Gotham Industries, Inc.

GOTHAM INDUSTRIES, INC. 63 Gotham Industries, Inc. and Retail, Wholesale and Department Store Union. Case No. 1-CA-4429. December 14, 1964 DECISION AND ORDER On September 29, 1964, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the com- plaint and recommended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [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 Ex- aminer's Decision, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions , and recom- mendations of the Trial Examiner with the additions and modifica- tions noted below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, and orders that Gotham Industries, Inc., Fitchburg, Massachusetts, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Examiner's Recom- mended Order, with the following addition : Add the following paragraph as paragraph 2(b), the present para- graph 2(b) and those subsequent being consecutively relettered: "(b) Notify Joseph Landry if presently serving in the Armed Forces of the United States of his 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 discharge from the Armed Forces." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was held before Trial Examiner John H. Eadie in Fitchburg, Massachusetts, on March 17 and 18, 1964, on the complaint of the General Counsel 150 NLRB No. 5. 775-692-65-vol. 150-6 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the answer of Gotham Industries, Inc., herein called the Respondent., The issue litigated was whether the Respondent violated Section 8(a) (1) and (3) of the Act. The General Counsel and the Respondent filed briefs after the hearing. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Massachusetts corporation with its principal office and place of business in Fitchburg, Massachusetts. It is engaged in the manufacture, sale, and distribution of plastic housewares and related products. The Respondent annually sells and distributes products valued in excess of $50,000, of which products valued in excess of $50,000 annually are shipped from the Respondent's Fitchburg plant directly to States of the United States other than the Commonwealth of Massachu- setts. The complaint alleges, the Respondent's answer admits, and the Trial Exam- iner finds that the Respondent is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED Retail, Wholesale and Department Store Union, AFL-CIO, herein called the Union, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Joseph Landry Landry was hired by the Respondent in July 1962. He worked as a "floorboy" under Foreman William Shute. The Union began to organize the Respondent's employees during the latter part of July 1963. Shortly thereafter, David Wilbur, molding superintendent, had a con- versation with employee Dorothy Pelletier. He told her that he was "very much surprised" to learn that she was "one of the union organizers." Some few days later the Respondent promulgated and issued to the employees a set of 42 rules, 1 of which prohibited "Unauthorized distribution of literature, written or 'printed matter of any description on company premises." About the same time, Robert Gottsegen, general manager of the Respondent, met with the employees and discussed the rules. Concerning the above rule, he stated that the employees could not "pass any kind of literature, union or otherwise, without the permission and ex- press consent of the office on the company premises." Gottsegen mentioned that "unauthorized literature" included "those little yellow cards that are being passed in the shop." 2 Immediately after the meeting Gottsegen spoke to Pelletier, telling her that he had heard that she was "president of the union." Landry became the leader of the union movement after the issuance of the rules. He passed out union leaflets and cards and arranged for union meetings. He ap- pointed "a committee" of five employees, one of whom was Sherman Wilder, for the purpose of organizing the plant. About the same time Wilbur had a conversation with employee Verna Stout. He asked her if she had seen "any of the union cards that were being passed in the shop." When she replied that she had, he asked her if she knew of "anyone specifically" who was passing out the cards. Stout answered "No." Wilbur then stated that he suspected Wilder, and asked her if she would "find out who was passing out the cards." During her break time, employee Hiroko Roderick gave a union card to another employee. At the end of the shift Wilbur came to Roderick's machine and asked her if she had passed out any union cards. She replied, "I gave one to Mattie," and asked him if he wanted it. At Wilbur's request, Roderick got the card back and gave it to him. On August 16 Landry received a warning slip for improper stenciling of cartons. On or about August 19 his job was changed from floorboy to machine operator; and his hourly rate was reduced from $1.70 to $1.55.3 That same day, Shirley Landry, I The charge filed on January 3, 1964, was served on the Respondent on January 6, 1964. The amended charge, filed on January 7, 1964, was served on January 8, 1964. The com- plaint issued on February 17, 1964. The Union's designation cards were yellow. It does not appear that the reduction in pay became effective until September 2 Landry's pay slips were received in evidence. They show that he continued to receive the hourly rate of $1.70 through August 24. GOTHAM INDUSTRIES, INC. 65 the wife of Joseph Landry and also an employee of the Respondent, went to see Wilbur. When she asked him why her husband had been demoted, he replied, "You know why." She answered that she did not know the reason and pressed him for an answer to her question. He told her, "Because of those little yellow cards . . . . I don't personally care whether the union gets in here or not. I can run the shop with or without a union, but if I run it with a union, I run it without a heart . . . I have no personal feelings in this matter one way or the other, but . . . Mr. Gottsegen has a passionate hatred for unions." Joseph Landry was scheduled to work on Saturday, August 24. About 9 a.m. Shirley Landry called Shute to report that her husband would be absent due to ill- ness.4 When she reported for work at the plant about 6:45 a.m. on August 26, she was informed that her husband had been suspended for a week. Later that day she spoke to Wilbur and asked him if he had "anything in writing" to show her husband had been suspended. He handed her a warning slip, dated August 24, 1963, with the reason thereon noted as "Absenteeism and Tardiness." When she asked him if the suspension was a result of the little yellow cards "the same as the other," he nodded affirmatively. Joseph Landry returned to work on September 2. On Saturday, September 14, Winston Shute, a brother of Foreman William Shute, came to Joseph Landry's machine and asked him for a union card. Landry told him to wait until he (Landry) had his "afternoon break" at 12:50 p.m. and that he would give him a card then. When Landry was relieved at his machine by employee Verna Stout, he went to the men's room where he met Shute and gave him a union card. Winston Shute immediately went to his brother's office, gave him the union card, and told him that Landry had given it to him in the men's room. When Landry returned to his machine after an absence of about 10 minutes, he was called to the office of William Shute. Shute gave him a warning slip with the reason noted as, "Unauthorized distribution of literature, written or printed matter of any description, on company premises" and told him, "This is your third and last warning. You're fired." • On September 16 Joseph Landry and Ralph LeMay, the business agent of the Union, went to the plant in order to see Gottsegen. Gottsegen sent word that he did not want to see the representative of the Union but that he would talk to Landry alone. On September 21 Shirley Landry had a conversation with Gottsegen. He told her that her husband had been suspended on August 24 "because he had failed to call in at the calling time, which was 7 o'clock for the 7 to 3 shift"; that he was going to post a rule on the calling time for the three shifts; 5 and that Landry had been sus- pended on September 14 "for giving Winston Shute a union card." He discussed the Union, telling her that he did not believe she would vote for the Union and that she did not need the Union to represent her since she was "a very good worker:" He then told her to have her husband come to see him on September 24. Joseph Landry went to the plant on September 24 and spoke to Gottsegen. At Gottsegen's request, Landry related the facts concerning his giving a union card to Winston Shute. Gottsegen then told him that his suspension 6 was unfair; that he did not want him to pass out union cards in the plant; and that he could distribute them and hold union meetings on his own time "outside and off the property." Landry return to his machine job the following day, September 25. On October 5 LeMay called the plant and spoke to Foreman Shute. He told Shute that a Board hearing was scheduled to be held in Boston on October 7, and asked that Joseph Landry, Wilder, and two other employees be excused from work that day so that they could attend the hearing. Shute said, "Okay." Landry was absent from work on October 7 in order to attend the hearing. On October 8 the Union dis- tributed a leaflet reporting on the Board hearing. The names of the "organizing committee," including those of Landry and Wilder, were listed on the bottom of the leaflet. About the middle of October, Landry was returned to his floorboy job at the hourly rate of $1.65.7 When he performed "assorting" work, he received an extra 5 cents per hour. 4 Joseph Landry worked on the 7 a.m. to 3 p in. shift. 6 The Respondent's rules, referred to above, did not cover this subject. 6 Landry testified without contradiction that the discharge was changed to "a suspen- sion through a telegram" sent to him by the Respondent. ' 7 Gottsegen testified to the effect that "the standard rate of pay for a second shift floor boy is $1.70 an hour" ; that when Landry received a raise to $1 70 he was on the second shift for a short time ; and that through a clerical error the Respondent failed to reduce Landry's pay to $1.65 per hour "when he transferred back to the first shift." 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 21, 1963, the Board conducted an election at the Respondent's plant. The Union lost the election. By a Supplemental Decision, dated December 27, 1963, the Acting Regional Director set aside the election and directed a new election. On December 31 Landry was about 30 minutes late for work. After he had worked for about a half an hour, he was called into Shute's office. Shute told him that be was suspended and gave him a warning slip for "Absenteeism and tardiness." A charge was filed with the Board in his behalf by the Union on January 3, 1964. On January 10, 1964, Landry received a letter from the Respondent in which he was notified that his suspension was changed to a termination of employment. In making the above findings of fact I have credited portions of the testimony of Joseph Landry, Shirley Landry, Stout, Pelletier, Roderick, LeMay, and Shute. Testi- mony contrary to these findings is not credited. Gottsegen testified that: before Landry was suspended on December 31 he con ferred with Shute and Wilbur; Shuted wanted "to get rid of Landry because of his attendance and tardiness record"; Shute showed him a-record which he had been keeping "as to Landry's punctuality and his attendance"; and he (Gottsegen) "indi- cated to Shute on the basis of this record that we will not terminate him right now, we can suspend him and I will check the timecards to verify the accuracy of this record." Shute's record was adduced in evidence. For the year of 1963 it shows that: Landry was late for work once during March; he was absent twice during May due to sickness; he was absent twice due to sickness and was late once during June; he was late twice and "absent without notice" once during August; he had an "ex- cused absence" on October 7 and was sick on October 31; he was late once and ab- sent twice due to sickness during November; and he was late eight times and absent without notice once during December .8 Concerning his reason for deciding to discharge Landry, Gottsegen testified as follows: a review of the record indicated he was absent 25 times during the year and late 19 times. He had six latenesses in the month of December, 3 absences in the month of December, and apparently all our oral and written warnings did not have the effect that he wanted, and we could no longer accept this situa- tion, so we decided to suspend him with view to discharge, and then we subse- quently decided to make it a discharge. In a molding factory the most important thing is to keep machines running. We have 15 machines in our plant and we have the exact number of people on the payroll to man the 15 machines. If one person is absent then a machine must go down, or 7 percent of the productivity of the plant is lost for the period of his absence. If a person is late, for the duration of his lateness at least 7 per- cent of our entire factory is idle. We try to prevail upon other employees to stay over and work a second shift because it's so important to our profitability to keep machines running continuously. If people cannot come to work on time and are going to be delinquent in their attendance, then we cannot function profitably, and if we don't make a profit then there'll be no payrolls and there'll be no factory. We must have people who come to work on time and have good attendance records. If people have a tendency towards sickness, I wish them good health, but unfortunately we would have to terminate them even if some- one had good legitimate excuses for being sick continuously, because we cannot employ someone who's inclined toward sickness. * * * * * * * If we can be called prior to the beginning of a shift, this gives us a little bit of time to prevail upon people to work overtime. If someone doesn't show up at 7 o'clock and someone has a coat on ready to leave and is waiting for re- lief on a machine, at that time, they may have plans perhaps and things of that nature and there is a less likelihood of their staying on. If we're notified a couple of hours ahead, we can go on the floor and ask who's willing to stay over. * * * * * * There's no rule. There's no written rule. Everyone knows they should call in before the shift. s Shirley Landry testified that her husband was absent on December 17 because "he didn't have any way of getting to work" as he was having his car fixed ; and that at 7:30 am. that day she called Shute and notified him. GOTHAM INDUSTRIES, INC. 67 In a letter to the Board, dated January 8, 1964, Gottsegen set forth Landry's record of attendance as follows: Absent Late Number of minutes 10/7 10/26- --------------------------------- 5 10/30 11/8----------------------------------- 12-17 11/1 12/3----------------------------------- 5-11 11/2 Without excuse. 12/4----------------------------------- 5 11/22 12/14----------------- ----------------- 18-23 12/17 12/18-------------- -------------------- 5-11 12/24-------------- -------------------- 5-11 12/30 Excused 12/26------------ ---------------------- 5 12/27- --------------------------------- 24-29 12/31----- ----------------------------- 30-35 In his testimony Gottsegen admitted that both Shute's record and the information that he supplied to the Board were "inaccurate." At first Gottsegen testified that Landry was absent three times during December. Later he testified that Landry was absent only once during December. Shirley Landry testified that: Her husband was not absent on October 30; after working for about an hour on October 31, he "was driven home by assistant foreman, George Pepin" because of illness; he was absent on November 1 and 2 due to illness; she called Shute and notified him that Landry would not be present on November 1 and 2; 9 she also notified George Lapointe, assistant foreman , when she herself re- ported for work; Landry was absent from work on November 22 in order to attend to union business ; and although she knew "the night of November 21st" that Landry would be absent, she did not call the shop until about 9 a.m. the following day in order to notify Shute. From all of the evidence it appears that : During 1963 Landry was absent from work for only 10 whole days and part of 1 day; the Respondent was notified and ex- cused 7 of these absences due to illness; the absence on October 7 was "excused" in advance ; Shirley Landry notified the Respondent of Landry's absences on August 24, November 22, and December 17; and during 1963 Landry was late for work only 13 times, 8 of which were during December. I am convinced and find that Landry's demotion on August 19 and his suspensions on August 24 and September 14 were violative of Section 8(a)(3) and ( 1) of the Act. Shute admitted in his testimony after reviewing his own record that Landry was not absent or tardy excessively as of August 24. Wilbur's statements to Shirley Landry, to the effect that Landry's demotion to machine operator and his suspension on August 24 were because of the "little yellow cards," clearly show the Respondent's motive in the matter. The evidence conclusively shows that on September 14 Landry gave a union card to Winston Shute during his break time while in a nonwork area. The warning slip issued to Landry confirms that the suspension was for distribution of a union card "on company premises ." The promulgation and enforcement of such a broad no- distribution rule was an unwarranted interference with the rights of the employees under Section 7 of the Act and violated Section 8 (a) (1) of the Act. It is also found that Wilbur's interrogation of Stout and Roderick was violative of Section 8(a)(I) of the Act. Insofar as Landry's suspension on December 31 and later discharge are concerned, I am convinced from all of the evidence that the Respondent was seizing upon a pre- text in order to rid itself of a leading adherent of the Union . This action occurred only 4 days after the election had been set aside . Other than the issuance of warning slips and the suspension of employee Adolph Humphrey, also on August 24, there is no evidence that any other employee was suspended or discharged for absenteeism 6 Shute's record supports the above testimony of Shirley Landry . It shows that Joseph Landry was not absent on October 30, and that he was absent for only part of a day due to sickness on October 31. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or tardiness. It has been found that Shirley Landry gave notice that Landry would not be present on November 22 and December 17. Of the 8 days on which it is claimed that Landry was late during December, it is questionable if he wasp in fact late on 1 day, and he was late for only about 5 minutes on 4 other days. Accord- ingly, I find that Landry's suspension and/or discharge on December 31 was viola- tive of Section 8(a)(3) and (1) of the Act. B. Sherman Wilder Wilder was hired during March 1963. He worked as a floorboy for about 5 months and then became a fork truck operator. He was an observer for the Union at the election held on November 21. On January 6, 1964, employees Pearl Hale and Lyndon Taylor each gave Wilder a warning slip that they had received in the hope that he could "maybe do something about it" since he was on the Union's "organizing committee." Thereafter he talked with employees Walter Parker and Adolph Humphrey. They discussed "the charges" that had been filed against the Respondent "since the election." 10 Wilder told Humphrey that he had "a couple more charges" that he "could probably file." Some few minutes after the above conversation ended, Wilder was called into the office by Gottsegen. Gottsegen asked him if he had just told Humphrey that he had some charges in his pocket that he was going "to file against the company." When Wilder admitted having made the statement, Gottsegen asked him if he was "trying to threaten Adolph to get him to favor the union." Wilder replied that he did not want to threaten anyone. Gottsegen then asked him, "What's the nature of these charges?" Wilder at first refused to discuss the charges, but finally stated, "You've given other people raises and promotions and because I'm in the union, you're not giv- ing me a raise or promotion . . . . For example, you gave Charlie Boggs a job in the powder room. I should have gotten that job." Gottsegen then suspended him for violation of the Respondent's rule against spreading "false or malicious statements about the company or its supervisors." 11 On January 7, through the intercession of Larry Gottsegen, a supervisor in charge of the Respondent's toy program, Wilder was notified to report back for work "im- mediately." On January 8, after he had punched the timeclock about 7:02 a.m., he met Foreman Shute. Shute gave him two warning slips for "tardiness" on Decem- ber 31 and January 3, and assigned him to work with Boggs in the "powder room." 12 Shute later came to Wilder and handed him another warning slip for his tardiness that morning, saying, "Here's another one to add to your collection." Wilder worked in the powder room that day for about 12 or 13 hours. During'the day he had conversations with Larry Gottsegen, Boggs, and employee Parker. Wilder thanked Gottsegen for getting him the job and said that he appreciated it.because it would mean more money for him. He told Boggs that he liked working in the powder room and that he liked the overtime work. He told Parker that he was "glad" to be working in the powder room because he could "make more overtime than driving the fork truck." When Wilder reported for work on January 9, he was discharged by Shute. Con- cerning the incident, Wilder was questioned and testified as follows: Q. And you had a conversation with Bill Shute) A. Yes. Q. And where did this conversation take place? A. Right in front of the molding room office. Q. At about what time in the morning? A. About 7. Q. Was there anyone else present that you know? A. Yes, there was three or four people standing around. 10 As related above, a charge was filed by the Union on January 3, 1964 11 Wilder later received a warning slip, dated January 7, 1964, with the reason noted as "The making or publishing of false, vicious, or malicious statements concerning an em- ployee, supervisor, the company or its products " . 12 Robert Gottsegen testified to the effect that because of Wilder's "financial plights, doctor bills, sick children, sick wife" he decided to give him "a break" by letting him work "in the powder room where he would make more money and have more overtime."' GOTHAM INDUSTRIES, INC. 69 Q. Now, to the best of your recollection what was the conversation between you and Bill Shute that morning? A. I asked him if I could go back to my old job, and I told him I thought that they had put me down there for punishment and to isolate me from the people, and he said they put me down there because the powder room was messed up and he needed me down there, and , he thought I could do a good job. I told him that I didn't like the powder room and that I would prefer my job back, and he asked me if I was refusing to work in the powder room , and I told him, "I'm not refusing to work," I said, "I'll work my job but I won't work any- one else's." I said, "I don't think it's right for me to work another man's job." So then he asked me to punch out and talk to Bob Gottsegen , and I didn't know if Bob had come in yet. He'd probably be home for all I knew, so I asked Bill to have him come down and talk to me. He said if I couldn't wait to talk to Bob, then I was fired, and he wrote out the slip that said I was fired. He told me to punch out . He told me to punch out and get off the premises or he'd have me put out. Shute was questioned and testified to the following: Q. To the best of your recollection what did Sherman Wilder say and what did you say at the meeting that took place out-where did you say-near the time clock? A. No, outside the office. Q. Outside the office? A. Well, I came in to work about my usual time, about 20 minutes of 7, 6:30, somewhere around there, and as I passed by this group of people, which included Sherman, he said, "Hey, Shute, I 'want to talk to you." * * * * * * * I said, "Fine. Just let me hang my coat up here a second and I 'll be right back." So .I hung my coat and came out of the office, and I said, "What would you like?" And he told me that he wasn't going back to the powder room. He was going back on the fork truck. That was his job ... . Q. This was all outside? A. This was outside and I tried to tell him as nicely as I could that he'd have to work in the powder room, this was where we needed him, and he wouldn't listen. He started to become boisterous and he was attracting more people, and it was just about time for shift change, so I said, "Well , Sherman, why don't we go in the office and talk this thing over." So he said all right, and we went into the office and we started again to talk. And I explained to him that the new system that had been put in and why he was being put down there. Q. Well, what did you say? A. Well, I explained to him that not only was there a greater chance to make overtime, but that we needed somebody back there with an amount of intelli- gence and that we could be sure of that was a good worker. Q. Is he a good worker? A. Oh, yes. I wouldn't take that away from Sherman. Q. So you explained that to him. What did he say to that? A. He said that he was not being put back there for any other reason than to be punished, and I asked him how he came up with that solution that he was being punished whereby he'd be making more money with more overtime and possibly a greater chance for advancement. Q. What do you mean by more money and more overtime? A. Well, the job carries a standard nickel an hour more than a fork truck driver. Q. Did you explain that to Sherman? A. Yes.' Q. At that meeting in the office? A. I believe I did. - Q. And what did he say to that? A. He just contended that he was being punished no matter how you looked at it or how you cut it up ; he was still being punished no matter, and I said, "Sherman, it's ridiculous, but if that's the way you feel, it is." And I asked him to go down to work and then we could talk it over with Bob or someone else later on, and he refused . He said the fork truck was his job and that 's all he was going to do . So, I said, "All right. You can wait and talk to Bob about it." 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And I said, "But if you're going to wait, you're going to punch out and wait." . and he said, "I won't punch out." And then I said, "Well, I'll punch your card out." And he said, "You don't have the right to." . I said, "All right, Sher- man. Wait just a minute." I went into the inner office, which is Dave's office, and I called Bob Gottsegen, and I explained ... . Q. Where was Bob? A. He was at home. I had to wake him up quite early that morning. I ex- plained the situation to him, what transpired, which took me about ten minutes, and upon hearing the completion of everything Bob advised me what I should do, and that was to terminate him. Q. What did you do? A. So I wrote out the slip which gave the charges, and I went out and I put into effect what he had already done by quitting. So I just told him to get off the property before I had him put off. A warning slip dated January 9, 1964, was issued with the reason noted as, "In- excusable insubordination." I find that the Respondent suspended Wilder from January 6 to 8 because of his union activities, and that such conduct was violative of Section 8(a) (3) and (1) of the Act. The testimony of Wilder and Shute is substantially the same concerning the dis- charge. In my opinion Shute was the more reliable and credible witness in this con- nection. But no matter which version is accepted, the Respondent had cause to dis- charge him for insubordination. He refused to work in the powder room and he refused to punch out. Wilder testified to the effect that the powder room job was dusty and isolated, and that on the fork truck job he was "all over the shop." In view of the fact that he was one of the leading adherents of the Union, the Respondent's motive in transferring him to the powder room may be questioned. However, in view of the undisputed fact that he had an opportunity for overtime work on the job, which he wanted,13 and since he complained to Robert Gottsegen about Boggs' assign- ment to the powder room, I do not believe that it would be reasonable to infer that the Respondent was illegally motivated in this connection. Accordingly, I find that the Respondent's discharge of Wilder on January 9 was not violative 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 the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral 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 has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that: The Respondent suspended Joseph Landry from August 24 to September 2, 1963; it suspended him from September 14 to September 25, 1963; it demoted him with a decrease in pay from $1.70 14 per hour to $1.55 per hour for the period from about August 19 until about the middle of October 1963; it sus- pended and/or discharged him on December 31, 1964; and it suspended Sherman Wilder from January 6 to 8, 1964. Accordingly, it will be recommend that the Respondent offer Joseph Landry im- mediate and full reinstatement to his former or substantially equivalent position with- out prejudice to his seniority or other rights or privileges, and make Joseph Landry and Sherman Wilder whole for any loss of pay suffered by reason of the discrimina- tion by payment to each of them of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstate- ment, less his net earnings during such period, in accordance with the formula pre- scribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such sum, such interest to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. 18 Wilder testified that while on the fork truck job he asked Shute three times for over- time work but was refused 14 The evidence shows that through an oversight Landry received the above rate when he was transferred to the first shift; and that the proper rate was $1.65 per hour except when he performed assorting work. GOTHAM INDUSTRIES, INC. 71 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. By suspending, demoting, and discharging Joseph Landry and by suspending Sherman Wilder because of their membership in and activities on behalf of the Union, thereby discouraging membership in the Union , the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The discharge of Sherman Wilder on January 9, 1964, was not violative of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case; I recommend that Gotham Industries , Inc., Fitchburg, Massachusetts, its officers, agents, successors, and assigns, shall be ordered to: 1. Cease and desist from: (a) Discouraging membership in the Union , or any other labor organization of its employees, by suspending, demoting, or discharging employees or otherwise dis- criminating against them in regard to their hire and tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning their membership in or activities on behalf of the Union, or of any other labor organization. (c) Maintaining or enforcing a rule prohibiting employees , when they are on non- working time, from distributing literature on behalf of any labor organization in nonworking areas of its plant. (d) In any other manner interfering with , restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations , to join or assist the above-named labor organization or any other labor organization , to bargain collectively through representatives of their own choosing , and 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. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Joseph Landry immediate and full reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority or other rights or privileges and make him and Sherman Wilder whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying , all payroll records, social security payment records, timecards , personnel records and reports, and all other rec- ords necessary for the determination of the amount of backpay due under these iecommendations. (c) Post at its plant in Fitchburg, Massachusetts, copies of the attached notice marked "Appendix." 15 Copies of said notice, to be furnished by the Regional Di- rector for Region 1, shall, after being duly signed by the Respondent or its authorized representatives, be posted by Respondent immediately upon receipt thereof and main- tained by it for a period of 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing , within 20 days from the date of the receipt of this Decision , what steps it has taken to comply herewith.16 13 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice . In the further event that the Board' s Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." 113,In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that the complaint be dismissed insofar as it relates to the discharge of Sherman Wilder. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate our employees concerning membership in or their activities on behalf of the above Union, or of any other labor organization. WE WILL NOT maintain or enforce any rule prohibiting our employees, during nonworking time, from distributing literature in nonworking areas in support of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organiza- tions to join or assist Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of col- lective bargaining or mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Joseph Landry immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make whole Joseph Landry and Sherman Wilder for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or re- maining members of any labor organization. GOTHAM INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 24 School Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. Harris Paint Company, a wholly-owned subsidiary of Bernz-0- Matic Corp. and Teamsters, Chauffeurs and Helpers Local Union No. 79, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Independent. Case No. 1,0-CA-2780. December 14, 1964 DECISION AND ORDER On July 21, 1964, Trial Examiner John F. Funke issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set 150 NLRB No. 15.