Yale Manufacturing Co., Inc.

1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's referral list before seeking and obtaining employment on the Bel-Air job, and Hawksworth's testimony that at the time of Johnson 's hiring by Avila there were some 35 men on Respondent's registration list is uncontested . Respondent therefore could have lawfully required Johnson's removal from the job and subjected him to normal hiring-hall procedures . It could not lawfully make union affiliation a condi- tion precedent to registration and referral . Since Johnson never at any time, before or after his discharge from the Bel-Air project, sought to have his name placed on the -Union's registration list, the matter of whether he would have been refused because of his nonunion affiliation was not put to the test. There is no evidence that registration has been refused anyone because of union or nonunion affiliation. Since the Union had lawful grounds for requiring Johnson's removal from the Bel-Air job and-a remedy that required his reinstatement to that job in violation of the lawful hiring-hall clause of its contract would not be appropriate , even if Hawksworth mis- stated the grounds for Johnson's removal I can see little to be gained by a remedial order appropriate to this case . In addition, I am by no means convinced that Johnson should'be credited'over Hawksworth. Normally, the wording of a charge initiating an unfair labor practice proceeding is not considered germane to an issue of credibility , but here I think we have an excep- tion to what is generally a salutory practice . Johnson charged that he was discrim- inated against by not being allowed the 7 days on the job, according to the Union's contract, before being forced "to join their corrupt and communist controlled union." On cross-examination Johnson apologized for the use of the quoted language in his charge, admitted that he had no support for such an accusation , and admitted that the' language was not his but was supplied by one Ted Engle. "Well , I would like to make an apology right now for that," Johnson testified , "I was mad because they took me off the job and I would formally like to apologize ." It appears to me that, despite his apology, very little credence can be granted to a person who would , even in a moment of anger, adopt and incorporate in a formal charge such vituperative lan- guage which later , under oath , he is forced to admit is without justification, and while Avila's testimony tends to support Johnson's that Hawskworth made his lack of union affiliation the basis of his discharge demand, it is not necessarily inconsistent with Hawksworth's own testimony in the matter. Not being "squared up with the union," the words Avila attributed to Hawksworth, could be construed as meaning no more than that Johnson had not registered on the Union 's out-of-work list and therefore was ineligible for referral to the Bel-Air project , a union job. I can only conclude on the credibility issue that while the matter is not free of doubt , there is no preponder- ance in support of the General Counsel 's position . I shall recommend dismissal of the complaint. 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. P.D.C.A. and its employer members , including Klaas and Belvoir, constitute a single employer within the meaning of Section 2 (2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices alleged in the Complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is rec- ommended that the complaint be dismissed in its entirety. Yale Manufacturing Company, Inc. and United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case No. 1-CA- 4475. January 18, 1965 DECISION AND ORDER On October 5, 1964, Trial Examiner Stanley Gilbert issued his Decision-in the above-entitled proceeding, finding that the Respond- 150 NLRB No. 100. YALE MANUFACTURING COMPANY, INC. 1103 ent had engaged in certain unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the General Counsel filed a brief in support of the Trial Examiner's 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 [Chairman McCulloch and Mem- bers 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 the briefs, and hereby adopts the Trial Exam- iner's findings, conclusions, and recommendations 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 the Respondent, Yale Manufacturing Company, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Rec- ommended Order, with the following addition : Add the following to the Trial Examiner's Recommended Order and reletter the subsequent paragraphs thereof. '" (d) Notify the above-mentioned 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 Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 'On November 10, 1964, Respondent filed a motion to reopen the healing and on November 24, 1964, Respondent filed an amendment to its motion The purpose of Respondent's motion was to introduce into the record certain documentary evidence which Respondent alleges was stipulated by the parties, but inadvertently was not included in the record Counsel for the General Council , in his reply , states that no such stipulation was entered into or received in the record . In view of the disagreement of counsel as to whether the alleged stipulation was entered into, the absence of any statement in Respond- ent's motion describing the circumstances under which the alleged stipulation was entered into and made a part of the record, and the absence of any indication in the record that such a stipulation had been proposed or otherwise discussed , and as the motion demon- strates on its face that the evidence Respondent seeks to introduce was available at the time of the hearing, we deny Respondent's motion to reopen the hearing for purposes of receiving the proffered evidence . The request for oral argument by Respondent is hereby denied as , in our opinion, the entire record, including supporting briefs, adequately sets forth the issues and positions of the parties. 775-692-65-vol. 150-71 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Based on the charge filed February 6, 1964, by United Brotherhood of Carpenters & Joiners of America, AFL-CIO (hereinafter referred to as the Union), as amended on February 25, 1964, the complaint herein was issued on March 19, 1964. Said com- plaint, as amended during the course of the hearing,' alleges that the Respondent, Yale Manufacturing Company, Inc. (hereinafter referred to as Respondent or Com- pany), violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent in its answer, as amended during the course of the hearing,2 denied that it committed the unfair labor practices alleged. Pursuant to notice, a hearing was held on April 29 and 30, and May 1, 1964, in Boston, Massachusetts, before Trial Examiner Stanley Gilbert. At the close of the hearing oral argument was waived. Briefs were submitted by the General Counsel and Respondent.3 Upon the entire record herein and my observation of the witnesses, I make the following: FINDINGS OF FACT I. BUSINESS OF THE RESPONDENT Respondent, a Massachusetts corporation with its principal office and plant in Roxbury, Massachusetts, is engaged at said plant in the manufacture, sale, and dis- tribution of chrome and wrought iron furniture, laminated fixtures, and related prod- ucts. Respondent, in the course and conduct of its business, receives annually material of a value in excess of $50,000 at its said plant from points outside Massachusetts, and annually ships products of a value in excess of $50,000 from its said plant to points outside Massachusetts. Therefore, it is concluded that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is conceded by the Respondent, the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. The organizational activity Between Christmas and the end of the year 1963, a group of employees, during their lunch hour, complained to each other about certain of the terms and conditions of their employment. Among the group were James Dunnell, Charles Garvin, David Chandler, Herman Coleman, Joseph Denniston, and Richard Marshall. The group decided it wanted a union in the plant and Dunnell and Garvin volunteered to con- tact a union. When they reported that they were unsuccessful, Arthur Gear stated that he knew a union steward in another shop and would try to enlist the aid of a union through him. As a result of his efforts the Charging Party was contacted and informed of the desire of a number of Respondent's employees to have a union repre- 1 The complaint was amended by the addition of the name of Eugene Biaggi to para- graph 11(a) and by adding further allegations of unlawful conduct to paragraph 11(d). 2 The answer was amended to admit paragraphs 1 and 6 of the complaint. 3 By telegram received June 16, 1964, the Union moved that if Respondent's brief was "not received by Trial Examiner when due on 6-15-64 . . . said brief be disregarded" on the ground that the Union was prejudiced, thereby, "since Respondent's delay gave Respondent time to study General Counsel's timely filed brief before filing its own." The letter accompanying Respondent's brief was dated June 13, 1964. The envelope in which it was enclosed was not preserved, so it is not known when it was posted. On its face the brief was stamped as received by the Trial Examiners Division at 10: 30 a.m. on June 16, 1964. However, since it is the practice for mail to be delivered to the Board mailroom and then to be transmitted to the Trial Examiners Division, it cannot be deter- mined whether Respondent's brief was received in the late mail on June 15, 1964, or not until the morning of June 16. In view of these facts and in further view of the fact that there is no evidence that the Union was prejudiced by the possibility that Respond- ent might have had an opportunity to examine General Counsel's brief before mailing its own brief, said motion is denied. YALE MANUFACTURING COMPANY, INC. - 1105 sent them. On the morning of January 16, 1964, Union Representative James D. Cohan appeared at the plant prior to the beginning of the workday and passed out pamphlets and authorization cards to the employees as they entered the plant. It appears that a considerable majority of employees signed union authorization cards on that morning. Among those who signed cards were the four employees who it is alleged were discriminatorily discharged or laid off: Dunnell , Garvin , Arthur Gear, and Edward Gear (hereinafter the two Gears , who are brothers, will,be referred to individually as A. Gear and E. Gear). A. Gear credibly testified that during the coffee break he told his fellow employees that "those who wanted to join the union to sign their cards " and that he volunteered to mail the cards for them. He further testified that he collected approximately 15 signed cards 4 at the coffee break and at lunch , and during the lunch period went out of the plant and mailed the cards . Also, according to his testimony, several of the employees congratulated him on the celerity with which the Union responded to his efforts to contact it and told him that they would name him shop steward . Gear's above testimony was substantially corroborated by other of General Counsel's witnesses. B. Violations of Section 8(aXl) Coleman testified that on the morning of January 16, 1964, Eugene Biaggi, Respond- ent's foreman, approached him and asked "if I was going to sign a union card and turn it in," and that he replied that he did not know . Biaggi testified, when ques- tioned with regard to Coleman 's testimony, that he did not "recall making any such ,statements." Chandler testified that : On the same morning, Biaggi approached him and stated that he had seen the union representative pass out literature ; Biaggi asked him whether he had a union card; he told him that he had ; he showed it to Biaggi; Biaggi asked him whether or not he was going to sign the card ; and he answered that he did not know. Biaggi in testifying as to the incident admitted that: He asked to see "the pamphlet" that the union representative had -been passing out; Chandler showed it to him; Chandler volunteered the information to him that he was going to send in the authorization card; and he replied , "Fine, Dave, just make sure you know what you're doing." Based on the demeanor of the witnesses and the pattern of -Biaggi's conduct and his antiunion animus demonstrated by the credited testimony set forth hereinbelow , the testimony of Coleman and Chandler as to Biaggi's interro- gation of them is credited . It is concluded that the interrogation of Coleman and Chandler was violative of Section 8(a) (1) of the Act , particularly in the context of other unlawful conduct on the part of Respondent set forth hereinbelow. Dunnell testified that, on the morning of January 16, William Stone , Respondent's general foreman, asked him "who had started the union ." Dunnell further testified that, later that day, he asked Stone to meet him on the fourth floor, apparently so they could talk in secrecy. Following is Dunnell's testimony as to their conversation on the afternoon of January 16: A. So I went to the fourth floor, and I asked him , I said, "You want to know who started the Union9", and he said, "Yes", so I_said, "Arthur Gear", and he said, "I don't believe that of Arthur", and he said "Are you surer", and I said, "Yes", so he said, "Well, do you think it would do any good if we talked to the boys or have they already made up their minds?", and I said, "Yes , we mailed the cards in that afternoon at lunch time and everybody made up their minds." So he said, "All right, go ahead down and keep your ears open ." That's all. Stone, who was called as a witness for Respondent , was not questioned with respect to the above testimony of Dunnell and , therefore , Dunnell's testimony , being credible and uncontradicted , is credited . It is concluded that Respondent , by Stone's inter- rogation of Dunnell and by his request that Dunnell keep his "ears open" to his fellow employees' union activity, violated Section 8(a)(1) of the Act. Toward the end of the workday on January 16 Respondent held a meeting of all its employees, which meeting was also attended by Biaggi, Stone, and two officers of Respondent, Gershon 5 and Benjamin Rosenthal . Employee Gerald Wynn testified as follows with respect to what occurred at the meeting: - Mr. [Benjamin] Rosenthal opened up and said he had heard that some of the guys signed these Union authorization cards and mailed them in and that we should think very carefully what we were doing. He said that we had always gotten fair treatment in the shop, and that it was growing and we were growing with the shop, and he said there wasn't a man at the table who could remember * It appears that, at the time, Respondent had 19 production and maintenance employees 5 His given name also appears in the record as Gershom, Gershin, and Getti. 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him laying anybody off. He said no matter how slow things were they always found something for the men to do, and he said if that was right, what was the matter. So I think it was David Chandler who said that he had been there seven years, and for Christmas he got a turkey and a handshake, whereas he used to get a Christmas bonus. And James Dunnell brought up the fact that he had been there six years and only got one week's vacation: during that week the Fourth of July falls, and he doesn't get paid for it. And also that Christmas incident came up about giving the men the day before Christmas and not telling them that they weren't getting paid for it. And he [Stone] said that we should think very carefully about how we classi- fied ourselves on these Union cards. He said, "Take, for instance, you, Ritchy, you probably classified yourself as an upholsterer, is that right?" and Richard said, "yes," and he asked Richard if he could upholster a chair or anything like that. Q. What is Richard's full name? A. Richard Marshall, and Richard said, "No", and Bill Stone told him that if he was going to have to pay Union wages he was going to get Union help that could do that type of work, and Richard told him that they don't do that type of work there, so, therefore, there was no reason to know it, and he told that if the Union came in that a lot of men would ge fired or released or laid-off, and a lot of men would take a cut in pay. I think it was Benjamin Rosenthal who said, when he came there, that there wasn't a man in the shop-he said he taught the men eevrything they knew, and that we weren't showing much appre- ciation, and that the Company always treated us fair and stuff like that. And then Gershin said something about the head of the Union- .I think his name is Mr. Hutchinson-he was being tried or prosecuted for something in Court. I don't remember what the charge was. And then he said if any of the men wanted to retract their authorization they'd given the Union, either bring it in or mail it in the next day and notify the Company and nobody would know the difference. When questioned by the Trial Examiner about what was said about men being laid off or taking a cut in pay, Wynn testified that "he said if he had to pay Union wages, he wanted good help, Union help." Wynn's testimony was substantially corroborated by A. Gear and Garvin.° Respondent did not elicit testimony from any of its wit- nesses with respect to his meeting. Therefore, the above testimony of Wynn, being credible, substantiated and uncontradicted, is credited. It is concluded that Wynn's testimony demonstrates Respondent's union animus. It is further concluded therefrom that Respondent during the course of the meeting violated Section 8(a)(1) of the Act by Stone's interrogation of Richard Marshall as to how he classified himself on the union authorization card , by threat of loss of job if Respondent had to pay union wages or of a cut in pay if the Union came in (in contrast to the policy before the advent of the Union not to lay off "no matter how slow things were") and by soliciting employees to retract their authorization of the Union to represent them. Although Wynn testified on cross-examination that the Rosenthals did make a statement during the meeting that "it was up to the men whether they wanted it [the Union] or didn't want it," the statement that it was the prerogative of employees to make such a decision cannot be considered such reassur- ance to the employees as to have nullified the effect of the above unlawful conduct of Respondent. A. Gear, E. Gear, Chandler, and Biaggi testified with respect to a statement made by Biaggi following the above-mentioned meeting. The testimony of the two Gears and Chandler was substantially the same, that Biaggi said to the two Gears that, if the Union comes in, they will be the first to go because of their lack of experience. Biaggi testified that he recalled making a statement in the locker room to the two Gears, Chandler, and a fourth employee, Coleman, but that his statement was directed to the four of them as a group and it was as follows: "that I thought because of the Union's rules individuals possibly could lose their jobs because they weren't qualified." The above testimony of the two Gears and Chandler is credited (that he singled out the two Gears in making the statement and as to the contents of the statement), not only because of the demeanor of the witnesses on the stand but also because it is 6In order to avoid cumulative testimony, it was stipulated at the hearing that, if Garvin were to testify as to the meeting, his testimony would be substantially the same as that of previous witnesses (A Gear and Wynn) with respect thereto. Dunnell subsequently testified about his complaint with respect to vacations YALE MANUFACTURING COMPANY, INC. 1107 consistent with the fact that the two Gears, as employees of the, shortest duration,7 were apparently the most inexperienced in the plant. As a matter of fact, this was one of the principal reasons advanced by the Respondent for selecting the two Gears for layoff approximately 2 weeks later. It is concluded that Respondent violated Section 8(a)(1) of the Act by Stone's statement which constituted a threat of loss of job in the event the employees selected the Union as their representative. A. Gear testified that at the time he was hired on December 14, 1963, he was told by Biaggi that he would receive a 10-cent raise in 2 or 3 weeks and that on January 17, 1964, when he asked Biaggi about the raise, Biaggi told him that he would let him know later on in the day; that later on that afternoon Biaggi came to him and said, "Due to the Union activity in the plant all raises are cancelled" until further notice. Denniston testified on rebuttal that he heard Gear asking for a raise and that Biaggi said to him, "They'll be no further raises till this business with the Union has been cleared up." He could not, however, remember the exact date or time. Biaggi testi- fied that A. Gear did ask him for a raise which he refused, but he denied that his refusal was predicated on union activity in the plant. He testified that he told Gear it was because he was not pleased with Gear's work and because he absented himself from the shop without prior leave. He further testified that his refusal was on Janu- ary 15,8 the day before the Union's representative, Cohan, passed out literature in front of the plant. E. Gear testified that he, too, asked Biaggi for a raise on Janu- ary 17, having been told when hired that he could expect a raise after a short term of employment, and that Biaggi replied "all raises was cancelled because of the Union being in the picture." Biaggi testified that he did not recall E.- Gear asking him for a raise. In view of the fact that the Gears appeared to be more convincing witnesses than did Biaggi, the testimony of both Gears is credited. It does not appear that the raises were refused because Respondent was fearful of violating the Act by granting them but in reprisal for the union activity Biaggi did not, either according to his testimony or that of the Gears, indicate to the Gears or on the stand that the refusal was predicated upon a fear that granting raises might be construed as a violation of the Act. Therefore, it is concluded that Respondent violated Section 8 (a)( I) of the Act by telling employees that they would not be granted raises because of the union activity of its employees in an attempt to dissuade said employees from engaging in such activity. Employee Cornelius Brown testified to a conversation he had with Stone in the latter part of January in which Stone indicated by an obscene metaphor that reprisal would be taken against Brown if the Union came in. Stone testified to a somewhat different obscene version of the remark he made. Dunnell testified to the latter part of Stone's statement which he overhead which corroborates Brown's testimony. It does not appear necessary to set forth the exact words of their testimony for the purposes of resolving this issue. To paraphrase Brown's testimony which is credited, Stone said to him that if the Union came in (Stone) would take drastically unpleasant action against Brown and that he (Stone) was the type of person who could do it. It is concluded that by his statement Stone threatened Brown with economic reprisal if the Union came into the plant and that the threat was violative of Section 8(a) (1) of the Act. It-appears that employee Joseph Denniston and Biaggi were members of a car pool. Both testified as to a conversation they had in the latter part of January 1964 while on their way home in the car. Denniston testified: A. Yes. One night going home there was Joe Hojlo, myself and Gene Biaggi and Hascall Maude. As soon as Joe Hojlo got out of the car Biaggi says to me, "What way are you going as far as the Union is concerned?" So, I answered him by saying "Well, I'm just one of the guys, so I go along with them." And then he said to me, "Do you mean to tell me that you put yourself in the same class as those guys?" I says, "Why not; you guys are salaried, you get hospital- ization pay," I said, "Why shouldn't I go along with them?" So Biaggi said, "I thought you thought more about yourself than that," and Hascall Maude chipped in with the same expression. Also Biaggi says to me "Hasn't Yale Manufactur- ing Company been good to you since you worked here?" I says, "Well, I can't, complaint," [sic] but he said "Those guys think that the Union is going to get 7 A. Gear had been employed only about a month and E. Gear about 2 days. The other two, Coleman and Chandler, were employees of long standing 8 He first testified on direct examination that it was "approximately" that date, and later that he was positive that it was January 15. When asked why he was positive, he gave an unconvincing explanation. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them all kinds of things , and take my word for it, Yale Manufacturing Company does not have to give them anything, and there'll never be a Union in Yale Man- "ufacturing Company because I won 't allow it." my advice and keep your nose clean." Biaggi testified that Denniston "volunteered the information that he was going to go to a union meeting, and I asked him how his position was and he told me that he was going to go with the majority, and I stated that he was being foolish." Biaggi denied that he stated to Denniston that he would never let a union in the plant or that he told Denniston to keep his nose clean. Denniston's demeanor was more con- vincing than that of Biaggi. Furthermore his testimony as to what was said by Biaggi is consistent with the pattern of Biaggi's conduct demonstrated by other cred- ited testimony. Consequently Denniston's testimony is credited. It is concluded that in the course of the conversation Biaggi unlawfully interrogated Denniston with respect to his union sentiment and threatened him with economic reprisal because of his adherence to the •Union in violation of Section 8 (a) (1) of the Act., General Counsel contends that a further violation of Section 8(a)(1) of the Act was demonstrated by the testimony of Stone. Stone testified that he told Cornelius Brown that he had heard a rumor about the head of the Union being in "jail; that he asked Brown if he knew anything about it; and that Brown told him that he had brought it up at one of the previous union meetings, but his question was not answered. According to the General Counsel this constituted unlawful interrogation. While obviously Stone did interrogate Brown, it was not with respect to the protected activ= ities of Brown or of his fellow employees. It was only through inadvertence that Stone elicited from Brown the fact that he had attended a union meeting. Therefore, it is concluded that the above interrogation was not unlawful within the meaning of Section 8 (a) (1) of the Act. C. Layoff of the Gear brothers About an hour before the end of the workday on Monday, February 3, 1964, Biaggi notified A. Gear and E. Gear that they were being laid off because of lack of work, and they were given their paychecks. A. Gear had entered the employ, of the, Respondent on December 14, 1963, and E. Gear was employed on January 14, 1964., According to the testimony of Gershon Rosenthal, he began to watch sales orders about the middle of January 1964, and toward the end of the month he noticed that the.orders were beginning to "drop off." On the Thursday or Friday prior to Monday, February 3, 1964, he informed Biaggi and Stone that two employees would have to be laid off because of lack of orders, but did not direct which employees they were to be. According to Biaggi's testimony, he discussed the matter with Stone on that Thurs- day or Friday and they decided that the layoff was to be in Biaggi's department. Biaggi further testified that he made his final decision to select the Gear brothers (both of whom were in his department) on February 3, 1964, and discussed it with Stone. Biaggi further testified that he did not know how the Gear brothers felt about the Union. Also, according to Biaggi's testimony, the two were selected because they were the most recent employees and he was not satisfied with their work. It appears that the Respondent did not have a seniority policy with respect to layoffs. Biaggi testified that he was dissatisfied with A. Gear because "he was continually burning bands 9 every day," on the average of "about'10 to 15 pieces per day," and because of his absences without leave. Biaggi further testified that he spoke to A. Gear about burning bands on "approximately two or three occasions." ' Further Biaggi testified that he questioned Gear with respect to his two absences without leave and he was satisfied with the explanation for one of the absences ("some- thing to the effect that his wife was going to have a baby"), but could not recall what Gear's explanation was with respect to the second occasion. With respect to his dis- satisfaction with the work performance of E. Gear, it appears from Biaggi's testimony that it was mainly because he was slow. As has been indicated above, A. Gear was instrumental in contacting the 'Union, collected the signed authorization cards from 15 of the employees, and mailed them in. Although Biaggi testified that he did not know what Gear's attitude was toward the Union, Stone admitted that he knew "A. Gear was going along with the Union," A. Yes, he also said to me going home, "You're buying a" new house, keep 6 Banding is accomplished by a machine which "includes gluing the edge of the wood and taking a piece of formica and placing it on top of the area," and then by 'applying heat which "cooks the glue and in that way it adheres the formica to the edge." YALE MANUFACTURING COMPANY, INC. ^ 1109 that he had seen him on several occasions talking to Cohan, the Union 's representa- tive. Furthermore, Dunnell testified, without contradiction , that, on the afternoon of January 16, 1964, in response to a question by Stone as to who started the Union, he informed Stone that it was Arthur Gear, and, when Stone expressed disbelief, he told Stone that he was "sure." Therefore , Biaggi's testimony that he .was not aware of A. Gear's attitude toward the Union is discredited , inasmuch as it appears reason- able to infer that Stone communicated this information to other members of manage- ment including Biaggi. Respondent introduced sales figures to show that there was a drop in orders in' January and February. It appears from Gershon Rosenthal 's testimony that the months of January and February were normally slack months. According to the uncontradicted testimony of Wynn , Benjamin Rosenthal reminded the employees on January 16, 1964, the day that the union organizational efforts became obvious, that prior thereto Respondent never laid off employees "no matter how slow things were." 10 ,Biaggi's testimony is confused as to the practice usually followed by Respondent with respect to layoffs. On cross-examination, he testified that the instructions7 he received to lay two men off on the Thursday or Friday before February 3 was "the first time". he had "ever heard from the office to lay people off" and that previously he laid people off on his "own decision." On redirect, he testified that it was the practice for the "office" to make the decision whether to make a layoff. Then, on re-cross, he testified that it was his "sole decision" as to how many people to hire. It is concluded from Biaggi's testimony that Respondent departed from its usual practice,' not only by' laying off people during the normal slack season , but also by top management directing that the layoff be made. Denniston, whose sincerity on the witness stand was impressive , testified that he worked closely with A. Gear, that it was necessary to come to him, Denniston, for replacement of bands if they were burned, and that there was only one occasion when that was necessary. This corroborated A. Gear's testimony that he burned only one band. Furthermore, Denniston testified that Biaggi told him, shortly after E. Gear was-employed, that he was pleased with the way the Gear brothers were shaping up. Biaggi admitted on the stand that he would have given them a longer trial period, 'if he had not been directed to lay off two men. This admission might well be con- sistent with his testimony that E. Gear was "slow," after only 2 weeks of employment, but would not appear to be consistent with his testimony that A . Gear continually burned 10 to 15 bands a day over 11/2 months of employment . Further, it would appear that such inept performance would have evoked more from Biaggi than only speaking to A. Gear about it on "approximately two or three occasions," as Biaggi testified . Therefore, Biaggi's testimony that A. Gear burned on an average of 10 to 15 bands a day is discredited. This finding of the invalidity of one of the reasons advanced for selecting A. Gear for layoff fortifies the finding hereinbelow of the pretextual nature of the economic reason for top management 's direction that two men be laid off. In view of the foregoing analysis of the testimony with respect to the layoff of A. Gear and E. Gear, of A. Gear's activity on behalf of the Union which was known to Respondent, of the antiunion animus of Respondent and of its above-described unlawful conduct in violation of Section 8(a) (1) of the Act, it is concluded that the layoff of A. Gear was discriminatorily motivated and that the economic reason there- for advanced by Respondent was pretextual . It is further concluded that E. Gear was discriminatorily laid off, not only because he was A. Gear's brother and likely to have the same attitude toward the Union , but to lend credence to the reasons advanced for laying off A. Gear. The Gear brothers were the last two persons hired before the layoff, A. Gear approximately 11/2 months prior to thereto and E. Gear approximately 2 weeks prior thereto. According to Respondent's witnesses, Respondent did not have a policy of recalling employees on layoff. Therefore, the so-called layoff of the Gear'brothers was tanta- mount to discharge, inasmuch as Respondent apparently had no intention of recalling them., Consequently, it is concluded that Arthur Gear and Edward Gear were dis- charged in violation of Section 8(a) (3) and ( 1) of the Act. 10 Although the record indicates that one or more employees may have been previously "laid off," there is no showing what the reasons were therefor . The record does not indicate whether or not there had' been "layoffs" In previous slack periods . The record does indicate that the term "`layoff" was , in effect, synonymous with discharge according to Respondent's employment practices, since Respondent's witnesses testified that it did not follow the practice of recalling employees who had been "laid off." ' ' 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The discharge of Dunnell and Garvin James Dunnell and Charles Garvin were discharged by Stone toward the end of the workday on Wednesday, February 19, 1964. Following is a summary of the testimony bearing on the termination of their employment. According to Stone, from his "observation and the completed order slips," he, during the week prior to February 19, formed the opinion that "production was slower," and on Friday, February 14, he timed the stitching operation of Brown and the upholstering of Garvin and Dunnell. Brown, who came up behind him and spotted the stopwatch, informed Garvin and Dunnell of what Stone was doing. They made a joke of it and Garvin and Dunnell continued their work while Stone timed them for "perhaps 20 minutes." Stone testified that at no time did it take either of them longer than 3 minutes to complete a seat. Dunnell testified that he and Garvin were racing each other and not working at a "normal" pace. (Stone's testimony does not indicate the length of time it took them to complete a seat before they learned he was timing them, or if he had had the opportunity to make such a check.) Stone testified in a vague and unconvincing manner that he also timed Cornelius Brown on stitching covers. His testimony with respect thereto was, "I don't remember. I think he could have stitched a cover-I timed him." However, he did remember to the very second the time required by Dunnell and Garvin. When asked if he checked any other operations, he testified that he thought he checked Richard Marshall. To continue with Stone's testimony, he did not find any evidence of a slowdown on February 14, except the production figures disclosed by the "orders." When asked by the Trial Examiner what the production figures were for the weeks around Feb- ruary 14, Stone replied that he did not "keep them as such." The following Monday, February 17, Stone did not bring in a stopwatch for further time checks. However, he testified that he observed "that there were constant trips to the men's room, getting drinks of water and by checking my slips at the end of the day, I was not getting the right production." This was both on Monday and Tuesday. On Tuesday, February 18, Dunnell, who had been talking with Brown, was warned about doing so by Stone. Apparently as a consequence of this warning, Dunnell told Garvin on February 18, according to Dunnell's testimony, "When you come in here tomorrow morning just do your work and don't talk." It appears that during the morning of February 19 Stone checked on Dunnell and Garvin twice and found that the two of them were completing 18 seats an hour, or an average of 9' seats each. Stone on each of these occasions said to them "for 15 years I get 15 seats an hour and I'm not settling for 9." Stone testified that he also said to them he would "accept a minimum of 12 seats an hour." There is no dispute in the testimony that they explained to Stone that they were working with material that was more difficult to attach than other material. Dunnell testified that after the second warn- ing, he said to Garvin, "Don't do any more than we're doing now. He's just trying to pressure us on account of the Union. You know how this material is." Stone testified that at exactly 2:22 p.m. Dunnell and Garvin started working on an order and at exactly 3:22 p.m. he checked and discovered they had only turned out 18 seats between them; that he then said, "Apparently you have no intention of giving me the production I should be getting"; and that he told them to get their hats and coats and wait for him in his office. Dunnell testified as follows to what occurred at the time: so Bill come over about 3:15, and I said to him, "Hey Stoney, are we going home or what's the story?" There was a snow storm. He said, "I'm going down the office to check; I'll be right back." So he came and he came around to the other way, and he said, "Is that all I get for an hour's work". I said, "Bill that's all you know we can do with this stuff", he said, "Well, I'm not standing for any slow down in here", so he says, "You're all done", and I told him it wasn't a slow down, and I says, "What do you mean we're fired", and he said, "Yes, you're fired." Respondent contends that Dunnell and Garvin were discharged because they engaged in a slowdown, while the General Counsel contends that their discharge was discriminatorily motivated. Stone testified that, about 2 hours before he discharged Dunnell and Garvin, he overheard a conversation between two employees, Bob Davis and Gerald Wynn, as they passed the door of his office. According to Stone, Davis said to Wynn, "They know about the slowdown" to which Wynn responded with an obscene phrase clearly indicating his lack of concern. Immediately following the discharge of Dunnell and Garvin nine other employees walked out of the plant after learning of the discharge. The subject of their strike action is discussed hereinbelow. YALE MANUFACTURING COMPANY, INC. As has been disclosed hereinabove, Dunnell, on January 16, 1964, the day the union campaign started, acted as an informer and gave Stone the information he was seek- ing as, to who started the Union (Arthur Gear) and told Stone that the employees had mailed in their authorization cards to the Union. Also according to the uncon- tradicted testimony of Dunnell the next day, on January 17, Dunnell again asked' Stone to meet him in the privacy of the fourth floor. He testified that he told Stone "that he wasn't going to tell him anything more, I already told him too much already, and that I was with the guys that trust me, and that I am with the union 100 percent." Dunnell further testified without contradiction to another conversation he had with Stone on February 5, as follows: - So I asked him, I said, "You told us at the meeting that this Union' wouldn't bother this place", so I said, "Why are you fighting it so much?", and he said, "How would you like me to come to East Boston and tell you how to run your home?", and I said, "This is entirely different; this is a job and that's my home", and he said, "No, it's not". Apparently it is the General Counsel's contention that Dunnell was fired in retalia- tion for forsaking the role of informer and because of his acknowledged adherence to the Union, and that-Garvin was fired because Dunnell could not be discharged for. the reason relied upon by Respondent without also discharging Garvin.11 It is concluded that the record supports the General Counsel's contentions. Although Stone claimed that he had a "feeling" that there was a slowdown in progress in the plant, it does not appear that he attempted to pinpoint what employees were engaged in it, except Dunnell and Garvin. On February 14, he made an abortive attempt to time them secretly with a stopwatch. His testimony is vague and uncon- vincing with respect to attempts to check on any other employees that day. On Feb- ruary 19, he checked on the production of Dunnell and Garvin on three occasions, but apparently did not check on the production of any other employee. This failure to check on other employees becomes even more significant in light of Stone's testi- mony that about 2 hours prior to his third check on Dunnell and Garvin, he over- heard-a conversation between Davis and Wynn which should have made him believe that Davis and Wynn were engaging in a slowdown. However, he apparently made no attempt to question Davis or Wynn or check on their production. This testimony, with respect to the conversation of Davis and Wynn being uncontradicted is assumed to be true. This assumption casts doubt on the motivation for the discharg'e' of Dunnell and Garvin. Stone offered no explanation of why he checked Dunnell and Garvin on four occasions to see if they were engaging in a slowdown and neglected to check other employees, particularly Davis and Wynn. In view of his concentra- tion upon Dunnell and Garvin, it is concluded that Respondent was seeking a basis for discharging Dunnell which it could successfully contend was nondiscriminatory. Furthermore, the evidence relied upon by Respondent to prove that Dunnell and Garvin were engaged in a slowdown is not convincing. Respondent attempted to show that production of 18 seats an hour by them that morning constituted a delib- erate slowdown. On the other hand, Dunnell and Garvin testified that they were working a normal pace, but that the type of material they were working with at the time curtailed their production. To offset this Respondent points to the time, it took each of them to complete a seat when Stone checked them with a stopwatch on February 14. It is concluded that Dunnell and Garvin were aware that they were being timed and, therefore, were not working at a normal pace. Although it would appear from Garvin's testimony that he was not aware of the fact that he was being timed, the testimony of Stone and Dunnell indicates that he must have been. The only explanation for Garvin's testimony is that Garvin must have thought that Stone had timed him prior to the discovery of the stopwatch. It does not appear that the clocking of Dunnell and Garvin on February 14 or the test on April 28 can be con- sidered as criteria of what their production should have been at a normal pace, since on both occasions the production, being under pressure, demonstrated the maximum rate, not the normal rate. Dunnell testified that he and Garvin were racing each other on February 14, and that on April 28 he was aware of the fact that Rosenthal and counsel for Respondent were timing the operation and, therefore, he did not work at the "regular speed." There apparently are no production records available from which it can be determined what the production had been in the past when Dunnell n The evidence relied upon by Respondent as the reason for the discharge disclosed, according to Respondent, that both men engaged in a slowdown. Since it consisted of the total number of seats the two of them completed, Respondent had no way of knowing or proving whether one completed more seats than the other. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Garvin were indisputably working at a normal pace. According to'Stone's'testi- mony 12 seats would'have been acceptable. On the other hand, Dunnell and Garvin testified that they were working with material that was difficult to handle which slowed down their production. The record is clear that they explained about the material to Stone on the morning when he complained about their rate of production. Respondent relies on a signed statement which Dunnell gave to Respondent after he was reinstated in which he said "that both he and Garvin can do at least 15 seats per hour." Dunnell testified that after he was reinstated he-had discussions with Rosenthal and Stone and gave them several statements including the one with respect to the slowdown from which the above quotation was taken. When asked to explain about the statement, Dunnell testified: A. Well, I could get out 15 seats an hour but that's not steady; I cannot do that for eight hours a day; sometimes we get ten to 13 or 14, even 16, but it all depends on the material and things like that. You can't do it for eight hours steady, and I've never done it for eight hours steady. - Dunnell testified that at a normal pace we usually did "about 12 an hour," but-this apparently was with material other than that which they claimed was difficult to handle. When questioned by the Trial Examiner whether or not he and Garvin were working at a slower pace during the period prior to their discharge than they had been working during the prior 2 years, witness responded, "No, we just worked as we always did. There was no slowdown." 12 ' As proof of a slowdown Respondent further relies upon Richard Marshall's testi- mony to the effect that Dunnell kept him waiting for parts during the period of 2 weeks prior to February 19 which slowed down his production, and that when -he asked Dunnell for an explanation on several occasions, Dunnell responded, `-`They were kind of nervous and when the Union comes in things will change." Marshall was one of those in the original group which decided to contact a union, and'-his fellow employees must have assumed he was an adherent of the Union, for at' the meeting called by Respondent on January 16, it was revealed that he had signed an authorization card. (Marshall was one of nine employees who went on strike on February 19 after the discharge of Dunnell and Garvin. However, he abandoned the strike, and his application for reinstatement was accepted during the week ending March 13, 1964.) It is reasonable to infer that, if Dunnell, Garvin, and other adherents of the Union were engaging in a slowdown, as contended by. Respondent, Dunnell would have assumed or enlisted Marshall's participation, instead of giving him the excuse of being "nervous." Therefore, it is concluded that Marshall's testi- mony indicates, at the most, a disruption of morale pending recognition of the Union, rather than a deliberate slowdown. During the course of his direct examination, Dunnell testified that, after Stone had complained on the morning of February 19 about the number of seats he and Garvin were producing, he told Garvin, "Don't do any more than we're doing now. He's just trying to pressure us on account of the Union." Respondent relies upon this as indicative of the existence of a slowdown. It appears just as reasonable, if not more so, to interpret his statement to Garvin as a refusal to be "pressured" into a speedup above the normal rate, instead of as an insistence that they maintain a speed below the normal rate. Although Dunnell had testified that 12 seats an hour was their normal rate, it appears that their claim of having difficulty with the material with which they were working on February 19 would reasonably account for the 3-seat- an-hour difference. Therefore, it is concluded that Dunnell and Garvin were not deliberately engaged in a slowdown, as contended by Respondent. - 12 Although Dunnell admitted that he was threatened by one of the strikers a7. few days before the hearing, it appears that the threat was with regard to his having' abandoned the strike and that it did not affect his testimony Dunnell's statement on the stand was convincing that his testimony given during the hearing was true, and that any prior inconsistent statements were not true. Furthermore, he testified credibly as to why he gave a statement (about a slowdown) to Respondent as follows: ' Because when I was in there [after being reinstated] I had talked-with him [apparently one of the Rosenthals] all the time. He brought up a slow-down, and I didn't know nothing about a slow-down, but I figured this is what they wanted about a slow-up, in fact, we started to take it down about a slow-up ; I had no plans about a slow-up. So when they did that we went over it with Bill's [Stone's] testimony , and that's the way it came out. I did it because I figured they wouldn't ask me about a slow-up anymore. YALE MANUFACTURING COMPANY, INC . 1113 It is concluded that Dunnell and Garvin were discriminatorily discharged in viola- tion of Section 8 (a) (3) and (1) of the Act.13 E. The unfair labor practice strike On February 4, 1964 , the day after the Gear brothers were "laid off," 13 employees met after work with Cohan, the Union's representative . Wynn credibly testified, as follows, as to what occurred at the meeting:- Well, the two Gear brothers had gotten Laid-off the previous day. and we ' discussed the fact that less than three weeks before they had told us that no one ever got laid-off there, and we figured that it couldn't have been because there wasn't enough work, because after they left, Gene Biaggi , the fore- man, started doing Eddy's job, spray painting , and Richard Marshall came from upstairs-he's the upholsterer-and they had him doing Arthur Gear's job. And after thinking about that , and we had all but been threatened at the meeting in a way, so we decided if any more of the men had gotten fired or laid-off we figured we'd all walk out. On February 19, 1964, shortly after Dunnell and Garvin were fired , nine of the employees walked off the job. Wynn credibly testified about their action as follows: About 3 : 30, quarter of four, in the afternoon Cornelius Brown came downstairs and told the men- . He told us James Dunnell and Charles Garvin had been fired , so we all went to our lockers and started getting dressed to go home , and Gene Biaggi came walking in, and he said , "Where are you fellows going?" and we said, "Home". He said, "Why?", and we said, "Well, you fired four of the men already, so we're all walking out", and he didn't say anything, and we left. And from there we went back to Murphy's Cafe about 5:15 that night, and we had another meeting. At- this meeting of the employees , they decided to start picketing the next day, which they did. Picket signs were first carried on February 24, 1964 . The picket signs read: "Yale Mfg., Unfair Firing, AFL-CIO, Local 3127." (Wynn testified that Local 3127 is a local of the Union and the authorization card received in evidence indicates that Local 3127 is a local of the Union .) The strike and picketing continued and was apparently still in progress at the time of the hearing in the instant case. It was stipulated that the following employees were the nine who left work and went on strike on February 19, 1964, after the discharge of Dunnell and Garvin: Gerald Wynn, Richard Marshall, Lonnie Lankford , Joseph Hojlo, Joseph Denniston, Robert Davis, Herman Coleman, David Chandler, and Cornelius Brown. It was also stipulated that with the exception of Marshall , who was reinstated during the week ending March 13, 1964, and Lankford, who was reinstated during the week end- ing April 6, 1964, none of the above-named employees has made a request for rein- statement or notified Respondent that he has abandoned the strike .14 It was further stipulated that, up until the date of the hearing , the Union has not notified the Respondent that the strike has been terminated. It is concluded that the above-named employees went on strike on February 19, 1964, because of the Respondent's discharges of Dunnell, Garvin, and the Gear brothers. Respondent has not advanced a contention that the discharges were not a motivation for the strike . It is further concluded that , since the four discharges have been found to be violative of Section 8(a) (3) and ( 1) of the Act, it is appropriate to characterize the strike as an unfair labor practice strike. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 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 thereof. 13 Even assuming that there had been a slowdown , it appears , from Respondent's con- centration upon Dunnell and Garvin in looking for evidence of a slowdown , that It was being sought by Respondent to cover up its basic motivation for their discharge 14 It further appears that only Dunnell , of the four employees who were found to have been discriminatorily discharged, applied for reinstatement As has been previously in- dicated, Dunnell was' reinstated during the week ending March 13, 1964. 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Arthur Gear and Edward Gear, on February 3, 1964, and Charles Garvin, on February 19, 1964, were discriminated against with respect to their hire and tenure of employment by reason of their discharge on said dates,15 it will be recommended that the Respondent be ordered to offer them full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and their other rights and privileges. It will be further recommended that Respondent make them whole for any loss of earnings they may have suffered because of the discrimination against them, by payment of a sum• equal to the amount they normally would have earned as wages from the respective dates of their discharge to the date of offer of reinstatement, together with interest thereon as provided below. The loss of earnings should be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and the inter- est, payable in accordance with Isis Plumbing & Heating Co., 138 NLRB 716, should -be computed at the rate of 6 percent per annum on the amount due in each instance for each calendar quarter (under the Woolworth formula) beginning with the end of the first calendar quarter and continuing with each succeeding calendar quarter until payment of such amount is properly made. It having been found that James Dunnell was discriminated against with respect to his hire and tenure of employment by reason of his discharge on February 19, 1964, and that he was subsequently reinstated, it will be recommended that the Respondent make him whole for any loss of earnings he may have suffered because of the discrim- ination against him by payment of a sum equal to the amount he normally would have earned from February 19, 1964, to the date he was reinstated. His loss of earn- ings should be computed according to the formula and method described above. It having been found that the strike which began on February 19, 1964, is an unfair labor practice strike, it will be recommended that the Respondent, upon uncon- ditional application, offer the employees who went on said strike and were not there- after reinstated, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if neces- sary, those employees hired to replace them.16 It will be further recommended that Respondent make each of said employees whole for any loss of earnings he may suffer in the event Respondent refuses to reinstate him within 5 days after he uncondi- tionally applies for reinstatement. Said loss of earnings, if any, should be computed in accordance with the formula and method described above. It will be further recommended that Respondent place on a preferential hiring list those strikers, if any, for whom no jobs are available, with priority determined by such system of seniority or other nondiscriminatory practice as heretofore has been applied in the conduct of the Respondent's business, and thereafter, in accordance with such list, they be offered reinstatement as positions become available, before other persons are hired for such work. Inasmuch as the unfair labor practices committed by the Respondent are of a character striking at the root of employees' rights safeguarded by the Act, it will be further recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed its employees in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) Unlawfully interrogating employees with respect to their protected activities and the protected activities of their fellow employees. (b) Interfering with the protected activities of its employees by requesting that one of them engage in surveillance of his fellow employees' protected activities and inform Respondent thereof. 15 Although the term "laid off" was used both in the complaint and In the testimony describing the action taken by the Respondent with respect to the Gear brothers, It was found hereinabove that the so-called layoff constituted a discharge 16 This recommendation is not to be construed as requiring reinstatement of any striker not lawfully entitled thereto. The Trial Examiner, In the course of the hearing, ruled that he would not receive any evidence with regard to picket line misconduct, but that any claim by Respondent that a striker who applies for reinstatement Is not lawfully entitled thereto should be deferred to the compliance stage of this proceeding or to a sub sequent hearing, If required. Western Wirebound Boa Co., 145 NLRB 1539. YALE MANUFACTURING COMPANY, INC. 1115 (c) Threatening its employees with economic reprisals should they adhere to the Union or authorize the Union to act as their collective -bargaining representative. (d) Interfering with the protected activities of its employees by soliciting them to retract their authorization of the Union to represent them. 2. Respondent violated Section 8(a) (3) and ( 1) of the Act by its discriminatory discharge of Arthur Gear and Edward Gear on February 3, 1964, and of James Dun-, nell and Charles Garvin on February 19, 1964. RECOMMENDED ORDER Based upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National 'Labor Relations Act, as amended, it is recommended that the Respondent, Yale Manufacturing Company, Inc.,' its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act, as amended, by unlawfully interrogating them with respect to their exercise of said rights„ by requesting an employee to engage in surveillance of his fellow employees' protected, activities and inform it thereof , by threatening its employees with economic reprisals should they adhere to the Union or authorize the Union to act as their collective- bargaining representative , and by soliciting them to retract their authorization of the Union to act as their collective-bargaining representative. (b) Discouraging membership in the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization of its employees , by discrim- inating in regard to the hire and tenure of employment or any term or condition of employment. '(c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to join, form, or assist labor organiza- tions, including the above-named 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 of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which it is deemed will effectuate the policies of the Act: (a) Offer to Arthur Gear, Edward Gear , and Charles Garvin 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 the discrimination against them, as provided in the section of this Decision entitled "The Remedy." (b) Make James Dunnell whole for any loss of earnings he may have suffered as a result of the discrimination against him , as provided in the section of this Decision entitled "The Remedy." (c) Upon unconditional application, offer to the employees who went on strike on February 19, 1964, and have not since been reinstated, immediate and full rein- statement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, dismissing, if necessary, those employees hired to replace them , or place them on a preferential hiring list in the manner set forth in the section of this Decision entitled "The Remedy," and, in the event that the Respondent unlawfully refuses to reinstate them, make them whole for any loss of earnings they may suffer by reason thereof, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time cards, personnel records, and all other records necessary to determine the amount of backpay due under the terms of this Recommended Order. (e) Post at its plant in Roxbury , Massachusetts, copies of the attached notice marked "Appendix." 17 Copies of such notice, to be furnished by the Regional 17 If this Recommended Order is 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 If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order". 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for Region 1, shall, after being signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.18 18 If this Recommended Order Is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 1, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT unlawfully interrogate our employees with respect to the exercise of their rights protected under Section 7 of the National Labor.Relations Act, as amended. WE WILL NOT request any employee to engage in surveillance of his fellow,, employees' protected activities and inform us thereof. WE WILL NOT threaten our employees with economic reprisals should they adhere to the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or authorize said Union to act as their collective-bargaining representative. WE WILL NOT solicit our employees to retract their authorization of said Union to act as their collective-bargaining representative. WE WILL NOT discourage membership in said Union or in 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 in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to join, form, or assist labor organizations, including the above-named 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, except to,.the- extent that such right may be affected by an agreement requiring membership-in ' a labor organization as a condition of employment as authorized in Section, 8(a) (3) of the Act. WE WILL offer to Arthur Gear, Edward Gear, and Charles Garvin immediate and full reinstatement to their former or substantially equivalent positions, with- out 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 the discrim- ination against them, as provided in the section of the Trial Examiner's Decision entitled "The Remedy." WE WILL make James Dunnell whole for any loss of earnings he may have suffered as a result of the discrimination against him, as provided in the section of the Trial Examiner's Decision entitled "The Remedy." WE WILL, upon unconditional application, offer to the employees who went on strike on February 19, 1964, and have not since been reinstated, immediate and full reinstatement to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, dismissing, if necessary, those employees hired to replace them, or place them on a preferen- tial hiring list in the manner set forth in the section of the Trial Examiner's Deci- sion entitled "The Remedy," and, in the event that we unlawfully refuse to rein- state them, make them whole for any loss of earnings they may suffer by reason thereof, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." All our employees are free to become or to remain members of United Brother- hood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization, ALMEIDA BUS LINES, INC. 1117 or to refrain therefrom except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. YALE MANUFACTURING COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above -mentioned employees if presently serving in the Armed Forces of the United States 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, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street , Boston, Massachusetts, 02108, Telephone No. 523-8100, if they have any questions concerning this notice or compli- ance with its provisions. Almeida Bus Lines, Inc. and Antone O. Pontes and Gilbert Jesus. Case No. 1-CA-4634(1-2). January 18, 1965 DECISION AND ORDER On November 12, 1964, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that Respond- ent had not engaged in unfair labor practices as alleged in the com- plaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a supporting brief. The Respondent filed cross- exceptions and a brief in support of the Trial Examiner's 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 [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and cross-exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner.' [The Board dismissed the complaint.] 1 In adopting the Trial Examiner 's conclusions and recommendation , we do not adopt so much of his Decision as may appear to suggest that , in establishing whether conduct within 6 months of the filing of the charge is illegally motivated , Section 10 ( b) of the Act forecloses giving controlling weight to evidence of motivation arising from facts occurring outside the 6-month period. 150 NLRB No. 112.