where, as here, the ac- countant (Ronis) was a trusted associate of 20 years, extremely close to manage- ment-unless the employer deliberately closed his eyes to the true facts and was bent on doing away with the department for other than economic reasons.43 In the light of the data allegedly relied on by Lichtenstein, it is not surprising that Ronis repeatedly disavowed any participation in Lichtenstein's calculations and analysis. It may well be, as General Counsel aptly puts it in his brief, "Perhaps the real answer is that Ronis' professional knowledge preclud[ed] him from joining with Lichtenstein in testifying about such prestidigitations." Even apart from the 'foregoing, however, other circumstances militate against a finding that Respondent closed the department for purely economic reasons. Thus, despite the claimed losses and poor business condition of the hand carbon depart- ment, Respondent hired a new employee for that department (Violet Samuels) in March 1963, only a month before the layoff. It hired another one (Georgia Little), also allegedly for that department, 6 weeks before the layoff and gave her a wage increase only 4 days before the shutdown. In addition, Respondent's reduced work force after the layoff continued to put in almost the same amount of overtime as the larger work force prior to the layoff.44 Furthermore, Respondent would in the past normally spread out the work, and assign employees to other tasks such as sweeping and cleaning, and on occasion even accelerate vacation periods to avoid layoffs. Finally, it is significant that the record is devoid of evidence that any of the employees-even Frank Mebert (supervisor of the hand carbon department)-had been given any inkling of the possible shutdown of the department for economic reasons. For all of the foregoing reasons, I reject Respondent's contention that the dis- continuance of its hand carbon collating department and the permanent layoff of the seven employees here involved on April 5 was motivated solely by economic con- siderations. I am convinced that the reason advanced by Respondent for its action is a pretext to conceal the true motive for the layoff. Viewing the record as a whole- including Respondent's demonstrated hostility against the Union, its attempts to thwart unionization of the plant by interrogations and threats, the circumstance that the laid-off employees were all union adherents and included the most active unionists, the compelling inference that it had knowledge of the identity of the union employees, the timing of the layoff just 1 day after the Union was close to signing up a majority. of the plant employees, and, finally, the inadequacy of the explanations advanced for the layoff-I conclude that Respondent's shutdown of the department and layoff of the employees were intended to discourage its employees from adhering "Respondent seeks to justify Lichtenstein's failure to consult with Ronis on the ground that Ronis was unfamiliar with bindery operations. Although highly doubtful in view of Ronis' association with Respondent for 20 years, even were it true, it is clear that one (particularly an accountant) need not have special familiarity with bindery operations and costing practices to detect egregious errors in accounting procedures. 44 Respondent's Exhibit No 12 shows that the total dollar amount of overtime in the first quarter of 1963 was $'5,647.02 as compared to $8,439 52 with a smaller force in the second quarter. General Counsel's Exhibit No. 7 shows that during the quarters in question the work force put in 3,720 and 3,001 hours, respectively. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Union and also to keep the Union out of the plant, in violation of Section 8 (a) (3) and ('1) of the Act. 3. The alleged discriminatory layoff of John Overmars As already noted, Overmars was laid off on April 2, 1962. He was a folding machine operator, and his layoff was unconnected with the shutdown of the hand carbon department. At the time of the layoff, Supervisor Portoro told him he would be called back when it got busy again a "week or so" later. Overmars was actually recalled on May 13, but was again laid off on May 24. At the outset of this proceeding General Counsel stated that the complaint is directed only "to his initial layoff." I find that the record does not support the allegation in the complaint that Overmars' initial layoff on April 2 was discriminatorily motivated. While the evidence establishes that Overmars signed a union card and that Portoro knew that he was a union sympathizer, there is no evidence that Overmars attended any union meetings 45 or that he was active in the Union. The record further establishes that a temporary slack in business had existed in the noncarbon, as well as carbon, departments around this period and that Respondent had laid off several employees about this time. While Respondent retained two other full-time folding machine operators, it is undisputed that Overmars was junior in service to the two 46 I conclude that General Counsel did not meet the burden of proving that Overmars was discriminatorily laid off on April 2 because of his union membership or ac- tivities, in violation of Section 8 (a) (3) of the Act. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully discontinued its hand carbon collating department and permanently laid off or discharged seven employees in violation of Section 8(a)(3) and (1) of the Act, the normal appropriate remedy would be to require Respondent to resume the discontinued department and rein- state the laid-off employees with backpay. Kelly & Picerne, Inc., 131 NLRB 543, enfd. 298 F. 2d 895 (C.A. 1). However, the record establishes, as I have found, that the laid-off employees had previously performed and are qualified to perform work in the departments retained by Respondent 47 The work in the departments retained does not appear to be more onerous or less desirable than the work in the discontinued department. In my view, the policies of the Act will be effectuated if the terminated employees are reinstated to positions in the retained departments which are substantially equivalent to their former positions in the discontinued de- partment, if such positions are available in the latter. See Missouri Transit Com- pany, 116 NLRB 587, 591, enfd. 250 F. 2d 261 (C.A. 8); Kingsford Motor Car Co., 135 NLRB 711, 712, 727-728, reversed on other grounds 313 F. 2d 826 (C.A. 6). Cf. Riverside Wholesale Distributors, 142 NLRB 580. I will therefore recommend that Respondent be required to offer reinstatement to the seven laid-off employees to available positions in the retained departments, or, at its option, to reinstitute the hand carbon collating department 'and offer them reinstatement in that department. In either event, the positions offered shall be substantially equivalent to the former positions of the discriminatees in the plant, without prejudice to their seniority 45 One such meeting was held on March 30,'prior to Overmars' layoff. The second meet- ing was on April 4 46 In the circumstances of this case, I cannot attach special significance to the fact that Respondent also retained two part-time operators with less seniority than Overmars. As I have already indicated in discussing the layoff of the hand carbon collators, Respondent did not in the past apply seniority in effecting layoffs. Furthermore, the record indicates that Respondent used one of the part-timers for services other than folding operations and even this employee was laid off several weeks after Overmars The second part-timer was laid off on April 5, 3 days after Overmars 47 Indeed, as I have found, some of the laid-off employees did not in fact work on hand carbon and those that did, worked on both noncarbon and carbon jobs at and prior to the time of the layoffs. SQUARE BINDING AND RULING CO., INC. 223 and other rights and privileges.48 I will also recommend that each,employee be made whole for any loss of pay he or she may have suffered by reason of Respond- ent's discrimination, by paying to the employee a sum of money equal to the amount which the employee normally would have earned as wages from April 5, 1963, the date of -the employee's termination, layoff, or discharge, to the date of Re- spondent's offer of reinstatement, less the employee's earnings during said period. Backpay shall be computed in the manner provided in F. W. Woolworth Company, 90 NLRB 289, with interest as directed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the fact that the unfair labor practices committed are of a character striking at the roots of employee rights safeguarded by the Act, I shall also recom- mend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By coercively questioning employees about union matters, by interfering with their right to maintain contact with the Union's organizers, and by threatening employees with reprisals in the event the plant is organized, Respondent has inter- fered with, restrained, nand coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 4. By discriminatorily discontinuing its hand carbon collating department and laying off or terminating the employment of seven employees (Ardell Brown, Georgia Little, Dorothy Parker, Epsie Sampson, Mary Samuels, Daniel Dorsey, and Curtis Smith), in order to discourage its employees' membership and activities in the Union, Respondent has violated Section 8(a) (3) and (1) of the Act. 5. Respondent has not violated Section 8(a)(3) rand (1) of the Act by laying off John Overmars on April 2, 1963. 6. The unfair labor practices described in paragraphs 3 and 4 above are unfair labor practices affecting commerce 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 Square Binding and Ruling Co., Inc., its agents, officers, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively questioning employees about union matters, interfering with their right to maintain contact with union organizers, threatening employees with reprisals in the event that the plant is organized, and in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. (b) Discouraging membership in New York Paper Cutters and Bookbinders Union No. 119, International Brotherhood of Bookbinders, AFL-CIO, or any other labor organization, by laying off, discharging, or in any other manner dis- criminating against employees in regard to. their hire or tenure of employment or any term or condition of employment. 2. Take the following affirmative action found necessary to effectuate the policies of the Act: (a) Offer to Ardell, Brown, Georgia Little, Dorothy Parker, Epsie Sampson, Mary Samuels, Daniel Dorsey, and Curtis Smith immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section hereof entitled "The Remedy." - - (b) Preserve and, upon request, make available to agents of the National Labor Relations Board, for inspection and copying, all payroll and social security records, timecards, personnel records and_ reports, as well as all other records necessary or appropriate in computing the amount of backpay due -as herein provided. 4s Respondent's contention that some of the employees should not be reinstated because they allegedly had a poor attendance record or, had. a record of garnishments against salary, is wholly without merit The record shows that Respondent had retained the employees in question for a long time despite the alleged derelictions and it admittedly did not lay them off on account of them (see supra, footnote 23). The alleged derelictions do not render the employees unfit for reinstatement to, which they are otherwise entitled. See N.L.R.B. v. Gonzalez Paden Company, 161 F. 2d 353, 358 W.A. 1). 744-670-65-vol. 146-16 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its Bronx, New York, plant copies of the attached notice marked "Appendix." 49 Copies of the said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's author- ized representative, be posted by Respondent immediately upon receipt thereof, in conspicuous places including all places where notices to employees are customarily posted, and maintained by it for 60 consecutive days thereafter. Reasonable steps -shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region, in writing, within 20 days from the receipt of this Recommended Order, what steps Respondent has taken to comply therewith.50 It is further recommended that the complaint be dismissed in all other respects. le In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "A 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 "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." so In the event that this Recommended Order be adopted by the Board, this provision shall be modiled 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 a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT coercively question our employees about their union activities; nor will we interfere with the right of our employees to maintain contact with union organizers; nor will we threaten employees with reprisals in the event the plant is unionized. WE WILL NOT discourage membership in New York Paper Cutters and Bookbinders Union No. 119, International Brotherhood of Bookbinders, AFL- CIO, or in any other labor organization, by laying off or discharging em- ployees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of these rights. WE WILL offer to Ardell Brown, Georgia Little, Dorothy Parker, Epsie Sampson, Mary Samuels, Daniel Dorsey, and Curtis Smith reinstatement to their former or substantially equivalent positions, without prejudice to, their seniority or other rights and privileges, and we will make them whole for any loss of pay suffered as a result of their layoff or discharge. All our employees are free to become, remain, or to refrain from becoming or remaining members of New York Paper Cutters and Bookbinders Union No. 119, International Brotherhood of Bookbinders, AFL-CIO, or any other labor organization. SQUARE BINDING AND RULING CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employees if 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 Train- ing and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any question concerning this notice or compliance with its provisions.