Staub Cleaners, Inc.

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Although served with a copy for petition of Advisory Opinion, no response as provided by the Board's Rules and Regulations has been filed by the Union. On the basis of the above, the Board is of the opinion that : 1. The Employer is,a retail and wholesale enterprise engaged in selling building materials and supplies and in merchandising general hardware in Puerto Rico and St. Croix, Virgin Islands. 2. The Board has determined that where a single integrated enter- prise, as here, encompasses both retail and nonretail operations, it will assert jurisdiction if the total operations of the enterprise meet either the Board's retail or nonretail standards.' 3. The current standard for the assertion of jurisdiction over retail enterprises which fall within the Board's statutory jurisdiction is a gross volume of business of at least $500,000 per annum. Carolina Supplies and Cement Co., 122 NLRB 88. The Employer's operations in the Virgin Islands of the United States and the Commonwealth of Puerto Rico are within the Board's statutory jurisdiction 2 and its more than $500,000 per annum volume of business satisfies the dollar volume test of the Board's standard for the assertion of jurisdiction over retail enterprises. Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that on the al- legations submitted herein, the Board would assert jurisdiction over the Employer's operations with respect to disputes cognizable under Sections 8, 9, and 10 of the Act. MEMBER LEEDOM ' took no part in the consideration of the above Advisory Opinion. i Oregon Labor-Management Relations Board (Barbur Boulevard Flying A Truck Stop), 148 NLRB 53 ; harry Tancretli, 137 NLRB 743 , Joseph Crowden and, Thomas Crowden, a Partnership, d/b/a Indiana Bottled Gas Company, 128 NLRB 1441. 2 See Section 2(6) of the Act, which provides that "the term ' commerce ' means trade, traffic, commerce , transpoitation, or communication . . . within the District of Columbia or any Territory . 11; cf The Virgin Isles Hotel, Inc., 110 NLRB 558; Sixto Oi tega, d/b/a Sixto , 110 NLRB 1917. Staub Cleaners Inc. and Ben Barnet Cleaners Inc. and Local 39, Laundry and Dry Cleaners International Union , AFL-CIO.' Case No. 3-CA-2155. August 11, 1964 DECISION AND ORDER On April 30,1964, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that the Respondent had 'Hereinafter referred to as the Union. 148 NLRB No. 30. STAUB CLEANERS INC. 279 engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrojn and take certain affirmative action, as set forth in the attached Trial Examiner's De- cision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and rec- ommended that such allegations be dismissed. Thereafter, the Re- spondent filed exceptions to the Trial Examiner's Decision and a supporting brief 2 and the General Counsel filed exceptions to the Decision. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case. The Board adopts the findings, conclusions, and rec- ommendations of the Trial Examiner except as modified herein. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a) (5) and (1) of the Act by refusing to meet and deal with the certified representative of its employees and by uni- laterally changing the existing wage rates of the employees in the silk-finishing department;, that it violated Section 8 (a) (3) and (1) by discharging Katherine Reed and Claudia Chatman because of their union membership and activities ; 3 and that it violated Section 8 (a) (1) by threatening its employees with loss of jobs or benefits in re- prisal for their selection of the Union as their bargaining representa- tive, by interrogating employees concerning the Union and how the employees had voted in the election, and by discharging the six silk finishers for engaging in concerted activities for their mutual aid and protection. - In order to remedy the unfair labor practices which he found had been committed, the Trial Examiner recommended, inter alia, that eight individuals named in the Trial Examiner's Decision be offered reinstatement with backpay. The General Counsel has excepted to the failure of the Trial Examiner to include in this portion of his 2 The Respondent contends, in its exceptions to the Trial Examiner's Decision, that the Trial Examiner improperly credited the testimony of the witnesses of the General Counsel and discredited the testimony of the witnesses for the Respondent it is the Board's es- tablished policy not to overrule a Trial Examiner 's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Such a conclusion is not warranted here. Standard Dry Wall P,oducts, Inc, 91 NLRB 544, 545, enfd 188 F . 2d 362 (CA. 3). 3 The Trial Examiner recommended dismissal of the complaint insofar as it alleged that two other employees were unlawfully discharged , and no exceptions were filed thereto. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommended order provisions requiring ( 1) revocation of the uni- laterally instituted wage rates, (2) payment of backpay for all silk- finishing department employees whose wages and rates were uni- laterally changed to make them whole for any loss of pay suffered, and (3 ) computation of backpay at the wage rates in effect prior to the unilateral change. As it appears that the modifications sought by the General Counsel are in accord with the established Board policy of restoring working conditions which have been unilaterally changed,4 we find merit in his contentions. We shall, therefore, in addition to the remedy recom- mended by the Trial Examiner, order that the Respondent restore the wage rates in effect prior to such unilateral action, retroactively to September 18, 1963. Backpay to the seven silk finishers named in the Trial Examiner's Decision shall be computed on the basis of the re- instituted rates. We shall also order that the Respondent pay back- pay to all other employees employed in the silk -finishing department since September 18, 1963, including those newly hired, in an amount equal to the difference, if any, between the wages actually paid the employees and the amount they would have received had the wage rates not been unilaterally changed. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following additions and modifications : 1. Paragraph 2 shall be modified by deleting subparagraph (b) ; adding the following new subparagraphs (b), (c), (d), and (e) ; and relettering the present subparagraphs (c), (d), and (e), as (f), (g), and (h) respectively. (b) Revoke the unilateral wage changes of silk finishers in- stituted on September 18, 1963, and revert to •the wage scale and benefits existing immediately prior to said date. (c) Offer to the following eight employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges : Katherine Reed Gwendolyn Morris Claudia Chatman Dorris Walker Amanda Carter Catherine Weech Charlotte Dickerson Dorris Wilson (d) Make whole the employees named in paragraph (c), above, and all those employed in the silk-finishing department, including those newly hired, for any loss of pay they may have suffered by ' Dickten & Masch Mfg. Company, 129 NLRB 112; cf. New England Tank Industries, Inc., 147 NLRB 598. STAUB CLEANERS INC. 281 reason of their discharge or of the unilateral change in wage rates as set forth in the section of the Trial Examiner's Decision en- titled "The Remedy," as modified herein. (e) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 2. The notice of all employees appearing in the appendix shall be modified by adding as the 9th and 10th paragraphs thereof the following : WE WILL revoke the unilateral wage changes of the silk finishers instituted on September 18, 1963, and revert to the wage scale and benefits existing immediately prior to said date. WE WILL make whole all the employees in the silk-finishing de- partment, including those newly hired, for any loss of pay they may have suffered by reason of the unilateral changes in wage rates. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on August 26, September 9, October 1, 25, and 29, and No- vember 19, 1963, by Local 39, Laundry and Dry Cleaners International Union, AFL- CIO, herein called the Union , the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3 (Buffalo, New York), issued his com- plaint, dated October 31, 1963, and an amendment to said complaint, dated Novem- ber 20, 1963, against Staub Cleaners, Inc., and Ben Barnet Cleaners, Inc., herein collectively called Respondent . With respect to the unfair labor practices , the com- plaint , as subsequently amended , alleges, in substance , that ( 1) Respondent dis- charged 10 named employees on specified dates because of their union membership and union and concerted activities ; (2) at all times on and after August 30, 1963. Respondent has failed and refused to bargain collectively in good faith with the Union which was certified as the bargaining representative of the employees in an appropri- ate unit ; ( 3) named agents and supervisors of Respondent engaged in specified acts of interference, restraint, and coercion ; and (4) by the foregoing conduct Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. In its duly filed answers , Respondent denies all unfair labor practice allegations. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at Rochester , New York, on January 13-15, 1964. The General Counsel and the Respondent were represented at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, and to file briefs. Respondent's motion to dismiss the allegations in the complaint, made at the close of the hearing and upon which I reserved ruling, is hereby granted in part and denied in part, in accordance with the findings and conclusions hereinafter made. On March 5, 1964, the General Counsel and the Respondent filed briefs, which I have fully considered.' 1 On March 5 , 1964 , Respondent also filed a motion to reopen the hearing to adduce alleged newly discovered evidence bearing on the credibility of Vincent Tadisco , a witness for the General Counsel On March 9, 1964 , the General Counsel filed an opposition to this motion In view of the disposition which I hereinafter make with respect to the credibility of Tadisco , I hereby deny Respondent's motion. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record 2 in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Staub Cleaners Inc., and Ben Barnet Cleaners Inc., herein collectively called Re- spondent, are New York corporations engaged in the laundry and drycleaning busi- ness in Rochester, New York, and vicinity. In a Decision and Direction of Elec- tion, issued on June 3, 1963,3 the Board, acting through its Regional Director, found that (1) both corporations have common stockholders, officers, and directors; (2) the officers and directors formulate and administer a common labor policy affecting the employees of each; (3) the operations of each are, for the most part, identical and related; (4) the employees of each have substantially the same fringe benefits and share the same overall supervision, and (5) they comprise a single integrated business enterprise for jurisdictional purposes. The parties stipulated that during 1962 the gross value of Respondent's drycleaning and laundry service exceeded $500,000 and that Respondent received at its place of business in Rochester, New York, goods valued in excess of $5,000 from points located outside the State of New York. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and I find, that Local 39, Laundry and Dry Cleaners Inter- national Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues Pursuant to a Decision and Direction of Election, dated June 3, 1963, the Board's Regional Director conducted an election on July 11, 1963, among the employees in an appropriate unit, comprising the production and maintenance employees at Re- spondent's drycleaning and laundry plant, to determine whether or not they desired to be represented for collective-bargaining purposes by the Union. Of a total of 73 votes cast, 39 were for the Union, 31 were against the Union, and 3 ballots were challenged. Thereafter, Respondent filed objections, dated July 12, 1963. In a Supplemental Decision and Direction of Election, dated July 18, 1963, the Regional Director stated that on July 15, 1963, the Respondent had filed timely objections to conduct affecting the results of the election, that the Union admitted having engaged in the alleged conduct, and that he therefore sustained this objection.4 He then directed a new election to be held on July 24, 1963. Of a total of 87 votes cast in the second election, 45 were for the Union, 37 were against the Union, and 5 ballots were challenged. In a Second Supplemental Decision and Certification of Representatives, dated August 19, 1963, the Regional Director overruled Re- spondent's timely objections, filed on July 31, and certified that the Union was selected by a majority of the employees in the appropriate unit as their representative for collective-bargaining purposes. Thereafter, Respondent's request for review, submitted to the Board at Washington, D.C., on August 30, was denied by the Board on September 27, 1963. 21 hereby note and correct the following obvious errors in the typewritten transcript of testimony, Page 12, line 5, change "General Counsel's" to "Respondent's"; page 53, line 15, change "on" to "no"; page 85. line 20, change "that" to "what"; page 169, line 4, change "some reludgment" to "summary judgment" , page 169, line 8, change "submit" to "admit" , page 284, line 12, change "Brown" to "Ransom"; page 316, line 11, change "3rd" to "5th" ; page 340, line 20, change "Hod" to "I3ow" ; page 375, line 12, change "a" to "the" , page 378, lines 9 and 14, change "Come" to "Calm" ; page 429, line 20, change "insufficiency" to "inefficiency"; page 430, line 23, change "insuffi- ciency" to "inefficiency" , page 437, line 23, change "not had" to "noted" 3 Case No. 3-RC-3132, a copy of which is in evidence 4 The objection, which the Regional Director sustained, was based on the ground that the Union "reproduced and distributed . . . immediately prior to the balloting a document pur- porting to be a copy of the Board's official ballot" and that this "document was altered on its face to include a mark in the box marked `yes' with an arrow pointing to it." STAUB CLEANERS INC. 283 It is in this setting that the complaint alleges that, on various occasions from July through September , Respondent engaged in unfair labor practices by the con- duct of President Ben Barnet, Plant Superintendent Joseph Guinta, and Laundry Supervisor Vincent Tadisco, all admitted supervisors and agents within the meaning of the Act. The principal issues litigated in this proceeding are (1) whether these three individuals engaged in conduct constituting interference , restraint , and coercion within the meaning of Section 8(a)(1) of the Act; (2) whether the termination of 10-named employees on specified dates during the period from July 15 to Septem-. ber 18, 1963, was violative of Section 8(a)(1) and (3) of the Act; and (3) whether Respondent's conduct constituted a refusal to bargain within the meaning of Section 8(a)(5) and (1) of the Act. B. Interference, restraint, and coercion 1. President Ben Barnet a. The facts Early in July, before the first election, Barnet talked about the Union to employee Katherine Reed 5 near the cigarette machine in the plant. Reed was the group leader of about 11 silk finishers , most of whom are colored . During the course of the conversation, Barnet stated that the "colored" employees wanted this Union; and that if the Union did get in here, "a lot of changes" would be made and a "lot of people" were not going to have jobs. Barnet added that he was very much "worked up about it," and explained that he could "pull the truckdrivers off the road" and eliminate or cut down the routes so that there would not be as much work. He then told Reed to "talk to the help down there and tell them we didn't need a union." Reed replied that if Barnet intended "to do right " by his help, he would not have to worry about a union. Willis Spurlock, employed in the washroom of the laundry department, was called into Barnet's office to get his vacation check in the second week of July. At that time Barnet asked Spurlock what he thought of the Union. Spurlock replied that he did not know anything about it because he had never belonged' to a union before. Barnet then stated that he would tell him a few things about the way the Union does things . Barnet then mentioned the union dues and stated that someone would stand around and tell him how to do his job. He asked Spurlock how he would like it if someone would tell him "what food to eat, what clothes to wear and what girls to take out." Spurlock replied that he would not "like that at all." Barnet then stated that the Union operated "the same way," that "they hang around and tell you what to do." He added that he was going to try "to keep them from coming in." About a week before the first election, George Taylor, employed as a washman in the laundry, was in Barnet's office. Also present was Joel Liebhng, a salesman for a supply house servicing Respondent. Barnet asked Taylor who had started the Union. Taylor replied that he did not know. Barnet then asked where the union meetings were being held and how Taylor was going to vote. Taylor stated that he was going to vote "No." After the first election, Barnet approached Spurlock while the latter was working, and asked Spurlock how he had voted. Spurlock replied that he had voted."No." Barnet then retorted that everyone to whom he talked claimed to have voted "No" and yet there were 39 that voted "Yes." Spurlock said that he did not know any- thing about that. Barnet then stated that if they wanted the Union they were going to get it but that they would have to live up to the union rules and that "there would be a lot of stuff cut out that was going on." Eva Ransom, the wife of a colored minister, had been employed at the plant for 13 years. She had served as a union observer at the first election. Before the second election, Ransom went to Barnet's office to get her vacation check. She was met at the office door by Barnet who stated that he was on his way to eve her the check and invited her into the office to talk to her. During the conversation, he asked what she thought about the Union. She parried the question by stating that she had never belonged to a union before. When she was getting ready to leave, Barnet said that he hoped the doors would not be closed when she came back from her vacation, if the Union got in. Before the second election , employee Joyce Partee had occasion to go to Barnet's office to inquire about some Blue Cross deductions from her paycheck. After this matter had been straightened out, -,Barnet began talking about the Union He said he was going to assemble the employees in the office and tell them exactly 6 Also sometimes identified in the record as Catherine Reed. 284 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD how he felt about 39 people voting against him, exclaiming that to think that he had 39 people working for him who were dissatisfied. He asked what she thought about the Union. Partee replied that she did not know because she had never been exposed to a union before. He told her that the union people were "nothing but a bunch of crooks" and that they would "ride around in Cadillacs." He warned that if the Union came in, the employees would be "standing on the outside" because he would not need all the help, pointing out that he would let all the drivers go and have stores only. Before the second election, Barnet asked employee Claudia Chatman to come into his office, where he asked her what she thought about the Union. Although she had passed out union cards and had attended a union meeting, she replied that she did not-know anything about it. Barnet then stated that there was a rumor going around that an employee by the name of "Sam" was the "starter of it." Two or three days before the second election, Barnet sent a note through one of the office girls to employee George Taylor to come to his office. Also present in the office was Joel Liebling, the salesman for the supply house. Barnet told Taylor that someone had advised him to lay Taylor off because he would start a union. When Taylor asked if Barnet believed this person, Barnet replied in the negative, adding that he did not believe Taylor was the "type of person to start a union" and that he had found out that Sam McEwen started the Union. Barnet then asked Taylor how he was going to vote. Taylor replied that he would vote "No." After the second election, Eva Ransom was summoned to Barnet's office. Barnet asked what she thought about the Union and she replied that she did not know. During the course of the conversation he stated that he was so worried about it that he could not sleep nights, that he could not afford to take everything he had worked for and give it away, and that if the Union came in he would just have to close the doors. The foregoing findings are based on the credited testimony of Katherine Reed, Willis Spurlock, George Taylor, Eva Ransom, Joyce Partee, and Claudia Chatman. I was favorably impressed by their demeanor on the witness stand and by the manner in which they testified. Barnet denied ever interrogating any employees concerning the Union or as to how they voted in the election. He also denied threatening any employees with dis- charge, layoff, the closing of the plant, or the elimination of the truck routes if the Union won the election. He admitted that he was very much concerned with the outcome of the election, that he thought a great deal about it, and that he discussed with Superintendent Guinta the attitude of the employees in the various departments toward the Union and what "we could do." He admitted calling Eva Ransom into his office, and testified it was merely to assure her that he had no animosity toward her for being an observer at the first election. He also admitted that on another occasion she was in the office doorway to get her vacation check He further testified that on one occasion, Joel Liebling, who at that time was a salesman for a supply company servicing Respondent, came into his office to tell him that George Taylor wanted to come in to talk to -Barnet and asked if Barnet had any objection, and that he replied that he had no objection but wanted Liebling to be present during the conversation. However, he did not testify concerning the ensuing conversation which took place between him and Taylor. In addition to the demeanor of the witnesses, to which I accord great weight, there are other factors which I have considered in making my credibility resolutions. Thus, the witnesses, whom I am crediting, had been sequestered so that no one heard another witness before testifying. They testified with the detailed specificity which normally does not accompany a fabrication Eva Ransom, Willis Spurlock, and George Taylor were not even cross-examined by counsel for Respondent. Eva Ransom, an employee of 12 years' service, was still employed by Respondent at the time of the instant hearing. She testified under subpena and in the presence of Barnet who remained in the hearing room throughout the hearing. Barnet admitted that at the time of the instant hearing, Liebling had his own business and still serviced Respondent's plant which he continued to visit several times a week. Yet, Liebling was not called as a witness by Respondent to corroborate Barnett's version of the incident involving George Taylor, and no claim was made that he was unavailable. Under these circumstances, Respondent's unexplained failure to call Joel Liebling as a witness warrants the inference that his testimony would have been unfavorable to Respondent 6 Interstate Circuit, Inc v U.S, 306 U S 208 , 226 ; Michael Benevento et al , d/b/a M. Benevento Sand & Gravel Company, 131 NLRB 358, 364, enfd 316 F. 2d 224 (C.A. 1). STAUB CLEANERS INC. 285 Upon consideration of all the foregoing, I do not credit Barnet's testimony to the extent that it conflicts with that of the above-named witnesses of the General Counsel, and find that Barnett made the statements and engaged in the interrogations under the circumstances hereinabove detailed. b. Concluding findings Considered in their contexts, Barnet's statements to Katherine Reed that, if the Union got in, a lot of changes would be made and a lot of people would be out of jobs, coupled with his explanation that he could pull the truckdrivers off the road and eliminate the routes, and his similar statements to Joyce Partee that if the Union came in the employees would be standing on the outside because he would not need all the help, accompanied with the explanation that he would let the drivers go and have only stores, were clear and unmistakable threats of loss of employee jobs in reprisal for their selection of the Union as their bargaining representative and hence were coercive within the meaning of Section 8 (a) (1) of the Act. For the same reasons, I find equally coercive Barnet's statements to Eva Ransom that if the Union got in, he hoped the doors would not be closed when she returned from her vacation, and that he would have to close the doors if the Union came in. Barnet's state- ment to Spurlock after the election to the effect that the employees would now have to live up to the union rules and that "there would be a lot of stuff cut out that was going on" was also unlawful because it carried a veiled threat of the elimina- tion of some employee benefits because of the selection of the Union as the em- ployees' bargaining representative. Finally, the interrogations by Barnet. the presi- dent of Respondent, of employees Spurlock, Taylor, Ransom, Partee, and Chatman concerning the Union and, in some instances, as to how they intended to vote in the impending election and as to how they had in fact voted, in the context and circum- stances previously detailed, constitutes, under well-established Board and court precedents, interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. I find that by the above-described conduct of President Ben Barnet, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. 2. Superintendent Joseph Guinta a. The facts Before leaving on his vacation which began July 4, Guinta talked to Katherine Reed. He asked her to step outside the plant because he did not want anyone to hear them. Guinta then told Reed that he did not know what to do because "the boss" was so disturbed about the Union. He pointed out that they would probably all lose their jobs if the Union came in. After indicating that he felt he could talk to her about it because she was his friend, he pleaded with Reed to talk "to the kids down there" who were working with her not to have the Union come in. Reed demurred that she did not see how she could talk to them about it and that they could make up their own minds about it. Guinta continued to urge Reed to talk to the employees and warned that he-would not guarantee her job if he came back and the Union was in there. Before the second election, Guinta came over to examine Claudia Chatman's press which was not working properly. While he was there, he asked her what she thought of the Union. She replied that she did not know anything about it. A few days after the second election, Guinta spoke to Joyce Partee at the plant. He asked her what she thought of the Union. She replied that she did not know. He then asked her if she knew who had voted for the Union. When she replied in the negative, he stated that everything was being told to him and that he knew everything that was going on. After the second election, Guinta addressed the assembled employees in the plant cafeteria. Guinta made it plain that because the employees had wanted the Union he was now going to tighten up on certain existing employee practices. He then an- nounced that from then on the break periods would be held strictly to 10 minutes, that the employees would not be permitted to continue the practice of going to the bathroom and to the drinking fountain except during the break and lunch periods, and that they were to attend strictly to business without visiting or chatting 286 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing findings are based on the credited testimony of employees Katherine Reed, Claudia Chatman, Joyce Partee, Willis Spurlock, Dorris Wilson, and Elma Brown.? Guinta denied interrogating any employees concerning the Union or threatening employees with loss of employment if the Union came in. He admitted discussing the Union with Barnet and that he gave his views as to whether or not the employees in the various departments would vote for the Union. He did not deny having solicited Katherine Reed to talk to her group so that they would not vote for the 'Union. He admitted that he addressed the employees in the plant cafeteria after the second election and announced that there would be strict enforcement of the break and lunch periods. On cross-examination, he admitted that he told the em- ployees that he was tightening up on these employee practices because they had voted the Union in. Upon consideration of all the foregoing, including the demeanor of the witnesses and the applicable reasons previously given with respect to the General Counsel's witnesses, I do not credit Guinta's testimony to the extent that it conflicts with that of the above-named witnesses for the General Counsel, and find that Guinta made the statements and engaged in the interrogations under the circumstances hereinabove detailed .8 b. Concluding findings For reasons previously indicated in connection with the conduct of Barnet, I find that Guinta's threats and warnings to Katherine Reed of loss of jobs if the Union came in, and his interrogations of Claudia Chatman and Joyce Partee concerning what they thought of the Union and as to who had voted for the Union, constitutes con- duct proscribed by Section 8(a)(1) of the Act. In addition, Guinta's statement to Partee, in the context of his interrogation, that everything was being told to him and that he knew everything that was going on, reasonably tended to create the impression that the employees' union activities were under surveillance by Respondent, conduct prohibited by the Act.9 Finally, Guinta's announcement to the employees, after the second election, about the tightening up of employment conditions because they wanted the Union reasonably tended to lead the employees to believe that his actions were in reprisal for having selected the Union as their bargaining representative, and was violative of the Act.1e I find that by the above-described conduct of Superintendent Joseph Guinta, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. 3. Laundry Supervisor Vincent Tadisco a. The facts Before the first election, Tadisco asked employee George Taylor who started the Union. Taylor replied that he did not know. Before the second election, Tadisco told employees that if the Union won the election the routes would be discontinued immediately and that there would then be no need for all the employees. The above findings are based on the admissions of Vincent Tadisco and the corroborative testimony of George Taylor and Claudia Chatman. 7 Counsel for Respondent admits in his brief that "there is little dispute as to the sub- stance of Guinta's remarks" to the assembled employees in the plant cafeteria after the second election 8 Counsel for Respondent states in his brief that the complaint alleges that Guinta inter- rogated employees during the week of July 14, and points out that Guinta was on vaca- tion that week until July 22. However, the second election was held on July 24. As previously found, Guinta interrogated Claudia Chatman before the second election, and interrogated Joyce Partee after the second election Before the close of the hearing, I granted the General Counsel's motion to conform the pleadings to the proof. In any event, Respondent has demonstrated no prejudice by such variance between the pleading and the proof 9 See , e.g., Prince Macaroni Manufacturing Co., 138 NLRB 979, 984, remanded 55 LRRM 2852, 2855 [329 F. 2d 803 ] (C.A. 1) ; Wonder State Manufacturing Company, 141 NLRB 1217, 1226, enfd. 331 F. 2d 737 (C.A 6). iu That Guinta may not have intended this as a reprisal , as Respondent contends in its brief, is immaterial. His statements , and not his unexpressed intentions, create the impact upon the employees. STAUB CLEANERS INC. 287 b. Concluding findings I find that by the above-described conduct of Laundry Supervisor Vincent Tadisco, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby violated Section 8(a) (1) of the Act. ll C. The discharges The complaint, as amended, alleges that the employees listed in the margin 12 were discharged on the dates indicated, and thereafter denied reinstatement, all "because said employees joined or assisted the Union or engaged in other union activity or concerted activity for the purposes of collective bargaining or other mutual aid or protection." The most important witness for the General Counsel on this phase of the case was Laundry Supervisor Vincent Tadisco, whose employment was terminated on August 13, 1963. He testified to a number of supervisory meetings held before and after the first election with Barnet, in which Barnet disclosed an awareness or belief that the alleged discriminatees were union supporters and that Barnet stated that the supervisors should find pretexts for discharging them. At one of these meetings held after the first election, according to his testimony, Barnet accused Katherine Reed for being the instigator of the Union and suggested a plan for framing an excuse for discharging her. He testified to another meeting held on August 9, at which Barnet indicated the possibility of a third election being held and then read the names of a number of employees, including the remaining alleged discriminatees, who, he was sure, voted for the Union and whom he wanted dis- charged within 7 to 10 days in order to insure a victory if a third election were held. According to his further testimony, Barnet specifically urged Tadisco to get rid of Joyce Partee because she was "poison," and also urged George Goldman, another supervisor, to get rid of the silk pressers because they "gave him [Barnet] the shaft" in the last election.13 Barnet and Guinta denied that any such meetings were held, that any such dis- cussions occurred, or that any such statements were made. The record shows that at the time of the instant hearing, Supervisor Goldman was no longer employed by Respondent and was somewhere in California Although Office Supervisor Berl was present at some of these meetings, according to Tadisco, he was not called as a witness by Respondent and no claim of unavailability was made. The importance of Tadisco's testimony can readily be appreciated, as he has attributed to Barnet sufficient knowledge and discriminatory motivation to sustain this allegation as to all the alleged discriminatees. Respondent contends that Tadisco was a biased and prejudiced witness, primarily because of the circumstances of his termination, and that no credence should be accorded to his testimony. The fact that I have previously discredited Barnet and Guinta with respect to the 8(a) (1) phase of the case does not automatically or necessarily require the acceptance of Tadisco's testimony as trustworthy and credible. I will first consider the credibility of Tadisco and then address myself to the issues concerning the discharges. 1. The credibility of Vincent Tadisco Tadisco did not impress me favorably by the manner in which he testified and his demeanor on the witness stand. He testified in a glib manner which at times appeared to lack conviction and sincerity. In addition to his demeanor, I have also considered the following in assessing his credibility: Tadisco was employed by Respondent from June to August 13, 1963. There is no question but what neither Tadisco nor Respondent was satisfied with the employ- ment relationship during this brief period. It is also clear that Tadisco was ter- minated in the middle of the day after a heated argument and under circumstances which Tadisco regarded as unjust and unfair to him. Barnet and Guinta felt that Tadisco did not show the promise, ability, or' cooperation which they desired and had anticipated and that they were not getting their full value out of the bargain. 11 Respondent is, of course, liable for Tadisco's conduct even if Barnet had not instructed him to engage in such conduct 12 Katherine Reed, July 15 ; Joyce Partee, August 14; Claudia Chatman and Bessie Smith, August 30; Amanda Carter, Charlotte Dickerson, Gwendolyn Morris, Dorris Walker, Catherine Weech, and Dorris Wilson, all on September 18 All dates are in 1963. 19 The six employees terminated on September 18, 1963, were silk pressers, also known as silk finishers. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the other hand, Tadisco felt that he had not been given a fair chance to show what he could do in the laundry. At the time of Tadisco's termination, Barnet threatened to blackball him, if a request for references were made, because of Tadisco's conduct in insisting that his daughter and wife, who also worked for Respondent, leave with him immediately. On the other hand, according to Guinta, Tadisco had stated that Barnet was going to pay for what he had done to him and would regret the day he ever met Tadisco.14 In any event, it is clear to me, and I find, that Tadisco was resentful against Barnet because of his termination. In general, Tadisco's testimony is too pat. In addition, it does not stand analysis in certain important respects. Tadisco testified that at one of the supervisory meet- ings after the first election, Barnet announced that he had just been informed that there would be a second election and that the first thing he wanted done was to have Katherine Reed removed from the premises. He further testified that they then proceeded to adopt a plan for framing Reed and having her discharged the follow- ing morning. Reed was in fact terminated the first thing on Monday morning, July 15. However, documentary evidence shows that Barnet could not possibly have known of the second election prior to Reed's termination. Thus, the Regional Director's decision, announcing the second election, is dated July 18. And the deci- sion states that Respondent's objections to the first election were filed on July 15. Thus, at the time of Reed's discharge, the Board's Regional Office had just received Respondent's objections to the election. Yet, according to Tadisco's testimony, it was before Respondent's objections had even been received by the Regional Office that Barnet told the supervisors that he had been informed that there would be a second election. There is just no way of explaining Tadisco's testimony on such an important item other than as a pure fabrication. And this of course renders suspect his entire testimony. Tadisco also hedged and shifted position when confronted with an apparent incon- sistency. Thus, he testified that at the supervisors' meeting with Barnet on August 9 at which Barnet allegedly mentioned the possibility of a third election, Barnet had a list of laundry and drycleaning employees whom he wanted discharged within 7 or 10 days in order to insure a victory if a third election were held. On direct exami- nation , he testified that no one but Barnet handled the list and that Barnet read the names off. On cross-examinaiton, he first testified that he and everyone else at the meeting actually saw the list of names. When asked if he did not testify on direct examination that the list was read to him and that he did not see it, he testified, "No, I got a glimpse of it . . . . Everybody got a glimpse of the list and then he read the names off." When asked if Barnet passed the names around, Tadisco testified, "No, he didn't let go of it." Tadisco was then shown his pretrial affidavit in which he stated that Barnet "had a list of names which he passed around to us." Confronted with this apparent discrepancy, Tadisco then testified, "he passed it around but he didn't let it go." Tadisco also displayed a vivid imagination and disclosed a tendency to exaggerate. Thus, at one point on cross-examination, Tadisco was asked if he remembered the time in the summer of 1963 when there were negotiations between Respondent and the Teamsters who represented the drivers. Tadisco replied by asking if counsel was referring to the time "when the drivers were on strike?" Upon being questioned as to whether there actually was a strike, Tadisco admitted that there was not but that "they almost went on strike." Upon consideration of all the foregoing, including an analysis of all of Tadisco's testimony, I am impelled to the conclusion, which I herein make, that Tadisco is not a reliable witness and that his testimony cannot be accorded full credence. I there- fore will not rely on any of Tadisco's testimony in arriving at my findings except where his testimony is undenied or corroborated by other credible evidence. 2. Katherine Reed a. Reed's employment by Respondent Katherine Reed was first employed by Respondent in 1949, and then voluntarily quit. She was reemployed in 1957 and worked continuously until her discharge on July 15, 1963, which was 4 days after the first election. At the time of her discharge, she worked in the silk-finishing or pressing department as a group leader of' about 11 silk finishers, also known as pressers. In this capacity, she sorted and distributed the work, among the silk finishers, credited the girls for the work which they per- 14 Tadisco denied having made this statement. While I deem it unnecessary to make a credibility resolution in this regard, it seems significant that Tadisco's daughter, who was with him at the time, was not called as a witness to corroborate him. STAUB CLEANERS INC. 289 formed, and marked the amount and types of garments pressed by each girl on a daily slip which served as the basis for the ' computation of the girls' wages. In addition, she also did pressing on a piecework basis.15 Her immediate supervisor was George Goldman. b. Reed's discharge On Monday morning, July 15, 1963, some of the silk finishers complained to Dry- cleaning Supervisor George Goldman that Reed was causing confusion by allegedly playing favorites in the manner in which she was crediting their work. Goldman then had all the silk finishers, except Reed, assembled in the plant cafeteria upstairs. Laundry Supervisor Tadisco was also present. After some further discussion, Tadisco suggested that the girls take a vote on whether they wanted Reed in or out. Goldman agreed that that was a good idea. Ballots were passed out, and a majority of the girls voted against Reed. Goldman then informed President Barnet about what had happened, asked and obtained Barnet's authorization for the immediate and summary discharge of Reed, and at once discharged her. The record shows, without contradiction, that the girls believed that they were voting only on whether Reed should be removed as a group leader and put back on the presses as a full-time presser and not on whether she should be discharged.16 c. Respondent's defenses Barnet testified that Goldman, was the one who decided to discharge Reed and that Barnet authorized the discharge under the following circumstances: About 9 a.m. on Monday, July 15, Goldman came into the hallway office and told Barnet that the silk finishers had voiced dissatisfaction and complaints about Reed, that he (Goldman) took them upstairs to the cafeteria to discuss the problem, that someone suggested that the girls take a vote on what to do about Reed, and that the girls had voted Reed out. Goldman then stated that he was going to discharge Reed, and asked if Barnet would back him up. Barnet replied that he would. Barnet further testified that the reason he agreed to back up Goldman was that he had concluded that Reed was padding the daily work report slips and for that reason had already decided to discharge her upon Plant Superintendent Guinta's return from his vacation on July 22. After due and careful consideration of all, the relevant evidence , I am unable to accept the contention or to credit Barnet's testimony that his authorization of Reed's discharge by Goldman was truly motivated by the reasons advanced by him at the instant hearing. Foremost among the considerations which lead me to this conclusion are the following: (1) Barnet testified that Respondent 's departmental production weekly percentage sheet had disclosed an increase in the production cost in the silk-finishing department for some weeks prior to Reed's discharge , that an investigation was conducted, and that he concluded that Reed was giving credit for more garments than were being pressed. He admitted that Office Supervisor Berl was the one who prepared the departmental production weekly percentage sheet (Respondent's Exhibit No. 4), that Berl was the one who had called the increased labor cost to his attention, that Berl was the one who then investigated and watched Reed's daily "turn ins" for the girls, and that Berl was the only one who had spoken to Reed about this matter. Yet Berl, the only available supervisor with firsthand knowledge of,this situation, was not called by Respondent to testify. Respondent's unexplained failure to call Berl as a witness leads me to conclude that his testimony would have been adverse to Re- spondent's position.17 Significantly, Barnet did not even testify that Berl believed Reed was padding the worksheets. On the other hand, he admitted that George Goldman, Reed's immediate supervisor, had observed that the unusually high percentage of the labor cost for Reed's last week of employment might be due to an error (2) Barnett also testified that if the labor costs for the silk department were to continue at 5 or 6 percent for several weeks, he would look into it and take disci- plinary action. He further testified that Supervisor Goldman performed Reed's work for about 6 weeks after her discharge and that he was satisfied with Goldman's performance. Yet, Respondent's own Exhibit No. 4 shows that during that period after Reed's discharge the labor costs for the silk department, with the exception of is Respondent admits that Reed was not a supervisor within the meaning of the Act le The findings in this paragraph are not essentially disputed 17 See cases cited in footnote 6, supra. 760-577-65-vol. 148-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 week, was over 5 percent for each of 4 weeks and over 6 percent for each of 4 weeks. Indeed, except for the last week of Reed's employment, the percentages of labor costs for the silk department never went as high as 6 percent prior to Reed's discharge. In addition, the record also shows, according to the credited and un- contradicted testimony of one of the silk finishers, Dorris Wilson, that the silk fin- ishers were dissatisfied with Goldman's performance and complained that he was not marking and giving them credit for the work they performed (3) As an example of Reed's alleged padding of the worksheets, Barnet pointed to the daily worksheet of Dorris Walker for July 3, wherein she was credited with work totaling $62.02 in pay. He testified that when Berl confronted Reed with this card on July 5, she explained that it was a mistake.18 Barnet further testified that he (Barnet) did not believe that it was a mistake and regarded it as a deliberate padding of the worksheet. Despite his further admission that this was a serious offense, he nevertheless did not discharge her on July 5, explaining his failure to do so on the alleged grounds that he wanted to discuss it with Guinta upon his return from his vacation on July 22, that he wanted to wait until he found a proper replacement, and that he "was very concerned how the election would come out." Yet, 4 days after the election, he did not hesitate to authorize her immediate and sum- mary discharge, without having made any provisions for obtaining a replacement and without even waiting another week for Guinta's return. (4) Finally, in response to inquiries from the Division of Employment of the New York State Department of Labor, Barnet admittedly stated that Reed was dis- charged "for swearing at employees, and furnishing false information on the count of garments for piece work." Not only is there no evidence that Reed swore at employees, but there is not even any' contention or claim by Respondent that swear- ing was a reason for her discharge. In addition, Barnet admitted that Reed was discharged by Goldman for reasons unrelated to any alleged padding of worksheets. d. Concluding findings Katherine Reed was the one who was initially responsible for bringing the Union into the plant. When some of the female employees indicated an interest in self- organization, Reed took the initiative in contacting a union representative and in having union authorization cards brought to her. She then passed the cards out among the girls in the plant and solicited their signatures. President Barnet was openly opposed to the Union, questioned employees about who had started the Union and their attitude toward it, tried to induce employees to vote against the Union in the impending election, and in many instances threatened economic reprisals and loss of jobs if the Union came in, all as previously found. Reed was the only employee whose assistance was sought in Respondent's campaign to keep the Union out. As previously found, both Barnet and Superintendent Guinta separately singled Reed out, impressed upon her the importance of the out- come of the election to Barnet, and importuned her to use her influence with her group of girls to induce them to vote against the Union. Barnet pleaded that he was very much "worked up about it" and warned of changes and loss of jobs if the Union came in. Guinta warned Reed that he could not guarantee her job if the Union came in. Reed was noncommital in her reply to Barnet, merely stating that if Barnet intended "to do right" by his help he would not have to worry about a union. Thus, the record shows, and I find, that although Barnet was aware of the manner in which Reed was marking the daily worksheets before the election, he regarded her as a valuable ally in his campaign to keep the Union out and wanted her to get her group of girls to vote against the Union. The Union won the election held on July 11, 1963, by a vote of 39 to 31, with 3 challenged ballots. Barnet then began questioning employees as to how they had voted in the election, as previously found. It is readily apparent that if a majority of the girls in Reed's group had voted for the Union, that was sufficient to have insured the Union's victory. 18 An examination of this card shows that the large amount of pay, which was totaled and computed by office clerical employees, was based on the pressing of garments which included 49 pleated dresses, marked down as follows. "21-4-6-8-2-1-2-1-4 " An examina- tion of other similar cards in evidence shows that no one presser received a group of 21 pleated dresses to press on any given day, but rather that they received them in groups of less than 10. It is clear to me, and I find, that the "21" is an obvious error resulting from the omission of a dash between the 2 and the 1. The record does not substantiate Barnet's claim that Reed deliberately padded the worksheets. STAUB CLEANERS INC. 291 Upon consideration of the entire record as a whole, I am convinced and find that Barnet became aware of Reed's union role and sympathies; that he concluded that Reed had therefore ignored his plea to influence her girls to vote against the Union and that her failure to assist him in this respect may well have been a factor in the election results; that when Goldman sought his authorization for Reed's immediate and summary discharge 4 days after the election, he seized upon the incident as a convenient pretext to discharge her because of his resentment against her union attitude and her failure to promote his antiunion position in the election; and that the reasons asserted at the instant hearing for his authorization of Reed's discharge were advanced as afterthoughts to cloak a discriminatory motivation.19 By such conduct Respondent discriminated with respect-to the hire and tenure of employment of Katherine Reed, thereby discouraging membership in the Union, in violation of Section 8(a)(3) and (i) of the Act. 3. Claudia Chatman Claudia Chatman was employed in early 1961 as a wearing apparel presser in the laundry department. While on her vacation during the week of August 26, 1963, she received her final check and termination slip, without any explanation therefor. As previously noted, on July 18, 1963, the Regional Director set aside the first election and directed that a new election be held on July 24. Before the second election, Chatman passed out union cards. She attended only one union meeting be- cause other union meetings were held on the same nights as her church meetings. Both Barnet and Guinta interrogated her about the Union prior to the second elec- tion, as previously found. Thus, Barnet had called her into his office where he asked her what she thought about the Union. She replied that she knew nothing about it. While Guinta was examining her press on one occasion, he also asked her what she thought about the Union. She gave him the same answer. Laundry Supervisor Tadisco also told Chatman before the second election that the employees would not have a job if the Union gets in, as previously found. In addition, Barnet made a speech about the Union to the employees who were assembled in the plant cafeteria prior to the second election. During the course of his speech, Barnet stated that if the Union came in they would picket the plant. At that point, Chatman spoke up and said that the "Union is not that weak." 20 Although the Union won the second election by a vote- of 45 to 37, with 5 challenged ballots, Respondent thereafter filed objections which were still unresolved at the time of Chatman's discharge. Guinta testified that he was dissatisfied with Chatman's work from the time he became Respondent's plant superintendent in February 1963, that she was slow and - her work had to be touched up by another girl, that he spoke to Chatman about it many times, and that about three or four times he talked to Barnet about laying her off because of her poor work, and that Barnet advised him to talk to her and try to retain her. He further testified that when Chatman was on vacation in August 1963, the work of her temporary replacement was so far superior that after a few days he decided to retain her permanently and so informed Barnet. He then had Chatman's check mailed to her with a note telling her that she was terminated. Chatman testified that Guinta had never spoken to her about her work being poor but that on the contrary, he had told her he was satisfied with her work. Barnett did not corroborate Guinta with respect to his alleged discussions regarding Chatman. It seems strange indeed that Guinta should find it necessary to talk to the president of the Company three or four times about the workmanship of a rank-and-file em- ployee and his desire to discharge her. As plant superintendent, Guinta had full authority to discharge employees without consulting or obtaining the approval of Barnet. As hereinafter found, Guinta discharged Bessie Smith without any prior discussions or consultations with Barnet. It seems even more strange that if the work of Chatman, who had been performing the same job for about 21/ years, was as poor as Guinta painted it, he would have waited about 6 months before terminating her and then not even give her any reason for her termination. 19 Although the following incidents occurred after the second election of July 24, they are nevertheless significant in assessing Bainet's unlawful motivation and knowledge of Reed's union cvmpathies and support* (1) According to the credited testimony of em- ployee Eva Ransom, she overheard Barnet tell one of the salesmen near the coffee machine in the plant that he was going to get rid of everyone who he thought had anything to do with the Union, (2) Guinta's statement to employee Joyce Partee, after asking her if she knew who had voted for the Union, that everything was being told to him and that he knew everything that was going on, as previously found `0 This incident is based on the credited and undenied testimony of Chatman. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have previously found Guinta not to be a credible witness and have credited Chatman with respect to union interrogations. Under all the circumstances, includ- ing the demeanor of the witnesses, I credit Chatman's testimony and do not credit Guinta's testimony, hereinabove set forth. I am convinced and find that Guinta and Barnet became aware of Chatman's union activities and support, that, mindful of the possibility of a third election, Chatman's vacation replacement was seized upon as a convenient pretext for eliminating a union adherent, and that the reasons as- serted at the hearing for Chatman's termination were advanced as afterthoughts to cloak a discriminatory motivation. In arriving at these findings I have considered, among other things, the extensive efforts of Guinta and Barnet to find out the em- ployees' union attitudes and how they voted in the elections, Guinta's statement to employee Partee that everything was being told to them and that they knew every- thing that was going on, their threats of loss of jobs if the employees voted the Union in, Chatman's union activities and her open announcement of union support made during Barnet's speech to the employees before the second election, Barnet's statement in the plant to one of the salesmen that he was going to get rid of every- one who he thought had anything to do with the Union,21 the possibility that a third election might be directed, Chatman's long service record, Guinta's failure to warn or criticize her about her alleged poor work and his assurance to her that he was satisfied with her work, the failure to give Chatman a reason for her termination, and-the sudden and summary manner in which she was terminated, without warning or notice. I find that by discharging Claudia Chatman on August 30, 1963, because of her union activities and support, Respondent has discriminated with respect to her hire and tenure of employment, thereby discouraging membership in the Union, in viola- tion of Section 8 (a) (3) and (1) of the Act. 4. Bessie Smith Bessie Smith was a shirt finisher employed in the laundry. She acted as a union observer in one of the elections, and was discharged on August 30, 1963. Guinta admitted that Smith was a good worker. He testified that he discharged her because of her general attitude and because of her continuous use of profane and obscene language, after repeated warnings. With respect to her general attitude, Guinta testified that she was always disrupting the shirt department because of her announced desires to leave work early. With respect to her continuous use of obscene language, Guinta testified that no other employees used such language, that he re- ceived many complaints from the girls who worked with Smith that they would not continue to work there if they had to listen to such language every day, that he spoke to her about it and even discussed the situation with her sister, that Smith would improve for a day or two and then lapse into her prior conduct, and that he had tolerated her behavior up to the date of her discharge because she was a good worker. Guinta's testimony that Smith would disrupt the department because of announced desires to leave early, that she constantly used obscene language, a sample of which appears in the record, that he warned her about her attitude and use of language, that he spoke to her sister about it, and that Smith failed to correct her behavior, stands undenied in the record. Bessie Smith and her sister, the persons in the best position to refute this testimony, did not testify. The unexplained failure to call them as witnesses raises the inference that their testimony would have been adverse to the General Counsel's position. Guinta's testimony that other employees complained about the language used by Smith is corroborated by Tadisco, the General Counsel's own witness. While, as the General Counsel contends, other employees also used foul language without be- ing discharged, there is no evidence that they used the type of obscene language which the record shows Smith used. Nor is there any evidence as to the regularity with which they used foul language, or*that the language used by other employees always came to the attention of Guinta. On the other hand, there is no refutation of Guinta's testimony that he had in fact discharged other employees for cursing and that one employee quit after he had criticized her for her choice of language. Fi- nally, the kind of language used by Smith might reasonably have been considered far more offensive than that involved in other incidents and thus have warranted more drastic disciplinary action 22 See footnote 19, supra. 22 Russell-Newman Manufacturing Company, Inc, 135 NLRB 1, 2. STAUB CLEANERS INC. 293 Upon consideration of all the foregoing and the additional fact that Eva Ransom, -who had also served as a union observer, was not discharged , I find that the pre- ponderance of the evidence does not warrant the finding , urged by the General Counsel, that the asserted reasons for Bessie Smith's discharge were pretexts and that she was in fact discharged for her union activity . I will accordingly recommend dismissal of the complaint insofar as it alleges a violation of the Act in the discharge ,of Bessie Smith. 5. Joyce Partee Joyce Partee had voluntarily quit Respondent's employment in February 1963, after having worked at the plant since 1959. She was rehired by Guinta in May 1963, and worked as a shirt sorter and boxer. There is nothing in the record to indicate any union activity , support, interest, or sympathy on the part of Partee . Her complete lack of interest in a union is affirma- tively demonstrated by her admission at the hearing that she did not even vote in either the first or second election. Partee was terminated on August 14, 1963. Guinta and Barnet testified that they were dissatisfied with Partee because of her habit of starting to box a second lot of shirts before finishing the one on which she had been working, that this resulted in 15 to 20 shirts being left at the end of the day without her knowing where they belonged because the boxes had already been sent out, that claims for missing shirts increased , that Guinta repeatedly talked to her about not starting a second lot before completing the first one, and that on August 14, she voluntarily quit after Barnet had spoken to her about 20 misplaced shirts. On the other hand, Partee denied that she boxed the shirts improperly or that Guinta had ever talked to her about her work performance . She testified that Guinta discharged her on August 14 after Barnet's ,conversation with her. I find it unnecessary to determine whether the record supports Respondent's con- tentions with respect to Partee and her termination . As previously noted , Partee -engaged in no form of union or concerted activity, was not a union sympathizer or supporter, and displayed a complete lack of interest in self-organization and in the elections. Nor does the credible evidence in the record afford any basis or war- rant for inferring that either Barnet or Guinta believed or suspected her of any union- activity, sympathy, or adherence. Although she was interrogated by Barnet and Guinta as to what she thought about the Union, as previously found, she truthfully announced that she did not know anything about it. She further testified that she had told Guinta after the first election that she had not voted for the Union. If it may be inferred that the intensive interrogations and investigations of Guinta and Barnet were fruitful, as I have previously indicated, then they would have learned that Partee did not vote in both elections and was not, in fact, a union sympathizer or supporter. As Respondent's knowledge, belief, or suspicion of Partee's union support, interest, or sympathy is a vital element in the proof of a discriminatory dis- charge violative of the Act, I find that the General Counsel has failed to sustain the allegation that Partee's termination was unlawful and will accordingly recom- mend dismissal of the complaint in this respect. 6. The six silk finishers or pressers a. The facts In May 1963 Respondent put into effect a schedule of piecework rates for the silk finishers, pursuant to a study conducted by Max Hall, Inc., a laundry and &ycleaning management firm. The Max Hall report also recommended a trial period and changes from time to time as necessary . About the middle of September 1963, Respondent decided to change and simplify the piecework rate structure. On the afternoon of September 17, Superintendent Guinta called a meeting of the silk finishers upstairs in the plant cafeteria . He explained the new piece-rate changes which he was putting into effect , read from the Max Hall report , and stated that the changed rates were necessitated because of the poor quality of the finishing work which, he felt, resulted from the other rate structure . Although some of the girls did not feel pleased with the new piecework rates, they decided to try it out. That evening some of the silk finishers refigured their old pay slips on the basis of the new pay scale . They concluded that they would suffer a substantial cut in earnings and would not be able to make a living under the new piece rates. When Charlotte Dickerson , who did not work on September 17 and therefore had not been present at the meeting that afternoon , arrived for work the next morning, September 18, she saw the other silk finishers congregated outside. Before work commenced , Guinta called Dickerson into his office and explained the new 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD piece-rate scale to her. Dickerson protested that they would not be able to earn enough under the new rates . After some further discussion, Guinta stated, "If you want it, it is okay with me and if not . . . get out ." Dickerson left the office and went to her board. About 8 a.m., all the silk finishers informed Guinta that they wanted to talk to him about the new piece rates. He thereupon had them assembled upstairs in the plant cafeteria . Of the 11 girls in the silk-finishing department, all but Catherine Weech were present. The girls wanted Guinta to reinstate the old rates, explaining that they had figured out that the new piecework rates would result in a substantial pay cut for them . Guinta urged them to try out the new rates on a temporary basis, and tried to assure them concerning any loss of wages. Finally, Guinta laid down the ultimatum that "you either go to work " for the new piece- work rates "or get out." 23 The girls then left the cafeteria and went downstairs. Five girls returned to work. Guinta admitted that he saw the other five clock out and leave the building 24 Guinta admitted that when the lunch period ended he went over to the locker room, that he saw the five girls who had left the building cleaning out their lockers, and that one of them, Dorris Walker, came over and asked Guinta if she could go back to work. He further admitted that he replied, "No, you can't, Dorris . . any girl that would walk out of the plant the way you did this morning, I don't want you back in here again." As Guinta turned around to leave, he saw Catherine Weech, who had been absent that morning, and asked her to go into his office . He told her that he had telephoned her at home in the morning without receiving any answer , and asked if she was going to go to work. Weech replied that she could not work for the new piece rates and that she was going to join the other girls. After unsuccessfully trying to persuade her to go to work, Guinta stated , "Well, if you think like the other girls, you go too." Weech then left the building and rejoined the other girls outside 25 On October 25, 1963, Frank Ervolino, International vice president of the Union, wrote a letter to Respondent . This letter, which was sent by registered mail and was received by Respondent on October 29, 1963, states: This letter is written on behalf of certain of your employees , who were ter- minated on or about September 18, 1963. On behalf of these people, whose names appear below, we, and they, offer to return to your employment , uncon- ditionally and immediately. There then followed the names of the six girls in question. There was no response to this letter. b. Contentions of the parties The General Counsel first contends that the institution of the new piece-rate struc- ture was a plot on the part of Respondent to force the girls to leave because of Re- spondent's belief that they were union adherents or sympathizers , and that this, there- fore, constituted a constructive discharge violative of the Act . Secondly, as an additional independent ground, the General Counsel contends that the girls were in any event engaging in a protected concerted activity in protesting the new wage scale and in refusing to work under it, that they were in fact discharged by Guinta for en- gaging in such protected activity , and that such a discharge is violative of the Act even in the absence of a discriminatory motivation . Both contentions are en- compassed within the relevant allegation of the complaint. The Respondent contends that it was not discriminatorily motivated in instituting the new rate structure, that it acted out of business considerations , and that the girls quit when Guinta refused to accede to their request that he reinstate the old pay scale. c. Concluding findings I agree with the Respondent that the record as a whole does not support the Gen- eral Counsel's first contention . Thus, the record shows that Dorris Wilson was the 23 The findings in the preceding paragraphs are based on credited testimony which is either admitted or undenled The quoted sentences in the last two paragraphs are based on the credited and undenied testimony of Ch, rintte Picker- -i and Dorris Wilson 2s Thege were Amanda Carter, Charlotte Dickerson, Gwendolyn Morris, Dorris Walker, and Dorris Wilson 23 The findings in this paragraph are based on Guinta 's admissions and the credited testimony of Catherine Weech Guinta did not deny having made the statement quoted in the text He testified that the conversation ended with his urging Weech to go home and come back the next morning to talk about it and go to work. I do not credit Guinta's testimony to the extent that it may be regarded as inconsistent with that of Weech. STAUB CLEANERS INC. 295 only one of the six silk finishers who engaged in any union activity or was a union supporter or sympathizer. There is no credible evidence to warrant an inference that Guinta or Barnet even suspected the other five of being union adherents or sympathizers. Moreover, about a month later, all six girls applied for unconditional reinstatement, although the new piece-rate scale was still in effect. Finally, even at the time of the instant hearing, the new piece-rate scale was still in effect. I find that the record does not warrant a finding that the installation of the new pay structure was discriminatorily motivated for the purpose of forcing the girls to leave because of their suspected union activities, adherence, or sympathy. However, I do find merit in the second contention of the General Counsel. It is too well established for extensive citation of authority that, in protesting the institu- tion of the new piece-rate scale and in leaving the plant rather than work on that basis, the silk finishers were engaging in a concerted activity or economic strike for their mutual aid and protection, a right guaranteed to them by Section 7 of the Act and a discharge for which violates Section 8(a) (1) of the Act 26 Guinta of course was free to tell the silk finishers that if they did not wish to work on his terms, they could strike or continue to protest outside the plant premises or that he would hire other employees to do the work. However, he could not, without violating the Act, discharge them because they elected to strike rather than work on his terms. The only issue, therefore, which has to be resolved is the purely factual one of whether or not Guinta did in fact discharge the silk finishers when they concertedly refused to work on his terms and in effect engaged in a strike. On three separate occasions on September 18, 1963, twice to individuals and once to the entire group, Guinta gave the silk finishers the ultimatum that they should either go to work under the new piece-rate scale or "get out," as previously found. Standing alone and without more, this statement may well be regarded as too equivocal to warrant a finding that they were being discharged if they elected to "get out." However, other conduct makes it clear that that indeed was Guinta's intention and that it was so understood by the employees. The strongest evidence of Guinta's true intent is his admitted reply to Dorris Walker, when he refused to permit her to go back to work upon her request after lunch that same day. Although none of the girls had yet been replaced, Guinta bluntly told Walker that he did not want any of the girls, who had walked out the way they did that morning, back in the plant again. This constituted the most unmistakable pronouncement that all the girls were discharged because they walked out in protest rather than work under the new piece rates. In addition, when Catherine Weech, who had been absent that morning, told Guinta after lunch that same day that she intended to join the girls who had walked out rather than work under the new piece rates, Guinta put her in the same status or category with the discharged girls by telling her if she felt like the other girls she should "go too." Finally, Respondent made no effort to deny or to take issue with the claim in Vice President Ervolino's letter of October 25, 1963, that the six named silk finishers "were terminated" on September 18, 1963. That the girls who walked out also regarded themselves as discharged is demonstrated by their conduct in cleaning out their lockers that same morning, by Walker's inquiry as to whether she would be permitted to go back to work, and by the reference to their termination on September 18 in the letter seeking reinstatement. Indeed, any pos- sible doubts as to Guinta's true meaning and intention were completely dispelled from their minds by his explicit statement to Walker, as above set forth. I am convinced and find that on the morning of September 18, 1963, Guinta's ultimatum to the silk finishers was intended and understood as a discharge of those who walked out instead of working on his terms. Later that day, Guinta meted out the same treatment to Catherine Weech when she insisted on making common cause with the other girls by joining their walkout. I find that-the six silk finishers were discharged on September 18, 1963, because they exercised their statutory right concertedly to cease work or strike in protest against Respondent's new piece-rate structure 27 By such conduct, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the. Act and thereby violated Section 8 (a) (1) of the Act.28 26 See, e g., Springs, Inc, 121 NLRB 892, 899-900 • Plastics Industrial Products, Inc, 139 NLRB 1066; and Schoenfeld Cordage Co., Inc, 143 NLRB 117. 27 See, e g, Springs, Inc., supra 211 find it unnecessary to decide whether Respondent's conduct was also violative of Section 8(a) (3) of the Act inasmuch as the remedy necessary to effectuate the policies of the Act would be identical In either case American Art Clay Company, Inc, 142 NLRB 624 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The unlawful refusal to bargain The complaint alleges that Respondent refused to bargain in violation of Section 8(a) (5) and (1) of the Act by unilaterally changing the existing wage rates of the employees in the silk-finishing department and of an employee engaging in washing work and by its outright refusal to bargain collectively with the Union for a contract. The facts with respect to these allegations are admitted. Thus, Respondent admits in its brief that it did make the unilateral changes alleged in the complaint, without notice to or consultation with the Union, and that it did refuse to bargain with the Union after the issuance of the instant complaint on October 31, 1963. It contends, however, that its conduct was not violative of the Act. 1. The unilateral changes in wage rates On August 19, 1963, the Regional Director issued his Second Supplemental De- cision and Certification of Representatives, in which he overruled Respondent's ob- jections to the conduct of the election and certified that the Union has been selected by a majority of Respondent's employees in the appropriate unit as their representa- tive for the purpose of collective bargaining. As previously found, on Septem- ber 18, 1963, Respondent announced and installed a new piecework rate structure for the employees in the silk-finishing department. Later that month, Respondent admittedly changed the wage structure of George Taylor, a washman, from a salary basis of $100 a week to an hourly basis of $2 an hour. Respondent admits that in both instances it acted unilaterally, without prior notice to or consultation with the Union. Respondent admits in its brief that under the Supreme Court decision in N.L.R.B.' v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U S. 736, such "unilateral action by an employer who is under a duty to bargain collectively constitutes a viola- tion of Section 8(a)(5) of the Act." Respondent, however, contends that it was under no duty to bargain with the Union so long as Respondent's request for review of the Regional Director's decision overruling its objections was still pending before the Board, that its request for review was not denied by the Board until September 27, 1963, that all unilateral changes occurred prior to the date, and that therefore it was under no duty to bargain when they were made. I find no merit in Respondent's position Pursuant to Section 3(b) of the Act, the Board has delegated its powers under Section 9 of the Act to its Regional Di- rectors, including the power to rule on objections to the conduct of elections and the issuance of certifications, and has provided that "his decision is final subject to the review procedure set forth in the Board's Rules and Regulations" and that "his action is not stayed by the filing of such a request [for review] or the granting of review, unless otherwise ordered by the Board." 29 In this case, the Board issued no order staying the Regional Director's decision pending action on Respondent's request for review Therefore, Respondent acted at its peril and took the risk of its request for review being denied or found to be without merit. Under these circumstances, Re- spondent's duty to bargain continued during the pendency of its request for review before the Board to the same extent and in the same manner as it continued after the Board's denial of the request for review or as it continues during the pendency of an appeal from a Board's bargaining order before the circuit court of appeals. I find that by admittedly engaging in the unilateral action hereinabove described, Respondent violated Section 8(a) (5) and (1) of the Act. 2. The outright refusal to bargain Respondent admits that upon the issuance of the instant complaint, dated Octo- ber 31, 1963, President Barnet broke off negotiations and refused to meet further with the Union because he had received a copy of the unfair labor practice complaint in the instant proceeding. Respondent contends, however, that its outright refusal to bargain was not violative of the Act, allegedly because (1) the unit established by the Regional Director is inappropriate, (2) the Regional Director erred in overruling Respondent's objections to the election, and (3) Ben Barnet Cleaners, Inc., was im- properly designated as an employer of those in the unit found appropriate. I did not permit Respondent to litigate these issues in the instant proceeding because (1) they had been fully litigated in the representation proceeding, (2) Respondent's re- quests for review of the Regional Director's holdings were denied by the Board on all three issues, (3) Respondent made no claim of any previously unavailable or 11 Section 101 21(a) and (d) of the Board's Rules and Regulations, Series 8, as amended. STAUB CLEANERS INC. 297 newly discovered evidence, and (4) I was therefore bound-by the Board's findings and well-established practice not to permit the same issues to be relitigated in the instant proceeding.30 It is now too well settled to require citation of authority, as Respondent recognizes, that the mere pendency of an unfair labor practice proceeding does not relieve an employer of its obligations under the Act. I find that by refusing to meet and negotiate with the Union after October 31, 1963, Respondent violated Section 8(a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. -THE REMEDY Having found that the Respondent violated Section 8(a) (3) and (1) of the Act by unlawfully discharging Katherine Reed on July 15, 1963, and Claudia Chatman on August 30, 1963, 1 will recommend that Respondent offer them 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 for any loss of earnings they may have suffered as a result of their unlawful discharge, by pay- ment to each of a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the date of Respondent's offer of reinstatement, less the net earnings of each during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I have also found that Respondent violated Section 8(a)(1) of the Act by dis- charging the six silk finishers 31 on September 18, 1963, because they engaged in concerted activities for their mutual aid and protection. I will recommend that they also be reinstated with backpay in order to effectuate the policies of the Act. Their reinstatement shall be in the same manner as described in the preceding para- graph. However, in accordance with the Board's practice in the case of strikers who are unlawfully discharged before they are replaced, their backpay will begin to run from the date when they unconditionally requested reinstatement rather from the date of their discharge 32 In the case of Dorris Walker, that date will be at the be- ginning of the afternoon on September 18, 1963, when she asked Guinta if she could go back to work. In the case of the other five silk finishers, that date will be October 29, 1963, when Respondent received their unconditional request for re- instatement. In all other respects, their backpay shall be computed in the same manner as is set forth in the preceding paragraph. Having further found that Respondent unlawfully failed and refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, I will also, recommend that, upon request, Respondent bargain collectively with the Union as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. Because of the character and scope of the unfair labor practices found to have been engaged in by Respondent, I will recommend that Respondent cease and de- sist from in any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees employed at Respondent's dry- cleaning and laundry plant located in Rochester, New York, including the janitor, excluding all office clerical employees, store clerks, maintenance employees at Re- spondent's outlet stores, truckdrivers, guards, professional employees, and super- so Section 102 67(f) of the Board's Rules and Regulations, Series 8, as amended; Mountain States Telephone & Telegraph Company, 136 NLRB 1612, 1615. 31 Amanda Carter, Charlotte Dickerson, Gwendolyn Morris, Dorris Walker, Catherine Weech, and Dorris Wilson. - 82 See, e g., Globe Wireless, Ltd., 88 NLRB 1262, 1268. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors as defined in the National Labor Relations Act, as amended , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since August 19, 1963, the Union has been, and still is, the exclusive representative of all the employees within said appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages , hours of employment, or other conditions of employment, within the meaning of Section 9 (a) of the Act. 3. By unilaterally changing wages and rates of pay , and by refusing to meet and bargain with the Union because of the issuance of the complaint in the instant pro- ceeding, all as detailed in section III, D, supra, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Kath- erine Reed and Claudia Chatman, thereby discouraging membership in the Charging Union, a labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By the foregoing conduct, by discharging the silk finishers for engaging in con- certed activities for their mutual aid and protection, and by the conduct of President Ben Barnet, Plant Superintendent Joseph Guinta , and Laundry Supervisor Vincent Tadisco, all as detailed in section III B, supra, the Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent has not engaged in unfair labor practices insofar as the complaint alleges violations of the Act not specifically found herein. RECOMMENDED ORDER Upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , I hereby recommend that the Respondent, Staub Cleaners, Inc., and Ben Barnet Cleaners, Inc., Rochester, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Local 39, Laundry and Dry Cleaners International Union , AFL-CIO, or any other labor organization of its employees , by discriminatorily discharging any of its employees or by dis- criminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (b) Discharging employees for- exercising the right guaranteed in Section 7 of the Act to engage in concerted activities for their mutual aid and protection. (c) Refusing to meet and bargain collectively , regardless of the possible pendency of any unfair labor practice proceeding, with the above-named labor organization as the exclusive representative of its employees in the following appropriate unit with respect to rates of pay , wages, hours of employment , and other terms and conditions of employment: All production and maintenance employees at Respondent 's drycleaning and laundry plant in Rochester, New York, including the janitor , excluding all office clerical employees, store clerks, maintenance employees at Respondent 's outlet stores, truckdrivers, guards, professional employees, and supervisors as defined in the Act. (d) Making unilateral changes in wages, rates of pay, or other terms and condi- tions of employment of its employees in the above -described appropriate unit without first consulting and bargaining with the Union , in a manner violative of the Act. (e) Interrogating employees as to their knowledge of and attitude toward the above-named or any other labor organization , as to how they intended to vote and as to how they had voted in a Board election , and as to what employees had voted for the Union, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. (f) Threatening employees with changes, loss of jobs , elimination of benefits, the closing of its plant, or any other economic reprisals, if the employees selected the above-named or any other labor organization as their collective -bargaining representative. STAUB CLEANERS INC. 299 (g) Creating the impression of surveillance of the employees ' union activities by telling employees that everything was being told to them and that they knew every- ,thing that was going on, or by like or related conduct. (h) Announcing to employees that certain employment conditions are being tightened up because the employees selected the Union as their collective -bargaining representative in a Board election. (1) 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 the above- named 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 the provisos in Section 8 (a) (3) of the Act. 2. Take the following affirmative action , which is necessary to effectuate the policies of the Act. (a) Upon request, meet and bargain collectively , regardless of the possible pendency of any unfair labor practice proceeding , with the above-named labor organization as the exclusive representative of the employees in the above-described .appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment , and embody in a signed agreement any understanding reached. (b) Offer to the following eight employees 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 for any loss of earnings they may have suffered as a result of their discharge, in the manner set forth in the section of this Decision entitled "The Remedy": Katherine Reed Charlotte Dickerson Catherine Weech Claudia Chatman Gwendolyn Morris Dorris Wilson Amanda Carter Dorris Walker (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to determine the amount due as backpay. (d) Post at its plant in Rochester , New York, copies of the attached notice marked "Appendix A." 33 Copies of said notice , to be furnished by the Regional Director for Region 3 (Buffalo, New York ), shall, after being duly signed by an authorized representative of the Respondent , be posted by it immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Decision and Recommended Order, what steps the Respondent has taken to comply therewith.34 • I further recommend that the complaint be dismissed insofar as it alleges viola- tions of the Act not specifically found herein. 13 In the event that this Recommended Order shall 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 is 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" a* In the event that this Recommended Order is 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Local 39, Laundry and Dry Cleaners International Union , AFL-CIO, or any other labor 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization of our employees, by discriminatorily discharging any employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT discharge employees for exercising the right guaranteed in Section 7 of the Act to engage in concerted activities for their mutual aid and protection. WE WILL NOT make unilateral changes in wages, rates of pay, or other terms. and conditions of employment of employees in the appropriate unit without consulting and bargaining with the above-named Union, in violation of the Act. WE WILL NOT interrogate employees as to their knowledge of and attitude toward the above-named or any other Union, as to how they intend to vote and as to how they had voted in a Board election, and as to what employees had voted for the Union, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT threaten employees with changes, loss of jobs, elimination of benefits, the closing of the plant, or any other economic reprisals, if the em- ployees selected the above-named or any other Union as their collective- bargaining representative. WE WILL NOT create the impression of surveillance of the employees' union activities by telling employees that everything was being told to us and that we knew everything that was going on, or by like or related conduct. WE WILL NOT announce to employees that certain employment conditions are being tightened up because the employees selected the Union as their collective-bargaining representative in a Board election. 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 the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. WE WILL offer to the following eight employees immediate and full re- instatement to their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole, for any loss of earnings suffered as a result of their discharge: Katherine Reed Charlotte Dickerson Catherine Weech Claudia Chatman Gwendolyn Morris Dorris Wilson Amanda Carter Dorris Walker WE WILL, upon request and regardless of the possible pendency of any un- fair labor practice proceeding, meet and bargain collectively with Local 39, Laundry and Dry Cleaners International Union, AFL-CIO, as the exclusive representative of all employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees at our drycleaning and laun- dry plant in Rochester, New York, including the janitor, excluding all office clerical employees, store employees, maintenance employees at our outlet stores, truckdrivers, guards, professional employees, and supervisors. as defined in the Act. All our employees are free to become, remain, or to refrain from becoming or remaining members of any labor organization, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. STAUB CLEANERS INC., AND BEN BARNET CLEANERS INC., Employers. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-In the event any of the above-named employees are presently serving in the Armed Forces of the United States we will notify them of their right to full reinstatement upon application in accordance with the Selective Service Act and' the Universal Military Training and Service Act of 1948, as amended, after dis- charge 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. OPAL CLIFFS FOOD CENTER 301 Employees may communicate directly with the Board's Regional Office, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. TL 6-1782, if they have any question concerning this notice or compliance with its provisions. Marion J. Rossi & Elmo B. Legge, Copartners d/b/a Opal Cliffs Food Center and Retail Clerks Union, Local 839, Retail Clerks International Association, AFL-CIO. Case No. f0-CA-2746. August 11, 1964 DECISION AND ORDER On May 14, 1964, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Deci- sion. He also found that Respondent had not engaged in certain other unfair labor practices and recommended the dismissal of the complaint as to them. Thereafter, Respondent filed exceptions 1 and a brief, and the General Counsel filed cross-exceptions 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 [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 entire record in this case, including the Trial Examiner's Decision, the exceptions, and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following .additions and modifications. We agree with the Trial Examiner that the unit as described in the complaint is appropriate for purposes of collective bargaining and is in substance the same unit described in the recognition agreement :submitted to Respondent by the Union z We find no merit in Re- "On June 6, 1964 , the General Counsel filed a motion to strike paragraph 2.23 of Re- spondent's exceptions on the ground that this exception was not based upon evidence in the record, and to strike paragraphs 5, 6, 8, and 9 for failure to comply with the Board's Rule requiring that exceptions be supported by a brief or citation to authority. Pursuant to the Board's Rules and Regulations, Series 8, as amended, Section 102.46(b) (4), we shall disregard paragraph 2.23 of Respondent 's exceptions as not based upon evidence in the record. As to paragraphs 5, 6, 8, and 9, these exceptions meet the bare minimum re- .quirements of the Rule, and we have, therefore , accorded them consideration. 2 The unit is described in the complaint as follows: All employees at Respondent's Santa Cruz operation , excluding all meat depart- ment employees , guards, and supervisors as defined in the Act. .148 NLRB No. 28.