John F. Cuneo Co.

JOHN F. CUNEO COMPANY 929 I believe this summarizes our contract negotiations to date. Fraternally yours, Mr. Charles Rosenberg, President Rose Printing Co., Inc. P.O. Box 2275 Tallahassee, Florida Dear Mr. Rosenberg: APPENDIX C April 22, 1963. I am delighted to read your statement to the press of last Thursday that you are willing to negotiate with Tallahassee Typographical Union in an effort to settle our contract differences. Our union is most willing and eager to do so and we are ready to meet with you at any time you will suggest. In a sincere effort to obtain a contract settlement, Tallahassee Typographical Union presents herewith a written proposal which we believe can serve as a basis for negotiations. Our proposal consists of the same contract to which we and the other job shops in Tallahassee and the Tallahassee Democrat have agreed, with the additional deletion of the reproduction or "bogus" clause. Regarding the union foreman clause, we are prepared to alter our position on this matter also, but this would require changes in other sections of the contract and we reserve the right to discuss the matter with you or your representatives. We have already stipulated that you may use customer-furnished type, and I feel sure we can also reach agreement on customer-furnished tape if we can discuss certain safeguards which the union would like to have in this matter. We have already agreed to your sub-contracting of work, and we feel sure that by discussion we can arrive at language for this clause that will satisfy us both and will not require you to investigate the working conditions of the plant doing the sub-contracting. These are all the points that you enumerated in your statement and it is our feeling that we are so close together on these matters that one good-faith bargaining session could resolve them all. We urge you most strongly to meet with us for this purpose. As you know, our union has voted to strike your plant for the sole reason that you have consistently refused to meet or bargain with us for the past four months. We feel very strongly that a strike at this time would be most unfortunate in the inconvenience it would cause our state Legislature as well as being so utterly unnec- essary when a simple bargaining session might resolve all our differences. In the event that you continue to refuse to meet with our union, then we feel that we have no further recourse but to carry out the strike. I therefore urge you most sincerely to consider this proposal in the true spirit of collective bargaining in which it is presented. Yours truly, Charles N. Parris, President. cc: Roy Rhodes, Attorney Federal mediator State mediator President of the Senate Speaker of the House John F. Cuneo Company and International Brotherhood of Book- binders, AFL-CIO. Cases Nos. 13-CA-6002 and 13-CA-6174. May 26,1965 DECISION AND ORDER On December 23, 1964, Trial Examiner Horace A. Ruckel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and 152 NLRB No. 93. 789-730-66-vol. 162--- a" (S) Charles N. Parris CHARLES N. PARRIS, President. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that the Respondent had not engaged in cer- tain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief and a supplementary brief; the General Counsel filed cross-exceptions to the Trial Examiner's Decision with a support- ing brief and an answering brief; and the Respondent also filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases 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 Trial Examiner's rulings are hereby affirmed. The Board has consid- ered the Trial Examiner's Decision, the exceptions and cross-excep- tions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith.' 1. The Section 8(a)(1) violations : The Trial Examiner found, and we agree, that Respondent violated Section 8(a) (1) of the Act by: (a) ratifying and facilitating Mary Pleasant's circulation of "No Union" lists among the employees in the late summer of 1963, thereby constructively interrogating its employees as to their prounion or anti- union sentiments; (b) Supervisor Bjornson's 2 interrogation of Saava- dra in July 1963 respecting the union activities of Saavadra and her husband; (c) Bjornson's statement to Saavadra on another occasion that the plant would be closed or employment opportunity would be reduced if a union came into the plant; (d) Bjornson's coercive inter- rogation of Romirez; and (e) Bjornson's threat to Corvera, in the presence of Romirez, that if a union came into the plant, Corvera would make less money, her seniority would not count, and there would be layoffs. However, in adopting s the findings denominated as (c), 1 Respondent contends in effect that the Board should not adopt the Trial Examiner's findings because the Trial Examiner in drawing inferences from the evidence and in making his findings showed bias against Respondent Upon careful examination of the Trial Examiner's Decision and the entire record, we are satisfied that the contentions of Respondent in this regard are without merit. 2 We find , in accordance with the stipulation of the parties at the hearing , that Sam Gervase, Bjornson, Padera, Ironsides , and Wehrmeister were supervisors within the meaning of Section 2 ( 11) of the Act at material times herein 3 We do not adopt the Trial Examiner 's finding that Bjornson 's interrogation of, and threats to, Saavadra in April 1963 violated Section 8(a) (1), because these activities occurred prior to the Section 10(b) limitations period. We likewise do not adopt the Trial Examiner's finding of Bjornson 's interrogation of, and threats to, Carillo a week before the election In our opinion the General Counsel did not establish this allegation by a preponderance of the credible evidence. JOHN F. CUNEO COMPANY 931 (d). and (e), svrpra, we rely upon the additional facts supported by the record as a whole, that the threat of plant closing was made to Saavadra in late May 1963; the interrogation of Romirez occurred 2 or 3 weeks before the Board-conducted election of September 13, 1963 ; and the threat to Corvera occurred in July or August 1963.4 The Trial Examiner failed to find certain other violations of Section 8 (a) (1) alleged in the complaint, including other conduct by Bjorn- son, and recommended that these allegations be dismissed. In his cross- exceptions to the Trial Examiner's Decision and supporting brief the General Counsel urges that we find these violations. We find merit in the General Counsel's contentions with respect to certain other conduct ,of Bjornson. Inasmuch as the Trial Examiner did not make findings respecting the evidence bearing on this additional conduct, we do so here. Vincenta Treviso testified that about 3 or 4 weeks before the election Bjornson called her into his office and asked her if she wanted a union. .She replied in the negative. She further testified that he then told her that if the Union came into the plant she might be laid off, that there would be no work, and that the plant might be shut down. Treviso also testified to another conversation between herself and Bjornson in the latter's office about 2 weeks after the election. On this occasion she said Bjornson told her he had been informed that she favored the Union, and he asked her to verify this information. She denied it, however. Herminia Gonzalez testified that about a week before the election Bjornson called her into his office and inquired if she was for the Union. She responded that she did not want to get involved. She further testified that he also told her on this occasion that her husband (like- wise employed by Respondent) would be earning less money if the Union came in. Dagoberto Segura-Torres testified that, in August 1963, Bjornson spoke to him at his machine, asked him if he had joined the Union (which Torres denied), and told him that if he joined the Union there would be no overtime and less working opportunities at the plant. 'In its amended answer to the complaint , as amended, Respondent defended , specially, that any allegations that it committed violations of Section 8(a)(1) prior to Septem- ber 1963 were barred by a "settlement agreement " which resulted in the withdrawal of Section 8 ( a) (1) charges against it in Case No. 13-CA-5808 which were filed with the Board by the Union . The Respondent claimed that the withdrawal of these charges by the Union was the quid pro quo for its consent to the Union's request for an immediate Board-conducted election . The Trial Examiner granted the General Counsel' s motion to strike these provisions of Respondent's answer and Respondent excepts to this ruling This ruling is affirmed . No settlement agreement was signed or approved by the Regional Director in Case No 13-CA-5808. In the absence of such approval , any agreement which the Respondent and the Union may have entered into and which resulted in the withdrawal of these prior charges was a private arrangement which does not estop the Board to proceed on any new charges alleging the same conduct as the withdrawn charges See Zinunox Coal Company, 140 SLRB 1229, 1230, 1237, enfd 336 P . 2d 516 (C A. 6) ; Fetzer Television, Inc., 129 NLRB 660, 661, 669 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Torres further testified that he and Bjornson engaged in approximat ely three other similar conversations that same month. When he testified, Bjornson did not deny snaking any of the fore- going statements. He averred only that he did not initiate any con- versations respecting the Union. We find that all the foregoing con- versations occurred as testified to by Treviso, Gonzalez, and Torres. We conclude, therefore, that Respondent, by Bjornson's threats and coercive interrogation of Treviso, Gonzalez, and Torres with respect to their union activities, has further violated Section 8(a) (1) of the Act. 2. The Section 8(a)(3) violations : The Trial Examiner found, and we agree, that Respondent violated Section 8(a) (3) and (1) of the Act by discriminatorily discharging Lazaro de Lazaro and by dis- criminatorily denying Jafus Jackson the opportunity to earn regular overtime (Respondent effected the unlawful discrimination against Jackson by transferring him to a position not normally requiring overtime). The Trial Examiner, accordingly, reconnnended a reme- dial order directing Respondent to restore Jackson to his former or substantially equivalent position and to make him whole for any loss of earnings suffered as the result of the discrimination against him. We adopt the Trial Examiner's recommendations in this regard respecting Jackson. As for the Trial Examner's recommendation to reinstate Lazaro with backpay, at the hearing Respondent attempted to prove through the testimony of four witnesses that Lazaro was unsuitable for rein- statement. The Trial Examiner struck the testimony of the first wit- ness and rejected offers of proof as to what the others would have testified on the grounds that such evidence was not material to the allegation of the complaint that Respondent had discharged Lazaro in violation of the Act. Respondent in its exceptions renews its objection to these rulings by the Trial Examiner and contends that it should have been given the opportunity to prove its contention that Lazaro has disqualified himself for reinstatement and backpay. Respondent claims that it discovered the evidence of Lazaro's unsuitability while investigating the possibility of reinstating him prior to the issuance of the complaint. In view of the violations found, it now appears that Lazaro's suit- ability for rehire is a proper subject of inquiry, because it is material to the question of the appropriateness of the usual remedy of reinstate- ment with backpay.1 5 We have withheld these normal remedial provisions where it has been shown that the individual was unsuitable for rehire. E g, Southern Airways Company, 124 NLRB 749; Renfro Hosiery Mills, Inc, 122 NLRB 929 ; Eheo Products Company (Sta-Brite Division), 117 NLRB 137. JOHN F. CUNEO COMPANY 933 We shall, therefore, remand the proceeding (to the extent that Lazaro's suitability for reinstatement is concerned) to the Regional Director for the purpose of arranging for further hearing before the Trial Examiner to receive the evidence from Respondent which was previously rejected, and to make findings, conclusions, and recommen- dations thereon in a Supplemental Trial Examiner's Decision. And, although we have adopted the Trial Examiner's violation findings in respect to Lazaro's discharge, we shall defer action on the reinstate- ment and backpay aspect s of the remedy therefor pending the outcome oft lie reopened hearing and issuance of the Supplemental Trial Exam- iner's Decision.6 REMEDY As we have found the violations of Section 8 (a) (3) and (1) of the Act as aforesaid, but are deferring action on the possibility of ordering reinstatement with backpay for Lazaro, we shall, with the exception of this deferred matter, issue our usual remedial order for cases of this nature. But we reserve the right to modify the Order to add provisions for Lazaro's reinstatement, and/or for backpay relating to him, after the close of the reopened hearing in this case and the issuance of a Supplemental Trial Examiner's Decision, should such provisions be deemed appropriate at that time. Our remedial order shall also require that the customary notice be posted in English and in Spanish because the record indicates that a number of Respondent's Spanish-speaking employees do not speak or comprehend English well enough to understand a notice in that language. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, John F. Cuneo Company, Melrose Park, Illinois, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in or activities on behalf of Inter- national Brotherhood of Bookbinders, AFL-CIO, or any other labor organization of its employees, by discharging or transferring any employee, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. (b) Coercively interrogating employees concerning their union activities or sympathies. (c) Threatening employees that the plant will be shut down, wages will be lowered, or employment opportunity will be diminished if a union comes into the plant. Cf. Dubo Manufacturing Corporation, 142 NLRB 431, 433; 142 NLRB 812, 934 DECISIONS OF NATIONAL LABOR RELATIO N S BOARD (d) In any other manner interfering with, restraining , or coercing its employees in the exercise of their right to self-organization , to form, join, or assist labor organizations , including the above-named labor organization , to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the pur- pose 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 authorized by Section 8(a) (3) of the Act, as modified by the Labor -Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action designed to effectuate the purposes of the Act : (a) Offer to Jafus Jackson immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority and other rights and privileges, and notify Jackson, if lie is 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 'raiding and Service Act of 1948 , as amended, after discharge from the Armed Forces. (b) Make whole Jafus Jackson for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in that section of the Trial Examiner's Decision entitled "The Remedy." (c) Preserve and, upon request , make available to the Board or its agents, for examination and copying , all payroll records, social secu- rity payment records, timecards , personnel records and reports, and all other records relevant or necessary to the determination of backpay due and to the reinstatement and related rights provided under the terms of this Order. (d) Post at its plant in Melrose Park, Illinois , copies of the attached notice marked "Appendix." 7 Copies of said notice , in English and in Spanish, to be furnished by the Regional Director for Region 13, shall, after being signed by Respondent's representative , be posted by Respondent immediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." JOHN F. CUNEO COMPANY 935 IT IS HEREBY ORDERED that the record in this proceeding be, and it hereby is, reopened and that a further hearing be held before Trial Examiner Horace A. Ruckel for the limited purpose of receiving evi- dence bearing on the suitability for reinstatement of Lazaro de Lazaro and his entitlement, if any, to full or partial backpay. IT IS FURTHER ORDERED that this proceeding (insofar as the question of Lazaro's suitability for reinstatement and/or backpay is concerned) be, and it hereby is, remanded to the Regional Director for Region 13 for the purpose of arranging such further hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. IT IS FURTIIER ORDERED that , upon conclusion of such further hearing, the Trial Examiner shall prepare and serve upon the parties a Supple- mental Decision containing findings of fact upon the evidence received pursuant to the provisions of the Order, including, particularly, find- ings respecting Lazaro's entitlement to reinstatement and/or to back- pay, if any , and such conclusions of law and recommendations as he may deem appropriate, and that following the service of such Supple- mental Decision upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable. IT IS ORDERED that the complaint be, and it hereby is, dismissed inso- far as it alleges violations of the Act other than those found in this Decision. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended , we hereby notify our employees that: 117-E WILL offer Jafus Jackson immediate and full reinstatement to his former or substantially equivalent position , without preju- dice to his seniority or other rights and privileges. WE WILL make whole Jafus Jackson by paying to him a sum of money equal to his loss of pay suffered as a result of the discrimi- nation against him. 117E WILL NOT discourage membership in or activities on behalf of International Brotherhood of Bookbinders , AFL-CIO, or any other labor organization of our employees , by discharging , trans- ferring, or otherwise discriminating in regard to the hire and tenure of any employee's employment or any terns or condition of employment. WE WILL NOT coercively interrogate employees respecting their union affiliations. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111'E WILL NOT threaten our employees that the plant will be shut clown, that wages will be lowered, or that employment opportunity will be diminished if a union comes into the plant. 117E WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist the above- named labor organization, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. A]1 our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that such right may be affected by an agreement authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. JOAN F. CUNEO COMPANY, Employer. Dated---------------- By------------------------------------- lRepresentative) (Title) NOTE.-WTe will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his 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. This notice must remain posted for 60 consecutive clays 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, 881 United States Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Pursuant to charges and amended charges filed on November 6, 1963, and Janu- ary 30 and March 31 , 1964, by International Brotherhood of Bookbinders , AFL-CIO, herein called the Union , against John F. Cuneo Company, herein called Respondent, the General Counsel for the National Labor Relations Board, herein called , respec- tively, the General Counsel and the Board, by the Regional Director for Region 13 (Chicago, Illinois ), issued a complaint against Respondent alleging in substance that it had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S C. Sec. 151, et seq.), by interrogating and threatening its employees concerning their union affiliation, by engaging in surveillance of union activities , and by discharging Lazaro de Lazaro and refusing to assign overtime work to Jafus Jackson. JOHN F. CUNEO COMPANY 937 Respondent filed an answer denying that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held before Tiial Examiner Horace A. Ruckel at Chicago, Illinois, on April 15, 16, 17, and 18 and May 19 and 20, 1964, at which the parties were represented by counsel. At the conclusion of the hearing they waived oral argument. Subsequently, the General Counsel and Respondent filed briefs. Upon the record as a whole, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation having its place of business at Meliose Park, Illinois, where it operates a bookbindery. During the calendar year 1963, Respond- ent sold and shipped goods valued in excess of $50,000 from its Melrose Park plant directly to States of the United States other than the State of Illinois During the same period Respondent received goods and materials valued in excess of $50,000 directly to its plant in Melrose Park. Respondent has about 300 production and maintenance employees: 100 to 125 in the sheetwork department and about 175 in the binding department. The complaint alleges and Respondent's answer admits that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED International Brotherhood of Bookbinders , AFL-CIO, is a labor organization admitting employees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. intei ference, restiaint, and coercion 1. The circulation of petitions The Union began organizing Respondent's employees in the spring of 1963. A representation election was held under Board auspices on September 13, which the Union lost. During the month prior to the election, a "No Union" petition was cir- culated among the employees by Mary Pleasant, a machine operator who had been in Respondent's employ for 28 years. For this purpose, according to the allegations of the complaint, she served as the agent of Respondent in obtaining Information as to the union sympathies of its employees. Pleasant, according to her testimony, drew up a number of these petitions and asked Art Bjornson, foreman of the sheetwork department, if she could circulate them in the plant. Bjornson told her that she could do so during break periods. Her further testimony is that Bjornson and she arranged for Bjornson "to hold the list" of prospective signers for her, and that she might have told him that there were a number of employees who did not want a union but would not sign the petition. Some of the 10 to 15 copies of the petition, with a number of signatures on each, were left in the top drawer to Bjornson's desk where Pleasant and other employees sometimes left objects for safekeeping. Accord- ing to Pleasant, at each afternoon break she "would bring my slips into Art." Pleasant was an evasive witness who used a great many words to conceal her meaning. Bjornson managed to do it with fewer. He admitted that he suggested to Pleasant that the lists of signatures be kept in the top drawer of his desk, and that she told him that there were several employees who did not want to sign. Pleasant, he testified, "would bring the lists in to me at noon . . . or at the end of the day," but that he never looked at the names. On the latter point there is evidence to the contrary. Brady Aldridge, whose place of work was 12 to 15 feet from Bjornson's glass-enclosed office, testified that on sev- eral occasions he saw Pleasant enter the office and show the timekeeper and Bjorn- son what the witness took to be the lists of signatures, one of which she had asked the witness to sign. Torres, another employee whose place of work was close to Bjornson's office, testified that on two occasions Pleasant asked him to sign the peti- tion and that on the same occasion he saw her asking others to sign and then saw her take the lists into the office and show them to Bjornson. The testimony of Lazaro de Lazaro, whose discharge is hereinafter discussed, is similar. Lazaro's further uncon- tradicted testimony is that on a later occasion Pleasant asked him again to sign the 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,petition in the cafeteria (he refusing), an incident which was seen by Bjornson, Sam 'Gervase, Respondent's president and general manager, and Rudolph Padera, bindery -foreman. I find that Bjornson, if he did not originate the "No Union" petitions, ratified and facilitated their circulation by Pleasant, provided his own desk as depository for their safekeeping, and received them from the hands of Pleasant after signatures 'had been obtained. I am not able to accept as true his testimony that he did not scrutinize the names thereon. By this means, a form of interrogation, Respondent was able to obtain knowledge of the union and nonunion sentiments of its employees, in violation of the Act. I find that Pleasant was Respondent's agent for this purpose. 2. Other acts of interrogation In April 1963, according to the undisputed testimony of Olga Saavadra, Bjornson called her to his office, asked her if she was in favor of a union, and said that if one did come into the plant it would be closed or the workweek reduced to 2 or 3 days a week. He repeated this warning in May, in his office, in the presence of Johnny Gervase, son of Respondent's president, and Bjornson's secretary, and Gervase added that there would be no more Saturday work. Again, in July, at Saavadra's machine, Bjornson asked her if she had attended a union meeting, stating that he knew that both she and her husband were attending union meetings. Neither Bjornson nor Gervase denied the statements and interrogations attributed to them by the witness. I find that they were made. Nellie Romirez testified that on several occasions before the election Bjornson asked her if she was for the Union, and that on another occasion she served as interpreter for him when he told Celia Corvera, another employee, that if the Union came in she would be making less money, that there would be layoffs, and that her seniority would not count. The account of Romirez was corroborated by Corvera. It was not denied by Bjornson. Leocardio Carillo testified that about a week before the election, Bjornson told her that the Union was no good and that if it came in the employees would receive less money, that Respondent might have to shut down the plant, and asked her if she intended to join the Union. Bjornson did not deny making the statements and asking the questions which these witnesses attributed to him, stating only that he did not originate the conversations. I find that he did make them. Various other witnesses testified as ,to similar state- ments and inquiries made by Bjornson which I do not find it necessary to discuss. B. The discharges 1. Lazaro de Lazaro Lazaro came to work for Respondent in August 1962 as a platecutter He joined the Union at the start of its campaign in the spring of 1963 and became one of its most active members. When Pleasant asked him to sign the antiunion list of signa- tures she distributed throughout the plant, he refused to do so. I have found that Pleasant was an agent of Respondent engaged in ascertaining which employees favored the Union and which did not. I have found that on a second occasion Pleas- ant, within the sight of Bjornson, Gervase, and Padera, Lazaro's own foreman, asked him to sign her petition, and that he refused to do so. On yet another occasion Padera told him that he knew he was attending union meetings and that the Union was no good. Lazaro's interest in the Union was known to Respondent. About August 2, Bjornson approached him at his machine and asked him if he was signing up for the Union, saying that he would lose money if the Union won the election and that he might be transferred to another department. Bjornson did not deny making any of the above comments On Monday, November 4, 1963, Lazaro was ill and his daughter called the plant and told Padera that he would not be at work. He returned to the plant, he testi- fied, on November 7, at his usual starting time, and found that his timecard was not in the rack. He went into the shop and asked Padera, his foreman, what was wrong and Padera said that he did not know and suggested that Lazaro inquire in the office. On his way to the office Lazaro encountered Lester Wehrmeister, production man- ager, and asked him why his timecard was not in the rack and, according to Lazaro, Wehrmeister replied, "Didn't you vote for the Union?" Wehrmeister's testimony is that he answered only that Lazaro was terminated because Respondent had more cutters than it needed. I found Wehrmeister to be an evasive witness and I do not credit his version. When Lazaro arrived at the office he was referred back to Padera. Padera told him that he knew nothing about the matter and referred him JOHN F. CIINEO COMPANY 939 back to the office. When he arrived at the office the second time he was directed to the cafeteria. After he had been in the cafeteria for a few minutes the paymaster came by and handed him a paycheck dated November 8, which other evidence shows was made out on November 6. When Lazaro asked the paymaster why he was being terminated the paymaster said only that he should report at the unemployment office downtown. Lazaro left the plant. The above is Lazaro's account. Padero, Lazaro's foreman, did not deny while testifying that he told Lazaro that he did not know why his timecard had been removed from the rack, and Lazaro's narrative is otherwise uncontradicted except his testimony as to Wehrmeister's comment on his having voted for the Union, Wehrmeister's denial of which I have not credited. Also, witnesses for Respondent date Lazaro's return to work as Monday, November 11, instead of Thursday, Novem- ber 7 I do not find it necessary to resolve this contradiction in view of Respondent's answer which states that "Respondent did discharge Lazaro de Lazaro on or about November 7, 1963, along with other persons whose services were not needed then ,or in the foreseeable future." At the hearing, however, it was stipulated that the only persons terminated for lack of work after November 1, 1963, in addition to Lazaro, was a group of approximately 20 employees who were laid off early in January 1964 On the other hand, there is testimony that he was discharged for cause, to wit his absence during the week beginning November 4. It is only in this connection that it becomes of any importance whether the absence was for the first 3 days of that week or for the entire week. That his absence may have contributed to his termination is seen by the statement of Respondent's counsel: TRIAL EXAMINER' . . . What is the company's contention with respect to his termination Mr INGRAM: It is the company's contention, No. 1, he was not . . . was absent for a whole week without notice TRIAL EXAMINER. We went over that yesterday and you stated that was not part of the reason for his discharge. It was economic in character. Mr. INGRAM: That is correct. TRIAL EXAMINER' It was on that theory and your statement that I excluded certain testimony yesterday. Mr. INGRAM: . . . He was absent a whole week. When he came back after being absent this week, there was no work for him . . . . He was terminated in advance of the group that he was supposed to be terminated .... Had he worked right straight through, I doubt whether he would have been terminated then. Had this man not have been absent for a week, work probably would have been found for him The business was slowing down. The testimony of Padera, Lazaro's foreman, is that he made the decision to dis- charge Lazaro: Q. (By Mr. INGRAM ) . . . Who made the decision that Mr. Lazaro was to be terminated? A. I did. Q. Upon what basis did you make that determination9 A. Well, he didn't show up the previous week and I knew that his work had been falling off and I told the timekeeper not to put his card in the rack ... . * * * * * * TRIAL EXAMINER: Why did you want to talk with him? The WITNESS • I wanted to know why he didn't call me and at that same time, I told him I didn't have any more work for that type of a job . . . but I did ask him why he didn't call me at that meeting in the morning.' * * * * * * * TRIAL EXAMINER: Well, the implication is certainly clear. If he had not been off the previous week, then he would not have been terminated at that time but he would have been kept and terminated sometime later when the others were terminated The WITNESS That's correct, sir. 1 What Padera was referring to by "that meeting In the morning" is not revealed by the record 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Padera's further testimony as to a layoff was as follows: Q Why did you stop in November, doing that9 (Transferring Lazaro to other work.) A. I did know that we were going to have a slump ... and I did know that I would have to reduce my force throughout the shop .... Q Were there any other people laid off aside from Mr. Lazaro, from your shop? A. Not at that particular time, no. Q Were there any in December, '63? A. Around eighteen, twenty. As previously stated, it was stipulated at the hearing that no layoff (other than that of Lazaro) took place until January 1964. Moreover, it appears from the tes- timony of Gervase, in contradiction to that of Padera, that no layoff of employees had been decided upon at the time of Lazaro's termination Gervase stated that in the latter part of September it had been feared that there might be a reduction-in- force, but that it did not come about because about 25 employees voluntarily left. In fact, others were hired because "they were leaving so fast, we had to hire them " Padera's testimony is further in error in that he dated the occasion when some employees were in fact laid off as in December, whereas it was stipulated at the hearing that it did not take place until Januaiy 1964 Between September 1963 and January 1964, then, no layoffs of any kind took place, with the sole exception of Lazaro's termination, and none were scheduled to be made Not only is Padera's testimony not credited on this point but on others as well. For example, as I have found, Padera testified that he pulled Lazaro's card from the rack because he "wanted to know why he did not call me . . . and at that same time I told him I did not have any more work ... " I have found that when Lazaro asked Padera why his card had been pulled, Padera said that he did not know and referred him to the office, and that from there he was sent to the cafeteria where the paymaster handed him his paycheck. According to Lazaro's account neither Padera nor Gervase told him why he was discharged, or even that he was in fact being terminated. Nor did Padera, while testifying, deny Lazaro's account of his two conversations with Padera concerning the pulling of his timecard. Furthermore, Padera's testimony that he pulled the card "because I wanted to know why he did not call me," falls short of being an unequivocal statement that Lazaro had in fact not called him The statement of counsel, quoted above, that Lazaro "was absent for a whole week without notice," is without evidentiary value On the contrary, Padera did not deny that Lazaro's daughter called him on the morning of November 4, as she testified, and that she told him that her father was ill and would not be at work, and that Padera said, "Okay, thank you for calling " Lazaro's known activity on behalf of the Union and Respondent's openly expressed opposition to it, coupled with the contradictory reasons which Respondent advanced for his termination, lead to the conclusion, which I draw, that the reason for Lazaro's discharge was not founded in legitimate business considerations but in his union activity. Respondent, I find, discharged him for this activity in violation of Sec- tion 8(a) (3) and (1) of the Act. 2. Jafus Jackson Jackson has been in Respondent's employ for 18 years. During the latter part of his employment, up to November or December 1963, when he was transferred to other work (a transfer alleged to have been discriminatory), he worked on a smash- ing machine in the binding department under the foremanship of Rudy Padera. Jackson joined the Union in the spring of 1963 at the beginning of its organizing drive and became active in soliciting the membership of other employees. In August 1963, Jackson, when refused a loan from Respondent, asked Gervase if his refusal was because he was for the Union, and Gervase replied that it was not 2 Jackson testified that on another occasion, about 2 weeks before the election, Ger- vase stopped at his machine and asked him if he was "working with" him, stating that he knew that Jackson like his brother, previously employed by Respondent, was for the Union and that Respondent would not lend him another dime. Jackson accused Gervase of having given his brother a "dirty deal." Gervase did not deny 2 Jackson testified that Gervase brought up the matter of his interest in the Union as the reason for refusing him a loan. I credit Gervase's version of this conversation. JOHN F. CUNEO COMPANY 941 having this conversation with Jackson, and I find that it took place. In August, according to Jackson's uncontradicted testimony, which I credit, Bjornson on two occasions told him that the Union was "no good" for him and offered to bet that it would not win the forthcoming election. It is clear that Respondent knew of Jackson's activity in the Union, and was opposed to it. During the entire course of his employment Jackson performed overtime work on the smashing machine every Saturday. For 4 hours on Saturday he worked on this machine and for another 2 hours he cleaned sewing machines. Sometime before Christmas 1963-possibly a month according to Jackson, but the latter part of Octo- ber, according to Padera, and about the latter part of December, according to Gervase -Jackson was taken off the smashing machine and put on the gathering machine. At the same time, Saturday overtime work was taken away from him. It is this removal of overtime work which the General Counsel contends was discriminatory. Respond- ent's defense is that the gathering machine does not entail overtime work and that he was removed to the gathering machine from the smashing machine "because of his continued absence from his work during working hours over a long period of time," as Respondent's brief puts it. The record, however, is almost devoid of evidence on this point. Padera was not asked about the circumstances attending the transfer or the reasons for it, although he was Jackson's own foreman After Padera had finished his testimony-in-chief, without mentioning Jackson, and after the General Counsel's rebuttal witness had testified, Padera was recalled to the stand and asked if it was true that on one occa- sion Jackson had been away from his machine and if he had found Padera talking on the telephone on the receiving dock Padera replied that this was the case, but that it was during a period when Jackson was helping on the gluing machine and that the gluing machine was down at the time. Padera did not testify that he spoke to Jackson about being away from the machine. Nor did Gervase, while testifying, advance any reason for transferring Jackson. Nor did Bjornson. The only evidence as to what Jackson was told about his transfer is his own testimony that Bjornson said that he was "not supposed to work" on the smasher anymore, that Respondent was not going to clean the sewing machines any- more, and that Gervase was "getting hard." Respondent's contention, as stated by its counsel, is that Jackson was transferred because he was frequently away from the smashing machine talking on the telephone which Respondent maintained on the receiving dock for the use of the truckdrivers. But statements of counsel are not evidence. There is in the record, however, the testimony of several witnesses as to Jackson's use of this telephone. Joseph Hardrick and Peter Caruso, dockmen, stated that while various other employees than truck- drivers used the telephone, Jackson and one other employee used it the most. This was several times a day, but neither witness said whether it was during Jackson's worktime or during his break periods. John Roscoe, operator at the line of smash- ing machines at which Jackson worked, testified that on one occasion Jackson held up work by being away from the machine, that he was away from his machine various times over the period of a year, and that he frequently complained to Padera about this. Padera, asked if he recalled Jackson's using the telephone on the dock during working hours, named the occasion previously related when he found Jackson at the telephone. But this was when Jackson's machine was down There is no evidence, either in the testimony of Padera, Gervase, or any other supervisor, that any supervisor reprimanded Jackson at any time about being away from his machine. The only evidence that he was spoken to on the subject is Jack- son's own testimony that once on an unspecified occasion when he was away from his machine, apparently not on the telephone, Gervase told him to get back to it. It is clear from the record that employees other than Jackson, in addition to the truckdrivers, used the telephone on the dock, so much so that on December 9, 1963, Gervase had it taken out He testified that this was because Padera, as well as dock- men Caruso and Hardrick, told him that "a lot of the people were using the telephone back there. As a matter of fact, they were tying up the truckdrivers so I decided `let's get rid of the damn thing ' " According to Gervase, he was told that "Jackson was back there and Soloman Holmes went back there a lot and a couple of the other boys." Conclusions Respondent's defense to Jackson's being removed from overtime work, as stated in its answer, is that "overtime has been curtailed or eliminated through the plant because of the substantial cutback in Respondent's business." There is no evidence in the record, however, that overtime work on the smashing machine was affected 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by any falling off in business . On the contrary it is not denied that it continued, and Jackson's uncontradicted testimony is that two other employees , both of whom had less seniority than he , continued to do this work . Respondent's contention at the hearing that Jackson was taken from the smashing machine because he was fre- quently away from that machine using the telephone on the receiving platform, is not convincing. The only such occasion which Jackson 's foreman , Padera, could recall was when the machine on which Jackson was working was down. I do not credit the testimony of Roscoe that Jackson was away from the smashing machine on the average of several times a day during the entire period of about a year and that he complained to Padera about it. In any event , there is no evidence that Padera at any time spoke to Jackson about it. Jackson 's uncontradicted testimony is that he did not. Nor did Gervase advance as a reason for his transfer that he was away from his machine, although Jackson stated that Gervase spoke to him on one occasion. Indeed Gervase's testimony as to Jackson's use of the telephone on the receiving plat- form, the principal complaint against Jackson, is that not only Jackson but various other employees in addition to the truckdrivers used the telephone until this became such a nuisance that it was removed. This was done on Gervase's order on Decem- ber 9. As previously remarked , the record is not clear as to when Jackson was trans- ferred from the smashing machine, but Gervase's own testimony seems to place it as occurring after December 9.3 If this is correct, then the telephone had been removed about 2 weeks before Jackson was transferred , and it is difficult to see any connec- tion between the two events . I am convinced that Jackson's use of the telephone was only a pretext to transfer him from the smashing machine My conclusion that it was only an afterthought is supported by the fact that no supervisor gave this as a reason at the time the transfer was made. In fact, there is no evidence that Padera or Gervase, or any one else responsible for Jackson 's work, gave him any reason at all for his transfer, aside from Bjornson's telling Jackson that Gervase was "getting hard." 4 It has been found that Respondent was opposed to the Union and to Jackson's activity in its behalf. Both Gervase and Padera had expressed this opposition to- Jackson personally. I find that Jackson 's transfer from a machine on which he had worked overtime for 18 years to a machine which did not "entail" overtime , without. any reason being given him by either Gervase or Padera, was because of his activity on behalf of the Union . By so depriving Jackson of overtime work Respondent vio- lated Section 8(a) (3) and ( 1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section 1, 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act Respondent having discharged Lazaro de Lazaro and transferred Jafus Johnson because of their mem- bership in and support of International Brotherhood of Bookbinders , AFL-CIO, I recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of Respondent 's discrimination against them, by payment of a sum of money equal to that which they normally would have earned as wages from the date of the discriminations to such date as Respondent shall offer them reinstate- ment , less their net earnings during said period Such said backpay shall be com- puted on a quarterly basis in the manner established by the Board in the F. W. Woolworth Company, 90 NLRB 289, 291 -294, and with interest thereon, at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co, 138 NLRB 716. 3 Gervase apparently dates Jackson's transfer as occurring about the time that the night shift was taken off, which he testified was on December 23 or 24 4 Since Bjornson was foreman of the sheet metal department and not of the binding department where Jackson worked, he had no supervision over Jackson. SPUN-JEE CORP. & THE JAMES TEXTILE CORP. 943 As the unfair labor practices committed by Respondent are of a type which strike at the very roots of employee rights safeguarded by the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the, rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. John F. Cuneo Company is engaged in commerce within the meaning of the. Act. 3. By discriminating with respect to the hire and tenure of employees, thereby discouraging membership in the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, thereby violat- ing Section 7 of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Spun-Jee Corp. and The James Textile Corp . and Undergarment and Negligee Workers Union, Local 62, International Ladies' Garment Workers' Union, AFL-CIO. Case No. 2-CA-9520.. May 26,1965 DECISION AND ORDER On June 3, 1964, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint 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 Decision and a supporting brief, and the Respondents filed a reply brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner 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 briefs, and the entire record, in the case, and finds merit in the exceptions of the General Counsel. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent consistent herewith.' The complaint herein states in substance that the Respondents Spun- Jee Corp. and The James Textile Corp., as a single employer, violated Section 8(a) (5) and (1) of the Act when, as members of the Allied. I Member Jenkins concurs in the result. 152 NLRB No. 96.