Tele-Trip Co., Inc.

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for the Second Region, in writing, within 20 days from the receipt of this Trial Examiner's Decision and Recommended Order, what steps he has taken to comply therewith.2 It is further recommended that, unless on or before 20 days from the receipt of this Decision nand Recommended Order Respondent notifies the aforesaid Regional Director, in writing, that he will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring him to take such action. 2In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX 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 interfere with, restrain, or coerce employees in the exercise of their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, either by threatening employees with reprisals or by granting them benefits to abandon Teamsters Local 295, or any other labor organization. WE WILL NOT offer or contribute assistance and support to International Production, Service and Sales Employees' Union 422, or any other labor organization of our employees, or otherwise interfere with the representation of our employees through a labor organization of their own choice. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named labor organization , or any other labor organization, except to the extent above stated. HOME CARE PRODUCTS, INC., 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, Fifth Floor, 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. Tele-Trip Company, Inc. and Insurance Workers International Union, AFL-CIO. Case No. 5-CA-2435. March 6, 1961 DECISION AND ORDER On October 28, 1963, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set 146 NLRB No. 27. TELE-TRIP COMPANY, INC. 277 forth in the attached Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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 [Chairman McCulloch and Mem- bers Fanning and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' '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, Tele-Trip Company, Inc., its officers, agents, successors , and assigns, shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 163, 73 Stat. 519), was heard before Trial Examiner George A. Downing in Washington , D.C., on August 26 and 27, 1963, pursuant to due notice. The complaint, issued on June 25, 1963 , by the General Counsel of the National Labor Relations Board on ia charge dated April 29, 1963, alleged that Respondent engaged in unfair labor practices proscribed by Section 8(a) (1) and (3) of the Act by certain specified acts of interference , restraint, and coercion (i.e., inter- rogations and grants of economic benefits ) and by discharging Shelby Daniel and Lois Petti on March 28, 1963, because of their union membership and activities. Respondent answered, denying the unfair labor practices as alleged. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent, a Delaware corporation, with its principal office in Washington, D.C., is engaged in the sale of travel insurance in various States of the United States. Its gross annual business exceeds $500,000, of which more than $50,000 is done outside the District of Columbia and the Commonwealth of Virginia . Respondent is therefore engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Introduction and issues Respondent operates, under the management of Samuel Irby, sales booths in the Washington area at the city terminal at 12th and K Streets, NW., and at the Wash- ington National Airport (National ) and the Dulles International Airport (Dulles), 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD both in Virginia. The conduct which the General Counsel complains of followed hard upon certain organizational activities among Respondent 's booth sales repre- sentatives at National, and it was confined to that airport except to the extent that Eileen J. Casteel, of the staff at Dulles, became involved. Under date of March 27, the Union wrote Irby claiming representative status at National and requesting recognition and bargaining; and on March 29, it filed a representation petition with the Regional Office in Baltimore seeking a unit con- fined to the sales representatives at National. A representation hearing was held on April 22, with Respondent taking the position that the three locations in the Washington area would constitute the appropriate unit. Further proceedings in that case were suspended indefinitely upon the filing of the unfair labor practice charge in the present case on April 30. The issues here are concerned with certain interrogations allegedly made by Casteel, whose supervisory status is also in issue, with the alleged discriminatory discharges of Lois Petti ad Shelby Daniel on the morning of March 28, and with the contemporaneous granting of wage increases to other employees. Respondent contends that its decision to take the foregoing actions was made on March 27, be- fore receipt of the Union's demand for recognition; that Petti and Daniel were terminated because they were low producers, saleswise; and that increases were given to others, whom Respondent considered deserving of them, for the purpose of stimulating sales. As the issue of knowledge of union activities revolves around what Casteel learned and the nature of her connection with Respondent, we begin appropriately with the evidence bearing upon her supervisory status. B. Casteel's supervisory status Eileen J. Casteel, one of the sales representatives at National, was chosen by Manager Irby to act as supervisor at Dulles when it opened on November 19, 1962. Though Casteel thereafter spent the bulk of her time in a booth selling insurance like the other booth sales representatives, she also engaged in substantial super- vision of the other employees. Though there was some conflict in testimony as to whether Casteel, on her own initiative, actually hired, discharged, and disciplined employees, and though there were other facets of the evidence which pointed both to supervisory status and to lack of it, I find that the more significant and most persuasive factors, adduced by undisputed testimony, preponderated heavily on the side of supervisory status. Without attempting to catalogue all the various factors which support that finding, and without overlooking any which might suggest, contrariwise, that Casteel's supervision was of a routine nature, I shall set forth briefly the factors which have persuaded me and which outweigh heavily those which point in the opposite direction. Except for brief visits by Irby, Casteel was Respondent's only representative at Dulles, in relation to its employees or otherwise, and all orders and directions to the booth sales representatives were given by Casteel.1 As supervisor, Casteel was responsible for the appearance and conduct of Respondent's personnel (three girls, plus herself). She interviewed applicants for employment, took applications from them, and informed them of the probabilities of employment. She also screened applicants for Irby and made recommendations to him, particularly as to ap- pearance, which Respondent considered to be the factor of prime importance in attracting customers to the counters. - Furthermore, Irby admitted that he was not always able himself to interview the applicants for employment at Dulles and that in those cases he relied solely on Casteel's recommendations concerning that prime factor. Irby also acknowledged his testimony at the representation hearing that in two cases which "required immediate action" Casteel made judgments involving discipli- nary action and later told him about them, and that Casteel was not exceeding her authority when she did so; and, testifying at the present hearing, Irby added that Casteel could assume she had the immediate authority to take disciplinary action if he were not available. 1 Janet Rust's testimony was undenied that she took all her orders from Casteel ; and there was no evidence that Irby himself gave orders or directions to any of the employees. Although Irhy's visits were frequent when Dulles first opened, they were of brief dura- tion of some 30 minutes or so, three or four times a week, but they later lessened in fre- quency. As Irby admitted spending some 01/ hours a day at National, little time remained for visiting the city terminal and Dulles, and as his driving time, one way, to Dulles was 40 minutes, his visits there were necessarily of brief duration. TELE-TRIP COMPANY, INC. 279 Casteel also attended meetings for supervisors only in Irby's office at National; she made visits to Respondents downtown (home) offices, to deliver policies, for example ; she could go there on her own initiative without consulting Irby; and she was the only one of Respondent's employees who made such visits to the downtown offices. Casteel's duties also required her to report to Irby on the job performances of the • other girls in connection with whether they were qualified for increases , though Irby had the authority to grant increases , and she was also required to report to Irby on the conduct of the employees which in her opinion merited disciplinary action, probation, or discharge. Though Irby set up the working schedules and made the changes in them , he did not do so without consulting Casteel , who in- formed the employees of the changes and who also gave prior approval in cases where one girl might wish to change shift hours with another or to take time off. Casteel also received from the other girls their daily records of sales, checked them for accuracy, called attention to errors, and handled the corrections. Casteel was paid a salary of $410 a month (plus the usual commission received by all employees on sales ), while the other employees at Dulles were paid at an hourly rate of $1.75. Figured on the basis of a 40-hour week, that rate yielded monthly compensation of approximately $300. Thus Casteel's salary exceeded by more than 35 percent the hourly wages of the other employees at Dulles (none of whom qualified for the $2 rate which became applicable after 6 months of employment). Finally, it is noteworthy (as found in the next section) that it was to Casteel that Respondent turned in seeking to obtain from employees at National reports on the shortcomings of Irby's supervision which were causing the union activities there. C. Union activities; interrogation and knowledge Lois Petti and Shelby Daniel were the leaders in the organizational activities which began in mid-February. They passed out authorization cards, solicited signatures, and held meetings of employees , the first being on March 12 . Though those ac- tivities took place away from the terminal , there is no dispute that as early as March 22, Respondent learned of them through Casteel, though the testimony is in some conflict as to the exact scope of Casteel 's knowledge. Mary F. Jenkins testified that on the Friday (March 22) before Petti and Daniel were discharged, Casteel called her and informed her that she (Casteel) had re- ported to the executives of the Company at the downtown offices the union activities at National and that she had given those executives the names of Lois Petti and Shelby Daniel, and she requested Jenkins to give her the name of the third party who was involved in the union activity. When Jenkins disclaimed knowledge of, or connection with, the union activities, Casteel requested her to write a letter for Casteel to take to the home offices on Monday in the form of a complaint concern- ing conditions at National and, specifically, concerning what it was that Irby did or did not do that was causing ,the union activity. Casteel also asked Jenkins to have Mrs. Cook, a fellow employee, write a similar letter. Casteel also told Jenkins that if the employees were to have a union, wages would be lowered, working conditions would be changed, and there would not be as fine a class of girls employed. • Casteel called Jenkins again at home the next day, and Jenkins informed Casteel that she had not written a letter because she did not want to be a part of anything of that kind. Casteel agreed with Jenkins that she was right not to do so, but continued with a further discussion of the disadvantages of the Union, i.e., that privileges would be taken away and salaries would be lowered. Though admitting the conversation with Jenkins and the fact that it concerned the Union, Casteel testified that she did not recall "too much" of it, and that she was "very hazy on what the conversation was, only as to what [Jenkins] may have testified to here." Casteel testified that while passing through National on a personal trip, she had been informed by several of Respondent's employees that someone had started organizational activities there; that not being sure that those rumors were true, she called Jenkins and "probably" asked her what was going on and what Jenkins knew about it. Although Casteel denied that she mentioned the names of Petti and Daniel, she did not deny Jenkins' testimony concerning the requested letters, did not deny that she had reported at the home offices the rumors concerning a union, and in fact admitted that she had made such reports to President Eugene Brady and to Vice President Lemon. As is seen , Casteel's admissions alone went far to confirm Jenkins' testimony, leaving little in question on the credibility issue. When those admissions are coupled with her further admitted haziness and inability to recall and with her 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failure to deny significant portions of Jenkins' testimony (e.g., her request for letters of complaint about Irby to be delivered to the home office); 2 there is even scanter basis for accepting her ,testimony over Jenkins'. Aside from the foregoing, Brady admitted that Casteel had informed him during a visit to the home offices of the rumors of organizational activities at National Airport; and he, Cruze, and Irby admitted further that the matter was adverted to casually during their conference on March 27, when decision was reached to make the discharges and to grant the wage increases. . I therefore fully credit Jenkins' testimony over Casteel's, and I find that Casteel, in fact, informed Jenkins that she had reported to the home office on the leadership of Petti and Daniel in the union activities, that she requested Jenkins to furnish her with the name of a third participant, and that she warned Jenkins of the reprisals to be expected if the employees had a union. I therefore conclude and find that Respondent had knowledge of the union activi- ties acquired by Casteel during the course of her interrogation of Jenkins and that her warnings and statements to Jenkins may be considered in determining Respond- ent's motivation in discharging Petti and Daniel. Montgomery Ward & Company, Incorporated, 115 NLRB 645, 648, enfd. 242 F. 2d 497 (C.A. 2). D. The discharges Shelby Daniel was employed as a booth sales representative in December 1960, and Lois Petti in October 1961. Petti worked a full regular shift throughout her employment. Daniel began on full time, changed to part time for a year, was put on "double coverage" 3 after a reduction in force in February 1962, and was re- turned to her full-time shift a few weeks before her discharge. Both girls had survived a drastic layoff in February 1962, when Respondent terminated one-third of its staff, releasing those who were the lowest producers and the newest em- ployees. Manager Irby had also shown further consideration for them a scant few days before their discharge by offering to let Petti take time off to move into a new apartment and by offering to let Daniel work overtime because of her hus- band's employment situation. Petti testified that on the morning of March 28, Irby called her on the telephone around 9:15 a.m. (she went on duty at 6 a.m.) and asked her to come to his office right away. He there informed her that he had some bad news and that he would have to let her go because her average had been constantly just "average" or below and that she was not producing on her short-term sales. When she inquired why it had taken him 11/2 years to find that out, Irby replied that the Com- pany had been doing so well it could afford to ride along with slow people. On her further inquiry, Irby added that he had no complaints from customers about her, and had none himself, and that she had always done what was expected of her. Following some discussion of the fairness of the "average" which was expected, Irby informed Petti that she would be given 2 weeks' severance pay and would be paid for her vacation up to that time and for the remainder of that day. Petti testified further that she had never been put on probation; that Irby had never spoken to her before in line of criticism or complaint; that he never warned her about low sales; and that though she attended a sales meeting in March, Irby warned no one at that time about their low averages and said nothing about dis- charging those who were low in sales.4 She testified that the last sales averages which the Company posted were in February, when short-term sales were posted, and that on that list she ranked fourth from the bottom and that below her, in order, were Shelby Daniel, Mary Jenkins, and Elsbeth Fellmer, the last two of whom were still in Respondent's employ at the time of the hearing. 2 That failure to deny left without significance Respondent's attempted impeachment of Jenkins by her prior statement to the Board , which Jenkins admitted did not contain a reference to the requested letters. Furthermore , Jenkins explained credibly that the omission was due to the fact that she answered only such questions as were put to her, contributing nothing of her own to the statement , and that the Board's representative had not questioned her about the letters . Jenkins testified , however, that she reported to Petti that Casteel had informed on the union activities . Jenkins' situation at the time is considered further infra. 3 During the busiest hours of the day, two girls were frequently assigned to work from the same sales booth. 41rby made no claim that he issued any warning at that time (as he did before the 1962 layoff ), testifying only that he "emphasized " that the Company could not afford to carry those who were not producing or "carrying their weight." TELE-TRIP COMPANY, INC. 281 Shelby Daniel testified that she was at home in bed on March 28, her day off (as was also March 29), when Irby called her around 9:30 a.m., and asked her to come in right away because something very important had come up. Though Daniel endeavored to beg off, Irby insisted that she come in because the matter was very important and would take just a few minutes. When Daniel arrived, Irby told her he had bad news for her, that the Company had not been doing "so well," and that it was going to lay off or terminate the "lowest people." When Daniel asked if she were the only one, Irby replied that everyone who could not sell "average" or above were being terminated. Daniel endeavored to compare her record with one of the other girls, but Irby refused to discuss others. When Daniel asked if it had taken Irby 3 years to find out she could not sell, he replied that before that time the Company.had enough money to pay the lowest sales girls. Daniel also testified that she had never been put on probation, that Irby had never warned her she would be terminated if her sales average did not improve, and never told her she had better improve, but on the contrary had always complimented her because of her .willingness to work whenever he asked her. On occasions of prior terminations, Irby had also asked her whether she knew of anyone who would come in ad work and do as well as she had done. Daniel testified further that her own ranking on the February sales averages, as posted, was third from the bottom and that that was the last posting of averages which was made. Both Petti and Daniel testified that in February 1962, Irby terminated some 7 or 8 of 22 employees but that that action was taken only after a sales meeting in January at which Irby informed the staff that a layoff would be made and warned that those with the lowest averages would be terminated.5 Finally, both of them admitted that in applying for unemployment compensation in Virginia, they specified as the cause of termination the same cause as Respondent had assigned to them. Irby's testimony was not in substantial conflict with that of Petti and Daniel con- cerning the actual discharge interviews. He testified he told both of them that be- cause of their continued low production, he had no alternative but to release them because production was off at National and the Company could not carry anyone who was not producing. He informed them they would be given 2 weeks' severance pay to absorb any balance they owed on their uniforms. Irby admitted that he had never warned either of them about their sales production, explaining that com- pany sales prior to 1963 were good and that no situation had arisen before like the one in March. Irby testified that Petti's average was the lowest at the time, that Mary Jenkins' was the next lowest, and that Daniel was next above her, though there was very little difference in the three of them, and that Petti and Daniel were in error in their testimony as to their standing. On inquiry from me, Respondent agreed to pro- duce the posted averages to which Petti and Daniel testified, but was thereafter unable to locate the posted copy. One of the tables which it prepared for the hear- ing, however, covering short-term sales for the period from February 16 to 28, showed their relative standing to be substantially as they testified. See infra. Thus Petti and Daniel were shown as in a tie for third and fourth places from the bottom, with Elsbeth Fellmer below them, and with Mary Jenkins in last place. E. The Jenkins' "probation" Mary Jenkins was employed on December 1, 1960. She was not, so far as the evidence showed, an adherent to the Union nor involved in any way in the union activities .6 On March 28, Irby handed Jenkins a letter which informed her, in part, that upon analysis of the sales records her sales were found below average and that: Due to the low sales position you have occupied on our staff, we must determine if your sales ability is such as to occupy a higher position on our staff. There- fore, we are affording you a period of time (thirty days) to improve upon your sales, during which time we will render our assistance. At the end of the thirty day period we will again analyze your efforts to determine what course of action to follow at that time. 5 Though Petti and Daniel testified that those who were ultimately selected were given a further 2 weeks' notice, Irby explained credibly that he gave them 2 weeks' severance pay, as he did in the case of Petti and Daniel. e The only reference in the record to any connection which Jenkins may have had with the Union was the inclusion by Casteel of Jenkins' name among those to whom the rumors of union activities extended,,but Casteel testified that "Everybody's name was mentioned." 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jenkins testified that when Irby handed her the letter he told her to read it and then to forget about it and that "in about 30 days we will come up with a little raise for you." At the end of 30 days Jenkins mentioned the matter, and Irby informed her the request had been sent in to Vice President Cruze. She ultimately got the raise, which, when received, was retroactive to July 1. In the meantime, on May 6 Irby handed Jenkins a letter which recited certain improvements in her sales record and which released her from her probationary period. Sometime later, Jenkins was also selected by Irby to work in his office, although she still continued to spend 3 hours a day in selling. Irby testified that he informed Jenkins when he handed her the first letter that he had no alternative but to place her on probation because of her low production. He denied telling her to forget about the letter and denied referring to a raise at the end of 30 days. Respondent attacks Jenkins' credibility, pointing to the fact that she did not receive the alleged promised raise until long after the expiration of her probationary period and that her statement to the Board contained nothing concerning Irby's conversation when he handed her the letter of probation. As to the first item, the point which is of greatest significance is that the time specified for the promised raise happened to coincide with the filing of the unfair labor practice charge, which specifically included a charge that Respondent had "made unilateral changes in compensation and working conditions." As for her statement, Jenkins explained credibly that the Board's representative asked her no questions about Irby, that she answered only questions which were put to her, and that she contributed nothing of her own to the statement. See footnote 2, supra. Jenkins' situation at the time was typical of one who finds himself caught "in the middle" between fellow employees engaged in organizational activities and an em- ployer who was favorably disposed toward her but whose disposition toward union activities was one of restraint and coercion. Though Jenkins' sympathies lay at least in part with those who were leading the activities, as disclosed by her report to Petti that Casteel had informed to the home offices, she enjoyed simultaneously a measure of trust and confidence on management's part, as disclosed by the nature of Respondent's solicitation of her assistance to combat the union activities and by her selection for retention over employees with better records than hers. Fur- thermore, Irby showed a continuing trust and confidence in Jenkins by selecting her to perform duties in his office. Finally, there was nothing about Jenkins' demeanor or manner of testifying which indicated that she was not telling the truth. Though she answered freely and without hesitation, she again confined her answers to the questions which were put and again volunteered nothing on her own. Indeed, most of the significant circumstances in the case, including Respondent's own manifestations of confidence, tended to corroborate her. See the enumeration of factors set out, seriatim, infra. As I found Jenkins to be a wholly truthful witness, I credit her testimony over that of Irby, who was at times evasive and whose explanations were confusing and at times self-refuting (e.g., his leisurely handling of the 1962 layoff in contrast with his pretended assumption of the role of the hard-hearted: employer to explain his precipitate discharge of Petti and Daniel). F. The wage increases By letters written and mailed by President Brady on the afternoon of March 27, 11 employees at National and 1 at the city terminal were informed of wage increases to become effective as of April 1. A typical letter is set forth in the footnote below.? Eight of those at National were raised from $2 to $2.10 per hour, and three who had completed their first 6 months' employment were raised from a The letter reads as follows: Nothing gives me greater pleasure than granting a pay increase to an employee whose performance and production warrants it. Our annual analysis of sales performance has now been completed and effective April 1, 1963, your hourly base pay will be increased to [$2.101 an hour in recogni- tion of your continuing improvement. We will continue to watch your performance carefully Congratulations on a job well done, and the part you have played in making Tele-Trip the leading sales organization in the air travel insurance industry!" TELE-TRIP COMPANY, INC. 283 the minimum of $1.75 per hour to $2. Manager Irby's salary was raised simul- taneously from $550 a month to $585 a month. G. Respondent's affirmative defenses Respondent's affirmative case in defense of the discharges and the granting of benefits rested on testimony by Brady, Cruze, and Irby and on certain tabulations which it compiled from its records in preparation for the hearing. The testimony may be summarized as follows: Sales at National had been lagging for some time below 1962 sales despite the fact that air traffic had increased at that terminal, and Brady and Craze had been critical of Irby about his production there. There semimonthly sales report for the first half of March, which reached Brady and Cruze around March 25, showed that the lag was continuing. Deciding that something had to be done quickly, they directed Irby to meet with them on March 27, and during a luncheon meeting on that day, lasting some 2 or 21/2 hours, they reviewed "the entire gamut" of the factors influencing the operation at National. Those included among other things the location of booths, the manner generally in which the girls were performing their duties, and the job performance and selling capacities of the entire roster of personnel. The decision was reached that the "weak sisters" would have to go and that they would be replaced with others who might possibly do a better job. The four lowest producers were identified during the discussions as Jenkins , Petti, Daniel, and Carmel (Candy) Cunningham. Though Cunningham was new and already on probation at the time, those facts were considered (curiosuly enough, when compared with the criteria applied in 1962) as eliminating her from consideration and as narrowing the matter down to the other three. On Irby's representation that he could not afford to terminate three employees at the time, Brady and Craze left it up to Irby to decide who were the two low pro- ducers, after "removing all extraneous factors." Irby testified that as there was not a great deal of difference between the sales records of the three, he chose to retain Jenkins over Petti and Daniel because of her large family (five children) and because he felt that she could improve. Though Brady testified that so far as he could recall the timing of the discharges was not discussed nor the question whether it should be done as soon as possible, Irby testified that it is "a matter of course" with him when he makes up his mind to sever a relationship to do so immediately, the same day, and that he could not recall ever letting anyone finish a shift once he decided to release him. The discussion also extended to the question whether a wage increase should be given to stimulate sales. The current ceiling of $2 an hour had been in effect for almost 2 years, and Irby had been recommending for some time that it should be raised. Irby renewed his suggestion, arguing that a "nominal" wage increase might prove to bean incentive for increasing production. Brady and. Cruze agreed, and it was decided that the personnel at all three of Washington locations would be considered. Thereafter Brady wrote and mailed out on that afternoon letters to 12 employees (11 at National and 1 at the city terminal) as set forth under section F, supra. No increase was given to any of the employees at Dulles as none had been employed for 6 months. A second employee at the city terminal was not raised as she had received an increase in January 1963 . At National, Jenkins was not raised because she was "one of the low volume producers," and Cunningham was not raised because she was on probation. The matter of Irby's increase was not discussed at the meeting, but was decided upon later by Brady and Cruze. Brady informed him of the increase also by letter, written and mailed on March 27, which stated in part that Respondent was anticipat- ing his "full concentration in increasing production in the three areas now under (his) supervision." Brady, Cruze, and Irby agreed that the subject of rumors concerning union activities was referred to during the meeting, but that it was mentioned very briefly. Brady testified for example that he asked Irby what he had heard about any union organization and that Irby replied he knew nothing about it. Irby's testimony was to similar effect , though he added that Brady and/or Cruze stated they had received some word that there was (union) contact made with personnel. All three of them testified that the matter of the union activities did not enter into the decision either to make the discharges or to grant the increases. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent prepared from its records, in preparation for the hearing, certain tables which showed the relative standing of its employees for the periods and under the headings shown by the tabulations below . Those tables showed the four bottom producers to be, in descending order, as follows: Individual averages Short-term sales T16AV averages T18-Percent to gross 8 8/16-88/63 2116-88/63 1/11/15/64 111-81115163 - Brid t Coe Shelby Daniell Carmel Cunningham Shelby Daniel ge Tle Shelby Daniel Lois Petti JJ Shelby Daniel Sandra Cook Amelia Smith Elsbeth Fellmer Mary Jenkins Mary Jenkins Lois Petti Mary Jenkins Lois Petti Lois Petti As is seen, the standings in the second column accord closely with the testimony of Petti and Daniel concerning the averages of February sales which they saw posted, and there was no claim that any of the other tables were posted. Respondent also introduced another table which showed that it had given in the first 3 months of 1962 , 7, 16, and 13 increases , respectively, as compared with 8, 7, and 29 for the first 3 months of 1963. H. Concluding findings I conclude,and find initially that by Casteel's interrogation of Jenkins concerning the identity of those leading the union acitvities , by informing Jenkins that she had reported to Respondent's executive officers the names of two of the leaders, and by warning Jenkins that wages would be lowered, privileges taken away, and working conditions changed if the employees were to have a union , Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Turning now to the discharges and the granting of the wage increases , both actions were the result of a single conference and of a single decision and were defended on the same basis. The same body of evidence (including Casteel's conduct) is, there- fore, applicable and is to be considered as determinative on the vital issue of motivation. In its entirety, the evidence makes out an unfair labor practice case of the classic type, but an outstanding one in that it is saturated with an overwhelming array of factors which are commonly held to be demonstrative of discriminatory and coercive content, but which are generally found in considerably lesser number and degree of concentration in the conventional case of its type . Among those factors are the following: 1. The suspicious timing of Respondent's action, at the climax of the organizational activities and on the eve of receipt of the Union 's request for recognition. 2. The unerring selection of the two leaders in the organizational activities. 3. The failure to give any warning whatsoever to employees of long standing and of prior unblemished records either of impending discharge or that improvement was expected of them (cf. the disparate treatment accorded to Jenkins). 4. The headlong haste with which Respondent effected both the discharges and the wage increases.9 5. The coincidence supplied by Casteel's reports to the executive officers, her solicitation of employee assistance to combat the organizational activities, and her warnings concerning untoward results to follow therefrom. 8 The T16 and T18 sales together accounted for 95 percent of Respondent 's business. 8 The discharges were made in the middle of a pay period , in the middle of a workweek, in the middle of a workday, and in one case by calling the employee to come in from home in the first of her 2 days off. Irby's pretended assumption of a "hard-boiled" attitude was exposed by undisputed evidence that he was considerate of his employees. As for the wage increase, Brady offered no explanation as to how, after a luncheon con- ference lasting some 2 or 2% hours, he was able to get back to his office and dash off and mail letters to a dozen employees. Indeed, Respondent 's precipitate action seemed in- -dicative of a desire to beat some expected deadline. TELE-TRIP COMPANY, INC. 285 6. The lack of urgency demonstrated by the reasons which Respondent assigned for its actions. The lag of sales was neither something that Respondent suddenly discovered nor something which requires immediate discharges.io 7. The striking contrast furnished by the leisurely handling of the much `more drastic 1962 layoff. 8. Respondent's claim that the sales records of Petti and Daniel were "consistently low" was disproved by its retention of them at the time of the 1962 layoff when sales production was one of the two determinative criteria. Petti also then escaped, in- explicably, application to her of the newness of employment factor, though she had been working only 4 months. 9. The failure to apply the 1962 criteria in making what was again essentially a reduction in force for economic reasons. By representing that it was "overstaffed" in 1962, whereas "sales were lagging" in 1963, Respondent sought to stress a dis- tinction which was without real significance, for both created the same type of economic situation which would ordinarily call for the same type of personnel action, i.e., a reduction in force. 10. The curious selection for retention over the leaders in the union activities of its two newest employees, whose sales records were as bad or worse and one of whom was on probation for misconduct. 11. The significant retention of the employee (Jenkins) whose assistance Re- spondent had sought to combat the organizational activities and whose sales record was also as bad or worse than Petti's and Daniel's. 12. The phony probation letter delivered .to Jenkins with assurance that it meant nothing and that she was instead to receive a reward. The factors marshalled above make out a conclusive case, pointing to their own ineluctable conclusion without need for extended analysis or attenuated discussion of conclusions. They plainly established that Respondent's conduct was motivated by a desire to restrain and coerce its employees from engaging in union activities and, by discharging the leaders, to discourage union membership. Respondent's affirma- tive case was overwhelmed by the cumulative force of. those factors. The result is unaffected even though it be assumed that management could properly decide to take action to stimulate sales and that it could choose a layoff and a wage in- crease as proper instruments to that end, for the entire evidence plainly showed that Respondent acted when it did and made the choices for layoff which it did because of its desire to thwart the organizational activities. Some further discussion is necessary, however, of the question whether the grant- ing of the wage increases was violative of the Act. It is immaterial that the wage raise was a benefit, rather than a reprisal, for it is well established that "[I]nterference is no less interference because it is ac- complished through allurements rather than coercion." Western Cartridge Com- pany v. N.L.R.B., 134 F. 2d 240, 244 (C.A. 7). Furthermore, the evidence showed here that Respondent deliberately resorted to the "stick and carrot" treatment, si- multaneously offering the enticement of the wage raises while it was hastily dis- charging the leaders of the union activities and was warning the employees through Casteel that wages would be lowered and privileges taken away if they were to have a union. Consequently, it is without moment that Respondent put the increases into effect without making them conditional upon abandoning union activities and without making either an explicit threat or promise, for both were transparently implicit in the circumstances. As I conclude and find that the wage raises were given for the purpose of thwarting self-organization, "it makes no difference that `no strings were attached to the offer, and no threats [were made] to withdraw benefits if the employees persisted in supporting the union'." N.L.R.B. v. Imperial-Eastman Corp., 322 F. 2d 679 (C.A. 7), quoting from Indiana Metal Products Corporation v. N.L.R.B., 202 F. 2d 613, 620 (C.A. 7).11 1o Though Respondent points to receipt by Brady and Cruze of the semimonthly sales report on March 25 as justification for the timing and the urgency of its action, that circumstance was of scant significance in the light of undisputed evidence that the home offices received da41y reports of sales which were available to the officers. Of infinitely greater significance, bearing on timing and motivation, was the fact that on March 22 Respondent received through Casteel full knowledge of the union activities and of the identity of the leaders. "Though N.L.R.B. v. Exchange Parts Company, 304 F. 2d 368 (C.A. 5), denying en- forcement to 131 NLRB 806, is in conflict with those cases, the Board has declined to follow the holding of the Fifth Circuit, and the case is now before the Supreme Court on writ of certiorari granted on May 27, 1963 [375 U.S. 405]. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is not to hold, of course, that an employer is foreclosed from announcing or granting economic benefits during a union's organizational campaign . "What is unlawful under the Act is the employer's granting or announcing such benefits for the purpose of causing the employees to accept or reject a representative for collective bargaining." Hudson Hosiery Company, 72 NLRB 1434, 1437. As I have found, the entire circumstances here plainly established Respondent's unlaw- ful purpose. I therefore conclude and find that by discharging Petti and Daniel on March 28, Respondent discriminated to discourage membership in the union and that by granting wage increases by its letters of March 27, Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which is conventionally ordered in such cases, as provided in the Recom- mended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. 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. By, interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a) (1) of the Act. 2. By discharging Lois Petti and Shelby Daniel, and by thereafter failing to reinstate them, Respondent engaged in discrimination to discourage membership in the union, thereby engaging in unfair labor practices proscribed by Section 8 (a) (3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law ,and the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent, Tele-Trip Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating coercively employees concerning their union activities and/or sympathies and the union activities and/or sympathies of other employees. (b) Informing employees that the names of those leading the organizational ac- tivities are being reported to Respondent's executive officers. (c) Warning employees that wages will be lowered, privileges taken away, and working conditions changed if the employees were to have a union. (d) Discouraging membership in Insurance Workers International Union, AFL- CIO, or any other labor organization of its employees, by discharging or failing to reinstate them, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist said Insurance Workers International Union, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such 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 Section 8(a)(3) of the Act. - 2. Take the following affirmative action: (a) Offer to Lois Petti and Shelby Daniel immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay which she may have suffered by payment to her of a sum of money equal to that which she would normally have earned from the date of the discrimination against her, TELE-TRIP COMPANY, INC. 287 as herein found, to the date of the offer of reinstatement , less her net earnings during said period (Crossett Lumber Company, Inc., 8 NLRB 440), said b^ackpay to be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289, together with interest thereon at the rate of 6 per- cent per annum, Isis Plumbing & Heating Co., 138 NLRB 716. - (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under this Recommended Order. - (c) Post in its home offices and in its offices at Washington National Airport, copies of the attached notice marked "Appendix A." 12 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being signed by Respondent's representative; be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places at Washington National Airport, at Dulles International Airport, and at the city terminal at 12th and K Streets , NW., Washington, D.C., 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. (d) Notify the Regional Director for the Fifth Region, in writing, within 20 days from the date of the receipt of this Decision , what steps Respondent has taken to comply herewith.13 12 In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order be enforced by 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." 13 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, In writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the 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 you that: WE WILL NOT discourage membership in Insurance Workers International Union, AFL-CIO, or any other labor organization, by discharging or failing to reinstate employees, or in any other manner discriminate in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate coercively our employees regarding their union activities and/or sympathies or the union activities land/or sympathies of other employees. WE WILL NOT inform employees that the names of the leaders in the organi- zational activities are being reported to our executive officers. WE WILL NOT warn employees that wages will be lowered , privileges taken away, or working conditions changed if the employees were to have a union. WE WILL NOT in any other manner interfere with, restrain , or coerce Our employees in the exercise of their right to self-organization , to form, join, or assist said Insurance Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such 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 by Section 8(a)(3) o fthe Act. WE WILL offer to Lois Petti and Shelby Daniel immediate and full reinstate- ment to their former or substantially . equivalent -.positions, without prejudice to their seniority or other rights and privileges, and make each of them whole in the manner provided in the Trial Examiner 's Decision for any loss of pay they may have suffered as a result of our discrimination against them. 744-670-65-vol. 146-20 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, remain, or to refrain from becoming or remaining members of the above -named or any other labor organization. TELE-TRIP COMPANY, 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 Training 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 posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Cuyahoga, Lake Geauga and Ashtabula Counties Carpenters District Council United Brotherhood of Carpenters and Join- ers of America, AFL-CIO; Local 11, United Brotherhood of Carpenters and Joiners of America , AFL-CIO; Local 182, United Brotherhood of Carpenters and Joiners of America, AFL-CIO ; Local 105, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 404, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Berti Company. Case No. 8-CC-162. March, 6, 1964 SUPPLEMENTAL DECISION AND ORDER On July 29, 1963, the Board issued a Decision and Order i in the above-entitled proceeding finding, inter alia, that all of the above- named Respondents were responsible for engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and and (ii) (B) of the Act. 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 [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board having reviewed the rulings of the Trial Examiner made at the hearing, and having reconsidered the record as a whole, is now of the opinion that the evidence adduced at the hearing fails to es- tablish that the above-named Locals 11, 182, 105, and 404 were con- stituent members of Respondent District Council and, further, fails to establish that they were otherwise responsible for engaging in any unfair labor practices. Therefore, we shall delete from the Order in this case all reference to Locals 11, 182, 105, and 404.2 Accordingly, 1143 NLRB 872. 2 Member Brown did not participate in the original Decision and Order in this case, and his present participation is limited to the modification herein. 146 NLRB No. 31.